ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY

v.

DAVID W. SCHROEDER, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF GAIL S. SCHNELL, AND SUSANA ALCALA,

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D2023-3363 _____________________________

ALLSTATE FIRE AND CASUALTY

INSURANCE COMPANY,

Appellant,

v.

DAVID W. SCHROEDER, as Personal Representative of the Estate of Gail S. Schnell, and SUSANA ALCALA,

Appellees. _____________________________

On appeal from the Circuit Court for Taylor County. Gregory S. Parker, Judge.

April 23, 2025

BILBREY, J.

Allstate appeals the summary final judgment entered for Appellees who were two of Allstate’s co-defendants before the trial court. Finding no error, we affirm and write to address an issue concerning evidence of a phantom vehicle.

This case stems from a multi-vehicle collision. Gail S. Schnell owned the third vehicle involved in the crash, and Schnell’s vehicle

In support of Appellees’ motion for summary judgment, Alcala filed an affidavit stating that she too was rear-ended, in her case by a phantom fourth vehicle. In her affidavit, Alcala stated that there was nothing she could do to avoid crashing into the vehicle in front of her, which then crashed into the plaintiffs, Allstate’s insureds.

Allstate opposed summary judgment and filed a response containing excerpts of the plaintiffs’ and other co-defendants’ depositions.³ In those depositions, the witnesses in general terms

1 Schnell died during the litigation and David W. Schroeder, as personal representative of her estate, was substituted as a party. Schnell was only alleged to have been liable as owner of the motor vehicle driven by Alcala and was not alleged to have personally committed any act of negligence. See Southern Cotton Oil Co. v. Anderson, 86 So. 629, 631 (Fla. 1920) (applying the dangerous instrumentality doctrine to the owners of automobiles in Florida); Depriest v. Greeson, 213 So. 3d 1022. 1027 (Fla. 1st DCA 2017) (explaining the dangerous instrumentality doctrine).² The plaintiffs below did not appeal the summary final judgment entered for Appellees. Here, Appellees contend that Allstate lacks standing to appeal the summary final judgment. This is incorrect. “[A] defendant has a right to appeal a judgment exonerating a co-defendant as against the plaintiff, because the finding of non-liability to the plaintiff determines any contribution and/or indemnity claims. . . .” Benton Inv. Co. v. Wal-Mart Stores, Inc., 704 So. 2d 130 132 (Fla. 1st DCA 1997) (citing Holton v. H.J. Wilson Co., 482 So. 2d 341, 344 (Fla. 1986)).³ No party deposed Alcala in an attempt to expose inconsistencies in her testimony.

We review the grant of summary judgment de novo. See Maddan v. Okaloosa Cnty., 358 So. 3d 834, 838 (Fla. 1st DCA 2023). “Summary judgment is not designed to resolve disputed issues of fact. It merely serves to identify whether an issue of fact exists that must be resolved by trial.” CG Tides LLC v. SHEDDF³ VNB, LLC, 388 So. 3d 1081, 1084–85 (Fla. 3d DCA 2024). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . .” Id. at 1085 (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986)).

“Under Florida decisional law, there is a rebuttable presumption of negligence that attaches to the rear driver in a rear-end motor vehicle collision case.” Birge v. Charron, 107 So. 3d 350, 353 (Fla. 2012). In the trial court, Appellees argued that the driver of the phantom vehicle was negligent under this rebuttable presumption and that there was no evidence of negligence by Alcala.

Because Alcala’s affidavit refuted her negligence and placed all blame for the crash on the phantom driver, it was then up to Allstate, other co-defendants, or the plaintiffs to raise material facts to avoid summary judgment. See Maddan, 358 So. 3d at 838. In opposing summary judgment, Allstate and the plaintiffs tried to raise a material issue of fact about whether a phantom driver was truly involved in the crash.⁴

4 Allstate argues that because the plaintiffs and other codefendants testified in their depositions that they did not see the phantom vehicle an inference existed that there was no phantom vehicle. But for such an inference to be created there needed to be more from these witnesses than just “I did not see a phantom vehicle.” As the Florida Supreme Court stated long ago,

When negative testimony is relied upon to contradict positive evidence, it should appear that the negative statements were made by person whose attention was directed to the fact that they were looking, watching, and listening for the fact. Not only that the opportunity for observing the fact existed, but that their attention was directed to the fact.

. . . .

A mere statement that ‘I did not see or hear’ the train or the noise made by its approach as against affirmative evidence of credible witnesses that it did approach and made sufficient noise in doing so reasonably to attract the attention of others cannot be said to create a conflict of evidence justifying a submission of the question to the jury.

Seaboard Air Line Ry. Co. v. Myrick, 109 So. 193, 195–96 (Fla. 1926) (citations omitted); see also Tyus v. Apalachicola N. R.R. Co, 130 So. 2d 580, 584 (Fla. 1961) (citing Myrick).

The scant negative testimony of the witness here that “I did not see a phantom vehicle” could not overcome the unequivocal positive statement of Alcala that there was a phantom vehicle. Allstate could have avoided summary judgment for Appellees if there was evidence from a witness that “I looked where I should have been looking and there was nothing to see.” American Motorist Inc. Co. v. Battista, 370 So. 2d 445, 446 (Fla. 1st DCA

driver] is rebutted and the issues of disputed fact regarding negligence and causation should be submitted to the jury.”).

AFFIRMED.

M.K. THOMAS and LONG, JJ., concur.

_____________________________

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

Jennifer L. Aybar of Boyd & Jenerette, P.A., Maitland; Kevin D. Franz of Boyd & Jenerette, P.A., Boca Raton, for Appellant.

Rhonda B. Boggess of Marks Gray, P.A., Jacksonville, for Appellees.