Bessey v. DiFilippo

951 So. 2d 992, 2007 WL 776421
CourtDistrict Court of Appeal of Florida
DecidedMarch 16, 2007
Docket1D06-0774
StatusPublished
Cited by11 cases

This text of 951 So. 2d 992 (Bessey v. DiFilippo) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bessey v. DiFilippo, 951 So. 2d 992, 2007 WL 776421 (Fla. Ct. App. 2007).

Opinion

951 So.2d 992 (2007)

Christopher BESSEY, Appellant,
v.
Frances DIFILIPPO and Jo Difilippo, Appellees.

No. 1D06-0774.

District Court of Appeal of Florida, First District.

March 16, 2007.

James H. Daniel, Jacksonville, for Appellant.

Gail A. Stafford of the Law Office of Gail A. Stafford, Jacksonville and Elizabeth C. Wheeler of Elizabeth C. Wheeler, P.A., Orlando, for Appellees.

BENTON, J.

Christopher Bessey, plaintiff below, appeals an order awarding him only part of the taxable costs he sought, even though judgment had been entered in his favor in *993 the single-count negligence action he brought against Frances and Jo Difilippo. Section 57.041(1), Florida Statutes (2005), does not authorize reduction or apportionment of costs on grounds that the plaintiff recovered-on the only count sued on-less than all of the damages the complaint prayed for. The statute does not leave the award to the trial court's discretion, but entitles the party in whose favor judgment is entered to an award of all taxable costs, as a matter of law. See Tacher v. Mathews, 845 So.2d 332, 334 (Fla. 3d DCA 2003) ("The award of these costs is not discretionary."). Accordingly, we reverse and remand for the award of all taxable costs reasonably and necessarily incurred in prosecuting the lawsuit.

I.

Mr. Bessey sued Jo Difilippo, as the driver, and Frances Difilippo, as the owner, of a car he claimed hit his stopped car from the rear. The complaint alleged that the accident caused bodily injury which resulted in pain and suffering, disability, disfigurement, mental anguish, loss of capacity to enjoy life, hospitalization, medical and nursing care and treatment, loss of earnings, loss of ability to earn money in the future, and aggravation of a previously existing condition; and alleged that his injuries and losses were permanent or continuing and that he would suffer losses and impairment in the future. Although the defendants initially denied liability, they admitted negligence on the day before trial, while continuing to "deny that Mr. Bessey suffered a permanent injury as a result of the accident and [to] deny the damages claimed by Mr. Bessey." The only issues left for the jury to decide were "causation, damages, [and] personal injuries."

Several doctors who treated Mr. Bessey testified at trial regarding the cause and extent of his injuries, and gave their opinions as to whether any injuries he sustained had permanent effects. Other witnesses testified about the effect injuries attributed to the automobile accident had on Mr. Bessey's ability to work and on his future earning capacity.[1] Dr. Edward Franco, a radiologist, testified that an MRI revealed that Mr. Bessey had a disc protrusion between the sixth and seventh vertebrae and that the normal, cervical, lordotic curvature was absent, limiting his range of motion and leading to muscle spasms. Dr. Franco testified that the disc protrusion was the result of trauma of the kind an automobile accident might cause.

Dr. Manley Kilgore, a neurologist, testified that he diagnosed Mr. Bessey with post-traumatic headaches, neck and back strains and sprains and neck muscle spasms. He testified that he believed these symptoms were a result of the automobile accident and that Mr. Bessey's injuries would continue to affect him for the rest of his life. Dr. Kilgore assigned a fifteen per cent permanent impairment rating of the body as a whole. A chiropractor, Dr. Stephen Alexander, also testified that Mr. Bessey suffered from back and neck strains and sprains of a type an accident might cause. He testified that Mr. Bessey's back problems would continue and could be expected to flare up from time to time for the rest of his life. Dr. *994 Alexander assigned Mr. Bessey a thirteen per cent permanent impairment rating of the body as a whole.

On the other hand, Dr. John Von Thron, the defendants' independent medical examiner, testified that Mr. Bessey did not appear to have muscle spasms in his neck and that MRI scans and x-ray films disclosed spurring on his neck vertebrae, indicating arthritis. He testified that the automobile accident did not cause the spurring, which had developed gradually over a long period of time, and that arthritic degeneration could cause disc herniation. He testified that he did not believe that Mr. Bessey sustained a permanent injury as a result of the automobile accident and that he did not think the disc protrusion was the cause of Mr. Bessey's pain in any event. On the basis of this testimony, defense counsel argued that the effects of the accident were minor, and also contended that there were many jobs Mr. Bessey could do that would pay him more than he was making, so that the jury should not award anything for loss of earnings.

II.

The jury returned a verdict awarding Mr. Bessey $14,523.72 for past medical expenses, but found no permanent injury and awarded nothing for future expenses.[2] After the ensuing judgment was affirmed by this court, Bessey v. Difilippo, 932 So.2d 195 (Fla. 1st DCA 2006), Mr. Bessey filed a motion to tax costs pursuant to section 57.041, Florida Statutes (2005), seeking costs in the amount of $29,857.79 as the "party recovering judgment." Opposing the motion to tax costs, the defendants argued that section 57.041, Florida Statutes, incorporated the "prevailing party" standard, and that Mr. Bessey had not prevailed on the significant issues at trial, which they identified as the permanency of the injury, future medical expenses, future earnings, and future pain and suffering.

After the hearing on the motion to tax costs the court entered an order awarding Mr. Bessey partial costs in the amount of $6,176.78. The trial court ruled that Mr. Bessey "prevailed on the issue of past medical expenses and therefore that the Plaintiff would be entitled to costs if his costs can be tied into that issue," but also ruled "on the other hand that costs that went to other issues like permanent injury, on those issues the Plaintiff did not prevail and therefore would not be entitled to costs."

III.

The present case is similar to Liebling v. Fla. Energy Mgmt., Inc., 619 So.2d 441 (Fla. 2d DCA 1993), and a similar result should obtain. In a negligence action stemming from an automobile accident, the jury found for the Liebling plaintiff and awarded $1,237.39 for property damage, while finding that Mr. Liebling did not meet the threshold requirements for any award for bodily injuries. 619 So.2d at 442. Final judgment was entered in his favor for property damage only. See id. On appeal, the court reversed an award of costs to the defendants[3] with directions that the trial court award Mr. *995 Liebling his taxable costs on remand. See id. at 443. "This was a one-count complaint upon which the jury found FEM solely negligent. Even though the jury found that the threshold requirement for bodily injury was not met . . . the fact remains that Liebling is the prevailing party in this case and, as such, is entitled to his taxable costs." Id. (citing section 57.041(1), Florida Statutes (1991), and Hendry Tractor Co. v. Fernandez, 432 So.2d 1315, 1316 (Fla.1983)).

A negligence action also arose out of a car accident in Wright v. Caruana, 640 So.2d 197, 198 (Fla. 3d DCA 1994). The Wright court ruled that the plaintiff should have been awarded her costs[4] pursuant to section 57.041(1), Florida Statutes, because she was "clearly the prevailing party," although the jury found her fifty per cent liable and the judgment was reduced accordingly.

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Cite This Page — Counsel Stack

Bluebook (online)
951 So. 2d 992, 2007 WL 776421, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bessey-v-difilippo-fladistctapp-2007.