Commercial Carrier Corp. v. Rockhead

639 So. 2d 660, 1994 WL 316334

• Court: District Court of Appeal of Florida
• Decided: July 5, 1994
• Docket: 94-862
• Status: Published

Opinion

639 So.2d 660 (1994)

COMMERCIAL CARRIER CORP., Petitioner,
v.
Cheryl ROCKHEAD, as personal representative of the estate of Mark Adrian Rockhead, Deceased, Respondent.

No. 94-862.

District Court of Appeal of Florida, Third District.

July 5, 1994.

John S. Freud and Michael J. Schwartz, Miami,^[*] for petitioner.

Philip M. Gerson and Edward S. Schwartz, Miami,^[*] for respondent.

Before SCHWARTZ, C.J., and NESBITT and LEVY, JJ.

SCHWARTZ,^[*] Chief Judge.

As we have previously indicated in Key West Convalescent Center, Inc. v. Doherty, 619 So.2d 367 (Fla. 3d DCA 1993), we follow Henn v. Sandler, 589 So.2d 1334 (Fla. 4th DCA 1991) (en banc) in concluding — notwithstanding Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla. 1987), which did not consider the statute — that an order denying a motion to strike a punitive damages claim as unjustified under section 768.72, Florida Statutes (1991) is reviewable by certiorari. Accord Kraft Gen. Foods, Inc. v. Rosenblum, 635 So.2d 106 (Fla. 4th DCA 1994); Torcise v. Homestead Properties, 622 So.2d 637 (Fla. 3d DCA 1993), review denied, 634 So.2d 624 (Fla. 1994); see Will v. Systems Eng'g Consultants, Inc., 554 So.2d 591 (Fla. 3d DCA 1989); Wolper Ross Ingham & Co. v. Liedman, 544 So.2d 307 (Fla. 3d DCA 1989). Contra Chrysler Corp. v. Pumphrey, 622 So.2d 1164 (Fla. 1st DCA 1993); Harley Hotels, Inc. v. Doe, 614 So.2d 1133 (Fla. 5th DCA 1993), review denied, 626 So.2d 205 (Fla. 1993).

On the merits, it is apparent that the circumstances of this case — a motor vehicle accident in which there is evidence of little, if anything, more than simply negligent driving by either or both of the parties involved — fall far short of those required to support an action for punitive damages. See White Constr. Co. v. DuPont, 455 So.2d 1026 (Fla. 1984). Accordingly, the order under review is quashed.

Certiorari granted.

LEVY, J., concurs.

NESBITT, Judge, dissenting:

I respectfully dissent for the reasons expressed in and on authority of Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla. 1987) (district court does not have jurisdiction by common law certiorari to review the denial of a motion to strike punitive damage claim).

NOTES

[*] Like a pride of lions, and an exaltation of larks, this case involves an intelligence of (unrelated) Schwartzes.