Loper v. Allstate Ins. Co.

616 So. 2d 1055, 1993 WL 96764
CourtDistrict Court of Appeal of Florida
DecidedApril 5, 1993
Docket91-2003, 91-2433
StatusPublished
Cited by14 cases

This text of 616 So. 2d 1055 (Loper v. Allstate Ins. Co.) 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
Loper v. Allstate Ins. Co., 616 So. 2d 1055, 1993 WL 96764 (Fla. Ct. App. 1993).

Opinion

616 So.2d 1055 (1993)

John David LOPER, Appellant,
v.
ALLSTATE INSURANCE COMPANY, Appellee.
ALLSTATE INSURANCE COMPANY, Appellant,
v.
John David LOPER, Appellee.

Nos. 91-2003, 91-2433.

District Court of Appeal of Florida, First District.

April 5, 1993.

*1056 John A. Ratzlaff of Trammell & Ratzlaff, Marianna, and Julian Clarkson and Susan L. Turner, Holland & Knight, Tallahassee, for John David Loper.

Thomas R. Thompson and Michael T. Callahan, Callahan & Dobbins, Tallahassee, for Allstate Ins. Co.

Roy D. Wasson, Miami, for amicus curiae Academy of FL Trial Lawyers.

ZEHMER, Judge.

In this action to recover uninsured motorist benefits from Allstate Insurance Company, John David Loper appeals an amended final judgment entered pursuant to a jury verdict. He raises six points on appeal. The first three of the points contend that the trial court committed error in respect to the trial proceedings by: (1) compelling Loper to testify regarding his criminal record; (2) admitting double hearsay testimony concerning a medical procedure suggested to Loper prior to the accident; and (3) granting Allstate's motion for relief from judgment. The remaining three points assert errors regarding the award of attorney's fees in: (4) failing to award a reasonable attorney's fee for all time expended subsequent to Allstate's disputing whether Loper was an insured under the terms of the policy; (5) failing to consider the application of a multiplier to the attorney's fee award; and (6) failing to consider the amount of time a legal assistant expended on his case in determining the amount of the attorney's fees. Allstate cross-appeals, arguing that the trial court erred in awarding attorney's fees to Loper because Allstate did not have sufficient notice that Loper intended to claim entitlement to attorney's fees.

We affirm the issue raised on cross-appeal without discussion. We reverse the damages award, finding error on the first point raised by Loper, and remand for a new trial on damages only. We also reverse the award of attorney's fees for the reasons hereafter stated. Because Loper's remaining points will likely be implicated on retrial, we also consider each of them to provide guidance during further proceedings on remand.

On December 17, 1989, while walking along a roadway to his job as a dispatcher for the Sneads Police Department, Loper was struck from behind by an uninsured motor vehicle. Loper claimed that he was entitled to uninsured motorist benefits pursuant to a policy issued by Allstate to his stepfather, Walter Austria. Allstate denied Loper's claim and he filed this lawsuit. Allstate's answer denied that the policy issued to Walter Austria provided coverage to Loper and asserted by way of an affirmative defense that Loper was not an "insured" within the meaning of the terms of that policy. The court entered judgment for Loper on the jury verdict, but thereafter granted Allstate's motion for relief from judgment and entered an amended judgment that reduced the jury's award of damages for medical expenses.

With this background in mind, we turn to Loper's arguments on appeal.

I.

At trial, Loper claimed that he was entitled to damages for loss of past and future earnings based on his inability to obtain prospective employment as a corrections officer due to the injuries he suffered in the accident. He presented evidence that he had completed the Corrections Officer *1057 School at Chipola Junior College just two weeks before the accident. Testimony by the director of the corrections school demonstrated that Loper was both qualified and employable as a corrections officer but for the injuries received in the accident.

Allstate's counsel undertook to question Loper about his having been charged with burglary and several misdemeanor convictions, arguing that these facts were relevant to rebut Loper's claim that he would have secured employment as a corrections officer. Allstate argued that Loper's criminal record tended to prove that Loper would be disqualified from obtaining such employment because section 943.13(7), Florida Statutes, requires that an applicant for corrections officer be "of good moral character." Loper's counsel objected to the admission of this evidence, arguing that Loper had not been convicted of the burglary offense and the record thereof had been expunged, that the misdemeanor convictions were not offenses that involved dishonesty or a false statement, and that these matters were not shown to disqualify him from being a corrections officer under section 943.13, Florida Statutes.

The trial court overruled Loper's objections and directed him to answer Allstate's questions for the "limited purpose of you being gainfully employed as a corrections officer." Consequently, Loper testified that in 1977 he was charged with burglary of a business, and that he had been charged four times and convicted three times of driving while intoxicated. His drivers' license had been revoked for life, but he had partially completed a program designed to help him re-obtain his license. He further testified that he had "a number of convictions for disturbing the peace, public intoxication and prowling." The trial court also admitted in evidence an employment application on which Loper admitted that he had pleaded nolo contendere to the burglary charge in 1977.

We hold it was error for the trial court to overrule Loper's objections and admit this evidence. The criminal history was not shown to disqualify Loper from prospective employment as a corrections officer, and the prejudicial effect of such evidence far outweighed any possible probative value it might have had. This issue is governed by Section 943.13, Florida Statutes (1991). That section provides in part pertinent to this issue that a person employed as a corrections officer shall:

(4) Not have been convicted of any felony or of a misdemeanor involving perjury or a false statement, or have received a dishonorable discharge from any of the Armed Forces of the United States. Any person who, after July 1, 1981, pleads guilty or nolo contendere to or is found guilty of any felony or of a misdemeanor involving perjury or a false statement is not eligible for employment or appointment as an officer, notwithstanding suspension of sentence or withholding of adjudication.
* * * * * *
(7) Have a good moral character as determined by a background investigation under procedures established by the commission.

Loper's plea to the felony charge for burglary occurred in 1977, several years prior to the 1981 date specified in the statute, so it was not mandatorily disqualifying under subparagraph (4) as it would have been had the plea occurred after July 1, 1981. Cf. McNair v. Criminal Justice Standards and Training Com'n, 518 So.2d 390 (Fla. 1st DCA 1987). Likewise, none of his misdemeanors were disqualifying under subparagraph (4) because they did not involve perjury or false statements. For these reasons, Allstate was left to argue that the evidence of past criminal history was nevertheless relevant to Loper's good moral character under subparagraph (7) of section 943.13. Nothing in this subparagraph makes Loper's criminal record a mandatory disqualification as does subparagraph (4); rather, subparagraph (7) reposes discretion in the agency to determine good moral character. Allstate, however, did not present any evidence that the Department of Corrections would likely treat Loper's criminal record as reflecting bad moral character under section 943.13(7) so as to disqualify him from employment.

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Bluebook (online)
616 So. 2d 1055, 1993 WL 96764, Counsel Stack Legal Research, https://law.counselstack.com/opinion/loper-v-allstate-ins-co-fladistctapp-1993.