Nationwide Mut. Fire Ins. Co. v. Vosburgh

480 So. 2d 140, 10 Fla. L. Weekly 2738
CourtDistrict Court of Appeal of Florida
DecidedDecember 11, 1985
Docket83-1135, 83-1880 and 83-1896
StatusPublished
Cited by6 cases

This text of 480 So. 2d 140 (Nationwide Mut. Fire Ins. Co. v. Vosburgh) 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
Nationwide Mut. Fire Ins. Co. v. Vosburgh, 480 So. 2d 140, 10 Fla. L. Weekly 2738 (Fla. Ct. App. 1985).

Opinion

480 So.2d 140 (1985)

NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, William A. Blanchard and Clayton Blanchard, Jr., Appellants,
v.
Beth Anne VOSBURGH, South Carolina Insurance Company, a Foreign Corp., and Anne L. Fleming, Appellees.

Nos. 83-1135, 83-1880 and 83-1896.

District Court of Appeal of Florida, Fourth District.

December 11, 1985.
Rehearings Denied January 17, 1986.

*142 David F. Crow of Paxton, Crow, Bragg & Austin, P.A., West Palm Beach, and David F. Cooney of Conrad, Scherer & James, Fort Lauderdale, for appellants.

Edna L. Caruso of Edna L. Caruso, P.A., West Palm Beach, and Montgomery, Lytal, Reiter, Denney & Searcy, P.A., West Palm Beach, for appellee Vosburgh.

Marjorie Gadarian Graham and Neil J. Hayes of Jones & Foster, P.A., West Palm Beach, for appellees South Carolina Ins. Co. and Fleming.

DELL, Judge.

This consolidated appeal arises from a final judgment awarding appellee Beth Anne Vosburgh (Vosburgh) damages for personal injuries, and from an order and final judgment which denied appellants' claim for contribution from appellees Anne L. Fleming (Fleming) and South Carolina Insurance Company (South Carolina). Nationwide Mutual Fire Insurance Company (Nationwide) also appeals from a second amended final judgment which determined the amount of its liability.

Vosburgh suffered personal injuries while riding as a passenger on a motorcycle owned by Clayton Blanchard and operated by William Blanchard. The motorcycle collided with a vehicle driven by Anne Fleming. At the time of impact, Vosburgh's helmet came off and landed some distance away from her. She sustained serious personal injuries which included a skull fracture and concussion, a comminuted displaced fracture of the shaft of the femur, a loss of hearing in her right ear, and permanent brain damage. Expert testimony established that her brain disfunction will affect her ability to obtain and to sustain gainful employment.

Fleming and South Carolina reached an agreement with Vosburgh to settle her claim against them for the amount of Fleming's policy limits ($10,000). Vosburgh agreed not to enforce judgment against Fleming and South Carolina in excess of $10,000; however, she did not dismiss them from the pending action. The trial court denied appellants' motion to drop Fleming and South Carolina as parties to the trial.

At the conclusion of the evidence the trial court granted Vosburgh's motion for a directed verdict on the issue of comparative negligence. The jury awarded Vosburgh damages in the amount of $696,483.00 and found William Blanchard sixty percent negligent and Fleming forty percent negligent.

Post trial, the court granted Fleming and South Carolina's motions to limit their liability to $10,000 and to bar any claim by appellants for contribution. The trial court also denied Nationwide's motion to set aside the judgment against it, or in the alternative to limit its liability to $100,000, and held that the policies issued by Nationwide to William Blanchard and Clayton Blanchard provided combined coverage in the amount of $200,000.

Appellants raise several points on appeal. Initially, they contend that Vosburgh's testimony concerning salaries for stewardesses, teachers and interpreters constituted hearsay and that the admission of this evidence caused the jury to render an excessive verdict. Appellants then argue that the trial court should not have granted Vosburgh's motion for a directed verdict on the issue of comparative negligence and that it should have granted their motion to drop Fleming and South Carolina as party defendants. In addition, appellants contend that the trial court erred when it assessed costs against them and denied their claim for contribution from Fleming and South Carolina. Finally, Nationwide contends that the trial court should have limited its liability to $100,000.

Appellants argue that Vosburgh relied upon inadmissible hearsay to establish the amount of her claim for diminution of earning *143 capacity and that the admission of this testimony caused the jury to render an excessive verdict. Vosburgh testified that she had intended to work as a stewardess, teacher or interpreter, and that she had inquired as to the starting salary for each of these occupations. In response to further questions and over an objection on the ground of hearsay, she stated an amount for each occupation.[1]

Vosburgh contends that we should not construe her testimony as inadmissible hearsay but rather as a lay witness opinion. She cites several cases as support for this contention. However, none of these cases leads to the conclusion that lay witness opinion testimony may be based solely upon information furnished by a third party.[2] Section 90.701, Florida Statutes (1983), provides that a lay witness may testify in the form of an opinion when:

(1) The witness cannot readily, and with equal accuracy and adequacy, communicate what he has perceived to the trier of fact without testifying in terms of inferences or opinions and his use of inferences or opinions will not mislead the trier of fact to the prejudice of the objecting party; and
(2) The opinions and inferences do not require a special knowledge, skill, experience or training.

The Law Revision Council Note indicates that Section 90.701 permits a lay witness to testify to things which the witness has perceived such as distance, time, size, weight, form and identity. The Council Note goes on to state:

This section retains the traditional objective of putting the trier of fact in possession of an accurate reproduction of the event, while permitting the witness to testify in language more characteristic of ordinary conversation. The Comment to Model Code of Evidence Rule 401 explains:
Where a witness is attempting to communicate the impressions made upon *144 his senses by what he has perceived, any attempt to distinguish between so-called fact and opinion is likely to result in profitless quibbling. Analytically no such distinction is possible. The English common law does not attempt to prevent a witness from describing his experiences in terms including inferences. If he hasn't the skill or experience required for drawing inferences, he will not be allowed to state them. His inferences, when received may not be worth much, but they can do no harm. The court will not permit them to be given more weight than the basis upon which they are built will sustain, and that basis can be uncovered on cross-examination if the judge has not required that it be given in advance.

We find nothing in Section 90.701 or the Council Note which would permit a witness to testify about something she had been told rather than something she perceived.

The Second District Court of Appeal concluded in Barnes v. State, 415 So.2d 1280 (Fla. 2d DCA), petition on review denied, 424 So.2d 760 (Fla. 1982), that Section 90.701 only permitted a witness to give an opinion based on his perceptions. The Barnes court stated:

Section 90.701, Florida Statutes (1979), allows opinions of lay witnesses only when based upon what the witness has "perceived." Other jurisdictions have also held that the type of hearsay testimony proffered here was properly excluded. In People v. Turner, 91 Ill. App.2d 436, 235 N.E.2d 317

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Cite This Page — Counsel Stack

Bluebook (online)
480 So. 2d 140, 10 Fla. L. Weekly 2738, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nationwide-mut-fire-ins-co-v-vosburgh-fladistctapp-1985.