Pate v. Renfroe

715 So. 2d 1094, 1998 WL 476160
CourtDistrict Court of Appeal of Florida
DecidedAugust 13, 1998
Docket97-2281
StatusPublished
Cited by6 cases

This text of 715 So. 2d 1094 (Pate v. Renfroe) 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
Pate v. Renfroe, 715 So. 2d 1094, 1998 WL 476160 (Fla. Ct. App. 1998).

Opinion

715 So.2d 1094 (1998)

Robert E. PATE and Honoly Pate, his wife, Appellants,
v.
Michael David RENFROE, II, Appellee.

No. 97-2281.

District Court of Appeal of Florida, First District.

August 13, 1998.

*1095 Stephen J. Pajcic, III, and Christine A. Clark of Pajcic & Pajcic, P.A., Jacksonville, for Appellants.

Donald E. Pinaud, Jr., and J. Stephen O'Hara, Jr., of O'Hara, Spradley, Byrd, Jenson, Waters & McCall, Jacksonville, for Appellee.

DAVIS, Judge.

Robert E. Pate, the plaintiff below in a personal injury action arising out of an automobile accident, appeals a final judgment in favor of defendant Michael David Renfroe. The five issues raised on appeal are: (1) whether comments in defense counsel's closing argument, to which no objections were made, constituted fundamental error justifying reversal for a new trial; (2) whether the trial court abused its discretion in denying Pate's motion for new trial or additur because, Pate asserts, the jury's verdict that he suffered no permanent injury causally connected to the automobile accident was against the manifest weight of the evidence; (3) whether the trial court erred in giving a jury instruction requested by defendant which was based upon section 316.122, Florida Statutes (1995); (4) whether the trial court abused its discretion in denying Pate's motion for new trial or additur because, Pate asserts, the jury's verdict that he was fifteen percent comparatively negligent was against the manifest weight of the evidence; and (5) whether the trial court erred in reducing the jury verdict in favor of Pate by $10,000 as a set-off for PIP benefits. We affirm on the first four issues, but we reverse the set-off *1096 for PIP because no such benefits have been paid or are payable as required by the set-off statute.

The automobile accident occurred on March 1, 1995, when Renfroe ran a red light, striking Pate's vehicle. Pate was making a left turn on a green arrow. The impact caused Pate's vehicle to turn on its side and spin around 360 degrees. Pate's right knee struck the ignition key with force. Pate filed a complaint alleging that Renfroe was negligent and that Pate had suffered permanent injuries as a result of the accident which had caused him to incur medical expenses, lost wages, lost earning capacity, loss of enjoyment of life, pain and suffering. By the date of the verdict, as a result of this accident, Pate had received workers' compensation benefits for lost wages in the amount of approximately $29,000 and medical expenses in the amount of $11,391.29. Pate has neither claimed nor received any PIP benefits. Renfroe's answer asserted numerous affirmative defenses, including a defense that Pate's negligence caused or contributed to the accident.

Prior to trial Renfroe made two offers of judgment to Pate in the amount of $25,000, the limit of Renfroe's insurance policy. Pate rejected both offers. The jury ultimately returned a verdict finding that Pate had suffered damages for lost wages and past medical bills in the amount of $20,000, but also found Pate fifteen percent comparatively negligent. The jury found that Pate had suffered no permanent injury as a result of this accident and no future damages were awarded. Reducing the jury's damage award of $20,000 by fifteen percent to account for Pate's comparative negligence, the verdict in favor of Pate was $17,000. The trial court relied upon the verdict of $17,000 in determining that the verdict was more than twenty-five percent less than the offers of judgment, making Pate liable for Renfroe's costs and attorney's fees pursuant to section 768.79, Florida Statutes (1995). Renfroe filed a motion for sanctions pursuant to section 768.79, and a separate motion for a PIP set-off, asking the court to reduce the jury verdict in favor of Pate by $10,000, the amount of Pate's PIP coverage. The trial court determined that Pate was liable for fees and costs under the offer of judgment statute and granted Renfroe's motion for a $10,000 set-off for PIP benefits pursuant to section 627.736, Florida Statutes (1995). The trial court then reduced Pate's verdict to $7000 to account for the PIP set-off, and then set off that amount against Renfroe's costs and fees of $48,695.20, resulting in a judgment for Renfroe in the amount of $41,695.20.

We find no merit to Pate's argument that the four isolated comments made by defense counsel during closing argument constitute fundamental error. Pate's counsel failed to object below to any of these remarks. We remind counsel that, "[i]f counsel intend to appeal to this court, they would be well advised to object." Winterberg v. Johnson, 692 So.2d 254, 255 (Fla. 1st DCA 1997)(quoting Donahue v. FPA Corp., 677 So.2d 882, 884 (Fla. 4th DCA 1996)(Klein, J., concurring specially)).

Pate contends that the trial court abused its discretion in denying his motion for new trial or additur because the jury's findings that Pate suffered no permanent injury causally related to the accident and that Pate was fifteen percent comparatively negligent were against the manifest weight of the evidence. Viewing the evidence in the light most favorable to the verdict, we conclude that the trial court did not abuse its discretion in denying the motion for new trial or additur. See Allstate Insurance Co. v. Manasse, 707 So.2d 1110 (Fla.1998).

Sufficient evidence was presented from which the jury could reasonably find that Pate did not suffer a permanent injury as a result of the motor vehicle accident of March 1, 1995. The medical testimony established that Pate is suffering from chondromalacia, possibly bilaterally, and also had a meniscal tear in his right knee. Chondromalacia is a disintegration of the covering of the bones making up the knee joint. Pate's chondromalacia is at Grade 3, one grade away from requiring a total knee replacement. In addition to the testimony that Pate appears to have chondromalacia in both the knee which was injured in the crash and his other knee, there was testimony that it is a *1097 progressive disease that had to have pre-existed the accident based on the severity of his current condition. There was also testimony that the natural progression of chondromalacia causes meniscal tears and that it was more likely that the meniscal tear Pate suffered was caused by the chondromalacia than the accident. The record contains evidence from which the jury reasonably could have concluded that Pate's current knee condition was a result of a pre-existing disease rather than the accident. See Katz v. Ghodsi, 682 So.2d 586 (Fla. 3d DCA 1996), review denied mem., 690 So.2d 1299 (Fla.1997). Therefore, the trial court did not abuse its discretion in denying Pate's motion for new trial or additur.

Pate also contends that the trial court abused its discretion in denying his motion for new trial or additur because it was against the manifest weight of the evidence for the jury to find him fifteen percent comparatively negligent, and that the trial court induced this error by incorrectly instructing the jury. The trial court instructed the jury, based upon section 316.122, Florida Statutes (1995), that a motorist must "yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard."

Pate failed to preserve for review the argument he now presents. See Steinhorst v. State,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Buchman v. McDonald
District Court of Appeal of Florida, 2025
Carpenter v. Chavez
200 So. 3d 212 (District Court of Appeal of Florida, 2016)
Cannino v. Progressive Express Insurance Co.
58 So. 3d 275 (District Court of Appeal of Florida, 2010)
Florida Farm Bureau Casualty Insurance v. Mathis
33 So. 3d 94 (District Court of Appeal of Florida, 2010)
NORMAN EX REL. ESTATE OF CLEFF v. Farrow
832 So. 2d 158 (District Court of Appeal of Florida, 2002)
Hill v. Burch
724 So. 2d 1237 (District Court of Appeal of Florida, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
715 So. 2d 1094, 1998 WL 476160, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pate-v-renfroe-fladistctapp-1998.