$______ VERDICT - MOTOR VEHICLE NEGLIGENCE - INTERSECTION COLLISION - DISC HERNIATIONS AT L5-S1, C5-6 AND C3-4; RADICULOPATHY - TRAUMATIC BRAIN INJURY - DIMINISHED COGNITIVE ABILITY - INJECTIONS, ORTHOPEDIC TREATMENT, CHIROPRACTIC TREATMENT AND PHYSICAL THERAPY.

• Pages: 5-7

Farm Mut. Auto Ins. Co. v. Smith, 565 So.2d 751, 755 n. 8 (Fla. 5th

DCA 1990). This is required to be done through expert testimony.

See Russell v. Beddow, 82 So.3d 996, 998 (Fla. 1st DCA 2011); see

also Henry v. Hoelke, 82 So.3d 962 (Fla. 4th DCA 2011) (discussing

need for expert testimony in side impact case as the “common un-

derstanding of the jury” cannot be substituted for proof where

there is “no evidence of the causal connection between the injuries

suffered and the nonuse of the seatbelt under the circumstances of

the case”) (internal cites omitted). The plaintiff held that the fail-

ure of the defendant to secure expert testimony in support of its de-

fense rendered the defense ripe for summary judgment in

plaintiff’s favor as there was no evidence, competent or otherwise,

supporting the defense.

The defendant opposed the plaintiff’s motion arguing that the

court should deny the plaintiff’s Motion for Summary Judgment be-

cause there was a genuine dispute regarding the seat belt defense.

The defendant maintained that it was not merely alleging a factual

dispute or showing that there was some metaphysical doubt as to

the seat belt defense. The defendant asserted that the jury could

reasonably find for the defense because there was admissible re-

cord evidence supporting all elements of the seat belt defense.

First, there was sufficient evidence for a jury to reasonably find that

the plaintiff was not wearing a seatbelt at the time of the subject

accident. The City of Miami Fire Department records stated that the

plaintiff was found lying across the rear seat of the vehicle and was

unrestrained.

Further, records from the hospital also indicated that the plaintiff

was unrestrained at the time of the subject accident. Second, there

was sufficient evidence for a jury to reasonably find that the plain-

tiff’s failure to use an available seat belt was unreasonable, citing

American Auto. Ass’n, Inc. v. Tehrani, 508 So. 2d 365, 368 (Fla. 1st

DCA 1987) (holding that the evidence was sufficient to create a jury

question when the evidence showed that the subject vehicle had

available seat belts, the rear seat passenger was not wearing the

seatbelt at the time of the accident, and the injuries would have

been prevented or substantially reduced if they had been wearing

seatbelts). Further, the defendant maintained that it never con-

ceded that the plaintiff was reasonable and not comparatively neg-

ligent as the plaintiff alleged. In fact, the defendant’s Answer

affirmatively alleged the seat belt defense and the Joint Case Man-

agement Report stated that “whether the Plaintiff failed to wear a

seat belt and whether the failure to wear a seat belt caused or con-

tributed to Plaintiff’s injuries’’ was in dispute. The seat belt de-

fense was a defense of comparative negligence. Accordingly, a

defendant could not raise a seat belt defense and concede that the

plaintiff did not contribute to the alleged negligence. By stating

that the seat belt defense needed to be determined, the defendant

stated that contributory negligence was in dispute.

Third, the plaintiff’s failure to use a seat belt was the proximate

cause of the traumatic head and cervical injuries that were sus-

tained by the plaintiff. The defendant’s biomechanical expert wit-

ness conducted a biomechanical analysis of the subject incident

using generally accepted scientific and engineering methodologies.

Based on a reasonable degree of biomechanical and scientific cer-

tainty, the expert concluded the plaintiff’s failure to properly wear

the available three-point restraint system resulted in her unabated

movement and associated head contact within the interior of the

vehicle on the driver’s side and was the proximate cause of her in-

juries. Had the plaintiff properly worn the available three-point re-

straint system, there would be no mechanism for significant interior

contact that would induce a biomechanical loading mechanism for

a traumatic brain injury/concussion or cervical compression inju-

ries. Accordingly, the defendant concluded, there was expert testi-

mony supporting that the plaintiff’s failure to wear an available

seat belt caused or significantly contributed to her traumatic brain

injury/concussion and cervical compression injuries.

The court granted the plaintiff’s motion for partial summary judg-

ment, stating that there was no genuine issue of material facts as

to the defendant’s seat-belt affirmative defense and summary

judgment was proper as a matter of law. There was no record evi-

dence that in this side impact collision the plaintiff’s alleged failure

to use the seatbelt as a rear passenger in an Uber caused or con-

tributed substantially to her alleged damages. The court did not

consider the evidence presented by the defendant through its

biomechanical engineer, as the court had previously struck his

opinions at trial via separate order based on a separate motion,

although both motions were heard and orally ruled on at the same

hearing. But even if the defendant’s expert’s opinions were not ex-

cluded, because the defendant did not timely file them as record

evidence under Florida Rule of Civil Procedure 1.510, the court

stated it would still not consider them as record evidence. The de-

fendant submitted evidence of the expert’s written opinions 15 days

before the hearing, not 20 or more, which is required by Rule

1.510. Additionally, the court considered the case law offered by

the plaintiff on this untimeliness issue including: Indep. Fire Ins.

Co. v. Rogers, 580 So.2d 229 (Fla. 3d DCA 1991); Fla. Dept. of Fin.

Srvsc. v. Assoc. Indus. Ins. Co., Inc., 868 So.2d 600, 602 (Fla. 1st

DCA 2004); Deshazior v. School Bd. of Miami-Dade Cty, 217 So.3d

151 (Fla. 3d DCA 2017). For the reasons stated, partial summary

judgment was granted in favor of the plaintiff on the defendant’s

seat-belt affirmative defense.

Pending post-trial motions include the defendant’s motion to limit

the judgment to the available amount of uninsured motorist cover-

age, which is $1,000,000, and the plaintiff’s motion to assess dam-

ages for bad faith dealings by the defendant.

$1,820,443 VERDICT – MOTOR VEHICLE NEGLIGENCE – INTERSECTION COLLISION –

DISC HERNIATIONS AT L5-S1, C5-6 AND C3-4; RADICULOPATHY – TRAUMATIC BRAIN

INJURY – DIMINISHED COGNITIVE ABILITY – INJECTIONS, ORTHOPEDIC TREATMENT,

CHIROPRACTIC TREATMENT AND PHYSICAL THERAPY.

Palm Beach County, FL

In this motor vehicle negligence case, the plaintiff,

a 42-year-old home healthcare worker, asserted

that the defendant driver, operating a vehicle

owned by his employer and in the course of his

employment, struck the plaintiff’s vehicle in an

intersection with such force that it caused

significant, permanent injury. The defendants

admitted liability but contested the plaintiff’s

damages.

SUMMARIES WITH TRIAL ANALYSIS 5

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