IN THE SUPREME COURT OF FLORIDA CASE NUMBER SC04-586

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NUMBER SC STELLA ALEXANDER, etc., vs. Petitioner, PENSKE LOGISTICS, INC., et al., Respondents. DISCRETIONARY REVIEW FROM THE THIRD DISTRICT COURT OF APPEAL JURISDICTIONAL BRIEF OF RESPONDENTS Nicklaus & Associates, P.A Ponce de Leon Boulevard Suite 200 Coral Gables, Florida (305) James C. Blecke Counsel for Penske Deutsch & Blumberg, P.A. New World Tower, Suite North Biscayne Boulevard Miami, Florida (305)

2 TABLE OF CONTENTS INTRODUCTION 1 STATEMENT OF THE CASE AND FACTS 1 SUMMARY OF ARGUMENT 1 JURISDICTIONAL ARGUMENT 2 CONCLUSION 5 CERTIFICATE OF SERVICE 5 CERTIFICATE OF COMPLIANCE 6

3 TABLE OF AUTHORITIES Cases DeBold v. Ocean Reef Club, Inc., 368 So.2d 95 (Fla. 3d DCA 1979) 3 Department of Revenue v. Johnston, 442 So.2d 950 (Fla. 1983) 2 Florida Power & Light v. Bell, 113 So.2d 697 (Fla. 1959) 1 Gulley v. Pierce, 625 So.2d 45 (Fla. 1st DCA 1993), rev. den., 637 So.2d 236 (Fla. 1994) 3 Hernandez v. State Farm Fire and Casualty Company, 700 So.2d 451 (Fla. 4th DCA 1997) 2-4 Jenkins v. State, 385 So.2d 1356 (Fla. 1980) 2 Lynch v. Peoples Gas System, Inc., 267 So.2d 81 (Fla. 1972) 2 Mancini v. State, 312 So.2d 732 (Fla. 1975) 2 Penske Truck Leasing Co., L.P. v. Moore, 702 So.2d 1295 (Fla. 4th DCA 1997) 2-4 Quinn v. Millard, 358 So.2d 1378 (Fla. 3d DCA 1978) 3 - ii -

4 Segarra v. Mellerson, 675 So.2d 980 (Fla. 3d DCA 1996) 3 Spanagel v. Love, 585 So.2d 317 (Fla. 5th DCA 1991) 2-4 Spradley v. State, 293 So.2d 697 (Fla. 1974) 4 Wilson v. Southern Bell Telephone and Telegraph Co., 327 So.2d 220 (Fla. 1976) 2 - iii -

5 IN THE SUPREME COURT OF FLORIDA CASE NUMBER SC STELLA ALEXANDER, etc., vs. Petitioner, PENSKE LOGISTICS, INC., et al., Respondents. INTRODUCTION This jurisdictional brief is filed on behalf of Penske Logistics, Inc., and Penske Leasing, LLC (collectively Penske ). STATEMENT OF THE CASE AND FACTS Penske adopts the district court decision as a fair and accurate statement of the case and facts. SUMMARY OF ARGUMENT Simply stated, there is no conflicting case "on all fours." Cf. Florida Power & Light v. Bell, 113 So.2d 697, 698 (Fla. 1959).

6 JURISDICTIONAL ARGUMENT Traditionally, this Court's jurisdiction to review decisions upon alleged conflict is activated by (1) the announcement of a rule of law which conflicts with a rule previously announced by this Court or another district court, or (2) the application of a rule of law to produce a different result in a case which involved substantially the same facts as a prior case. Mancini v. State, 312 So.2d 732, 733 (Fla. 1975). With the 1980 amendment to Article V, the conflict has to be apparent within the four corners of the decision. The conflict must be express, direct, and upon the same question of law presented in the decision alleged to be in conflict. Jenkins v. State, 385 So.2d 1356 (Fla. 1980). In the absence of factual and procedural similarity, the constitutionally required direct conflict does not exist in this case. E.g., Wilson v. Southern Bell Telephone and Telegraph Co., 327 So.2d 220 (Fla. 1976); Lynch v. Peoples Gas System, Inc., 267 So.2d 81 (Fla. 1972); Department of Revenue v. Johnston, 442 So.2d 950 (Fla. 1983). There is no express or direct conflict with Penske Truck Leasing Co., L.P. v. Moore, 702 So.2d 1295 (Fla. 4th DCA 1997); Hernandez v. State Farm Fire and Casualty Company, 700 So.2d 451 (Fla. 4th DCA 1997); or Spanagel v. Love, - 2 -

7 585 So.2d 317 (Fla. 5th DCA 1991), because none involve facts or circumstances similar to this case. There are no statements of any conflicting rule of law. Penske v. Moore, Hernandez v. State Farm, and Spanagel v. Love are but three of a long line of cases holding that a police officer should not be allowed to testify about who was or was not charged with a traffic violation. The Third District cites these same three cases for this settled principle. (Slip op. at 3). There is an equally well-settled line of cases that permit expert accident reconstruction testimony from qualified investigating police officers. See, Segarra v. Mellerson, 675 So.2d 980, 982 (Fla. 3d DCA 1996) (qualified trooper allowed to offer limited opinion on narrow issue of whether driver had sufficient time and space to avoid accident); Gulley v. Pierce, 625 So.2d 45, 50 (Fla. 1st DCA 1993), rev. den., 637 So.2d 236 (Fla. 1994) (investigating officer qualified to testify as accident reconstructionist); DeBold v. Ocean Reef Club, Inc., 368 So.2d 95 (Fla. 3d DCA 1979) ( the trial court did not err, in the light of the officer s expert qualifications, in admitting the investigating state trooper s estimate of the plaintiff s speed at the time of the accident ); Quinn v. Millard, 358 So.2d 1378, (Fla. 3d DCA 1978) (investigating police officers qualified to give opinion testimony as to speed and point of impact)

8 Consistent with this precedent the Third District says, Based on his work at the scene of the accident, he offered his opinion that the deputy pulled out into the highway when the truck was so close that the truck driver did not have time to avoid the collision. This is proper expert testimony incorporating physical measurements, calculated relative speeds of the vehicles, time/distance analysis, and similar concepts. It is fault neutral. Alexander s own reconstruction expert agreed the accident was unavoidable, given the pre-impact speed of the truck. Trooper Tierney was the homicide investigator, not the accident investigator (Slip op. at 4). Trooper Glenn was the traffic accident investigator and the one to issue traffic citations. As homicide investigator, Trooper Tierney said nothing whatsoever about traffic citations (Slip op. at 3), testifying only about his analysis of the accident scene. (Slip op. at 3). There was no Penske v. Moore violation. There is no conflict with Penske v. Moore, Hernandez, or Spanagel. Alexander s contention that the decision expressly affects a class of constitutional or state officers is without merit. See, Spradley v. State, 293 So.2d 697, 702 (Fla. 1974) (no constitutional or state officer was a party; The decision affected only the rights of the parties directly involved and the body of our State law as it applies to each and every citizen alike )

9 CONCLUSION There being no conflict, this Court should decline jurisdiction. James C. Blecke Counsel for Penske Deutsch & Blumberg, P.A. New World Tower, Suite North Biscayne Boulevard Miami, Florida (305) By James C. Blecke Fla. Bar No CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing was served upon Marc R. Ginsberg, Esquire, Mandina & Ginsberg, P.A., New Barn Road, Miami Lakes, Florida 33014; and Edward R. Nicklaus, Esquire, Nicklaus & Associates, P.A., 4651 Ponce de Leon Boulevard, Coral Gables, Florida 33146, this 10th day of May, By James C. Blecke Fla. Bar No

10 CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the foregoing complies with font requirements. By James C. Blecke Fla. Bar No