IN THE SUPREME COURT OF THE STATE OF FLORIDA. CASE NO: SC v. THIRD DCA CASE NO.: 3D Lower Tribunal No.:

Transcription

1 IN THE SUPREME COURT OF THE STATE OF FLORIDA RICHARD GRAY, Plaintiff/Petitioner, CASE NO: SC v. THIRD DCA CASE NO.: 3D Lower Tribunal No.: DANIEL CASES, Defendant/Respondent. PETITIONER S BRIEF ON JURISDICTION IN SUPPORT OF NOTICE TO INVOKE DISCRETIONARY JURISDICTION DARYL D. PARKS, ESQ. FBN: MAJA S. HOLMAN, ESQ. FBN: PARKS & CRUMP, LLC 240 North Magnolia Drive Tallahassee, FL Telephone: (850) Facsimile: (850) Attorneys for Plaintiff/Petitioner i

2 TABLE OF CONTENTS TABLE OF CONTENTS. TABLE OF CITATIONS. STATEMENT OF THE CASE AND FACTS...ii.iii..1 SUMMARY OF ARGUMENT..2 STANDARD OF REVIEW 4 ARGUMENT..4 I. THE THIRD DISTRICT COURT OF APPEALS RULING IN THE INSTANT CASE EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISION OF THE SECOND AND FIFTH DISTRICT COURT OF APPEAL IN JEDLICKA V. PROCTOR AND STEPHENS V. RENARD CONCLUSION...7 CERTIFICATE OF SERVICE... 9 CERTIFICATE OF COMPLIANCE..9 ii

3 TABLE OF CITATIONS CASES PAGE(S) Armstrong v. Harris, 773 So. 2d 7, 11 (Fla. 2000)..4 Cases v. Gray, 3D , 2004 WL at *2 (Fla. 3d DCA June 23, 2004)..3 Erie Ins. Co. v. Bushy, 394 So. 2d 228 (Fla. 5th DCA 1981).5 Holt v. King, 707 So. 2d 1141 (Fla. 4th DCA 1998).. 2, 3, 5, 6, 7 Jenkins v. State, 385 So (Fla. 1980)..1 Jedlicka v. Proctor, 724 So. 2d 668 (Fla. 2d DCA 1999)...1, 3, 4, 5, 6, 7 Reaves v. State of Florida, 485 So. 2d 829 (Fla. 1986)..4 Reynolds v. Life Ins. Co., 399 So. 2d 519 (Fla. 2d DCA 1981).5, 6 Stephens v. Renard, 487 So. 2d 1079 (Fla. 5th DCA 1986)...1, 2, 3, 4, 5, 6, 7 Ward v. Nationwide, 364 So. 2d 73 (Fla. 2d DCA 1978)... 5, 6 STATUTES AND OTHER AUTHORITIES FLA. R. of APP. PRO (a)2(A)...3 FLA. CONST. art. V, 3 (b) (3) (1980).....3, 4 iii

4 STATEMENT OF THE CASE AND FACTS Petitioner, Richard Gray (hereinafter Gray ), respectfully requests that this Court review the Third District Court of Appeals ruling that Respondent, Daniel A. Cases (hereinafter Cases ) was entitled to a Personal Injury Protection ( PIP ) set off as this holding directly and expressly conflicts with the holdings of the Fifth District Court of Appeal ( hereinafter DCA ) in Stephens v. Renard, 487 So. 2d 1079 (Fla. 5th DCA 1986), rev. den. 494 So. 2d 1152 and the Second DCA in Jedlicka v. Proctor, 724 So. 2d 668 (Fla. 2d DCA 1999). Due to the express and direct conflict that exists between the decision rendered by the Third DCA in the instant case and those of other district courts of appeal, this Court should accept jurisdiction to review such conflict. See Jenkins v. State, 385 So (Fla. 1980). On January 30, 1997, Gray was a passenger in a vehicle rented from Dollar Rental Car. The vehicle was suddenly and inexplicably rear-ended by Respondent, Cases. Immediately following the accident, Cases was cited for careless driving and driving under the influence. Due to the accident, Richard Gray sustained permanent bodily injuries. Consequently, in November of 1998, Gray filed a personal injury suit against Cases. Defendant admitted liability, thus the only issue before the jury was the 1

5 amount of damages. The jury awarded Gray thirteen thousand five hundred dollars ($13,500.00) to compensate him for his injuries. Subsequent to the jury award, Defendant filed a motion for PIP set off arguing that Gray was an uninsured vehicle owner and as such, for the purposes of liability, he was deemed self-insured. Gray did not have PIP benefits available to him at the time of the accident; thus, the lower court, the 11 th Judicial Circuit Court in Miami-Dade, denied the PIP set off motion. On appeal, the Third District Court of Appeal reversed finding that while their ruling was in contravention of the Second and Fifth DCA s rulings on the same issue, the holding in Holt v. King, 707 So. 2d 1141 (Fla. 4th DCA 1998), warranted the reversal of the lower courts ruling. Consequently, the Third DCA allowed a PIP set off of $10,000. Gray filed a motion for rehearing which is currently pending before the lower court. In addition, on August 9, 2004, Gray filed his notice to invoke the discretionary jurisdiction of this Court based upon an express and direct conflict between the Third District Court of Appeal s decision in the underlying case and the decisions of the Second and Fifth DCA s. SUMMARY OF THE ARGUMENT This court should grant jurisdiction in the instant case because an express and direct conflict exists between several district courts of appeal on the same question of law. The Third DCA s decision in the instant case 2

6 conflicts with the decisions of the Fifth DCA in Stephens v. Renard, 487 So. 2d 1079 (Fla. 5th DCA 1986) and the Second DCA in Jedlicka v. Proctor, 724 So. 2d 668 (Fla. 2d DCA 1999) and this conflict is referenced in the Third DCA s opinion. See Cases v. Gray, 3D , 2004 WL , at *2 (Fla. 3d DCA June 23, 2004) (certifying conflict between the Court s decision in the instant case and Stephens v. Renard and Jedlicka v. Proctor). Therefore, the Court should accept jurisdiction in this case. In Stephens v. Renard, 487 So. 2d 1079 (Fla. 5th DCA 1986), the Fifth DCA held that while a vehicle owner is required by statute to have personal injury protection coverage, it is error to reduce [Plaintiff s] damage award for her failure to do so. See Stephens, 487 So. 2d 1079, Similarly, in Jedlicka v. Proctor, 724 So. 2d 668 (Fla. 2d DCA 1986), the Second DCA found error where the trial court reduced Plaintiff s damage award because of his failure to obtain the statutorily required personal injury protection. See Jedlicka, 724 So. 2d at 668. Despite these earlier and clearly consistent rulings, the Third DCA in the instant case, in reliance upon the Fourth DCA s holding in Holt v. King, allowed such a set off. Thus, a conflict now exists between these cases. As such, pursuant to Article V of the Florida State Constitution and Florida Rules of Appellate Procedure 9.030(a)2(A), this Court should accept jurisdiction of this case 3

7 and adjudicate its merits based not only upon the express and direct conflict that exists but also because it has been deemed a matter of great public importance. STANDARD OF REVIEW The issue before the court is purely a question of law, and therefore, the standard of review is de novo. See generally Armstrong v. Harris, 773 So. 2d 7, 11 (Fla. 2000). ARGUMENT I. THE THIRD DISTRICT COURT OF APPEAL S RULING IN THE INSTANT CASE EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISION OF THE SECOND DISTRICT COURT OF APPEAL IN JEDLICKA V. PROCTOR AND THE FIFTH DISTRICT COURT OF APPEAL IN STEPHENS V. RENARD. The Florida Supreme Court has the authority to exercise jurisdiction in this case. Pursuant to FLA. CONST. art. V, 3(b)(3), the Supreme Court [m]ay review any decision of a district court of appeal that... expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law. In order to create uniformity, the Court must adjudicate issues that result in conflicting decisions in its district courts of appeals. To find conflict between the decisions of the district courts, the conflict between decisions must be 4

8 express and direct, i.e. it must appear within the four corners of the majority decision. See Reaves v. Florida, 485 So. 2d 829 (Fla. 1986). In the instant case, the Third DCA allowed a negligent tortfeasor a PIP set off against the recovery of an injured passenger based upon the reasoning in Holt v. King, 707 So. 2d 1141 (Fla. 4th DCA 1998). In Holt, the Fourth DCA allowed an insured tortfeasor a PIP set off against the recovery of an injured driver whose vehicle was uninsured at the time of the subject accident. See Holt, 707 So. 2d at Conversely, the Fifth DCA, in Stephens v. Renard, held that Plaintiff s damage award should not have been reduced by Plaintiff s failure to obtain the statutorily required personal injury protection based on the reasoning and holding of Erie Ins. Co. v. Bushy, 394 So. 2d 228 (Fla. 5th DCA 1981) which held that an insurer was not entitled to a set off against the owner of an uninsured motor vehicle on the grounds that the owner failed to carry no-fault insurance and was considered self-insured under the no-fault insurance statute. See Stephens v. Renard, 487 So. 2d 1079 (Fla. 5th DCA 1986). Furthermore, the instant case also expressly and directly conflicts with the opinion of the Second DCA in Jedlicka v. Proctor which held that the trial court erred in reducing Plaintiff s damage award because of his failure to obtain the statutorily required personal injury protection. See Jedlicka v. 5

9 Proctor, 724 So. 2d 668 (Fla. 2d DCA 1999). This decision was based on the sound reasoning of Ward v. Nationwide, 364 So. 2d 73 (Fla. 2d DCA 1978) and Reynolds v. Life Ins. Co. of Virginia, 399 So. 2d 519 (Fla. 2d DCA 1981). In Ward, the Second DCA held that a Defendant was not entitled to a PIP set off because there is nothing unfair in requiring defendants to make payments of benefits which they have contracted to pay under coverage for which they have been paid a premium. See Ward v. Nationwide, 364 So. 2d 73 (Fla. 2d DCA 1978). In Reynolds, the Second District held that public policy supported its reversal of the lower court s ruling denying recovery to appellant based upon his failure to comply with the no-fault law. Reynolds, 399 So. 2d at 520. In that case, a reduction in Plaintiff s award was ordered because of his failure to have PIP coverage. Id. at 522. This was reversed on appeal with the court arguing that PIP benefits have to be paid or payable in order for a reduction to be afforded. Id. at 522. In the absence of PIP benefits on the part of the Plaintiff, a Defendant is not entitled to a set off of PIP benefits due to the fact that such benefits are not paid or payable because they are clearly nonexistent. Thus, the holding of the Third DCA in the instant case, in reliance upon the holding of Holt v. King in the Fourth DCA that a tortfeasor is entitled to a PIP set off where a Plaintiff fails to have PIP coverage, expressly and directly conflicts with the decisions of the Fifth DCA in Stephens v. Renard 6

10 and the Second DCA in Jedlicka v. Proctor both holding that a tortfeasor is not entitled to a set off despite Plaintiff s failure to have the statutorily required PIP coverage. As such, Plaintiff hereby invokes the discretionary review of this Court to rule with finality on this issue as it is one of great public importance. Finally, the instant case should be reviewed because it is a matter of great public importance. Although the Third DCA in the instant case did not assert that the matter was of great public importance, the case which it relied upon Holt v. King did assert that the issue and the conflict it caused when it rendered its decision was a matter of great public importance. Holt v. King, 707 So. 2d 1141, 1144 (Fla. 4th DCA 1998). This Court, at its discretion, can review matters which are deemed to be of great public importance. A ruling holding that an injured passenger is not entitled to his full damage award due to failing to maintain coverage on his own vehicle certainly falls within that purview. As a result, this Court should accept jurisdiction not only because there is an express and direct conflict between the instant case and that of other District Courts of Appeal but also because it touches upon a matter of great public importance. 7

11 CONCLUSION The decision of the Third DCA expressly and directly conflicts with the decisions in Stephens v. Renard 487 So. 2d 1079 (Fla. 5th DCA 1986) and Jedlicka v. Proctor, 724 So. 2d 668 (Fla. 2d DCA 1999) in that both these decisions held that a tortfeasor is not entitled to a PIP set off simply because the plaintiff is an uninsured driver while the Third DCA ruled to the contrary. The Third District Court of Appeal in the instant case certified this very conflict in its opinion of July 23, Consequently, it is within the province of the Florida Supreme Court, pursuant to the Florida State Constitution and Rules of Appellate Procedure, to accept jurisdiction of the instant case. 8

12 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via regular U.S. mail and facsimile this day of August, 2004 to Sharon Degnan, Esq., Kubicki Draper, 25 West Flagler Street, Penthouse, Miami, Florida Respectfully Submitted, PARKS & CRUMP, L.L.C. 240 North Magnolia Drive Tallahassee, FL Attorneys for Plaintiff CERTIFICATE OF COMPLIANCE DARYL D. PARKS, ESQ. FBN: MAJA S. HOLMAN, ESQ. FBN: In compliance with the Florida Rules of Appellate Procedure 9.210(2) counsel for Richard A. Gray hereby certifies that the size and style of type used in this Brief are 14 point type Times New Roman. DARYL D. PARKS, ESQ. FBN: MAJA S. HOLMAN, ESQ. FBN: