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Defendant's Attorney: Rebecca Bowen Creed of Creed & Gowdy, P.A., Jacksonville; and
Frank F. Fernandez of The Fernandez Firm

Description:

Tallahassee, Florida - Personal Injury lawyer represented Appellant with asking us to remand for a new trial on damages.

The trial court erred by interpreting the judicially created
rear-end presumption in vehicle collision cases to defeat
Appellant’s claim of comparative fault. Because there was
admissible evidence that Appellant was not the sole cause of the
accident, the presumption should have “vanishe[d] and los[t] its
legal effect.” Birge v. Charron, 107 So. 3d 350, 359 (Fla. 2012).
The presumption “is not an alternate means of tort recovery in
derogation of Florida’s well-established system of recovery based
on comparative negligence.” Id. at 361. The trial court also erred
in finding that a comparative fault defense was unavailable to
Appellant because she could not specifically identify the nonparty
she sought to allocate fault to. Section 768.81(3)(a)1., Florida
Statutes (2019), states that a defendant need only “describe the
2
nonparty as specifically as practicable” when the nonparty’s
identity is not known. The cases relied on by the trial court in
reaching a different conclusion were decided before this language
was added to section 768.81. Appellee concedes, and we agree, that
the errors require a new trial on liability.
Appellant also asks us to remand for a new trial on damages,
claiming that the issues of liability and damages were
“inextricably intertwined.” R.J. Reynolds Tobacco Co. v. Prentice,
290 So. 3d 963, 967 (Fla. 1st DCA 2019). Appellee argues we are
bound by Nash v. Wells Fargo Guard Services, Inc., 678 So. 2d
1262, 1263 (Fla. 1996) which held “a reversal precipitated by
[comparative fault] errors does not affect the determination of
damages.” However, in Nash, the parties had put on their entire
case before the trial court denied their motion to include a
nonparty on the verdict form for the purposes of a comparative
fault determination. Here, the decision was made at the beginning
of the proceeding and affected its entirety.

Outcome: We agree with
Appellant that fairness demands reversal of the damages award
and therefore remand for a new trial on both issues.

Plaintiff's Experts:

Defendant's Experts:

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