11 Fla. L. Weekly Supp. 7b
Torts — Negligence — Automobile accident — Rear-end collision — In absence of transcript, trial court’s finding that insured who made sudden stop was comparatively negligent and 70% at fault for rear-end collision must be affirmed — Error to fail to award costs and prejudgment interest to prevailing insurer, which was acting as subrogee of insured — Trial court has no discretion to deny costs to party recovering a judgment
STATE FARM MUTUAL AUTO INSURANCE COMPANY a/s/o Maybell Morgan, Appellant, vs. SANDRA TUMBLING, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 02-141 AP. L.C. Case No. 01-9468 SP 25 (1). October 21, 2003. An appeal from the County Court of Miami-Dade County. Counsel: David T. Bobbitt, for Appellant. Alan P. Byrd, for Appellee.
(Before Donner, A., Kreeger, J., and Leyte-Vidal, H., JJ.)
(Leyte-Vidal, H., J.) The Plaintiff, State Farm Mutual Auto Insurance Company, as subrogee of Maybell Morgan appeals the findings of the trial court that Maybell Morgan, the subrogee was comparatively negligent and that she was 70 percent at fault for a rear-end automobile accident where the subrogee made a “sudden stop”.
In appellate proceedings the decision of the trial court has the presumption of correctness. It is the duty of the party seeking review of the trial court to establish error and to “provide the appellate court with a record sufficient to review the matter presented”, Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, (Fla. 1979). Absent evidence showing that an error has been made in reaching a decision, the findings of fact made by the trier of fact, in this case, the trial judge must be affirmed. The Appellant, State Farm, failed to provide a transcript for this court’s review thereby failing to furnish an adequate record demonstrating reversible error. On this basis alone, the trial court’s finding that Ms. Morgan was comparatively negligent should be affirmed. Additionally, the task of apportioning negligence is reserved solely for the finder of fact. Therefore, the trial court’s finding that the Appellee, Ms. Tumbling was only 30 percent liable should not be disturbed.
The remaining issue on appeal is whether the trial court erred in finding the Appellee was the prevailing party and denying the Appellant court costs and prejudgment interest. Pursuant to Section 57.041(1) of the Florida Statutes, “every party who recovers a judgment in a legal proceeding is entitled as a matter of right, to recover lawful court costs and the trial judge has no discretion to deny costs to a party recovering judgment”, State Farm Mutual Auto Insurance Company v. Manuel Gonzalez, 5 Fla. L. Weekly Supp. 729a (Fla. Dade Cty. Ct.,1998); see Weitzer Oak Park Estate, Ltd. v. Petto, 573 So.2d 990 (Fla. 3rd DCA 1991). A prevailing party has been defined as a party that has “succeeded on any significant issue in litigation which achieves some of the benefit a party sought in bringing suit”. Smith v. Adler, 596 So.2d 696, 697 (Fla. 4th DCA 1992). Likewise, the Appellant, State Farm is entitled to prejudgment interest once a judgment has been rendered, Argonaut Insurance Company v. May Plumbing Company, 474 So.2d 212 (Fla. 1985). The lower court erred in finding that the Appellee was the prevailing party and denying Appellant, State Farm its court costs and prejudgment interest. Therefore, the ruling of the trial court denying court costs and prejudgment interest to the Appellant is hereby reversed and the case is remanded to the trial court to enter an order granting the Appellant all taxable court costs and prejudgment interest.
Affirmed in part, reversed in part, and remanded. (Donner, A., and Kreeger, J., JJ., Concur.)
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