12 Fla. L. Weekly Supp. 126a
Insurance — Personal injury protection — Evidence — Depositions — Where insurer contacted police liaison and officer on numerous occasions and obtained subpoena in unsuccessful attempt to procure officer’s attendance at trial, trial court erred in granting new trial after reversing its initial order permitting insurer to read officer’s deposition testimony to jury
PROGRESSIVE EXPRESS INSURANCE COMPANY, Appellant, vs. CARLO LEONARDO, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 03-4450 (03). October 28, 2004. Patti Englander Henning, Judge. Counsel: Douglas H. Stein, Miami, for Appellant. Steven Lander, Ft. Lauderdale, for Appellee.
OPINION
THIS CAUSE having come before the Court upon the Appellant, Progressive Express Insurance Company’s, appeal from the county court’s granting of a Judgment Notwithstanding the Verdict (“JNOV”) for the Appellee, Carlo Leonardo.
Appellant, during discovery, and in the presence of the Appellee, took the deposition of police officer Jean Harry Pierre of the Broward County Sheriff’s Office. Officer Pierre was the officer at the scene of the accident. When the Officer arrived to the scene the only car there belonged to Appellee. Officer Pierre’s deposition testimony directly contradicted statements made by the Appellee at trial. At trial, Officer Pierre’s testimony was read into the record because he did not respond to the Appellant’s subpoena and numerous other attempts requiring him to be present at trial.
The issue before this Court is whether the trial court erred in granting a new trial at the request of the Appellee, due to the trial court’s initial order permitting the Appellant to read deposition testimony of Officer Pierre to the jury, and then reversing that decision after the jury returned a verdict for the Appellant.
Florida Rule of Civil Procedure 1.330(3)(D) permits the deposition of a witness to be read into the record when the party offering the deposition has been unable to procure attendance of the witness by subpoena. The Appellant had a subpoena issued for Officer Pierre three days before trial after weeks earlier receiving assurance that the Officer would be available to testify by the liaison at the Broward County Sheriff’s Office. Appellant asserts that numerous attempts were made to contact the Officer with no success.
The Court agrees with the Appellant that the trial court improperly relied on dicta from McClain v. State, 411 So. 2d 316 (Fla. 3rd DCA 1982). In McClain the State did nothing to procure a witness’s attendance at trial and on appeal the Third District Court of Appeal held that because of this inaction the witness was deemed to be unavailable. The facts before this Court show that the Defense contacted the police liaison and the witness, Officer Pierre, on numerous occasions, as well as obtained a subpoena from the Court. The facts before the Court are in contrast to McClain, where nothing at all was done to procure the witness’s attendance.
Based on the foregoing, this Court finds that the trial court erred in granting a new trial.
Accordingly the order for a new trial in favor of the Appellee, Carlo Leonardo, is REVERSED and REMANDED to the trial court to reenter the jury verdict in favor of the Appellant.
* * *
