20 Fla. L. Weekly Supp. 977a
Online Reference: FLWSUPP 2010THOMTorts — Automobile accident — Subrogation action by insurer against driver who negligently caused accident that resulted in total loss of insured’s vehicle — Evidence — Hearsay — Exceptions — Business records — Auto repair shop owner’s testimony as to what it would have cost to repair vehicle is hearsay where shop owner based testimony on estimating program, and testimony was not sufficient to lay predicate for admission of program as business record — Further, repair estimate would be insufficient to establish recoverable damages in absence of proof that repair cost did not exceed fair market value of vehicle — Where insurer’s appraisal of value of vehicle is based on report of valuation program using data from sales of comparable vehicles, but insurer’s witness had no knowledge of how sales information was recorded or how valuation program worked, insurer failed to lay predicate for admission of valuation report under business records exception to hearsay rule — Where insurer did not offer competent substantial evidence of fair market value of vehicle on date of accident, insurer’s recovery is limited to rental car expenses, medical benefits and litigation costs
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, as Subrogee of PAMELA SALDE THOMAS, Plaintiff, vs. WILLIE RAY MURRELL, an Individual, Defendant. Circuit Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2010-CA-013583-XXXX-MA, Division CV-H. November 29, 2012. Waddell A. Wallace, III, Judge.
FINAL JUDGMENT
This case came before the Court for non-jury trial on the complaint of plaintiff, State Farm Mutual Automobile Insurance Company, (“State Farm”), as Subrogee of Pamela Salde Thomas, against defendant, Willie Ray Murrell. Based upon the testimony of the witnesses and documentary exhibits received in evidence, the Court makes the following findings of fact:Findings of Fact
At all times relevant to this action, Pamela S. Thomas was the owner of a 2007 Toyota Tundra pick-up truck, (the “Subject Vehicle”). At all relevant times, the Subject Vehicle was covered by a policy of insurance issued by State Farm (“The Policy”). The Policy provided comprehensive, collision and medical payments coverage pursuant to the terms and conditions of the Policy.
On or about November 22, 2009, Defendant, Willie Ray Murrell, owned a motor vehicle and was driving his vehicle eastbound on Normandy Boulevard in Jacksonville, Florida as he approached the intersection of Normandy Boulevard and New World Avenue. At the same time, Carl Brian Thomas, the spouse of Pamela S. Thomas, was operating the Subject Vehicle and had proceeded north on New World Avenue to the intersection with Normandy Boulevard. Mr. Thomas stopped in response to a red light on the traffic signal at the intersection. Mr. Thomas was planning to take a left turn to proceed westbound on Normandy Boulevard. The traffic signal turned and displayed to Mr. Thomas’ lane of travel a green arrow allowing a left turn. In response to the green turn arrow, Mr. Thomas proceeded into the intersection. He did not see any vehicle in the intersection before entering the intersection with the Subject Vehicle. Proceeding eastbound on Normandy Boulevard, Murrell did not stop or take any evasive action before entering the intersection and operating his vehicle so that it collided into the Subject Vehicle operated by Carl Thomas. Murrell acted negligently by failing to yield the right of way to the Subject Vehicle being operated by Thomas and in doing so violated a traffic control signal that required him to stop his vehicle before entering the intersection. As a proximate result of Murrell’s negligence, Murrell’s motor vehicle collided with the Subject Vehicle, causing damage to the Subject Vehicle. Thomas was not negligent in the operation of the Subject Vehicle.
Pursuant to its rights under the Policy, State Farm decided it was not economically feasible to repair the Subject Vehicle and instead paid a sum of money to Pamela S. Thomas in discharge of State Farm’s obligations under the collision coverage of the Policy. State Farm paid $20,534.88 to Southeast Toyota to satisfy an existing security interest and paid an additional $12,214.01 directly to Pamela S. Thomas, for a total payment amounting to $32,748.89. State Farm subsequently sold the Subject Vehicle to a salvage dealer for a payment of $9,481.25. State Farm acknowledges this amount as a credit against its claim against defendant. State Farm further paid $391.77 to Enterprise Rental Company to compensate Pamela S. Thomas for loss of use of her vehicle and also paid $341.75 to Ms. Thomas under the policy’s medical payments coverage.
Plaintiff called Timothy Brown to testify in its case in chief. Mr. Brown is a part owner of a certified collision repair shop. He testified that the reasonable cost of repairing the property damage sustained to the Subject Vehicle in the collision on November 22, 2009, amounted to $31,420.00. However, Mr. Brown’s testimony revealed that he developed this estimate of the reasonable cost of repair by using a program called Audadex Estimating. Mr. Brown uses this program in his business, however, he did not develop the program nor did he have knowledge of the sources or accuracy of the information used by the program in estimating the individual costs of the numerous specific parts or services necessary to repair the property damage to the Subject Vehicle. Mr. Brown’s testimony as to the reasonable cost of repairs is properly considered heresay for the reason that the testimony was based on the results generated by the Audadex Estimating Program and Mr. Brown’s testimony was insufficient to provide the necessary foundation for the admission of the program as a business record pursuant to Section 90.803(6)(a), Florida Statutes (2012).
To prove the value of the Subject Vehicle as of the date of the collision, State Farm offered a document entitled, “Auto Source Evaluation,” dated December 2, 2009. State Farm presented the testimony of Kenneth L. Mollman in order to lay the foundation for the admission of this document as a business record, pursuant to Section 90.803(6)(a), Florida Statutes (2012). Mr. Mollman did not claim to be a State Farm records custodian, but rather was a State Farm insurance claim adjuster who had knowledge as to State Farm’s business practices in the handling of property damage claims such as those made by Pamela S. Thomas under the Policy. Mr. Mollman’s testimony that the fair market value of the Subject Vehicle was $31,024.00 was derived entirely from a software program used by State Farm. This software program, Auto Source Valuation, was developed by a third party, not State Farm. State Farm had purchased the right to use the software program and used it in the regular course of its business of adjusting property damage claims. The valuation report (Plaintiff’s Exhibit A for identification) refers to a series of sales of 2007 Toyota Tundra pick-up trucks, which are represented as vehicles comparable to the Subject Vehicle. Mr. Mollman, however, did not know from whom or in what fashion the information was transmitted into the Auto Source Valuation program, whether such information was transferred in the ordinary course of business and whether such information was transmitted by persons with knowledge of the information. Mr. Mollman further testified that he had no personal knowledge concerning State Farm’s records relating to the Subject Vehicle and that he had just received such records three days prior to the trial. Mr. Mollman had not ever handled the adjustment or settlement of the Thomas’ claims under the Policy and had no involvement in obtaining or transmitting the comparable sales and other information used in the Auto Source Valuation report to determine the fair market value of the Subject Vehicle. Mr. Mollman was able to testify as to the process employed within State Farm for inputting information into the Auto Source Valuation program with respect to the Subject Vehicle. What he had no knowledge of, however, was the source or accuracy of the information regarding the comparable sales of other motor vehicles used in the same valuation program.
The Court finds distinguishable the appellate court decisions cited by State Farm to support the admission of the Auto Source Valuation report as a State Farm business record. In Davis v. State of Florida, 707 So.2d 842 (Fla.2d DCA 1998) [23 Fla. L. Weekly D596c], the Court allowed repair bills to be admitted under Section 90.803(6)(a), to prove the amount of loss in a restitution action arising from an auto theft. However, an FBI agent testified that the repair bill in question were kept in the regular course of business and that he was the FBI’s records custodian. The Court concluded that the State’s introduction of the repair bills to the agent was “proper and provided sufficient, competent evidence to establish the amount of the loss.” In WAMCO, v. Integrated Electronic Environments, Inc., 903 So.2d 230 (Fla. 2d DCA 2005) [30 Fla. L. Weekly D957a], WAMCO sought to recover on loans it purchased from Bank of America. In its proof at trial, WAMCO offered records received from Bank of America regarding the balances due on the loans at the time the loans were acquired. To support the admission of the records, WAMCO offered an officer who testified that he was personally involved in servicing the subject loans, that he was aware of the receipt of the records from Bank of America and that he was familiar with and participated in the process that WAMCO used to verify the accuracy of the information received from Bank of America in connection with the loan purchases. The district court approved the trial court’s action in admitting the records obtained from Bank of America as business records of WAMCO under Section 90.803(6), Florida Statutes. In this action, Auto Source Valuation report is essentially an appraisal of the Subject Vehicle as of the date of the collision. The appraisal is based primarily on roughly contemporaneous sales of vehicles comparable to the Subject Vehicle. However, State Farm’s witness had no knowledge of the source of information regarding those allegedly comparable sales. He also had no knowledge of how the sales information was recorded or how the valuation program worked to use the comparable sales data to reach a valuation of the Subject Vehicle. On this record, the Court concludes that State Farm failed to lay the predicate necessary for admission of the Auto Source Valuation under the business records exception to the hearsay rule. The Court thus sustains defendant’s objection to the report and does not consider the report in reaching its findings of fact.Conclusions of Law
The Court makes the following conclusions of law:
It is well established that the appropriate measure of damages for total loss of personal property is the property’s value on the date of loss. Burtless v. Pallero, 570 So.2d 1140 (Fla. 4th DCA, 1990). State Farm did not offer competent substantial evidence as to the fair market value of the Subject Vehicle as of the date of the collision.
State Farm attempted to offer evidence of the reasonable cost of repairing the Subject Vehicle. However, for the reasons stated, the Court finds that such evidence amounted to hearsay testimony to which a timely objection was sustained. Moreover, such proof would be insufficient to establish recoverable damages in the absence of proof that the cost of repairs did not exceed the fair market value of the Subject Vehicle.
Based on the evidence presented, State Farm is entitled to recover $391.77 paid to Enterprise Rental Company for loss of use of the Subject Vehicle and $341.75 paid under the medical payments coverage of the Policy, for a total recovery of $733.52.
The Court taxes plaintiff’s costs against defendant in the amount of $411.00 as filing fee, $90.00 in subpoena service fee, $65.00 as court reporter fee, and $40.00 as process server fee, for a total of $606.00. The Court declines to tax plaintiff’s mediation fee against defendant.
Accordingly, it is ORDERED AND ADJUDGED:
1. Plaintiff, State Farm Mutual Automobile Insurance Company, as Subrogee of Pamela Salde Thomas, shall have and recover from defendant, Willie Ray Murrell, the sum of $733.52 on its cause of action stated in the complaint, together with taxable costs in the amount of $606.00, for a total sum of $1,339.52, that shall bear interest at the rate of 4.75% percent annually, as adjusted by Section 55.03, Florida Statutes, for which let execution issue.
2. Defendant shall complete under oath Florida Rule of Civil Procedure Form 1.977 (Fact Information Sheet), including all required attachments, and serve it on the judgment creditor’s attorney, within 45 days from the date of this final judgment, unless the final judgment is satisfied or post-judgment discovery is stayed.
3. Jurisdiction of this case is retained to enter further orders that are proper to compel the judgment debtor to complete Form 1.977, including all required attachments, and serve it on the judgment creditor’s attorney, or the judgment creditor if the judgment creditor is not represented by an attorney.
4. The Clerk of this Court shall not record the Fact Information Sheet the Defendant is ordered to complete.
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