6 Fla. L. Weekly Supp. 542a
Insurance — Automobile — Subrogation — Damages resulting when insured vehicle was struck by following vehicle after insured driver stopped when he saw defendant’s car backing onto road — Undisputed testimony that insured stopped when he saw defendant backing out of private driveway onto through street constituted prima facie evidence that defendant violated statute prohibiting driver from backing without interfering with other traffic — Violation of strict liability statute makes a finding of at least some degree of negligence compulsory — Trial court erred in entering judgment in favor of defendant on ground that third driver, by following too closely, caused the accident
ALLSTATE INSURANCE COMPANY, as subrogee of Carlos H. Puerta, Appellant, vs. RIGOBERTO DIAZ, Appellee. 11th Judicial Circuit in and for Miami-Dade County, Appellate Division. Case No. 98-361AP. Lower Court Case No. 97-13617 SP-05 Sec 4. Opinion filed June 4, 1999. On Appeal from the County Court, Miami-Dade County, Florida. Nancy J. Pollock, Judge. Counsel: Scott A. Beatty, Stephen C. Shenkman & Associates, P.A., for Appellant Rigoberto Diaz, Appellant, pro se.
(Before STANFORD BLAKE, LAWRENCE A. SCHWARTZ, and SCOTT M. BERNSTEIN, JJ.)
(Per Curiam.) In August, 1996, appellee Rigoberto Diaz (“DIAZ”) backed out of a gas station into a highway. A driver insured by appellant Allstate Insurance Co. (“ALLSTATE”), driving south on the highway, stopped when he saw DIAZ’s car backing onto road. However, a third driver behind ALLSTATE’s insured did not stop, and smashed into ALLSTATE’s insured on the driver’s side.1 Prior to the bench trial, ALLSTATE settled with the third driver, but proceeded with its claim against DIAZ individually.
At trial, ALLSTATE argued that DIAZ caused the accident by backing out of a private driveway onto a through street. The court determined that ALLSTATE’s insured was able to see DIAZ backing out with sufficient time to stop, and the third driver, by following too closely, was the cause of the accident.
ALLSTATE appealed the trial court’s judgment in favor of DIAZ on two grounds, one of which merits consideration. The Appellant contends that the court ignored substantial competent evidence in determining that DIAZ was not negligent in the automobile accident. Because DIAZ violated §316.125 and §316.1985, Florida Statutes, ALLSTATE argues that the trial court erred in failing to find him at least partially responsible for the accident.
Section 316.125, Florida Statutes (1998), states in pertinent part: “[T]he driver of a vehicle about to enter a highway from . . . a private road or driveway shall yield the right-of-way to all vehicles approaching on the highway to be entered which are so close thereto as to constitute an immediate hazard.” Section 316.1985, Florida Statutes (1998) provides: “[T]he driver of a vehicle shall not back the same unless such movement can be made with safety and without interfering with other traffic.” ALLSTATE contends that the court must consider these violations as prima facie evidence of DIAZ’s negligence.
The Appellant’s interpretation of §316.1985 is correct. The undisputed testimony reflects that ALLSTATE’s insured stopped when he saw DIAZ backing into the road, constituting prima facie evidence that DIAZ violated the statute by interfering with other traffic. A violation of this strict liability statute renders a finding of at least some degree of negligence compulsory. Whether or not the driver who collided with ALLSTATE’s insured was driving negligently, the trial court was compelled to find DIAZ negligent, if only to a degree of one per cent.
Accordingly, the trial court’s judgment is REVERSED and REMANDED for proceedings to determine the degree of negligence with which the Appellee, DIAZ, should be charged.
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1ALLSTATE’s insured did not hit DIAZ’s car either before or after the impact with the third driver.
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