8 Fla. L. Weekly Supp. 711a
Insurance — Uninsured motorist — Presumption of negligence attributed to underinsured driver whose vehicle rear-ended plaintiff’s vehicle was not overcome — Stop made by plaintiff was at a time, place, and location where it could have been reasonably expected, and following driver, by his own admission, could have avoided accident had he traveled safe distance behind plaintiff — Plaintiff’s motion for summary judgment granted
MONIQUE RUBIN, Plaintiff, vs. ALLSTATE INSURANCE COMPANY, a foreign corporation, Defendant. Circuit Court, 11th Judicial Circuit in and for Dade County, General Jurisdiction Division. Case No. 98-00256 CA 22. September 5, 2001. Gerald Hubbart, Judge. Counsel: Cris E. Boyar, Singer, Farbman & Associates, P.A., Hollywood, for Plaintiff. Peter Walsh, for Defendant.
ORDER ON PLAINTIFF’S MOTION FORPARTIAL FINAL SUMMARY JUDGMENT
THIS CAUSE having come on before the Court upon the Plaintiff’s Motion for Partial Final Summary Judgment filed under Certificate dated February 5, 2001, and the Court having heard argument of counsel and being otherwise fully advised in the premises, this Honorable Court finds as follows:
ORDERED and ADJUDGED that:
1. The Plaintiff filed suit against the Defendant for uninsured motorist benefits after she was injured in an automobile accident when she was rear ended by an underinsured driver, Patzy Zappi.
2. The Defendant insurance company pled as an affirmative defense the Plaintiff caused or contributed to the accident.
3. The Plaintiff filed a motion for partial summary judgment on this affirmative defense.
4. The Plaintiff presented evidence the accident took place on Friday, November 29, 1996 in Miami on the North bound side of Biscayne Boulevard between 163rd Street and 176th Street. There was construction on both sides of Biscayne Boulevard in the area where the accident took place. It was dark at the time of the accident and the traffic was heavy. Right before the accident, Mr. Zappi was traveling at approximately 30 to 35 miles per hour and approximately one car length behind the Plaintiff. Mr. Zappi stated he was unable to stop even though his vehicle was in good condition.
5. The Defendant argues against the Plaintiff’s Motion alleging the sudden stop made by the Plaintiff was unexpected and arbitrary thereby overcoming the presumption of negligence.
6. The Court finds the stop made by the Plaintiff was at a time, place, and location where it could have been reasonably expected. Mr. Zappi, by his own admission, could have avoided the accident had he traveled a safe distance behind the Plaintiff. The Defendant has not overcome the presumption of negligence. See Clampitt v. D.J. Spencer Sales, 786 So.2d 570 (Fla. 2001).
7. Accordingly, the Plaintiff’s Motion is granted.
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