9 Fla. L. Weekly Supp. 749b
Insurance — Uninsured motorist — Presumption of negligence attributed to decedent driver who lost control and collided with a vehicle in oncoming traffic on interstate highway when phantom unidentified vehicle, which decedent was tailgating at 70 mph in a moderate to hard rainstorm and which had previously stopped in the roadway more than once, began to slow and stop again is not overcome — If inclement weather alone did not place decedent on notice that traffic could abruptly slow or stop, fact that phantom vehicle had stopped on a number of occasions prior to accident placed decedent on notice that sudden stops could reasonably be expected — Insurer’s motion for summary judgment granted
NICHOLAS FORLIZZO as Personal Representative of the Estate of Brenda Schafstall Forlizzo; and JOSEPH FORLIZZO as parent of Katie Forlizzo, a minor, and Josie Forlizzo, a minor, Plaintiffs, vs. STATE FARM FIRE & CASUALTY COMPANY, Defendant. Circuit Court, 6th Judicial Circuit in and for Pinellas County, Civil Division. Case No. 00-6079-CI, Division 019. February 7, 2002. John Lenderman, Judge. Counsel: Joseph H. Saunders, Saunders, Walker & Coleman, P.A., Pinellas Park, for Plaintiffs. David J. Abbey, Abbey, Adams, Byelick, Kiernan, Mueller & Lancaster, L.L.P., St. Petersburg, for Defendant.
FINAL SUMMARY JUDGMENT FOR DEFENDANT,STATE FARM, AGAINST PLAINTIFFS, FORLIZZO
THIS CAUSE coming on to be heard upon STATE FARM’s Motion for Summary Judgment, the Court having heard argument of counsel for the parties and being fully advised in the premises, the Court makes the following findings of fact and conclusions of law:
1. The accident giving rise to this lawsuit occurred on October 27, 1997 on Interstate 75 in Bushnell, Sumter County, Florida. At the time of the accident, the decedent, Brenda Forlizzo was operating a 1993 Acura Legend northbound on Interstate 75. Brenda Forlizzo’s daughter, Josie, age 3, occupied the left rear passenger seat and her other daughter, Katie, age 9, was seated in the right rear seat.
2. The Forlizzo vehicle left the northbound lanes of Interstate 75, crossed the median, and collided with a vehicle traveling southbound operated by John Gibbs. Brenda Forlizzo died as a result of the accident and her minor children, Josie Forlizzo and Katie Forlizzo, sustained personal injury.
3. At the time of the accident, the 1993 Acura Legend operated by Brenda Forlizzo was insured by the Defendant, State Farm. State Farm provided uninsured motorist coverage to protect insured persons from the negligence of unidentified motorists.
4. The Plaintiff has filed a three count complaint against State Farm seeking damages resulting from the death of Brenda Forlizzo and the personal injury of Katie Forlizzo and Josie Forlizzo. The complaint contains the following allegations:
“6. At that time and place, Plaintiffs’ vehicle collided with a vehicle driven by John D. Gibbs, after the Plaintiffs’ vehicle had been forced from the roadway by an uninsured phantom vehicle.
7. The driver of the phantom vehicle owed a duty to use reasonable care in the operation of the phantom vehicle.
8. The driver of the phantom vehicle breached that duty of due care by failing to yield right of way and driving in a careless manner causing plaintiff’s vehicle to be forced from the roadway.”
5. State Farm served an Answer to the portions of the complaint set forth above denying any negligence of an unidentified “phantom” vehicle causing the October 27, 1997 motor vehicle accident.
6. In support of, or in opposition to, State Farm’s Motion for Summary Judgment, the parties have filed the following deposition transcripts and affidavits:
1. Affidavit of forensic toxicologist, Ronald R. Bell, DFTCB of October 12, 2001.
2. Affidavit of witness Ronald Gene Carter of December 3, 2001.
3. June 13, 2001 deposition transcript of Josie Forlizzo.
4. June 13, 2001 deposition transcript of Katie Forlizzo.
5. July 21, 2001 deposition transcript of witness John DeWitt Gibbs.
6. May 30, 2001 deposition transcript of Florida Highway Patrol Lt. Gregory Lamont.
7. September 13, 2001 deposition transcript of Florida Highway Patrol Trooper Michael S. Parks.
8. September 13, 2001 deposition transcript of Florida Highway Patrol Cpl. L. D. Wells.
7. The foregoing filings contain no information concerning the involvement of any “phantom” or unidentified vehicle which may have caused the Forlizzo vehicle to leave the northbound lanes of I-75, other than the deposition transcripts of Josie and Katie Forlizzo. The witnesses did not observe any vehicle which caused the Forlizzo vehicle to leave the roadway. Further, the investigating officers found no tangible evidence that a “phantom” vehicle caused the Forlizzo vehicle to leave the roadway nor did any witness inform them of the existence of such a “phantom vehicle.”
8. Toxicologist, Ronald R. Bell, DFTCB, reviewed the toxicology findings on the postmortem blood and urine specimens collected from Brenda Forlizzo at autopsy. These specimens, in Mr. Bell’s opinion, revealed the presence of barbiturates. In Mr. Bell’s opinion, the level of barbiturates would be similar to the effects of a blood alcohol concentration with a range of approximately 0.7 to 0.12 G/dl. Mr. Bell’s opinions, as expressed in his affidavit, have been on file since October 17, 2001, and are uncontradicted. Pursuant to § 316.193, Fla.Stat. a person is guilty of the offense of driving under the influence with a blood-alcohol level of 0.08 G/dl or greater.
9. Homicide investigator Cpl. L.D. Wells performed a speed analysis based on crush damage utilizing a recognized computer program, Visio. Based on such analysis Cpl. Wells concluded Ms. Forlizzo was operating her vehicle at approximately 74 mph, which was 9 mph over the maximum posted speed of 65 mph in a construction zone in violation of § 316.183(6), Fla. Stat. The only other record testimony concerning Brenda Forlizzo’s speed before she left the roadway is Katie Forlizzo’s estimate that her mother was going “maybe 70,” which was 5 mph over the 65 mph speed limit. (Katie Forlizzo deposition, page 13, line 15-16).
10. The depositions and affidavits on file establish hazardous road conditions on the date of the accident. Katie Forlizzo’s deposition contains the following description:
“Q. How hard was it raining when the accident happened?
A. Hard.
Q. Was it raining hard enough that some cars or other vehicles had pulled off to the side of the road?
A. Yes.
Q. Did your mom say anything about pulling over to the side of the road?
A. A few times.
Q. Had she actually pulled off the side of the road?
A. No.
Q. When you say that she said something a “few times,” what did she say?
A. She said, your dad told me to pull over to the side of the road, but I want to get there in time to get him.”
(K.Forlizzo Dep. p. 11, l.20-p.12, l.11)
11. During their depositions, Katie and Josie Forlizzo testified their mother was following another vehicle for a period of time prior to the accident. Katie Forlizzo described the accident as follows:
“Q. You said there was another car. Was the other car in front of your mom’s car?
A. Yes.
Q. This other vehicle, was it an automobile, was it a pick-up truck, was it a van, or some other sort of vehicle?
A. It was a car.
Q. By “car,” you mean like an automobile?
A. Yes.
Q. How many people were in this other car?
A. I don’t know.
Q. What do you remember seeing this other car do?
A. Putting on his brakes.
Q. When the other car put on its brakes, were you-all in the lane of traffic that was closest to the outside or closest to the inside?
A. Closest to the inside.
Q. Where was that other car?
A. Closest to the inside.
Q. So you-all would have been behind the car in that same lane of traffic?
A. Yes.”
(K.Forlizzo Dep. p.8, l.6-p.9, l.3)
“Q. Did your car hit the other car?
A. No.
Q. Do you know why the other car put its brakes on?
A. No.
Q. Could you see in front of the other car whether there was anything in front of it?
A. I don’t remember.
Q. When the other car put its brakes on, how far was your car from that other car? Was it like one car length or two car lengths or three?
A. Not even.
Q. What do you mean by “not even”?
A. Not even one car.
Q. Do you know why your mom would have been driving so close to that other car?
A. She wasn’t. He kept putting on his brakes and she didn’t know it, and she would have to put them on right when she was close to him.”
(K.Forlizzo Dep. p.13, l.25-p.14, l.18)
“Q. You say that he put on his brakes. I presume that you thought that or believed that because his brake lights came on.
A. No. Because his car kept stopping.
Q. Kept stopping?
A. And then going and then stopping and then going and then stopping.
Q. When you say he was stopping, did his car ever come to a complete stop on the interstate?
A. Yes.
Q. A complete stop?
A. Yes.
Q. How many times did his car come to a complete stop?
A. I don’t know.
Q. Would it have been more than once?
A. Yes.
Q. When he came to a complete stop, it was in this inside lane?
A. Yes.
Q. When he came to a complete stop, your mom came to a complete stop behind him?
A. Yes.”
(K.Forlizzo Dep. p.15, l.9-p.16, l.6)
“Q. Going back to an earlier question, as I understand it, you don’t know whether there was other traffic in front of this car?
A. I don’t know.
Q. Is there any reason why your mom couldn’t have been following this car further back than she was?
A. There were cars behind us.”
(K.Forlizzo Dep. p.18, l.9-p.18, l.15)
“Q. Okay. Correct me if I am wrong, but you believe the other car had something to do with the accident because they put their brakes on?
A. Yes.
Q. But you don’t know why they put their brakes on?
A. No.”
(K.Forlizzo Dep. p.25, l.6-p.25, l.12)
12. Josie Forlizzo, who was only three at the time of the accident, provided the following testimony:
“Q. Tell me what you remember.
A. I was in the backseat and Katie was with me on the other side. I saw my mom when I was in the back of the car. There was a man and he kept putting on his brakes. She went around him and slid, and then my sister was writing down the stuff. She, for some reason, took her hand off the wheel, and then I don’t remember anything else.
Q. Do you know why the other car was putting on his brakes?
A. No.
Q. Was it raining outside?
A. Yes.
Q. Was it raining hard?
A. Sort of.
(J.Forlizzo Dep. p.3, l.17-p.4, l.7)
13. The facts before the Court in a light most favorable to the Plaintiff are succinctly stated as follows. Brenda Forlizzo was driving northbound on I-75 in the inside median lane. She was driving in a moderate to hard rainstorm following a “phantom vehicle”. On several immediately prior occasions because of the rain or otherwise, the phantom vehicle stopped on the interstate highway causing Brenda Forlizzo to also stop. Shortly thereafter, Brenda Forlizzo while tailgating the phantom vehicle at approximately 70 miles per hour noticed that the phantom vehicle was again about to slow down or stop on the interstate highway. Without colliding with the phantom vehicle, Brenda Forlizzo lost control of her vehicle and ultimately had a collision with an oncoming vehicle on the other side of the interstate. Viewing this evidence in a light most favorable to the plaintiff, what then was the negligence of the phantom vehicle driver? There is no evidence or reasonable influence to suggest that the conduct of the phantom driver amounted to abrupt and arbitrary stops in bumper-to-bumper rain-impaired traffic. There is no evidence to suggest this was a “gotcha” stop. Because of the circumstances of the then irregular flow of traffic, it was reasonably expected that traffic would continue to either slow or halt on this highway.
14. The case law cited hereinafter and relied upon by this Court relates to rear-end collisions wherein the lead vehicle was rear-ended by a following vehicle. Although factually not directly on point, the legal analysis of this accident’s factual scenario is analogous to utilize the cited cases as precedential authority for this Court’s decision.
15. The Florida Supreme Court has recently addressed the circumstances under which a sudden stop or abrupt slowing by a lead vehicle may give rise to a jury issue regarding the possible liability of the lead driver in Eppler v. Tarmac America, Inc., 742 So. 2d 592 (Fla.2000); and Clampitt v. D.J. Spencer’s Sales, 786 So. 2d 570 (Fla.2001).
16. In Eppler, the Plaintiff was stopped in a line of traffic at a stop light. The Defendant’s cement mixer truck was immediately behind the Plaintiff s vehicle. Pursuant to her testimony at trial, the Plaintiff was struck by the truck after the signal turned green but before she started moving. According to the Defendant truck driver’s testimony, after the light turned green the Plaintiff was accelerating forward in a routine fashion when suddenly, without warning, and for no reason, the Plaintiff slammed on her brakes. The trial court denied partial directed verdict against the Defendant regarding the truck driver’s negligence. The First District affirmed. The Florida Supreme Court determined that the “arbitrary stop” which was “for no reason” was sufficient evidence of misconduct on the part of the Plaintiff for the issue of the Defendant’s negligence to be submitted to the jury. Eppler, at p.595.
17. In Clampitt, the Florida Supreme Court again reviewed a case that concerned a sudden and abrupt stop by a lead vehicle. Three vehicles were following one another. The lead vehicle was operated by Huguley, the second vehicle was operated by Clampitt and the third vehicle was operated by Hetz. Huguley slowed to make a turn off the roadway. Clampitt ran into the rear of Huguley. Hetz then ran into the rear of Clampitt. Clampitt sued Hetz for personal injuries. The trial court entered summary judgment determining there was no comparative negligence on the part of Clampitt. The First District Court of Appeal reversed the summary judgment ruling that a jury could properly infer that Clampitt negligently failed to decelerate gradually as Huguley’s vehicle pulled off the roadway and hence, determined Clampitt’s negligence was properly an issue for a jury. The Florida Supreme Court reversed the District Court and reinstated summary judgment stating: “It is well settled that a sudden stop, without more, is insufficient to overcome the presumption of negligence…” on the part of the following vehicle. Clampitt, at p. 575. The Court distinguished the facts in Clampitt from the facts in Eppler stating: “The present case differs from Eppler wherein the forward driver allegedly made an abrupt and arbitrary stop in bumper to bumper accelerating traffic, i.e., a “gotcha” stop.” Clampitt, at p. 574.
18. The case at bar is similar to the accident described in the Clampitt opinion and dissimilar from the accident described in the Eppler opinion. Josie and Katie Forlizzo testified they did not know the reason the lead vehicle applied his brakes. Unlike the testimony of the Forlizzochildren in this case, the following truck driver in Eppler testified that he could observe the roadway in front of the lead vehicle and there was no reason for the lead vehicle to slow or come to a stop.
19. In the present case, the Forlizzo children have testified the lead vehicle came to a stop more than once prior to the final time the lead vehicle applied it’s brakes. In Clampitt at p.574, the Supreme Court cited with approval the following language from Pierce v. Progressive American Insurance Co., 582 So.2d 712, 714 (Fla. 5th DCA 1991):
“It is not merely an “abrupt stop” by a preceding vehicle (if it is in its proper place on the highway) that rebuts or dissipates the presumption that the negligence of the rear driver was the sole proximate cause of a rear-end collision. It is a sudden stop by the preceding driver at a time and place where it could not reasonably be expected by the following driver that creates the factual issue.” (Emphasis added by trial court)
The Supreme Court’s opinions in Eppler and Clampitt also recognize that other Florida District Courts have determined that the presumption of negligence by the following vehicle cannot be rebutted if the lead vehicle abruptly slowed or stopped at a place and time where it was reasonably expected. Tozier v. Jarvis, 469 So.2d 884, 888 (Fla. 4th DCA 1985), Kao v. Lauredo, 617 So.2d 775, 777 (Fla. 3d DCA 1993); and Tacher v. Asmus, 743 So.2d 157 (Fla. 3d DCA 1999).
If the inclement weather alone did not place the decedent on notice that traffic could abruptly slow or stop, the fact that the “phantom” vehicle had stopped on a number of occasions prior to the tragic accident, certainly placed Mrs. Forlizzo on notice that other sudden stops could reasonably be expected.
20. Katie Forlizzo has testified her mother was following the unidentified vehicle whose negligence is claimed to have caused the accident by “not even one car length” at approximately 70 miles per hour. Even if the road conditions had been perfect and traffic had not stopped on prior occasions, such driving violated § 316.089(1), Fla. Stat. which states:
The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon, and the condition of, the highway.
The Supreme Court in Clampitt at p.575-576 holds “Each driver is charged under the law with remaining alert and following the vehicle in front of him or her at a safe distance” and cites the following language from Lynch v. Tennyson, 443 So.2d 1017, 1020-21 (Fla. 5th DCA 1983) with approval:
In effect the law requires all drivers to push ahead of themselves an imaginary clear stopping distance or assured stopping space or adequate zone within which the driven vehicle can come to a stop. Failure to maintain such a zone is normally the sole proximate cause of injuries and damages resulting from the collision of a vehicle with an object ahead. This is why when a vehicle collides with an object ahead of it, including the rear of a leading vehicle, there is a presumption of negligence on the part of the overtaking or following vehicle.
Katie Forlizzo has attempted to explain the distance her mother was following traffic as “there were other cars behind us.” However, in Clampitt at p.576 the Florida Supreme Court observes: “Each driver must be prepared to stop suddenly… (and) It is logical to charge the rear driver with this responsibility because he or she is the person who is in control of the following distance.
21. “The pleadings, depositions, and affidavits on file show there is no genuine issue as to any material fact and that the Defendant, State Farm, is entitled to judgment as a matter of law.
22. All material facts construed in a light most favorable to the Plaintiffs establish that the negligence of the decedent, Brenda Schafstall Forlizzo, was sole proximate cause of the accident giving rise to this lawsuit.
WHEREFORE, it is:
ORDERED AND ADJUDGED that STATE FARM’s Motion for Summary Judgment is hereby granted; and it is further
ORDERED AND ADJUDGED that NICHOLAS FORLIZZO as Personal Representative of the Estate of Brenda Schafstall Forlizzo; and JOSEPH FORLIZZO as parent of Katie Forlizzo, a minor, and Josie Forlizzo, a minor, take nothing by this action and that the Defendant, STATE FARM FIRE AND CASUALTY COMPANY, shall go hence without day; and it is further
ORDERED AND ADJUDGED that this Court shall retain jurisdiction of this matter for the sole purpose of determining whether any party is entitled to taxation of costs and/or attorney’s fees, and if so, in what amount.
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