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Amato v. Intindola9/10/2003
In this personal injury action, the trial court dismissed appellant's complaint after concluding that he perpetrated a fraud on the court. The trial court's dismissal was based on a videotape taken by an investigator which depicted appellant performing several activities that he testified at his deposition that he was unable to perform. We adopt the analysis of Jacob v. Henderson, 840 So. 2d 1167 (Fla. 2d DCA 2003), and reverse, holding that dismissal with prejudice as a sanction was an abuse of discretion.
Appellant, Sal Amato ("Amato"), age 76, was involved in an automobile accident with the city manager of Hallandale. Amato sued the City and its manager for negligence and alleged permanent bodily injury . Because of his claim, the City employed a private investigator who surveilled appellant and recorded his activity on two days approximately six months apart. On the tape of the first day, appellant is seen working on his truck, crawling partially underneath the vehicle, and changing a tire . On the tape of the second day, shot six months later, Amato is seen working around his home and climbing a ladder to the roof. While standing on the roof, he lifts some sort of electric motor to the roof with a rope and proceeds to clean out his gutters.
At his deposition, taken two days after the second videotape was made, Amato testified that, as a result of the accident, he suffered a recurrence of back problems from an earlier spinal surgery as well as problems with his knee which prevented him from twisting and required him to walk carefully. He claimed he could not go up or down stairs without pain, nor could he lift excessive weight. He also testified that while he had made repairs to his car in the past, since the accident he could only make simple repairs and would be unable to get under the car or change a tire . Amato also claimed that he could not perform home maintenance activities.
Based upon the apparent contradictions between Amato's deposition testimony and his activities depicted on the videotapes, the City of Hallandale filed a motion to dismiss, alleging that appellant "deceitfully utilize the legal system by misrepresenting the scope and extent of his injuries." It argued that dismissal with prejudice was proper. The trial court conducted an evidentiary hearing, at which time the judge viewed the tapes but did so on fast forward because of their length.
Amato was then given the opportunity to explain his deposition testimony. He first explained that in his deposition he thought he was being asked whether he could change the oil in a car, which would require him getting entirely under the car. In the activity depicted on the first tape, Amato was not changing the oil, rather he was working with the starter which weighed only eight and a half pounds. Further, Amato said he did not lift the tire when putting it back on the wheel. As to climbing the ladder and cleaning the gutters, he said that he only went up and down the ladder twice, and it caused him pain. He admitted that he hauled a motor onto the rooftop, but he did not say how much it weighed.
Amato's counsel argued that the videotape did not show intentional fraud. At most it revealed inconsistencies that the City could argue to the jury. He noted that the videotape could not show pain. Although the court viewed most of the videotape in fast forward, the court found the videotape and the deposition testimony to be completely contradictory. The court cited to appellant's testimony in his deposition that he could not climb stairs or bend, yet the videotapes showed him doing both of those activities. The court also pointed to Amato lifting the electric motor onto the rooftop when he testifie
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