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[W] Bogosian v. State Farm Mutual Automobile Insurance Company5/31/2000
OPINION WITHDRAWN and new opinion filed May 29, 2002.
WANE BOGOSIAN, APPELLANT,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, APPELLEE.
LOWER TRIBUNAL NO. 96-13928
Tilghman & Vieth, P.A., and Robert C. Tilghman, for appellant. James K. Clark, for appellee.
Before Cope, Green and Sorondo, JJ.
The opinion of the court was delivered by: Cope, J.
An appeal from the Circuit Court for Dade County, Judith L. Kreeger, Judge.
Wane Bogosian, plaintiff below, appeals a final judgment in his action against defendant-appellee State Farm Mutual Automobile Insurance Co. for uninsured motorist benefits. We reverse.
Plaintiff was injured in a 1995 automobile collision at the Golden Glades flyover of Interstate 95 in Miami-Dade County. Plaintiff was a passenger in a Corvette being driven southbound in the second-from-left lane of I-95. The left-hand lane of I-95 becomes a flyover at the Golden Glades. On approaching the ramp for the flyover, a car in the left-hand lane ("the phantom vehicle") abruptly veered into plaintiff's lane, striking the Corvette and sending it into a retaining wall. Plaintiff was injured. The phantom vehicle did not stop and was never identified.
Plaintiff sued State Farm for uninsured motorist benefits on account of the injuries caused by the phantom vehicle. Plaintiff also sued the Florida Department of Transportation ("D.O.T."), alleging that the Golden Glades flyover was negligently designed and that the signage was inadequate. Plaintiff contended that because of these problems, motorists in the I-95 left-hand lane would, upon approaching the flyover ramp, misperceive it as an exit and abruptly change into the second-from-left lane.
D.O.T. moved for summary judgment. In opposition, plaintiff filed the affidavit of Kenneth Bynum, an engineer and accident reconstruction expert, who outlined plaintiff's negligence claims against D.O.T. D.O.T.'s motion was denied. In 1998, D.O.T. settled with plaintiff, leaving State Farm as the sole defendant.
In 1999, the case came to trial. On the morning of trial, State Farm informed plaintiff for the first time that State Farm would defend the case by saying that the accident was attributable to the negligence of the D.O.T. State Farm also disclosed that it had served a subpoena on Kenneth Bynum for trial, even though Mr. Bynum was not on State Farm's witness list. State Farm's position was that D.O.T. should appear on the verdict form as a Fabre defendant.
Plaintiff objected that at no time had State Farm ever pled that the accident was attributable in any way to D.O.T., and that plaintiff was unfairly surprised by being informed of State Farm's position on the morning of trial. Plaintiff asserted that this late notice left no opportunity to obtain evidence or witnesses to respond to State Farm's case with respect to D.O.T. Plaintiff also objected that State Farm had never listed Mr. Bynum as a witness.
The trial court overruled plaintiff's objections and allowed State Farm to proceed. The court accepted State Farm's argument that plaintiff was already very familiar with Bynum's opinions regarding the D.O.T.'s negligence, since Bynum was originally plaintiff's expert. The D.O.T. was placed on the verdict form as a Fabre defendant. The jury returned a verdict finding D.O.T. 70% at fault for the accident, and the phantom driver 30%. Plaintiff has appealed.
We respectfully disagree with the trial court and conclude that the plaintif
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