2021 WL 264861
NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
Court of Appeal of Louisiana, Second Circuit.
Modesta GONZALES, Respondent
v.
Ricardo MINION and TruCore Energy, LLC, Applicant
No. 53,477-CW
|
Judgment rendered January 27, 2021
On Application for Writs from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana, Trial Court No. 154788, Honorable R. Lane Pittard, Judge
Attorneys and Law Firms
RABALAIS & HEBERT, LLC, By: Steven Bernard Rabalais, Lafayette, Counsel for Appellant, First Guard Insurance Company
JOSEPH ANDREA GREGORIO, Bossier City, Counsel for Appellee, Modesta Gonzalez
THOMPSON, COE, COUSINS & IRONS, By: Matthew R. Feigler, Doris Ann Louise Royce, New Orleans, Counsel for Defendant, TruCore Energy, LLC
COURINGTON, KEIFER, SOMMERS, MARULLA & MATHERNE, LLC By: Steven M. Lozes, New Orleans, Counsel for Defendant, Ricardo Minion
GIEGER LABORDE & LAPEROUSE, LLC By: Robert Irwin Siegel, New Orleans, Jody Clark McMillan, Counsel for Defendant, Everest National Insurance Company
Before PITMAN, STONE, and THOMPSON, JJ.
Opinion

THOMPSON, J.

*1 **1 This matter arises from the denial by the district court of a motion for summary judgment sought by an insurance company defendant seeking dismissal alleging exclusion of liability insurance under its policy. The district court denied the motion for summary judgement, citing genuine issues of material fact which it asserted precluded granting of the motion. For the following reasons, we affirm the ruling of the district court.

FACTS & PROCEDURAL HISTORY
On October 13, 2017, Modesta Gonzales (“Gonzales”) was driving her Ford Fusion when she was rear-ended by Ricardo Minion (“Minion”) who was driving an 18-wheeler he owned while towing a trailer owned by TruCore Energy, LLC (“TruCore”). As a result of this accident, Gonzales allegedly sustained injuries, and this suit arose. Minion was working as an independent contractor hauling sand used in fracking operations for TruCore. Minion held an insurance policy through First Guard Insurance Company (“First Guard”), which covered “nontrucking” activities. The term “nontrucking” is specifically defined in the insurance policy to apply only to situations in which a leased vehicle is being “operated solely for personal use and unrelated to any business activity.” Additionally, Everest National Insurance Company (“Everest”) provided trucking/business auto coverage for TruCore. The use of Minion’s vehicle at the time of the accident would be determinative of which insurance policy would provide coverage at the time. Both carriers assert their policies do not afford coverage. Minion asserts he should be insured at the time of the accident by at least one, if not both, of the insurance policies in place for his truck and the trailer.

**2 On the day of the accident, Minion used the tractor-trailer to deliver sand to a well site in Coushatta and was returning to Bossier City with TruCore’s trailer still attached. Minion rear-ended Gonzales. After the accident, Minion provided at least three competing factual scenarios regarding what he was doing or was on his way to do at the time of the accident. These three inconsistent statements are at the core of the district court’s denial of the motion for summary judgment filed by First Guard. The irreconcilable statements by Minion regarding his activities leading up to the accident were as follows:
1. When speaking with a First Guard representative, Minion stated that he was “headed home” at the time of the accident;
2. In that same conversation with the First Guard representative, Minion stated he was driving to the Cash Magic truck stop to park and secure the tractor-trailer, get into his personal vehicle, and travel to his home in Shreveport; and
3. In his deposition, Minion stated that he was traveling to the Petro truck stop to “stage-up” the tractor-trailer for his next assignment from TruCore.

During the course of litigation, a motion for summary judgment was filed by First Guard. In their motion, they allege that as Minion was in the process of hauling or preparing to haul, there would be coverage afforded under its policy providing nontrucking activities as defined in its policy. First Guard asserted there are no issues of material **3 fact and that its nontrucking policy does not apply to the facts in this case and that it should be dismissed.

*2 In addition to the MSJ filed by First Guard, Gonzales filed her own motion for partial summary judgment. In her motion, she alleged that there are no genuine issues of material fact with regard to the following:
• TruCore is vicariously liable for the actions of Minion;
• Her petition states a cause of action;
• There was no third party at fault in the cause of the accident;
• Her damages were not the result of any superseding or intervening cause;
• Her damages were caused by the accident;
• She mitigated her damages;
• Everest insures both Minion and TruCore Energy; and
• First Guard insures both Minion and TruCore Energy.

Additionally, Everest filed its own MSJ alleging that there are no genuine issues of material fact, that Minion was not insured under its policy because Minion owned his truck independently, and that he was operating it for personal use at the time of the accident and not for the purpose of conducting business for TruCore. Additionally, Everest asserted that it is undisputed that Minion was an independent contractor and not an employee of TruCore.

The district court took up arguments on all MSJs at one hearing and ultimately denied all, reasoning that summary **4 judgment was not proper because the “facts are all over the place” relative to what activities Minion was engaged in immediately prior to and at the time of the accident, which would be determinative of insurance coverage. This appeal, which originated as a writ, followed and was sought only by First Guard, in which it asserted two assignments of error, which are addressed below.

STANDARD OF REVIEW
De novo review is required when an appellate court considers rulings on motions for summary judgment. Bank of New York Mellon v. Smith, 15-0530 (La. 10/14/15), 180 So. 3d 1238, 1243. The appellate court must use the same criteria that governed the district court’s determination of whether summary judgment was appropriate: (1) whether there exists a genuine issue of material fact and (2) whether or not the mover is entitled to judgment as a matter of law. Clinton v. Reigel By-Products, Inc., 42,497 (La. App. 2 Cir. 9/19/07), 965 So. 2d 1006, 1008, writ not cons., 07-2239 (La. 2/15/08), 976 So. 2d 168.

DISCUSSION

Assignment of Error No. 1: The trial court erred in concluding that factual questions in the case rose to the level of genuine issues of material fact sufficient to preclude summary judgment in favor of First Guard Insurance Company.
By its first assignment of error, First Guard alleges that the district court erred in concluding that genuine issues of **5 material fact exist such that summary judgment is precluded. A motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to a material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3).

The burden of proof on a summary judgment motion remains with the mover. However, if the mover will not bear the burden of proof on the issue at trial and points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense, then the nonmoving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the opponent of the motion fails to do so, there is no genuine issue of material fact and summary judgment should be granted. La. C.C.P. art. 966(D)(1); J & L Oil Co. v. KM Oil Co., LLC, 51,898 (La. App. 2 Cir. 2/28/18), 247 So. 3d 147.

*3 Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Hudson v. Jager Bomb LLC., 47,501 (La. App. 2 Cir. 11/14/12), 107 So. 3d 712. In this case, which insurance **6 company’s coverage applies rests on the material fact of whether Minion’s activites would be defined as “trucking” or “nontrucking” at the time of the accident. As noted above, Minion provided at least three different versions of what he was doing at the time of the accident. Two could be determined to be nontrucking activities and one could be determined to be trucking. A determination of the genuine issue of material fact is required to assess liability and dismiss an insurer from this matter.

Summary judgment is only appropriate if there is no factual dispute as to whether Minion was working in a nontrucking or trucking capacity at the time of the accident. In this case, both insurance companies allege that neither of their policies apply to the facts presented here. Minion, however, makes a compelling argument that he has to be covered by at least one, if not both, of the insurance policies. First Guard asserts that its nontrucking policy does not apply because Minion was conducting business for TruCore at the time of the accident. Everest asserts that its policy does not apply because Minion was not employed by TruCore and he was operating his truck for personal use.

As addressed at oral arguments on appeal, there are at least three competing factual scenarios as to what Minion was actually doing at the time of the accident and where he was going and why. The response to this Court’s inquiry as **7 to whether insurance coverage vacillates between the policies or could exist under only one at a time, or possibly both, convinced us that the district court was correct in concluding that there exist genuine issues of material fact. A determination of the issue of coverage would be improper at this juncture under the competing theories of coverage or, at least, the lack thereof.

In determining whether an issue is genuine, a court should not consider the merits, make credibility determinations, evaluate testimony, or weigh evidence. Chanler v. Jamestown Ins. Co., 51,320 (La. App. 2 Cir. 5/17/17), 223 So. 3d 614, writ denied, 17-01251 (La. 10/27/17), 228 So. 3d 1230. It is not the duty of the district court to determine which factual scenario is the one that occurred or to evaluate the credibility of Minion on summary judgment, because to do so would be to recognize there exists a genuine issue of material fact based on which version of Minion’s statement the court applied. Material facts remain in dispute, and as such summary judgment would be improper. Likewise, it is not the duty of this Court to determine which factual scenario it believes to be the one that occurred. That duty belongs to the district court upon further exploration at trial.

Under these contradictory and mutually exclusive various factual scenarios, summary judgment would have **8 been improper, and the district court correctly denied summary judgment. This assignment of error is without merit.

Assignment of Error No. 2: The trial court erred in not applying the clear and unambiguous provisions of the policies issued by First Guard Insurance Company, so as to grant summary judgment in favor of First Guard on all claims asserted against it.
By its second assignment of error, First Guard asserts that the district court erred in not applying the unambiguous provisions of the policies issued by it. However, as stated above, summary judgment denying coverage may only be granted if there exists no genuine issue of material fact. Hudson, supra. Minion’s conflicting statements of his activities immediately before and at the time of the accident give rise to genuine issues of material fact regarding which insurance policy, and possibly both, would be in effect at the time of the accident. The district court, in reviewing the pleadings and supporting exhibits, concluded “the facts are all over the place” and that it could not disregard the genuine issues of material fact in dispute. Therefore, because there exist genuine issues of material fact, the district court did not err in not applying the policy provisions **9 provided by First Guard. This assignment of error is without merit.

CONCLUSION
*4 Considering the foregoing, the judgment of the district court denying summary judgment is affirmed. Costs of this appeal are assessed to appellant.

AFFIRMED.

STONE, J., dissents with written reasons.

Stone, J., dissenting.

**1 The majority opinion is silent regarding the most important issue in this case: whether First Guard’s non-trucking policy would provide coverage under any of the 3 factual scenarios supposedly reflected in Minion’s statements. As demonstrated herein, coverage under First Guard’s nontrucking policy is clearly inapplicable in all 3 competing scenarios; that is because Minion was not “non-trucking” within the meaning of the First Guard policy in any of the 3 scenarios. Therefore, the issue of which scenario a factfinder would adopt at trial is immaterial. The majority’s refusal to even acknowledge this issue, despite it being sufficiently raised in First Guard’s appellate brief, appears to be based on the fact that doing so can only lead to dismissal of First Guard from the case, i.e., the outcome opposite the one desired by the majority.

The party asserting that an insurance policy provides coverage bears the burden of proving that the matter sued upon falls within the policy’s terms of coverage. Byrd v. Linton, 48,191 (La. App. 2 Cir. 6/26/13), 117 So. 3d 1268. However, the insurer bears the burden of proving the applicability of policy limits or exclusionary clauses, which are strictly construed. Mills v. Mills, 51,509 (La. App. 2 Cir. 1/10/18), 243 So.3d 1245; Byrd, supra.

Application of the First Guard policy language to each scenario
**2 The First Guard policy states that it “does not afford full-time protection. It only applies while a covered truck is non-trucking, as defined in the policy.” More particularly, First Guard’s argument is based on the following language of the First Guard policy:
PART II – WHEN AND WHERE THIS POLICY APPLIES
1.) When this policy applies:
This policy does not afford full-time protection. This policy only applies to accidents involving a covered truck that occur within the policy period shown in the declarations when that covered truck is non-trucking. (Emphasis added).

First Guard also cites the following provisions in the Policy Definitions, found at Page 1 of the First Guard policy; together, these definitions delineate the circumstances under which a truck is “nontrucking”:
I. Non-trucking means when a truck is:
1. subject to an active permanent lease with a motor carrier; and is
2. either bobtail or deadhead; and is
3. operating solely for personal use and unrelated to any business activity
Non-trucking does not include a truck that:
a.) Is being operated for an economic or business purpose, which includes trips to or from service or maintenance facilities when service or maintenance is an expressed or implied requirement of a permanent lease.
**3 b.) Is being operated under the expressed or implied management, control, or dispatch (as defined by DOT regulations and case law precedents) of a motor carrier.
c.) Is in a layover.
d.) Is returning to the truck’s primary garage location subsequent to delivering a load.
L. Primary Garage Location means the home parking base for a truck.

*5 Additionally, the policy states that “[d]eadhead means a truck with only an empty trailer attached.” Layover is defined as follows:
Layover means any interlude, or detour from route, that takes place away from a covered truck’s primary garage location between or during load hauling assignments.

As shown above, the First Guard policy limits “non-trucking” to activities which are “solely for personal use and unrelated to any business.” (Emphasis added). It also specifies that “non-trucking” does not include when a truck is in layover or is returning to its Primary Garage Location.

The respective scenarios are numbered as follows for reference: (1) Minion was in route to a Petro station where he would await his next assignment from Trucore; (2) Minion was in route to the Cash Magic casino/truck stop, the truck’s primary garage location, where he would leave the truck and get in his personal vehicle to go home; and (3) Minion was taking the truck directly to his house.

**4 All three scenarios fail the requirement for coverage that the accident occur while the truck is “operating solely for personal use and unrelated to any business.” It is undisputed that, at the time of the accident, Minion was on a return trip from making a delivery on behalf of Trucore; he was finished making the haul, and had not reached wherever he was going next, and he had not made any detours or stops. Thus, as a matter of logic, Minion’s return trip (during which he had the wreck with the plaintiff) was necessitated by his delivery on behalf of Trucore. The return trip has such nexus with the business use of the truck that it cannot be deemed “unrelated to business” activity.

Additionally, scenarios (1) and (3), supra, both fall within the definition of a layover in the previously-quoted First Guard policy provisions, and therefore, no coverage would extend (even if the return trip somehow was deemed “unrelated to business”). The operative language in the definition of layover would be “any interlude…that takes place away from the truck’s primary garage location, between or during load hauling assignments.” Minion testified that his next load hauling assignment after the Friday, October 13, 2017, collision was on Monday, October 16, 2017. This two-day interim (between the Friday collision and Minion’s next load hauling assignment on the following Monday) is small enough to consider Minion to have been **5 “between…load hauling assignments” for the intervening weekend.

Finally, Scenario (2) – returning the truck to Cash Magic and taking the personal vehicle home –would constitute “returning to the truck’s primary garage location,” and therefore, coverage would not apply (even if the return trip somehow was deemed “unrelated to business”). Minion testified that he primarily stored the truck at Cash Magic casino, and there is no conflicting summary judgment evidence on that point.

For these reasons, Everest has failed to point out a genuine issue of material fact, and First Guard is entitled to judgment as a matter of law. I respectfully dissent.

All Citations
— So.3d —-, 2021 WL 264861, 53,477 (La.App. 2 Cir. 1/27/21)

2021 WL 262037

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
District Court of Appeal of Florida, Third District.
Gail Johnson DAYES, etc., Appellant,
v.
WERNER ENTERPRISES, INC., et al., Appellees.
No. 3D19-1920
|
Opinion filed January 27, 2021
An Appeal from the Circuit Court for Miami-Dade County, Antonio Arzola, Judge. Lower Tribunal No. 17-18241
Attorneys and Law Firms
Falk, Waas, Hernandez & Solomon, P.A., and Glenn P. Falk, Fort Lauderdale; Russo Appellate Firm, P.A., and Elizabeth K. Russo, Miami, and Paulo R. Lima, for appellant.
The Brownlee Law Firm, P.A., and Michael M. Brownlee (Orlando), for appellees.
Before LOGUE, SCALES and LINDSEY, JJ.
Opinion

LOGUE, J.

*1 In this wrongful death case, Gail Johnson Dayes, the personal representative of the estate of her husband Harold Dayes, appeals a final judgment entered after a jury trial. Dayes was killed at work when a tractor-trailer backed over him. Mrs. Dayes sued Werner Enterprises, Inc., the owner of the tractor-trailer, and its employee, Vincent Minott, the driver (hereinafter, collectively “the Defendants”). Among other things, Mrs. Dayes contends the trial court erred in allowing the Defendants to read to the jury the deposition of a police detective who testified that another officer told him Dayes had an earbud in his ear when lying on the ground after the accident. We reverse because this testimony constituted inadmissible hearsay and the Defendants, as the beneficiaries of the error, have not met their high burden of establishing “there is no reasonable possibility that the error contributed to the verdict.” Special v. W. Boca Med. Ctr., 160 So. 3d 1251, 1256–57 (Fla. 2014).

FACTS
The accident happened one morning around eight at a Coca-Cola distribution center in Broward County, Florida in 2017. Harold Dayes was a 63-year-old security guard working for a third-party contractor named Securitas Security Services USA. He was tasked with logging tractor-trailers out of the distribution center. Dayes would check the load of a trailer and affix a seal to its doors before the trailer left the property. He had been working this job for approximately one month before his death. The tractor-trailer that killed him was owned by another third-party contractor named Werner Enterprises, Inc. and driven by its employee, Vincent Minott.

The trial got off to a rocky start in voir dire when the Defendants asked a juror “Could you imagine how you’d feel if somebody told you [that] you killed someone and you don’t think it’s your fault? Do you think there’s pain and suffering on both sides of this equation?” The trial court sustained an objection but denied a mistrial. The Defendants, however, returned to this theme in their opening (“Mr. Minott … lives this day every day. Particularly on Sundays because he remembers having conversations with Mr. Dayes about watching football … And so it particularly hits him on Sundays …. We’re going to ask you to avoid making this tragedy worse ….”). The trial court again denied a mistrial.

During the trial, it was undisputed that in the moments before the accident, Minott drove a tractor-trailer out of a warehouse bay. He realized the truck was empty, got out of the cab, and showed Dayes the paperwork and the number on his trailer. They agreed the empty trailer had to be returned to the warehouse. At this point, the parties presented competing narratives. The Plaintiff contended that Minott walked quickly back to the cab, rejected the longer, but safer option of driving forward to return to the bay, and negligently backed up without taking basic precautions like first locating Dayes and ensuring he was not behind the trailer, even if this involved getting out of the truck again.

*2 The Defendants contended that Minott told Dayes he intended to return the empty tractor-trailer by backing up. Minott walked back to the cab, climbed in, carefully checked his mirrors, could reasonably assume Dayes had gone back into his office, had no reason to think Dayes would have moved to the blind spot behind the trailer, twice honked his horn, and slowly backed up at a rate that allowed Dayes ample latitude to step clear if Dayes had been paying attention.

Much of the Plaintiff’s case was devoted to attacking alleged inconsistencies in the driver’s version of events. One potential inconsistency concerned whether Minott actually sounded his horn. For example, the one independent witness to the accident did not hear the driver sound the truck horn; that witness, however, was using a loud pressure cleaner at the time. Minott also said that at one point he honked the truck’s quieter “city horn” and, at another point, the truck’s louder “air horn.” The Plaintiff’s attacks on Minott’s testimony were sufficiently persistent that the trial court allowed the Defendants to bolster Minott’s testimony with a prior consistent statement, to which the Plaintiff objected.

Given the attacks on Minott’s testimony, the question of why, if Minott had sounded his horn, Dayes had ignored it, became a feature of the trial. For example, the Defendants set up this question for the jury by asking their own driver, Minott, whether he could understand why Dayes ignored the horn:
Q. Can you think of any reason, based on how long you’ve been around tractor trailers, why someone that was anywhere near your vehicle wouldn’t have heard your air horns?
A. I don’t know how — how he didn’t hear. That’s the reason why I honk it twice.

After posing the question, the Defendants answered it: Dayes was wearing at least one earbud. Over the Plaintiff’s hearsay objection, the trial court allowed the Defendants to read a portion of the deposition of Detective Morales who conducted a traffic homicide investigation. In the disputed testimony, Detective Morales testified that another officer, Sergeant Franks, told him that Dayes had been wearing at least one earbud as he lay dying on the ground after the accident:
Q. All right. Were you able to determine whether the deceased was using any equipment, like a headset or a cell phone or anything like that?
A. There is a — there is a comment in my report. Sergeant Franks advised me he did have — there was a statement in my report. You can, I guess, get it from Sergeant Franks — did advice that he was … he did have a Bluetooth-type headset. He described it as earbuds which connect behind. And he advised me there was at least one in the ear at the time when he was trying to administer first aid. He could not tell if the other one was in or out. He could not recall.

The Defendants’ expert testified at length regarding his opinion that the use of earbuds by Dayes explained how Minott could sound the horn but Dayes not heed it:
Q. Now, as a part of your analysis, have you considered the impact that wearing earbuds would have had on Mr. Dayes’s ability to hear the auditory cues that were going on around him before the backing maneuvers had begun?
A. Yes, sir.
Q. And what opinion have you developed with respect to the use of air bud — earbuds, I’m sorry.
A. So if Mr. Dayes was wearing an earbud, it would reduce the amount of sound transmitted through that one ear. So we know that earbuds were recorded as part of his belongings and were reported as something that he carried with him. However, we don’t know what those earbuds are, but if they were being used, then within that ear, it would reduce the amount of sound transmitted.
*3 Q. Okay. And would that be true if he had them in both ears or one ear? Help me understand that a little bit.
A. So any ear that had an earbud within it, that ear would experience a reduction in the amount of sound transmitted.
Q. If we assume for a moment that Mr. Dayes had an earbud in only one ear, how would that impact — and the other ear was empty, how would that impact his ability to hear the various auditory cues going on before this vehicle began its backing maneuver?
A. So that would reduce the sound in the one ear. It would not affect the sound transmission through the other unplugged ear.
Q. All right. And if he was wearing earbuds in both ears, how would that impact his ability to hear the auditory cues, assuming he wasn’t playing any music or had any sort of input through those earbuds?
A. Assuming that both ears had earbuds in, it would just be a global reduction in the sound transmission. So everything would be softened.
Q. And if he had some sort of auditory — either a podcast or music playing through these earbuds, how would that impact his ability to hear the auditory cues?
A. So in addition to the … dampening or reduction of sound transmission from the external or sounds produced by the truck, there would also be masking created by anything being played on those — through the earbuds. So it would be masking or interference that would help to hinder or provide a hindrance to his ability to hear those sounds.

The Defendants’ expert even explained how Minott’s testimony that he and Dayes had a conversation could be reconciled with Dayes having an earbud in his ear:
Q. Now, can people be wearing earbuds, take them out to have a conversation with somebody, and then put them back in when they go — when they’re done having a conversation? … Is that something that you’ve experienced as a human factors scientist?
A. Yes.
The jury’s interest in this issue is evident by the fact that it asked the expert a question about the horn.1

Whether Minott sounded his horn was also a feature of the closing arguments. The Plaintiff, for its part, accused Minott of “telling an inconsistent story” about sounding his horn. In response, the Defendants made the earbuds a theme in their closing argument. After noting Dayes ignored the air horn, the Defendants asked rhetorically, “[Why] did he not hear it? Why? Because of the earbud? Who knows?” Later, again noting Dayes did not move out of the way of the truck even though Minott testified he honked his air horn, “How did an air horn not prompt that, unless he’s got an earbud? I don’t know. That’s for you all to decide.”

On the issue of liability and proximate cause, the first two questions on the verdict form were: (1) “Was there negligence on the part of Vincent Minott which was a legal cause of the death of Harold Dayes? Yes or No. If your answer to question 1 is NO, your verdict is for the defendants, and you should not proceed further except to date and sign this verdict form ….” and (2) “Was there negligence on the part of Harold Dayes which was a legal cause of his death?” The jury answered “no” to the first question and did not reach the second question. After the post-trial motions were denied, this appeal followed.

ANALYSIS
*4 Mrs. Dayes raises four issues on appeal. We address and decide only one.2 Mrs. Dayes argues the trial court erred by admitting Detective Morales’s testimony that Sergeant Franks said Dayes had an earbud in his ear because this testimony was inadmissible hearsay.

The decision to admit evidence is reviewed under the abuse of discretion standard. See Simmons v. State, 934 So. 2d 1100, 1116 (Fla. 2006) (“A trial court has wide discretion concerning the admissibility of evidence and the range of subjects about which an expert can testify.”). “However, a ‘[trial] court’s discretion is limited by the evidence code and applicable case law. A [trial] court’s erroneous interpretation of these authorities is subject to de novo review.’ ” City of Miami v. Kho, 290 So. 3d 942, 944 (Fla. 3d DCA 2019) (quoting Bank of Am., N.A. v. Delgado, 166 So. 3d 857, 860 (Fla. 3d DCA 2015)).

Here, we assume, but do not decide, that Detective Morales was testifying as an expert on this point. The Florida Evidence Code addresses the extent to which an expert may testify to inadmissible facts that form the basis of an expert opinion:
The facts or data upon which an expert bases an opinion or inference may be those perceived by, or made known to, the expert at or before the trial. If the facts or data are of a type reasonably relied upon by experts in the subject to support the opinion expressed, the facts or data need not be admissible in evidence. Facts or data that are otherwise inadmissible may not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.
Fla. Evid. Code § 90.704 (emphasis added).

While an expert may undoubtedly rely on hearsay in rendering opinions, “Florida courts have routinely recognized that an expert’s testimony ‘may not merely be used as a conduit for the introduction of the otherwise inadmissible evidence.’ ” Linn v. Fossum, 946 So. 2d 1032, 1037–38 (Fla. 2006) (quoting Erwin v. Todd, 699 So. 2d 275, 277 (Fla. 5th DCA 1997)). The reason for this rule is obvious: “[w]hen an expert’s testimony acts as a conduit for inadmissible hearsay, the evidence is presented to the jury without affording the opposing party an opportunity to cross-examine and impeach the source of the hearsay.” Id. at 1038 (citing Gerber v. Iyengar, 725 So. 2d 1181, 1185 (Fla. 3d DCA 1998)).

The rule and its rationale apply with particular force here. The other witnesses who saw Dayes on the ground either could not recall whether he had an earbud in his ear or did not testify to it. While there was evidence that Dayes had earbuds on his person, and Mrs. Dayes testified that he used earbuds for work purposes, the only evidence that Dayes had an earbud in his ear came from Detective Morales’s relating what Sergeant Franks told him. However, according to quotations in the record from Sergeant Franks’s own deposition, Franks himself could not recall whether or not Dayes had an earbud in his ear after the accident and he could not recall making a statement to that effect to Detective Morales. Thus, the result of allowing Detective Morales to testify as to what Sergeant Franks allegedly saw is that a “ ‘highly impeachable statement … was presented for the jury’s consumption without affording … an opportunity to cross-examine.” Id. (quoting Gerber, 725 So. 2d at 1185).3 Even if Detective Morales was testifying as an expert, admission of this hearsay was error.

*5 Nor do we believe the error of admitting this hearsay was harmless. The Supreme Court has held that error is harmless only when the beneficiary of the error demonstrates “there is no reasonable possibility that the error contributed to the verdict”:
As the appellate court evaluates whether the beneficiary of the error has satisfied its burden, the court’s obligation is to focus on the effect of the error on the trier-of-fact and avoid engaging in an analysis that looks only to the result in order to determine harmless error. Could the admission of evidence that should have been excluded have contributed to the verdict? Could the exclusion of evidence that should have been admitted have contributed to the verdict? Unless the beneficiary of the error proves that there is no reasonable possibility that the error contributed to the verdict, the error is harmful.
Special v. W. Boca Med. Ctr., 160 So. 3d at 1256–57 (emphasis added).

The issue thus becomes whether the Defendants can prove there is no reasonable possibility that the admission of the hearsay that Dayes had an earbud in his ear contributed to the defense verdict. The Defendants contend this burden is met because the earbuds were only relevant to the issue of Dayes’s comparative negligence and the jury never reached that issue because it found no negligence on the part of the Defendants. “What Sergeant Franks said about the earbud,” the Defendants argue, “had nothing to do with the question of whether Mr. Minott was negligent in his operation of the truck.”

While the testimony that Dayes had an earbud in his ear was obviously relevant to the issue of whether Dayes was comparatively negligent, it also bore on the credibility of Minott’s version of events and therefore on the question of whether Minott was negligent. A major dispute at trial concerned whether Minott honked his horn before backing over Dayes. Three facts supported an inference that he did not: (1) the only independent witness to the accident did not hear the horn; (2) Dayes did not move to safety which he most likely would have done if he had heard the truck’s horn; and (3) Minott was inconsistent regarding which of the truck’s two horns he honked.

Among other things, the hearsay that Dayes had at least one earbud in his ear provided the Defendants a ready way to reconcile Minott’s testimony that he honked the horn with the fact that Dayes did nothing to heed the warning. The hearsay thus bolstered the Defendants’ case in chief that they were not negligent. And the Defendants hammered on the earbuds in their direct examination of their expert, their driver, and during their closing argument. We must ask “[c]ould the admission of evidence that should have been excluded have contributed to the verdict?” Special, 160 So. 3d at 1256–57. In the facts of this case, quite clearly, it could have. For this reason, the Defendants are unable to meet their burden to prove “there is no reasonable possibility that the error contributed to the verdict” and we must find “the error is harmful.” Id.

Reversed and remanded for new trial.

All Citations
— So.3d —-, 2021 WL 262037

Footnotes

1
The jury asked, “Would duration of sound horn have made a difference for audible cues?” The expert answered that the duration would not have made a difference provided the horn sounded for at least a quarter of a tenth of a second.

2
Among other things, Mrs. Dayes also appeals (1) the trial court’s refusal to grant a mistrial after the Defendants’ appeal to the jury’s sympathy during voir dire and opening statements; (2) the trial court’s decision to allow the Defendants to bolster Minott’s testimony that he sounded the horn with a prior consistent statement; and (3) the trial court’s refusal to grant a directed verdict after allowing the Defendants to place the Plaintiff’s employer on the verdict form as a Fabre defendant. We do not reach these other issues.

3
Alexander v. Penske Logistics, Inc., 867 So. 2d 418, 421 (Fla. 3d DCA 2003), cited by the Defendants, does not bear on the issue before us. Alexander held that the traffic report privilege under subsection 316.066(4), Florida Statutes (2002), did not prevent a traffic homicide investigator from testifying to an expert opinion he formed as part of his investigation because he had given the party making the statement a warning under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). There is no discussion in Alexander whether the statement was admissible, which is the issue before us. Perhaps there was no discussion on this point because the party giving the statement was a defendant in the lawsuit.