Neutral As of: April 27, 2020 1:04 PM Z
Publix Supermarkets, Inc. v. Monica
Court of Appeal of Florida, Fourth District
April 8, 2020, Decided
No. 4D19-2202

Reporter
2020 Fla. App. LEXIS 4918 *; 45 Fla. L. Weekly D 819

PUBLIX SUPERMARKETS, INC., and RANDOLPH SAPP, Petitioners, v. MONICA OLIVARES, individually, and as Personal Representative of the ESTATE OF ALBERTO OLIVARES, Respondent.

Prior History: [*1] Petition for writ of prohibition to the Circuit Court for the Seventeenth Judicial Circuit, Broward County; William W. Haury, Jr., Judge; L.T. Case No. CACE18-006314.

Publix Super Mkts., Inc. v. Olivares, 2020 Fla. App. LEXIS 190 (Fla. Dist. Ct. App. 4th Dist., Jan. 8, 2020)

ON MOTION FOR REHEARING AND MOTION FOR REHEARING EN BANC
PER CURIAM.
We grant the motion for rehearing, deny the motion for rehearing en banc, vacate our prior opinion, and substitute the following in its place.
Petitioners, Publix Supermarkets and Randolph Sapp, (collectively referred to as Publix), bring this petition for writ of prohibition to disqualify the trial judge in this wrongful death action against it. The suit arises from a fatal collision involving a Publix tractor trailer whose driver was using his cell [*2] phone with a hands-free device at the time of the crash. Publix claims that the judge’s comments, at a hearing on the respondent’s motion to add a claim for punitive damages, showed that the judge was biased against its position, that the hands-free use of a cell phone while driving, or a policy permitting such use, does not justify punitive damages, because cell phone use while driving is not prohibited by law. The judge indeed made multiple comments showing his predisposition that cell phone use while driving, even if legal, is dangerous and should not be allowed. Nevertheless, the judge denied Publix’s motion to disqualify.
We conclude that Publix’s motion to disqualify was legally sufficient. A motion to disqualify is legally sufficient and must be granted if the facts alleged “would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial.” Gregory v. State, 118 So. 3d 770, 778 (Fla. 2013) (quoting Rodriguez v. State, 919 So. 2d 1252, 1274 (Fla. 2005)). Here, the trial judge’s multiple comments denigrating Publix’s position regarding its cell phone policy would create fear in a reasonable person that Publix would not receive a fair trial. The judge’s comments tended to show a disdain not only for Publix’s legal position but for the company’s [*3] lack of a policy prohibiting cell phone use while driving. Thus the judge exhibited a bias against Publix, and the judge should have disqualified himself.
Petition granted.
MAY and CIKLIN JJ., concur.
WARNER, J., dissents with opinion.
Dissent by: WARNER

Dissent

WARNER, J., dissenting.
I would deny the petition. See State ex rel. Gerstein v. Stedman, 233 So. 2d 142, 144 (Fla. 3d DCA), opinion adopted, 238 So. 2d 615 (Fla. 1970) (“We do not subscribe to the view that a judge is necessarily disqualified because he has formed an opinion as to the legal questions involved in the case.”).