In Kusherman v. Continental Florida Materials, Inc., the Fourth District Court of Appeal takes on the issue of fault apportionment in Florida personal injury cases.

Harvey Kusherman was injured in an accident on a construction site, where he was directing traffic as a flag man. A driver for Defendant Continental Florida Materials, Inc. – a subcontractor on the construction project – was delivering cement to the site via a truck. The driver was waved on by the construction site foreman while backing the truck out of the site. Plaintiff had his back turned to the truck at the time and did not hear it approaching. He turned around to find the truck approaching him quickly from three or four feet away. The truck knocked Kusherman to the ground and ran over his legs.

He filed a personal injury lawsuit against both Continental Florida Materials and the driver, alleging that the driver’s negligence caused the accident. The trial court granted Plaintiff’s motion in limine, precluding Defendants from requesting that the jury apportion the share of fault for the accident (that is, the percentage of each party’s liability), finding that the company was responsible for the driver’s negligence, if proved. The jury entered a $6,590,891 verdict in Kusherman’s favor.

On appeal, the court reversed the decision, ruling that the Defendants were entitled to an apportionment of fault regardless of who is ultimately liable for damages. Under Section 768.81, Florida Statutes (2007), ” the court shall enter judgment against each party liable on the basis of such party’s percentage of fault,” in a negligence case.

Furthermore, the Florida Supreme Court ruled in Fabre v. Marin that

Clearly, the only means of determining a party’s percentage of fault is to compare that party’s percentage to all of the other entities who contributed to the accident, regardless of whether they have been or could have been joined as defendants.

This case law, according to the court, required that the jury apportion fault in the present case.

The court rejected Plaintiff’s argument that Defendants were not entitled to apportionment based on provisions of the contract between Continental Florida and the general contractor on the construction project, which requires Continental Florida to prevent accidents and injuries “to workmen engaged in the Work under this Agreement,” and to indemnify the general contractor and owner from loss resulting from the subcontractor’s acts or omissions. Noting first that neither Kusherman nor the driver were parties to this contract, the court found that the contract does not make Continental Florida solely responsible for safety on the site.

Furthermore, while the contract required Continental Florida to indemnify the general contractor for losses caused by Continental Florida’s acts or omissions, “it does NOT provide for [the company] to indemnify the general contractor for loss resulting from the general contractor’s own acts or omissions,” according to the court.

As a result, the court reversed the decision and remanded the case for a new trial.

It’s important to note that the court’s decision does not mean that Kusherman will not ultimately recover damages for his injuries. It is, however, an example of the complexities involved in personal injury litigation. If you were recently injured in an accident and are interested in pursuing a claim, contact the South Florida personal injury attorneys at Anidjar & Levine today. Anidjar & Levine’s negligence attorneys represent clients throughout South Florida, including in Boca Raton, Hollywood and Pompano Beach.

Related blog posts:

Proving Negligence in A Florida Personal Injury Lawsuit – Whyte v. United States Postal Service

Proximate Cause in Florida Personal Injury Cases – Sunbelt Environmental v. Gulf Coast Truck and Equipment Company

In Order to Recover Damages for Personal Injury, First You Must Know Which Laws Apply – Schippers v. US