FLANIA BELT v. USAA CASUALTY INSURANCE COMPANY

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

FLANIA BELT,
Appellant,

v.

USAA CASUALTY INSURANCE COMPANY
Appellee.

No. 4D20-339

[March 10, 2021]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; James Nutt, Judge; L.T. Case No. 50-2016-CA-010153-
XXXX-MB.

William T. Viergever of Lytal Reiter Smith Ivey & Fronrath, West Palm
Beach, for appellant.

Charles M-P George of the Law Offices of Charles M-P George, Coral
Gables, and Christopher W. Wadsworth and Daniel L. Margrey of
Wadsworth, Margrey & Dixon, Miami, for appellee.

WARNER, J.

In this appeal from a final judgment for defendant in a multiple impact
automobile incident, appellant contends that the trial court erred in
instructing the jury regarding whether the incident amounted to one
accident or two, a finding required to determine the extent of uninsured
motorist benefits. We conclude that the trial court did not err in giving an
instruction that multiple impacts can constitute one accident if there is
one proximate, continuing cause of injury. In a second issue, appellant
argues that the court erred in permitting a defense expert to offer opinions
that it claims were surprise testimony. We affirm this issue without
further analysis because the testimony was consistent with his pre-trial
report and, in any event, was cumulative.

Facts

While travelling on I-95 appellant was struck by a pickup truck, a hit
and run “phantom” vehicle traveling next to her, and then struck by
another vehicle driven by an uninsured motorist. She alleged that these
were two separate accidents and sought to recover against USAA, her
insurer, under her uninsured motorist insurance coverage for damages
caused by both the hit and run driver and by the uninsured driver.

USAA contended that this was one incident, subject to the limits for
one accident, not two. The uninsured motorist portion of the policy
insured against both uninsured motorists and “hit and run” vehicles. A
“hit and run” vehicle is one which cannot be identified but either hits or
causes an accident involving bodily injury. The policy provisions at issue
stated:

For BI sustained by any one person in any one accident, our
maximum limit of liability for all resulting damages, including,
but not limited to, all direct, derivative, or consequential
damages recoverable by any persons, is the limit of liability
shown on the Declarations for “each person” for UM Coverage,
multiplied by the number of premiums shown in the
Declarations for UM Coverage. Subject to this limit for “each
person,” our maximum limit of liability for all damages for
BI resulting from any one accident is the limit of liability
shown on the Declarations for “each accident” for UM
Coverage multiplied by the number of premiums shown on
the Declarations for UM Coverage.

(Emphasis supplied). The limits “are the most we will pay, regardless of
the number of . . . [v]ehicles involved in the accident.”

Appellant filed suit against USAA and the uninsured driver alleging she
was injured in two accidents, one with the hit and run driver and one with
the uninsured driver. The parties settled the count against the hit and
run driver with USAA paying its policy limits. The uninsured motorist was
later dismissed from appellant’s complaint, and USAA defended the action,
contending that the incident was one accident, not two, being one
continuous sequence of events. In addition, USAA alleged that the
uninsured motorist was not at fault. Appellant conceded that, if the
uninsured motorist was not at fault, then there was no coverage. However,
she disputed that the incident was only one accident.

At trial, two different versions of the incident were presented. Appellant
testified that she was driving north in lane four of five lanes on I-95, side
by side with a pickup who was to her left in the fifth lane (an HOV lane).
The pickup veered to the right and struck her car. She spun out of control.
The pickup never stopped. Her car came to a complete stop in lane three

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of the five lanes. Several cars went by her in lane four, while she was
stopped for approximately a minute. She was facing northwest and trying
to make her way over to the left-hand side to the emergency lane past the
HOV lane when she was struck again in lane four by the uninsured
motorist, and it sent her spinning again. She maintains that she was in
control of her car when the second vehicle hit her.

In contrast, the uninsured motorist testified that he was traveling north
on I-95 one to one-and-a-half car lengths behind appellant’s car. He had
been following her for two to three minutes. There was a white pickup
truck on appellant’s left in lane five, traveling almost parallel to her. The
pickup made an abrupt move to the right, and appellant swung hard to
the right, spinning. The uninsured motorist hit his brakes. Appellant
then started swerving from the right to the left, and at that point the
uninsured motorist hit her. The left corner of the uninsured motorist’s
front bumper struck appellant’s driver’s-side rear tire. He testified that at
the time he collided with appellant she was headed southwest and had she
been traveling in any other direction, the point of impact would have been
different, and the front of his car would have been wrecked. He testified
that all of this happened in the span of only a few seconds, in one
continuous sequence of events.

An accident reconstruction expert presented by USAA testified that
appellant’s impact with the uninsured motorist’s car caused damage to
the rear tire of appellant’s car, thus confirming that appellant was
traveling in a southwesterly direction at the time of impact with appellant’s
vehicle. The expert testified that if appellant had been traveling
northwesterly the uninsured motorist would have impacted the rear of her
car. The expert opined that it was impossible for appellant to spin and
come to rest facing northwest in lane three in the manner she described.
The expert told the jury that the uninsured motorist’s testimony that
appellant swerved right, back to the left and then crossed in front of him,
was possible and the result of driver oversteering. He opined that three to
five seconds elapsed between the time appellant swerved away from the
white pickup and the time she impacted with the uninsured motorist. In
answer to a juror’s question, the expert testified that he considered the
incident one accident, not two.

He further testified that if appellant had been sitting in her vehicle in
lane three for a minute, the uninsured motorist would have been at least
a mile away and would not have been able to see the impact between the
pickup and appellant’s vehicle. While appellant objected to this testimony
as new opinions on “line of sight” outside his report, the court overruled
the objection. The expert was testifying, not on matters involving expert

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testimony, but based upon his knowledge of the area from the time he
patrolled as a state trooper, as well as his familiarity with an overpass in
the area. Moreover, in his pre-trial report the expert also stated that the
uninsured motorist would not have been able to see the event because he
would have been over a mile away. Thus, his testimony was consistent
with the pre-trial report and not new.

At the charge conference, appellant offered an instruction on
subsequent injuries in which the jury would be first instructed on a
modification of Florida Standard Jury Instruction 501.5(b), asking that the
jury try to separate the damages to her caused by the pickup and by the
uninsured motorist but, if it could not, then it must award all the damages
against the uninsured motorist (USAA). Then, the jury would be asked to
determine whether the incident was one act or two. USAA objected,
because the threshold question was whether this was one accident or two
and asked for a special verdict. The court eventually gave the following
instruction to the jury:

The first issue you are asked to answer is whether or not the
two impacts amounted to one or two accidents. Multiple
impacts will be considered one accident if there is but one
proximate, uninterrupted, and continuing cause of injury.

In answering that question, you must consider the following
factors: The time between each impact, the space or distance
between each impact and whether plaintiff regained control of
her vehicle before the second impact.

If you find that both impacts amounted to one accident, you
will be done and need not decide any other issue.

If you find that both impacts amounted to two accidents, you
will have to decide whether [the uninsured motorist] was
negligent in the operation of his motor vehicle, and if so,
whether that negligence was a contributing legal cause to
plaintiff's injuries.

The first question on the verdict form asked:

1. Was the impact between [appellant] and [the uninsured
motorist] a separate distinct second accident?

The jury returned a verdict finding that the impact between appellant
and the uninsured motorist was not a separate distinct second accident,

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answering “no” to the question. Judgment was entered on the verdict.
This appeal follows.

Analysis

A decision to give or withhold a jury instruction is reviewed for an abuse
of discretion. McConnell v. Union Carbide Corp., 937 So. 2d 148, 152 (Fla.
4th DCA 2006), disapproved on other grounds by Aubin v. Union Carbide
Corp., 177 So. 3d 489 (Fla. 2015).

Appellant argues on appeal that the trial court erroneously instructed
the jury by framing the instruction on whether the two impacts amounted
to one or two accidents. Instead, she contends the court should have
instructed the jury on her requested jury instruction, which asked the jury
“was the second driver [uninsured motorist] negligent in causing the
second impact, and if so, was that negligence a cause of injuries to the
insured.” However, the overriding issue to be decided was whether the
incident was one accident or two for purposes of determining insurance
coverage. Therefore, the court did not err in instructing the jury as it did.

The policy provides coverage for injuries sustained by the insured when
involved in an accident with an uninsured motorist vehicle or a “hit and
run” vehicle. But the maximum liability for one accident is the limit for
“each accident.” Although the policy does not define accident, it limits its
liability further by stating that the maximum limit for one accident is the
most it will pay, regardless of the number of vehicles involved in the
accident. Thus, the policy makes clear that an accident can involve
multiple vehicles.

The definition of “accident” in an insurance policy, where a definition is
not provided, has been subject to multiple interpretations. See State Farm
Fire & Cas. Co. v. CTC Dev. Corp., 720 So. 2d 1072, 1076 (Fla. 1998). Most
of these cases involve its determination in a comprehensive general liability
policy as to whether an insured is liable for an incident. See id.

In Koikos v. Travelers Insurance Co., 849 So. 2d 263 (Fla. 2003), the
court considered an occurrence-based policy which defined an occurrence
as “an accident, including continuous or repeated exposure to
substantially the same general harmful conditions.” Id. at 266. The
insured was sued for the negligent failure to provide security at a party
where two individuals were shot. Id. at 265. To determine whether this
constituted one occurrence or two, the court applied the “cause theory” for
determining the number of occurrences, which is used by a majority of
jurisdictions in the country. Id. at 269. Applying the cause theory, the

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court concluded “in the absence of clear language to the contrary, when
the insured is being sued for negligent failure to provide security,
‘occurrence’ is defined by the immediate injury-producing act and not by
the underlying tortious omission.” Id. at 271. Thus, as two gunshots were
the immediate cause of the injuries, each constituted an occurrence. Id.
at 272.

Although there are no Florida cases which discuss the definition of
“accident” in the context of an auto insurance policy, the Georgia Supreme
Court has considered the definition in a case involving the liability
coverage of an automobile policy based on a question certified by the
United States District Court for the Middle District of Georgia. In State
Auto Property & Casualty Co. v. Matty, 286 Ga. 611, 690 S.E.2d 614 (Ga.
2010), a vehicle insured by State Auto struck a bicyclist and then struck
a second bicyclist within a second or two of each other. Id. at 611. The
insurance policy stated that the liability limit was the “maximum limit of
liability for all damages resulting from any one auto accident.” Id. at 612.
In addition, the policy contained a provision that this was the maximum
liability limit regardless of the number of claims made or vehicles involved
in the auto accident. Id. The policy did not define “accident.” Id.

The court employed the “cause” theory to determine the issue:

Under this theory, the number of accidents is determined by
the number of causes of the injuries, with the court asking if
“ ‘ “[t]here was but one proximate, uninterrupted, and
continuing cause which resulted in all of the injuries and
damage.” ’ ” Appalachian, 676 F.2d at 61 (citations omitted).
In the context of vehicle accidents involving multiple collisions
that do not occur simultaneously (recognizing that it is almost
impossible that such collisions can occur without any
difference in time and place), courts look to whether, after the
cause of the initial collision, the driver regained control of the
vehicle before a subsequent collision, so that it can be said
there was a second intervening cause and therefore a second
accident.

Id. at 613–14 (emphasis supplied) (citations omitted). This construction,
the court found, was consistent with the policy terms:

The cause theory corroborates the intent of the parties to the
insurance contract in this case. As previously noted, the term
“each accident” appears in the limitation of liability section of
the State Auto policy, which clearly contemplates that there

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 can be a single “accident” in which there are multiple vehicles,
injured parties, and claims and provides that for that type of
single accident, there will be a liability limit of $100,000.

Id. at 615–16.

Upon the Matty case returning to federal court, the court denied a
motion for summary judgment on the issue of the number of accidents.
State Auto Prop. & Cas. Co. v. Matty, 719 F. Supp. 2d 1377, 1381 (M.D.
Ga. 2010). The court found the facts were in dispute as to whether the
driver had regained control of her vehicle after hitting the first bicyclist so
that a jury could consider her negligence in steering after the first impact
to be a “second intervening cause and therefore a second accident.” Id.

The facts in this case are the converse of Matty—one victim and two
tortfeasors instead of two victims and one tortfeasor—but the policy
language limiting coverage is nearly identical. Like the policy in Matty, the
policy in this case provided a limit of liability for “each accident,” regardless
of the number of claims made or vehicles involved. Thus, the policy
language contemplated that one accident might involve multiple vehicles,
a not uncommon scenario in automobile accidents.

The trial court employed the Matty definition in its instruction:
“[m]ultiple impacts will be considered one accident if there is but one
proximate, uninterrupted, and continuing cause of injury.” It also
provided the jury with factors to consider in that determination, gleaned
from Matty and other cases. See, e.g., Liberty Mut. Ins. Co. v. Rawls, 404
F.2d 880, 880–81 (5th Cir. 1968). We agree with Matty as to the policy
construction and the court’s instruction was consistent with the cause
theory and the policy language.

Conclusion

Under the uninsured motorist policy provisions, USAA’s limit of liability
applied to one accident, regardless of whether it involved multiple vehicles.
Whether the striking of appellant’s vehicle by the hit and run driver and
then by the uninsured motorist amounted to one accident or two was the
central issue in the case. The trial court appropriately instructed the jury
on how to resolve that issue. We therefore affirm as to all issues.

Affirmed.

CONNER and FORST, JJ., concur.

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 * * *

Not final until disposition of timely filed motion for rehearing.

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