Pereira v. Jones
5th DCA, 3/22/24
5D22-2197, 2024 WL 1220883
Per Curiam
Topics: Apportionment; Sever
Quick Take: Plaintiff had two car accidents and wanted to sue defendants in both accidents in a single case. At least in the 5th DCA, a plaintiff who is injured in two successive accidents may bring one suit where the accidents cause the (1) same or similar injuries and (2) it is difficult or impossible to apportion the injuries between the two tortfeasors. Where the accidents or injuries occur in different counties, all of the defendants may be sued together in one of the counties in which one of the causes of action arose. The trial court erred in denying plaintiff’s request to amend the complaint to allege that the accidents caused the same or similar injuries such that it was difficult or impossible to apportion the injuries and severing the cases. On remand, the plaintiff can fix the complaint to make the proper allegation so that he can bring a single case with regard to both accidents.
Full Take: Plaintiff Pereira was involved in two successive motor vehicle accidents, one in Lake County and one in Orange County. He sued defendants in both accidents in the same case.
GEICO Indemnity Company (“GEICO”) moved to sever and transfer a portion of the complaint. GEICO argued that Pereira failed to allege in his complaint that it was difficult or impossible to apportion his injuries arising from the two different accidents. Pereira counters that Florida law allows for a plaintiff to try together, in a single case, two personal injury claims that result in injuries that are difficult or impossible to apportion and that he should be given leave to amend his complaint to include language alleging such injuries where, as here, he has not abused the privilege to amend.
The trial court granted GEICO’s motion and severed the two accidents, transferring the Lake County accident to a court in Lake County. The trial court reasoned that the two accidents were not sufficiently intertwined and could be severed because they involved different counties, different injured parties, and different patient treatments; they also occurred over three years apart.
Pereira appealed. The Fifth DCA agreed with Pereira that the trial court’s approach, which focused on the accidents themselves rather than whether the plaintiff's injuries can be apportioned, resulted in error.
Under Froats v. Baron, 883 So. 2d 885, 887 (Fla. 5th DCA 2004), a “plaintiff who is injured in two successive accidents may bring one suit where the accidents cause the same or similar injuries and it is difficult or impossible to apportion the injuries between the two tortfeasors.” In addition, “where the accidents or injuries occur in different counties, all of the defendants may be sued together in one of the counties in which one of the causes of action arose.”
A plaintiff bringing such an action must clearly allege in his complaint that his injuries “in the two accidents were difficult or impossible to apportion between defendants.” The focus is on the plaintiff's injuries and whether they are difficult or impossible to apportion, not whether the circumstances of the accident are alike.
Pereira’s complaint lacked an allegation that his injuries were unapportionable, and trial court did not allow Pereira to amend his complaint despite Pereira requesting that he be given leave to do so. This was error. Pereira's request to amend was timely, and he had not abused the privilege of amendment.
As to possible prejudice, GEICO's motion recognized the law, recognized the failure to allege was a pleading problem, and, thus, there is no prejudice in allowing Pereira to make the necessary allegation. REVERSED AND REMANDED.