Florida Verdicts

Amount:

$513,219

Type:

Verdict-Plaintiff

State:

Florida

Venue:

Lee County

Court:

Lee County Circuit Court, 20th

Injury Type(s):

Case Type:

Motor Vehicle – Pedestrian; Business Law – Breach of Duty of Good Faith and Fair Dealing

Case Name:

Daniel D. Smith and Kimberly K. Smith v. Coast to Coast Recovery of South Florida, Inc.,
No. 12-CA-00874

Date:

May 16, 2014

Plaintiff(s):

Daniel D. Smith (Male, 58 Years), 

Kimberly K. Smith (Female)

Plaintiff Attorney(s):

Charles D. Durkee;
Roberts & Durkee, PA;
Coral Gables,
FL,
for
Daniel D. Smith, Kimberly K. Smith ■ Vincent J. Tubiana;
Roberts & Durkee, PA;
Coral Gables,
FL,
for
Daniel D. Smith, Kimberly K. Smith

Plaintiff Expert(s):

Donn Fuller;
M.D.;
Orthopedics;
Cape Coral,
FL called by
Charles D. Durkee, Vincent J. Tubiana ■ John Kagan;
M.D.;
Orthopedic Surgery;
Fort Myers,
FL called by
Charles D. Durkee, Vincent J. Tubiana ■ Mark Lacek;

Vehicles Repossession;
Orlando,
FL called by
Charles D. Durkee, Vincent J. Tubiana ■ Robert Wagar;
M.D.;
Internal Medicine;
Fort Myers,
FL called by
Charles D. Durkee, Vincent J. Tubiana

Defendant(s):

Coast to Coast Recovery of South Florida Inc.

Defense Attorney(s):

Scott A. Shelton;
Cole Scott & Kissane P.A.;
Orlando,
FL,
for
Coast to Coast Recovery of South Florida Inc.

Insurer(s):

Star Insurance Co. for Coast to Coast Recovery of South Florida Inc.

On Oct. 5, 2011, at 3:45 a.m., plaintiff Daniel Smith, 58, a retiree, received a knock on the door of his Fort Myers home by a repossession agent, who advised him that he was repossessing his vehicle. As the recovery agent drove off with the vehicle, Smith’s arm bracelet got caught on the passenger’s side mirror of the vehicle. Smith claimed he injured his right hip, neck and back. Smith sued the repo agent’s employer, Coast to Coast Recovery of South Florida Inc., alleging that the agent breached the standards that are applicable to recovery agents. Smith’s counsel claimed that Smith tried unsuccessfully to explain to the recovery agent that he was up to date on his car payments. They claimed that the recovery agent refused to provide Smith with any written proof that he was entitled to take his car. They claimed the recovery agent told Smith he would get his business card from his tow truck. They claimed that Smith followed the recovery agent as he left Smith’s front door to go to his truck. They claimed that the recovery agent jumped into his truck and floored the gas pedal in an attempt to get away from the home with Smith’s car in tow. They claimed the recovery agent failed to notice that Smith had leaned against his car. They claimed that as the recovery agent gunned his tow truck, Smith’s military 5/50 bracelet got caught on the side mirror. Smith claimed he was dragged 150 feet until the side mirror broke and threw him to the ground. Smith’s automotive repossession expert testified that the recovery agent breached his standard of care by knocking on Smith’s door at 3:45 in the morning. He testified that repossession agents in Florida must adhere to the standards set forth in Florida law. He further testified that recovery agents cannot repossess a car once they "breach the peace." He testified that knocking on Smith’s door at 3:45 in the morning was in and of itself a breach of the peace. He also testified that an agent has the right and obligation to grab a vehicle and go, a process known as hook and book, and not to then go and initiate contact with a debtor who is likely going to be upset at 3:45 in the morning. He further testified that the standard is to immediately drive away after successfully securing possession of a vehicle. Defense counsel argued that Smith was comparatively negligent. He claimed that a verbal altercation ensued after the recovery agent knocked on Smith’s door. He claimed the recovery agent knocked on Smith’s door because he wanted to do Smith a favor by requesting that he give him the vehicle’s key so he could return it to the creditor without Smith’s having to pay a fee. He claimed Smith became hostile and angry. He claimed the recovery agent then walked away from Smith’s door to return to his truck. Defense counsel claimed that Smith followed the recovery agent and started to chase the car as the agent drove away with it. He further claimed that Smith jumped on the side of the moving car and his bracelet got caught in the vehicle’s mirror and he fell to the ground. He argued that the recovery agent had properly hooked up Smith’s vehicle. He claimed that Smith was well away from the vehicle prior to the agent’s driving off. He also claimed there was no physical evidence that Smith was dragged 150 feet on the ground before falling. He also argued that it was not a breach of the standard for the recovery agent to knock on a debtor’s door at 3:45 in the morning to request the key to a vehicle being lawfully repossessed.

Smith’s wife drove him to Cape Coral Hospital after the incident. Smith suffered a femoral head fracture of his right hip. He underwent hip surgery with three pins implanted to reconstruct the femoral head bone to the femur and was discharged a week later. Smith claimed he continued to have pain in his hip joint after surgery and difficulty walking. In 2013, he underwent total hip replacement surgery. He also claimed he suffered an aggravation of pre-existing neck and back injuries. Smith had two prior cervical and lumbar fusions and mobility and lifting limitations. Smith’s treating orthopedic surgeons testified that his hip fracture and subsequent surgeries were the result of his falling during the repossession incident. They also testified that his pre-existing mobility and lifting limitations became worse as a result of his hip fracture. Smith claimed he suffered a further decline in his quality of life as a result of his injuries in the repo incident. A Vietnam veteran, he had been declared 100 percent disabled as a result of neck and back injuries suffered while serving in Vietnam. Smith sought to recover damages for past medical costs and past and future pain and suffering. Smith’s wife, Kimberly Smith, joined the action on a consortium claim. Defense counsel argued that Smith had a good result from his initial hip surgery. He argued that Smith had pre-existing chronic rheumatoid arthritis that caused a need for the hip replacement. He further argued that there was no aggravation of Smith’s pre-existing neck and back condition as a result of the accident. He argued that Smith’s mobility and lifting limitations were the same as they were prior to the accident.

The jury found that there was negligence on behalf of Coast to Coast Recovery that was a cause of injury to Smith. It also found that there was negligence on the part of Smith that was a cause of his injuries. It found the defendant 70 percent negligent and Smith 30 percent negligent. The jury determined that Smith’s damages totaled $413,219. It also determined that Smith’s wife’s damages totaled $100,000. Thus, the total award was $513,219. Because of comparative negligence, the award was reduced to $359,253.

Daniel D. Smith: $48,219 Personal Injury: Past Medical Cost; $365,000 Personal Injury: Past Pain And Suffering; Kimberly K. Smith: $100,000 Personal Injury: loss of consortium

Actual Award:

$359253

Judge:

Joseph C. Fuller

Demand:

$550,000

Offer:

$40,000

Trial Length:

3
 days

Trial Deliberations:

4
 hours

This report is based on information that was provided by plaintiffs’ and defense counsel.