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Florida Fifth DCA rules that trial court erred in allowing evidence of defendant’s intoxication in the compensatory damages phase of bifurcated motor vehicle negligence drunk driving case when the defendant had conceded pre-trial to liability for both compensatory and punitive damages

On February 12, 2021, in McKinney, et al.v. Graham, No. 5D18-3265, the Florida Fifth DCA reversed a $2.6 million verdict in favor of the plaintiff in a motor vehicle negligence drunk driving case and remanded for a new trial. The trial was conducted in a bifurcated fashion with a compensatory damages phase followed by a punitive damages phase. The reversal resulted from the trial court’s erroneous admission of evidence of the defendant’s intoxication in the compensatory damages phase of the case despite the defendant having conceded prior to trial as to both liability and punitive damages. The plaintiff capitalized upon that ruling to discuss the intoxication in both his opening statement and his closing argument and to present evidence on that issue. The Fifth DCA noted that in W.R. Grace & Company-Conn. v.Waters, 638 So. 2d 502 (Fla. 1994), the Florida Supreme Court developed a procedure for bifurcating cases in which both compensatory damages and punitive damages are at issue. Under the described procedure, the jury, in the first phase, should hear evidence related to liability for actual damages, the amount of actual damages, and liability for punitive damages. In the second phase, the same jury should hear evidence as to the amount of punitive damages. The Fifth DCA additionally noted that while Grace neither contemplated nor addressed the circumstances presented in the instant case where the defense stipulates to both negligence and liability to punitive damages, this issue has been addressed by the Second and Third DCAs and both DCAs have ruled that it is improper to allow intoxication evidence in the first phase when liability for both negligence and punitive damages has already been conceded. See Swanson v. Robles, 128 So. 3d 915 (Fla. 2d DCA 2013); GEICO General Insurance Co. v. Dixon, 209 So. 3d 77 (Fla. 3d DCA 2017). The Fifth DCA distinguished its own previous decision in St. Paul Mercury Insurance Co. v. Coucher, 837 So. 2d 483 (Fla. 5th DCA 2002), and followed the precedents set by the Second and Third DCAs.