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Florida Fifth DCA finds that trial court erred in allowing plaintiff who had not specifically pled aggravation of a preexisting injury to raise claim at trial

On March 25, 2022, in State Farm v. Davis, No. 5D20-1595, the Florida Fifth DCA reversed a judgment for the plaintiff in a motor vehicle negligence case and remanded for a new trial after concluding that the trial court erred in permitting an unpled claim for aggravation damages to be presented at trial and submitted to the jury. The Fifth DCA approvingly cited Carnival Cruise Lines v. Nunez, 646 So. 2d 831, 833 (Fla. 3d DCA 1994) for the principle that a claim for special damages such as the aggravation of a preexisting condition must be pled and it is per se reversible error for a trial court to permit evidence of such damages in the absence of such a pleading. The Fifth DCA noted that the only exception to this rule is codified in Fla. R. Civ. P. 1.190(b), which states that “[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. The Court concluded that given State Farm’s initial requests and repeated objections aimed at excluding aggravation of preexisting conditions from the trial, any suggestion that the issue was tried by consent was unsupported. Judge Cohen, in a concurrence, agreed with the majority’s alternative finding that the evidence was in any event insufficient to satisfy a claim of aggravated damages, but disagreed with the majority’s conclusion that the failure to plead aggravated damages should have barred its consideration at trial. Judge Cogen opined that the majority’s position reflected a per se reversible error standard instead of focusing on whether the objecting party was prejudiced as a result of surprise, noting that there was no element of surprise in this case. Judge Cohen cited Land Title of Cent. Fla., LLC v. Jimenez, 946 So. 2d 90, 93 (Fla. 5th DCA 2006) (“The purpose of the special damages rule is to prevent surprise at trial” (citing Fla. R. Civ. P. 1.120(g); and Bialkowicz v. Pan Am. Condo. No. 3, Inc., 215 So. 2d 767, 770 (Fla. 3d DCA 1968) (noting that “the very character [of special damages] requires that opposing counsel be apprised of their existence in order to be prepared at trial”). The Fifth DCA also noted that under the circumstances of this case it was not necessary for State Farm to have sought a continuance at trial to preserve the issue for appellate review, citing MGH Enters. Inc. v. Nunnally, 536 So. 2d 317, 319 (Fla. 3d DCA 1988). In Nunally, the Third DCA found that it was not necessary to preserve error for the defendant to ask for a continuance when a timely objection was made as to the propriety of the amendment seeking special damages, even though the same may be required when objecting to an amendment which changes the theory of a case.

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