Fort Lauderdale Attorney Scores Defense Win For Man Whose Bumper Caused Fatality
Case: Richard Mercede, for estate of Janet A. Mercede, and Chelsea Mercede v. Erik Boyer and Rita Alvarez Boyer
Case no: CACE07-012416
Filing date: May 31, 2007
Trial dates: Oct. 15-22, 2013
Judge: Broward Circuit Judge William W. Haury Jr.
Plaintiff attorneys: Walter "Skip" Campbell and Blake Dolman, Krupnick Campbell Malone Buser Slama Hancock Liberman, Fort Lauderdale
Defense attorney: Samuel T. Hill, Hill & Lemongello, Fort Lauderdale
Jury verdict: For the defense
Details: In June 2006, Janet Mercede, 52, was returning to her Boca Raton home from a trip to Florida State University with her 16-year-old daughter, Chelsea. She was on Interstate 10 in Madison County east of Tallahassee when she encountered a plastic rear bumper cover in her lane.
Mercede swerved to avoid the object, lost control of her Lexus SUV and rolled over several times. First responders found her body at the scene. Her daughter suffered hand lacerations.
The bumper cover belonged to an older model Nissan driven by Erik Boyer, also from Boca Raton. The traffic investigator did not cite Boyer, who said he was unaware the part had fallen off.
The vehicle was owned by Boyer's mother. Her insurer, Allstate, tendered the maximum policy amount of $10,000, but it was refused.
The bumper cover was not preserved as evidence. Boyer took the car to be repaired shortly after the accident. The body shop replaced the bumper and discarded the old one.
Hill said the Mercede family filed separate liability claims in Palm Beach and Broward counties. Defendants included Toyota Motor Co., maker of the Lexus, Nissan, the dealers that sold the cars and the Boyers.
Over the next several years, the primary focus of litigation was product liability claims against both manufacturers, Hill said. Their main target was the Lexus sport utility vehicle, which was attacked as being prone to rolling over.
The cases were consolidated in Broward, and the Mercedes reached confidential settlements with the manufacturers, Hill said.
Before trial, the plaintiffs asked the Boyers to agree to a consent judgment of $3 million.
Plaintiffs case: Campbell did not elaborate on his case.
Hill anticipated the Boyers would eventually be dismissed as defendants, but that didn't happen. Before trial, the plaintiffs asked the Boyers to agree to a consent judgment of $3 million.
Campbell acknowledged Boyer said he was unaware the bumper cover came off. At trial, Campbell suggested bumper covers do not spontaneously fall off, Hill said. Campbell argued Boyer must have known the cover was loose and might come off.
The plaintiffs expert witness was Bryant Buchner, an accident reconstruction specialist from Tallahassee. He testified someone overtightened a screw on one side of the bumper. Over time, the plastic cover wore out at the screw hole and came loose, allowing wind force to blow it off.
Two other motorists driving the interstate on the day of the accident testified they saw the cover flapping and dragging.
Campbell asked the jury to award $10 million.
Defense case: The bumper cover was not preserved as evidence. Boyer repaired the car shortly after the accident. The body shop replaced the bumper and discarded the old one.
Boyer was traveling with a friend the day of the accident. Both of them denied at trial that they noticed anything amiss with the bumper. It was not until another driver chased down Boyer and told him about the cover in the road that he knew it was missing. Boyer returned to the scene and learned about the fatality, Hill said.
"They wanted to proceed to trial to get the largest judgment they could obtain and then sue Allstate on a theory that Allstate was not properly defending the case," Hill said. "I was representing the Boyers. I was not representing Allstate."
Hill offered to accept a consent judgment but only against the mother, who had no assets. The offer was refused.
On cross-examination, Hill pointed out an apparent contradiction in Buchner's testimony. He was deposed about six years earlier during preparation for the product liability case.
"He said he had no opinion regarding why the cover came off," Hill said. "Once Toyota was out of the case, he came up with the screw theory."
Of the two witnesses who claimed to see the cover flapping, Hill impeached them with their statements to police. "They had given sworn statements but not mentioning the bumper cover," Hill said.
Outcome: The jury found no negligence against the Boyers.
Quote: "Erik was in his twenties and just starting an engineering career. If there was no bad faith found against Allstate, that judgment would've been recorded forever against Erik," Hill said. "He would have to declare bankruptcy."
Post-verdict: Haury denied a plaintiffs motion for a new trial. A motion to interview the jurors was granted.
A plaintiff attorney had noticed that the style of the case on a paper calendar sheet outside Haury's courtroom listed Toyota as a defendant. Because both sides agreed the manufacturers would never be mentioned, the jurors were asked whether they saw the calendar. All said no.
Haury entered final judgment on Jan. 17. Mercede has not filed a notice of appeal.