       IN THE SECOND DISTRICT COURT OF APPEAL, LAKELAND, FLORIDA


                                      June 21, 2017


RING POWER CORPORATION; DIESEL )
CONSTRUCTION COMPANY; and MARK )
DAVID QUANDT,                       )
                                    )
           Appellants,              )
                                    )
v.                                  )                   Case No. 2D16-353
                                    )                            2D16-397
GERARDO CONDADO-PEREZ and           )
NANCY RODRIGUEZ-VENTURA,            )                   CONSOLIDATED
                                    )
           Appellees.               )
___________________________________ )



BY ORDER OF THE COURT:


       Appellants' unopposed motion for rehearing and/or clarification of opinion is

granted. Appellees' motion for clarification is granted. The prior opinion dated April 7,

2017, is withdrawn, and the attached opinion is issued in its place. No further motions

for rehearing will be entertained.



I HEREBY CERTIFY THE FOREGOING IS A
TRUE COPY OF THE ORIGINAL COURT ORDER.




MARY ELIZABETH KUENZEL, CLERK
                                            IN THE DISTRICT COURT OF APPEAL
                                            OF FLORIDA
                                            SECOND DISTRICT




RING POWER CORPORATION; DIESEL )
CONSTRUCTION COMPANY; and MARK )
DAVID QUANDT,                       )
                                    )
           Appellants,              )
                                    )
v.                                  )               Case No. 2D16-353
                                    )                        2D16-397
GERARDO CONDADO-PEREZ and           )
NANCY RODRIGUEZ-VENTURA,            )
                                    )
           Appellees.               )
___________________________________ )

Opinion filed June 21, 2017.

Appeal from the Circuit Court for
Pasco County; Linda H. Babb, Judge.

Carrie Ann Wozniak of Akerman LLP,
Orlando; and Katherine E. Giddings of
Akerman LLP, Tallahassee, for Appellants.

Barbara Green of Barbara Green, P.A.,
Coral Gables; and Betsey T. Herd of
Morgenstern & Herd, P.A., Tampa, for
Appellees.



BLACK, Judge.

             In these consolidated appeals, Ring Power Corporation, Diesel

Construction Company, and Mark David Quandt (collectively, Ring Power) challenge

the judgments entered in favor of Gerardo Condado-Perez (Mr. Condado) and Nancy
Rodriguez-Ventura (Ms. Rodriguez). Ring Power contends that two evidentiary rulings

of the trial court were erroneous and contributed to the verdict in favor of Mr. Condado

and Ms. Rodriguez. We agree with Ring Power, reverse the final judgments, and

remand for a new trial. Because we reverse the final judgments, we also reverse the

costs judgments predicated on those judgments.1

              The underlying negligence action arose out of a motor vehicle accident

that occurred on the afternoon of December 8, 2012. While in the course and scope of

his employment with Ring Power, Mr. Quandt was driving a large service truck owned

by Diesel Construction northbound on I-75 in Pasco County. Mr. Quandt's truck collided

with a Ford Expedition driven by Mr. Condado and occupied by Ms. Rodriguez, which

was also travelling northbound on I-75. Mr. Quandt's truck then collided with a third

vehicle. It was undisputed that there was a mattress in the northbound lanes of the

interstate, causing cars to stop or swerve unexpectedly. Further, the parties agreed that

there were two northbound lanes of I-75, a median between the north and southbound

lanes, and a narrow shoulder adjacent to that median. The agreed-upon facts end

there; the parties gave opposing versions of what occurred.

              Mr. Condado alleged that he did nothing to contribute to the accident. He

claimed that for two or more miles prior to the accident he had been travelling in the left

lane. He stated that he saw traffic slowing ahead of him due to someone pulling a

mattress out of the roadway and claimed he did not suddenly swerve from the right lane



              1
               The trial court entered two partial final judgments as to damages—one in
favor of Mr. Condado and one in favor of Ms. Rodriguez—and reserved jurisdiction to
award fees and costs. Ring Power appealed those judgments. The trial court
subsequently entered two costs judgments which were also appealed. This court
consolidated the appeals for all purposes.


                                           -2-
into the left lane in front of Mr. Quandt's vehicle. Mr. Condado testified that he saw Mr.

Quandt's vehicle directly behind him; he alleged that Mr. Quandt was driving too fast

and following too closely. When it appeared that Mr. Quandt's vehicle was going to

rear-end Mr. Condado's, Mr. Condado steered his vehicle left, into the narrow shoulder.

He testified that because of the narrowness of the shoulder, he was unable to

completely exit the left lane of the interstate. He further testified that upon steering his

vehicle into the left shoulder, the rear of his vehicle was forcefully struck by Mr.

Quandt's large service truck, causing Mr. Condado's vehicle to roll over. As a result of

the roll over, Mr. Condado and Ms. Rodriguez suffered significant injuries.

              Conversely, Mr. Quandt claimed that the accident was caused entirely by

Mr. Condado suddenly and unexpectedly swerving from the right lane into the left lane

and then into the left shoulder, directly into Mr. Quandt's path of travel. Mr. Quandt

testified that the mattress was less than 100 yards away when the traffic in front of him

reacted by slowing and stopping. He testified that he was able to reduce his speed

significantly and that he attempted to avoid the collision with Mr. Condado's vehicle by

moving left into the shoulder and median. But because Mr. Condado swerved further

into the median in front of him, the accident was unavoidable.

              Each party called an expert witness to advance his respective theory of

the case. Mr. Condado called Dr. Elliott Stern, a professional engineer, who concluded

that Mr. Quandt caused the accident by driving too fast for the conditions and the

surrounding slowing vehicles. Mr. Quandt called Arnold Wheat, an accident investigator

certified in traffic reconstruction, who concluded that Mr. Condado's vehicle dramatically




                                            -3-
and significantly swerved to the left—into and across Mr. Quandt's path of travel—

causing the accident.

             The critical evidentiary rulings that Ring Power submits necessitate a new

trial both involve an alleged admission by Mr. Condado made to Kyle Paton, a Pasco

County Fire Rescue paramedic and emergency medical technician, who arrived on the

accident scene shortly after 911 was called. In addition to providing medical assistance

to Ms. Rodriguez, Mr. Paton spoke with Mr. Condado about the accident. Based on that

conversation, Mr. Paton prepared a mandatory patient care report (EMS Report). The

EMS Report provided that "Husband states he swerved to avoid a mattress in the road

and lost control of the car and went off the road" (Mr. Condado's statement). Mr. Paton

prepared the EMS Report on the day of the accident.

             Prior to trial, Mr. Condado filed a motion in limine to prevent the above-

quoted statement from being introduced as evidence. Although he stipulated to the

authenticity of the EMS Report, he argued that the statement within the EMS Report

was not trustworthy because it referred to Mr. Condado as Ms. Rodriguez's "husband,"

but the two were not married. Mr. Condado also argued that the statement was

inadmissible because it lacked a proper foundation; he claimed that he is not a

proficient English speaker and denied making the statement at all. Ring Power filed a

response to the motion in limine noting that Mr. Condado testified in deposition that he

had been married to Ms. Rodriguez for ten years. Ring Power further argued that Mr.

Condado's denial of the statement was a matter of weight and credibility for the jury

rather than admissibility. Ring Power contended that the statement was admissible as a

spontaneous statement, excited utterance, and admission by a party opponent pursuant




                                           -4-
to sections 90.803(1), (2), and (18), Florida Statutes (2015). Ring Power also noted that

although the statement was hearsay within hearsay, it was admissible because both the

EMS Report and Mr. Condado's statement within the report were subject to an

exception under section 90.803.

             Finding the statement inadmissible through the EMS Report, the trial court

granted the motion in limine.2 At trial, the court denied Ring Power's request to

reconsider the ruling on the motion in limine and its request to consider the EMS Report

in its entirety as a recorded recollection pursuant to section 90.803(5). The court also

excluded from evidence Mr. Paton's deposition testimony, which included a discussion

of Mr. Condado's statement and confirmed that Mr. Paton included in his report what he

had been told by Mr. Condado at the scene.

             In opening statements, Mr. Condado argued that although the defense

would suggest that Mr. Condado swerved and caused the accident, the evidence would

prove otherwise. At that time, Ring Power renewed its request to use Mr. Condado's

statement in the EMS Report based on Mr. Condado's opening statement. The court

denied the request.

             During trial, Mr. Condado testified that he was very nervous after the

accident and thought he was going to die when his vehicle was rolling over. Ring

Power again advanced its argument that Mr. Condado's statement in the report was a

spontaneous statement or excited utterance and should be admitted. It marked Mr.




             2
               Initially, the trial court ruled that Mr. Condado's statement could be
admitted through the testimony of Mr. Paton but that it could not be admitted through
the EMS Report. This appears to be because the trial court believed the EMS Report
itself was inadmissible hearsay.


                                           -5-
Paton's deposition transcript and video as well as the unredacted EMS Report as

exhibits and requested that the court admit them and publish them to the jury. The

court declined to reconsider its prior ruling and considered the exhibits as proffers. At

that time, Mr. Condado proffered Mr. Paton's deposition cross-examination testimony.

The redacted EMS Report was introduced not by Ring Power but by Mr. Condado; it

was admitted into evidence without objection. Subsequently, the trial court again

declined Ring Power's request to reconsider its prior ruling on the admission of Mr.

Condado's statement.

              At the close of the evidence, the case was submitted to the jury, which

was asked to answer three questions:

              1.   Was there negligence on the part of Mark David
              Quandt which was a legal cause of injury to [Mr. Condado
              and Ms. Rodriguez]?

              2.    Was there negligence on the part of Gerardo
              Condado[] which was a contributing legal cause of injury to
              [Mr. Condado and Ms. Rodriguez]?

              3.    Was there negligence on the part of an unknown
              person responsible for the presence of a mattress on the
              roadway which was a contributing legal cause of injury to
              [Mr. Condado and Ms. Rodriguez]?

The jury answered yes to all three questions, and it assigned 65% liability to Mr.

Quandt, 33% liability to Mr. Condado, and 2% liability to an unknown person

responsible for the mattress in the roadway. The total damages awarded to Ms.

Rodriguez were $330,557.65 for past and future medical expenses and $75,000 for pain

and suffering; the total damages awarded to Mr. Condado were $193,486.35 for past

and future medical expenses and $50,000 for pain and suffering.




                                           -6-
              Ring Power moved for a new trial, reiterating its prior arguments on the

admissibility of Mr. Condado's statement and Mr. Paton's deposition. That motion was

denied.

              On appeal, Ring Power contends that the trial court abused its discretion

in making the evidentiary determinations that Mr. Condado's statement in the EMS

Report and Mr. Paton's deposition were inadmissible and that such errors cannot be

considered harmless. We agree.

              The trial court erred in granting Mr. Condado's motion in limine and in

denying Ring Power's repeated requests to introduce Mr. Condado's statement into

evidence. That the EMS Report itself was admissible is not contested here; it is only

the admissibility of Mr. Condado's statement within that report that is at issue.3 Notably,

the EMS Report was introduced into evidence by Mr. Condado; there was no objection

to its admission. Ring Power sought to introduce Mr. Condado's statement within the

EMS Report as substantive evidence, contending that the statement met a number of

hearsay exceptions. Because we conclude that Mr. Condado's statement was an

admission, and therefore admissible pursuant to section 90.803(18)(a), we decline to




              3
               Ring Power contends that Mr. Condado stipulated to the admission of the
EMS Report as a business record under section 90.803(6) by agreeing that a records
custodian was unnecessary. See Kelly v. State Farm Mut. Auto. Ins., 720 So. 2d 1145,
1146 (Fla. 5th DCA 1998); Phillips v. Ficarra, 618 So. 2d 312, 313 (Fla. 4th DCA 1993).
Mr. Condado disagrees. However, we need not consider any stipulation because the
admission of the EMS Report is not at issue on appeal; moreover, Mr. Condado himself
introduced the EMS Report into evidence at trial.



                                           -7-
address whether it was also a spontaneous statement or excited utterance or could

otherwise have been admitted as a recorded recollection.4

              An admission is "[a] statement that is offered against a party and is . . .

[t]he party's own statement in either an individual or a representative capacity." §

90.803(18)(a). That is, the statement need only be (1) a party's and (2) offered against

that party to qualify as an admission. Of course, the admission must also be relevant—

"tending to prove or disprove a material fact." § 90.401. Statements of a party offered

by an opponent regarding causation in negligence actions are generally considered

admissions. See McKay v. Perry, 286 So. 2d 262, 263 (Fla. 2d DCA 1973) (stating that

party's statement to neighbor regarding ownership of a dog in a dog-bite case would be

admissible as an admission); Otis Elevator Co. v. Youngerman, 636 So. 2d 166, 167 n.1

(Fla. 4th DCA 1994) (noting that plaintiff's statement to nurse regarding fall was an

admission); Wilkinson v. Grover, 181 So. 2d 591, 593-94 (Fla. 3d DCA 1965)

(concluding that plaintiff's statements to physician as to how fast plaintiff was driving at

time of accident were admissions). However, the statements of a party need not speak

directly to liability to be admissions. See, e.g., Jones v. Alayon, 162 So. 3d 360, 365

(Fla. 4th DCA 2015) (concluding that statement by party regarding how money was

spent was an admission). "It is well settled that an admission against interest may be

introduced into evidence as substantive evidence of the truth of the matter stated."

Seaboard Coast Line R.R. Co. v. Nieuwendaal, 253 So. 2d 451, 452 (Fla. 2d DCA

1971); accord McKay, 286 So. 2d at 263. "This is so even though the person making



              4
               See, e.g., Nat'l Union Fire Ins. Co. of Pittsburgh v. Blackmon, 754 So. 2d
840, 843-44 (Fla. 1st DCA 2000); Visconti v. Hollywood Rental Serv., 580 So. 2d 197,
198 (Fla. 4th DCA 1991) (Garrett, J., concurring).


                                            -8-
the admission against interest subsequently denies making such admission." Seaboard

Coast Line, 253 So. 2d at 452; see also Charles W. Ehrhardt, Florida Evidence §

803.18 (2014 ed.) ("If a statement is offered as substantive evidence under [section

90.803(18)] it is not necessary to lay a foundation by asking the individual who made

the statement whether he or she did so.").

             Here, Ring Power sought to introduce Mr. Condado's statement—

attributed to Mr. Condado and included in a properly admitted business medical

record—as evidence against Mr. Condado. It clearly meets the statutory requirements

of an admission.

             Mr. Condado maintains that because he challenged the trustworthiness of

the EMS Report and his statement within it, his statement was properly excluded.

Provided that medical records, including EMS records, otherwise meet the requirements

of a business record under section 90.803(6)(a), their trustworthiness is presumed.

Nat'l Union Fire Ins. Co. of Pittsburgh v. Blackmon, 754 So. 2d 840, 842-43 (Fla. 1st

DCA 2000) (citing Love v. Garcia, 634 So. 2d 158, 160 (Fla. 1994)). However, the party

opposing the introduction of the medical records may rebut that presumption. Love, 634

So. 2d at 160 ("[T]he burden is on the party opposing the introduction to prove the

untrustworthiness of the records.").

             Here, the EMS Report was introduced into evidence by Mr. Condado;

there was no opposition to its admission. Ring Power points out the inconsistency in

Mr. Condado's position on his statement within the EMS Report based on his

introduction of the report: by introducing the report Mr. Condado conceded the




                                             -9-
trustworthiness of the document and yet maintains that a singular statement within it is

not trustworthy.

              Mr. Condado does not acknowledge that inconsistency or the fact that the

EMS Report was appropriately admitted into evidence. Rather, Mr. Condado maintains

that his statement is untrustworthy because it refers to Mr. Condado as Ms. Rodriguez's

"husband" when in fact Mr. Condado and Ms. Rodriguez are not married and because

Mr. Condado is not proficient in English. He also argues that his statement is

untrustworthy because the report does not mention that his vehicle rolled over in the

accident. As to the former argument, in his deposition and at trial Mr. Condado

admitted that he sometimes referred to Ms. Rodriguez as his wife and that he may have

done so on the date of the accident.

              As to the latter argument, Mr. Condado fails to recognize that his

statement is admissible under a hearsay exception separate and distinct from the

business record exception; and the admission exception has no trustworthiness

component. While hearsay evidence is generally excluded as "inherently untrustworthy

because the party against whom such evidence is offered has had no opportunity to test

its veracity by cross-examining the statement at the time the statement was made,"

admissions of a party opponent are an exception to the rule because "a party can hardly

complain that he had no opportunity to cross-examine himself at the time the

admissions were made." Metropolitan Dade County v. Yearby, 580 So. 2d 186, 188

(Fla. 3d DCA 1991). That is, there is no inherent untrustworthiness in the admission.

              Although Mr. Condado's statement was not admissible as a statement for

purposes of medical diagnosis or treatment or as part of the business records




                                          - 10 -
exception, see Nat'l Union Fire, 754 So. 2d at 843, it was otherwise admissible as an

admission, see State Farm Fire & Cas. Co. v. Higgins, 788 So. 2d 992, 1007-08 (Fla.

4th DCA 2001) ("Ingalls's statements to various physicians were admissible as

admissions of a party under section 90.803(18)(a). It was not necessary to also qualify

the statements under section 90.803(4), as statements for the purpose of medical

diagnosis or treatment."). See also Charles W. Ehrhardt, Florida Evidence § 803.18

(2014 ed.) ("The evidence [meeting the requirements of section 90.803(18) as an

admission] is admissible under the exception, and the party who made the out-of-court

statement may offer evidence to dispute its truthfulness."). Moreover, any objection Mr.

Condado had to the trustworthiness of the document as a whole—including those based

on facts absent from the report—was waived by his introduction of the report. Cf. Ohler

v. United States, 529 U.S. 753, 755 (2000) ("Generally, a party introducing evidence

cannot complain on appeal that the evidence was erroneously admitted."); Dorfman v.

Schwabl, 777 So. 2d 427, 429-30 (Fla. 5th DCA 2000) ("We cannot find the court erred,

when Dorfman raised the issue about which he now complains.").

              It is apparent that the trial court's evidentiary rulings on the admissibility of

Mr. Condado's statement were abuses of discretion. However, "[i]n order for an

appealing party to be successful in a challenge to a judgment based on 'the improper

admission or rejection of evidence,' the appellate court must conclude 'after an

examination of the entire case . . . that the error[s] complained of ha[ve] resulted in a

miscarriage of justice.' " Fla. Inst. for Neurologic Rehab., Inc. v. Marshall, 943 So. 2d

976, 979 (Fla. 2d DCA 2006) (quoting § 59.041, Fla. Stat. (2006)). The court's

determination of whether there has been a miscarriage of justice is based on a




                                            - 11 -
harmless error analysis. Special v. W. Boca Med. Ctr., 160 So. 3d 1251, 1256-57 (Fla.

2014). "To test for harmless error, the beneficiary of the error has the burden to prove

that the error complained of did not contribute to the verdict. Alternatively stated, the

beneficiary of the error must prove that there is no reasonable possibility that the error

contributed to the verdict." Id. at 1256. Mr. Condado has not established that the

exclusion of his statement did not contribute to the verdict. Mr. Condado's statement

was admissible, highly relevant, and not unfairly prejudicial. Cf. Opsincs v. State, 185

So. 3d 654, 658-59 (Fla. 4th DCA 2016) (concluding that defendant's statement after

accident had little probative value and was highly prejudicial); Kutner v. Dep't of

Highway Safety & Motor Vehicles, 568 So. 2d 973, 974 (Fla. 3d DCA 1990) (concluding

that exclusion of evidence was proper where its probative value was substantially

outweighed by the danger of unfair prejudice given other evidence presented).

              The exclusion of Mr. Condado's statement was not harmless. There were

two distinct theories advanced about the cause of the accident. Mr. Quandt's defense

was that Mr. Condado caused the accident by suddenly swerving. Mr. Condado's

statement in the EMS Report expressly corroborated the defense and Mr. Quandt's

theory of liability. See Phillips v. Ficarra, 618 So. 2d 312, 314 (Fla. 4th DCA 1993)

(concluding that error in excluding medical records was not harmless where records

contradicted defendant's theory of the case). Whether Mr. Condado swerved into Mr.

Quandt's path or Mr. Quandt was driving too fast and too closely were issues for the jury

to decide after weighing the evidence, including Mr. Condado's admission. See

Seaboard Coast Line, 253 So. 2d at 452; Wilkinson, 181 So. 2d at 594. Accordingly,

Ring Power is entitled to a new trial as to liability.




                                             - 12 -
              Although the error in excluding Mr. Condado's statement necessitates a

new trial, we briefly comment on the error in excluding Mr. Paton's deposition. The

record establishes that Ring Power attempted to introduce and publish Mr. Paton's

deposition to the jury; however, it is not clearly established in the record that the trial

court ruled on Ring Power's request independent from its fourth request that the

unredacted EMS Report be introduced into evidence. We note that Mr. Paton was

unavailable at the time of trial and that Florida Rule of Civil Procedure 1.330(a)(1)

permits the use of a deposition "for any purpose permitted by the Florida Evidence

Code."

              The final judgments are reversed. The case is remanded for a new trial in

accordance with this opinion.

              Reversed and remanded.



KELLY and CRENSHAW, JJ., Concur.




                                            - 13 -
