More on D'Amario.

As the author of the April D'Amario crashworthiness article, I am pleased to see the comment "letters" printed in June.

I believe the comments by Bill Wagner are applicable only to his individual case. Yet, the Florida Supreme Court's opinion in D'Amario established an absolute legal principle for all crashworthiness cases, regardless of individual facts. That decision went far beyond the individual result of D'Amario as to who won or who lost. Right or wrong in terms of result, that is the purpose of the Supreme Court: to establish legal policy irrespective of individual outcomes. I believe Mr. Wagner ignored this very simple fact.

I already had advised the Journal of the two items in error from my reference to the Second DCA opinion just after publication. I refer Mr. Wagner to that Second DCA decision. The Supreme Court did not need to establish the broad ruling it did. In the entire Second DCA opinion the only reference to crashworthiness was the following: "On the facts in this crash-worthiness case, the appellant properly raised an apportionment defense." (732 So.2d at 1145.) The court wrote about 16 pages to overturn that one sentence.

As to Leonard Robbins' and Matt Schultz' letters, I can only say that the Journal in its June edition certainly showed it is not biased by printing a contrary perspective on crashworthiness written by plaintiffs' lawyers. It was my belief that one of the purposes of the Journal was to publish articles expressing particular opinions and legal positions on various issues. Anytime an appellate court decides a case, it is taking a biased position, and becoming an advocate of a particular result. Thus, my article was no more biased than that of the court's opinion.

"The Minority Gets It Right: The Florida Supreme Court Reinvigorates the Crashworthiness Doctrine in D'Amario v. Ford" (June) by Edward Ricci, Theodore Leopold, and Benjamin Salzillo did not address the issues I raised concerning D'Amario's unanswered questions. I take issue with the conclusion in this article about the well-reasoned minority view expounded by the Florida Supreme Court. I believe D'Amario misinterpreted several of the so-called minority cases on which it relied.

For example, Coda v. Harley-Davidson, an Arizona case, was ultimately not followed within that same jurisdiction (Zeurn v. Ford, 188 Ariz. 486). Green v. General Motors allowed the circumstances of the underlying crash into evidence contrary to D'Amario even though it was a crashworthiness case. That court permitted jury consideration of the "speed of the vehicle, the use of the seatbelt, the use of the vehicle, crossing lanes of traffic and the like." (emphasis added) In Reed v. Chrysler the court did not establish an all encompassing policy rule like D'Amario. Jimenez v. Chrysler was later overturned, although on a different point. Yet, Jimenez was an Eire guess by a federal court as to what a South Carolina state court might do. Further, the Jimenez appeals court clearly distinguished that if the accident-causing mother had brought her own claim in that case, her negligence would have reduced that claim proportionately. Accordingly, the so-called minority cases cited in D'Amario were not as supportive of excluding apportionment of fault in a crashworthiness case.

More recent D'Amario issues have arisen for which the Florida Supreme Court gave no consideration. I now have a case where a person was committing a drug-related crime at the time of his motor vehicle crash. The plaintiff's attorney filed a law suit alleging only a crashworthiness claim to avoid evidence of that criminal conduct coming into evidence. Is this a fair consequence of D'Amario? And, what about double recovery? Since the first and the second collision parties are not joint tortfeasors, there cannot be any contribution and therefore no setoffs. I recently had a case where the auto manufacturer settled out with the plaintiffs, who continued to pursue a first collision case against a rental car company. The rental car company then tried for a setoff, which was denied by the trial court under D'Amario. These were death cases. Is it not double recovery ff the plaintiffs also obtain a verdict or settlement from the rental car company for those very same deaths?

D'Amario is simply not a good decision and needs to be readdressed.

LARRY M. ROTH

Winter Park