FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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 Case No. 5D22-2197

LT Case No. 2020-CA-001490-A

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ISMAEL PEREIRA,

Appellant,

v.

EMILY JONES, as Personal 

Representative of the Estate of 

Gregory Wilkes, and GEICO 

INDEMNITY COMPANY,

Appellees.

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Nonfinal appeal from the Circuit Court for Lake County. 

Dan R. Mosley, Judge. 

E. Aaron Sprague and Stefano D. Portigliatti, of Coker Law, P.A.,

Jacksonville, and Luke T. Moreau, of Law Offices of Luke T.

Moreau, Esq., Hollywood, for Appellant.

Steven E. Brust, Jennifer P. Lawson, Jonathon D. Pressley, Jill 

F. Bechtold, Dion K. Bass, and Cassandra R. Daum, of Smith,

Gambrell & Russell, LLP, Jacksonville, for Appellee, GEICO

Indemnity Company.

No Appearance for Remaining Appellee. 

March 22, 2024 
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PER CURIAM.

At issue is the grant of a motion by GEICO Indemnity 

Company (“GEICO”) to sever and transfer a portion of the 

complaint of Ismael Pereira (“Pereira”), who was involved in two 

successive motor vehicle accidents, one in Lake County and one in 

Orange County. In the trial court, GEICO argued that Pereira 

failed to allege in his complaint that it was difficult or impossible 

to apportion his injuries arising from the two different accidents. 

Pereira counters that Florida law allows for a plaintiff to try 

together, in a single case, two personal injury claims that result in 

injuries that are difficult or impossible to apportion and that he 

should be given leave to amend his complaint to include language 

alleging such injuries where, as here, he has not abused the 

privilege to amend.

In granting GEICO’s motion as to the count involving the 

Lake County accident, the trial court reasoned that the two 

accidents were not sufficiently intertwined and could be severed 

because they involved different counties, different injured parties, 

and different patient treatments; they also occurred over three 

years apart. 

This approach—which focuses on the accidents themselves 

rather than whether the plaintiff’s injuries can be apportioned—is 

inconsistent with this court’s decision in Froats v. Baron, 883 So. 

2d 885, 887 (Fla. 5th DCA 2004), which held that a “plaintiff who 

is injured in two successive accidents may bring one suit where the 

accidents cause the same or similar injuries and it is difficult or 

impossible to apportion the injuries between the two tortfeasors.” 

In addition, “where the accidents or injuries occur in different 

counties, all of the defendants may be sued together in one of the 

counties in which one of the causes of action arose.” Id. A plaintiff 

bringing such an action must clearly allege in his complaint that 

his injuries “in the two accidents were difficult or impossible to 

apportion between defendants.” Id. Under Froats, the focus is on 

the plaintiff’s injuries, and whether they are difficult or impossible 

to apportion, rather than whether the circumstances of the 

accident are alike. 
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The question becomes whether Pereira, whose complaint

lacked an allegation that his injuries were unapportionable,

should be allowed to amend under the circumstances. The trial 

court did not allow Pereira to amend his complaint, despite Pereira 

requesting that he be given leave to do so. Based on this court’s 

decision in Froats, which is nearly identical factually and legally,

this was error. Froats highlighted that the “problem is essentially 

one of pleading” and that the plaintiff “should have the opportunity 

to make the necessary allegations.” Id. As in Froats, Pereira’s 

request to amend was timely and he had not abused the privilege 

of amendment. See id.

As to possible prejudice, it is notable that GEICO’s motion to 

sever and transfer acknowledged that a trial court abuses its 

discretion in severing “a case when two successive accidents cause 

the same or similar injuries” provided that “those injuries are 

indivisible, impossible, and or very difficult for the jury to 

apportion fault.” It noted further that for “[Pereira] to join GEICO 

and add a successive accident, [Pereira] must allege in [his] 

Complaint the injuries are the same or similar, or that they were 

difficult or impossible to apportion between the two tortfeasors.” 

GEICO thereby recognized that the basis for its motion was a 

pleading deficiency; as such, no prejudice is evident in allowing 

Pereira to make the necessary allegation. See Hemingway v.

Bresney, 733 So. 2d 1135, 1136 (Fla. 4th DCA 1999).

We, therefore, reverse the order of severance and transfer and 

remand with instructions that Pereira be allowed to amend his 

complaint.

REVERSED and REMANDED with instructions.

MAKAR, KILBANE, and MACIVER, JJ., concur.
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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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