NOT FINAL UNTIL TIME EXPI RES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

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, ) CONSOLIDATED ) Appellees. ) ) Opinion filed April 7, 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. Co ndado) and Nancy- 2 - Rodriguez-Ventura (Ms. Rodriguez ). Ring Power contends that tw o evidentiary rulings

of the trial court were erroneous and contributed to the verdic t 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 t he 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 the n collided with a third vehicle. It was undisputed that there was a mattress in the no rthbound lanes of the interstate, causing cars to stop or swerve unexpectedly. Furth er, the parties agreed that there were two northbound lanes of I-75, a median between the n orth and southbound lanes, and a narrow shoulder adjacent to that median. The agre ed-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 t o someone pulling a mattress out of the roadway and claimed he did not suddenly swe rve from the right lane

1 The trial court entered two partial final judgments as to damag es—one in favor of Mr. Condado and one in favor of Ms. Rodriguez—and rese rved jurisdiction to award fees and costs. Ring Power appealed those judgments. Th e trial court subsequently entered two costs judgments which were also appeal ed. This court consolidated the appeals for all purposes.- 3 - into the left lane in front of Mr. Quandt's vehicle. Mr. Conda do testified that he saw Mr. Quandt's vehicle directly behind him; he alleged that Mr. Quand t was driving too fast and following too closely. W hen it appeared that Mr. Quandt's vehicle was going to rear-end Mr. Condado's, Mr. Condado steered his vehicle left, i nto 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 te stified that upon steering his vehicle into the left shoulder, the rear of his vehicle was for cefully 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 significa nt injuries. Conversely, Mr. Quandt claimed that the accident was caused e ntirely by Mr. Condado suddenly and unexpectedly swerving from the right l ane into the left lane and then into the left shoulder, directly into Mr. Quandt's pat h of travel. Mr. Quandt testified that the mattress was less than 100 yards away when t he 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. Cond ado 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. Con dado's vehicle dramatically- 4 - and significantly swerved to the left—into and across Mr. Quand t's path of travel— causing the accident. The critical evidentiary rulings that Ring Power submits nece ssitate 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 pr oviding medical assistance to Ms. Rodriguez, Mr. Paton spoke with Mr. Condado about the ac cident. Based on that conversation, Mr. Paton prepared a mandatory patient care repor t (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 preve nt the abovequoted statement from being introduced as evidence. Although h e stipulated to the authenticity of the EMS Report, he argued that the statement wi thin the EMS Report was not trustworthy because i t referred to Mr. Condado as Ms. R odriguez'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 a ll. Ring Power filed a response to the motion in limine noting that Mr. Condado testif ied in deposition that he had been married to Ms. Rodriguez for ten years. Ring Power fu rther argued that Mr. Condado's denial of the statement was a matter of weight and cr edibility for the jury rather than admissibility. Ring Power contended that the state ment was admissible as a spontaneous statement, excited utterance, and admission by a pa rty opponent pursuant- 5 - 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 admis sible because both the EMS Report and Mr. Condado's statement within the report were s ubject to an exception under section 90.803. Finding the statement inadmissible through the EMS Report, th e 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 t o 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 include d in his report what he had been told by Mr. Condado at the scene. In opening statements, Mr. Condado argued that although the d efense 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 stat ement. 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 r olling 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 admitt ed. It marked Mr.

2 Initially, the trial court ruled that Mr. Condado's statement c ould be admitted through the testimony of Mr. Paton but that it could n ot be admitted through the EMS Report. This appears to be because the trial court bel ieved the EMS Report itself was inadmissible hearsay.- 6 - Paton's deposition transcript and video as well as the unredact ed EMS Report as exhibits and requested that the court admit them and publish th em to the jury. The court declined to reconsider its p rior ruling and considered th e exhibits as proffers. At that time, Mr. Condado proffered Mr. Paton's deposition cross-e xamination testimony. The redacted EMS Report was introduced not by Ring Power but by Mr. Condado; it was admitted into evidence without objection. Subsequently, th e 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 j ury, 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 contributi ng legal cause of injury to [Mr. Condado and Ms. Rodriguez]? The jury answered yes to all three questions, and it assigned 6 5% liability to Mr. Quandt, 33% liability to Mr. Condado, and 2% liability to an un known 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 $1 93,486.35 for past and future medical expenses and $50,000 for pain and suffering.- 7 - Ring Power moved for a new trial, reiterating its prior argum ents on the admissibility of Mr. Condado's statement and Mr. Paton's deposi tion. That motion was

denied. On appeal, Ring Power contends that the trial court abused it s discretion in making the evidentiary determinations that Mr. Condado's sta tement in the EMS Report and Mr. Paton's deposition were inadmissible and that su ch errors cannot be considered harmless. We agree. The trial court erred in granting Mr. Condado's motion in lim ine and in denying Ring Power's repeat ed requests to introduce Mr. Condado 's statement into evidence. That the EMS Report it self was admissible is not con tested 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; the re was no objection to its admission. Ring Power sought to introduce Mr. Condado's statement within the EMS Report as substantive evid ence, contending that the stateme nt met a number of hearsay exceptions. Because we conclude that Mr. Condado's sta tement 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 admissio n of the EMS Report as a business record under section 90.803(6) by agre eing 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 stipu lation 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.- 8 - 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 part y and is . . . [t]he party's own statement in either an individual or a repres entative 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 admissio n must also be relevant— "tending to prove or disprove a material fact." § 90.401. Sta tements of a party offered by an opponent regarding causati on in negligence actions are ge nerally considered admissions. See McKay v. Perry, 286 So. 2d 262, 263 (Fla. 2d D CA 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, 6 36 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. 3 d 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. Al ayon, 162 So. 3d 360, 365 (Fla. 4th DCA 2015) (concluding that statement by party regardi ng 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 o f the matter stated." Seaboard Coast Line R.R. Co. v. Nieuwendaal, 253 So. 2d 451, 45 2 (Fla. 2d DCA 1971); accord McKay, 286 So. 2d at 263. "This is so even thoug h 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); V isconti v. Hollywood Rental S erv., 580 So. 2d 197, 198 (Fla. 4th DCA 1991) (Garrett, J., concurring).- 9 - the admission against interest subsequently denies making such admission." Seaboard Coast Line, 253 So. 2d at 452; see also Charles W. Ehrhardt, Fl orida Evidence § 803.18 (2014 ed.) ("If a statement is offered as substantive ev idence under [section 90.803(18)] it is not necessary to lay a foundation by asking t he individual who made the statement whether he or she did so."). Here, Ring Power sought to intr oduce Mr. Condado's statement— attributed to Mr. Condado and included in a properly admitted b usiness medical record—as evidence against Mr. Condado. It clearly meets the s tatutory requirements

of an admission. Mr. Condado maintains that because he challenged the trustwor thiness of the EMS Report and his statement within it, his statement was p roperly excluded. Provided that medical records, including EMS records, otherwise meet the requirements of a business record under section 90.803(6)(a), their trustwor thiness is presumed. Nat'l Union Fire Ins. Co. of Pittsburgh v. Blackmon, 754 So. 2d 840, 842 (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 intro duction to prove the untrustworthiness of the records."). Here, the EMS Report was introduced into evidence by Mr. Cond ado; there was no opposition to its admission. Ring Power points ou t the inconsistency in Mr. Condado's position on his statement within the EMS Report b ased on his introduction of the report: by in troducing the report Mr. Conda do conceded the- 10 - trustworthiness of the document and yet maintains that a singul ar statement within it is not trustworthy. Mr. Condado does not acknowledge that inconsistency or the fa ct that the EMS Report was appropriately admitted into evidence. Rather, M r. Condado maintains

that his statement is untrustwor thy because it refers to Mr. Co ndado as Ms. Rodriguez's

"husband" when in fact Mr. Condado and Ms. Rodriguez are not ma rried 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 vehi cle 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 wif e and that he may have

done so on the date of the accident. As to the latter argument, Mr. Condado fails to recognize tha t his statement is admissible under a hearsay exception separate and distinct from the business record exception; and the admission exception has no t rustworthiness component. While hearsay evidence is generally excluded as "in herently 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 s tatement was made," admissions of a party opponent are an exception to the rule bec ause "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 untrustworth iness in the admission. Although Mr. Condado's statement was not admissible as a stat ement for purposes of medical diagnosis or treatment or as part of the bu siness records- 11 - exception, see Nat'l Union Fire, 754 So. 2d at 843, it was othe rwise admissible as an admission, see State Farm Fire & Cas. Co. v. Higgins, 788 So. 2 d 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 p urpose of medical diagnosis or treatment."). See also Charles W. Ehrhardt, Flori da 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."). M oreover, any objection Mr.

Condado had to the trustworthines s of the document as a whole—i ncluding 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 adm itted."); Dorfman v. Schwabl, 777 So. 2d 427, 429-30 (Fla. 5th DCA 2000) ("We cannot find the court erred,

when Dorfman raised the issue a bout 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 b ased on 'the improper admission or rejection of evidence,' the appellate court must c onclude 'after an examination of the entire case . . . that the error[s] complain ed of ha[ve] resulted in a miscarriage of justice.' " Fla. Inst. for Neurologic Rehab., I nc. 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 justic e is based on a- 12 - 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 err or 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 defenda nt'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 D CA 1990) (concluding that exclusion of evidence was proper where its probative value was substantially outweighed by the danger of unfair prejudice given other eviden ce presented).

The exclusion of Mr. Condado's statement was not harmless. T here were two distinct and mutually exclusive theories advanced about the cause of the accident.

Mr. Quandt's defense was that Mr. Condado caused the accident b y suddenly swerving. Mr. Condado's statement in the EMS Report expressly corroborate d 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 w as 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 t oo closely were issues for the jury to decide after weighing the evidence, including M r. 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.- 13 - Although the error in excluding Mr. Condado's statement neces sitates a new trial, we briefly comment on the error in excluding Mr. Pat on's deposition. The record establishes that Ring Power attempted to introduce and p ublish 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 tha t 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 t he Florida Evidence

Code." The final judgments as to damages and costs are reversed. Th e case is remanded for a new trial in accordance with this opinion.

Reversed and remanded.

KELLY and CRENSHAW, JJ., Concur.