Valdez v. Fesler

OVERTON, Chief Justice. This is a petition for writ of certiorari to review a decision of the Second District Court of Appeal reported at 298 So.2d 512 (Fla.App. 2nd, 1974). In that decision, the Second District held that mere discussion of the doctrine of comparative negligence with the trial court during pretrial conference and citation to the same on motion for new trial, without more, was insufficient under Hoffman v. Jones, 280 So.2d 431 (Fla.1973), to allow the plaintiff to have the cause retried upon comparative negligence. The first trial was prior to this Court’s decision in Hoffman but subsequent to the Hoffman decision rendered by the Fourth District.1 The instant District Court decision did conflict with Minton v. CNA Insurance, 293 So.2d 742 (Fla.App. 3rd, 1974), at the time it was rendered. Our recent decision in CNA Insurance v. Minton, 334 So.2d 257 (Fla.1976), operates to harmonize this area of the law and eliminate conflict. We there held that raising the issue of comparative negligence for the first time in assignments of error did not meet the rule of Hoffman that applicability of the doctrine is predicated on its proper and appropriate invocation before or during trial. The trial court in the instant cause specifically instructed the parties in pretrial conference that it would not follow the Fourth District’s opinion in Hoffman and that either of them should, if they desired to preserve the issue for appeal, “formally request the application of comparative negligence and formally object to the Court’s ruling.” No such request or objection was made. The District Court’s decision is in conformity with CNA Insurance v. Minton, supra. Accordingly, conflict is dispelled and the writ therefore must be discharged. It is so ordered. ADKINS, BOYD, ENGLAND and SUNDBERG, JJ., and FERRIS, Circuit Court Judge, concur. ROBERTS, J., concurs in judgment. Footnotes [1] Jones v. Hoffman, 272 So.2d 529 (Fla.App. 4th, 1973).