Fourth District Finds Costs of Proof Warranted Where Defense Denied Liability in Case With Disputed Facts

Author: Mina Miserlis

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November 19, 2015 8:04pm

In the recent Fourth District case Grace v. Mansourian (2015) 2015 WL 3539748, the appellate court held the plaintiffs were entitled to recover costs of proving liability and damages after the defendants denied certain requests for admission, concluding defendants had no reasonable basis for denying these issues.

In Grace, defendant collided with plaintiff’s vehicle in an intersection. Defendant maintained throughout the action that the signal light was yellow when he entered the intersection. An eyewitness at the scene testified that defendant ran a red light. Plaintiffs husband and wife brought suit against defendant and the car owner, alleging defendant ran a red light and caused injuries to plaintiff’s ankle, back and neck.

During discovery, plaintiffs served requests for admission asking defendants to admit failing to stop at the red light and negligently causing the accident. The requests also sought admissions that plaintiff was injured and that all of the treatment was as a result of the accident. Defendants denied the requests.

Plaintiffs retained an accident reconstruction expert who opined at trial that defendant was at fault. Defendants did not retain an accident reconstruction expert to testify at trial. The only evidence offered by the defendants as to liability was the testimony of defendant that the light turned yellow as he approached the intersection. During opening statement, defense counsel stated, “[Defendant] believes, in his mind, that the light was yellow and he went through it and that his testimony. Now, we could sit there and say, well, there is a witness that said it was red, so just change your testimony, but he’s not going to do that. His testimony is he believes he had the yellow light. If that was a mistake on his part, then that’s a mistake on his part, but that’s what he believes. He’s not going to testify differently.”

Defendants retained a medical expert who opined that plaintiff had fractured his ankle, that his ankle surgery was necessary, and that he would not require any additional surgery. He agreed that plaintiff suffered a strain/sprain of his neck and back, but concluded plaintiff’s back surgery was not necessitated by the accident.

The jury concluded defendant was negligent and awarded over $400,000 in damages. Plaintiff subsequently filed a motion seeking to recover costs for proving the denied facts, amounting to $170,000 in attorney’s fees and $29,000 in costs. The trial court denied the motion, finding defendants had a reasonable basis to deny the requests for admission.

The court of appeal reversed. The court held defendant’s denials regarding liability were not reasonable despite defendant’s belief that the light was yellow.

The question, according to the appellate court, “was not whether defendant reasonably believed he did not run the red light, but whether he reasonably believed he would prevail on that issue at trial.” (Italics added.) The court pointed to the “substantial contrary evidence” including plaintiff’s testimony, the testimony of the witness, the opinions of plaintiff’s accident reconstruction expert, and the police report. The court added, “In light of the substantial evidence defendant was at fault, plus defendant’s apparent understanding of the weakness of their position, as evidenced in their opening statement, defendants’ sole reliance on defendant’s perception . . . was not a reasonable basis to believe they would prevail.”

The court further found that although defendants should have admitted plaintiff’s ankle injury, they reasonably denied the extent of plaintiff’s remaining injuries and necessity of treatment based on the opinions of the defense medical expert. The appellate court therefore remanded to the trial court to award costs of proof.

Mina Miserlis is a Partner at Tyson & Mendes LLP. She specializes in personal injury and high net worth insurance issues. Contact Mina at 858.263.4108 or

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