Bogosian v. State Farm Mutual Automobile Insurance Co.

Wane Bogosian (plaintiff) was a passenger in a Corvette travelling in the middle lane of Interstate-95 in Florida. As the Corvette approached the point at which the left lane turned into a flyover lane, which is a type of overpass, the car in the left lane (the phantom vehicle) suddenly swerved into the middle lane, hitting the Corvette, and causing the Corvette to strike a retaining wall. The phantom vehicle did not stop and was never identified. Bogosian sued (1) State Farm Mutual Automobile Insurance Company (State Farm) (defendant) under his uninsured-motorist policy; and (2) the Florida Department of Transportation (DOT), alleging that the flyover was negligently and confusingly designed. The DOT settled with Bogosian. On the day of trial, State Farm, for the first time, raised the DOT’s negligence as an affirmative defense and argued that the DOT should be added to the jury’s verdict form as a nonparty Fabre defendant for apportionment of fault and noneconomic damages. Bogosian objected, arguing that State Farm could not add the DOT as a Fabre defendant because State Farm had failed to timely plead the DOT’s negligence as an affirmative defense. The trial court overruled Bogosian’s objection, and the jury ultimately returned a verdict apportioning 70 percent of the fault and damages to DOT, leaving State Farm responsible only for the 30 percent attributable to the phantom vehicle. Bogosian appealed, arguing that State Farm’s failure to timely plead the DOT’s negligence as an affirmative defense deprived him of sufficient notice and the opportunity to prepare an opposition.