First District Court of Appeal Overturns ‘Five Million Dollar Ant Bite Case’

By NANCY SMITH – April 18, 2018 – 5:45 pm

 First District Court of Appeal

The First District Court of Appeal avoided another “lawsuits ‘r’ us” black eye for Florida Wednesday, when it reversed the infamous “Five Million Dollar Ant Bite Case” — a case that would have let a $5.2 million award stand for ant bites a tow truck driver claimed were sulfuric acid damage.

A three-judge panel overturned the decision in Simon’s Trucking, Inc. (Appellant/Defendant) v. Charles A. Lieupo (Appellee/Plaintiff) because the circuit court for Hamilton County based its decision on a statute that didn’t apply, according to the DCA ruling.

In case you’ve forgotten, this was the case that arose out of a 2011 semi tractor-trailer accident on Interstate 75, in which the tow truck driver first said his leg was medically damaged by ant bites, then claimed the damage came from sulfuric acid.

The tow truck driver, Charles Lieupo, sued the company that owned the semi. And the jury in rural Hamilton County, where Lieupo has lived his entire life, had awarded him $5,211,500 for his injuries.

Specifically, the appeals court ruled Wednesday that the environmental protection statute can only be used to sue for damages to property, not people, caused by environmental contamination. Floridians still can sue for personal injuries — but under ordinary negligence, which Lieupo never proved.

To recap, during the 2011 accident, the driver of the semi suffered a massive heart attack and died, causing the vehicle to veer off the Interstate and crash into the trees. Tow truck driver Charles Lieupo, who heard about the accident on a dispatch radio and asked to be hired to remove the wreckage, said at the time he had been bitten by fire ants while completing the work.

Over the next two months, medical records show, Lieupo told physicians and other healthcare providers he had been bitten by fire ants. Six months after the accident, Lieupo told his pain-management doctor, “I had ants all over myself … [T]hey were in my breeches and … they were stinging.”  But at trial, his story changed dramatically.

Lieupo told a Hamilton County jury sulfuric battery acid at the accident scene, not ant bites, had injured his legs. A medical specialist disagreed and testified at trial Lieupo suffered from a pre-existing condition known as “venous stasis,” which is poor blood flow in the extremities. The specialist told the jury it was fire ant bites, not battery acid, that had irritated Lieupo’s pre-existing condition and caused the skin irritation on his legs.

Jason Gonzalez, Tallahassee managing partner for Shutts & Bowen, argued the appeal. “The ruling today was a great victory for a family-owned business that had done nothing wrong. We are hopeful the Florida Supreme Court will agree with the First DCA and decline to do anything further with the case.”

Gonzalez told Sunshine state News in February, “(The case) should never have gone to trial because Lieupo could not prove the defendant was negligent, and instead filed a strict liability claim that is not allowed in personal injury cases.”

In 2010 the Florida Supreme Court addressed the same issue in the landmark case of Curd v. Mosaic, and the Court said personal injury claims are not permitted under the statute. “We can’t figure out why the judge allowed this to go forward in direct violation of binding Supreme Court precedent on the issue,” William Large of the Florida Justice Reform Institute told Sunshine State News in February.

Large described the lawsuit as a massive expansion of liability in Florida. Had the First DCA failed to reverse it on appeal, he said, the case would have cost Florida consumers and job creators billions in increased insurance premiums.

Reach Nancy Smith at [email protected] or at 228-282-2423. Twitter: @NancyLBSmith

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