## Facts

- Wane Bogosian was injured as a passenger in a Corvette traveling on Interstate 95 near the Golden Glades flyover in Miami–Dade County.
- A “phantom” vehicle in the left lane abruptly moved into the Corvette’s lane, struck it, and caused it to crash into a retaining wall; the phantom vehicle fled and was never identified.
- Bogosian sought uninsured-motorist (UM) benefits from State Farm, the UM carrier for the Corvette’s owner/driver.
- Bogosian also sued the Florida Department of Transportation (DOT), alleging negligent roadway design and inadequate signage at the flyover area contributed to the collision.
- DOT moved for summary judgment; Bogosian opposed with an affidavit from engineer/accident reconstruction expert Kenneth Bynum. The motion was denied, and DOT later settled, leaving State Farm as the only defendant.
- On the morning of the jury trial, State Farm впервые asserted the accident was caused by DOT’s negligence, sought to place DOT on the verdict form as a Fabre nonparty, and subpoenaed Bynum despite not listing him as a witness.
- Over Bogosian’s objections, the trial court allowed DOT to be listed as a Fabre nonparty and allowed State Farm to call Bynum.
- The jury allocated 70% fault to DOT and 30% to the phantom vehicle, reducing State Farm’s liability accordingly, and final judgment was entered for that allocation.

## Issues

1. Whether a defendant may place a nonparty on the verdict form for Fabre apportionment when the defendant did not plead the nonparty’s negligence as an affirmative defense and disclosed the theory only on the morning of trial.
2. Whether the trial court erred by permitting the defense to call the plaintiff’s expert witness when the defense had not disclosed the witness on its trial list and tied the testimony to an unpled nonparty-fault theory.

## Decision

- The appellate court reversed the final judgment and remanded for further proceedings.
- The court held State Farm could not attribute fault to DOT as a Fabre nonparty because State Farm never pled DOT’s negligence as an affirmative defense and raised the theory only at the start of trial.
- The late disclosure created unfair surprise and prejudice by depriving Bogosian of notice and a fair opportunity to conduct discovery, secure rebuttal evidence, and prepare for trial on DOT’s alleged negligence.
- The court treated State Farm’s use of Bogosian’s expert as part of the same prejudicial, last-minute attempt to litigate unpled nonparty fault.

## Legal Principles

- In Florida comparative-fault cases, allocating fault to a nonparty under Fabre requires the defendant to plead the nonparty’s negligence as an affirmative defense in a timely manner.
- A nonparty-fault theory disclosed for the first time on the morning of trial may be barred when it causes unfair surprise and prejudice to the opposing party.
- A verdict and judgment materially affected by improper inclusion of an unpled Fabre nonparty on the verdict form cannot stand.

## Conclusion

The court reversed because State Farm’s morning-of-trial attempt to shift fault to DOT as a Fabre nonparty—without having pled DOT’s negligence—deprived Bogosian of fair notice and trial preparation, rendering the resulting allocation of fault and reduced UM liability improper.


Bogosian v. State Farm Mut. Auto. Ins. Co., 817 So. 2d 968 (Fla. Dist. Ct. App. 3d Dist. 2002)