The Week In Torts – Cases from December 13, 2024

Now, even the insurer wants the jury to know!
FLORIDA LAW WEEKLY
VOLUME 49, NUMBER 50
DECEMBER 13, 2024
MAJOR VERDICT REVERSED BECAUSE TRIAL COURT ALLOWED THE “UNDERINSURED” CARRIER TO BE REFERRED TO AS THE “UNINSURED” CARRIER, WHICH COULD MISLEAD THE JURY AND WAS CONTRARY TO CASE LAW
GEICO General Insurance Co v. Tsao, 49 Fla. L. Weekly D2466 (Fla. 5th DCA Dec 6, 2024):
The plaintiff was rear-ended and sued the tortfeasor. She then sued her uninsured motorist carrier, Geico.
The plaintiff settled with the tortfeasor who had $100,000 in liability coverage. The plaintiff herself had $250,000 in UM coverage.
Geico admitted liability while agreeing that the plaintiff suffered some injury, but challenging causation, permanency, and damages. Geico maintained that the alleged injuries were unrelated to the plaintiff’s accident and instead were due to preexisting conditions including aging, stress, and a physically intensive job.
There were two mistrials before the third trial (one due to COVID and one due to an expert’s illness).
The plaintiff moved in limine to exclude the fact that the tortfeasor had insurance and was “uninsured/underinsured” or “underinsured,” arguing that it would lead the jury to speculate that there may have been a settlement. She argued instead that the tortfeasor should only be referred to as “uninsured.”
Geico responded that referring to the tortfeasor as “uninsured” would create an impermissible charade and that the jury should be told that Geico provided underinsured coverage to the plaintiff. The trial court granted the plaintiff’s motion.
The appellate court reversed, citing several cases where courts have found that the failure to specifically identify the underinsured carrier leaves the jury to speculate about the exact role of the plaintiff’s carrier in the lawsuit and perpetuates charades in trials in supporting its conclusion.
The court rejected the plaintiff’s argument that the potential for prejudice as addressed in those cases was to the plaintiff, and not the insurance company, and cited to FSJI 201.2 noting that a carrier such as GEICO shall be referred to as either the underinsured or uninsured carrier depending on this case.
By identifying the tortfeasor as uninsured and GEICO as the plaintiff’s uninsured motorist carrier instead of the underinsured carrier, the court found the jury had been misled when Geico admitted liability, suggesting the plaintiff had been refused any recovery which was not the case, and constituted harmless error.
The court also addressed the other issues raised by GEICO, which were not dispositive to its ruling but wanted to avoid in the next trial.
GEICO argued that comments made by a prospective juror during voir dire tainted the jury and that the plaintiff improperly employed a “punish GEICO” theme by repeatedly asking the jury to deliver justice in its opening statement and closing argument. GEICO also asserted that the plaintiff improperly attempted to curry favor with the jury by interjecting issues of race and gender inequality in its closing argument.
While the court concluded that the prospective juror’s comments were not sufficient to taint the remainder of the panel, it did agree with GEICO that the plaintiff’s comments seeking justice and suggesting GEICO should be punished, as well as those attempting to curry favor by interjecting irrelevant and inflammatory remarks in closing argument, were both pervasive and highly improper and would be prohibited in any retrial.
Finally, Geico claimed that the trial court improperly rejected its argument that the jury’s $14 million verdict was excessive. The court noted it did not reach this issue as grounds for reversal, but did observe that the amount of the verdict was highly unusual given that the plaintiff continued to work her normal schedule, play tennis, travel, and engage in daily routines without requiring surgery or significant ongoing medical treatment. Such an atypical award gave strong evidence to support GEICO’s argument that the trial was tainted by improper conduct.
RULE 1.510 REQUIRES THE TRIAL COURT TO STATE ON THE RECORD THE REASONS FOR GRANTING OR DENYING A MOTION FOR SUMMARY JUDGMENT
Lima v. Gargano, 49 Fla. L. Weekly D2448 (Fla. 3rd DCA Dec. 4, 2024):
Rule 1.510(a) requires that a trial court state, on the record, the reasons for granting or denying a motion for summary judgment. The ruling must contain more than a mere pronouncement that the court has granted or denied the motion since there were no reasons set forth on the record
The court reversed and remanded for the trial court to state the reasons for granting the motion because the rule makes it mandatory to do so.
PETITION FOR CERTIORARI NOT APPROPRIATE ON AN ORDER GRANTING A MOTION TO EXCLUDE EVIDENCE
Baptist Hospital of Miami Inc v. Lauro, 49 Fla. L. Weekly D2448 (Fla. 3rd DCA Dec. 4, 2024):
To grant a petition for a writ of certiorari, a petitioner must establish (1) a material injury in the proceedings that cannot be corrected on appeal (irreparable harm); and (2) a departure from the essential requirements of law.
In civil cases, certiorari is rarely granted because the petitioner generally cannot show that any potential injury cannot be rectified on appeal. The exclusion of the defendant’s evidence, if erroneous, can be remedied on appeal after the trial court issues final judgment, thus compelling dismissal of the petition.
AN ORDER GRANTING A MOTION TO DISMISS WITHOUT ACTUALLY DISMISSING THE ACTION IS NOT FINAL FOR APPEAL
Williams v. Dixon, 49 Fla. L. Weekly D2451 (Fla. 1st DCA Dec. 4, 2024).