837 So.2d 363 (Fla. 2002), SC01-2085, State Farm Fire & Cas. Co. v. Levine

Docket Nº:Case No. SC01-2085
Citation:837 So.2d 363, 27 Fla. L. Weekly S 1043
Opinion Judge:The opinion of the court was delivered by: Lewis, J.
Party Name:State Farm Fire & Casualty Company, Petitioner, v. Susan Levine, Respondent
Attorney:James K. Clark of Clark, Robb, Mason & Coulombe, Miami, Florida,
Case Date:December 19, 2002
Court:Supreme Court of Florida

Page 363

837 So.2d 363 (Fla. 2002)

27 Fla. L. Weekly S 1043

State Farm Fire & Casualty Company, Petitioner,

v.

Susan Levine, Respondent

Case No. SC01-2085

Florida Supreme Court

December 19, 2002

Page 364

Application for Review of the Decision of the District Court of Appeal - Direct Conflict Third District - Case No. 3D00-1861 (Dade County)

James K. Clark of Clark, Robb, Mason & Coulombe, Miami, Florida, for Petitioner

Daniel S. Pearson and Christopher N. Bellows of Holland & Knight LLP, Miami, Florida, for Respondent

LEWIS, J.

We have for review State Farm Fire & Casualty Co. v. Levine, 791 So.2d 591 (Fla. 3d DCA 2001), which expressly and directly conflicts with our decision in Roberts v. Tejada, 814 So.2d 334 (Fla. 2002). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons stated herein, we quash the district court's decision and remand the case to the district court with instructions that the case be returned to the trial court for further proceedings.

STATEMENT OF THE CASE AND FACTS

Susan Levine filed an action against David R. Fish seeking damages resulting from a 1997 automobile accident in which the car she was driving was struck from behind by a vehicle operated by Fish. Levine joined State Farm to recover underinsured motorist benefits under her insurance policy. Fish admitted liability, leaving the jury to decide only the issue of damages sustained as a result of the event.

The case proceeded to trial, and during voir dire, the trial judge asked if anyone on the jury panel had ever been involved in a "serious car accident." Several of the panel members answered in the affirmative, and proceeded to describe the nature of the accidents in which they had been involved. In response to questioning, juror Dorothy Albury revealed only that she had been a witness in a worker's compensation matter pursued by her boyfriend, but did not disclose any other information.

The case proceeded through trial with Ms. Albury being a member of the jury which ultimately awarded Levine $615,000. After the verdict was returned, State Farm discovered that Albury had been involved in an automobile accident in 1994 in which the vehicle she was operating struck another car, resulting in the death of a passenger inside that automobile. The police report indicated that both Albury and the driver of the other car were intoxicated at the time of the collision.

Fish submitted, and State Farm joined, a motion for new trial on several grounds, including juror nondisclosure. The trial court denied the post-trial motions, and, on appeal, the district court affirmed. A petition for conflict review followed.

ANALYSIS

In De La Rosa v. Zequeira, 659 So.2d 239 (Fla. 1995), we determined that a party seeking a new trial on the basis of juror nondisclosure must establish that the undisclosed information is (1) relevant and material to jury service in the case; (2) that the juror concealed the information during questioning; and (3) that the failure to disclose the information was not attributable to the complaining party's lack of diligence. See id. at 241. In Tejada v. Roberts, 760 So.2d 960 (Fla. 3d DCA 2000), the Third District held that the diligence prong of the De La Rosa test requires counsel to conduct and complete all venire investigations during trial, not after. See Tejada v. Roberts, 760 So.2d at 966. This Court subsequently quashed the Third District's decision, holding that the requirement that all venire investigations be completed and objections presented before

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conclusion of a trial would impose too onerous a burden on trial counsel. See Roberts v. Tejada, 814 So.2d 334, 344-45 (Fla. 2002).

In the instant case, neither the trial court nor the district court had the benefit of our decision in Roberts v. Tejada prior to consideration of State Farm's motion for a new trial. Thus, in following then-controlling case law, the district court rejected as untimely State Farm's post-verdict submission of evidence regarding...

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