Allred v. Chittenden Pool Supply, Inc.

• Decision Date: 02 August 1974
• Docket Number: No. 44655,44655
• Citation: 298 So.2d 361
• Parties: Rolande ALLRED, Petitioner, v. CHITTENDEN POOL SUPPLY, INC. and Liberty Mutual Insurance Company, Respondents.
• Court: Florida Supreme Court

Page 361

298 So.2d 361

Rolande ALLRED, Petitioner, v. CHITTENDEN POOL SUPPLY, INC. and Liberty Mutual Insurance Company, Respondents.

No. 44655.

Supreme Court of Florida.

Aug. 2, 1974.

David A. Maney, of Gordon & Maney and Richard R. Mulholland, Tampa, for petitioner.

Clifford L. Somers, of Miller & McKendree, Tampa, for respondents.

BOYD, Justice.

This cause is before us on certiorari granted to review the Per Curiam Affirmance by the Second District Court of Appeal, reported at 284 So.2d 249 (1973). We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution.

Petitioner, Mrs. Allred, was in an automobile which was struck from the rear by a truck owned by respondent Chittenden. Subsequently, an action for personal injuries was filed by the petitioner, and after pre-trial gymnastic pleadings were completed, Chittenden and its insurance carrier became the defendants below and respondents here.

Upon trial of the issues, a jury verdict was returned in favor of the petitioner in the amount of $47,000.00. Respondents promptly filed a motion for new trial, or, in the alternative, for a remittitur.

In support of their motion, respondents urged 17 grounds, but the trial judge in granting a new trial stated that:

'This Court is of the opinion that all but one of the defendant's grounds, if valid, would not constitute reversible error. The one which concerns this Court is Ground No. 11 which reads as follows:

'The verdict was the result of the jury being inflamed by passion and prejudice engendered by the conduct of Plaintiff's counsel in closing argument making demand that 'the defendant's insurance company be made to pay.' After defendant's counsel objected, this Honorable court advised plaintiff's counsel not to make further statements to the jury in this regard, but the irreparable harm had already been done 'by the jury having heard these statements' as reflected by the fact that the jury verdict for plaintiff was larger than the amount of the verdict demanded by plaintiff's counsel in closing argument.

'This Court is of the opinion that this ground is well taken and that the amount of the verdict, influenced by these inflammatory statements, is so grossly excessive as to shock the conscience of this Court. . . .'

Petitioner then appealed the new trial order to the Second District Court of Appeal. Pending disposition of this proceeding, respondents discovered that the transcribed record did not contain either 'the demand allegedly made by Plaintiff's counsel that the defendant insurance company be made to pay or the objection that the defendant's counsel allegedly made thereto.' Accordingly, a motion and suggestion to correct the record was made, with respondents contending that both the alleged statement and objection thereto were erroneously omitted from the record. Respondents urged that the trial record should also reflect that portion underscored below:

'MR. SLATER: . . ., (B)ut I don't believe in my mind and my heart, that $2.50 a day for what this lady has got to go through and for what she is going through in the past is too much, and that is why a permanent injury makes Liberty Mutual Insurance Company fight so hard But they should be made to pay.

'MR. MILLER: Objection . . .

'THE COURT: I would like to tell the jury that the principal defendant in this case is Chittenden Pool Supply. I don't want any further references to the insurance company, Mr. Slater.'

Petitioner objected and the trial judge, in denying respondents' motion, stated that he could not recall whether the proceedings had been different from that reflected by the record. The judge also stated that the non-existence of both the 'demand statement' and the 'objection thereto' which comprised Ground No. 11 was not fatal to his order granting a new trial since he would have granted the motion on the basis of the counsel's comment during argument as follows:

'. . ., and that is why a permanent injury makes Liberty Mutual Insurance Company fight so hard. . . .'

The Second District Court of Appeal affirmed and the petition for writ of certiorari now under review by our Court followed.

Appellate review of a trial judge's order granting a new trial is primarily limited to those grounds specified in the order, Braddock v. Seaboard Air Line Railroad Co., 80 So.2d 662 (Fla.1955), and thus we are basically concerned with whether counsel's words of record were so inflammatory as to inject passion and prejudice into the jurors which resulted in an excessive verdict.

Turning to the initial issue of whether counsel's comment on the insurance company fighting so hard injected passion into the case, we conclude this to have had no prejudicial effect under the authority of Stecher v. Pomeroy, 253 So.2d 421 (Fla.1971), wherein this Court stated:

'It was felt in reaching our decisions in Beta and Bussey that revealing the existence of an insuror as a real party in interest justifiably reflects the true fact that there is financial responsibility. This offsets any indulgence by counsel or the jury with unfounded arguments like, 'This poor, hard working truck driver and his family' approach, when in fact there is an ability to respond. It is probably not a factor in other instances where there is an obviously responsible principal defendant as in Compania Dominicana de Aviacion (and Underwriters at Lloyds, London v. Knapp et al., 251 So.2d 18 (Fla.App.1971)).

'It is fair to note also in this respect the holding of In re Rules Governing Conduct of Attorneys in Fla., 220 So.2d 6 (Fla.1969), actively argued before this Court shortly prior to Bussey. There it was asserted by the insurance companies of this state then appearing (including three associations which 'represent 659 insurance companies who write the bulk of the fire, casualty and liability policies in Florida'), that they are the real parties in interest in these negligence cases; that the lawyers they employ and provide under the insurance policies to defend the cases, are really representing the Insurance carriers in such litigation and 'when an insurance company 'has both the financial stake in the outcome of the litigation and the burden of carrying the costs of the defense, it is defending its own interests and is entitled to defend by its own employee, so long as he is a member of the Bar and an officer of the Court.'' . . .

'One of the insurance companies there asserted to this Court that:

"(T)he legal responsibility placed on the insurance company give(s) pointed verification to the fact that the interest involved in defense of liability suits is primarily and ultimately The interest of the insurance company.

"It is the insurance company's interest, As an entity, that the lawyer represents, whether house counsel or fee counsel.'

'If this position of the carriers is to be recognized, as it was at their urging by concurring with them in the position they asserted then, it surely follows that such Real party in interest should be present and revealed when the cases are tried. Consistency in the law, and certainly consistency of one's position, is essential to equal justice.'

The language used by petitioner's lawyer could hardly be deemed of such magnitude as to imply a plea of passion or be suggestive of bias or prejudice. Neither is the 'tone' of the comment suggestive of any adverse effect on the jury. As pointed out above, the trial judge even admonished counsel to refrain from further reference to the insurance company and gave an instruction to the jury as to the principal defendant in the trial. It should be manifestly clear by now that the inclusion of an...