Angelucci v. Gov't Employees Ins. Co.
| Decision Date | 19 January 2011 |
| Docket Number | No. 10-10776,D. C. Docket No. 3:08-cv-00660-HES-MCR,10-10776 |
| Parties | DAVID ANGELUCCI and KATHLEEN ANGELUCCI, Plaintiffs-Appellants, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, a foreign corporation, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
[DO NOT PUBLISH]
Appeal from the United States District Court
for the Middle District of Florida
Before WILSON, PRYOR and ANDERSON, Circuit Judges.
This case raises two challenges to evidentiary rulings made by the trial court.
The first involves a violation of the Florida privilege against the use of accident reports and their contents at trial. The second ruling concerns a violation of the parties' pre-trial agreement not to discuss the Plaintiffs' finances. Because we agree with the Angeluccis that the district court abused its discretion when it allowed testimony about the accident report, we vacate and remand for a new trial.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Appellants, David and Kathleen Ann Angelucci, were involved in a car accident while on vacation in Florida on June 15, 2007. David testified that he immediately felt a sharp pain in his neck, and Kathleen testified David appeared to be in pain and was holding his neck. Their cousin also testified that David grabbed his neck, had trouble moving it, and had trouble getting out of the car. Immediately after the accident, Kathleen drove David to a walk-in clinic but was told that an x-ray technician was not on duty. David chose not to go to the emergency room then so as not to disappoint his children, who wanted to go to the beach. After a short visit to the beach, during which David sat in the car, the Angeluccis returned to the cousin's house, and another family member drove David to the emergency room. A CT scan revealed evidence of a disruption of a previous cervical fusion and David later sought treatment from his orthopedic surgeon at home who alsofound evidence of a disruption at the site of a previous cervical fusion.
David had been injured in two serious car accidents before the 2007 accident. In 1996 he was rear-ended, sustained a neck injury, and had fusion surgery at the C5-C6 level. In 2003 he was again rear-ended and underwent a fusion at the next lower level, C6-C7. After the 2003 accident he retired with disability benefits from his job as a tow truck operator for the Connecticut Department of Transportation.
As a result of the 2007 accident, the Angeluccis sought uninsured motorist benefits from Appellee GEICO. GEICO denied those benefits because it claimed that David had not suffered any permanent injuries and so did not meet Florida's automobile no-fault threshold, found at Fla. Stat. § 627.737. Thereafter, the Angeluccis filed suit against GEICO, seeking the benefits. The parties disputed the severity of the impact suffered during the accident, with the Angeluccis portraying the accident as serious and GEICO claiming it was a minor impact accident. Each side produced experts who testified about whether David had suffered a permanent aggravation of a pre-existing neck injury, specifically whether the accident had caused a disruption of two previous cervical fusion surgeries. Two of the Angeluccis' expert witnesses were David's treating physicians who had been treating him since before 2003, and both had participated in his cervical fusionsurgery. All three of his experts testified that the 2003 scans showed a bony fusion or at least a fibrous union which had been disrupted by the 2007 accident. GEICO pointed out that David's treating physicians did not agree on where in the 2007 scan this was demonstrated. GEICO's neurosurgeon expert testified there was a fibrous union in 2007 but that it had not been disrupted by the accident. Another GEICO expert, a radiologist, testified that there was no evidence of a disruption of the 2003 surgery. GEICO's third expert, an orthopedist who had treated David in the past, testified that the 2003 surgery had been successful but did not testify about the 2007 accident. He testified that he had seen David a month after the 2007 accident and that David did not tell him about it. Further, he testified that David's condition was persistent and remained unchanged since 2004.
GEICO noted that David's 2004 application for disability benefits claimed pain in his lower back and neck accompanied by depression and that he was unable to do yardwork or housework. David testified that the 2003 surgery had resolved most of the pain but that, after the 2007 accident, he has had continuous pain in the back of his neck. GEICO disputed David's testimony and showed surveillance video of David changing a bicycle tire, riding a motorcycle, operating his truck, and filling a gas can at a gas station.
The first evidentiary issue arose when GEICO called the officer who hadinvestigated the 2007 accident. GEICO asked the officer about her observations at the accident scene as well as whether anyone had reported any injuries. The officer reported that she neither saw any injuries nor were any reported to her. She did admit that she did not know if anyone had sought medical care after leaving the scene. The district court had granted the Angeluccis' pre-trial motion in limine to exclude any statements to the investigating officer at the accident scene. Before the examination of the officer began, GEICO had sought leave to ask these questions and the district court had permitted them over objection. At closing argument, counsel for GEICO reiterated and emphasized that the officer testified that David had not complained of an injury.
In the second instance, counsel for GEICO asked David if the truck in the surveillance video was new, whether he owned the truck, and whether he owned the motorcycle. Then counsel asked if the Angeluccis owned any rental properties in North Carolina, to which David answered yes. The Angeluccis moved for a mistrial on the ground that the question violated the parties' pre-trial agreement not to inquire about the Angeluccis' real estate holdings and prior settlements. GEICO argued successfully that the Angeluccis had opened the door to the question with their testimony that implied they were poor; GEICO argued that the question was intended to address earlier testimony by Kathleen that they had moved from Connecticut because it was too expensive. The court denied the Angeluccis' motion because it ruled they had opened the door to such questions, the pre-trial ruling and agreement could not act as a shield when they pursued those lines of questioning, and the testimony elicited by GEICO did not address the subject of prior settlements or pinpoint the source of the money as coming from those settlements. The Angeluccis attempted to mitigate the evidence by calling Mrs. Angelucci back to the stand, where she testified that the properties were purchased with the proceeds of the sale of their house in Connecticut and earned $65 and $160 a month.
After the jury returned a verdict for GEICO, the Angeluccis moved for a new trial. The district court denied the motion, reasoning that the officer's statements regarding her knowledge of injuries at the scene of the accident did not violate the accident report privilege. Further, the questions about the Angeluccis' rental properties did not warrant a new trial because the Angeluccis opened the door to questions about their finances and were able to rebut the testimony. Finally, the court stated that "the verdict returned by the jury was supported by the cumulative evidence that was admitted during trial."
I. DISCUSSION
Appellants point to Fla. Stat. § 316.066(5), which prevents the use of an accident report and statements made for the purpose of creating an accident report. The statute states, in pertinent part:
Except as specified in this subsection, each crash report made by a person involved in a crash...
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