Compania Dominicana de Aviacion v. Knapp

• Decision Date: 20 July 1971
• Docket Number: No. 70--755,70--755
• Citation: 251 So.2d 18
• Parties: COMPANIA DOMINICANA de AVIACION and Underwriters at Lloyds, London, Appellants, v. Charles KNAPP, as father of Clifford Knapp, a deceased minor, and as husband of Ethyle Knapp, Appellees.
• Court: Florida District Court of Appeals

Page 18

251 So.2d 18

COMPANIA DOMINICANA de AVIACION and Underwriters at Lloyds, London, Appellants, v. Charles KNAPP, as father of Clifford Knapp, a deceased minor, and as husband of Ethyle Knapp, Appellees.

No. 70--755.

District Court of Appeal of Florida, Third District.

July 20, 1971.

Rehearing Denied Aug. 20, 1971.

Sam Daniels, McDonald & McDonald, Miami, for appellants.

Spence, Payne & Masington, George C. Vogelsang, Podhurst, Orseck & Parks, Miami, for appellees.

Before SWANN, C.J., and HENDRY, J., and CULLEN, RALPH O., Associate Judge.

PER CURIAM.

This action arose out of an airplane crash which took the lives of two of plaintiff's three sons when the aircraft crashed into the automobile paint and body shop on N.W. 36th Street in Miami where the boys were working at the time. On June 23, 1969 an airplane owned and operated by the defendant Compania Dominicana de Aviacion and insured by the defendant, Underwriters at Lloyds, London, took off from Miami International Airport. Immediately upon take-off, mechanical difficulties arose and the plane, in a matter of minutes, crashed in the N.W. 36th Street area as the pilot attempted to return to the airport.

Defendants appeal from a final judgment for plaintiff, Charles Knapp, as father of Clifford Knapp, a deceased minor, and as husband of Ethyle Knapp. The final judgment in this action for the wrongful death of one of the deceased sons was in the amount of $1,800,000 rendered on a jury verdict for the plaintiff. § 768.03, Fla.Stat., F.S.A. The defendants have presented four points for reversal: failure to grant severance, failure to grant a mistrial for intentional injection of evidence of insurance payment, failure to grant mistrial for misconduct of counsel in claiming that the pilot had flunked U.S. competency tests and failure to grant a new trial on the ground that the verdict was excessive. As to all points we express the view that the appellant has failed to demonstrate reversible error.

Defendants first claim reversible error when the trial court denied their motions to sever Lloyds, the insurance carrier, from Dominicana as a party. Lloyds was joined as a party under Shingleton v. Bussey, Fla.1969, 223 So.2d 713. After respective denials of defendant's motions to sever and for new trial the Supreme Court decided Beta Eta House Corp., Inc. of Tallahassee v. Gregory, Fla.1970, 237 So.2d 163, in which it held that a trial court may order separate trials in cases in which an insurance carrier has been joined as a party defendant. Defendants claim the trial judge was not aware he could sever because Beta Eta which authorized such severances had not been released at the time their respective motions were denied. This argument overlooks the fact that a severance in civil cases has been held to be a matter of discretion in the trial court for many years. Vander Car v. Pitts, Fla.App.1964, 166 So.2d 837; Bowen v. Manuel, Fla.App.1962, 144 So.2d 341; and 32 Fla.Jur., Trial § 18.

We have reviewed the record and the briefs in light of this contention and find that the trial court did not abuse its discretion or commit error in the denial of the motions for severance or the motions for new trial. See Beta Eta, supra; Hartford Accident & Indemnity Company v. Myers, Fla.App.1971, 247 So.2d 83, 2 D.C.A.; Stecher v. Pomeroy, Fla.App.1971, 244 So.2d 488; Durrett v. Davidson, Fla.App.1970, 239 So.2d 46; and Rule 1.270(b), R.C.P., 30 F.S.A.

Defendants next contend that the trial court erred in refusing to grant a mistrial or motion for a new trial because of alleged prejudicial testimony. The testimony elicited from the disinterested witness during the plaintiff's case in chief was that the defendant insurance company had paid for damages to the witness' cars. The defendants argue that the rule pronounced in City of Coral Gables v. Jordan, Fla.App.1966, 186 So.2d 60, affd, Fla.1966, 191 So.2d 38 and Dade County v. Clarson, Fla.App.1970, 240 So.2d 828 was violated. See also § 768.041, Fla.Stat., F.S.A. (formerly § 54.28, Fla.Stat.1965). We hold that the trial court did not err in failing to grant a mistrial or a new trial.

During the trial in chief the manager of a used car lot was called by plaintiff. He was asked by plaintiff's attorney to describe the smoke from the Dominicana aircraft just before it crashed. The following occurred:

'A. Well, it was white. It was a whitish blue color and just a lot of it. In other words, when it come over it sprayed a lot of oil on our cars. The reason we know this, we had to wash all of the cars on our lot that was on the north end of the lot itself and the south end of the lot did not have any. So it appeared that something blowing throwed oil all over everything as it came across our lot there. And all this oil just went all over our cars and, in fact, the insurance company paid for cleaning all our cars.'

The following testimony was then elicited:

'Q. That is Lloyd's of London?

A. Yes, sir.

ATTORNEY (D): I object, Your Honor.

THE COURT: It has been answered. I sustain the objection.

ATTORNEY (D): I move for a mistrial. I think that is an improper and prejudicial comment for counsel to make.

THE COURT: Denied.

ATTORNEY (P): I do not know whether he is talking about his own insurance company or Lloyd's.

ATTORNEY (D): The implication was that he was trying to shove it down our throat.

THE COURT: I have sustained the objection. The motion is denied. Disregard it.'

After the noon recess, plaintiff's counsel requested the trial court to strike and instruct the jury to disregard the claims payment evidence; defense counsel objected to any further treatment of the matter on the ground it would only serve to emphasize it in the jurors' minds; and, accordingly, the trial judge said nothing further about the incident.

The testimony elicited contained two elements which have been looked upon as wholly irrelevant to the issues of a negligence action and as potentially prejudicial to a party. These elements are insurance and settlement. We have already determined that the trial court did not err in refusing to sever the insurance company, and therefore conclude that the mention of insurance did not constitute reversible error.

Even if insurance is mentioned, frequently curative instructions are the proper means of correcting the error. Only where the impropriety is so egregious that such instructions cannot dissipate the prejudice, should a mistrial be granted; e.g., Dade County v. Clarson, supra. The principle is well known that the parties are not entitled to a perfect trial, but only one free from reversible error. Likewise, the rule has evolved that a motion for mistrial is directed to the sound judicial discretion of the trial judge who has observed the action and its effect upon the jurors. See generally, Dade County v. Clarson, supra. Therefore, not every breath of insurance automatically results in a mistrial. See generally, Douglass v. Galvin, Fla.App.1961, 130 So.2d 282, 284--285. Because of these considerations, and the possibility of invited error or waiver (these two arguments are not raised herein), parties who object to the giving of curative instructions are sometimes not heard to complain; e.g., Douglass v. Galvin, supra. Each decision, then, must be evaluated to determine whether the trial judge abused his discretion in deciding whether a curative instruction can or cannot suffice. Douglass v. Galvin, supra. Therefore, even assuming the mention of insurance was prejudicial, then we conclude that the trial judge here did not err in determining that the problem could be remedied by a curative instruction.

Here, the statement of the disinterested witness was volunteered. The witness' remark was fleeting, and a minor incident in a seven-day trial. The court did state, 'I have sustained the objection. The motion is denied. Disregard it.' Defendants subsequently objected to further curative instructions. The plaintiff has argued that the jurors, on voir dire, indicated that newspaper articles which they had read before the trial reported that Lloyds' was the insurance carrier for the airline. We conclude that this was not the ordinary case where insurance coverage is constantly thrust before the jurors; cf. Ryan v. Noble, 95 Fla. 830, 116 So. 766.

One reason for a broad rule of exclusion as to insurance matters is the possibility of prejudice, which possibility is significantly diminished here. A second reason why the mention of insurance is often viewed as a contaminant to the laboratory atmosphere of reasoned deliberation is '* * * chiefly * * * the Assumption that a knowledge of the fact of insurance against liability will motivate the jury to be reckless in awarding damages * * *.' 2 Wigmore, Evidence § 282a, pp. 133--134 (3rd ed., 1940). This assumption cannot be drawn universally. The Florida decisions recognize, tacitly or expressly, '* * * that the injection of liability insurance matters into a tort action is no longer Ipso facto prejudicial as a matter of law.' Utica Mutual Insurance Company v. Clonts, 248 So.2d 511, 2 D.C.A., filed May 19, 1971. Such an assumption in this case is totally without foundation where a Government is the defendant tortfeasor (and not a mere nominal party).

There are many situations in which the rule against the injection of insurance in the trial of a cause has no application. For example, if an abundantly wealthy entity with assets that included an insurance company had been sued in a negligence action and the fact that it was insured had been elicited, the conclusion would be absurd that the financial giant would be entitled to a new trial on the grounds of prejudice. Awarding a new trial in that instance would not comport with logic or common sense; similarly, awarding a new trial because of the mention of insurance would be an improper result where the government of a sovereign nation is the alleged tortfeasor.

Summarizing what we have said as to the mention...