Erie Ins. Co. v. Bushy, 80-718

Decision Date25 February 1981
Docket NumberNo. 80-718,80-718
Citation394 So.2d 228
PartiesERIE INSURANCE COMPANY and Margaret Borman, Appellants, v. Brenda Ragland BUSHY, Appellee.
CourtFlorida District Court of Appeals

Alfred A. Green, Jr., Daytona Beach, for appellants.

Janet L. Brown, of Haas, Boehm, Brown & Rigdon, Daytona Beach, for appellee.

SHARP, Judge.

Erie Insurance Company appeals from a final judgment after a jury verdict awarding Bushy damages of $45,000.00. Erie claims some remarks of trial counsel for Bushy were so inflammatory and prejudicial, it should be granted a new trial. Under the circumstances in this case, we agree.

Erie had admitted liability, and the lawsuit concerned the amount of damages only. Counsel for Erie and its insured, Margaret Borman, appeared at trial. Counsel for Bushy criticized Erie for not having an insurance executive at the defendants' table in lieu of Borman. He said he had never seen such "subtle, hidden deception of any defendant." Although not objected to by the defendant, and not preserved as reversible error on appeal, 1 this improper remark heightened the effect of subsequent remarks implying the insurance company was acting in bad faith in this litigation, without any basis or grounds for such a view point.

During his closing argument counsel for Bushy said, "I want you to send a message to Erie, Pennsylvania, that you can't defend a case by coming down here and just subtly hinting that we don't owe it and it must have been something else. Send a message to those people and let them know that they are going to have to pay a penalty."

Counsel for Erie moved for a mistrial. The trial judge denied the motion after the jury retired, and he made no clarifying admonition or warning that punitive damages were not appropriate in this case. We distinguish this case from Murray-Ohio Manufacturing Company v. Patterson, 385 So.2d 1035 (Fla. 5th DCA 1980), because in Murray no contemporaneous motion or objection was made to the remarks, and therefore the question of their prejudicial and inflammatory nature was not preserved for appeal.

We are reluctant to reverse any case because of improper jury arguments. Pitts v. State, 307 So.2d 473 (Fla. 1st DCA 1975). However, whether made by defense or plaintiff's counsel, if they are highly improper and patently prejudicial, we have no alternative. Martin v. State Farm Mutual Automobile Insurance Company, 392 So.2d 11 (Fla. 5th DCA 1980); Eastern S. S. Lines, Inc. v. Martial, 380 So.2d 1070 (Fla. 3d DCA 1980). We cannot tell in this case whether part of the damages award was "punitive," and the product of counsel's wrongful request for punitive damages in a case where there was no basis for them. See Pierce v. Smith, 301 So.2d 805 (Fla. 2d DCA 1974), cert. denied, 315 So.2d 193 (1975). Further, counsel for Bushy has offered us no basis or...

To continue reading

Request your trial
25 cases
  • Eagle-Picher Industries, Inc. v. Cox
    • United States
    • Florida District Court of Appeals
    • December 31, 1985
    ...County, Florida, do not believe that this is the right way to treat other human beings." Under the authority of Erie Insurance Company v. Bushy, 394 So.2d 228 (Fla. 5th DCA 1981) I think this was clearly reversible error and warrants a new trial. 1 As to Eagle-Picher's other contentions: Th......
  • R.J. Reynolds Tobacco Co. v. Schleider
    • United States
    • Florida District Court of Appeals
    • December 26, 2018
    ...seeking compensatory damages to ask a jury to "send a message" and punish or penalize the defendant. See, e.g., Erie Ins. Co. v. Bushy, 394 So.2d 228, 229 (Fla. 5th DCA 1981). Here, however, the jury was instructed to consider whether R.J. Reynolds committed intentional misconduct, meaning ......
  • Monroe v. Foreman
    • United States
    • D.C. Court of Appeals
    • March 25, 1988
    ...no fault insurance bars . . . tort actions for economic loss benefits covered by the no fault act. . . ."). Contra Erie Ins. Co. v. Bushy, 394 So.2d 228, 230 (Fla.App. 1981) (held that under the insurance policy a set-off was unwarranted merely because the plaintiff was a noncomplier); Lisi......
  • Brumage v. Plummer
    • United States
    • Florida District Court of Appeals
    • February 10, 1987
    ...J., dissenting). In Eagle-Picher, this court distinguished the "send a message" argument from the exhortation in Erie Ins. Co. v. Bushy, 394 So.2d 228 (Fla. 5th DCA 1981), and observed that the objectionable comment in Bushy went beyond the "send a message" language found in Eagle-Picher, i......
  • Request a trial to view additional results
1 books & journal articles
  • Avoiding pitfalls in closing arguments.
    • United States
    • Florida Bar Journal Vol. 77 No. 11, December 2003
    • December 1, 2003
    ...intended to punish the defendant rather than compensate the plaintiff. Such an argument can lead to reversal. In Erie Ins. Co. v. Bushy, 394 So. 2d 228 (Fla. 5th DCA 1981), a case without a punitive damages demand, plaintiff's counsel asked the jury to "send a message to Erie, Pennsylvania.......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT