Gov't Emps. Ins. Co. v. Kisha
| Decision Date | 02 April 2015 |
| Docket Number | No. 5D13–1903.,5D13–1903. |
| Citation | 160 So.3d 549 |
| Parties | GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellant, v. Madeline KISHA, Appellee. |
| Court | Florida District Court of Appeals |
Leslie A. Wickes, Kyle C. Jacobs, and Alan S. Wachs, of Adams and Reese LLP, Jacksonville, for Appellant.
Peter A. Shapiro, of The Law Offices Peter A. Shapiro & Jonathan D. Wilson, Orlando, for Appellee.
Litigants are entitled to a fair trial culminating in a jury verdict rendered after consideration of properly admitted evidence and the law. A jury verdict infused with sympathy for a litigant is based on emotion, not the evidence or the law, and may be set aside. Government Employees Insurance Company (GEICO) invokes these well-established principles in this appeal, claiming that it did not receive a fair trial in the underlying declaratory judgment action because the trial court erroneously allowed Madeline Kisha to introduce evidence of her long relationship with GEICO, as an insured, regarding prior policies that had expired long ago. GEICO argues that this evidence was erroneously admitted because it was irrelevant to the issue of whether GEICO cancelled Madeline's current policy for nonpayment of premiums prior to her automobile accident and her claim for personal injury protection (PIP) benefits. GEICO also argues this evidence was highly prejudicial because it filled the jury with sympathy, thus tainting the verdict and judgment declaring Madeline's entitlement to those benefits. Hence, the issues of relevance and prejudice direct our review of that verdict and judgment.1
The current policy had a designated policy period from December 19, 2010, to June 19, 2011, and provided PIP and underinsured/uninsured motorist coverage to Madeline and her husband, Stephen Kisha. The policy contained provisions under the heading “CANCELLATION BY US,” that stated:
The Kishas chose to make monthly premium payments. On March 14, 2011, GEICO sent the Kishas the monthly bill requiring payment of $195.20 by March 29th. When GEICO did not receive the payment by the due date, it sent a Notice of Cancellation for Nonpayment of Premium to the Kishas on April 4th. This Notice was in conformance with the cancellation provisions just quoted and advised the Kishas that unless they submitted the past due payment prior to April 20th, the effective date of cancellation, their policy would be cancelled as of that date. The Notice stated in pertinent part, It added, in boldface, larger font: “Please submit a payment immediately to prevent the cancellation of your policy.” The Notice also advised that if they chose to pay by mail, the payment had to be postmarked by the cancellation date to avoid a lapse in coverage. The Kishas admitted they received the Notice, but neither recalled reading it.
Stephen Kisha testified that he wrote the check for $195.20 to GEICO on April 17th. Although the check was dated April 17th, the postmark on the envelope was April 25th, five days past the cancellation date. Several weeks later, on May 8th, Stephen and Madeline were injured in a rear-end collision. The Kishas were treated in the emergency room and released. They both filed claims for PIP benefits under the current policy.
On May 19th, Madeline signed to receive a certified letter, dated May 11th, from GEICO. This was a reservation of rights letter that stated, “We are making this reservation of rights because is [sic] appears there may not be coverage for the above date of loss.” A separate, nearly identical, letter was sent to Stephen. By letter dated June 24th, GEICO informed Stephen and Madeline that there was no coverage for the accident because the policy had been cancelled April 20th for nonpayment of the premium. Madeline filed the underlying declaratory relief action seeking a judgment declaring she was entitled to PIP benefits under the policy. Although her complaint was amended several times, it is not necessary to discuss the iterations of her pleading other than to say that it asserted theories of waiver and estoppel. Stephen Kisha did not join the suit and is not a party to this appeal.2
Prior to trial, GEICO filed a motion in limine seeking to exclude evidence of the length of time the Kishas had been policyholders (between seventeen and twenty-four years), arguing that such evidence was irrelevant and prejudicial because it would enrage and curry sympathy from the jury. Madeline's attorney argued it would be relevant to establish the theories of waiver and estoppel alleged in the complaint. GEICO responded that the only relevant policy and contract was the one that was cancelled for nonpayment and the payment history for that policy, which included a bounced check and two late payments, is the only history that would be relevant. The court denied the motion and the case proceeded to trial.
The jury found GEICO had waived its right to deny insurance coverage to Madeline and that GEICO was estopped from denying coverage. The trial court rendered the declaratory judgment under review and GEICO appeals, raising the issues of relevance and prejudice.
We believe that the length of time the Kishas had been insured by GEICO was not relevant to prove or disprove any material fact and was, therefore, inadmissible under section 90.401, Florida Statutes (2012) (). This fact did not tend to prove any of the elements of waiver: the existence of a right by GEICO that was waivable; GEICO's knowledge of the right; or GEICO's intention to relinquish the right. Neither did the length of their relationship tend to prove Madeline's estoppel claim—that GEICO made a material representation upon which Madeline detrimentally relied. As GEICO correctly points out, the length of her history with GEICO did not tend to prove the Kishas detrimentally relied on any act or omission of GEICO in connection with the April late payment. Madeline's argument was that GEICO's cashing of the late check on April 29th, nine days after the policy had been cancelled and ten days prior to the accident, and its retention of the funds after the date of the accident created the detrimental reliance—not anything that had previously occurred in the Kishas' payment history.3 Furthermore, there was no evidence that the Kishas had ever before made a payment after a cancellation date, such as occurred here, and thus their payment history was not relevant to the instant situation. Because GEICO had never accepted a payment post-cancellation and reinstated the Kishas' policy after it had been cancelled, the payment history was irrelevant.See State Farm Mut. Auto. Ins. Co. v. Revuelta, 901 So.2d 377 (Fla. 3d DCA 2005).
GEICO contends that its argument regarding the prejudice issue is equally compelling. GEICO identifies the following trial references to the length of time the Kishas had been insureds of GEICO and asserts that such references appealed to the sympathy of the jury, resulting in the verdict it rendered:
1) In his opening statement, Madeline's attorney acknowledged this was a renewal policy “because Mrs. Kisha and her husband have been insured by GEICO for 24 years.”
2) In questioning Stephen Kisha, Madeline's attorney asked how many...
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Gov't Emps. Ins. Co. v. Kisha
...in another case constitute the legal basis for the judgment we review in this appeal. The other case is Government Employees Insurance Co. v. Kisha, 160 So.3d 549 (Fla. 5th DCA 2015), wherein we reviewed the final judgment rendered in favor of Madeline Kisha against Government Employees Ins......
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Homeowners Choice Prop. & Cas. Ins. Co. v. Kuwas
...to whether HCI breached its policy when it denied his claims. In support the argument, HCI relies on Government Employees Ins. Co. v. Kisha , 160 So.3d 549, 552–53 (Fla. 5th DCA 2015) (determining references to length of time insured had been insured by automobile insurer constituted an imp......