Holmes v. Area Glass, Inc.

• Decision Date: 26 July 2013
• Docket Number: No. 1D12–2739.,1D12–2739.
• Parties: Jarvis A. HOLMES and Marsha Holmes, Appellants, v. AREA GLASS, INC. and State Farm Mutual Insurance Company, Appellees.
• Court: Florida District Court of Appeals

117 So.3d 492

Jarvis A. HOLMES and Marsha Holmes, Appellants,

v.AREA GLASS, INC. and State Farm Mutual Insurance Company, Appellees.

No. 1D12–2739.

District Court of Appeal of Florida, First District.

July 26, 2013.

John W. Wesley of Wesley, McGrail & Wesley, Ft. Walton Beach, for Appellants.

Ellen C. Pappas of Seymour & Whitney, Ft. Walton Beach, for Appellees.

WOLF, J.

Appellants, the plaintiffs in the trial court, raise several issues on appeal. We find that one has merit and requires reversal and remand for a new trial. It is, therefore, unnecessary to reach the other issues. We determine the trial court erred in denying the request to remove a dismissed party from the caption on the verdict form.

In March 2009, appellants, Jarvis and Marsha Holmes, filed a negligence action against Area Glass, Inc. (Area Glass) and State Farm Mutual Insurance Company (State Farm). They alleged they contacted their insurance company, State Farm, about a damaged windshield, and State Farm directed them to use Area Glass for repairs. They asserted that Area Glass negligently and improperly replaced the windshield which allowed water to leak inside the vehicle resulting in mold and mildew exposure to Mr. Holmes. Count I addressed Area Glass' negligence in replacing the windshield. Count II alleged that State Farm was negligent by failing to investigate Area Glass adequately before hiring it and by failing to confirm that Area Glass was adequately insured against potential harm done to appellants. Appellants claimed that the actions of Area Glass and State Farm resulted in physical injury to Mr. Holmes, loss of use and value of the car, and loss of consortium to Mrs. Holmes. The complaint did not expressly allege that State Farm was in any way vicariously liable for Area Glass' negligence.

In October 2010, appellants voluntarily dismissed Area Glass from the lawsuit. The notice of dismissal and any potential settlement agreement were not included in the record on appeal. There appears, however, to be no dispute that a settlement occurred.

Prior to trial in April 2012, the parties submitted proposed verdict forms. Appellants' form purposely did not include Area Glass in the caption. State Farm objected, arguing that the captions of a case should not be changed. Counsel pointed to Trawick's Florida Practice and Procedure, § 6–2, which states that “the names of the parties in the caption are never changed even when all original parties have ceased to be parties.” Counsel also cited to Altamonte Hitch & Trailer Service, Inc. v. U–Haul Co. of Eastern Florida, 498 So.2d 1346 (Fla. 5th DCA 1986), for the same proposition. State Farm specifically feared that, without Area Glass in the caption, the jury would believe that State Farm was Area Glass' insurer, that Area Glass was somehow under insured or that State Farm would be “on the hook” for Area Glass' negligence.

Appellants pointed out that witnesses were repeatedly asked the question to make it clear that State Farm was not Area Glass' insurer, and that Altamonte Hitch was not on point since it involved the question of recovering attorney's fees against someone listed in the caption but not in the body of the complaint. Counsel argued that listing Area Glass on the verdict form would be counter to the rule which excludes disclosure of settlement to the jury. Counsel feared the jury would be inquisitive and notice that something was amiss. The court chose to leave Area Glass in the caption of the verdict form.

Once the case was tendered to the jury for deliberation, the jury returned the question: “Why is Area Glass listed as a defendant on the top of the verdict form?” Appellants asked the court to answer that the only defendant in the case was State Farm. The court instead chose to tell the jury that it could not answer the question and that they should “look to the testimony and the evidence that was presented and draw conclusions from that.” A few minutes later the jury returned a verdict in State Farm's favor.

Appellants filed a motion for new trial based on the inclusion of Area Glass in the caption and stated Area Glass' absence from the case could only imply that it had settled, which was an inference the jury should not have been encouraged to make.^* The trial court summarily denied the motion without explanation.

We see no valid reason for including Area Glass in the caption to the verdict form and also determine the trial court's response to the jury's question exacerbated the problem.

Section 768.041, Florida Statutes (2012), prohibits the admission at trial of any evidence of settlement or dismissal of a defendant. Specifically, “the fact of such a release or covenant not to sue, or that any defendant has been dismissed by order of the court shall not be made known to the jury.” The unambiguous language of the statute admits no exceptions, and violation of the prohibition is reversible error. Saleeby v. Rocky Elson Const., Inc., 3 So.3d 1078, 1080 (Fla.2009). Even a reference to settlement by counsel during voir dire or arguments necessitates a new trial. See Muhammad v. Toys R Us, Inc., 668 So.2d 254 (Fla. 1st DCA 1996) and Henry v. Beacon Ambulance Service, Inc., 424 So.2d 914 (Fla. 4th DCA 1982). In other words, disclosure of the fact of settlement or...