Industrial Fire and Cas. Ins. Co. v. Wilson

• Decision Date: 31 January 1989
• Docket Number: 87-0609,Nos. 86-2819,86-2906 and 87-0482,s. 86-2819
• Citation: 537 So.2d 1100,14 Fla. L. Weekly 334
• Parties: 14 Fla. L. Weekly 334 INDUSTRIAL FIRE AND CASUALTY INSURANCE COMPANY, Appellant/Cross Appellee v. James R. WILSON, Appellee/Cross Appellant, Gerald Earl SKISLAK, Appellant/Cross Appellant, v. James R. WILSON, Appellee.
• Court: Florida District Court of Appeals

Page 1100

537 So.2d 1100

14 Fla. L. Weekly 334

INDUSTRIAL FIRE AND CASUALTY INSURANCE COMPANY, Appellant/Cross Appellee v. James R. WILSON, Appellee/Cross Appellant, Gerald Earl SKISLAK, Appellant/Cross Appellant, v. James R. WILSON, Appellee.

Nos. 86-2819, 87-0609, 86-2906 and 87-0482.

District Court of Appeal of Florida,

Third District.

Jan. 31, 1989.

Fazio, Dawson, DiSalvo & Cannon, and Marcia E. Levine, Ft. Lauderdale, for appellant/cross appellee.

Jeanne Heyward, Miami, for appellant/cross appellant.

Horton, Perse & Ginsberg and Edward A. Perse, Miami, for appellee/cross appellant.

Before NESBITT, FERGUSON and LEVY, JJ.

PER CURIAM.

James R. Wilson was injured in March of 1979 while standing near an intersection in Homestead, Florida. He was struck by a vehicle which was driven by Gerald R. Skislak, and which was insured by Industrial Fire and Casualty Insurance Company. Skislak was travelling east on Southwest 216th Street when a phantom vehicle travelling in the opposite direction suddenly turned south (left) in front of him. Skislak tried to avoid an accident by turning north, but lost control of his vehicle and ran off the roadway and hit Wilson.

Consequently, Wilson filed a lawsuit against Skislak and Industrial Fire. The issues in that case were tried before a jury, resulting in a verdict in favor of Wilson in the amount of $200,000.00. Skislak and Industrial Fire appealed, with the appeal resulting in a reversal and the case being remanded for a new trial due to inappropriate remarks made by Wilson's attorney during the trial. Skislak v. Wilson, 472 So.2d 776 (Fla. 3d DCA 1985).

Accordingly, the case was retried, resulting in a verdict in favor of Wilson in the amount of $500,000.00. Skislak and Industrial Fire each moved for a Judgment Notwithstanding the Verdict or, in the alternative, New Trial or Remittitur, which motions were denied. The trial court granted Industrial Fire's renewed motion to limit the judgment against it to the amount of its policy limits, to-wit: $10,000.00. The trial court then entered a final judgment in favor of Wilson and against Skislak and Industrial Fire, jointly and severally, for $10,000.00 (the policy limits), and against Skislak alone for $484,900.00. Skislak and Industrial Fire appealed the final judgment in a timely manner.

Thereafter, Industrial Fire discovered that the jury foreperson in the second trial had concealed the existence, and nature, of his insurance history with Industrial Fire. Skislak and Industrial requested the appellate court to relinquish jurisdiction so that the matter could be raised in the trial court. That request was granted and Skislak and Industrial Fire filed their motion in the trial court seeking relief from the judgment. That motion was denied. Skislak and Industrial Fire then appealed the denial of that motion. Wilson, joined by Skislak, cross-appealed the trial court's order limiting the final judgment against Industrial Fire to the policy limits. All appeals were consolidated herein.

Appellants Skislak and Industrial Fire raise four main points on appeal, contending that any one of them, considered individually, would entitle them to a reversal and a new trial. These four points may be summarized as follows:

I. The trial court committed reversible error in refusing to instruct the jury on the "sudden emergency" doctrine;

II. The trial court erred in denying Skislak's and Industrial Fire's Motion for Relief From Judgment where, after the second trial, it was learned that, in response to voir dire questioning concerning any prior contact with Industrial Fire, the gentleman who subsequently became the jury foreperson had "concealed" his insurance history with Industrial Fire. Skislak and Industrial Fire maintained that if the juror's insurance history had been known, they would have been in a position to either ask the court to excuse the juror "for cause" or they would have excused him peremptorily. In addition, they would have been in a position to, at the very least, inquire further of the prospective juror concerning his insurance history and his prior relationship with Industrial Fire;

III. The trial court erred in denying Skislak's and Industrial Fire's motions for mistrial and for new trial where Wilson's attorney allegedly committed prejudicial error by improperly commenting to the jury, during both voir dire and closing arguments, about the jury's racial, religious, ethnic and occupational composition, which comments Skislak and Industrial Fire contend were intended to curry favor with the jury;

IV. The amount of the verdict is excessive considering the fact that the verdict in the second trial was more than twice the amount of the verdict in the first trial, even though both trials involved substantially the same evidence.

We agree that the issues raised by appellants' second point (concerning the issue of juror concealment) require a reversal and a new trial.

During voir dire, Industrial Fire's trial counsel carefully posed questions designed to discover whether any of the prospective jurors had any knowledge of, or relationship with, his client. Specifically, the panel was asked the following questions by Industrial Fire's attorney:

"And his insurance company--which is a party in this lawsuit--is Industrial Fire and Casualty Insurance Company.

Do any of you recognize that company's name? Do any of you have any policies with that company or have you worked with that company or...