Mercury Ins. Co. of Florida v. Moreta
| Decision Date | 02 May 2007 |
| Docket Number | No. 2D05-5945.,2D05-5945. |
| Citation | 957 So.2d 1242 |
| Parties | MERCURY INSURANCE COMPANY OF FLORIDA, Appellant, v. Victor A. MORETA, Appellee. |
| Court | Florida District Court of Appeals |
Nancy A. Lauten and George A. Vaka of Vaka, Larson & Johnson, P.L., Tampa, for Appellee.
Mercury Insurance Company of Florida appeals an adverse judgment entered against it on Victor A. Moreta's claim for uninsured/underinsured motorist (UM) benefits. Mercury raises three issues concerning the trial court's denial of its motion for new trial. All of the issues raised by Mercury are without merit, and we affirm the judgment. However, we write to address Mercury's point concerning the repeated and extensive remarks made by Mr. Moreta's counsel during closing argument about Mercury's alleged litigation practices and its alleged attempt to shirk its contractual obligations to Mr. Moreta.1 According to Mercury, these remarks were so exceptionally objectionable that they fall within the extremely limited exception to the rule requiring a contemporaneous objection to preserve a claim of error based on improper closing argument. We agree with Mercury that opposing counsel's remarks were improper, but we hold that the trial court did not abuse its discretion in denying Mercury's motion for new trial when Mercury made no contemporaneous objection to the improper remarks.
On March 30, 2002, Mr. Moreta was involved in an automobile accident at the intersection of Dale Mabry Highway and West Lambright Street in Tampa. Joseph A. Colon was the driver of the other vehicle involved in the accident. Mr. Colon ran a red light, and Mr. Moreta's vehicle hit Mr. Colon's vehicle in a "T-bone" type collision.
Mr. Moreta did not immediately seek medical attention after the accident. Instead, he went home. Mr. Moreta later sought treatment for back pain that he attributed to the force of the collision. Approximately two years after the accident, a neurologist diagnosed Mr. Moreta as having a herniated disc at the L5-S1 level and a bulge at the L4-5 level. In December 2004, a surgeon performed a left L4-5 percutaneous endoscopic discectomy on Mr. Moreta.
When the accident occurred, Mr. Moreta's wife had a private passenger automobile policy with Mercury. Mr. Moreta was listed as one of the "DRIVERS" on the policy. The policy terms pertinent to UM coverage provided, in pertinent part:
We will pay for damages, other than punitive or exemplary damages, which an insured person is entitled to recover from the owner or operator of an uninsured car because of bodily injury:
1. sustained by an insured person;
2. caused by accident; and
3. arising out of the ownership, maintenance or use of an uninsured car.
The bodily injury must be a serious injury as described in Section 627.737(2) of the Florida Motor Vehicle No-Fault Law before we will pay for damages consisting of pain, suffering, mental anguish, or inconvenience.
Mr. Moreta qualified as "an insured person" within the meaning of the policy. Mrs. Moreta's policy with Mercury provided for non-stacked UM coverage with a policy limit of $25,000 per person and $50,000 per accident.
In February 2004, Mr. Moreta filed a two-count complaint against Mr. Colon and Mercury. Count one of the complaint was for negligence against Mr. Colon. In the second count, Mr. Moreta sought to recover UM benefits from Mercury. Mr. Moreta alleged that Mr. Colon was an underinsured motorist within the meaning of the policy of insurance issued by Mercury. One week before trial, Mr. Moreta took a voluntary dismissal of his claim against Mr. Colon.
In September 2005, the case went to trial before a jury on Mr. Moreta's UM claim. At trial, Mercury stipulated that Mr. Colon had been negligent and that Mr. Moreta had not been comparatively negligent. Thus the issues to be decided by the jury were (1) whether Mr. Moreta had sustained an injury as a result of the collision; (2) if so, whether the injury was permanent within a reasonable degree of medical probability or involved the significant and permanent loss of an important bodily function; and (3) the amount of the damages, if any, to which Mr. Moreta was entitled. In the absence of any issues concerning responsibility for the collision, the trial developed into a battle of expert medical witnesses. Mr. Moreta's experts testified that his back problems and surgery resulted from the collision. The surgeon who had operated on Mr. Moreta also testified that Mr. Moreta would probably require further surgery—a fusion at the L5-S1 level. In response, Mercury's expert testified that whatever injuries Mr. Moreta had sustained in the accident were resolved within a few months after the incident. The defense expert opined that the disc problems in Mr. Moreta's back were not caused by the collision. Instead, Mercury's expert attributed Mr. Moreta's back problems to another—albeit unknown—cause that occurred after the original problems had been resolved.
At the conclusion of the evidence, the trial court directed a verdict in favor of Mr. Moreta on the issue that the accident had caused an injury. The trial court also ruled that Mr. Moreta was entitled to recover his accrued medical expenses through July 17, 2003. The trial court denied Mr. Moreta's motion for a directed verdict on the issues of permanency and the significant and permanent loss of an important bodily function. Based on Mercury's stipulation on the issue of negligence and on the trial court's grant of a partial directed verdict, the matters submitted to the jury were limited to the medical issues and damages. With this background, we now turn to the remarks made by opposing counsel in his closing argument.
Mercury's complaints about opposing counsel's closing argument focus on his repeated comments about Mercury's alleged litigation practices and its alleged attempt to shirk its contractual obligation to Mr. Moreta. Initially, we note that Mercury's counsel first raised this topic with the trial court after jury selection was completed and before counsel began their opening statements:
But to sit there and open his heart and say, oh, you know, they left him in the street alone in the rain or something, they left him out hanging, maybe along those lines. Is that kind of what you're saying?
I understand your point. If I start seeing [Mr. Moreta's counsel] going down that emotional view with the jurors for sympathy, then I can stop that. But, again, a business factual basis I don't think that case stops a relationship, a business contract nexus. Does It? I don't think it does.
(Emphasis added.) With that, the trial court and the attorneys began a discussion of unrelated matters.
We note from the foregoing colloquy between the trial court and counsel that the trial court established clear ground rules governing opposing counsel's remarks concerning the relationship between Mr. Moreta and Mercury. Opposing counsel was to limit his remarks about Mercury to the "business contract nexus" between the parties and to avoid appeals based on sympathy. If Mr. Moreta's counsel exceeded these limitations and began "opening his heart," then Mercury's counsel was to object so that the trial court could rule on the propriety of any comments made. Mercury's counsel did not demur or express any misunderstanding about the ground rules for argument that the conscientious trial judge announced in advance.
Unfortunately, once closing arguments began, both counsel appear to have either forgotten or ignored the ground rules for argument established at the beginning of the trial. After a few preliminary remarks, opposing counsel launched his closing argument with an attack on Mercury's alleged claims-handling practices and litigation tactics. Using an analogy drawn from his own college art history course, Mr. Moreta's counsel argued that there were certain recurring themes one could identify in every case where Mercury was the...
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