Nicaise v. Gagnon, 90-3324
| Decision Date | 05 February 1992 |
| Docket Number | No. 90-3324,90-3324 |
| Citation | 593 So.2d 579 |
| Parties | 17 Fla. L. Weekly D405 Mitchell NICAISE, Appellant, v. Don Joseph A. GAGNON, Appellee. |
| Court | Florida District Court of Appeals |
Jane Kreusler-Walsh of Klein & Walsh, P.A., West Palm Beach, and Joel D. Kenwood of Woods, Oviatt, Gilman, Sturman & Clarke, Boca Raton, for appellant.
Michael B. Davis of Davis Colbath Isaacs & Stinson, P.A., formerly known as Davis Carroll Colbath & Isaacs, P.A., West Palm Beach, for appellee.
During closing argument, plaintiff's counsel instructed the jury "not to worry whether the defendant will contribute a dime of money." Upon the premise that these remarks were an impermissible reference to insurance, the defense immediately moved for a mistrial and the trial judge deferred ruling on it. After a favorable verdict, the trial court entered final judgment for the plaintiff; but at a post-trial hearing, the trial court granted a renewed motion for a mistrial ordering a new trial on both liability and damages. We affirm.
The plaintiff was injured on the job by a falling roof tile and filed suit against the president/co-owner of his corporate employer, individually. The jury verdict in his favor was for $220,000, which the judge initially reduced to $161,000 before ordering the new trial.
Neither party has cited nor have we found a Florida case involving the implicit reference to the existence of insurance coverage but not actually mentioning the word. As the employer correctly points out, it is clear in Florida that the introduction of the subject of insurance in an action where insurance is not a proper issue constitutes prejudicial error. This is particularly true when the suggestion relates to whether an adverse judgment will be paid by the defendant or its insurer. See Carlton v. Johns, 194 So.2d 670 (Fla. 4th DCA 1967); Pierce v. Smith, 301 So.2d 805 (Fla. 2d DCA 1974), cert. denied, 315 So.2d 193 (Fla.1975). However, in those cases, the word insurance was expressly mentioned.
The employee points out that use of the word insurance does not always constitute prejudicial error. See Crowell v. Fink, 167 So.2d 614 (Fla. 1st DCA 1964); Industrial Waste Service v. Henderson, 305 So.2d 42 (Fla. 3d DCA 1974) (); Metropolitan Dade County v. Dillon, 305 So.2d 36 (Fla. 3d DCA 1974), cert. denied, 317 So.2d 442 (Fla.1975); Sayad v. Alley, 508 So.2d 485 (Fla. 3d DCA), rev. denied, 518 So.2d 1278 (Fla.1987) (). The mention of the word insurance in those cases, however, was not related to who would be paying. Moreover, not one of those cases reviewed an order granting a new trial.
Admittedly, it would appear that the statement to the jury that they were "not to worry whether the defendant [would] contribute a dime of money" was innocuous and had we been the trial judge we doubt we would have granted the new trial. 1 However, the standard of appellate review of an order granting a new trial is well settled. The trial court has broad discretion to determine whether to grant a new trial and its decision to do so will not be reversed on appeal, absent a clear showing of an abuse of discretion. McDonald Construction Co. v. Seaboard Coast Line, 375 So.2d 856 (Fla. 2d DCA 1979), cert. denied, 383 So.2d 1198 (Fla.1980). The employer was the only defendant in this case which makes the objected to phrase, and particularly the word "contribute," all the more susceptible to the...
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