Skislak v. Wilson, 83-3015
| Decision Date | 25 June 1985 |
| Docket Number | No. 83-3015,83-3015 |
| Citation | 10 Fla. L. Weekly 1573,472 So.2d 776 |
| Parties | 10 Fla. L. Weekly 1573 Gerald Earl SKISLAK and Industrial Fire and Casualty Insurance Company, Appellants, v. James R. WILSON, Appellee. |
| Court | Florida District Court of Appeals |
Nancy Little Hoffmann, Fort Lauderdale, for Gerald Skislak.
Fazio, Dawson & Disalvo, Fort Lauderdale, for Indus. Fire.
Horton, Perse & Ginsberg and Edward A. Perse, Virgin & Kray, Miami, for appellee.
Before HENDRY, HUBBART and DANIEL S. PEARSON, JJ.
Appellants Gerald Skislak and Industrial Fire and Casualty Insurance Company (Industrial) appeal from an amended final judgment entered upon a jury verdict awarding damages of $200,000 to appellee James Wilson. It is appellants' contention that a statement made by trial counsel for Mr. Wilson was so inflammatory and prejudicial that they should be granted a new trial. Under the circumstances present in this case, we agree.
The facts giving rise to this appeal may be briefly stated as follows. Gerald Skislak was driving his car eastbound when an unidentified car, which was approaching from the west, made a sudden left-hand turn in front of him. Mr. Skislak swerved to avoid the oncoming vehicle. He lost control of the car and skidded along the shoulder of the road, striking Mr. Wilson who was standing by the roadside. The driver of the unidentified vehicle kept going and was never located.
Mr. Wilson sued Mr. Skislak and Mr. Skislak's insurer, Industrial, for personal injuries he sustained. On voir dire, counsel for Mr. Skislak asked potential jurors whether the fact that his client had insurance coverage would affect their decision as to his client's potential liability. Subsequently, during closing arguments, counsel for Mr. Skislak told the jury that Mr. Skislak shouldn't have to pay for Mr. Wilson's injuries as the accident was unavoidable. Counsel for Mr. Wilson responded that, Mr. Wilson was seeking $500,000 in damages and his counsel knew that Mr. Skislak's insurance coverage was limited to $10,000. Counsel for Mr. Skislak moved for a mistrial, which the court denied.
The jury returned a verdict against Mr. Skislak and Industrial for $200,000. After a motion was made to limit judgment on the basis that insurance coverage was limited to $10,000, the trial court entered an amended final judgment jointly and severally against Mr. Skislak and Industrial for $10,000, plus an additional judgment against Mr. Skislak individually for $190,000. The appellants' motion for a new trial was denied. Mr. Skislak appealed from this judgment and Industrial filed a notice of joinder in the appeal.
Appellee Mr. Wilson contends that Mr. Skislak first raised the issue of the existence of insurance coverage on voir dire, and that his counsel's statement that insurance would cover the damages was a justifiable retaliatory response to Mr. Skislak's attorney's closing argument that Mr. Skislak shouldn't have to pay. We disagree.
The voir dire questioning by Mr. Skislak's counsel as to whether the jurors' decision would be affected by Mr. Skislak's insurance coverage was proper. Juries may be apprised of the existence of the insurance carrier as the real party in interest. Stecher v. Pomeroy, 253 So.2d 421 (Fla.1971). The statements of Mr. Skislak's counsel that Mr. Skislak shouldn't have to pay because the accident was not his fault were also proper. A retaliatory response is not justifiable where no improper statements were made in the first place. 55 Fla.Jur.2d, Trial, § 111, at 516-17 (1984).
The statement made by counsel for Mr. Wilson that Mr. Skislak's insurer would have to pay was clearly improper. Case law solidly supports the rule that it is error to tell the jury the amount of insurance coverage that is available. Josey v. Futch, 254 So.2d 786 (Fla.1971); Stecher v. Pomeroy, 253 So.2d at 422; Beta Eta House...
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