DIANE CAROL HENRY, APPELLANT,
v.
BEACON AMBULANCE SERVICE, INC., D/B/A BEACON MEDICAL SUPPLY CO.; JEFFERSON INSURANCE COMPANY OF NEW YORK; MOUNT VERNON FIRE INSURANCE COMPANY AND INSURANCE COMPANY OF NORTH AMERICA, APPELLEES
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Diane Henry appeals the denial of her motion for new trial after a jury verdict in favor of Beacon Ambulance Service. The trial court erred by allowing defense counsel to disclose to the jury Henry's prior settlement with the other defendant during closing argument, which violated Florida law prohibiting disclosure of settlements.
The court held that the trial court erred and should have granted either a mistrial or a new trial. The disclosure of the settlement violated Florida Statutes Section 768.041(3) and the curative instruction given by the trial court was insufficient to remedy the improper argument.
[1] Disclosure to a jury of a settlement between a plaintiff and a third-party defendant is inadmissible and warrants a new trial.
[2] A curative instruction may be insufficient to counteract the effect of improper closing argument regarding a prior settlement.
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Join FLexlaw to unlock all legal intelligence“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.”
This statutory provision established the rule prohibiting disclosure of settlements to juries.
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Join FLexlaw to unlock all legal intelligenceDiane Henry was injured in an automobile collision with James Enick, Jr. Beacon Ambulance Service responded and, according to Henry, improperly remove…
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DELL, Judge.
Diane Henry appeals the denial of her motion for new trial following a jury ver-diet in favor of the appellee Beacon Ambulance Service, Inc. (Beacon).
Appellant suffered personal injuries when her automobile collided with a vehicle operated by James Enick, Jr. Beacon responded to the scene where, according to appellant, Beacon’s ambulance attendants caused or aggravated her injuries by improperly removing appellant from her car. Prior to the Beacon trial appellant settled her claim against Enick. During closing argument in the Beacon case, appellees’ counsel informed the jury of the settlement between appellant and Enick. The trial court sustained appellant’s objection and instructed the jury to disregard the objectionable comments but failed to expressly rule on appellant’s motion for a mistrial. The jury found in favor of Beacon on the issue of negligence.
Appellant contends the trial court should have granted a mistrial after defense counsel disclosed the prior settlement between appellant and Enick. We agree.
Appellees’ disclosure to the jury of the settlement with Enick violated Section 768.041(3), Florida Statutes (1981), which states:
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.
Testimony as to the fact of a settlement is inadmissible and if allowed warrants a new trial. Taylor Imported Motors, Inc. v. Armstrong, 391 So. 2d 786 (Fla. 4th DCA 1980); City of Coral Gables v. Jordan, 186 So. 2d 60 (Fla. 3d DCA 1966), affirmed, 191 So. 2d 38 (Fla.1966). This rule should apply with equal or greater force where, as here, no evidence of a settlement with Enick came out during trial and the jury first learned of the settlement from counsel during closing argument. To make the disclosure of settlement even more egregious, the trial court had already admonished appellees’ counsel not to pursue the settlement issue during the trial.
We are not persuaded by appellees’ argument that appellant “opened the door” when he opined that, “Enick had an ax to grind,” and that defense counsel was simply explaining that Enick did not have an ax to grind because his claim with appellant had been settled. Although the settlement may have removed Eniek’s financial concerns, it did not remove any bias which he may have had as a result of the accident or the ensuing litigation. The comment made by appellant’s counsel had some basis in the evidence. On the other hand, we cannot excuse the disclosure which appellees’ counsel made after being expressly admonished not to pursue the settlement during trial.
Appellees also contend that appellant waived her objection to the improper closing argument when she failed to obtain a specific ruling on her motion for mistrial. We need not reach this issue as we find the curative instruction given after appellant made her motion for mistrial was insufficient to counteract the effect of appellees’ improper argument. The trial court should have either granted appellant’s motion for mistrial as an adequate cure for appellees’ improper argument or granted appellant’s motion for new trial for the same reason.
Accordingly, we reverse and remand for a new trial on all issues.
REVERSED and REMANDED.
GLICKSTEIN and HURLEY, JJ., concur.
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R.J. Reynolds Tobacco Co. v. Marvine Calloway, 201 So. 3d 753 (Fla. 4th DCA 2016)…(“[U]nder the facts of this particúlar case the harmful effect of counsel’s improper argument was most likely not cured or removed by the court’s instruction to the jury to disregard such argument.”); see also Henry v. Beacon Ambulance Serv., Inc., 424 So. 2d 914, 916 (Fla. 4th DCA 1982) (“[T]he curative instruction given after appellant made her motion for mistrial was insufficient to counteract the effect of appellees’ improper argument.”). Our Supreme Court has stated that “[i]f the issue of an opponent’…
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Murad Rashid Muhammad v. Toys "R" US, Inc., 668 So. 2d 254 (Fla. 1st DCA 1996)…a party from disclosing to the jury that a settlement has been made with an “empty chair” (non-party responsible for plaintiffs injuries). Black v. Montgomery Elevator Co., 581 So. 2d 624 (Fla. 5th DCA 1991); Henry v. Beacon Ambulance Service, Inc., 424 So. 2d 914 (Fla. 4th DCA 1982) (testimony as to the fact of a settlement is inadmissible and if allowed warrants a new trial). Herein, even had Muhammad settled with the manufacturer, it would have been completely inappropriate to disclose this fact to the jur…
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Saleeby v. Rocky Elson Constr., Inc., 3 So. 3d 1078 (Fla. 2009)…6) (reversing and remanding for new trial where counsel’s arguments suggesting a settlement with others were “patently prejudicial and may have influenced the jury to return a verdict in favor of Toys ‘R’ Us”); Henry v. Beacon Ambulance Serv., Inc., 424 So. 2d 914, 916 (Fla. 4th DCA 1983) (reversing and remanding for new trial where disclosure of settlement to jury violated section 768.041(3)). From the foregoing discussion, it is clear that violation of sections 768.041 and 90.408 is reversible error. To es…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- City OF Coral Gables v. Jordan, 186 So. 2d 60 (Fla. 3d DCA 1966)
- Janet v. Jordan and Janet V. Jordan as Administratrix of the Estate of John Ellison Jordan, 191 So. 2d 38 (Fla. 1966)
- Taylor Imported Motors, Inc. v. Armstrong, 391 So. 2d 786 (Fla. 4th DCA 1980)