STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, APPELLANT,
v.
MARSHALL AND DONALD GAGE, APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that a trial court's order granting a new trial based on the perceived error of failing to strike an expert witness's answer, which was responsive to an invited question, must be reversed.
[1] A trial court's discretion in granting a new trial is drastically limited when the ruling is grounded on a question of law, uncontaminated with factual conflict.
[2] An appellate court reviews an order granting a new trial based solely on the grounds specified in the order.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligenceFollowing a jury verdict for the defendant insurer in an uninsured motorist case, the trial court granted the plaintiffs' motion for a new trial, find…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse No-Fault Threshold cases and more on FLexlaw
PER CURIAM.
We grant appellant’s motion for rehearing and substitute the following opinion for the opinion filed August 12, 1992.
Appellant insurer, defendant in this uninsured motorist case, received a jury verdict in its favor, but that victory was taken away by post-trial order granting plaintiffs’ motion for a new trial. We reverse.
The jury found the uninsured motorist and the plaintiff Marshall Gage equally at fault. Nonetheless, the jury returned its verdict in favor of the defendant insurer based on the finding that Mr. Gage had not met the no-fault threshold requirement of permanent injury. The proof on this issue was in conflict. Dr. Kishner, Mr. Gage’s treating physician, testified that Mr. Gage had a permanent injury as a result of the accident. Dr. Schnell, the defendant’s medical expert, testified on direct that from his examination of Mr. Gage he found no indication of a permanent injury. Extensive cross examination failed to dislodge Dr. Schnell from his position. Taking a different tack, plaintiffs’ counsel embarked on a series of questions of Dr. Schnell concerning what consideration he had given to Dr. Kishner’s records and findings. To each of these questions Dr. Schnell replied, in essence, that he did not depend upon the other doctors’ findings, but rather upon his own findings and examinations. Finally, however, plaintiffs’ counsel asked outright, “how do you account for Dr. Kishner’s findings,”1 to which Dr. Schnell responded:
I can’t give you an opinion for Dr. Kish-ner. If you really want me to get into it, I’ll get into it. We know Dr. Kishner is a plaintiff’s doctor. He finds positive EMG’s in every patient he sees. If you want an opinion, I’ll give it to you. I don’t want to do this. I don’t like to comment on other doctors.
Plaintiffs’ motion to have this answer stricken as an improper comment by one expert on the qualifications or credibility of another,2 and the accompanying motion for a curative instruction to the jury, were both denied, the court noting that the doctor’s response was invited by the form of the question. Notwithstanding, the court granted plaintiffs’ post-trial motion for new trial on the sole ground that the court’s failure to strike Dr. Schnell’s response and appropriately instruct the jury was prejudicial error notwithstanding such response was invited by the line of questions directed to the witness.
While ordinarily the granting of a new trial is within the sound discretion of the trial judge, reversible only on showing of an abuse of discretion3, if the ruling is grounded on a question of law, uncontaminated with factual conflict, the area of discretion in granting a new trial is drastically limited, Gatlin v. Jacobs Const. Co., 218 So. 2d 188 (Fla. 4th DCA), cert. denied, 225 So. 2d 529 (Fla.1969), and the appellate court is on the same footing as the trial judge in determining the correct law to be applied. American Employees Ins. Co. v. Taylor, 476 So. 2d 281 (Fla. 1st DCA 1985), cause dismissed, 485 So. 2d 426 (Fla.1985); Boutwell v. Bishop, 194 So. 2d 3 (Fla. 1st DCA 1967).
In reviewing an order granting a new trial the appellate court considers the sufficiency of only those grounds specified in the order. Poindexter v. Seaboard Airline R.R., 56 So. 2d 905 (Fla.1951). Where the only ground for granting a new trial is the trial court’s belief that it had erred in admitting certain evidence, the reason for granting the new trial fails if the evidence was properly admissible. Boutwell v. Bishop, 194 So. 2d 3 (Fla. 1st DCA 1967); Ewing v. Miller, 172 So. 2d 889 (Fla. 2d DCA 1965). Here, the only ground was the trial court’s perceived error in its failure to strike Dr. Schnell’s response to the question propounded on cross examination by plaintiff’s counsel and to appropriately instruct the jury regarding such response.
Because the response of Dr. Schnell was totally responsive to the open-ended question propounded on cross examination by plaintiff’s counsel, there was no requirement that the court strike the answer or give a curative instruction to the jury. See Clark v. State, 368 So. 2d 331, 335 (Fla. 1978). While it would not have been error to do so, it certainly was not error to refuse to do so. Copeland v. State, 457 So. 2d 1012, 1018 (Fla.1984), cert. denied, 471 U.S. 1030, 105 S.Ct. 2051, 85 L.Ed.2d 324 (1985). Consequently, the sole ground for granting the new trial fails and that order must therefore be reversed.
The order granting a new trial is reversed and this cause is remanded with instructions to reinstate the verdict and enter judgment thereon.
Reversed and remanded.
WARNER, J„ and OWEN, WILLIAM C., Jr. and DOWNEY, JAMES C., Senior Judges, concur. . Illustrative, perhaps, of the dreaded "one question too many”, the downfall of many a cross-examiner. . See, e.g., Carver v. Orange County, 444 So. 2d 452 (Fla. 5th DCA 1983); Schwab v. Tolley, 345 So. 2d 747 (Fla. 4th DCA 1977); Ecker v. Nat'l Roofing of Miami, Inc., 201 So. 2d 586 (Fla. 3d . DCA 1967).
. See, e.g., Castlewood Int'l Corp. v. La Fleur, 322 So. 2d 520 (Fla.1975); Weems v. Dawson, 352 So. 2d 1196 (Fla. 4th DCA 1977), cert. denied, 359 So. 2d 1221 (Fla.1978).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Ouriana Goutis v. Express Transp., Inc., 699 So. 2d 757 (Fla. 4th DCA 1997)…or reviewing an order granting a new trial is one [*760] of abuse of discretion, unless the ruling is grounded on a question of law, in which case the discretion in granting a new trial is drastically reduced. State Farm Mut. Auto. Ins. Co. v. Gage, 611 So. 2d 39, 40 (Fla. 4th DCA 1992). In dealing with the grant of a new trial based on improper comment in closing argument, the second district has succinctly established the rule regarding the distinction between preserved error and unpreserved error: As a g…
-
Kenna Grushoff v. Denny's, Inc., 693 So. 2d 1068 (Fla. 4th DCA 1997)…an those set forth in the trial court’s order. It is well settled that in reviewing an order granting a new trial, the appellate court may consider the sufficiency of only those grounds specified in the order. State Farm Mut. Auto. Ins. Co. v. Gage, 611 So. 2d 39 (Fla. 4th DCA 1992). We likewise reject appellee’s point on cross-appeal. We therefore reverse and remand for reinstatement of the jury verdict. STONE and SHAHOOD, JJ., concur.…
-
Nigro v. Brady, 731 So. 2d 54 (Fla. 4th DCA 1999)…s were referring to as "unpreserved error.” Hagan, 666 So. 2d. at 587; Goutis, 699 So. 2d at 760. . There are exceptions to the broad discretion rule where the new trial is granted based on a question of law. State Farm Mut. Auto. Ins. Co. v. Gage, 611 So. 2d 39 (Fla. 4th DCA 1992), and cases cited therein.…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (16 total)
- Castlewood Int'l Corp. v. LaFLEUR, 322 So. 2d 520 (Fla. 1975)
- Copeland v. State, 457 So. 2d 1012 (Fla. 1984)
- Schwab v. Tolley, 345 So. 2d 747 (Fla. 4th DCA 1977)
- Poindexter v. Seaboard Air Line R. Co., 56 So. 2d 905 (Fla. 1951)
- Wade S. Weems, M.D. v. Dawson, 352 So. 2d 1196 (Fla. 4th DCA 1977)
- Am. Emp'rs' Ins. Co. v. Taylor, 476 So. 2d 281 (Fla. 1st DCA 1985)
- Wingo v. Louisiana, 471 U.S. 1030 (U.S. 1985)
- Boyd v. North Carolina, 471 U.S. 1030 (U.S. 1985)
- Carver v. Orange Cnty., 444 So. 2d 452 (Fla. 5th DCA 1983)
- Edmor Props., Inc. v. Metro. Dade Cnty., 225 So. 2d 529 (Fla. 1969)