29 Fla. L. Weekly D712a
Torts — Where plaintiff was injured on defendant retailer’s premises when he was struck by stack of falling garden hoses and subsequently was injured in a car accident in which the driver of the other car was an uninsured motorist; plaintiff alleged that due to proximity of two accidents injuries could not be apportioned; and plaintiff’s uninsured motorist carrier became a defendant in suit the plaintiffs had already brought against retailer, trial court erred by prohibiting insurer from being identified as plaintiff’s uninsured motorist carrier — Identifying insurer as party defendant who was an insurer and was liable for tortfeasor’s negligence did not adequately apprise jury of insurer’s specific party status — New trial required
CLAUD JAMES ARMSTRONG II and ANGELA DENISE ARMSTRONG, Appellants, v. WAL-MART STORES, INC., and STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellees. 4th District. Case No. 4D02-4312. Opinion filed March 24, 2004. Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Thomas H. Barkdull, III, Judge; L.T. Case No. CL 97-4101 AJ. Counsel: Roy W. Jordan, Jr., of Roy W. Jordan, Jr., P.A., West Palm Beach, for appellants. Caryn L. Bellus and Barbara E. Fox of Kubicki Draper, Miami, for appellee State Farm Mutual Automobile Insurance Company.
(POLEN, J.) Appellants, Claud and Angela Armstrong, timely appeal a final judgment entered in favor of State Farm Mutual Automobile Insurance Company. A separate final judgment entered in favor of Wal-Mart Stores, Inc., arising from the same trial, was previously appealed and affirmed by this court. Armstrong v. Wal-Mart Stores, Inc., 848 So. 2d 331 (Table) (Fla. 4th DCA 2003). The instant appeal involves only State Farm. We reverse and remand for a new trial for the reasons that follow.
In May of 1997, Claud and Angela Armstrong sued Wal-Mart, alleging that, on May 2, 1995, Claud Armstrong was struck by a stack of falling garden hoses. On June 6, 1995, a little more than a month after the Wal-Mart incident, Claud Armstrong was involved in a car accident in the course of his employment with Florida Power & Light. Due to the proximity of the two accidents, the Armstrongs alleged that the injuries could not be apportioned. The June 1995 car accident thus became the subject of a negligence claim in the suit that the Armstrongs had already brought against Wal-Mart. James Deane, the driver of the other car involved in the June 1995 accident, was uninsured. Consequently, State Farm, Armstrong’s uninsured motorist carrier, became a defendant. The Amended Complaint asserted negligence and loss of consortium claims against Wal-Mart, Deane, and State Farm.
The jury returned a verdict finding no negligence on the part of Wal-Mart that was the legal cause of injury to Claud Armstrong. The jury determined, however, that there was negligence on the part of Deane, which was the legal cause of injury to Claud Armstrong. According to the jury, Armstrong had sustained $6,901.70 in past medical expenses, but no future medical expenses, no past or future lost wages and no permanent injury. Following the denial of the Armstrongs’ motion for new trial, separate judgments were entered for Wal-Mart and State Farm. State Farm thereafter filed a motion for set-off. The trial court granted this motion, setting off the entire $6,901.70 as duplicative benefits.
The Armstrongs contend the trial court erred by prohibiting State Farm from being identified as Armstrong’s uninsured motorist carrier. At the pre-trial motion in limine, the trial court, based on our opinion in Lamz v. Geico General Insurance Co., 748 So. 2d 319 (Fla. 4th DCA 1999), ruled that State Farm would be referred to only as the plaintiffs’ automobile insurance carrier. Shortly after the trial in this case, however, the Supreme Court reversed this court’s decision in Lamz, stating that the “failure to specifically identify the underinsured carrier as such leaves the jury to speculate about the exact role of the plaintiff’s carrier in the lawsuit, perpetuating the ‘charades in trials’ denounced by this Court . . . .” Lamz v. Geico Gen. Ins. Co., 803 So. 2d 593, 595 (Fla. 2001). We are unpersuaded by State Farm’s argument that identifying it as a party defendant who was an insurer and was liable for the tortfeasor’s negligence adequately apprises the jury of its specific party status. Accordingly, we reverse and remand for a new trial. See Medina v. Peralta, 724 So. 2d 1188 (Fla. 1999).
In the interests of judicial economy at the new trial, we make the following notes. First, we find no error with the trial court’s interpretation of the parties’ stipulation regarding post-trial set-offs. State Farm may properly assert any well-pleaded claim for a set-off after the conclusion of the new trial. Next, to the extent that Dr. Rogozinski’s video deposition will be displayed to the jury, all references to Liberty Mutual Insurance Company should be redacted. Finally, as to the remaining issues, we find no error.
REVERSE and REMAND. (WARNER, J., concurs. KLEIN, J., dissents with opinion.)
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(KLEIN, J., dissenting.) I respectfully dissent because I conclude that Lamz v. Geico General Insurance Co., 803 So. 2d 593 (Fla. 2001), is distinguishable and does not require reversal. Lamz was decided based on Government Employees Insurance Co. v. Krawzak, 675 So. 2d 115 (Fla. 1996), and in order to put Lamz in perspective it is necessary to examine Krawzak.
In Krawzak the trial court precluded any reference to the UM insurer and directed that counsel for the UM insurer be referred to as co-counsel for the tortfeasor. The Florida Supreme Court held this to require a new trial, stating: “it is appropriate for a jury to be aware of the presence of a UM insurer which has been properly joined in the action against the insurer.” 675 So. 2d at 117.
In Lamz, Geico was the plaintiff’s UM insurer and the trial court explained the status of the parties to the jury as follows:
[I]t’s alleged in the plaintiffs’ complaint that the defendant, Marnee Heather Nichols, was the operator of the other vehicle, that Mr. Morris Leisner was the owner of the other vehicle, and the other defendant, Geico General Insurance Company, is the plaintiffs’ automotive insurance carrier, and is also joined here as a defendant.
803 So. 2d at 594.
Our supreme court concluded that the above instruction was not in compliance with Krawzak and reversed, explaining:
. . . Moreover, the Medina, Krawzak, and Dosdourian line of cases clearly establishes the principle that the jury should be made aware of the precise identity of an uninsured or underinsured insurance carrier if it is a party at trial. The policy behind such a requirement is that full disclosure of the identity of the parties protects the integrity of the jury system and prevents charades at trial. . . . Identifying the insurance company as merely a plaintiff’s insurer without clarifying the full capacity in which it is being sued does not make the jury fully aware of the underinsured carrier’s posture in the litigation.
803 So. 2d at 595. The essence of Lamz is that the jury must be made aware of the “posture” of the UM carrier in the case. The instruction given by the trial court in Lamz did not make it clear that the UM carrier was adverse to the plaintiff.
In the present case the jury was instructed that “State Farm is responsible for the negligence of Deane [uninsured motorist] under its coverage of Armstrong.” Unlike the jury in Lamz, the jury in this case knew that State Farm would be paying the damages awarded plaintiff, and that State Farm and its lawyer were therefore adverse to the plaintiffs. The jury thus was aware of the “posture” of State Farm.
The majority has not indicated how the jury should be instructed on retrial, but I assume the majority would not have reversed if the trial court had given the same instruction, but with the insertion of “uninsured motorist,” so that the instruction read: “State Farm is responsible for the negligence of Deane under its [uninsured motorist] coverage of Armstrong.” Because the jury knew State Farm provided coverage, and was liable for the damages, this would, in my opinion, not serve any purpose.
There is an additional significant distinction between Krawzak and Lamz and the present case. In Krawzak and Lamz the tortfeasor was represented by counsel and the UM carrier was represented by different counsel. There were thus two defense lawyers putting on evidence and examining witnesses, both adverse to plaintiff, but the juries in those cases were not aware that counsel for the UM insurer was adverse to plaintiff. This opened up the possibility of the charade which our supreme court was concerned about in the cases cited in Krawzak and Lamz.
Unlike in Krawzak and Lamz, in the present case the tortfeasor was not represented by counsel. The only lawyer defending the auto accident claim was the lawyer representing State Farm and, as I indicated earlier, the court explained to the jury that State Farm was “responsible for the negligence of” the tortfeasor. There was accordingly no possibility of a charade.
I would therefore affirm.
