12 Fla. L. Weekly Supp. 1034b
Insurance — Personal injury protection — Medical benefits — MRI — There was sufficient conflicting evidence to create factual question for jury on issue of reasonableness of MRI charge, and trial court did not err in denying motion for directed verdict on this issue — Abuse of discretion to deny motion for mistrial based on opposing counsel’s prejudicial and inflammatory remarks in closing argument that insurer did not know what a reasonable charge was because “they don’t pay,” and that insurer was a “fighting machine” — Comments were so inflammatory that they were incurable and resulted in denial of fair trial
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. HALLANDALE OPEN MRI, L.L.C., A/A/O NATHAN MORELY, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 04-5865 (11). July 20, 2005. Counsel: Michael J. Neimand. Marlene S. Reiss.
OPINION
(BARRY E. GOLDSTEIN, J.) THIS CAUSE comes before the Court upon Appellant, United Automobile Insurance Company’s Appeal of the trial court’s Order Granting Final Summary Disposition in favor of the Appellee, Hallandale Open MRI, L.L.C., a/a/o Nathan Morely. This Court, having reviewed the record, applicable law and otherwise being duly advised in the premises, hereby finds and decides as follows:
Appellant has three issues on appeal. First, Appellant contends the trial court erred in denying its Motion for Directed Verdict because Appellee did not present any evidence that its MRI bill for $1,650.00 was reasonable. The Court disagrees with this argument. A motion for directed verdict should be granted only when the evidence, viewed in the light most favorable to the non-moving party shows that a jury could not reasonably differ as to the existence of a material fact, and the movant is entitled to a judgment as a matter of law. Lester’s Diner II, Inc. v. Gulliam, 788 So. 2d 283, 285 (Fla. 4th DCA 2000). The trial court properly denied Appellant’s Motion for Directed Verdict because there was sufficient conflicting evidence to create a factual question for the jury on the issue of the reasonableness of the MRI charge.
Second, Appellant argues the trial court erred in denying its Motion for Mistrial. During the closing argument the Appellee’s counsel told the jury that Appellant does not know what a reasonable charge is because “they don’t pay,” and called Appellant a “fighting machine.” The standard for review of the denial of the motion for a mistrial is whether the trial court abused its discretion. Goodwin v. State, 751 So. 2d 537 (Fla. 1999); Miller v. State, 847 So. 2d 1093 (Fla. 4th DCA 2003). “Where no reasonable man would take the view adopted by the trial court”, the court has abused its discretion and acted unreasonably. Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980).
In order to insure a fair trial, it is essential that a jury reach its verdict by a calm and dispassionate consideration of the evidence on the merits. Byrd v. Felder, 197 So. 2d 554, 555 (Fla. 3d DCA 1967). Litigants have a right to a verdict uninfluenced by the appeals of counsel to passion or prejudice. Murphy v. International Robotic Systems, 766 So. 2d 1010, 1021 (Fla. 2000). While attorneys are afforded great latitude in presenting closing arguments, they must limit their argument to the facts and evidence presented to the jury. Id. at 1028. Closing arguments used to “inflame the minds of passions of the jurors so that their verdict reflects an emotional response. . .rather than the logical analysis of the evidence in light of the applicable law,” are not permitted. Id.; Bertolotti v. State, 476 So. 2d 130, 134 (Fla. 1985). Attorneys are prohibited from alluding to any manner that is irrelevant or unsupported by admissible evidence, asserting personal knowledge of facts in issue unless testifying as a witness, or stating a personal opinion as to the justness of a cause, or the credibility of a witness or civil litigant. Fla. R. Civ. Pro. 4-3.4.
Such remarks may serve as a basis for reversing judgment when they are highly prejudicial and inflammatory. Good Samaritan Hospital Assn., Inc. v. Saylor, 495 So. 2d 782, 783-84 (Fla. 4th DCA 1986); Metropolitan Dade County v. Dillon, 305 So. 2d 36, 40 (Fla. 3d DCA 1975). They must be so harmful and of such collective impact as to gravely impair a fair consideration and determination of the case by the jury, such that the verdict reached could not have been obtained but for such comments. Murphy, 766 So. 2d at 1029-30. Even when the trial court has attempted to eliminate the comments’ “sinister influence” by giving the jury curative instructions to disregard the comments, jury verdicts rendered after hearing such improper, objected-to comments cannot be permitted to stand. Murphy, 766 So. 2d at 1030; Tampa Transit Lines v. Corbin, 62 So. 2d 10, 12 (Fla. 1953).
A motion for mistrial should only be granted when the error is so prejudicial as to vitiate the entire trial. Pagan v. State, 830 So. 2d 792 (Fla. 2002). Here, Appellant was denied its Motion for Mistrial after the jury had been exposed to prejudicial and inflammatory statements made by Appellee’s counsel in his closing argument. A reasonable person would find that the comments, which were unsupported by admissible evidence, were irrelevant and immaterial to the MRI bill at issue in the case. Furthermore, they inappropriately appealed to the jury’s emotion, bias and prejudices, attempting to inflame the jury against the Appellant for allegedly not having paid insurance benefits in other claims.
While the judge gave curative instructions to the jury in an attempt to cure any prejudice that may have resulted from the comments, the comments were so inflammatory that they were incurable and resulted in Appellant being denied a fair trial.
Third, Appellant argues that reversal of the underlying judgment in its favor requires reversal of the statutory fee award in its favor. Marty v. Bainter, 727 So. 2d 1124, 1125 (Fla. 1st DCA 1999). The Court agrees, and therefore, the fee award must be reversed.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the Final Judgment granted in favor of Appellee is REVERSED, and the case is REMANDED to the trial court for proceedings consistent with this Opinion.
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