21 Fla. L. Weekly Supp. 554a

Online Reference: FLWSUPP 2106DESDInsurance — Personal injury protection — Jurors — Challenges — Peremptory — No abuse of discretion in denying challenge for cause based on juror’s background as massage therapist, experience in medical field, and purportedly equivocal responses on whether she could be fair and impairtial — Abuse of discretion to deny peremptory challenges of two jurors where insurer asserted jurors may not be fair and impartial, and there was no objection that challenges were being made in discriminatory manner — New trial required — Attorney’s fees — Appellate — Provider who partially prevailed on appeal entitled to award of attorney’s fees, contingent upon provider ultimately prevailing below

UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. PALM REHABILITATION, INC., a/a/o MIGUEL DESDIN, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 12-087 AP. L.T. Case No. 09-8332 CC 23. April 7, 2014. On appeal from a final judgment of the County Court in and for Miami-Dade County, Sheldon R. Schwartz, Judge. Counsel: Michael J. Neimand, Office of the General Counsel, for Appellant. Marlene S. Reiss, Law Offices of Marlene S. Reiss, P.A., for Appellee.

(Before RODRIGUEZ, TINKLER MENDEZ, and CYNAMON, JJ.)

(PER CURIAM.)ON MOTION FOR REHEARING[Original Opinion at 21 Fla. L. Weekly Supp. 307a]

THIS CAUSE came before the Court acting in its appellate capacity on the Appellee’s, Palm Rehabilitation, Inc., Motion for Rehearing on Appellate Attorney’s Fees Denial. After having reviewed the motion and the previous opinion filed on December 18, 2013 and being otherwise fully advised in the premises, this Court GRANTS the motion for rehearing and issues a revised opinion limited to addressing Appellee’s entitlement to appellate attorney’s for partially prevailing on appeal.

The Appellant, United Automobile Insurance Company (“United Auto”) appeals a final judgment for medical benefits rendered in favor of the Appellee, Palm Rehabilitation, Inc. (“Palm”).¹ The issues on appeal center on the trial court’s decision involving United Auto’s exercise of a challenge for cause and peremptory challenges against certain jurors. We have jurisdiction. § 26.012(2), Fla. Stat. (2013); Fla. R. App. P. 9.030(c)(1)(A).

During voir dire, United Auto exercised a challenge for cause against Juror Carbonell, on the basis that she had an extensive background as a massage therapist, as well as experience in the medical field. As the matter below dealt with a personal injury benefits (“PIP”) claim, United Auto asserted its concerns about Juror Carbonell’s fairness and impartiality. Also, United Auto alleged that Juror Carbonell provided equivocal responses on whether she could be fair and impartial. After hearing both parties, the trial court found that everybody on the jury agreed to set aside sympathy and follow the law as provided by the court. The challenge for cause was denied. Thereafter, United Auto struck Juror Carbonell with a peremptory challenge.

Subsequently, United Auto exercised a peremptory challenge against Juror Hanna. United Auto asserted it suspected Juror Hanna could not be fair and impartial. The trial court denied the challenge.

United Auto exercised its last peremptory challenge against Juror Machado. United Auto asserted its concerns regarding Juror Machado’s fairness and impartiality. The trial court denied the challenge.

Thereafter, United Auto moved for an additional peremptory challenge which the court denied. United Auto asserted that if an additional challenge had been granted, it would have been exercised against Juror Brito. Juror Brito sat on the jury. Before the panel was sworn, United Auto objected to the jury panel as comprised.

An adverse verdict was rendered against United Auto and a final judgment was entered in favor of Palm. This appeal timely followed.I. Standard of Review

This Court reviews the trial court’s decision concerning a challenge for cause of a prospective juror for an abuse of discretion. Embleton v. Senatus, 993 So. 2d 593 (Fla. 4th DCA 2008) [33 Fla. L. Weekly D2533a]. The trial court’s decision will not be disturbed on appeal in the absence of manifest error. Id at 595. The decision will be upheld if the findings are fairly supported by the record. Embleton, 993 So. 2d at 595.

This Court reviews rulings on the propriety of peremptory challenges under the abuse of discretion standard. Siegel v. State, 68 So. 3d 281 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1633a]. The decision will be upheld on appeal unless clearly erroneous. Nowell v. State, 998 So. 2d 597 (Fla. 2008) [34 Fla. L. Weekly S26a].II. Discussion

A. Challenge for cause

Based on the record, we find that the trial court did not abuse its discretion in denying the challenge for cause exercised against Juror Carbonell.

B. Peremptory challenges

Peremptory challenges are presumed to be exercised in a nondiscriminatory manner. Melbourne v. State, 679 So. 2d 759 (Fla. 1996) [21 Fla. L. Weekly S358a]. They can be used to excuse a juror for any reason, as long as the reason is not a pretext for discrimination. See Busby v. State, 894 So. 2d 88 (Fla. 2004) [29 Fla. L. Weekly S646a]. The trial court’s decision is primarily made on an assessment of credibility. Melbourne, 679 So. 2d at 759. A peremptory challenge will be deemed valid “unless an objection is made that the challenge is being used in a racially discriminatory manner.” State v. Johans, 613 So. 2d 1319, 1322 (Fla. 1993). The party objecting to the other side’s use of a peremptory challenge on racial grounds must: “[(1)] make a timely objection on that basis, [(2)] show that the venireperson is a member of a distinct racial group, [(3)] request that the court ask the striking party its reason for the strike.” Melbourne, 679 So. 2d at 764.

a. Prospective Juror Hanna

United Auto asserted below that Juror Hanna may not be fair and impartial, as she had been involved in numerous motor vehicle accidents, received extensive physical therapy as a result of it, and thought her chiropractor did a very good job in treating her. In opposition to the challenge, Palm argued that none of Juror Hanna’s responses indicated that she could not be fair and impartial.

The record shows that Palm mentioned that Juror Hanna was African American and that she was the only African American on the panel. However, at no time did Palm assert that the peremptory challenge was being used in a racially discriminatory manner.²

A peremptory challenge is valid unless an objection is made that it is being exercised in a racially discriminatory manner. In this instance, Palm did not object to the peremptory challenge on that ground. As such, we find that the trial court abused its discretion when it denied the peremptory strike against Juror Hanna.

b. Prospective Juror Machado

Juror Machado was challenged on the basis that he was a firefighter who responded to the scene of motor vehicle accidents and provided health care for individuals at the accident scene. Palm did not object to this peremptory challenge. The trial court, however, denied the challenge.

Based on the presumption that peremptory challenges are exercised in a nondiscriminatory manner, we find that the trial court abused its discretion in denying the challenge against Juror Machado. The challenge was valid as no objection was raised by Palm that it was being exercised in a racially discriminatory manner. “The denial of a party’s right to exercise peremptory challenges, so long as those challenges are not exercised in a racially improper manner, constitutes error,” Michelin North America, Inc. v. Lovett, 731 So. 2d 736, 740 (Fla. 4th DCA 1999) [24 Fla. L. Weekly D859a]. Accordingly, we reverse and remand for a new trial.III. Appellate Attorney’s Fees

By motion for rehearing, Palm requests rehearing of that part of our opinion which denied its request for appellate attorney’s fees. Palm points out that it partially prevailed on appeal on the cause challenge issue and as such, it is entitled to appellate attorney’s fees for defending that issue. We agree and grant Palm appellate attorney’s fees as it is the prevailing party on the cause challenge issue. See § 627.428(1), Fla. Stat. (2013); Comprehensive Health Ctr. v. United Auto. Ins. Co., 99 So. 3d 525 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D1553b]. Appellate attorney’s fees are granted contingent upon Palm ultimately prevailing below. Comprehensive Health Ctr., 99 So. 3d at 525.

In its motion for rehearing, Palm relied on several cases including Mercury Casualty Company v. Flores, 905 So. 2d 179 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D793a]. In our view, Mercury is distinguishable from the instant matter. In Mercury, the appellee (insured) prevailed on appeal as the trial court order on review was affirmed. Although the Mercury court granted appellate attorney’s fees to the insured only as to one issue on appeal, it granted the fees on the basis that the point raised on appeal was one of entitlement. Mercury, 905 So. 2d at 179. As the issue dealt with entitlement to attorney’s fees, the insured was entitled to appellate attorney’s fees for defending that issue on appeal. Id. As to the other issues on appeal, the insured was not entitled to appellate attorney’s fees because the points raised on appeal dealt with the amount of the fees. Id. Mercury does not deal with the entitlement to appellate attorney’s fees when an insured partially prevails on appeal.

United Auto’s request for attorney’s fees as sanctions is hereby DENIED.

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¹Palm was the Plaintiff below. United Auto was the Defendant below.

²[Palm’s counsel]: Okay. I never heard any answers which she said she could not be fair and impartial. Moreover, for the record, she is an African American, the only African American I think on the panel right now, and I just want it on the record, as far as to be on the record. But with that being said I didn’t get any answers from her where she said she couldn’t be fair and impartial.

(T. at 168:25; 169:1-8).

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