5 Fla. L. Weekly Supp. 201b

Insurance — Personal injury protection — Error to overrule objection to closing argument in which insurer’s attorney told jury it was their task to decide whether action involved medical claim or claim manufactured by a lawyer — Evidence — Routine practice — Error to permit insurer’s claims specialist to testify over objection that it was insurer’s philosophy generally to pay medical bills in PIP cases and that, in fact, the company paid 99% of all such claims — Evidence was irrelevant to issue of whether medical bills in instant case should have been paid — Prejudicial value was great when coupled with accusation that counsel manufactured the case — New trial required

MERCEDES MARRERO, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee. 11th Judicial Circuit in and for Dade County, Appellate Division. Case No. 96-226 AP. Opinion filed January 2, 1998. An Appeal from County Court for Dade County, Florida, Edward Newman, Judge. Counsel: John H. Ruiz, for Appellant. Shelley R. Senecal, for Appellee.

(Before Richard Margolius, Thomas Petersen, and Juan Ramirez, Jr., JJ.)

(RAMIREZ, J.) This is an appeal after jury trial in which the jury found for the defendant State Farm Mutual Automobile Insurance Co. We reverse and remand because the trial judge incorrectly ruled on two issues in the case.

During closing argument, counsel for the defendant stated:

You folks get to go back to the jury room and decide whether or not this is a medical claim or this is a claim that’s manufactured by a lawyer. [Emphasis added].

Plaintiff’s counsel objected and was overruled. This was error. Two recent cases illustrate that the courts have and should adopt increased vigilance to prevent personal attacks on opposing counsel. In Norman v. Gloria Farms, Inc., 668 So.2d 1016, 1020-21 (Fla. 4th DCA), review granted, 680 So.2d 422 (Fla. 1996), the court reversed for an improper appeal to the passions and prejudices of the jury. Admittedly the remarks in Norman were more egregious and were combined with improper contact with a juror, but, unlike Norman, the plaintiff here made a contemporaneous objection. By overruling the objection, the trial court was implicitly approving the personal attack.

Accusing an attorney of manufacturing a claim brings disrepute to the entire profession and adds nothing to the impassioned deliberations that courts are entrusted to promote. As then-Judge Anstead, writing for the Fourth District, noted in Hartford Accident & Indemnity Co. v. Ocha, 472 So.2d 1338, 1343 (Fla. 4th DCA), petition for review dismissed, 478 So.2d 54 (Fla. 1985):

Suggesting that all claimants’ lawyers always ask for more than they expect to receive or that defense lawyers always say their clients are innocent or that the damages are minor, adds nothing to the orderly resolution of the factual disputes before the jury, and does considerable harm to the already impaired reputation of the legal profession…. The trial court should not hesitate … to keep tight reins on a lawyer who seeks to win his case by castigating an entire segment of the legal profession. [Emphasis added]

There is an enormous difference between zealous advocacy, and inflammatory appeals to the prejudices of jurors. As the court stated in Murphy v. Murphy, 622 So.2d 99, 102 (Fla. 2d DCA 1993): “We are cognizant of the glamorization of the `cowboy’ litigator. We believe, however, that a trial by jury should not resemble a `Shoot-out at the OK Corral’.”

In Owens-Corning Fiberglas Corp. v. Crane, 683 So.2d 552, 554-55 (Fla. 3d DCA 1996), counsel’s credibility was impugned before the jury during its closing argument. The court held that counsel’s comments about opposing counsel came within the purview of those improper comments repeatedly condemned by the Third District in Owens Corning Fiberglas Corp. v. Morse, 653 So.2d 409 (Fla. 3d DCA), rev. denied, 662 So.2d 932 (Fla. 1995), Sun Supermarkets, Inc. v. Fields, 568 So.2d 480 (Fla. 3d DCA 1990), rev. denied, 581 So.2d 164 (Fla. 1991), and Carnival Cruise Lines, Inc. v. Rosania, 546 So.2d 736 (Fla. 3d DCA 1989). The court stated:

While it is perfectly permissible for trial attorneys to point out perceived discrepancies in the evidence introduced at trial and opposing counsel’s characterization of the same, it is never acceptable for one attorney to effectively impugn the integrity or credibility of opposing counsel before the jury in the process. Even in the absence of a contemporaneous objection, we have found such comments about opposing counsel made during closing argument to be fundamentally erroneous. [Emphasis added]

Here there was a contemporaneous objection which was overruled.

Additionally, the defense called as a witness a Sylvia Fernandez who worked as a claims specialist for State Farm. She was allowed to testify over objection that it is State Farm’s philosophy generally to pay medical bills in PIP cases and that, in fact, the company pays 99% of all the claims. This testimony is totally irrelevant. The issue here was whether the medical bills should be paid in this case. The probative value of what State Farm does in the other 99% of the cases is absolutely zero as to whether it was justified in denying this claim. On the other hand, the prejudicial value is great, particularly when coupled with the accusation that counsel manufactured the case. See Fla. Stat. § 90.403.

The defendant basically turned Fla. Stat. § 90.406 on its head. This section allows evidence of a routine practice of an organization to prove that the conduct was in conformity with the routine practice. First of all, the practice was only routine in 99% of the cases, and this was not one of them. Second, the practice was in fact not followed.

We find no merit to the other argument of the appellant that the trial court should have directed a verdict for the plaintiff.

REVERSED AND REMANDED for new trial. (MARGOLIUS and PETERSEN, JJ., concur).

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