8 Fla. L. Weekly Supp. 823c
Insurance — Jury instructions — Instruction that Florida No Fault Act is to be construed liberally in favor of insured was statement of statutory construction which could have misled or confused jury in applying facts to provisions of the Act — Error to limit officer at scene from testifying as to his observations of those involved in accident — Accident report privilege does not prevent officer from describing what was personally observed at scene — Error to exclude testimony of second officer at scene — Eyewitness should have been permitted to testify as to what she saw and heard at accident scene — Error to permit plaintiff’s counsel to cross-examine eyewitness on issue of racial bias where racial slurs became feature of case, and prejudicial effect outweighed any probative value — New trial required
STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Appellant, v. EMA GEDEON, Appellee. Circuit Court, 15th Judicial Circuit in and for Palm Beach County. Case No. AP 98-11354 AY. Opinion filed August 8, 2001. Appeal from the County Court in and for Palm Beach County, Nancy Perez, Judge. Counsel: Matt Hellman, Plantation, and Lee Katherine Goldstein, Miami, for Appellant. Diego Ascencio, North Palm Beach, for Appellee.
District court’s reasoning disapproved by Florida Supreme Court. 31 Fla. L. Weekly S762a
Certiorari granted as to portion of decision denying attorney’s fees at 27 Fla. L. Weekly D247e
(PER CURIAM.) The Appellant raises a number of issues on appeal, and after review of the record, this Court holds that a new trial is warranted for the following reasons.
Certain portions of the jury instructions provided more of an interpretive analysis, rather than a mere restatement, of the applicable law. The instruction that the Florida No-Fault Act is to be construed liberally in favor of the insured was a statement of statutory construction which would have misled or confused the jury in applying the facts to the provisions of the Act. See e.g., Central Truck Lines, Inc. v. Rogers, 140 So. 2d 130 (Fla. 1st DCA 1962), Carver v. Jenkins, 209 So. 2d 882 (Fla. 3d DCA 1968).
The trial court also limited the officer at the scene from testifying as to his observations of those involved in the accident, especially of the Appellee. The accident report privilege does not prevent an officer from describing what was personally observed at the scene. See State v. Edwards, 463 So. 2d 551 (Fla. 5th DCA 1985). In addition, the testimony of the second officer at the scene was also improperly excluded.
Mrs. Shelz, an eyewitness, should also have been permitted to testify as to what she saw and heard at the accident scene. While portions of Mrs. Shetz’ factual testimony were excluded, Plaintiff’s counsel was permitted to cross examine Mrs. Sheltz on the issue of her racial bias. While evidence of bias can be admissible, here a racial slur became the feature of the case, and the prejudicial effect outweighed any probative value.
Based on the foregoing, this Court finds reversible error, and the case is therefore REVERSED and REMANDED to the trial court for a new trial. As the non-prevailing party in this appeal, the Appellee’s motion for attorneys fees is DENIED. (BARKDULL, RAPP, AND BLANC, JJ., concur.)
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