9 Fla. L. Weekly Supp. 362a
Torts — Insurance — Jury instructions — No error in not giving concurrent cause instruction where plaintiff did not plead or prove that pre-existing condition of his dental bridge led to damages he suffered but, rather, maintained that his bridge was in good condition prior to the accident — It was within purview of trial court to determine whether insurer’s violation of pre-trial order by making comments concerning settlement offers warranted a mistrial — Trial court correctly denied request for directed verdict where there were issues of fact for the jury to consider due to conflicting testimony
LARRY FEDER, Appellant, v. STATE FARM AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 01-004 AP. L.C. Case No. 98-20887 CC 23. Opinion filed April 16, 2002. On Appeal from the County Court for Miami-Dade County, Florida, Linda Singer Stein, Judge. Counsel: Adam E. Miller and Nancy Little Hoffman, for Appellant. Hinda Klein, for Appellee.
(Before SIDNEY B. SHAPIRO, EUGENE J. FIERRO and ROBERT N. SCOLA, JJ.)
(PER CURIAM.) This is an appeal from an adverse jury verdict rendered against appellant. He raises three issues on appeal, none of which requires reversal of the trial court.
Appellant contends the lower court erred in not giving a concurrent cause jury instruction. He next contends the lower court erred in not granting motions for mistrial based on comments of settlement offers made by State Farm. Lastly, appellant argues the trial court erred in not granting his motion for directed verdict.
Appellant did not plead nor present evidence that the accident combined with the pre-existing condition of his dental bridge led to the damages he suffered. Secondly, even if some evidence was presented about the pre-existing condition1, the failure of the trial court to instruct on same was harmless. See Cruz v. Plasencia, 778 So.2d 458 (Fla. 3rd D.C.A. 2001), Williams v. Bankers Multiple Line Ins. Co., 567 So.2d 559, 560 (Fla. 4th D.C.A. 1990) and Kinya v. Lifter, Inc., 489 So.2d 92, 94 (Fla. 3rd D.C.A. 1986). Feder failed to present any evidence or even admit that the pre-existing condition was a cause of the injury or damage suffered. In fact, he asserted the opposite by maintaining his bridge was in good condition prior to the accident. The trial court did not err by declining to give the concurrent cause instruction.
Feder asserts that State Farm violated the court’s pre-trial order on several occasions; therefore, the court erred in not giving curative instructions or in granting a mistrial. Violation of a pre-trial order, in and of itself, does not necessarily warrant the granting of a new trial where that violation has caused no prejudice to the opposing case. Leyva v. Samess, 732 So.2d 1118 (Fla. 4th D.C.A. 1999). In each instance where the issue was mentioned by State Farm, objections were made and the trial court either instructed the jury on the issue or required rephrasing of the questions. It was within the trial court’s purview to determine whether or not the statements warranted a mistrial or new trial. It is obvious the court determined they did not.
Lastly, the trial court determined there were issues of fact for the jury to consider due to conflicting testimony. Her denial of Feder’s request to direct a verdict in his favor was correct.
For the reasons set forth herein, the verdict and judgment of the trial court are affirmed. (S.B. SHAPIRO, FIERRO and SCOLA, JJ., concur.)
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1The only time this issue was discussed was by defendant.
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