Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-1650 _____________________________ CAMERON HOLBROOK WINTERS and JASON WINTERS, Appellants, v. TERRY TYSHELL HARPER, Appellee. _____________________________ On appeal from the Circuit Court for Duval County. Waddell A. Wallace, Judge. June 16, 2021 TANENBAUM, J. Cameron Winters was driving his dad’s car at a low speed when he rear-ended a car driven by Terry Harper, who was stopped at a red light. Harper sued both Cameron and his dad, Jason, in negligence to recover damages for injuries she claimed to have suffered as a result. Cameron and Jason admitted to liability, and the parties went to trial regarding causation and damages. The jury found in favor of Harper on those issues. The father and son now appeal the money judgment that ensued, seeking a new trial on several theories. We affirm in all respects but write to explain why, despite the appellants’ contention to the contrary, two references to automobile insurance in the course of a four-day trial do not entitle them to relief. I. We start, though, with an aside. The leitmotif of the appellants’ appeal is that the trial court did not do enough to keep the idea of insurance coverage from becoming the gestalt of the trial. Notably, as we will discuss more fully in a moment, there were at least two points in the trial where the appellants’ counsel complained about the repeated questioning of witnesses by Harper’s counsel about the exchange of information at the scene. This, the appellants ostensibly feared, was going to turn the jury’s attention toward insurance and away from what was supposed to be the sole question for the jury—whether Harper suffered compensable damages because of Cameron’s admitted negligence. The appellants, though, seemingly fail to appreciate the role their own counsel played in this perceived problem. The appellants’ lawyer was quite candid in the trial court about his aggressive strategy that would focus on the conduct of and communications between Harper and Cameron following the crash. He presumably hoped to highlight what might be perceived as Harper’s haste in leaving the scene, thereby calling into question the veracity of Harper’s claim that her injuries were significant. Here is but one example from the record: In opposition to a motion in limine by Harper, counsel for the appellants insisted that “everything that happened at the scene [of the accident] is extremely important,” including “what the plaintiff said, what the plaintiff did, what the defendant said, what the defendant did . . . all of that is relevant.” He continued: This is observation at the scene based on what the plaintiff says in her own words to the defendant. . . . They’re trying to gloss over the whole scene. I don’t blame them, Judge. If I was representing the plaintiff in this case, I would be wanting to do the same exact thing that they are doing, glossing over the entire scene in total and moving on. The last thing they want to talk about in this trial is the actual incident and what occurred after the incident. Move on from that. I get it. There’s going to be a lot of testimony in this case about 2 the minutes – well, the accident itself and the minutes after the accident and what occurred between the parties and what everybody did. A huge part of the cause. Even though both the trial court and Harper’s lawyer cautioned that this strategy risked touching on insurance, the appellants’ counsel stated that everything “actually said and done by the various parties” was “probative.” This said, now we can turn to the two specific references to auto insurance that lie at the heart of the appellants’ appeal. A. The first reference came from Harper herself. Harper testified that she offered Cameron her driver information. Rather than provide his information, Cameron handed Harper his cell phone and asked her to speak to his mother. Harper’s testimony then continued with the following exchange between her lawyer and her: Q: What was the only thing you were able to get from Mr. Winters or his mother? A: Her phone number. Q: At any time did Mr. Winters or his mother say, “Ms. Harper, how are you doing?” A: No, sir. Q: And as you got the phone number, did you take a picture of the license plate of the Winters’ vehicle? A: Yes, sir. Q: And did you take a picture just in case you needed it? 3 A: I just felt like I – I didn’t know if it was the right number. I just needed to walk away with something that I’ll be able to report to my insurance. Three questions later (which were about Harper having to leave the scene to pick up her child from daycare in time), counsel for the appellants objected. Counsel argued that the questioning of Harper elicited “the idea that there was insurance involved . . . she needed this information to call her insurance carrier to give them the information about [the appellants], all of which now has influenced and affected and infused the trial with the notion of insurance . . . .” The appellants moved for a mistrial, and in the alternative, they asked for a curative instruction. The trial court denied both requests. Regarding the curative, the trial court concluded that “it would be better not to address it from the bench here at this time. It would heighten the issue.” B. The other mention of auto insurance came during cross- examination of Cameron by Harper’s counsel. Cameron’s testimony on direct examination had provided a slightly different version of events after the crash. He had explained that he called his mother because he had never been in an accident and was unsure what to do. Cameron denied that Harper gave him her driver information. Harper’s counsel asked Cameron the following question: “Did you ever give Ms. Harper your information or your registration?” Cameron responded, “I planned to, but I didn’t know how to use that information exactly, so I didn’t know exactly like the numbers and names I was looking for that.” The appellants’ lawyer objected, and at sidebar, he explained his concern that the questioning would lead to a question whether Cameron and Harper exchanged insurance information. Counsel for Harper agreed to rephrase his question to the following: “Other than the phone number, your mother’s phone number, did you provide any other information to Ms. Harper?” At the conclusion of the sidebar, Harper’s lawyer resumed by asking, “To be clear, sir, other than your mother’s insurance – I’m sorry – other than your 4 mother’s phone number – .” The appellants’ lawyer of course objected again. At sidebar counsel renewed his motion for a mistrial, because, he explained, Harper’s reference to her own insurance “has now been put in the direct context of his mother’s insurance. And it was not candy-coated, it was not stated any other way, other than the word ‘insurance.’ I have to move for a mistrial.” The trial court reserved on that question, but it granted counsel’s request for a curative instruction. The court instructed the jury as the appellants’ counsel requested: “The question was made. I sustained the objection to the question. So please disregard the question in its entirety.” II. We cannot say that the trial court abused its discretion in either situation. To be sure, it is not the mere mention of insurance, or even the introduction of evidence of the plaintiff’s insurance, that creates a problem in a trial like this. Almost everyone, everywhere, in Florida knows what is discussed at that roadside meeting between drivers after a crash. The appellants’ stated strategy put heavy attention on the post-crash roadside exchange between Harper and Cameron, so the jury no doubt had insurance on their collective mind throughout the case already. A mention or two of auto insurance, then, was not enough to vitiate the fairness of the trial and require a new one in this case. Cf. Crowell v. Fink, 167 So. 2d 614, 615 (Fla. 1st DCA 1964) (“The manner in which this isolated reference to insurance was made was not likely to unfairly prejudice the minds of the jury or inflame their passions in favor of appellee.”). The age-old rule certainly is that “evidence of insurance carried by a defendant is not properly to be considered by the jury.” Carls Markets, Inc. v. Meyer, 69 So. 2d 789, 793 (Fla. 1953) (emphasis supplied). There is good reason for this rule regarding evidence of the defendant’s insurance: The jury “might be influenced thereby to fix liability where none exists, or to arrive at an excessive amount through sympathy for the injured party and the thought that the burden would not have to be met by the defendant.” Id. at 793; Ryan v. Noble, 116 So. 766, 768–69 (Fla. 5 1928) (holding that in a liability trial for damages, the admission of evidence that the defendant has insurance against the claimed loss “constitutes prejudicial and reversible error”); Thompson v. Fla. Drum Co., 651 So. 2d 180, 182 (Fla. 1st DCA 1995) (explaining that evidence of a defendant’s insurance in a negligence trial creates a risk of “the jury attributing liability where none exists, because of sympathy and the belief that the financial burden would not be born[e] by the defendant”). However, this rule was not implicated here. Neither incident—not Harper’s testimony about her own auto insurance, * and not the unanswered, accidentally misstated question to Cameron about his mother’s insurance—amounted to actual evidence of the appellants’ auto insurance coverage. To the extent that even the single, fleeting suggestion that the appellants had auto insurance coverage could still be considered problematic, the trial court acted within the proper bounds of its discretion when it sustained the appellants’ objection, determined that the mention by Harper’s lawyer was inadvertent, and promptly gave a curative instruction suggested by the appellants’ lawyer. Cf. Barnes v. State, 303 So. 3d 275, 277 (Fla. 1st DCA 2020) (reviewing the trial court’s decision to give curative instruction, instead of granting mistrial, for arbitrariness and reasonableness under the circumstances of the case). As the supreme court has told us: We adhere to the principle that if insurance is inadvertently mentioned, or information about insurance is volunteered, or even if such testimony is attempted to be introduced and the court upon objection immediately acts to prevent further transgression of the rule and to caution the jury to disregard the testimony the trial need not be discontinued. * In fact, this testimony about auto insurance from Harper about her own insurance may have been the only evidence of auto insurance introduced at trial. And that evidence could have served only to turn the jury’s sympathy against Harper’s effort at recovery, if at all. 6 Carls Market, 69 So. 2d at 793; see also Compania Dominicana de Aviacion v. Knapp, 251 So. 2d 18, 20–21 (Fla. 3d DCA 1971) (correctly noting that “not every breath of insurance automatically results in a mistrial” and “frequently curative instructions are the proper means of correcting the error”). Then there also is the statutory limitation placed on our ability to grant the relief requested by the appellants, of which we are ever mindful. A new trial may not be granted for the improper admission of evidence or for any procedural error, unless we are of the opinion, “after an examination of the entire case . . . that the error complained of has resulted in a miscarriage of justice.” § 59.041, Fla. Stat. Even if, theoretically, there had been a better way for the trial court to have handled the references to insurance, there was nothing about these two references, when we consider them within the context of the whole trial, that vitiated the fairness of that trial, or that otherwise entitled the appellants to a new one. See Barnes, 303 So. 3d at 276–77 (Fla. 1st DCA 2020) (collecting cases that explain that a mistrial should be granted only when an error’s prejudice is significant enough to vitiate the entire trial and that ordinarily, an instruction to disregard will be sufficient to cure the error); Jones v. State, 128 So. 3d 199, 201 (Fla. 1st DCA 2013) (explaining that a “mistrial is a drastic remedy to be granted only when an error is so prejudicial as to vitiate the entire trial”). AFFIRMED. OSTERHAUS and JAY, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Kansas R. Gooden and Geneva R. Fountain of Boyd & Jenerette, P.A., Jacksonville, for Appellants. 7 James R. Holland, II and W. Holt Harrell of Harrell & Harrell P.A., Jacksonville; Jessie L. Harrell of The Harrell Firm, Jacksonville, for Appellee. 8