Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT JAMES R. STEWART, JR., Appellant, v. UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY, Appellee. No. 2D2025-1914 September 25, 2026 Appeal from the Circuit Court for Pinellas County; Amy Williams, Judge. Mark A. Nation of The Nation Law Firm, Longwood, for Appellant. David A. Noel and Kara Rockenbach Link of Link & Rockenbach, P.A., West Palm Beach, for Appellee. MORRIS, Judge. James R. Stewart, Jr., appeals a final judgment entered in favor of Universal Property and Casualty Insurance Company (Universal) after a jury trial on Mr. Stewart's complaint for breach of insurance contract. We reverse because the trial court abused its discretion in denying a mistrial after Mr. Stewart suffered a serious injury and was unable to attend the trial. Universal insured Mr. Stewart's home, which sustained water damage in 2019. After Universal failed to provide coverage for all of Mr. Stewart's losses, Mr. Stewart filed his complaint for breach of contract. On April 28, 2025, a jury was selected to hear the case. The next morning, Mr. Stewart's counsel stated on the record that Mr. Stewart had suffered an injury leaving the courthouse on the previous afternoon: "His wheelchair apparently went flying . . . down the parking lot, hit the parking bumper, flipped, breaking his tibia and ankle." Mr. Stewart was scheduled to have surgery that day. Mr. Stewart's counsel asked for a mistrial and for a new trial date. Universal had no objection under the circumstances. The trial court questioned whether the trial could proceed and whether they could "hear from the doctor whether [Mr. Stewart] could come back to trial" after the surgery. Mr. Stewart's counsel stated that he did not see how it could be done: [Mr. Stewart]'s elderly. He had a stroke last year and has some cognitive problems already. And I've seen what that anesthesia does to people when they're in this circumstance. And I can't, he's going to be on pain meds, significant pain meds for this week and probably for the next three or four weeks at a minimum. Mr. Stewart's counsel argued that he needed Mr. Stewart to testify to direct physical loss and some ongoing problems, unless Universal was willing to stipulate. Universal was unwilling to stipulate. Mr. Stewart's counsel stated that he needed Mr. Stewart to testify to the condition of the plumbing when Mr. Stewart "bought the house [up] to the event and then after the event occurring." Mr. Stewart was the only person who could present evidence "regarding [the] necessity for tear out" in 2019. The trial court inquired if counsel could use Mr. Stewart's deposition, but neither party wanted to rely on the deposition 2 because it was taken in 2021 and did not address additional repairs that were done in 2024. Mr. Stewart's counsel asserted that the deposition was a defense deposition, in which plaintiff's side did not ask any questions. Universal also moved for a mistrial, stating that the defense also needed Mr. Stewart "in order to be able to put on the best version of [the defense's] case." The trial court denied both motions for mistrial and ordered the trial to proceed. The trial court instructed the jury that Mr. Stewart suffered an injury, that he would be unable to attend the remainder of the trial, that the trial would proceed, and that his deposition would be read to the jury. The jury found that Mr. Stewart's losses were excluded or not covered under the specific terms of the insurance policy. Mr. Stewart filed a motion to set aside the verdict and for a new trial, which the trial court denied. The trial court entered judgment in favor of Universal. On appeal, Mr. Stewart argues that the trial court's denial of his motion for mistrial was fundamental error and a violation of his due process rights because he was denied the opportunity to be heard and to testify at his own trial. We agree. "The trial court enjoys broad discretion in deciding whether to grant a mistrial, but it should not grant a mistrial 'unless an absolute legal necessity to do so exists.' " Dorsey v. Reddy, 931 So. 2d 259, 265 (Fla. 5th DCA 2006) (quoting Gonzalez v. Largen, 790 So. 2d 497, 500 (Fla. 5th DCA 2001)). It is well settled that a party has the right to be present at his or her own trial. See, e.g., Fillippon v. Albion Vein Slate Co., 250 U.S. 76, 81 (1919) ("We entertain no doubt that the orderly conduct of a trial by jury, essential to the proper protection of the right to be heard, entitles the 3 parties who attend for the purpose to be present in person or by counsel at all proceedings from the time the jury is impaneled until it is discharged after rendering the verdict."); Ferrigno v. Yoder, 495 So. 2d 886, 888 (Fla. 2d DCA 1986) ("[W]e find the right of a party to be present at each stage of a lawsuit virtually sacrosanct . . . ." (emphasis omitted)); Purvis v. Inter-Cnty. Tel. & Tel. Co., 203 So. 2d 508, 511 (Fla. 2d DCA 1967) (holding that trial court erred in excluding "argumentative and somewhat irrational" plaintiff because he "instituted th[e] cause of action" and "had a right to be present in the courtroom"); Freeman v. Rubin, 318 So. 2d 540, 544 (Fla. 3d DCA 1975) ("One who institutes an action is entitled to be present when that action is being tried." (first citing Fla. Greyhound Lines, Inc. v. Jones, 60 So. 2d 396 (Fla. 1952); and then citing Talcott v. Hall, 224 So. 2d 420 (Fla. 3d DCA 1969))). It is also well settled that "[d]ue process requires that a party be given the opportunity to be heard and to testify and call witnesses on the party's behalf . . . and [that] the denial of this right is fundamental error." Solonina v. Artglass Int'l, LLC, 256 So. 3d 971, 973 (Fla. 3d DCA 2018) (omission in original) (quoting Julia v. Julia, 146 So. 3d 516, 520 (Fla. 4th DCA 2014)). Under the unique facts of this case, the trial court abused its discretion in denying the motions for mistrial made after Mr. Stewart's medical emergency rendered him unable to attend his trial. Not only was he unable to attend his trial as a party, he was unable to offer testimony in support of his case-in-chief. See id. at 974 (holding that the trial court departed from the essential requirements of the law in scheduling the trial for a date in which the trial court was aware that plaintiff, who was a material witness, would be unable to attend; trial court effectively denied plaintiff her day in court, thus denying her due process); SSJ 4 Mercy Health Sys., Inc. v. Posey, 756 So. 2d 177, 179 (Fla. 4th DCA 2000) ("[W]hen undisputed facts reveal that the physical condition of either counsel or client prevents fair and adequate presentation of a case, failure to grant a continuance is reversible error." (quoting Ziegler v. Klein, 590 So. 2d 1066, 1067 (Fla. 4th DCA 1991))). The circumstances leading to Mr. Stewart's absence were beyond his control and the result of a medical incident. Universal, as the opposing party, also requested a mistrial due to Mr. Stewart's absence and therefore would not have been prejudiced by a mistrial. We recognize that the trial court was concerned about managing its docket efficiently and conserving judicial resources, having spent the previous day selecting the jury.1 But this is not a case in which a party simply requests a continuance for convenience or even dilatory reasons. Mr. Stewart suffered an unexpected medical incident that prevented him from attending the remainder of his scheduled trial. Under the unique circumstances of this case, the trial court abused its discretion in denying the motions for mistrial so that Mr. Stewart could be present and heard. See Solonina, 256 So. 3d at 974. Accordingly, we reverse the final judgment entered in favor of Universal and remand for a new trial. Reversed and remanded. KHOUZAM, J., Concurs. LABRIT, J., Concurs with opinion. 1 "[W]e are in a new era where the Florida Supreme Court has directed trial courts to strictly manage their cases and timely move cases to resolution as society rightly expects in a properly administered court system." Metsch v. Palmeno, 432 So. 3d 629, 631 (Fla. 3d DCA 2026) (Logue, J., concurring) (first citing In re Amends. to Fla. Rules Civ. Proc., 402 So. 3d 925, 926 (Fla. 2005); and then citing In re Amends. to Fla. Rules of Civ. Proc., 386 So. 3d 497, 499 (Fla. 2024)). 5 LABRIT, Judge, Concurring. I fully concur in the majority decision to reverse for a new trial based on the trial court's denial of a mistrial. I write only to address a second issue that Mr. Stewart raises, which also has merit in my view. In the proceedings below, Universal pled an affirmative defense based on a neglect exclusion in its policy. This exclusion states: SECTION I – EXCLUSIONS A. We do not insure for loss caused directly or indirectly by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss. These exclusions apply whether or not the loss event results in widespread damage or affects a substantial area. .... 5. Neglect Neglect means neglect of an "insured" to use all reasonable means to save and preserve property at and after the time of a loss. At trial, Mr. Stewart's counsel moved for a directed verdict on Universal's neglect defense, but the trial court denied it. Mr. Stewart challenges this denial on appeal, and this issue warrants discussion because Florida law is currently silent on it. Mr. Stewart argues, as his counsel did below, that we should follow Tuchman v. Aetna Casualty & Surety Co., 52 Cal. Rptr. 2d 274 (Cal. Ct. App. 1996), which involved a neglect exclusion. There, the insureds sought coverage for antiques and other items stolen from a secondary property they used for storage. Id. at 275–76. The insurer denied coverage based on neglect, and the evidence presented at the ensuing trial showed that the property was "run down," occupied by transients and squatters, and generally in a state of disrepair before the theft. Id. The trial court ruled that the neglect exclusion barred coverage, but the appellate court disagreed and reversed. Id. at 275–77. It reasoned that 6 the evidence focused on the insureds' neglect of the property prior to the loss, but the exclusion relates to an insured's actions at or after the time of loss. Id. at 279. And because there was no evidence of neglect occurring at or after the time of the theft, the neglect exclusion was inapplicable and did not bar coverage in Tuchman. Id. No theft occurred here, but Mr. Stewart argues that Tuchman is instructive because the evidence in his case—and Universal's neglect defense—also relied on events that occurred prior to the loss, thereby making the neglect exclusion inapplicable. I agree. The loss underlying this case occurred in 2019 when the cast iron plumbing system in Mr. Stewart's home failed. His toilets and showers overflowed, and water and sewage covered his floors. Mr. Stewart filed a claim with Universal for the 2019 loss, and Universal partially denied it. Mr. Stewart then filed suit seeking damages for the alleged cost to tear out and replace parts of the home necessary to access and repair the failed plumbing system. Pertinent here, the evidence presented at trial showed that Mr. Stewart also experienced a "plumbing problem" and "sewage backup" in 2016 or 2017, after which he replaced his toilets. This evidence came through Mr. Stewart's deposition testimony so the details of this event are slim, but there was no evidence to suggest that it caused any damage or additional problems. Nor was there evidence showing that Mr. Stewart made a claim for this event to Universal. In moving for a directed verdict, Mr. Stewart's counsel argued that evidence of this prior plumbing problem was insufficient to support Universal's neglect defense to the 2019 loss, and that there was "no evidence that [Mr. Stewart] failed to do anything at or after the loss that caused [the] damage being claimed here." Universal's response focused 7 on the language of the neglect exclusion and Universal's interpretation of it. Universal explained that the exclusion relates to an insured's actions "at and after the time of a loss," and it argued that the prior plumbing event was "a loss" within the meaning of the exclusion. (Emphasis added.) Universal thus maintained that its neglect defense posed a question for the jury as to whether Mr. Stewart failed "to use all reasonable means to save and preserve property at and after [that] loss" in 2016 or 2017, specifically whether he should have done more than replace the toilets. The trial court appeared to agree with Universal in denying Mr. Stewart's directed verdict motion and the jury ultimately found in Universal's favor. Absent the mistrial error, I would conclude that it was error to deny Mr. Stewart a directed verdict on this issue. As Universal rightly argues, we must look to the language of the policy to determine whether the neglect exclusion applies. See State Farm Auto. Ins. v. Lyde, 267 So. 3d 453, 458 (Fla. 2d DCA 2018) (citing Auto-Owners Ins. v. Anderson, 756 So. 2d 29, 34 (Fla. 2000)). This exclusion bars coverage "for loss caused directly or indirectly by" an insured's failure "to use all reasonable means to save and preserve property at and after the time of a loss." The policy does not define the term "loss." But our supreme court has explained that " '[l]oss' in the insurance context 'refers to damage resulting from a covered event.' " Am. Coastal Ins. v. San Marco Villas Condo. Ass'n, 379 So. 3d 1099, 1102 (Fla. 2024) (quoting BonBeck Parker, LLC v. Travelers Indemn. Co. of Am., 14 F.4th 1169, 1178 (10th Cir. 2021)); see also Loss, Black's Law Dictionary (12th ed. 2024) (defining a loss as to insurance as "[d]amage or other legal or economic detriment resulting in a financial basis for an 8 insured's claim for defense, indemnity, damages, reimbursement, or other payment under an insurance policy"). On this record and based on the evidence presented at trial, the plumbing backup that Mr. Stewart experienced in 2016 or 2017 was not "a loss" as the neglect exclusion contemplates. 2 Thus, evidence of Mr. Stewart's alleged inaction after that event but before the 2019 loss was insufficient to support the neglect defense that Universal presented at trial. See Tuchman, 52 Cal. Rptr. at 279. We also will not construe an insurance policy "to reach an absurd result." State Farm Fire & Cas. Ins. v. Wilson, 330 So. 3d 67, 72 (Fla. 2d DCA 2021) (quoting Deni Assocs. of Fla., Inc. v. State Farm Fire & Cas. Ins., 711 So. 2d 1135, 1140 (Fla. 1998)). Under Universal's lights, Mr. Stewart's failure to jet or descale his cast iron pipes or completely tear out and replace his plumbing system after the 2016/2017 backup triggers the neglect exclusion and bars coverage for the 2019 overflow. In other words, according to Universal, the 2019 loss is excluded because Mr. Stewart neglected to prevent the 2019 loss before it occurred. This interpretation is inconsistent with the exclusion's focus on an insured's actions at and after a loss, and it borders on absurd. More pointedly, it is difficult to imagine a scenario where an insurer would cover a claim for the cost of replacing toilets in response to an ordinary sewage backup. If a sewage backup with no evident damage for which an insured could 2 In arguing otherwise, Universal submits that "it was a question of fact for the jury to determine whether [Mr. Stewart's] prior 2016/2017 sewage backup . . . constituted 'a loss' " under the neglect exclusion. (Emphasis omitted.) But "[t]he construction of an insurance contract is a question of law, not a question of fact," Fla. Peninsula Ins. v. Cespedes, 161 So. 3d 581, 584 (Fla. 2d DCA 2014) (citing Kattoum v. N.H. Indemn. Co., 968 So. 2d 602, 604 (Fla. 2d DCA 2007)), and it was not the jury's place to decide what "loss" means under Universal's policy. 9 properly claim a covered loss requires an insured to take measures to prevent a future loss, "the distinction between pre- and post-loss neglect is meaningless." See Chicago Imp., Inc. v. Am. States Ins., No. 09 CV 2885, 2015 WL 2193138, at *2 (N.D. Ill. May 8, 2015). The same would be true for the maintenance provision in Universal's policy. This provision states that Universal "do[es] not insure for loss" caused by "[f]aulty, inadequate[,] or defective . . . maintenance." If we interpret the neglect exclusion as Universal suggests, this maintenance provision—which relates to an insured's actions before the claimed loss—would be superfluous. We will not interpret a policy in such a manner either. See Hurst v. Bell, 51 Fla. L. Weekly D1542 (Fla. 2d DCA July 29, 2026) (citing Wash. Nat'l Ins. Corp. v. Ruderman, 117 So. 3d 943, 948 (Fla. 2013)). I further note that the neglect exclusion bars coverage for the failure to "save and preserve" property. This does not appear to fit Universal's argument that Mr. Stewart committed neglect by failing to improve or replace his plumbing system after the 2016/2017 event, which is far different from saving and preserving the status quo. See Jamison v. Depositors Ins., No. 14-CV-3009, 2016 WL 3541391, at *10 (D. Neb. May 23, 2016) (explaining that "the 'neglect' exclusion is a mitigation provision" that requires an insured to preserve or save the property during or after a loss). Therefore, even if the 2016/2017 event was "a loss," this record features no evidence suggesting that Mr. Stewart neglected to "save and preserve" his property during or after that event; to the contrary, he replaced the toilets and apparently had no problems with the plumbing until the 2019 event. That said, the evidence on remand may and likely will change, after Mr. Stewart has an opportunity to testify. His testimony could impact 10 the analysis. At this stage, however, and with the evidence before us, it is my opinion that Mr. Stewart was entitled to a directed verdict on Universal's neglect defense. Opinion subject to revision prior to official publication. 11