Insurance
— Uninsured motorist — Argument — Insurer entitled to new trial based on
cumulative effect of statements by plaintiff’s counsel pointing out that
plaintiff had done the right thing all along and that insurer had refused to
pay the debt it owed to plaintiff, counsel’s use of PowerPoint slide visible to
jury that emphasized the insurer’s responsibility, and an instruction by the
trial court which also focused on insurer’s liability rather than on the issue
of actual damages attributable to the accident

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant,
v. MICHAEL D. GOLD and GINA GOLD, individually and as husband and wife,
Appellees. 4th District. Case No. 4D14-2362. January 27, 2016. Appeal from the
Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Dwight L.
Geiger, Judge; L.T. Case No. 562012CA002941. Counsel: Carri S. Leininger of
Williams, Leininger & Cosby, P.A., North Palm Beach, for appellant. Matthew
E. Haynes of Lytal, Reiter, Smith, Ivey & Fronrath, LLP, West Palm Beach,
for appellees.

(FORST, J.) The pertinent issue before the Court is whether
various statements made by the trial court judge and one of the parties below
were improper and require a new trial.1 For the reasons given below, we
answer in the affirmative and reverse the trial court’s denial of Appellant
State Farm’s motion for new trial.

Background

Appellee Michael Gold was in a car accident while covered by
an uninsured motorist policy issued by Appellant State Farm Mutual Automobile
Insurance Company, under which he sued for damages. The case proceeded to
trial.

Before closing arguments, the trial court instructed the
jury that “Michael Gold was insured under a policy with [State Farm]. This
insurance policy provided uninsured/underinsured motorist benefits. [State
Farm] is responsible for any injuries or damages sustained by [Gold] legally
caused by the accident.”

Closing arguments began with Gold’s attorney stating:

We’re here because Mr. Gold
had purchased uninsured motorist coverage so this wouldn’t happen. State Farm
has denied his claim and now he’s facing down a stack of medical bills. And
he’s been carrying this burden with him until today and State Farm to this day,
to this minute has never taken responsibility for the damages in the crash and
for the injuries that are covered under this policy, and they’re not going to
do it until you force them to do it with your verdict.

While Gold’s attorney was making this statement, a
PowerPoint slide was visible to the jury that read “Michael Gold has been
carrying a debt. State Farm promised to pay stacks of medical bills. Paying the
price for someone else’s mistake State Farm refuses to take responsibility for
the debt it owes to Mr. Gold, forcing us to bring them to trial.” State Farm
objected to both the spoken comment and the slide. The jury remained in the
room for one or two minutes during the bench conference on that objection
before being removed. The court sustained the objection and brought the jury
back in.

At the end of Gold’s closing argument, a PowerPoint slide
was displayed that said “Gold has done the right thing all along. Has the
Defendant?” State Farm again objected, but the court overruled this objection.
The jury found in favor of Gold.

Analysis

Although an attorney is accorded great latitude in closing
arguments, “this leeway is not unbridled.” Davidoff v. Segert, 551 So.
2d 1274, 1275 (Fla. 4th DCA 1989) (per curiam). A motion for new trial should
be granted if a party’s closing argument was “ ‘so highly prejudicial and
inflammatory that it denied the opposing party its right to a fair trial.’ ” Philip
Morris USA, Inc. v. Tullo, 121 So. 3d 595, 600 (Fla. 4th DCA 2013) (quoting
Engle v. Liggett Grp., Inc., 945 So. 2d 1246, 1271 (Fla. 2006)).
Comments that rise to this level include comments about an insurance company
“refusing to ‘own up to the responsibility that they have.’ ” Carvajal v.
Penland, 120 So. 3d 6, 10 (Fla. 2d DCA 2013).

Gold argues here that his attorney’s comments were too
“fleeting” to merit reversal, even though he concedes that they were improper.
We disagree.

The above-noted comments bookended Gold’s closing argument.
Although it is true that they cannot be said to make up a substantial part of
the total statements made, their effect was far from inconsequential. Adding to
this conclusion is the fact that Gold’s first comment was not only spoken, but
projected, and this PowerPoint slide continued to be displayed during a bench
conference. This provided further opportunity for the jury to be influenced by
the message, thus negating to some extent the trial court’s eventual sustaining
of the objection.

For a similar reason, we reject Gold’s claim that the final
PowerPoint slide (“Gold has done the right thing all along. Has the
Defendant?”), which was only projected and never spoken, was inconsequential.
Visual aids are used during arguments precisely because they are
effective ways of communicating ideas and themes to the jury. To hold that a
written statement is not harmful simply because it is written would be to
ignore basic principles of argument.

The cumulative effect of Gold’s statements and the trial court’s
jury instruction that focused the jury’s attention on State Farm’s liability
and culpability rather than on the issue of damages compels our holding. We are
not convinced that the court’s instruction would necessarily have been improper
on its own (although we do not explicitly hold as such), but in conjunction
with Gold’s statements the instruction painted a clear picture in the jury’s
minds of a company breaking an obligation rather than a company simply
attempting to determine actual damages attributable to the accident. See
Allstate Ins. Co. v. Marotta, 125 So. 3d 956, 960 (Fla. 4th DCA 2013) (“It
is improper for counsel to suggest in closing argument that a defendant should
be punished for contesting damages at trial or that defending a claim in court
is improper.” (internal quotation marks omitted)).

Of course, our analysis of this issue has been guided by the
harmless error standard set forward in Special v. West Boca Medical Center,
160 So. 3d 1251, 1256 (Fla. 2014). We are unable to say that Gold has proven
there was no reasonable possibility that the errors contributed to the verdict.

Conclusion

Because there is a reasonable possibility that the
cumulative effect of the trial court’s instruction and Gold’s improper
statements — both spoken and projected — may have contributed to the verdict,
we reverse the trial court’s denial of State Farm’s motion and remand for a new
trial.

Reversed and Remanded. (LEVINE and CONNER, JJ.,
concur.)

__________________

1We find no merit in State Farm’s
other argument on appeal.

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