39 Fla. L. Weekly D94a
in permitting defendants to introduce evidence and argue to jury that one of
trial witnesses had been sued and was originally named as a defendant in case —
Such evidence led jury to logical conclusion that witness and plaintiff had
reached a settlement before trial — New trial required
3rd District. Case No. 3D12-2436. L.T. Case No. 09-34642. Opinion filed January
8, 2014. An Appeal from the Circuit Court for Miami-Dade County, Diane V. Ward,
Judge. Counsel: Lytal, Reiter, Smith, Ivey & Fronrath and Margaret M.
Bichler, for appellant. Luks, Santaniello, Petrillo & Jones and Doreen E.
Lasch, for appellees.
court’s order denying a motion for new trial. The issue is whether the trial
court erred in permitting the Defendants to introduce evidence and argue to the
jury that one of the trial witnesses had been sued and was originally named as a
defendant in the case, in violation of section 768.041(3), Florida Statutes
(2012). For the reasons that follow, we reverse and remand for a new trial.
135th Street and Biscayne Boulevard in Miami. The three drivers were Bern,
Keilin Perez (“Perez”) and Dafne Acevedo (“Acevedo”). Bern, who was injured,
sued Acevedo, Marcelle Camejo (the owner of the vehicle driven by Acevedo),
Perez and Daniel Martinez (the owner of the vehicle driven by Perez). Prior to
trial, Bern settled her claims against Perez and Martinez, and dismissed them
from the suit. Bern then proceeded to trial against Acevedo and Camejo
or argument that Perez had previously been sued by Bern or named as a defendant
in the action, or any evidence that the claims against Perez had been settled or
dismissed. In response, Defendants argued they should be allowed to present
evidence that Perez was a prior defendant in the case because her status as a
defendant at the time she gave her deposition was relevant in weighing the
credibility of her deposition testimony.1
Although Defendants intended to argue at trial that it was Perez’s negligence
which caused the accident, Defendants also sought to establish that it was the
Plaintiff, Bern, who: first alleged Perez caused the accident; sued Perez for
such negligence; included Perez’s alleged negligence in the complaint naming
Perez as a defendant; and included Perez’s negligence in Bern’s sworn answers to
The trial court denied the motion in limine insofar as it sought to prohibit
evidence or argument that Perez had been sued by Bern and were former defendants
in the case, agreeing with Defendants that Perez’s status as a former defendant
in the case was relevant to establishing Perez’s bias during her deposition
testimony. However, the trial court granted a portion of the motion in limine,
prohibiting the parties from mentioning or introducing evidence that Perez had
settled with Bern.
In this case [the defendant, Acevedo] has said she’s not responsible
at all for causing the accident and has blamed both my client, Kazandra Bern,
and a vehicle that was traveling in front of her, Keilin Perez, for causing the
accident. Likewise, my client has said that Ms. Acevedo ran a red light . .
. . . .
But the evidence is going to show that [Acevedo] admitted that she
was not paying attention at the time she [Acevedo] entered this intersection, at
the time of the accident. She has decided to blame my client and Ms. Perez . .
. . . .
The evidence will show that [Acevedo] has blamed my client for
causing the accident and also Ms. Perez.
. . . .
At the end of the day, what you will be asked to decide is obviously
they blame Ms. Perez for causing the accident.
First, Counsel, as he suggested to you in opening, said to you that
my client [Acevedo] is the one who blamed Keilin Perez, the purple Civic. The
evidence will show you that it was his client, Ms. Bern, under oath who sued
and blamed Ms. Perez —
court had previously ordered counsel not to mention that Perez was a party to
the case. Defendants responded that Bern’s attorney had opened the door in
opening statements by telling the jury the Defendants blamed Perez. The trial
judge, recalling that she had ruled Perez’s involvement in the lawsuit was
relevant to show bias, and therefore admissible, overruled the
objection.3 Defendants’ counsel then
continued his opening statement:
Let me go back to where I was. If you recall Counsel in opening
statement mentioning the fact that we blamed the purple Civic [Ms. Perez], the
vehicle in front of the plaintiff. The evidence will show quite the contrary. It
was the plaintiff [who] at one point blamed the purple Civic [Ms. Perez], the
car that she was following. The evidence will show [Ms. Bern] blamed them
under oath, okay? And the evidence will show that she sued them as
court’s attention two relevant cases: Saleeby v. Rocky Elson Constr., 3
So. 3d 1078 (Fla. 2009) and Ellis v. Weisbrot, 550 So. 2d 15 (Fla. 3d DCA
1989). After counsel made their arguments, the trial court ruled “it would be a
violation of due process to preclude the defense from eliciting the testimony
that the defendant — that Ms. Keilin Perez had been a defendant at the time
that she gave her answer[s] in deposition. The facts and circumstances of the
settlement still are precluded from being gone into by either party.”
that Perez and Bern had a green arrow when they were making their left turn.
During cross-examination, Defendants’ attorney questioned Bern regarding her
answer to an interrogatory, wherein she referenced the allegations of her
complaint, and which stated Perez was negligent and caused the
accident.4 Counsel for Bern objected and
the trial court sustained the objection. However, later during cross-examination
of Bern, Defendants’ counsel again questioned Bern regarding the allegations of
negligence she made against Perez in the complaint. Counsel for Bern objected
and this time the court overruled the objection.
who blamed Perez for the accident. In response, counsel for Defendants reminded
the jury that Bern had sued Perez as a defendant in the case; that Bern had
sworn in her complaint that Perez negligently operated her vehicle and caused
the accident; and that Bern later verified this in her sworn interrogatory
answers which referenced the complaint’s allegations of negligence against
Marin, 623 So. 2d 1182 (Fla. 1993). The verdict form asked the jury whether
there was negligence on the part of Perez which was a legal cause of loss,
injury or damage to Bern and, if so, to state the percentage of negligence
attributable to Perez. After deliberating, the jury returned a verdict in favor
of Bern, but apportioned her 60 percent negligent. Ten percent negligence was
apportioned to Defendants Acevedo/Camejo, and 30 percent was apportioned to
Perez. After set-offs, Defendants were ordered to pay Bern $67,679. After
denying Bern’s motion for new trial, final judgment was entered, and this appeal
followed. On appeal, Bern asserts a new trial is warranted because the trial
court erred in allowing significant and repeated evidence and argument that
Perez had originally been sued and named as a defendant in the case, leading the
jury to the logical conclusion that Perez and Bern reached a settlement before
trial and that Perez was dismissed from the lawsuit. We agree.
. a release or covenant not to sue, or that any defendant has been dismissed by
order of the court shall not be made known to the jury.”
settlement by excluding such prejudicial evidence at trial.” Saleeby, 3
So. 3d at 1083. As the Florida Supreme Court has recognized, “it is a practical
impossibility to eradicate from the jury’s minds the considerations that where
there has been a payment there must have been liability.” Id. at 1085
(quoting City of Coral Gables v. Jordan, 186 So. 2d 60, 63 (Fla. 3d DCA
1966). See also, Baudo v. Bon Secours Hosp./Villa Maria Nursing
Ctr., 684 So. 2d 211, 213 (Fla. 3d DCA 1996) (noting that “by virtue of
these statutes the parties are free to settle claims on their own terms without
jeopardizing claims remaining against others.” (quoting Price v. Beker,
629 So. 2d 911, 912 (Fla. 4th DCA 1993))).
considered the application of section 768.041(3) in determining whether a new
trial was warranted where defendants repeatedly brought to the jury’s attention
the fact that other parties had been dropped as defendants. Finding this “the
most damaging error” of the trial, the court reversed for a new trial, holding
that although “it may be permissible to point to an ‘empty chair,’ it is not
permissible to point out that the ‘empty chair’ was once a defendant in the
case.” Id. at 46.
1983), this court again reversed and remanded for a new trial where “less
flagrant” violations were at issue, holding it was improper for the defendant to
bring to the jury’s attention “the fact that certain persons no longer present
in the lawsuit had previously been defendants, in violation of section
768.041(3), even though neither the fact of settlement nor the terms of the
agreement were mentioned.” The holding in Green was approved by the
Florida Supreme Court upon subsequent review:
We agree . . . that defense counsel’s closing argument was highly
prejudicial and improper. The closing argument was not just a traditional empty
chair argument. Defense counsel did more than simply argue that Dade County was
responsible for the accident. Rather, defense counsel emphasized that there had
been a prior suit against that empty chair.
approving a trial court’s decision to grant new trial, where defense counsel
told the jury they might want to ask themselves why certain other persons were
not in the courtroom because plaintiff was not going to tell them. Ricks v.
Loyola, 822 So. 2d 502 (Fla. 2002). Importantly, in both Green and
Loyola, defense counsel did not specifically elicit that the referenced
individuals were former defendants, or that they had been dismissed or had
settled their claims with the plaintiff. Nevertheless, the supreme court held
“the objectionable statement could be construed to improperly refer to the
underlying reason why those other parties were not involved in the case” because
“jurors could logically have interpreted counsel’s statement to imply that a
settlement had been reached with others involved in the case, despite the fact
that counsel did not actually use the word ‘settlement.’ ” Id. at 507-8.
not expressly use the words “settlement”, “release” or “dismissed by the court.”
See § 768.041(3), Fla. Stat. (2012). However, the Defendants made
repeated references, in testimony and argument, to the fact that Bern had sued
Perez and that Perez was a prior defendant in the case, leading the jury
logically and reasonably to conclude Bern had settled her claim against Perez
prior to trial.
proper for the trial court to allow reference to Perez as a former defendant
because it was relevant to show she was biased at the time she gave her
deposition testimony. The trial court agreed with this argument, and denied this
portion of Bern’s motion in limine. This ruling was erroneous under Florida law.
In Saleeby, 3 So. 3d at 1080, the Florida Supreme Court considered
whether, despite the plain language of sections 768.041(3) and 90.4085, “evidence of settlement may nevertheless be
admitted to impeach a witness’s testimony.” The Court answered this question,
unequivocally, in the negative: “the unambiguous language of these statutes
admits no exceptions and . . . violation of the prohibition is reversible
error.” Id. at 1080. Further, the court noted, section 768.041(3)
“plainly and unambiguously prohibits disclosure to the jury of any evidence of
settlement or that a former defendant was dismissed from the suit.” Id.
at 1083. See also, Ellis, 550 So. 2d at 16; Ashby Div. of
Consol. Aluminum Corp. v. Dobkin, 458 So. 2d 335 (Fla. 3d DCA 1984)
(reversing and remanding for new trial where counsel brought to the jury’s
attention the fact that a witness was once a defendant in the lawsuit even if it
was only to rebut opposing counsel’s reference to the witness as an independent
eyewitness); Jordan, 186 So. 2d at 63 (rejecting the proposition that
evidence of settlement may be allowed where opposing counsel opened the door to
the line of questioning.) Thus, because we hold that, as in Webb,
Green and Loyola, the repeated references to Perez’s status as a
former defendant in this case constituted a violation of section 768.041(3),
Saleeby prohibits these references even if made for the avowedly limited
purpose of impeaching, or establishing the bias of, the former defendant’s
(Fla. 3d DCA 2011). In Grunow, a former defendant in a related case was
called by the plaintiff to testify at trial. The witness’ status as a former
defendant in the related case was not revealed to the jury. On
cross-examination, defense counsel asked the witness whether he (the witness)
had talked to an attorney about the case. The witness stated that he had, and
admitted that he had also given a deposition. Id. at 189. Defense counsel
then asked the witness whether (at the time he gave his deposition) he was
concerned that his company would be “pulled into this case,” to which the
witness responded, “[w]e already were at that point.” Id. This court held
that a new trial was not warranted because “[n]either the question nor the
answer indicated that there had been a settlement or dismissal.” Id. This
holding is similar to that in Griffin v. Ellis Aluminum & Screen,
Inc. 30 So. 3d 714, 718 (Fla. 3d DCA 2010), which held that a “fleeting
mention” by counsel which does not “inform or even suggest to the jury that [a
former defendant] had been a party to the action or had settled out of the
lawsuit” was not sufficient to warrant a new trial.
Griffin and Grunow because defense counsel, on numerous occasions,
elicited testimony, introduced evidence, and argued to the jury that Bern had
sued Perez for the accident; that Perez was previously a named defendant in this
case; and that Bern alleged in her complaint that Perez, as a former defendant,
was negligent and caused the accident. This evidence and argument represented
significantly more than a “fleeting mention,” Griffin, 30 So. 3d at 718,
and constituted a violation of section 768.041(3).6 Accordingly, we find that under current and binding
case law from this court, and from the Florida Supreme Court, the trial court
erred in denying Bern’s motion for new trial.7
however, her deposition testimony was read into the record before the jury.
specifically referenced the allegations contained in her complaint, which
alleged that Perez (and the other Defendants) acted negligently and caused the
accident. In reading these interrogatory answers to the jury, it was apparent
that Perez and Martinez were originally named as defendants in the complaint.
fact that she’s a defendant in the lawsuit would not be admissible. However, in
this case it was admissible because it goes to her bias in the [deposition]
answers that she gave.”
Please refer to the allegations outlined in the complaint.
Specifically both drivers listed in the complaint failed to use reasonable care
in operating their vehicles through the intersection in question, which caused
the accident in question.
referenced in the interrogatory answer:
At the time and place outlined above, . . . Keilin Perez so
negligently operated and maintained her motor vehicle so as to cause it to come
in contact with the motor vehicle operated by defendant, Dafne Acevedo. As a
direct and proximate result of this initial collision, the vehicle driven by
Dafne Acevedo collided with [the plaintiff.]
provides: “Evidence of an offer to compromise a claim which was disputed as to
validity or amount, as well as any relevant conduct or statements made in
negotiations concerning a compromise, is inadmissible to prove liability or
absence of liability for the claim or its value.”
that this court, in Grunow, held it was acceptable to ask a plaintiff on
the witness stand, in front of the jury, whether she sued another party in
related litigation. See Grunow, 71 So. 3d at 189 (noting that
sections 768.041 and 90.408 do not “prohibit questions of the kind asked by
[defense] counsel — did you sue X corporation or Y? Expressed another way, the
fact of the assertion of another claim is not of itself evidence of a
settlement, compromise, release or dismissal of a claim.”) However, this was not
the actual holding of the Grunow court and was limited to the unusual
facts of the two related lawsuits involved in that case. The question posed in
that portion of the opinion was hypothetical, and the court’s observation
ventured beyond that essential to the disposition of the case. As such, it was
merely dictum, and has no precedential value. State ex rel. Biscayne Kennel
Club v. Bd. of Bus. Regulation, 276 So. 2d 823, 826 (Fla. 1973); Ladner
v. Plaza Del Prado Condominium Ass’n, 423 So. 2d 927, 929 (Fla. 3d DCA
1982). Moreover, the singular question asked, and ambiguous answer elicited, in
Grunow is quite different from the instant case, where the defense, on at
least five occasions, elicited testimony, introduced evidence, or argued to the
jury that a witness had been sued by the Plaintiff and had previously been a
defendant in the very same case being tried by the jury.
it should be noted that we do not suggest by this opinion that Plaintiff cannot
be impeached by a prior statement in which she alleged Perez acted in a
negligent manner. While it may be entirely proper to introduce evidence that
Plaintiff at some earlier time blamed Perez for the accident, it is
improper to introduce evidence or argue to the jury that Plaintiff had also
sued Perez, or that Perez was a named defendant at the time of the prior
statement. It is the repeated references to the witness’ status as a former
defendant, rather than the existence and content of the prior statement, which
created the harmful error, by leading the jury to the logical conclusion that a
settlement was reached between the plaintiff and the former defendant.
appeal, which we find to be without merit and affirm the trial court’s rulings
as to those issues.
* * *