Wrongful
death — Collision between motor vehicle and motorcycle — Trial court
correctly ruled that statement “I just killed a kid” made by driver of vehicle
to her twin sister was inadmissible pursuant to section 90.403 because
probative value was substantially outweighed by danger of unfair prejudice —
Trial court abused its discretion in failing to also exclude testimony of
witness that he heard driver state on her cell phone that “I think I killed
somebody” — Passing reference by accident reconstructionist to fact that
vehicle had been transported to storage yard by “the insurance company”
violated order in limine preventing the parties from mentioning existence of
insurance before the jury — Although comment regarding insurance was not
pervasive, reversal is required based on cumulative effect of comment in
conjunction with earlier error in admitting witness’s testimony and prejudicial
comments by decedent’s counsel during closing argument — Argument — Where
evidence and argument were presented that decedent’s impairment by use of
cocaine and marijuana was causal factor for the accident, and verdict form
presented issue of drug impairment and decedent’s comparative negligence for
resolution by the jury, argument by decedent’s counsel advising jury that there
would be no recovery for decedent’s parents if decedent were found 50 percent
or more at fault was highly improper — New trial required

MARIE LYNN HARRISON AND DEBORAH
HARRISON, v. WILLIAM GREGORY, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF
JOSHUA RAIM KALPHAT LOPEZ, AND BASICH, INC., Appellees. 5th District. Case Nos.
5D16-1037 and 5D16-2552. Opinion filed July 7, 2017. Appeal from the Circuit
Court for Orange County, Margaret H. Schreiber, Judge. Counsel: Angela C.
Flowers, of Kubicki Draper, Ocala, for Appellant. David C. Beers and James
Gordon, of Beers and Gordon, P.A., Oviedo, for Appellee, William Gregory, as
Personal Representative of the Estate of Joshua Raim Kalphat Lopez. No
Appearance for Appellee, Basich, Inc.

(LAMBERT, J.) In this wrongful death
case, Marie Lynn Harrison and Deborah Harrison (“Appellants”) appeal a final
judgment entered against them and in favor of William Gregory, as personal
representative of the estate of Joshua Raim Kalphat Lopez (“Appellee”). Lopez
(“Decedent”) died as a result of injuries that he sustained when his motorcycle
collided with a motor vehicle driven by Co-Appellant, Marie Harrison, at an intersection
located in Orlando, Florida. Appellants also appeal the separate “Final Cost
Judgment” entered against them and in favor of Appellee.1

The issue of liability or fault for
the accident was vigorously disputed at trial, with both sides presenting
significantly divergent testimony, from lay witnesses and expert witnesses, as
to how and why the accident occurred, including whether Decedent was under the
influence of cocaine or marijuana to the extent that his normal faculties were
impaired at the time of the accident. The jury determined that both Marie
Harrison and Decedent were negligent and a legal cause of the loss or damage to
Appellee, assessing 75% fault to Harrison and 25% fault to Decedent for this
accident. The jury awarded significant damages to Decedent’s parents for their
respective mental pain and suffering, plus damages to Appellee for funeral
expenses and medical expenses. Appellants raise three substantive grounds for
reversal, which we will address in seriatim. Concluding that the
cumulative effect of the errors at trial materially prejudiced Appellants, we
reverse the final judgments and remand for a new trial.

Ruben Ortiz Testimony

While she was still at the accident
scene, Marie Harrison told her twin sister that “I just killed a kid.”2 Appellants filed a pretrial motion in
limine to exclude this statement at trial, arguing that it was not relevant and
that even if it were marginally relevant, the statement was nevertheless
inadmissible pursuant to section 90.403, Florida Statutes (2012), because its
probative value was substantially outweighed by the danger of unfair prejudice.
Following a hearing, the trial court agreed, concluding that “the tendency of
that statement is to suggest an improper basis to the jury for resolving the
matter” and that the statement “doesn’t necessarily imply fault.”

On the morning of trial, Appellee’s
counsel advised the court and Appellants’ counsel that he intended to call
Ruben Ortiz to testify. Ortiz had seen Decedent operate his motorcycle just
prior to the accident and was at the scene when he heard Marie Harrison state
on her cell phone that “I think I killed somebody.” Appellants objected to the
admissibility of this statement, arguing that because the statement was
essentially identical to Harrison’s statement to her sister that the court had
previously excluded pursuant to section 90.403, it would be patently
inconsistent to now allow Ortiz to testify to, essentially, the same statement.
The trial court did not change its earlier ruling on the inadmissibility of
Harrison’s statement to her sister; nevertheless, it permitted Ortiz to testify
as to this second statement. We review this evidentiary ruling under the abuse
of discretion standard. LaMarr v. Lang, 796 So. 2d 1208, 1209 (Fla. 5th
DCA 2001).

Section 90.403 provides that
“[r]elevant evidence is inadmissible if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of issues, misleading
the jury, or needless presentation of cumulative evidence.” “ ‘Unfair
prejudice’ has been described as ‘an undue tendency to suggest decision on an
improper basis, commonly, though not necessarily, an emotional one.’ ” McDuffie
v. State, 970 So. 2d 312, 327 (Fla. 2007) (quoting Brown v. State, 719
So. 2d 882, 885 (Fla. 1998)). The trial court correctly ruled that, under the
facts of this case, Harrison’s statement to her sister was inadmissible under
section 90.403. Therefore, we conclude that the court abused its discretion in
not similarly excluding Ortiz’s testimony regarding Harrison’s essentially
identical statement.

References to Insurance

Prior to trial, the parties
stipulated to the entry of an order in limine to prevent the mentioning of the
“existence of insurance” before the jury. During the course of the trial,
Appellee’s counsel questioned his accident reconstruction expert witness about
the inspection of Marie Harrison’s motor vehicle and specifically asked the
witness where the vehicle had been taken following the collision.3 Appellee’s expert responded that it
had been transported to a storage yard by “the insurance company.” Appellants
moved for a mistrial. Outside the presence of the jury, the court admonished
the witness to make no further comment about insurance, but it denied
Appellants’ motion. Neither this witness nor counsel mentioned insurance again.

“The long-standing purpose of
excluding improper references [to] a defendant’s insurance coverage in civil
proceedings is to preclude jurors from affixing liability where none otherwise
exists or to arrive at excessive amounts [of damages] through sympathy for the
injured party with the thought that the burden would not have to be borne by
the defendant.” Melara v. Cicione, 712 So. 2d 429, 431 (Fla. 3d DCA
1998) (citing Carls Mkts., Inc. v. Meyer, 69 So. 2d 789, 793 (Fla.
1953)). Here, the order in limine was violated. Normally, because this one
comment regarding insurance was not pervasive, we likely would have concluded
that there was no abuse of discretion by the trial court in denying Appellants’
motion for mistrial. See Ricks v. Loyola, 822 So. 2d 502, 506 (Fla.
2002) (holding that an appellate court reviews a trial court’s rulings on
motions for mistrial under the abuse of discretion standard of review).
However, as we explain, this comment about insurance4 in conjunction with the earlier error
in admitting Ortiz’s testimony and the prejudicial comment of Appellee’s
counsel during closing argument, discussed below, requires reversal.

Improper Closing Argument

Appellants presented evidence and
argument at trial that Decedent’s impairment by the use of cocaine and
marijuana was a causal factor for the accident. On this issue, section 768.36,
Florida Statutes (2012), provides, in pertinent part:

(2) In any
civil action, a plaintiff may not recover any damages for loss or injury to his
or her person or property if the trier of fact finds that, at the time the
plaintiff was injured:

(a) The
plaintiff was under the influence of any alcoholic beverage or drug to the
extent that the plaintiff’s normal faculties were impaired . . .; and

(b) As a
result of the influence of such alcoholic beverage or drug the plaintiff was
more than 50 percent at fault for his or her own harm.[5]

On the verdict form, this
determination of drug impairment was presented for resolution as interrogatory
questions 5 and 5(a), which the jury was to consider after it answered the prior
four questions on the verdict form. Specifically, the first two questions on
the verdict form asked the jury to determine whether there was negligence on
the part of Marie Harrison that was a legal cause of loss, injury, or damage to
Appellee and, if so, whether there was also negligence on Decedent’s part that
was a legal cause of loss, injury, or damage. As previously indicated, the jury
answered “yes” to both questions. Question 4 of the verdict form6 then directed the jury to state the
percentage of fault that it charged to Harrison and that it charged to
Decedent.

The verdict form next instructed the
jury that if it had assigned a percentage of fault to Decedent that is 50% or
less, that it was to skip questions 5 and 5(a), but that if it had assigned a
percentage of fault to Decedent greater than 50%, then it was to answer
questions 5 and 5(a) before answering the remaining questions on the verdict
form.7

Questions 5 and 5(a) on the verdict
form stated:

5. If you
attributed any percentage of fault to [Decedent] in question 4 above was some
or all of that fault caused by [Decedent] being under the influence of cocaine
and/or marijuana to the extent that his normal faculties were impaired?

Yes: ______ No: ______

(a) As a
result of that influence of cocaine and/or marijuana, was [Decedent] more than
fifty percent (50%) at fault for his own harm?

Yes: ______ No: ______

In his closing argument, Appellee’s
counsel recommended how the jury should approach filling out the verdict form
during deliberation. Counsel suggested that instead of answering the questions
on the verdict form in the order instructed on the form, the jury should skip
the first four questions on the verdict form and go directly to question 5.
Counsel argued that the answer to questions 5 and 5(a) should “very simpl[y]”
be “no.” Counsel then inexplicably advised the jury as follows: “By the way, 50
percent or more at fault, there’s no recovery.” Appellants’ counsel immediately
objected and moved for a mistrial. The trial court sustained the objection,
correctly ruling that it was improper for counsel “to let [the jury] know the
mathematical effect of a finding of a percentage of fault.” The court issued a
curative instruction directing the jury to follow the instructions on the verdict
form regarding the manner in which it was to proceed in filling out the verdict
form and also admonishing the jury that the attorneys do not give the
instructions on the law. The court deferred ruling on the motion for mistrial
but later denied the motion after the jury returned its verdict.

The purpose of closing argument is
to assist the jury with its application of the law that the judge has given to
the facts of the case. Murphy v. Int’l Robotic Sys., Inc., 766 So. 2d
1010, 1028 (Fla. 2000) (quoting Hill v. State, 515 So. 2d 176, 178 (Fla.
1987)). “Moreover, closing argument must not be used to ‘inflame the minds and
passions of the jurors so that their verdict reflects an emotional response . .
. rather than the logical analysis of the evidence in light of the applicable
law.’ ” Id. (quoting Bertolotti v. State, 476 So. 2d 130, 134
(Fla. 1985)). While Appellee’s counsel was entitled to argue to the jury that
the evidence presented did not establish that Decedent was impaired by cocaine
or marijuana at the time of the accident and could properly argue for a
significant damage award for the parents for their understandable trauma
resulting from the death of their son, it was highly improper for counsel to advise
the jury as to the potential adverse effect to the parents of the jury’s
potential factual findings regarding comparative fault. Frankly, we can
conceive of no reason why counsel would advise the jury that Decedent’s parents
would not receive any money if it found Decedent to be greater than 50% at
fault, other than to deliberately and improperly evoke sympathy and compassion
for Decedent’s parents.

Cumulative Error

Lastly, Appellants argue that while
any one of the aforementioned errors, by itself, is sufficient to justify a
reversal, at a minimum, the errors collectively require a new trial. A
cumulative error claim asks an appellate court to “evaluate claims of error
cumulatively to determine if the errors collectively warrant a new trial.” Rogers
v. State, 957 So. 2d 538, 553 (Fla. 2007) (citing Suggs v. State,
923 So. 2d 419, 441-42 (Fla. 2005)). In analyzing the entire record, we
conclude that Appellee has not shown that the cumulative effect of these errors
is harmless. See Special v. W. Boca Med. Ctr., 160 So. 3d 1251, 1256
(Fla. 2014) (holding that the harmless error analysis in civil cases requires
that “the beneficiary of the error must prove that there is no reasonable
possibility that the error contributed to the verdict”).

Accordingly, we reverse the final
judgment awarding damages in favor of Appellee and remand for a new trial.
Furthermore, because we have reversed this final judgment, we must also reverse
the separate final cost judgment. See Thornburg v. Pursell, 476 So. 2d
323, 324 (Fla. 2d DCA 1985).

REVERSED and REMANDED for new trial.
(ORFINGER, J., and HERNDON, L., Associate Judge, concur.)

__________________

1The two
appeals were consolidated sua sponte by the court.

2Decedent
was twenty-two years old.

3The record
does not indicate the significance of the vehicle’s location after being moved
from the accident scene.

4Appellants
point out that there were multiple references to insurance during trial. On two
occasions, the principal and an employee of the co-defendant, Basich, Inc.,
separately mentioned insurance during testimony. As the questions posed by
Appellee’s counsel to these witnesses were not intended to elicit insurance
information, these comments, over which Appellee had no control, do not justify
reversal. Finally, two separate jurors provided two written questions for
witnesses regarding insurance, but the trial court did not allow the questions
to be asked and did not advise the other members of the jury about those
questions.

5Though not
raised by either party, this statute providing an intoxication defense applies
in a wrongful death action. See Griffis v. Wheeler, 18 So. 3d 2, 4-5
(Fla. 1st DCA 2009).

6Question 3
of the verdict form pertained to an issue of vicarious liability that is not
pertinent to this appeal.

7The
remaining questions related to various elements of damages.

* * *