13 Fla. L. Weekly Supp. 430a
Insurance — Personal injury protection — Argument — Mistrial — Abuse of discretion to deny motion for mistrial based on insurer’s closing argument, which was replete with references to unpled and unproven allegations of fraud and forgery — Argument was improper, highly prejudicial and in direct violation of trial court order in limine — Although trial court admonished counsel and gave curative instruction, cumulative effect of repeated misconduct rendered proceedings incurable
DELTA DIAGNOSTIC SERVICES, INC.; DIVERSIFIED MEDICAL MANAGEMENT, INC.; and WILLIAM TEJEIRO, M.D., P.A., (a/o/a Sergio Gonzalez, et al.), Appellants, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 04-355 AP. L.T. Case No. 01-05917 CC 20. February 17, 2006. On appeal from the County Court for Miami-Dade County, Honorable Fred Seraphin. Counsel: Marlene S. Reiss and Richard Patino, for Appellant. Mark A. Gatica, for Appellee.
(Before MARY R. BARZEE, JACQUELINE HOGAN SCOLA, and IVAN FERNANDEZ, JJ.)
(PER CURIAM.) Appellants, Delta Diagnostic Services, Inc., Diversified Medical Management, Inc., and William Tejeiro, M.D., P.A. (a/o/a Sergio Gonzalez, et al.) (hereinafter, Providers) appeal the trial court’s denial of their motion for mistrial. Because we find the denial of the motion was an abuse of discretion, we reverse.
When United Automobile Insurance Company (hereinafter, United) refused to pay claims submitted by the Providers for services alleged to have been rendered to Sergio Gonzalez (hereinafter, Insured), the Providers filed suit in the County Court. United responded with a general denial and affirmative defenses including a notice defense alleging the Provider’s violation § 627.736(5)(a), Fla. Stat. (2001), and a fraud defense alleging that the Insured was not the owner of the registered vehicle. United alleged no other manner of fraud. The case proceeded to trial. Prior to trial, the Providers filed a Motion in Limine, seeking to preclude United from asserting any affirmative defense other than those asserted in United’s Answer and Affirmative Defenses. The motion was granted. Notwithstanding, and even after repeated admonitions of the trial court, United pursued several lines of inquiry during cross-examination suggesting the Providers had committed fraud. Moreover, United’s closing argument was replete with suggestions of fraud and references to facts not in evidence.
United’s Counsel: You will also see the medical bills of Dr. William Tejeiro, M.D. Sure enough, some of the evaluations of the doctor himself occurred at the Hialeah office where the forms specifically asked where did this patient treat. Mr. Gonzalez never went to Hialeah. These corporations have to prove that the services were rendered in order to be entitled to everything and based on the evidence of the witness, the patient himself, he was never there.
[. . .]
United’s Counsel: United had one day to show you how this operation conducts its medical business. We believe the truth was found. The witness that United brought, Ms. Chase, when she first took the stand, she couldn’t tell you about all the problems with the medical records because of some legal reasons, but you heard about all of those problems anyway when I talked to the doctor and when I talked to Mrs. Tejeiro regarding the medical recordkeeping. She could not tell you about certain things. I did not re-call her to make this a longer trial and had I done that, I think you have enough of the truth before you.[. . .]
United’s Counsel: United also brought to you Mr. Troy Brown. He is not an interested witness in this case. He did not particularly want to be here, but he came to help you in your labor to find the truth. He told you the truth. He appeared to be honest. . . .
He told you about the circumstances of the accident itself. He told you the other vehicle had very very minor damage and that the bus had no damage. He told you that the vehicle that Mr. Gonzalez was supposedly in had a scrape to the fender.
Is that what your impression was when the doctor was testifying about the severity of the injuries? He’s talking surgery, herniations, leg numbness, wrist numbness of both upper extremities, he is talking incontinence, he’s talking everything. He is talking fatal injuries.
[. . .]
United’s Counsel: . . .[S]omeone is generating these bills. Not anyone who came and told you what was billed for, what the codes were for, what parts of the body were actually diagnosed under the diagnosis portion. No medical person ever received these bills. But they were all forged. They were all signed by someone [. . .] singing other people’s names.[. . .]
. . .[T]his is a case where services were not rendered and where services were not related.
In addressing Plaintiff’s objection to a closing argument which alleged fraudulent billing, forgery and other acts of fraud, the trial court recognized that United was attempting to “back door” a fraud defense where it had not been pled and where there was no evidence of fraud or forgery.
Plaintiffs’ counsel: Your Honor, there has been no allegation for forgery.
THE COURT: I know, but I will not mistry the case. I said there had not been any allegation of forgery, and there is no evidence of forgery. This thing is totally uncalled for and is not supported by the evidence. I had just asked you, very politely, to stick to what the evidence showed. You’re taking this way out of hand.
[. . .]When there’s no evidence you cannot simply shoot out there something quickly into thin air as she just did. It is very improper.
While the court repeatedly and rightly admonished United’s counsel, the Providers’ motion for mistrial was denied. Over the Providers’ repeated objections, the trial court declined to mistry the case and Final Judgment was entered on August 12, 2004.
The standard of review for a trial court’s denial of a motion for new trial is abuse of discretion. White v. Consolidated Freightways, Inc., 766 So. 2d 1228, 1232 (Fla. 1st DCA 2000). A motion for a new trial based on improper closing argument should be granted when the challenged argument is: (1) improper; (2) harmful; (3) incurable; and (4) such that it so damaged the fairness of the trial that the public’s interest in our system of justice requires a new trial. Murphy v. International Robotic Sys., Inc., 766 So. 2d 1010, 1028-1031 (Fla. 2000); Johnnides v. Amoco Oil Company, Inc., 778 So. 2d 443, 445 (Fla. 3d DCA 2001). The Appellee’s flagrant misconduct meets all four prongs of the Murphy test.
Appellee’s closing argument which expressly alleged fraud and forgery was improper, highly prejudicial and in direct violation of the trial court’s order in limine. Unpled and unproved fraud allegations were correctly precluded under the order in limine because such references were “unlikely to be disregarded by the jury despite an instruction by the court to do so.” Fischman v. Suen, 672 So. 2d 644 (Fla. 4th DCA 1996) (quoting Ehrhardt, Florida Evidence § 104.5 (1995 Ed.)). While the trial court correctly recognized that the Appellee was making improper suggestions and innuendos of fraud, properly admonished counsel and gave a curative instruction, the cumulative effect of such repeated misconduct rendered the proceedings incurable. On this record, Appellee’s conduct at trial so damaged the fairness of the proceedings that the trial court abused its discretion in denying the Appellant’s motion for a mistrial. We reverse the judgment and remand for a new trial.
REVERSED AND REMANDED.
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