Straw v. Associated Doctors Health and Life

728 So. 2d 354, 1999 WL 148005
CourtDistrict Court of Appeal of Florida
DecidedMarch 19, 1999
Docket98-1688, 98-1735
StatusPublished
Cited by7 cases

This text of 728 So. 2d 354 (Straw v. Associated Doctors Health and Life) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Straw v. Associated Doctors Health and Life, 728 So. 2d 354, 1999 WL 148005 (Fla. Ct. App. 1999).

Opinion

728 So.2d 354 (1999)

Charles STRAW, Appellant,
v.
ASSOCIATED DOCTORS HEALTH AND LIFE, etc., et al., Appellees.
Donnie Neely, Appellant,
v.
Charles Straw, Appellee.

Nos. 98-1688, 98-1735.

District Court of Appeal of Florida, Fifth District.

March 19, 1999.

Clifford A. Taylor, Bunnell, for Charles Straw.

Jamie Billotte Moses and David A. Corso of Fisher, Rushmer, Werrenrath, Wack & Dickson, P.A., Orlando for Donnie Neely.

John J. Schickel, Jacksonville, for Associated Doctors Health and Life.

LESTER, K.R., Jr., Associate Judge.

The cause below arose from Straw's two-count complaint against Neely and Associated Doctors for intentional misrepresentation and fraud in connection with Straw's purchase of an insurance policy. The complaint alleged that in October 1991, Neely, acting as Associated's insurance agent, made certain intentional misrepresentations of fact, causing Straw to act in reliance and cancel his existing health care coverage. Straw was injured before Associated's policy took effect and was forced to shoulder the resulting medical expenses.

At trial, the court denied defendants' challenge for cause of two jurors who had expressed some distaste for insurance companies, forcing the defendants to use two of their three available peremptory challenges to strike the jurors. Throughout the trial, Straw introduced evidence of the relationship between Neely and Associated, seeking to *355 establish Associated's vicarious liability for Neely's actions. At the close of trial, however, the court concluded that Neely had acted as an independent broker and refused to instruct the jury on the agency issue. The jury returned a verdict against Neely only and awarded Straw damages totaling $129,600.29.

In separate appeals, Neely sought review of the denied challenge for cause and Straw appealed the court's refusal to instruct the jury on agency. The appeals have been consolidated and in this opinion we reverse on both points.

POINT ONE—JURY SELECTION

Each side was given three peremptory challenges during the jury selection phase. During voir dire, the following exchanges took place between juror Poole and the parties' counsel:[1]

Mr. Taylor: Have any of you ever had any problems with health insurance coverage?
Juror Poole: Yes, I have, several years ago ... They were slow in paying and they give you a hard time. You get the runaround from them. They keep denying the form. You fill out the form and they would deny it and say they wouldn't have to pay it.
* * * * * * *
Mr. Taylor: Have you ever been involved in a lawsuit?
Juror Poole: Yes.
Mr. Taylor: What type of lawsuit?
Juror Poole: It was a boating accident and we were sued by the individual involved with it.
* * * * *
Mr. Taylor: Is there anything about that experience that being in the judicial system that you bring with you today that you have maybe some ill feelings about?
Juror Poole: Well, it was having to deal with the insurance company again in the lawsuit.... We were insured and the other fellow was not insured and I don't—I don't believe we should have settled, you know. I thought we were in the right but they went ahead and settled out of court anyway.
* * * * *
Mr. Corso: Mr. Poole, you have expressed to us your experiences with insurance companies and I got the feeling that you have a strong opinion about insurance companies.
Juror Poole: I do. It is negative.
Mr. Corso: Okay, I suppose you have held that opinion for quite a while?
Juror Poole: Yes.
Mr. Corso: Do you think there is anything that could be said to you that will make you change from that opinion?
Juror Poole: No. It is subconscious. It is there.... If they came down it would be real close. It would be negative, you know.

Following these exchanges, the court sought to rehabilitate juror Poole and ensure that he could reach a fair and impartial decision based on the law and the evidence. Thereafter, the defendants challenged for cause Jurors Poole and Adkins, arguing that they had manifested personal bias against insurance companies. The court overruled on both challenges and the defendants used their peremptory challenges to strike Poole, Adkins, and a third juror. They then requested an additional peremptory to strike Juror Malm, which the court denied. Malm sat on the jury and the trial continued. Neely argues on appeal that the court's refusal to strike Jurors Poole and Adkins for cause, or grant an additional peremptory to strike Malm, was error.[2] We agree and reverse.

*356 Florida trial judges have very broad discretion in ruling on challenges for cause. As stated by the supreme court:

There is hardly any area of the law in which the trial judge is given more discretion than in ruling on challenges of jurors for cause. Appellate courts consistently recognize that the trial judge who is present during voir dire is in a far superior position to properly evaluate the responses to the questions propounded to the jurors.

Cook v. State, 542 So.2d 964, 969 (Fla.1989) (no error for the trial court to refuse to excuse for cause two jurors who expressed some difficulty in understanding English). Further, "[a] general abstract bias about a particular class of litigation will not, in itself, disqualify a juror where it appears that the bias can be set aside." Fazzolari v. West Palm Beach, 608 So.2d 927, 928 (Fla. 4th DCA 1992) (ruling that jurors who had negative feelings about personal injury lawsuits were not required to be excused for cause where they could set aside such feelings); see also Waddell v. State, 458 So.2d 1140 (Fla. 5th DCA 1984) (ruling that jurors were not subject to dismissal merely for stating that they would expect an innocent defendant to take the stand in his own defense).

However, courts should favor dismissing jurors whose bias or prejudice cannot be set aside. Goldenberg v. Regional Import and Export Trucking Co., 674 So.2d 761 (Fla. 4th DCA 1996); Club West, Inc., v. Tropigas of Florida, Inc., 514 So.2d 426 (Fla. 3d DCA 1987). Moreover, "[c]lose calls involving challenges to the impartiality of potential jurors should be resolved in favor of excusing the juror rather than leaving doubt as to impartiality." Goldenberg, 674 So.2d at 764. Our review of the trial transcript leads us to conclude that Juror Poole expressed sufficient bias to warrant his removal for cause from the panel and that the court erred in denying Neely's challenge for cause.

The record shows that plaintiffs counsel asked the potential jurors early on whether they would "be able to follow what the Judge tells you" and Poole did not raise his hand or otherwise dissent. However, Poole later indicated that he personally had problems with health and liability coverage on two separate occasions. Further, he unequivocally stated that he had strong negative feelings towards insurance companies, and that nothing could be said to change that opinion because "[I]t is subconscious. It is there." He went on to freely volunteer that "[I]f they came down it would be real close. It would be negative, you know." Thus, Poole clearly manifested bias against insurance companies, and that bias was based on his personal experience.

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Cite This Page — Counsel Stack

Bluebook (online)
728 So. 2d 354, 1999 WL 148005, Counsel Stack Legal Research, https://law.counselstack.com/opinion/straw-v-associated-doctors-health-and-life-fladistctapp-1999.