Bottini v. GEICO

Filing 107

ORDER denying 100 Motion for Reconsideration re 99 Order on Motion for Partial Summary Judgment. Signed by Judge Elizabeth A. Kovachevich on 12/19/2014. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit) (JM)

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IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT
IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
CIVIL ACTION
MARY BOTTINI, as Personal
Representative of the Estate of
GERARD BOTTINI,
Plaintiff,

CASE NO. 08-08851

v.

DIVISION “I”

GEICO GENERAL INSURANCE
COMPANY, a foreign corporation
and MARISSAD. PENSA,
Defendants.

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AMENDED MOTION FOR NEW TRIAL
Conies now the Defendant, GEICO, by and through undersigned counsel and pursuant to Rule
1.530(b) of the Florida Rules of Civil Procedure, and hereby files this its Motion for New Trial.
1.

This case involves a claim for damages due to a wrongful death claim presented under the
Plaintiffs Uninsured Motorist Insurance policy with the Defendant.

2.

Ajury trial in the above-styled case commenced on January 24,2010, and a verdict was returned
on February 3,2011.

3.

The jury returned the following verdict as it related to damages:
- Damages of the Estate: $ 103,5 52
- Economic Damages of Mary Bottini: $522,478
- Non-economic Damages of Maty Bottini: $14,000,000
- Economic Damages of E ^ |H ^ E H H |$ 3 6 3 ,0 7 0
- Non-economic Damages
$5,000,000
- Economic Damages of C ^ ^ H ^ ^ H |^ 4 2 3 ,2 5 6
- Non-economic Damages
$5,000,000
- Economic Damages of K |^ ^ ^ j R $ 4 5 9 , 9 l O
- Non-economic Damages
$5,000,000

EXHIBIT N

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Based upon multiple errors throughout the course of the trial inclusive of pretrial motions, a new
trial is appropriate.
According to Brown v. Estate o f A. P. Stuckey, 749 So. 2d 490 (Fla. 1999), there are three
grounds on which a new trial maybe granted: (1) the verdict shocks the judicial conscious; (2)
the jury has been unduly influenced by passion or prejudice; (3) the verdict is contrary to the
manifest weight of the evidence.
The grounds for the motion for new trial are as follows:
a.

The court improperly limited die testimony of witness Garrick Lampkin, pursuant to
Plaintiffs Motion in Limine. Mr. Lampkin had testified in discovery that he believed Mr.
Bottini “overcompensated” while swerving to avoid an impact and that this lead to his
loss of control of the vehicle. This subject was proper testimony from a lay witness who
had been driving for many years. Mr. Lampkin was a professional truck driver who had
witnessed many, many drivers on the road and who was trained as a driver in accident
avoidance and safe driving methods. His opinion, derived from his unique experience
and qualifications, as well as simple observation of Mr. Bottini’s driving was entirely
appropriate and should not have been excluded. The exclusion of this testimony, was
prejudicial to the Defendant, as he was one of the few persons who had actually
witnessed Mr. Bottini’s driving immediately prior to the accident. Moreover, while the
Court excluded this testimony, it still allowed Mr. Lampkin to testify regarding his
observations that directly inferred that Ms. Geisbert and Ms. Pensa appeared impaired
was doubly prejudicial to defendant. Certainly Mr. Lampkin was in not qualified to
ascertain whether these persons were impaired, yet the court allowed him to present such
testimony to the jury. Tlie exclusion of testimony that was directly within the scope of
his knowledge while allowing highly prejudicial testimony regarding matters that are fare
outside the scope of his knowledge was extremely prejudicial to Defendant
In a case like this in which liability for the accident was so highly contested and the
questions of fault and sympathy so tightly drawn, the exclusion of any evidence relevant
to those issues was error. The fact that the jury assigned 100% of the fault to Ms.
Geisbert, despite evidence of Mr. Bottini's careless operation of his vehicle is clear
indication of prejudice to the Defendant.

b.

The court improperly permitted graphic and highly inflammatory photos of the autopsy
to be admitted into evidence. This was highly prejudicial as no one was disputing his
death or that his death resulted from the accident. There was no right to recover for pain
and suffering between time of injury and time of death and the autopsy photos
established nothing of relevance to this lawsuit. They did nothing but inflame the

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sympathy of the jury. Defendant was grossly prejudiced by the admission ofthese photos
and the amount of the verdict clearly shows such inflammatory prejudice was present.
The Court improperly permitted Plaintiff to play a statement from Katie Geisbert that
was taken prior to trial. While portions of the statement may have contradicted her in court testimony as to who was driving the vehicle, the remaining portions of the
statement served no purpose, but to inflame the jury against her. They did not impeach
any statements that she made in court or deposition and did not relate to any issue in the
case. Indeed, had Defendant sought to use testimony of her opinion regarding Plaintiffs
poor driving ability, this would have been excluded as an improper opinion from a lay
witness, much like the court did with Mr. Lampkin’s testimony regarding Mr. Bottini’s
overcompensation. The clear reason Plaintiffsought to play Ms. Geisbert1 statement was
s
to portray her in a negative light through her cursing and other slurs. In addition, the
statement played to the j ury included comments regarding Ms. Geisbert’s prior accidents,
without any opportunity to establish whether she was at-fault for the accidents. This was
clearly improper impeachment and such evidence would never have been admissible
during cross examination on the stand. To allow such evidence in “through the back
door” of an investigator’s “statement” is highly improper, directly in violation of the
rules of evidence and, in this case, has severely prejudiced the defendant. Ms. Geisbert’s
credibility was a key issue in the defense and to the extent that improperly admitted
evidence has reduced her credibility, Defendant has been prejudiced.
The court’s conclusion that Katie Geisbert could be treated like a party is legally
incorrect. Ms. Geisbert was not a party to this action. There is no provision in the rules
of evidence for udefacto parties” or “functional equivalent parties”. Accordingly, relying
on rules applicable to parties for evidentiary issues related to non-parties is improper. As
stated above, the error was prejudicial to Defendant.
The Court improperly admitted videotape evidence of the vehicles showing alcohol
within Katie Geisbert’s vehicle, as well as a cigarette roller. Such portions of the video
could have been easily redacted and served no purpose other than to inflame the jury
against Katie Geisbert and to portray her in a negative light. The presence of alcoholic
beverages in a vehicle is so highly prejudicial that, unless there is independent evidence
that the driver is impaired, should never be shown to the jury. In this case, there is no
such independent evidence of impairment and no evidence that the beer bottle, shown in
the photo had been consumed on the day of the incident. This could have been edited out
of the video and the failure to do so was highly prejudicial. Moreover, since Geisbert was
not a party and there was no evidence that she was impaired, it was entirely irrelevant.
Plaintiff could not establish that they played any part in causing this accident and to show
them to the jury served no relevant purpose at all.

Mar., 09

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Shortly after showing the jury the improper and prejudicial video discussed above, the
court then permitted Mr. Yerrid to show Ms. Geisbert a photo that showed medication
bottles that had also been in the car. The photo had not been admitted because it was too
highly prejudicial. Thus, jury would never have known about the medications. However,
when counsel published the photo to the witness, she defensively blurted out that they
were “her medications.” This thus enabled Plaintiff to put before the jury evidence
which this court had concluded was too highly prejudicial to be admissible. The
manipulation of the witness in such a manner should not be permitted. This incident,
following so closely on the heels of the improper video tape showing beer and acigarette
roller was cumulatively so prejudicial and Defendant immediately sought a mistrial,
which was denied. Again, such evidence was not relevant, since there was no issue to the
jury as to whether Ms. Geisbert was impaired. The sole purpose of the evidence was to
paint a negative picture of Ms. Geisbert and to prejudice the jury against her and thereby
against Defendant who is vicariously liable for her conduct. However, the prejudice does
not arise from her being negligent or not negligent, but rather from the jury thinking she
is a bad person. That is clearly improper and, again, since she was a critical witness for
the Defense, such “bad person” evidence was extremely prejudicial.
f.

The Court improperly permitted Kerry Brown to testify at length regarding the survivors’
need for future medical treatment. Even though counsel stated that these were not
damages they “were seeking” this did not cure the prejudice. Such damages are not
recoverable for survivors under the wrongful death Act and evidence of such damages
should never have been permitted. The entire purpose of such evidence was to
improperly give thejury the impression that they needed to compensate the survivors for
such treatment. This can only be done by exaggerating and increasing the other awards
in the case. Given the shocking verdict in this case, it is clear that this worked quite
successfully and thejury did, indeed, factor in such improper items as the survivors’ need
for counseling and other future medical treatment.

g.

The court improperly precluded relevant and critical evidence that related to the true
economic value of the decedent’s business which was directly related to the loss of net
accumulations and lost support The jury awarded $1,768,714 in lost support and services
to the various survivors. This number was clearly based on distorted and inaccurate
figures because the court prevented Defendant’s economic expert from explaining the
full financial impact of payroll tax liability on plaintiff s business. This liability was
clearly owed by the decedent’s business and obviously impacted the profitability of the
business. Accordingly, the financial figures upon which the jury based their lost support
and services award were in error and the end result is an improper and reversibly tainted
verdict.

h.

The Court improperly limited Defendant’s engine expert from examining the engine prior
to trial, improperly restricted his ability to testify at trial regarding his viewing of the
engine and by not compelling Plaintiff to produce the engine for his use during trial
testimony. The engine had been marked for identification, and should never have been
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permitted out of the courthouse. Plaintiff sought to admit the engine into evidence, and
Defendant agreed that such admission was proper. The engine had been timely disclosed
and listed as an exhibit for trial. The court’s reason for excluding it from evidence was
improper and without support in Florida law. The consequence of all these rulings was
that Defendant’s expert was improperly prevented from demonstrating to the jury why
the Geisbert engine failed and why it was not the result of her negligence. This was a
highly contested issue at trial and the restrictions on Defendant’s ability to fully explore
this issue with the jury was fatally prejudicial to Defendant.
The error in failing to admit the engine or to compel its return to the courthouse was
further compounded when counsel for Plaintiffs actually testified to the jury regarding
the reasons why the engine was not present. There was no evidence in the proceedings
on that issue and such testimony from counsel is highly improper and prejudicial.
i..

The court improperly instructed the jury on a legal issue that had never been pleaded and
on which no evidence had ever been admitted and which was legally incorrect. At the
charge conference, Plaintiffmoved to include an instruction that Tim Lloyd was an agent
of Katie Geisbert and Anita Lloyd. The sole basis for such purported agency relationship
was because he was Anita’s husband and because they trusted him to do repairs on the
vehicle. In so doing, the court directly imputed any of Lloyd’s negligence to Geisbert and
thereby to GEICO. However, there is absolutely no factual support to find that an agency
relationship existed between Geisbert and Lloyd and this instruction was error as amatter
of law. It was prejudicial because the jury was thereby prevented from possibly assigning
a portion of fault for the accident to Lloyd. Since any negligence attributed to Lloyd
would have reduced the negligence attributed to Geisbert and thereby reduced GEICO’s
responsibility for the damages, such instruction was patently error and highly prejudicial
to Defendant.

j.

The Court improperly refused to give a curative instruction or grant a mistrial when
counsel for the Plaintiff an experienced trial lawyer, attempted to equate the damages
in this case to some type of priceless painting or other work of art. Counsel knew full
well that such argument was improper, having already represented to the court that he
would not make such argument in response to Defendant’s motion in limine on that very
topic. The argument is clearly and unequivocally improper. Chin v. Caiaffa, 42 So.3d
300 (Fla. 3rd DCA 2010)(finding that closing argument where counsel compared
plaintiff’s life to a Picasso painting was reversible error). In this case, there was a timely
objection and motion for mistrial, thus, Defendant does not have to establish that this was
fundamental error, cf. Carnival Crop, v. Pajares, 972 So. 2d 973, 979 (Fla. 3Id DCA
2007)(finding a Van Gogh comparison to be "highly improper" but not fundamental
error); Fasani v. Kowalski, 43 So.3d 805 (Fla. 3rdDCA 2010).

k.

Even if any of the above errors was not, in and of itself, sufficiently prejudicial to warrant
a new trial, the cumulative effect of the errors clearly supports a new trial. As stated by
the Third DCA in Fasani,
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Although "a single improper remark or argument might not be so
prejudicial as to require reversal," Pajares, 972 So. 2d at 979,... the
Cumulative effect of ... counsel's numerous improper comments and
arguments operated to deprive the appellants of a fair trial. See
Muhammadv. Toys "R" Us, Inc., 668 So. 2d 254, 259 (Fla. 1st DCA
1996) ("[T]he collective import of counsel's personal injections, and
irrelevant and inflammatory remarks, was so extensive as to have
prejudicially pervaded the entire trial, precluding the jury's rational
consideration of the evidence and resulting in an unfair trial.").
Accordingly, a new trial is warranted.”
Fasani, 43 So.3d at 811-12.
7.

Due to the above, the verdict was as a result of the j ury being unduly influenced by passion or
prejudice and was against the manifest weight of the evidence,

8.

In addition to the grounds stated above, undersigned counsel moved for mistrial during the
Plaintiff's rebuttal closing argument and this court reserved ruling.

9.

Based upon the above stated grounds, a motion for new trial is appropriate and should be
granted.
WHEREFORE, Defendant respectfully requests this court enter an order granting its motion for

new trial and/or granting its motion for mistrial.

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