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)

Case 8:13-cv-00365-EAK-AEP Document 28-13 Filed 11/06/13 Page 1 of 7 PagelD 344

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 MARISSA D. PENSA,
Defendants.

/
MOTION FOR REMITTITUR
COMES NOW the Defendant, by and through undersigned counsel, and pursuant to Florida
Statutes 768.74, and hereby requests this court grant its Motion for Remittitur. As good grounds
therefore would state the following:
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.

A jury 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: $103,552
- Economic Damages of Mary Bottini: $522,478
- Non-economicDamagesofMarvBottini: $14,000,000
- Economic Damages of E ^ ^ ^ j^ B |H ^ 3 6 3 ,0 7 0
- Non-economic D a m a g e s T f ^ H ^ ^ ^ U : $5,000,000
- Economic Damages of C ^ J M ^ ^ B |0 4 2 3 ,2 5 6
- Non-economic D a m a g e s T f ^ H ^ H n |^ $5,000,000
- Economic Damages of
$459,910
EXHIBIT M

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- Non-economic Damages of K | B 4 H I : $5,000,000
4.

Florida Statutes 768.74(1) states as follows:
In any action to which this part applies wherein the trier of fact determines that
liability exists on the part of the defendant and a verdict is rendered which awards
money damages to the plaintiff, it shall be the responsibility of the court, upon
proper motion, to review the amount of such award to determine if such amount
is excessive or inadequate in light of the facts and circumstances which were
presented to the trier of fact.

5.

Based upon the testimony and evidence presented to the jury, the amount awarded by the jury
is excessive.

6.

Florida Statute 768.74(5) provides the necessary criteria for remittitur. Specifically, the statute
identifies the following criteria in assessing a motion for remittitur:
(a)

(b)

whether it appears that the trier of fact ignored the evidence in reaching a verdict
or misconceived the merits of the case relating to the amounts of damages
recoverable;

(c)

whether the trier of fact took improper elements of damages into account or
arrived at the amount of damages by speculation and conjecture;

(d)

whether the amount awarded bears a reasonable relation to the amount of
damages proved and the injuries suffered; and

(e)

7.

whether the amount awarded is indicative of prejudice, passion, or coercion on
the part of the trier of fact;

whether the amount awarded is supported by the evidence and in as such that it
could be adduced in a logical manner by reasonable persons.

The amount awarded as it related to non-economic damages is certainly indicative of prejudice
and passion on the part of the trier of fact. Furthermore, the finding of no comparative fault on
the part of the driver-decedent suggests that the trier of fact ignored undisputed evidence in the
case. In addition., the size of the economic and non-economic damages suggest that the trier of
fact took improper elements of damage into account to arrive at the verdict. Finally, the amount
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of the damages bears no reasonable relation to the damages proven, nor is it supported by the
evidence such that it could be adduced in a logical manner by reasonable persons.
8.

More specifically, the following elements of the trial led to this excessive verdict and supports
the conclusions reached in the paragraph above:
a.

The court improperly limited the testimony of witness Garrick Lampkin, pursuant to
Plaintiff s 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. The exclusion of testimony that was directly within the scope of
his knowledge while allowing highly prejudicial testimony regarding matters that are fare
ou tside 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
sympathy of thejury. Defendant was grossly prejudiced by the admission of these photos
and the amount of the verdict clearly shows such inflammatory prejudice was present.

c.

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 ^
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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. Geisbert’s statement was
to portray her in a negative light through her cursing and other slurs. In addition, the
statement played to the jury 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 “defacto 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.
d.

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.

e.

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 a cigarette
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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 puipose 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 the jury 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 the jury did, indeed, factor in such improper items as the survivors’ need
for counseling and other future medical treatment.

g.

Hie 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 plaintiffs 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 prevented Defendant’s expert from using the engine which had
been published to the jury and relied upon extensively by Plaintiffs expert. The engine
that was in the vehicle on the date of the accident was brought into the courtroom by
Plaintiff, who sought to have it admitted into evidence. It was thereafter used extensively
by Plaintiff’s expert to support and demonstrate his opinions regarding the engine
problems.
The Court erred in refusing to admit the engine into evidence, as it was a critical piece
of evidence in regard to how this accident. The causation of the accident was the key
issue in this case and any evidence that would have been relevant to that issue should
have been admitted. The court’s reason for refusing to admit the engine is not legally
viable, since large, bulky and logistically difficult evidence is frequently used in a variety
of cases. The fact that the engine presented a difficult storage issue is not a valid basis
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to disallow it from being admitted into evidence.
Moreover, the Court expressly required that the engine be maintained in a locked area
during the trial, but Plaintiffs counsel removed the engine from the courthouse and
refused to bring it back and this court refused to compel such production. Defendant was
thus effectively prohibited from using evidence in the case. This evidence was necessary
for Defendant’s own expert and the failure of the expert to have the engine present so
that he could demonstrate the basis for his opinions was clearly prejudicial.
The error 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.

j.

9.

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, Plaintiff moved 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 a matter
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.
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. Caiqffa, 42 So.3d
300 (Fla. 3rd DCA 2010)(finding that closing argument where counsel compared
plaintiffs 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, c f Carnival Crop. v. Pqjares, 972 So. 2d 973, 979 (Fla. 3rd DCA
20U7)(fmding a Van Gogh comparison to be "highly improper" but not fundamental
eiTor); Fasani v. Kowalski., 43 So.3d 805 (Fla. 3rdDCA 2010).

For the foregoing reasons, Defendant respectfully requests this court grant its remittitur as it

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relates to past economic damages, future economic damages, past pain and suffering, and future
pain and suffering.
WHEREFORE, Defendant respectfully requests this court enter an order granting this motion,
allowing reductions of the verdict by the sums noted above, and granting any other relief deemed to be
necessary and appropriate.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S.
Mail to David D. Dickey, Esq., The Yerrid Law Firm, Bank of America Plaza, 101 E. Kennedy Blvd.,
Suite 3910, Tampa, FL 33602-5192, on February 11,2011.
THOMPSON GOODIS THOMPSON
GROSECLOSE RICHARDSON MILLER, P.A.

JA
R., ESQUIRE
Fl<
Post Office Box 90
St. Petersburg, Florida 33731
Phone: [phone]
Fax: [phone]
Attorney for Defendant GEICO