Jury Verdict in Favor of Insureds Reversed Based on Plaintiffs Counsel’s Inflammatory, Derogatory and Sexist Remarks

In a jury trial involving a homeowner’s claim for water damage, plaintiffs’ counsel repeatedly called the insurance company’s attorneys “liars”, the expert witness a “hired gun”, and made sexist comments about defense counsel referring to “her drama”. Following a jury verdict in favor of the homeowners, the insurer filed a motion for new trial. Plaintiffs’ counsel argued that because the improper comments were unobjected to, the error was not preserved and a new trial was not warranted. The trial court denied the motion for new trial. The appellate court reversed finding the remarks fundamentally deprived the insurer of a fair trial. Florida Peninsula Ins. Co. v. Nolasco (3d DCA, Feb. 10, 2021).

TIPS & LESSONS

• Stay on your guard through closing! Arguments claiming opposing counsel “lied to the jury” or accusing counsel of “trickery” and “hiding the ball” are improper

• This opinion is a reminder that the courtroom is meant to challenge the evidence presented, not to ridicule or denigrate counsel and their witnesses.

Proposal For Settlement Held Not Ambiguous and Case Remanded to Award Fees to Insurance Company

In a breach of contract dispute over a denied claim for water damage, the insurance company served a proposal for settlement for $1,000 and attached a proposed release providing the money would be paid to the plaintiff “on her own behalf, and on behalf of her agents, heirs, spouses, successors, assigns …” The proposal was not accepted, and the insurance company ultimately obtained a judgment in its favor. When the insurer sought to enforce its proposal for settlement, the homeowner argued the proposal was ambiguous because the language in the release referring to “assigns” attempted to include a third party’s invoice the insured had assigned to a water mitigation company. The trial court agreed and found the proposal ambiguous and unenforceable. The appellate court reversed and held the inclusion of the word “assigns” did not expand to third parties and the proposal clearly was limited to the plaintiff’s claims. American Integrity Ins. Co. of Fla. v. Branford (4th DCA, February 24, 2021) 

TIPS & LESSONS

• The court emphasized that trial courts are discouraged from “nitpicking” settlement proposals for ambiguities, unless the asserted ambiguity could “reasonably affect the offeree’s decision” on whether to accept the settlement proposal.

• The proposal for settlement upheld in this case also included a release of all claims, including extra-contractual and “bad faith” claims.