The appellate court reversed a jury verdict for the insured due to improper trial tactics by his attorney. Homeowners Choice Property and Cas. Ins. Co., Inc. v. Kuwas, 2018 Fla. Ct. App. LEXIS 9500 (Fla. Ct. App. July 5, 2018).
The insured sued Homeowners Choice (HCI) alleging breach of contract due to a denial of coverage for property damage as a result of water loss. During the trial, HCI raised objections to various questions posed by the insured's counsel during the testimony of HCI's litigation manager, as well as various closing arguments made by the insured. The jury entered a verdict for the insured for a substantial sum. HCI appealed.
HCI argued that a new trial was warranted because the insured presented his case in such a way as to improperly imply HCI's bad faith in the handling of the claim. The insured informed the jury that HCI was "playing the odds" in deciding to deny a claim "in the hope that the party who is seeking to be paid under a policy will not sue them." There were multiple instances during the examination of the litigation manager in which the insured use the phrase "playing the odd's" or some variation in reference to HCI. Reference to playing the odds was also made in the closing argument.
The court agreed with HCI that implications of bad faith should not form a basis to determine liability in a first party insurance coverage action. Specifically, the criticism of HCI's claims handling practices as a business practice, which was not based on matters in evidence, was improper.
The insured also made improper statements criticizing HCI's defenses. For example, the insured commented that the parties were "fighting like the dickens" while participating in depositions and litigating motions. These comments implied that the jury should punish HCI for defending itself.
Therefore, a new trial was warranted because the insured's comments in closing argument improperly denigrated HCI's defenses and were so highly prejudicial and inflammatory that HCI was denied a fair trial.
