Bern v. Camejo
168 So. 3d 232
Fla. Dist. Ct. App.2014Background
- Three-car collision at NE 135th St and Biscayne Blvd; Bern injured and sued Acevedo and Camejo; Bern settled/dismissed Perez and Martinez before trial.
- Before trial Bern moved to exclude evidence that Perez had been sued or was a defendant; Defendants sought to present Perez’s prior defendant status to impeach deposition bias.
- Trial court partially denied the motion in limine, allowing reference to Perez’s prior defendant status for bias but barred mention of settlements.
- Opening statements referenced Perez as a former defendant and Bern’s suit against Perez; Bern objected and sought mistrial; defense argued door opened due to Bern’s own statements.
- During trial Bern testified to Perez’s deposition; cross-examination referenced Bern’s interrogatory answers alleging Perez’s negligence; objections were sustained/overruled inconsistently.
- Verdict form used Fabre v. Marin; Bern received 60% fault; court denied new-trial motion; intermediate appellate reversal for new trial due to violation of 768.041(3).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether references to Perez as a former defendant violated 768.041(3). | Bern: statute bars disclosure of settlements/defendant status to jurors. | Defendants: status relevant to bias and admissible. | Violation; reversible error; remand for new trial. |
| Whether discussing Perez’s prior defendant status improperly suggested settlement. | Bern: repeated references improperly implied settlement. | Defense: references were for bias, not settlement. | Prohibited under 768.041(3); requires new trial. |
| Whether the trial court erred in allowing discussion of Perez’s prior defendant status over timely objections. | Bern: court already ruled settlement references off-limits. | Court should allow bias impeachment in limited form. | Error; prejudicial misconduct requiring new trial. |
Key Cases Cited
- Saleeby v. Rocky Elson Constr., 3 So.3d 1078 (Fla. 2009) (settlement evidence is barred by 768.041(3) and 90.4085; no exceptions)
- Webb v. Priest, 413 So.2d 43 (Fla. 3d DCA 1982) (empty-chair/defendant references can be damaging but must be limited)
- Green v. Ed Ricke and Sons, Inc., 438 So.2d 25 (Fla. 3d DCA 1983) (reversals for mentioning former defendants; settlement not required to be mentioned)
- Ed Ricke and Sons, Inc. v. Green, 468 So.2d 908 (Fla. 1985) (supremecourt approval of Green extension; improper analogy to settlements)
- Ricks v. Loyola, 822 So.2d 502 (Fla. 2002) (extension of Green; improper references to why others not in courtroom)
- Harris v. Grunow, 71 So.3d 186 (Fla. 3d DCA 2011) (new trial not warranted where no settlement/dismissal indicated)
- Griffin v. Ellis Aluminum & Screen, Inc., 30 So.3d 714 (Fla. 3d DCA 2010) (fleeting mention not sufficient to warrant new trial)