MORGAN INTERN. v. DADE UNDERWRITERS, 571 So.2d 52 (Fla.App. 3 Dist. 1990)

No. 89-2278.District Court of Appeal of Florida, Third District.
December 4, 1990. Rehearing Denied January 9, 1991.

Appeal from the Circuit Court, Dade County, Francis X. Knuck, J.

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Blackwell Walker and Douglas H. Stein and James E. Tribble, Miami, for appellants.

Touby, Smith, DeMahy Drake and Kenneth R. Drake, Miami, for appellee.

Before SCHWARTZ, C.J., and HUBBART and BASKIN, JJ.

BASKIN, Judge.

Morgan International Realty, Inc., and Giaconda Webb Morgan [Morgan] appeal an adverse final judgment entered following the return of a jury verdict in favor of defendant, Dade Underwriters Insurance Agency, Inc. We reverse.

Morgan’s action was predicated on Dade Underwriters’ negligent failure to procure insurance coverage for malicious prosecution and to advise Morgan that it had not obtained the requested coverage.[1] Morgan incurred damages when a former employee sued Morgan for malicious prosecution.

During deliberations, the jury sent several questions to the court. One question asked: “If it was negligence on both parties, how can this be settled?” Because comparative negligence had not been raised as an issue in the case, Morgan requested the court to instruct the jury “not [to] consider this question.” Dade Underwriters objected to Morgan’s request, arguing that Morgan’s conduct was its primary defense. The court denied Morgan’s request and instructed the jury to rely on its recollection of the instructions and the evidence.

“Trial judges must have the discretionary power to further explain or define their instructions if the jury is confused or desires further guidance.” Campbell v. State, 306 So.2d 482, 483 (Fla. 1975).

In reality the trial of a case like this is nothing more than a realistic search for the truth by court and jury. The jury has a perfect right to return to the court room at any time and ask questions that are calculated to shed light on the controversy or that will in any way assist it or the court in developing the truth of the controversy.

Sutton v. State, 51 So.2d 725, 726 (Fla. 1951).

Because the question demonstrated that the jury was confused,[2] the trial court abused its discretion when its response failed to ameliorate the jury’s confusion. See Sutton; Vine v. Scarborough, 517 So.2d 726 (Fla. 3d DCA 1987), review denied, 528 So.2d 1183 (Fla. 1988); Bennett M. Lifter, Inc. v. Varnado, 480 So.2d 1336 (Fla. 3d DCA 1985), review dismissed,
484 So.2d 7 (Fla. 1986); Dukes v. Pinder, 211 So.2d 575 (Fla. 3d DCA), cert. denied, 219 So.2d 700 (Fla. 1968); see also Perez v. Seaboard Coast Line Railroad Co., 277 So.2d 825 (Fla. 3d DCA), cert. denied, 288 So.2d 505 (Fla. 1973). Thus, we reverse the final judgment and remand for a new trial.

Reversed and remanded.

SCHWARTZ, C.J., concurs.

HUBBART, Judge (dissenting).

If, as the majority opinion states, plaintiff’s counsel had requested the trial court to instruct the jury not to consider the comparative negligence issue, at 53 when the jury asked the court, “If it was negligence on both parties, how can this be settled?” — I would join in the majority’s reversal and remand for a new trial. I agree that the trial judge’s refusal to give such a proper instruction would constitute reversible error based on the reasons and legal authority stated in the majority opinion.

Plaintiff’s counsel, however, made no such request; he asked only that the jury be instructed “You should not consider this question,” (T. 637), which, in effect, told the jury not to consider the negligence of either party to this action. Plainly, to have

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given such an instruction would itself have been reversible error, because the negligence of the defendant was a vital issue in this case. Indeed, the plaintiff had sued the defendant for negligent failure to procure malicious prosecution insurance coverage for the plaintiff, and the trial court had previously instructed the jury at some length on the negligence issue. It is therefore obvious that the trial court did not commit reversible error, as urged, in refusing to give such a clearly erroneous instruction — and that the majority’s decision to the contrary is patently wrong.

I would further reject the other points raised on appeal by the plaintiff and affirm the final judgment in all respects.