MR. WESLEY: Anyone else ever had to bring a lawsuit against their own insurance company?

Mr. Johnson?

[JUROR 13]: Yes.

MR. WESLEY: Tell me about that, sir.

[JUROR 13]: This was in the '80s. I don't remember much of it. I was rear ended. I filed a claim.

MR. WESLEY: Okay. Did you bring a claim against your insurance company, or did you bring [a] claim against the person who rear ended you, or do you remember?

[JUROR 13]: My insurance company.

MR. WESLEY: Okay. Under an uninsured motorist coverage?

[JUROR 13]: The driver was insured.

MR. WESLEY: Regardless of who the claim may have been against, were you satisfied with that process?

[JUROR 13]: Um . . .

MR. WESLEY: Pregnant pause. It sounds like you may not have been – exactly happy with the process or totally satisfied with the result. Is that fair?

[JUROR 13]: Well I'm still suffering from the injuries so –

MR. WESLEY: You still have injuries or symptoms that were, are related to that accident?

[JUROR 13]: Right.

MR. WESLEY: Do you still receive treatment?

[JUROR 13]: No.

MR. WESLEY: Just something you deal with?

[JUROR 13]: Yes.

MR. WESLEY: Along the same lines of the question I asked – do you believe like you were made whole or that you received everything that you were owed as a result of that accident?

[JUROR 13]: No.

MR. WESLEY: No? Thank you, Mr. Johnson.

Later on, juror 13 responded to Mr. Wesley's additional questions as follows:

MR. WESLEY: Anybody else in the panel – anybody else have concerns about starting everybody off even? Does anybody feel like they are not able to do [sic]? That they are already leaning one way or the other – Mr. Johnson?

[JUROR 13]: I am leaning towards the plaintiff.

MR. WESLEY: Okay. What gives you that lean?

[JUROR 13]: I have a fiancée that is involved in a personal injury case at this time with Geico.

MR. WESLEY: Okay. Is that a case where Geico is the uninsured motorist carrier, meaning her insurance company or is that the other driver?

[JUROR 13]: It is her insurance company.

MR. WESLEY: Your fiancée is in a case with Geico currently?

[JUROR 13]: Yes.

MR. WESLEY: Does something about that case cause you not to be fair and impartial here?

[JUROR 13]: That's correct.

MR. WESLEY: Again, not having heard any evidence so far, do you believe going into the case, you would already be somewhat leaning on this side as opposed to on Geico? 

[JUROR 13]: Yes.

MR. WESLEY: All right. Thank you, sir. I appreciate that.

(Emphasis added.)

The parties' attorneys then voiced their challenges for cause. Mr. Wesley was successful in challenging for cause juror 17 – the other Mr. Johnson – because during voir dire, and obverse to juror 13's sentiment, juror 17 expressed a bias in favor of GEICO. Counsel for GEICO, however, did not seek to have juror 13 removed for cause due to his expressed bias against GEICO.

Counsel next exercised their peremptory strikes. GEICO's attorney, Mr. Martin, used all of his peremptory strikes. The trial court then listed the jurors to be empaneled: “This would be 5, 6, 7, 8, 9, 13, and 15 would be our alternate.” Both sides agreed to the jury. The trial court did not, however, place the jury under oath; instead, it called a recess for lunch.

Apparently, during the lunch recess, something or someone jogged Mr. Martin's memory that there were two Messrs. Johnson in the venire. He recognized the potentially dire consequences to his defense of his having conflated the two Johnsons – jurors 13 and 17 – which would result in juror 13 being seated on the jury. Accordingly, upon his return to the courtroom and as soon as the judge inquired if there was anything that needed to be brought up before the jury was brought back in, Mr. Martin responded:

MR. MARTIN: Yes, Your Honor. And I preface this by apologizing to the court and to plaintiff's counsel, but it was brought to my attention over the lunch hour that I made a mistake during the jury selection process. I got the two jurors, Johnson, Juror Number 13 . . . and Juror Number 17, Johnson mixed up in my head.

I should have moved to strike . . . Juror Number 13, for cause. The reason being that . . . Juror Number 13, stated that he had a lawsuit against his own insurance company in the 1980s. He was still suffering from that. He was leaning towards the plaintiff. He was not satisfied with the result of his prior claim, and his current fiancée is currently involved in a personal injury lawsuit against Geico.

The Juror Number 17 . . . was struck for cause. And I conflated the two of them in my mind and didn't think to move for cause for [Juror Number 13]. He is currently seated at Juror Number 6 in our panel. For that reason, I'm compelled, I believe, to move to strike Juror Number 13 . . . for cause and proceed with Juror Number 15 . . . who's currently the alternate, as the sixth juror on the panel.

And again, I apologize for my error, but I – I feel like I have to make that motion at this point.

(Emphasis added.)

Mr. Wesley objected to Mr. Martin's challenge for cause, claiming that juror 13's answers did not constitute sufficient bias to justify the challenge. He also claimed he would have used his peremptory strikes differently had juror 13 been removed for cause.

Mr. Martin countered by pointing out that Mr. Wesley had used his last peremptory strike before Mr. Martin had exhausted his own, and that he (Mr. Martin) could have “back struck Juror Number 13 . . . with [a] peremptory.” Mr. Martin explained that because Mr. Wesley's peremptory strikes had been exhausted, “Mr. Wesley would not have been able to make any additional changes to the panel” if Mr. Martin had back struck juror 13. He therefore urged that the only harm presented was the risk of proceeding with no alternate juror. Mr. Martin then repeated his request that juror 13 be removed from the jury for cause and the alternate juror be seated as a regular juror on the panel.

Acknowledging that his own notes of juror 13's answers indicated “some potential bias” on the juror's part, the trial judge determined to question him on his ability to be fair. The judge noted for the record that the defense did not possess any more peremptory strikes, and, in doing so, he made his position clear: “I'm not going to back strike [juror 13] unless it's clear that he should be stricken for cause.”

Accordingly, juror 13 was called into the courtroom, and the trial court conducted an additional inquiry into the circumstances of the juror's fiancée's involvement with GEICO. Juror 13 reiterated that his fiancée had filed a claim with GEICO following an automobile accident in which she was not at fault. The driver who caused the accident was also insured by GEICO. The court then conducted the following colloquy:

THE COURT: . . . And do you believe that – based on that, that have [sic] any bearing on your ability to be fair and impartial in this case?

[JUROR 13]: Well, it's – it's the evidence at the end – at the end of the day. If the evidence [is] 50/50, I probably lean towards the plaintiff.

THE COURT: Uh-huh.

[JUROR 13]: Because I – I hear my fiancée, you know, discussing her case with me like every – every other day. . . .

THE COURT: Well, like I said, the – the only question that I had was just whether or not you can place that aside and fairly consider the issues as relates to the parties here and render a verdict on the evidence here and not on the basis of what may be taking place with regard to your fiancée.

And so that's the question I needed to ask.

[JUROR 13]: I would like to think I could, yes.

THE COURT: Okay. You believe you could?

[JUROR 13]: But, you know, I just had to mention that, so . . .

THE COURT: How long ago was the accident?

[JUROR 13]: Two years ago.

THE COURT: Okay. So it's been some time.

[JUROR 13]: Yes.

THE COURT: She's had a fair amount of – of interaction, I guess, with . . .

[JUROR 13]: Yes. It's ongoing presently.

THE COURT: Okay. But you – do you feel like one side starts ahead of the other, or do you believe that both start on even ground and you would require – one side or the other, you would have to be persuaded equally before you could reach a verdict and, you know, the burden is on the plaintiff?

[JUROR 13]: My – my decision is not made going, you know – it's not already made, my decision. I have to hear both sides. But if it comes to 50/50, you know, human nature may take over.

THE COURT: Okay. 50/50, though, if – if a tie, you're not persuaded, would you be able to render a verdict for the defense if it – if they're – if you're not persuaded that the plaintiff should prevail? Would you be able to do that?

[JUROR 13]: I think I could be fair. To be honest with you, I think I could be fair in this situation.

(Emphasis added.)

Based on juror 13's responses, the trial court denied GEICO's “strike for cause.” For the record, Mr. Martin voiced his objection on the basis that juror 13 “just said two different times that he's leaning towards the plaintiff,” which, for Mr. Martin, did not evince “a clear indication that [juror 13 could] be fair and impartial,” not just because of the situation with his fiancée and GEICO, but also in light of his personal and continuing dissatisfaction with his old accident and insurance claim. When the trial court pointed out that juror 13 had indicated “he would be 50/50,” Mr. Martin observed:

But the 50/50 – if it's 50/50, the defense should prevail, Your Honor, as you know. . . . It was not the preponderance of the evidence. He said, if it's 50/50, he would be leaning towards the plaintiff. That tells us that he's not objective, he's not, you know, being – things aren't fair. He's saying, you know, if it's 50/50, he's going to favor the plaintiff. . . .

Nevertheless, the judge stood firm by his ruling that juror 13 “indicated he [could] be fair and follow the law,” and, again, denied the challenge for cause.

Immediately thereafter, the jury was called back into the courtroom and was sworn.

The jury returned a verdict for Ms. Sanchez, awarding her damages totaling $2.5 million.

GEICO filed a motion for new trial, asserting that juror 13 should have been struck from the jury and that it had been denied a fair trial.

The trial court granted GEICO's motion, and Ms. Sanchez appealed.

The Appellate Court's Decision

The appellate court affirmed.

In its decision, the appellate court first decided that juror 13's answers to the trial court's inquiries did nothing to rehabilitate him. In the appellate court's view, juror 13 “virtually pronounced his verdict in favor of [Ms.] Sanchez were he to ultimately find the evidence for both sides weighed evenly in the balance.” Undoubtedly, the appellate court continued, his “emotions” and “passions” against GEICO “would have informed his decision.”

Next, the appellate court rejected Ms. Sanchez's argument that GEICO's objection to the empaneling of juror 13 was not preserved because GEICO had not requested an additional peremptory challenge when the trial court denied its challenge for cause.

The appellate court noted that, prior to the jury's being sworn, counsel for GEICO “clearly and succinctly presented his argument to the trial court that juror 13 should be removed for cause.” Therefore, the appellate court continued, “[t]he trial court was on notice that defense counsel was dissatisfied with the jury panel due to counsel's objection.”

Moreover, the appellate court continued, when the trial court announced that it would not “back strike” juror 13 unless it was “clear that he should be stricken for cause,” the trial court effectively removed any option from counsel of requesting an additional peremptory strike. As a result, the appellate court found, for purposes of preserving the issue for appeal, in view of the trial court's announcement, requesting an additional peremptory strike would have been futile.

The appellate court concluded, therefore, that the issue was “effectively preserved,” and it affirmed the trial court's order granting GEICO a new trial.

The case is Sanchez v. GEICO Indemnity Co., No. 1D18-1338 (Fla. Ct. App. July 22, 2019). Attorneys involved include: Charles F. Beall, Jr., of Moore, Hill & Westmoreland, P.A., Pensacola, and John W. Wesley of Wesley, McGrail & Wesley, Fort Walton Beach, for Appellant. Angela C. Flowers of Kubicki Draper, Ocala, for Appellee.