author: MURDOCK, Justice. BOLIN, Justice

text:
    Ex parte Brandon WASHINGTON. (In re Brandon Washington v. State of Alabama).
    1071607.
    Supreme Court of Alabama.
    April 15, 2011.

      Randall A. Susskind, Kristen M. Nelson, and Brandon J. Buskey of Equal Justice Initiative, Montgomery; and John H. Wiley III, Birmingham, for petitioner.
    Troy King, atty. gen., and Richard D. Anderson and Kevin W. Blackburn, asst, attys. gen., for respondent.

      . Chief Justice Cobb and Justice Shaw and Justice Wise were members of the Court of Criminal Appeals when that court considered this case.

   MURDOCK, Justice.

Brandon Washington was convicted by a Jefferson County jury of murder made capital because it was committed during a robbery, see Ala.Code 1975, § 13A-5-40(a)(2), and was sentenced to death. On appeal, the Court of Criminal Appeals rejected several of Washington’s arguments, but determined that the presentence report did not comply with Ala.Code 1975, § 13A-5-47(b), or with Rule 26.3(b), Ala. R.Crim. P. That court then remanded the case for the trial court to hold a new sentencing hearing. Washington v. State, 106 So.3d 423 (Ala.Crim.App.2007).

On remand, the trial court held a new sentencing hearing, at which a new presen-tence report was presented. Washington timely objected to the adequacy of this report. The trial court overruled Washington’s objections and again sentenced Washington to death. On return to remand, the Court of Criminal Appeals affirmed Washington’s conviction and sentence. Washington v. State, 106 So.3d 423 (Ala.Crim.App.2007) (opinion on return to remand).

This Court granted Washington’s petition for a writ of certiorari -with respect to three issues relating to his sentence: whether the trial court committed plain error in admitting victim-impact testimony during the penalty phase of the trial, whether the presentence report introduced at the sentencing hearing held on remand to which Washington objected was inadequate, and whether the Court of Criminal Appeals failed to conduct the requisite independent appellate review of the aggravating circumstances and the mitigating circumstances pursuant to Ala.Code 1975, § 13A-5-53. This Court denied certiorari review as to all the issues raised by Washington relating to the guilt phase of the trial and all the other issues raised by Washington relating to the penalty phase.

I. Facts and Additional Procedural History

The State’s evidence tended to show the following. On January 16, 2005, the victim, Justin Campbell, was shot and killed while working at the Radio Shack electronics retail store in Huffman. The weapon was not recovered. In investigating the murder, police discovered that $1,050 had been stolen from the store and that Campbell’s wallet had been taken.

Washington, who was 18 years old at the time of the murder, had been a sales associate at the Huffman Radio Shack store for several months, but his employment had been terminated in early January 2005 after he failed to report to work. Forensic tests of the evidence recovered at the store and at Washington’s apartment did not connect Washington to the crime. Two of Washington’s friends testified, however, that Washington had admitted to them that he killed a person while he was robbing a Radio Shack store.

During the penalty phase of the trial, the jury heard testimony from Campbell’s parents in which they offered opinions about Washington’s character and urged the jury to recommend the death penalty. Campbell’s father testified:

“My son’s life was taken from him in a brutal, evil, terrible way, by someone without a conscience. I think if you take a life, you should pay with a life and I ask the jury to sentence Brandon Washington to death. I think it is the fair thing to do.”

Campbell’s mother testified:

“My son felt a fear that no person on this earth should feel, and he had a death that no person should have to go through, and I think that Mr. Washington should have to suffer death as my son has suffered death.”

Also during the penalty phase of the trial before the jury, Washington presented mitigation evidence from his maternal grandmother, his sister, and his aunt. Washington’s grandmother testified that Washington’s mother had drug problems and that his mother had abandoned Washington when he was about 13 years old. The grandmother testified that she adopted Washington at that time and that Washington also spent time during his teenage years in two foster homes and in a group home. Washington graduated from high school in 2004, and he was enrolled at Miles College at the time of the murder. Washington’s aunt and sister also testified on his behalf. They testified that Washington was not a bad person, and they pleaded with the jury to impose a sentence of life imprisonment without parole.

The jury recommended the death penalty by a vote of 11 to 1. After a sentencing hearing, the trial court followed the jury’s recommendation and imposed the death penalty. As noted above, Washington appealed, and on appeal the Court of Criminal Appeals, because of the inadequacy of the presentence report, remanded the case for a new sentencing hearing.

At the sentencing hearing on remand, Washington testified that he had suffered from mental problems, that he had been treated for approximately six months at Hillcrest Hospital for those mental problems (apparently on an inpatient basis), and that he had been placed for a time in a therapeutic foster home, apparently after his treatment at Hillcrest. Washington’s treatment at Hillcrest Hospital apparently began when he was 18 years old, or approximately five years before the murder. Washington testified that he was given various psychological and neurological tests at Hillcrest Hospital, but, according to him, he was not told his diagnosis or the exact nature of his problems. The record does not include the dates of his treatment or the dates of, or any details about, his placement in the various foster and group homes. The new presentence report submitted at the sentencing hearing on remand stated “No” to the questions about “Mental Disability” and “Psychological Report”; it makes no other reference to any mental-health or psychological problems. On remand, Washington’s counsel did not present any psychological records or mental-health records or any medical testimony concerning Washington’s mental-health condition.

In its sentencing order on remand, the trial court found the existence of one statutory aggravating circumstance: that the murder was committed during the course of a robbery. The trial court found the existence of two statutory mitigating circumstances: that Washington was only 18 years old at the time he committed the crime and that Washington had no significant history of criminal activity. The trial court found no nonstatutory mitigating circumstances to exist. It again sentenced Washington to death.

II. Admission of Victim-Impact Testimony During the Penalty Phase of the Trial

Washington contends that his Eighth and Fourteenth Amendment rights were violated because, he says, the jury and the trial judge improperly considered testimony from the victim’s parents containing their opinions about Washington, the crime, and the appropriate punishment. Washington did not present this issue to the Court of Criminal Appeals, and he did not object to the introduction of this evidence at trial. Accordingly, we review this issue under the plain-error standard.

“Plain error” has been defined as “ ‘error that is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings. Ex parte Taylor, 666 So.2d 73 (Ala.1995). The plain error standard applies only where a particularly egregious error occurred at trial and that error has or probably has substantially prejudiced the defendant. Taylor.’

Ex parte Walker, 972 So.2d 737, 742 (Ala.2007) (quoting Ex parte Trawick, 698 So.2d 162, 167 (Ala.1997)). See also Ex parte Hodges, 856 So.2d 936, 948 (Ala.2003) (plain-error review is to be used “sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result”).

In Booth v. Maryland, 482 U.S. 496, 502, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), the United States Supreme Court held that a defendant’s Eighth Amendment rights were violated by the sentencing authority’s consideration of any victim-impact evidence. In Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), the United States Supreme Court partially overruled Booth to allow the sentencing authority to consider evidence of the effect of the victim’s death upon family and friends. Payne, 501 U.S. at 830 n. 2, 111 S.Ct. 2597 (“Our holding today is limited to the holdings of [Booth ] ... that evidence and argument relating to the victim and the impact of the victim’s death on the victim’s family are inadmissible at a capital sentencing hearing.”).

In Ex parte McWilliams, 640 So.2d 1015 (Ala.1993), this Court noted that Payne had only partially overruled Booth and that it had left intact the proscription against victim-impact statements containing “characterizations or opinions of the defendant, the crime, or the appropriate punishment.” 640 So.2d at 1017. The Court in McWilliams held that a trial court errs if it “considers] the portions of the victim impact statements wherein the victim’s family members offered their characterizations or opinions of the defendant, the crime, or the appropriate punishment.” Id.

In Wimberly v. State, 759 So.2d 568, 573-74 (Ala.Crim.App.1999), the Court of Criminal Appeals held that plain error occurred when victim-impact evidence similar to that at issue here was presented to the jury during the penalty phase of the trial. In Wimberly, the victims’ parents read a statement to the jury that, among other things, referred to the defendant as a “predator,” a “murdering thief,” and a “coward.” The statement also speculated on the defendant’s future in prison and his possible execution and asked the jury to impose the death penalty. The court noted that it was reviewing the issue for plain error and stated:

“[Rjeviewing the remarks made by the family member to the jury during the sentencing hearing, we find the cumulative effect of these improper comments to be plain error. Had the prosecutor made these same comments in argument, we would find them to be a textbook example of prosecutorial misconduct. The fact that these same comments were read to the jury by a bereaved family member only magnifies the impact such comments surely had on the jury as it closed to deliberate on its sentence recommendation. We find that these comments were calculated to incite an arbitrary response from the jury and that they should have been excluded.”

Wimberly, 759 So.2d at 573-74. See also Gissendanner v. State, 949 So.2d 956, 962 (Ala.Crim.App.2006) (“[Vjictim impact evidence may be presented during the penalty phase of a capital-murder trial so long as the witness does not recommend an appropriate punishment or characterize the crime or the defendant.”).

In this case, the victim’s parents told the jury that Washington’s crime was “brutal, evil, terrible,” that Washington was “someone without a conscience,” and that death was the appropriate punishment. The State concedes that it was error for the trial court to allow the victim’s parents to testify in this manner. Despite this concession, the State contends that reversal is not required in this case because (1) there is no indication that the trial judge or the jury considered this testimony in determining Washington’s sentence, and (2) because any error was harmless.

The State argues that the trial court did not consider the victim-impact evidence, an argument we find to be without merit. The State’s brief to this Court addresses only the trial judge’s consideration of the evidence; it offers no argument or citation to the record tending to show that the jury did not consider this admittedly improper evidence. We note that it does not appear that the jury was given any instruction specifically addressing the victim-impact testimony.

Further, the State’s assertion that the trial judge did not consider the parents’ testimony is factually incorrect. At the sentencing hearing on remand, the State asked that the testimony of the victim’s parents be adopted and made a part of the new presentence report in lieu of a formal written victim-impact statement. The trial judge stated in response: “I have reviewed their testimony and will consider it as part of the presentence report.” (Emphasis added.) There is nothing in the record to indicate that the trial judge did not consider this testimony.

The State also argues that the admission of the victim-impact testimony was harmless beyond a reasonable doubt. This argument also fails. The argument presented to us by the State is based on a single case, Whitehead v. State, 777 So.2d 781 (Ala.Crim.App.1999). Whitehead, however, is factually distinguishable from the present case.

In Whitehead, the trial court found the existence of four aggravating circumstances and no mitigating circumstances. The defendant in Whitehead was a previously convicted felon; he was on parole at the time of the murder that was the subject of Whitehead. The evidence in Whitehead indicated that the defendant had shot and killed a police officer to prevent the officer from testifying against him in another criminal case involving a theft. The defendant directed his attorney not to present any mitigation evidence. The trial court nonetheless looked for, but did not find, any mitigating circumstances. The Whitehead court stated:

“Although we have concluded that the victim-impact testimony was improper, we also conclude that its admission was harmless beyond a reasonable doubt. Juxtaposed against the strong evidence of aggravating circumstances and the absence of any statutory or nonstatutory mitigating circumstances, it is clear that the victim-impact testimony did not contribute to the jury’s sentencing recommendation.”

Whitehead, 111 So.2d at 848-49.

In contrast to the facts in Whitehead, the present case involves only a single aggravating circumstance and two statutory mitigating circumstances, i.e., that Washington had no prior criminal history and that he was only 18 years of age at the time of the offense. Further, there was evidence in the record indicating that Washington had a history of psychological problems (including several months of treatment in a psychiatric hospital) and that his family life had been unstable. Had an adequate presentence investigation and report been made with respect to these matters (see discussion in Part III, infra), it is possible that the trial court would have found the existence of additional mitigating circumstances. See Ala.Code 1975, § 13A-5-51 (nonexclusive list of statutory mitigating factors).

Under the particular circumstances presented in this case, we are unable to conclude that the trial court’s error in admitting the victim-impact testimony here was harmless beyond a reasonable doubt. We conclude that the admission of the victim-impact testimony was plain error and requires reversal of the judgment of the Court of Criminal Appeals.

III. The Adequacy of the Presentence Report

Although we are reversing the judgment of the Court of Criminal Appeals based on the erroneous admission of the victim-impact testimony, we deem it advisable to address an issue that is likely to recur on remand, if not addressed here: the adequacy of the presentence report that was presented at the sentencing hearing on remand.

Section 13A-5-47(b), Ala.Code 1975, states that, in capital cases, “[b]efore making the sentence determination, the trial court shall order and receive a written pre-sentence investigation report. The report shall contain the information prescribed by law or court rule for felony eases generally and any additional information specified by the trial court.” Rule 26.3(b), Ala. R.Crim. P., states, in pertinent part, that “[t]he presentence report may contain:

“(5) A statement of the defendant’s social history, including family relationships, marital status, interests, and activities, residence history, and religious affiliations;
“(6) A statement of the defendant’s medical and psychological history, if available.... ”

Rule 26.3(b)(5) and (6).

In Ex parte Hart, 612 So.2d 536, 539-40 (Ala.1992), this Court stated:

“The purpose of the presentence investigation report is to aid the sentencing judge in determining whether the jury’s advisory verdict is proper and if not, what the appropriate sentence should be. Clearly, this Court, in adopting the temporary rule [Rule 3, Ala. R.Crim. P. Temp., the predecessor of Rule 26.3(b) ], considered the psychological history of a defendant an important part of sentencing. In determining the sentence, the trial judge must consider the presentence investigation report and any evidence submitted in connection with it, in addition to the evidence presented at trial and during the sentencing hearing.”

(Emphasis added; citations omitted.)

In Guthrie v. State, 689 So.2d 935 (Ala.Crim.App.1996), the Court of Criminal Appeals stated:

“In preparation for Guthrie’s sentencing hearing before the trial court, it ordered and received a written presen-tence investigation report, as required by § 13A-5-47(b). We are concerned about the perfunctory nature of this presentence report. The presentence report is divided into four sections, entitled: ‘Present Offense,’ ‘Record of Arrests,’ ‘Personal/Social History,’ and ‘Evaluation of Offender.’ The first section quotes the facts of the case from our opinion in Guthrie’s first trial on this charge. Guthrie [v. State ], [616 So.2d 914] at 916 [ (Ala.Crim.App. 1993) ]. The second section contains a complete list of Guthrie’s prior criminal charges, including traffic offenses and juvenile offenses. The third section, which was Guthrie’s personal and social history, was taken from an interview with Guthrie at least five years before this sentencing hearing. The report indicates that no effort was made to conduct a more recent interview. In sum, this portion of the report indicates that Guthrie’s father, a retired farmer and school bus driver, died in 1986; that Guthrie’s mother was living and employed; and that Guthrie is the youngest of four children, unmarried, in good physical health (at the time of the interview), used occasionally alcohol and marijuana, had a 9th grade education, owned no property, and supported himself by performing manual labor. The final section, ‘Evaluation of Offender,’ contains no information. In its entirety, this section states, as follows:
“ ‘Psychological Reports:
“ ‘N/A
“‘Reputation on Community Activities:
“ ‘N/A
“ ‘Probation and Parole Officer’s Remarks:
“ ‘N/A’
“This report indicates that no psychological reports were available for the purpose of evaluating Guthrie; however, elsewhere, the report states that Guthrie was incarcerated at Taylor Hardin Secure Mental Facility in 1988. The lack of information in this section implies little, if any, attempt to subjectively evaluate Guthrie. Surely, a report or file in connection with Guthrie’s stay at Taylor Hardin exists, and should be made a part of this report.
“This presentence report’s cursory and incomplete treatment of Guthrie troubles us, because it may have hamstrung the trial court’s consideration of the full mosaic of Guthrie’s background and circumstances before determining the proper sentence. As such, this pre-sentence report risked foiling the purpose of§ 13A-5-í7(b). We find that the insufficiency of this report requires a remand for the trial court to reconsider Guthrie’s sentence with a sufficient pre-sentence report.”

Guthrie, 689 So.2d at 947 (some emphasis omitted and some emphasis added; footnote omitted).

The presentence report presented on remand in this case is, like the report in Guthrie, perfunctory and inadequate and

“implies little, if any, attempt to subjectively evaluate [the defendant].” Guthrie, 689 So.2d at 947. The presentence report here contains almost no information about Washington’s troubled adolescence and unstable family life and its effect on him. The “Personal Relationships” section of the report reads:

“Relationship w/father: Bad
“Relationship w/ mother: Bad
“Relationship w/ siblings: Good”

The final portion of the report reads:

“Officer Remarks: None
“Recommendations to Court: None”

Among other things, the report did not discuss his mother’s abandonment of her children, Washington’s residence in a series of foster and group homes, or the absence of his father for most of his life. This is information that should have been included under Rule 26.8(b)(5)(social history and family relationships).

Furthermore, the report also discloses no information about Washington’s history of mental-health problems (Rule 26.3(b)(6)). Further, it asserts that no psychological reports were available. In its ‘Written Re-Sentencing Order,” the trial court obviously relied upon this assertion, as well as on the absence of any discussion of Washington’s history of treatment at mental-health facilities. The trial court specifically noted: “[N]or is there any history of mental illness in the Pre-sentence Report.” This finding is contradicted by Washington’s testimony at the sentencing hearing that he suffered from mental problems, that he had undergone various neurological and psychological testing related to those problems, and that he had been treated at a psychiatric hospital and a therapeutic foster home for at least six months. The presentence report should have investigated these sources and should have presented information regarding Washington’s mental health. Rule 26.3.(b)(6).

The deficiencies of the presentence report appear to make it as much of a perfunctory presentence report as the report criticized in Guthrie, if not more so. It appears likely that the deficiencies in the report may indeed have “hamstrung the trial court in considering the full mosaic of [Washington’s] background and circumstances.” 689 So.2d at 947.

We are not suggesting that the adequacy of the presentence report should be evaluated in isolation. See Hart, 612 So.2d at 540 (noting that the “trial judge must consider the presentence investigation report and any evidence submitted in connection with it, in addition to the evidence presented at trial and during the sentencing hearing”). The presentence report is only part, albeit an important and required part, of the information on which the trial court should base its sentencing decision. In the present case, the presen-tence report failed to address Washington’s troubled adolescence, his unstable family life, and his mental-health problems. It is apparent that the trial court relied at least in part on the presentence report in not finding the existence of any nonstatutory mitigating circumstances and, ultimately, in deciding that death was the appropriate sentence in this case.

IV. Conclusion

Based on the foregoing, we reverse the judgment of the Court of Criminal Appeals and remand the case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

WOODALL, STUART, PARKER, and MAIN, JJ., concur.

BOLIN, J., dissents in part and concurs in the result.

COBB, C.J., and SHAW and WISE, JJ., recuse themselves.

BOLIN, Justice

(dissenting in part and concurring in the result).

I concur only in the result as to Part II of the opinion, and I dissent as to Part III, because it addresses an issue that would not necessarily, or likely, recur after a new presentence report is prepared following this remand.

      . Washington testified that he underwent daily counseling and therapy sessions while at Hillcrest Hospital.

      . The State's reliance on McWilliams and Ex parte Land, 678 So.2d 224 (Ala.1996), is misplaced. In McWilliams, this Court remanded ' the case for the trial judge to state whether the judge did or did not consider victim-impact statements when deciding on a sentence. In the present case, the jury heard the victim-impact testimony at issue, and the trial judge stated that she would consider it. In Ex parte Land, this Court found no reversible error where the trial judge read letters from members of the victim’s family and from members of the defendant's family, some of which expressed opinions as to the appropriate punishment. As in McWilliams, however, the letters were not read to a jury; they were read only by the judge and only "out of a respect for the families and for the limited purpose of possibly establishing a mitigating factor....” Land, 678 So.2d at 237. In the present case, no such limitations are involved and the testimony of the victim’s parents was presented to the jury.

      . See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (holding that "before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt”).

      . Eighteen years is the minimum age at which the death penalty can be imposed. See Roper v. Simmons, 543 U.S. 551, 574, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005).

      . The Committee Comments to Rule 26.3(b) refer to that rule as one that "sets forth what information the presentence report should contain.”

      . In response to the objection by Washington's counsel in the trial court that the pre-sentence report was "almost worthless,” the Court of Criminal Appeals "agree[d] with defense counsel that the report is not the most thorough presentence report to come before us.” 106 So.3d at 436 (opinion on return to remand).

      . Because of our disposition of this case on the victim-impact-testimony issue, we preter-mit consideration of the adequacy of the Court of Criminal Appeals’ review of the aggravating and mitigating circumstances.


source: Caselaw Access Project

author: WELCH, Presiding Judge.

license: Public Domain

text:
    Brandon WASHINGTON v. STATE of Alabama.
    CR-05-1297.
    Court of Criminal Appeals of Alabama.
    Dec. 16, 2011.

      John H. Wiley III, Birmingham, for appellant.
    Troy King, atty. gen., and Kevin W. Blackburn, asst. atty. gen., for appellee.
   On Remand from the Alabama Supreme Court

WELCH, Presiding Judge.

The Alabama Supreme Court granted Brandon Washington’s petition for a writ of certiorari to review issues relating to the penalty phase in Washington’s capital-murder trial. Washington was sentenced to death. This Court affirmed his conviction and his sentence. Washington v. State, 106 So.3d 423 (Ala.Crim.App.2007) (opinion on return to remand). On April 15, 2011, the Supreme Court reversed this Court’s judgment insofar as it sentenced Washington to death, and remanded the case, instructing this Court to remand the case to the circuit court for a new penalty-phase hearing. Therefore, this cause is remanded to the circuit court with directions to conduct a new penalty-phase hearing in accordance with the Alabama Supreme Court’s opinion in Ex parte Washington, 106 So.3d 441 (Ala.2011).

On remand, the circuit court shall take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 180 days from the date of this opinion.

REMANDED WITH DIRECTIONS.

WINDOM, KELLUM, BURKE, and JOINER, JJ., concur.


author: RAMIREZ, C.J.

text:
    ST. PAUL MERCURY INSURANCE COMPANY, a foreign corporation, Appellant, v. COCONUT GROVE BANK, Appellee.
    Nos. 3D08-1281, 3D07-2253.
    District Court of Appeal of Florida, Third District.
    Sept. 9, 2009.
    Strasburger & Price and Duncan Clore; Greenberg Traurig and Elliot H. Scherker and Julissa Rodriguez and Kerri L. McNulty, Miami, for appellant.
    Hicks, Porter, Ebenfeld & Stein, and Mark Hicks, and Dinah Stein, Miami and Cindy Ebenfeld, Hollywood, for appellee.

      Before RAMIREZ, C.J., and WELLS and SUAREZ, JJ.
   RAMIREZ, C.J.

St. Paul Mercury Insurance Company appeals a jury verdict entered in favor of appellee Coconut Grove Bank based upon an insurance claim for which the insurance coverage allegedly had terminated. The bank cross-appeals the trial court’s refusal to award a contingency fee multiplier on its attorney’s fees. We affirm all issues on appeal and cross-appeal.

The bank hired Aldo Morales in the late 1980’s. In 1988, Morales’ cash drawer came up short, and he tried to hide the shortage by placing $450 of his father’s money in the drawer. Several days later, the customer who had been given an extra $450 returned the money, and the bank discovered Morales’ actions. The bank placed Morales on probation for sixty days and filed a memorandum in his employment file, in which the bank memorialized the incident.

By 1999, Morales had been promoted to assistant vice president of installment loans. He contributed to the creation of the referral program, where Morales would underwrite loans for the purchase of used ears. The used car loans portfolio grew substantially, with loan losses peaking in the middle of 2001. Late in 2001, the bank adopted a policy to address the program, whereby the bank would spot-check eight to ten dealer referral loans. The loans reviewed were all written by Morales, but the bank did not find any “bad” loans.

In February 2002, a former employee of one of the used car dealerships called the bank and reported that they were doing fake deals and provided basic information about Morales’ involvement. In the same month, the bank promoted Morales to vice president. In August 2002, the bank found some irregular transactions in an account, which the bank reserved for special situations. Morales had been using the account regularly to deposit customer checks: the checks, would be held for a few days, such that it would appear as though the payment was made, but the check was not actually clearing for a few extra days. Later in 2002, the bank discovered that Morales had manipulated data in the computer system. Morales resigned at the end of the year.

St. Paul issued a fidelity bond which was effective from March 1, 2003, through March 1, 2004, that provided for $4,500,000 in coverage for “Dishonesty of Employees.” The bank submitted a notice of claim to St. Paul on April 30, 2003. On February 9, 2004, the bank provided St. Paul with its proof of loss, in which it sought to recover for the losses it claimed to have sustained as a result of 571 purported bad loans that Morales wrote for the dealer referral program.

At trial, testimony revealed that Morales would provide loans that could not otherwise get financed in exchange for a “fee” of $500 that was not specified in the sales contract, but would be deducted from the profits of the deal. Additional testimony revealed that Morales would use false W-2 forms and complete forms with false information in order to procure the loans. A former used car dealer employee testified that Morales, “would get all the fake what we call dummy deals.”

The bank had an expert witness analyze Morales’ files at random, and he testified as to a pattern and practice of intentional misconduct. The expert first analyzed six files randomly and then pulled every tenth file in alphabetical order, for a total of fifty-three (53) out of five hundred, seventy-one (571) loan files. He opined that ninety percent (90%) of the loans he reviewed were so contrary to what any prudent lender would have done and “destined to fail” that he believed Morales intended to cause a loss to the bank. He also testified that the amounts being deposited into Morales’ bank accounts and his spending during the four-year period at issue were consistent with someone taking kickbacks.

The jury found in favor of the bank and awarded the bank $3,075,000. This resulted in a final judgment with prejudgment interest in the amount of $3,678,826.90. The trial court thereafter awarded costs to the bank of $88,826.03 and attorney’s fees of $757,563.50, plus interest accrued while the motion was pending.

St. Paul appeals on the ground that: (1) the trial court committed reversible error when it denied St. Paul’s motion for directed verdict on the issue of termination of coverage; (2) it is entitled to a new trial because the trial court failed to adequately instruct the jury on the bank’s termination of coverage defense and erroneously refused to include questions on the affirmative defenses in the verdict form; (3) the evidence is insufficient to support the jury’s verdict; and (4) the trial court erred in awarding attorney’s fees and costs to the bank.

This court reviews the trial court’s interpretation of the fidelity bond under a de novo standard. U.S. Fire Ins. Co. v. J.S.U.B., Inc., 979 So.2d 871, 877 (Fla.2007). The issue of whether Morales was dishonest during the 1988 incident is an issue of fact, and the trial court correctly sent the issue to the jury for determination. There was no reversible error when the trial court allowed the jury to determine the definition of “dishonesty” since the term was not defined in the policy. In addition, based on the jury’s finding that Morales’ 1988 act was not dishonest, St. Paul cannot avoid liability for Morales’ fraudulent acts reported in April 2003. Furthermore, the extrapolation method employed to determine liability was appropriate.

We turn now to the issue involving the jury instruction. We review the trial court’s rulings on the jury instruction issue applying an abuse of discretion standard. Barbour v. Brinker Fla., Inc., 801 So.2d 953, 959 (Fla. 5th DCA 2001) (holding the denial of proposed changes to the standard instructions was not an abuse of discretion). We conclude that the trial court did not abuse its discretion when it instructed the jury and believe that the arguments raised do not merit any further discussion.

With respect to the bank’s cross-appeal, we further agree with the trial court that the bank is not entitled to recover a contingency fee multiplier. The standard of review with respect to the application of a multiplier is one of abuse of discretion. Holiday v. Nationwide Mut. Fire Ins. Co., 864 So.2d 1215, 1218 (Fla. 5th DCA 2004). Regardless of the complexity of the instant case, there is evidence that proves the bank had the ability to obtain competent counsel at an hourly rate. See Sun Bank of Ocala v. Ford, 564 So.2d 1078 (Fla.1990). The relevant market did not require a contingency fee multiplier in order to obtain competent counsel. See Standard Guar. Ins. Co. v. Quanstrom, 555 So.2d 828 (Fla.1990). On this basis, we conclude that the bank was not entitled to recover a contingency fee multiplier.

For the foregoing reasons, we affirm. And, we decline to address the remaining issues on appeal.

Affirmed.


author: PER CURIAM.

text:
    AMEC CIVIL, LLC, a Delaware Limited Liability Company, Appellant, v. PTG CONSTRUCTION SERVICES COMPANY, a Delaware Corporation; and Parsons Transportation Group, Inc., an Illinois Corporation, d/b/a Parsons Transportation Group or Parsons, Appellees.
    No. 1D11-3407.
    District Court of Appeal of Florida, First District.
    Aug. 8, 2012.
    Rehearing Denied Feb. 14, 2013.
    F. Alan Cummings and S. Elysha Luken of Smith, Currie & Hancock, LLP, Tallahassee, for Appellant.
    R. Kyle Gavin and John A. Carlisle of Liles, Gavin, Constantino, George & Dear-ing, P.A., Jacksonville, for Appellee PTG Construction Services Company.
    Curtis L. Brown and Denise Morris Hammond of Wright, Fulford, Moorhead & Brown, P.A., Altamonte Springs, for Appellee Parsons Transportation Group, Inc.
   PER CURIAM.

AMEC Civil, LLC appeals a final summary judgment in favor of Parson’s Transportation Group, Inc. and PTG Construction Services Company, appellees, on res judicata and collateral estoppel grounds. Based upon this court’s prior opinion in AMEC Civil, LLC v. State, Detriment of Transportation, 41 So.3d 235 (Fla. 1st DCA 2010) (AMEC I), we agree with the trial court that this action is barred by the doctrine of res judicata. Accordingly, we affirm.

As we explained in AMEC I, a matter is res judicata if the following conditions are met:

(1) identity of the thing sued for; (2) identity of the cause of action; (3) identity of the parties; and (4) identity of the quality in the person for or against whom the claim is made.

AMEC I, 41 So.3d at 239-^0. We find that all four conditions are satisfied here. As to the identity of the parties, we conclude that there is an identity of the parties here because appellees are privies of the Florida Department of Transportation. The Florida Supreme Court has explained that “[a] judgment on the merits rendered in a former suit between the same parties or their privies, upon the same cause of action, by a court of competent jurisdiction, is conclusive....” Kimbrell v. Paige, 448 So.2d 1009, 1012 (Fla.1984) (quoting Wade v. Clower, 94 Fla. 817, 114 So. 548, 552 (1927) (emphasis supplied)). “A privy is one who is identified with the litigant in interest.” Progressive Am. Ins. Co. v. McKinnie, 513 So.2d 748, 749 (Fla. 4th DCA 1987). “Privity is a mutuality of interest, an identification of interest of one person with another, and includes privity of contract, the connection or relationship which exists between contracting parties.” Radie v. Allstate Ins. Co., 758 F.Supp. 1464, 1467 (M.D.Fla.1991). Further, identity of parties exists if the third parties [PTG & Parsons], as here, had indemnity obligations to the Department of Transportation. Massey v. David, 831 So.2d 226, 233 (Fla. 1st DCA 2002).

AFFIRMED.

VAN NORTWICK, LEWIS, and SWANSON, JJ., concur.


author: MAKAR, J. LEWIS, J.,

text:
    Lucille Ruth SOFFER, as personal representative of the Estate of Maurice Benson Soffer, Appellant/Cross-Appellee, v. R.J. REYNOLDS TOBACCO COMPANY, et al., Appellee/Cross-Appellant.
    No. 1D11-3724.
    District Court of Appeal of Florida, First District.
    Oct. 24, 2012.

      John S. Mills, The Mills Firm, Tallahassee, Mark A. Avera, Rod Smith, Dawn M. Vallejos-Nichols, Avera & Smith, Gaines-ville, and James W. Gustafson, Jr., Searcy Denney Scarola Barnhart & Shipley, Tallahassee, for Appellant.
    Robert B. Parrish, Moseley, Pritchard, Parrish, Knight & Jones, Jacksonville, and Gregory G. Katsas, Jones Day, Washington, D.C., for Appellee.
   MAKAR, J.

Lucille Soffer, the personal representative of the estate of her deceased husband, Maurice Soffer, appeals the final judgment in this Engle-progeny wrongful death action. Mrs. Soffer contests the trial court’s disallowing a claim for punitive damages on negligence and strict liability theories. R.J. Reynolds cross-appeals, seeking a new trial based on evidentiary errors as well as reversal of the trial court’s orders regarding its statute of limitations defense and the preclusive effect of the Engle class-wide jury findings. We affirm the cross-appeal, but address the question of whether Mrs. Soffer, as a member of the plaintiff class in Engle, is entitled to seek punitive damages as additional relief for her negligence and strict liability counts. We hold that she may not, but certify a question of great public importance.

I

Mrs. Soffer is termed a “progeny plaintiff,” meaning a member of the class approved in Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006) (also called the En-gle Class). Those progeny plaintiffs who choose to bring actions pursuant to Engle do so, in large measure, because of the significant benefits that membership in the Engle Class confers upon them. First, progeny plaintiffs are entitled to the res judicata effect of certain factual findings made in Engle, thereby relieving them of the substantial burden, time, cost, and risk of proving the tortious-conduct elements of their actions against the defendants. Second, progeny plaintiffs are entitled to a lengthy tolling of Florida’s statute of limitations, which ordinarily is two years. For example, the complaint in this case was filed on December 18, 2007, which is more than 15 years after Mr. Softer died; absent the equitable tolling that Engle provides for progeny plaintiffs, Mrs. Soffer’s action against the defendants would be time-barred by more than a decade.

The Engle Class based its theories of recovery on counts alleging negligence and strict liability as well as two intentional tort theories: fraud by concealment and conspiracy to commit fraud. The trial was tri-furcated: Phase I, during which the jury heard evidence in a year-long proceeding to resolve “issues of liability and entitlement to punitive damages for the class as a whole”; Phase II-A, which involved a determination of compensatory damages for the named plaintiffs; and, Phase II-B, which involved the determination of the amount of punitive damages for the class as a whole. Id. at 1256-57. Individualized determinations on issues of liability and compensatory damages were to take place in separate trials to separate juries for each of the class members, with punitive damages to be divided by the trial court amongst successful individual plaintiffs. Mat 1258.

In Phase I, the jury in Engle made a range of specific factual determinations supporting the four theories of recovery mentioned above. Because the trial court in Engle denied as untimely the plaintiffs’ motion to amend their complaint to seek punitive damages under negligence and strict liability theories, the jury did not address punitive damages as to these counts; instead, punitive damages for the Engle Class were limited to only the two intentional tort counts, which had been timely asserted. On these latter two counts, the jury determined that the class was entitled to punitive damages, which were set at $145 billion. Id. at 1256-57.

On appeal, the Third District reversed, decertifying the class and quashing the jury award. The supreme court, however, reversed in part and affirmed in part, holding that most of the Phase I factual findings were entitled to res judicata effect with respect to members of the Engle Class (with certain limitations). It also, in effect, equitably tolled the statute of limitations for all members of the Engle Class who brought actions “filed within one year of the mandate in this case.” Id. at 1277.

The supreme court made two holdings as to punitive damages. First, it was error for the jury to consider entitlement to punitive damages during Phase I of the trial; doing so violated principles of due process because the jury’s determination of the lump sum award of $145 billion in Phase I occurred before the jury made any determination about the ultimate liability of individual defendants in Phase II. This was legal error because there was “no way to evaluate the reasonableness of the punitive damages award without the amount of compensatory damages having been fixed.” Id. at 1262. It was also error because the jury’s punitive damages award preceded any finding that the “plaintiffs had established causation and reliance.” Id. Second, the court held that the amount of the punitive damages was excessive; thus, even if the finding of entitlement to punitive damages in Phase I had been permissible, the classwide punitive damages award was “clearly excessive” and would “result in an unlawful crippling of the defendant companies.” Id. at 1265 and n. 8. The court in Engle did not pass upon whether progeny plaintiffs were entitled to assert claims for punitive damages under the negligence and strict liability theories previously and specifically disallowed to members of the Engle Class as untimely.

II

Maurice Soffer died in May of 1992 of lung cancer caused by smoking. Mrs. Soffer brought this wrongful death action against R.J. Reynolds seeking to take advantage of the Engle Class findings. She asserted causes of action identical to those asserted in Engle: negligence, strict liability, and the two intentional tort theories. As in Engle, the trial court allowed the jury to consider punitive damages on the two intentional tort counts, but disallowed them as to the negligence and strict liability counts. The trial court found the punitive damages claims, as to the negligence and strict liability causes of action, were barred by the statute of limitations; because the lead plaintiffs in Engle had not timely asserted such claims, therefore, the trial court reasoned, they are unavailable to progeny plaintiffs. The jury found for Mrs. Soffer on the strict liability and negligence counts, awarding $2,000,000 in compensatory damages; the jury rejected recovery on the intentional tort counts, thereby making it unnecessary to consider an award of punitive damages on those counts.

In this appeal, Mrs. Soffer asserts that Engle does not preclude progeny plaintiffs from seeking awards of punitive damages on negligence and strict liability theories, which — as a general matter under ordinary circumstances — may be sought under Florida law. The causes of action in this case, Mrs. Soffer argues, are identical to those asserted in Engle; only the requested additional remedy — punitive damages for the non-intentional tort counts — is different. She claims she is not bound to the remedies timely sought in Engle and that principles of equitable tolling do not apply to bar her assertion of punitive damages for the negligence and strict liability theories upon which she prevailed (the jury in her case having rejected the intentional tort theories for which the Engle Class sought and initially was awarded punitive damages).

R.J. Reynolds argues, on the other hand, that progeny plaintiffs — as members of the Engle Class — may assert only those timely claims and remedies previously pursued and ultimately approved by the Florida Supreme Court in its path-breaking decision. In doing so, progeny plaintiffs receive substantial benefits and must “take the bitter with the sweet”; they cannot unilaterally accept the enormous benefits of equitable tolling and the res judicata effect of Phase I findings without accepting the limitations, express and implied, in that decision. To allow new claims for punitive damages at this late date would fundamentally alter the character of this unprecedented litigation. As members of the Engle Class, progeny plaintiffs are subject to the posture of the case as it exists, which includes the established prohibition on punitive damages for the negligence and strict liability theories as to all class members; principles of equitable tolling do not revive claims for punitive damages that were not timely presented in the first instance. We agree with each of these points.

In doing so, we do not agree with Mrs. Soffer’s assertion that punitive damages— simply because they are generally permitted for negligence and strict liability — are merely an additional remedy that members of the Engle Class may pursue. While we have no dispute with the general proposition that plaintiffs who assert negligence and strict liability counts normally are permitted to plead and perhaps prove entitlement to punitive damages under applicable standards, this point only takes us so far. It does not thereby follow that progeny plaintiffs as members of the En-gle Class, who are part of one of the most uniquely structured and extraordinarily adjudicated cases in the state’s history, are thereby entitled to the benefits that might occur or be available in the usual course of a routine case that is litigated by an individual plaintiff from start to finish. To us, the unique context of Engle matters.

Progeny plaintiffs wear the same shoes, so to speak, as the plaintiffs in Engle because they are the plaintiffs from En-gle. Progeny plaintiffs thereby must accept the status and procedural posture of the Engle litigation as they find it; they must accept the parameters that are framed by that litigation — including the absence of a timely claim for punitive damages under negligence and strict liability theories. The supreme court’s decision in Engle vacated the punitive damages award that was supported by and linked solely to the intentional tort theories of recovery; it thereby could be said to have wiped the slate clean as to punitive damages for those two counts. The decision says nothing to suggest, however, that the supreme court intended to preserve for the progeny plaintiffs anything other than the claims and remedies properly and timely asserted in that litigation.

This result is far from unfair. As members of the class, Engle progeny plaintiffs are in the same position they would have been in had they filed a complaint identical to the Engle class-action complaint on the same date the original complaint was filed. Here, Mrs. Softer is not merely seeking to take advantage of Engle via the filing of a new and independent claim; rather, she was a party to Engle and, to the extent her claims differ from those in that case, she must meet the requirements for amending her complaint, which she cannot do. There is no indication in Engle that our supreme court intended to extend its decision beyond the claims and remedies that had actually been timely asserted in the first place. Punitive damage claims under negligence and strict liability theories were untimely and not authorized as part of the Engle litigation; they were authorized only for the two intentional tort counts of fraud by concealment and conspiracy to commit fraud. If the supreme court had intended that its decision be so open-ended as to allow claims for punitive damages not otherwise made available in the course of Engle, it would have said so; it has not and we decline to expand the breadth of possible remedies or benefits available to progeny plaintiffs absent clearer direction from our supreme court.

III.

In conclusion, progeny plaintiffs, such as Mrs. Soffer, may choose to accept the preclusive benefits of the Phase I findings in Engle and the benefits of that decision’s tolling of the statute of limitations, but in doing so they are constrained to the punitive damage claims timely sought in the operative class-action complaint; they may not tack on additional punitive damage claims lest they unjustifiably broaden the intended scope and effect of Engle and change the nature of the litigation. Progeny plaintiffs may assert punitive damage claims to the same extent as allowed in Engle, as Mrs. Soffer did here; but they may not assert such claims based on strict liability and negligence theories. To do so would provide an unjustifiable and potentially unintended windfall by expanding Engle beyond its existing parameters, which is not a task for this Court in the first instance under the circumstances presented. Hoffman v. Jones, 280 So.2d 431 (Fla.1973) (noting that district courts may certify questions of great public importance where appropriate). In recognition of our role in Florida’s appellate system, we certify the following question as one of great public importance for the supreme court’s consideration:

ARE MEMBERS OF THE CLASS IN ENGLE V LIGGETT GROUP, INC., 945 So.2d 1246 (Fla.2006) ENTITLED TO PURSUE AN AWARD OF PUNITIVE DAMAGES UNDER THEORIES OF NEGLIGENCE OR STRICT LIABILITY?

AFFIRMED.

DAVIS, J., concurs.

LEWIS, J., concurs in part and dissents in part.

LEWIS, J.,

concurring in part, and dissenting in part.

I agree with the majority that the issues raised by R.J. Reynolds Tobacco Company (“Reynolds”) on cross-appeal must be affirmed. I also agree with the majority to certify a question to the Florida Supreme Court. However, for the reasons that follow, I would reverse the trial court’s ruling that punitive damages can only be awarded on the intentional tort claims and remand for a new trial on the issue of Mrs. Soffer’s entitlement to punitive damages on her negligence and strict liability claims only, and, if so, the amount of punitive damages.

Mrs. Soffer, as personal representative of the Estate of Maurice Benson Soffer, brought this action pursuant to Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006) (“Engle III”), alleging that she was a member of the Engle class and asserting claims of negligence, strict liability, fraud by concealment, and conspiracy to commit fraud by concealment. Mrs. Soffer sought compensatory and punitive damages. As a basis for punitive damages, Mrs. Soffer alleged that Reynolds “engaged in conduct that was fraudulent and conspired to engage in such conduct, or engaged in conduct, with such gross negligence as to indicate willful and wanton disregard for the rights of others, including [Mrs. Sof-fer.]” Mrs. Soffer’s demand for punitive damages was not limited to any one claim.

During the charge conference, Reynolds argued that the jury should be instructed that it may only consider punitive damages on the intentional tort claims (the concealment and conspiracy claims). Mrs. Soffer urged the trial court to allow the jury to consider awarding punitive damages on all claims. The trial court rejected Mrs. Sof-fer’s request for such instruction and ultimately instructed the jury, in pertinent part, as follows:

Punitive damages may be awarded against R.J. Reynolds Tobacco Company based only on findings that Reynolds is liable to Mrs. Soffer for fraudulent concealment or agreement to conceal. You may not find that punitive damages are warranted against Reynolds based upon Mrs. Soffer’s claim for negligence or strict liability.

The jury returned a verdict for Mrs. Soffer on the negligence and strict liability claims, but for Reynolds on the concealment and conspiracy claims. Pursuant to the trial court’s instruction, the jury did not answer the question of whether punitive damages were warranted on Mrs. Sof-fer’s claim for negligence or strict liability.

I.

Whether a claim may support an award of punitive damages is reviewed de novo. See Estate of Williams ex rel. Williams v. Tandem Health Care of Fla., Inc., 899 So.2d 369, 376 (Fla. 1st DCA 2005). “Under Florida law, the purpose of punitive damages is not to further compensate the plaintiff, but to punish the defendant for its wrongful conduct and to deter similar misconduct by it and other actors in the future.” Owens-Corning Fiberglas Corp. v. Ballard, 749 So.2d 483, 486 (Fla.1999). Pursuant to section 768.72(2), Florida Statutes (2005), a defendant may be held liable for punitive damages, if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence. See also Ballard, 749 So.2d at 486 (finding that “punitive damages are appropriate when a defendant engages in conduct which is fraudulent, malicious, deliberately violent or oppressive, or committed with such gross negligence as to indicate a wanton disregard for the rights and safety of others.”); R.J. Reynolds Tobacco Co. v. Martin, 53 So.3d 1060, 1070 (Fla. 1st DCA 2010) (noting that punitive damages may be awarded for intentional misconduct or gross negligence), rev. denied, 67 So.3d 1050 (Fla.2011).

Reynolds does not dispute this point, but argues that Engle class members are different and cannot, as a matter of law, request punitive damages on their negligence and strict liability claims because the class demand for punitive damages in Engle was based only on the intentional tort claims and not the class claims for negligence and strict liability. Reynolds further argues that “preclusion principles” therefore prohibit an Engle class member from seeking punitive damages on these claims. In essence, Reynolds seeks to expand the res judicata effect of the Engle III holding in arguing that because the Engle class only sought punitive damages on the intentional tort claims, Mrs. Soffer’s claim for punitive damages was likewise limited. Reynolds argues that Mrs. Soffer secured various benefits by filing a complaint pursuant to Engle; therefore, she was also subject to Engle’s, limitation. Reynolds further argues that since Mrs. Soffer secured benefits from filing a complaint pursuant to Engle, she should not be entitled to recover punitive damages on negligence and strict liability claims. Reynolds’ arguments are without merit. In my view, Engle class members are not prohibited from recovering punitive damages on their negligence and strict liability claims.

A. Identical Claims

The first benefit that Mrs. Soffer secured was the benefit of invoking the res judicata effect of the Phase I findings. Particularly, she was able to rely on the Engle jury’s Phase I findings and did not have to independently prove up the conduct elements of her claims or demonstrate the relevance of the findings to her lawsuit. See Martin, 53 So.3d at 1067-69. The Phase I findings established the conduct elements of her strict liability and negligence claims, and she was required only to prove legal causation and damages. See R.J. Reynolds Tobacco Co. v. Brown, 70 So.3d 707, 717-18 (Fla. 4th DCA 2011).

Reynolds argues that, by Mrs. Soffer securing the aforementioned benefit, she was required to limit her claims to those pled by the Engle class and was bound by the restrictions that the Engle trial and appellate courts imposed on the Engle class members. As such, Reynolds argues that Mrs. Soffer was required to limit her punitive damage claims to the intentional torts because the Engle class members did not seek punitive damages on strict liability and negligence, and, when the Engle class sought to expand their claim to do so, the trial court denied their request.

Engle III does not impose a blanket requirement that Engle progeny plaintiffs must file identical claims to the original class. Rather, it suggests that in order to take advantage of the Phase I findings, progeny plaintiffs must file the same claims. Here, Mrs. Soffer was able to take advantage of the Phase I findings because she, in fact, filed the same claims as the original class (strict liability, negligence, fraud, and conspiracy to commit fraud). The only difference is the remedy. The fact that her remedy of punitive damages was more extensive than that sought by the Engle class is not necessarily fatal. First, a claim for punitive damages is “not a separate and distinct cause of action but is auxiliary to, and dependent upon, the existence of an underlying claim.” See Liggett Group Inc. v. Engle, 853 So.2d 434, 456 (Fla. 3d DCA 2003) (“Engle II”), quashed in part by Engle III, 945 So.2d at 1254; see also Country Club of Miami Corp. v. McDaniel, 310 So.2d 436, 437 (Fla. 3d DCA 1975). Second, her reliance on the Phase I findings was not relevant to her claim for punitive damages, which she had to independently prove. See e.g., Brown, 70 So.3d at 717-18 (clarifying that the plaintiff must prove legal causation and damages). Third, the supreme court retained most of the jury’s Phase I findings, except that it did not retain the finding on entitlement to punitive damages, which it found to be premature. See En-gle III, 945 So.2d at 1269. The supreme court vacated the $145 billion punitive damage award holding, in pertinent part, as follows:

Class members can choose to initiate individual damages actions and the Phase I common core findings we approved above will have res judicata effect in those trials.

Id. at 1269,1276.

Accordingly, in my view, the supreme court did not intend to give res judicata effect to punitive damages claims and specifically allowed class members to initiate “individual damages actions.”

B. Equitable Tolling

After decertification, Engle III allowed individual plaintiffs within the class to proceed individually so long as the action was filed within one year of the mandate in the case. 945 So.2d at 1277. Reynolds argues that since Mrs. Soffer secured the benefit of equitable tolling of the two-year wrongful death statute of limitations, she would no longer be entitled to the benefits of equitable tolling if she were permitted to recover punitive damages on her strict liability and negligence claims.

Reynolds relies on Hromyak v. Tyco International Ltd., 942 So.2d 1022 (Fla. 4th DCA 2006), in support of its argument that equitable tolling only applies where the former class member brings a claim that is identical to the one pursued by the class itself. There, construing American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), and Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983), the Fourth District held that the trial court did not err in determining that class action tolling did not apply to the stockholder’s suit because the new claims were not identical to the class’ claims. Hromyak, 942 So.2d at 1023. The Fourth District interpreted American Pipe to require that the claims in the later action be the same as those alleged in the earlier action for tolling to apply. Id. Here, Mrs. Soffer asserted the exact same claims as were asserted in Engle, and the only difference is the kind of damages she sought. Engle II, 853 So.2d at 441. As noted by Mrs. Soffer, Reynolds’ argument on this point is based on the faulty premise that a demand for punitive damages is an independent claim. But punitive damages are merely a remedy and can only be recovered pursuant to a substantive claim. See e.g., Country Club of Miami Corp. v. McDaniel, 310 So.2d 436, 437 (Fla. 3d DCA 1975). The principle of law from Hromyak is exclusively tied to the statute of limitations, and there is no separate statute of limitations for a demand of punitive damages. The statute of limitations for each underlying claim is what controls. Mrs. Soffer’s demand for punitive damages was filed as a continuation of the litigation begun by the Engle class. As such, because Mrs. Soffer asserts the same substantive claims as those asserted by the Engle class, the principle in Hromyak is satisfied.

Accordingly, Mrs. Soffer’s demand for punitive damages on the negligence and strict liability claims was merely a different type of remedy than that sought in Engle, rather than a separate cause of action. The statute of limitations bars only the right to enforce a cause of action. § 95.11, Fla. Stat. (2005). A remedy, on the other hand, is the method by which the court addresses a legal injury. Because the statute of limitations operates to bar enforcement of causes of action, not to determine which remedies are available, in my view, the trial court erred in instructing the jury not to determine entitlement to punitive damages if they found for Reynolds on the intentional tort claims.

II.

Reynolds asserts that if Mrs. Soffer is entitled to seek punitive damages on her negligence and strict liability claims, this Court should also reverse the trial court’s judgment awarding compensatory damages and remand for a new trial on all claims. I disagree. In my view, on remand, the new trial should be limited to the issue of punitive damages. There is ample authority for allowing a new trial limited to the issue of punitive damages. Stephens v. Rohde, 478 So.2d 862, 863 (Fla. 1st DCA 1985) (disagreeing with a claim that compensatory damages and punitive damages were so intertwined as to require a new trial on both; thus, reversing the trial court’s action in striking the appellant’s punitive damages claim and remanding for a new trial on the issue of whether such damages should be imposed and, if so, the amount thereof); Estate of Canavan v. Nat’l Healthcare Corp., 889 So.2d 825, 827 (Fla. 2d DCA 2004) (remanding for new trial on amount of punitive damages only); Rappaport v. Jimmy Bryan Toyota of Fort Lauderdale, Inc., 522 So.2d 1005, 1006 (Fla. 4th DCA 1988) (remanding for new trial on entitlement and amount of punitive damages only).

Accordingly, I would reverse the trial court’s ruling that punitive damages can only be awarded on the intentional tort claims and remand for a new trial on the issue of Mrs. Soffer’s entitlement to punitive damages on her negligence and strict liability claims only, and, if so, the amount of punitive damages.

      . In pertinent part, the jury instructions read: “Punitive damages may be awarded against R.J. Reynolds Tobacco Company based only on your findings that Reynolds is liable to Mrs. Soffer for fraudulent concealment or agreement to conceal. You may not find that punitive damages are warranted against Reynolds based upon Mrs. Soffer's claim for negligence or strict liability.”

      . See Nat'l Lake Devs., Inc. v. Lake Tippecanoe Owners Assn, Inc., 417 So.2d 655 (Fla.1982) (individual members of plaintiff class may choose to opt out and not be bound by a court's judgment; members not opting out “are bound by the resulting decree” even if they are absent from the proceeding).


text:
    Lucille Ruth SOFFER, as personal representative of the Estate of Maurice Benson SOFFER, Appellant, v. R.J. REYNOLDS TOBACCO COMPANY, et al., Appellee.
    No. 1D11-3724.
    District Court of Appeal of Florida, First District.
    Jan. 2, 2013.
    John S. Mills, The Mills Firm, Tallahassee, Mark A. Avera, Rod Smith, Dawn M. Vallejos-Nichols, Avera & Smith, Gaines-ville, and James W. Gustafson, Jr., Searcy Denney Searola Barnhart & Shipley, Tallahassee, for Appellant.
    Robert B. Parrish, Moseley, Pritchard, Parrish, Knight & Jones, Jacksonville, and Gregory G. Katsas, Jones Day, Washington, D.C., for Appellee.
   ON APPELLANT/CROSS-APPEL-LEE’S MOTION FOR REHEARING OR REHEARING EN BANC AND APPELLEE/CROSS-APPEL-LANT’S MOTION FOR CERTIFICATION OR REHEARING

PER CURIAM.

In our original opinion, we affirmed the cross-appeal without comment. We grant rehearing to clarify that we affirm R.J. Reynolds’s third issue on appeal — namely, whether the trial court’s application of factual findings established in Engle violated R.J. Reynolds’s due process rights — on the authority of R.J. Reynolds Tobacco Co. v. Martin, 53 So.3d 1060 (Fla. 1st DCA 2010), review denied, 67 So.3d 1050 (2011), cert. denied, — U.S.-, 132 S.Ct. 1794, 182 L.Ed.2d 617 (2012), and Philip Morris USA, Inc. v. Douglas, 83 So.3d 1002 (Fla. 2d DCA 2012), review granted, No. SC12-617 (2012). We otherwise deny rehearing, rehearing en banc, and certification.

DAVIS, LEWIS, and MAKAR, JJ„ concur.


text:
    R.J. REYNOLDS TOBACCO COMPANY, etc. and Lorillard Tobacco Company, Appellant, v. Thomas G. JEWETT, as Personal Representative of the Estate of Barbara Jean Jewett, Appellee.
    No. 1D11-3653.
    District Court of Appeal of Florida, First District.
    Nov. 2, 2012.
    Rehearing Denied Jan. 31, 2013.

      Robert B. Parrish, Andrew Jackson Knight, Jeffrey A. Yarbrough, and David C. Reeves, Moseley Prichard Parrish Knight & Jones, Jacksonville, Elliot H. Scherker, Greenberg Traurig, Miami, Roger C. Geary and Stacey E. Deere, Shook Hardy & Bacon, Kansas City, MO, Stephanie E. Parker, John F. Yarber, and John M. Walker, Jones Day, Atlanta, GA, James B. Murphy, Shook Hardy & Bacon, Tampa, Daniel Weiner, Hughes Hubbard & Reed, New York, NY, John A. Devault, III and Patrick P. Coll, Bedell Dittmar De-vault Pillans & Coxe, Jacksonville, Charles Beall, Jr., Moore, Hill & Westmoreland, Pensacola, and Gregory G. Katsas, Washington, DC, for Appellant.
    Norwood S. Wilner, Stephanie J. Hart-ley, Richard J. Lantinberg, and Janna M. Blasingame, Wilner Hartley & Metcalf, Jacksonville, Charles Farah and Eddie Easa Farah, Farah & Farah, Jacksonville, and Shannon McLin Carlyle, Christopher V. Carlyle, and Earle W. Peterson, The Carlyle Appellate Law Firm, The Villages, for Appellee.
   MAKAR, J.

The appeal in this Engle-progeny wrongful death action arises from a jury award of damages to the Estate of Barbara Jewett (“Estate”) due to her death from chronic obstructive pulmonary disease (“COPD”). The defendants, R.J. Reynolds Tobacco Company and Lorillard Tobacco Company (“Tobacco”) raise three issues on appeal, two of which we summarily affirm.

The third issue is whether the trial court erred in refusing to give a jury instruction proposed by Tobacco regarding its statute of limitations defense, a decision we review for abuse of discretion. Citizens Prop. Ins. Corp. v. Hamilton, 43 So.3d 746, 753 (Fla. 1st DCA 2010). A trial court abuses its discretion when it fails to give a proposed instruction that is (1) an accurate statement of the law, (2) supported by the facts of the case, and (3) necessary for the jury to properly resolve the issues, so long as the subject of the proposed instruction is not covered in other instructions given to the jury and the failure to instruct is shown to be prejudicial. Mills v. State, 949 So.2d 1186, 1188 (Fla. 1st DCA 2007); Golian v. Wollschlager, 893 So.2d 666, 667 (Fla. 1st DCA 2005); Robinson v. Gerard, 611 So.2d 605, 607 (Fla. 1st DCA 1993).

Because jury instructions are contextual, some background is necessary for the challenged instruction, which relates to whether a diagnosis of COPD was required for Jewett to have known she had been injured by Tobacco’s products. A key factual question for determination by the jury was when Mrs. Jewett’s COPD first manifested itself. She was diagnosed with COPD in 1995, but had been suffering from symptoms associated with the disease since as early as 1979. Tobacco introduced significant evidence tending to show Mrs. Jewett should reasonably have been aware that she had a smoking-related illness prior to May 5, 1990; Estate produced significant evidence to the contrary.

The parties disputed how the jury was to be instructed on resolving when Mrs. Jewett knew or should have known she had COPD and the legal effect of a medical diagnosis of COPD. The trial court ultimately used standard instruction 402.14(a), charging the jury as follows:

The first issue for your consideration is Defendants’ statute of limitations defense. In order to prevail on that defense, Defendants must prove by the greater weight of the evidence that Barbara Jewett knew, or by the exercise of reasonable care should have known, before May 5, 1990, that she had COPD and that there was a reasonable possibility that her COPD was caused by cigarette smoking.
If the greater weight of the evidence does not support Defendants’ position on this issue, your verdict should be for Plaintiff on this issue. However, if the greater weight of the evidence does support Defendants’ position on this issue, your verdict should be for Defendants.

See Fla. Standard Jury Instructions in Civil Cases § 402.14(a) (2010). The trial court declined to give Tobacco’s proposed special jury instruction — to be inserted between the first and second paragraphs of the standard instruction — which stated:

Defendants do not need to prove that Ms. Jewett was actually diagnosed with COPD prior to May 5, 1990, in order to prevail on this defense. For purposes of this defense, the critical event is not when her COPD was actually diagnosed by a physician, but when her COPD first manifested itself.
Ms. Jewett knew or should have known that there was a reasonable possibility that her COPD was caused by cigarette smoking if her COPD manifested itself to her in a way that supplied some evidence of a causal relationship to cigarette smoking. In making that determination, you may properly consider what Ms. Jewett knew prior to May 5, 1990, concerning the health risks of cigarettes.

The trial court noted that the legal principles in these two paragraphs accurately stated the caselaw on the topic, but was concerned that no reported appellate case had yet compelled the instruction’s use or held it erroneous to not give it. The trial court chose to give only the standard instruction and to allow the trial attorneys to argue their respective positions to the jury about the ramifications of a physician’s diagnosis in this case.

The trial judge’s reticence to give a “non-standard” jury instruction is reflective of a cautious approach that most trial judges exhibit. One reason is that “[s]tan-dard jury instructions give peace of mind to the [trial] judge, causing less concern about fashioning an instruction that accurately reflects the current law.” Ralph Artigliere, How to Write and Use Jury Instructions 8 (2d ed.2000). This predisposition against non-standard instructions is understandable. Judges are human; none likes to be reversed. Taking the lower-risk approach, as the trial court did here by giving only the standard instruction, is not unreasonable when judged by principles of risk aversion. Id. (“[T]o avoid error and problems of variance from [the standard instruction], some judges ... hesitate to deviate from the standard instructions.”).

Because the law continually evolves, however, so too must jury instructions, particularly those that are needed to help juries comprehend and decide specific cases. This evolution often occurs at a pace faster than the standard jury instructions are produced, a process that emphasizes accuracy over speed. When nonstandard instructions are proposed, trial courts face an analytical task similar in kind to that performed by the thirty-two member Florida Standard Jury Instructions Committee — without the luxury of time. To facilitate new legal developments, trial judges should not cast aside their naturally cautionary approach, but may need to step out of their comfort zones from time-to-time where legally-accurate and factually-relevant non-standard instructions are proposed that supplement standard instructions in a way that enhances jury understanding of the law. We conclude this is such a case, one where the three-part jury instruction test is met.

The first prong of the test, whether the proposed charge accurately reflects applicable law, is clearly met. The first paragraph of the proposed instruction closely tracks language from the Engle decision, which held that the “critical event is not when an illness was actually diagnosed by a physician, but when the disease or condition first manifested itself.” 945 So.2d at 1276. Similarly, in Carter v. Brown & Williamson Tobacco Corp., 778 So.2d 982, 938 (Fla.2000), a key question of fact for the jury’s resolution was whether the plaintiff “knew or should have known, on [either of two dates outside of the statute of limitations], that the effects of smoking cigarettes manifested themselves to [the plaintiff] in a way which supplied some evidence of a causal relationship to the cigarettes.” This language from Carter closely matches the language in the second proposed paragraph. In fact, the trial court recognized the proposed instruction accurately states the law.

The second prong requires that the proposed instruction be supported by facts to be established at trial. Here, a major factual question for the jury was whether Mrs. Jewett knew, or reasonably should have known, that she was affected by COPD before 1990; the instruction was supported by the facts as taken in the light most favorable to Tobacco. Gray v. Adams Grading & Tracking, Inc., 956 So.2d 505, 507 (Fla. 1st DCA 2007). Like the first prong, the second prong is clearly met.

The third and final prong requires prejudice, which can be established by showing that the proposed instruction is necessary for the jury to properly resolve the factual questions. In determining whether a particular instruction is necessary, “the proper test is not whether the jury was actually misled, but whether the jury might reasonably have been misled” by the absence of the proposed instructions. Snedegar v. Amone, 532 So.2d 717, 719 (Fla. 4th DCA 1988). Absent the proposed instruction and its accurate statement of applicable law, the jury was left to guess whether “the exercise of reasonable care” could include physical manifestations of COPD before a formal diagnosis of COPD is made. Given the legal principles expressed in Engle and Carter, which are reflected in the proposed instruction, the jury should not have been left unguided in making this legal determination; the standard jury instruction did not adequately cover the legal principles explained in the proposed instructions, leaving the jury to speculate unnecessarily. Indeed, the jury expressed its confusion by asking the trial court for an explanation of a phrase— “exercise of reasonable care” — that appears only in the standard instruction that was given. The additional legal guidance in the proposed instruction would have been of assistance in light of the jury’s apparent need to clarify this aspect of the standard instruction.

Under the circumstances, the failure to give the proposed jury instruction might have reasonably misled the jury, thereby warranting reversal. We note that the requested instruction directly relates to the dispositive issue of whether the statute of limitations had run, an issue the jury had confusion in resolving. The jury’s specific inquiry to the trial judge about the standard instruction was: “Can we have a more concise explanation of the term ‘exercise of reasonable care’?” Whether Mrs. Jewett “knew, or by the exercise of reasonable care should have known” before May 5, 1990 that she had COPD that may have been caused by cigarette smoking was central to the jury’s inquiry. An accurate statement of the law regarding whether a formal diagnosis of COPD is required to meet the “reasonable care” standard would have directly informed the jury’s inquiry on the only topic that jurors did not comprehend.

We do not know with certainty what specific discussions the jurors had among themselves about the issue of when Mrs. Jewett first knew or should have known of her COPD. We know with certainty, however, that they had discussions on this topic and were sufficiently confused to ask for a “more concise explanation” of what amounts to the “exercise of reasonable care” as to Mrs. Jewett’s discovery of her COPD. We have little difficulty envisioning some jurors expressing that the date of her formal medical diagnosis should be all that matters, while others might be convinced that she knew or reasonably should have known of her COPD long before that time, thereby precipitating the jurors’ request for clarification on this dispositive issue. Had the jury been told that “the critical event is not when her COPD was actually diagnosed by a physician, but when her COPD first manifested itself’— as the law provides and the proposed instruction states — its confusion might reasonably have been reduced or eliminated.

The Estate argues Tobacco had ample opportunity to explain during closing arguments that the statute of limitations began running not when Mrs. Jewett was diagnosed with COPD, but when she knew or reasonably should have known that smoking was causing the disease. This argument overlooks the purpose of closing argument, which “is to help the jury understand the issues in a case by ‘applying the evidence to the law applicable to the case.’ ” Murphy v. Int’l Robotic Sys., Inc., 766 So.2d 1010, 1028 (Fla.2000) (quoting Hill v. State, 515 So.2d 176, 178 (Fla.1987)). Leaving it to the parties’ at torneys to explain to the jury in closing argument what legal principles apply is an inadequate substitute for an accurate, relevant, and complementary instruction that contains legal principles not covered in a standard instruction. It also overlooks the importance of providing a jury with more, rather than less, accurate information about the applicable law so it can properly resolve factual questions. A standard instruction by itself, without modification or supplementation, will often be a permissible means of instructing a jury; it may be inadequate, however, where the law in a particular context, such as the Engle-prog-eny line of cases, has developed in a way that makes additional instructions necessary for juries to more readily fulfill their responsibilities in applying relevant law.

Tobacco argues that, because the jurors asked about the meaning of the phrase “reasonable care” in the standard jury instruction at issue, the jury’s confusion makes prejudice obvious. While we independently find sufficient prejudice to warrant reversal, we note that Florida appellate courts have found prejudice, and reversed the failure to give requested instructions, when juries demonstrate an inability to properly resolve factual disputes by asking questions during deliberations that relate to the topic of proposed instructions. See Schweikert v. Palm Beach Speedway, Inc., 100 So.2d 804 (Fla.1958); Nason v. Shafranski, 33 So.3d 117 (Fla. 4th DCA 2010); Cruz v. Plasencia, 778 So.2d 458 (Fla. 3d DCA 2001); City of Sunrise v. Bradshaw, 470 So.2d 804 (Fla. 4th DCA 1985). For example, in Nason the Fourth District found that a “jury’s confusion was apparent from the note it sent to the judge during deliberations” that “sought guidance on how to handle the defendants’ evidence” of a physician’s negligence. Nason, 33 So.3d at 122. In reversing, the appellate court held that the trial judge should have given the requested instruction that could have dispelled the apparent jury confusion.

In a similar case, Bradshaw, the Fourth District addressed a jury which had twice asked for clarification on the definition of malicious prosecution. 470 So.2d at 806. Though the majority found no abuse of discretion because the instruction was not requested, as the dissent noted, the failure to give the instruction “obviously confused” the jury and, but for the preservation issue, would have resulted in reversal. Id. at 807 (Letts, J., dissenting). Further, the Florida Supreme Court reversed a trial court’s failure to give a requested instruction, despite the imperfections in the proposed instruction, in Schweikert, 100 So.2d at 805-06. There, also, a question from the jury indicated confusion that would have been resolved had the proposed instruction been corrected and given. Id.

In Cruz, the Third District held that the failure to give a proposed concurrent cause instruction was prejudicial, explaining that the jury had made inquiry about the topic to the trial judge during its deliberations. Notably, the appellate court discounted the notion that trial counsel’s explanation of the topic in closing argument ameliorated the lack of the instruction. Cruz, 778 So.2d at 462. Indeed, the Third District highlighted that the jury’s inquiry came despite the explanation of concurrent cause by trial counsel, making clear that the “jury was still having difficulty in understanding” how the concept applied to the evidence presented at trial. Id. at 462. Given the potentially dispositive nature of the statute of limitations defense, and the difficulty the jury apparently had in applying the standard instruction without further clarification, the failure to give the requested instruction was prejudicial, as the jury might reasonably have been misled by the failure to give the proposed instruction. The jury’s inquiry reflects confusion and the proposed instruction might reasonably have assisted the jury in reducing or eliminating that confusion. Under these circumstances, we conclude that the failure to give the instruction was prejudicial because the instruction was necessary for the jury to properly resolve the factual questions in the case.

In concluding, we note that the trial court’s reason for not giving the proposed instruction was not that it was legally incorrect or that it was unsupported by the facts of the case. Instead, the concern expressed in the charge conference was that by giving the proposed instruction, the trial court would effectively be “telling them that they should decide for the defense based on the facts of this case.” We respectfully disagree. That significant evidence exists that might bolster the statute of limitations defense, and that the proposed instruction might lead a rational jury to accept that defense, are insufficient reasons for rejecting a legally-accurate and factually-relevant instruction that eliminates or reduces jury confusion, particularly where both sides presented significant evidence in support of their positions on the issue.

Because the proposed instructions at issue should have been given to the jury, we hold the trial court erred in fading to do so and remand for a new trial.

AFFIRMED in part, REVERSED in part, and REMANDED.

DAVIS, J., concurs.

LEWIS, J., dissents with opinion.

LEWIS, J.,

Dissenting.

I respectfully dissent. The majority holds that the trial court abused its discretion in declining to give Tobacco’s two paragraphs of special instructions in addition to Standard Jury Instruction 402.14(a) on Tobacco’s statute of limitations defense. I disagree. During the charge conference, the trial court, with the agreement of counsel, agreed to give Florida Standard Jury Instructions in Civil Cases section 402.14(a) Statute of limitations (2010), on Tobacco’s statute of limitations affirmative defense. However, Tobacco requested the following additional special jury instructions on its affirmative defense:

[Tobacco] do[es] not need to prove that [Mrs.] Jewett was actually diagnosed with COPD prior to May 5, 1990, in order to prevail on this defense. For purposes of this defense, the critical event is not when her COPD was actually diagnosed by a physician, but when her COPD first manifested itself.
[Mrs.] Jewett knew or should have known that there was a reasonable possibility that her COPD was caused by cigarette smoking if her COPD manifested itself to her in a way that supplied some evidence of a causal relationship to cigarette smoking. In making that determination, you may properly consider what [Mrs.] Jewett knew prior to May 5, 1990, concerning the health risks of cigarettes.

The trial court inquired of Lorillard’s counsel if there were any cases where Tobacco’s requested additional jury instructions were actually given or if there were any cases finding error because such instructions were requested and refused. Lorillard’s counsel responded, ‘Your Hon- or, I do not have such a case.” The trial court then found that the standard jury instruction was adequate to apprise the jury of the issue and declined to give Tobacco’s requested special instructions. During deliberations, the jury requested an explanation of the phrase “exercise of reasonable care” that is included in Standard Jury Instruction 402.14(a). The trial court, with the agreement of counsel for the parties, instructed the jury that the “exercise of reasonable care” was as follows: “What a reasonable person would have done under like facts and circumstances.”

We review a trial court’s decision concerning jury instructions under an abuse of discretion standard. Gray v. Adams Grading & Trucking, Inc., 956 So.2d 505, 507 (Fla. 1st DCA 2007); Golian v. Wollschlager, 893 So.2d 666, 667 (Fla. 1st DCA 2005); Barbour v. Brinker Fla., Inc., 801 So.2d 953, 959 (Fla. 5th DCA 2001). The standard jury instructions are presumed to be accurate until a litigant makes a showing to the contrary. McConnell v. Union Carbide Corp., 937 So.2d 148, 153 (Fla. 4th DCA 2006) (citing Wransky v. Dalfo, 801 So.2d 239, 243 (Fla. 4th DCA 2001) (holding that standard jury instructions should be used when applicable unless erroneous or inadequate)). When seeking an additional jury instruction, a party must show “that the instruction was necessary for the jury to properly resolve the issues in the case.” Giordano v. Ramirez, 503 So.2d 947, 949 (Fla. 3d DCA 1987). “A verdict will not be set aside, however, merely because the court failed to give instructions which might properly have been given.” Schreidell v. Shoter, 500 So.2d 228, 231 (Fla. 3d DCA 1986). “A trial court is accorded broad discretion in formulating appropriate, jury instructions and its decision should not be reversed unless the error complained of resulted in a miscarriage of justice or the instruction was reasonably calculated to confuse or mislead the jury.” Barton Protective Servs., Inc. v. Faber, 745 So.2d 968, 974 (Fla. 4th DCA 1999). “Moreover, reversal will not be granted “where the subject of the proposed instruction is covered in other charges given by the court or where failure to give the instruction is not shown to be prejudicial.’ ” Beltran v. Rodriguez, 36 So.3d 725, 728 (Fla. 3d DCA 2010) (quoting Giordano, 503 So.2d at 949). “An overall test that is often applied is that in passing on the refusal of a single instruction, an appellate court will examine the entire charge to the jury and, if it determines that the law has been fairly presented to the jury, the judgment will be affirmed.” Llompart v. Lavecchia, 374 So.2d 77, 80 (Fla. 3d DCA 1979).

In order to justify giving an instruction in addition to the standard instruction, a party must show that the additional instruction was necessary for the jury to resolve the issue in the case. Beltran, 36 So.3d at 728. Here, the trial court allowed Tobacco to argue the substance of its requested special instructions to the jury. In fact, Tobacco’s counsel immediately addressed the issue during closing argument. Reynolds’ counsel stated, at the beginning of his closing argument, “let me be clear about one thing at the start. The defendants do not ... need to prove that Mrs. Jewett was actually diagnosed before May 5, 1990.” Lorillard’s counsel also noted that the jury had “heard this before. The defendants don’t need to prove that Mrs. Jewett was diagnosed at all. There’s no dispute about that .... We don’t need a diagnosis to win on this issue, because it’s about what she should have done and should have known.” As sueh, Tobacco cannot demonstrate that the special instructions were necessary to resolve the issue in the case when they were allowed to repeatedly argue the substance of those proposed instructions to the jury. Thus, Tobacco was not prejudiced to the point of deserving a new trial.

More importantly, as previously mentioned, the trial court specifically found that the standard jury instruction was adequate to apprise the jury of the issue. The standard instruction addressed the issue. Thus, I agree with the Estate that the trial court, in its broad discretion, properly rejected what Tobacco claimed was an additional clarification of the standard jury instruction as the standard jury instruction was entirely adequate to inform the jury about the law on the issue before it.

The majority holds that the jury was confused because it asked for an explanation of the phrase “exercise of reasonable care” that is included in Standard Jury Instruction 402.14(a). I disagree. Simply stated, the jury took its job seriously and wanted to fully understand the instructions the trial court had given. Thus, I fail to see how the majority found that the jury was confused based solely on the fact it sought clarification of the phrase from the standard jury instructions. There is no evidence in the record before this Court of any jury confusion. Moreover, the trial court had the benefit of observing the jury, and any alleged impact of its instruction on the jury. As such, the trial court was in the best position to determine whether there was any jury confusion, and it detected none. The majority’s holding on this point creates an appellate issue in every case where the jury asks for an explanation of a term taken from the standard jury instructions.

Turning now to the case law relied on by the majority, none of the cases cited by the majority reversed the trial court’s judgment, as the majority does here, where the trial court gave the applicable jury instructions from the Florida Standard Jury Instructions in Civil Cases on a defendant’s affirmative defense, but declined to give a defendant’s requested additional special instructions on that affirmative defense. Unlike the majority, I respectfully decline to cross that hurdle under the circumstances of this case and hold that Florida Standard Jury Instruction 402.14(a) was inadequate or erroneous and reverse the trial court’s final judgment.

Accordingly, in my view, the trial court’s refusal to give the two paragraphs of special instructions requested by Tobacco did not result in a miscarriage of justice nor was the trial court’s failure to give the two paragraphs of special instructions calculated to confuse or misled the jury. Thus, under the circumstances of this case, I would hold that the trial court did not abuse its discretion by declining to give the special instructions requested by Tobacco. Accordingly, I would affirm.

      . Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006).

        . The supreme court's opinion in Engle used “Tobacco” as shorthand for all the major domestic cigarette companies and two tobacco industry organizations. Id. at 1256 & n. 3. We use "Tobacco” here as shorthand for the two appellants only, who were among the defendants in Engle.

      . We affirm the trial court's denial of Tobacco's motion for a directed verdict on its statute of limitations defense; the evidence — considered in the light most favorable to Estate— could have led a reasonable jury to determine that Mrs. Jewett's cause of action accrued after May 5, 1990, i.e., within four years of the filing of the class action in Engle. Likewise, we affirm the trial court's use of Engle findings on the authority of R.J. Reynolds Tobacco Co. v. Martin, 53 So.3d 1060 (Fla. 1st DCA 2010).

      .Standard jury instructions, while neither binding nor perfect, are neutral and reliable because they represent the product of laborious and nuanced discussions among highly experienced and knowledgeable members of the bench and bar; proposed instructions are then published for public comment; and oftentimes, oral argument is held in the Florida Supreme Court, which reviews proposed instructions for possible adoption. See generally Larry Stewart, The Rebirth of the Florida Standard Jury Instructions, 84 Fla. B J., May 2010, at 12 (discussing the process for newly-adopted and formatted standard instructions that use plain English).

      . As one commentator has noted, "[a]t the most fundamental level, jurors must understand the law and the issues for the right to trial by jury to be preserved.” Stewart, supra note 4, at 13.

      . We do not hold that the proposed instructions are the best statements of the law; our inquiry under this prong focuses on accuracy alone. The parties may, on remand, propose other instructions that accurately reflect the law that could likewise be deemed proper.


text:
    OMNI HEALTHCARE, INC., Petitioner, v. Donald MOSER, Respondent. Adwait Jathal, M.D., Petitioner, v. Donald Moser, Respondent.
    Nos. 5D12-1235, 5D12-1245.
    District Court of Appeal of Florida, Fifth District.
    Dec. 7, 2012.
    Wilbert R. Vancol and Thomas E. Dukes, III, of McEwan, Martinez & Dukes, P.A., Orlando, for Petitioner, Omni Healthcare, Inc.
    Michael R. D’Lugo, of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Orlando, for Petitioner Adwait Jathal, M.D.
    Frank J. Shaughnessy, of Law Offices of Frank Shaughnessy, P.A., Palm Bay, for Respondent.
   PER CURIAM.

Respondent filed a complaint attempting to allege simple negligence against Petitioners, who are a doctor, Adwait Jathal, and a physician group practice, Omni Healthcare, Inc. It is clear that what is alleged is a claim for medical malpractice. Petitioners filed a Motion to Dismiss in the trial court based on Respondent’s failure to comply with the presuit requirements of section 766.106, Florida Statutes. The trial court denied the Motion, and Petitioners each filed a Petition for Writ of Certiorari with this court seeking review of that order.

We conclude that because Respondent failed to comply with the statutory presuit requirements, the trial court departed from the essential requirements of law in refusing to dismiss Respondent’s complaint. We grant the Petitions, quash the order of denial, and remand for entry of an order granting Petitioners’ Motion to Dismiss. See Williams v. Oleen, 62 So.2d 1129, 1133-34 (Fla.2011) (“Florida courts have created an exception to the general rule— that certiorari review is inappropriate to review the denial of a motion to dismiss— and permit certiorari review when the pre-suit requirements of a medical malpractice statute are at issue. See, e.g., Martin Mem’l Med. Ctr., Inc. v. Herber, 984 So.2d 661, 662 (Fla. 4th DCA 2008); Lakeland Reg’l Med. Ctr. v. Allen, 944 So.2d 541, 543 (Fla. 2d DCA 2006). The certiorari exception for the chapter 766 presuit requirements is premised on the purpose of the Medical Malpractice Reform Act — to avoid meritless claims and to encourage settlement for meritorious claims.”).

PETITIONS GRANTED; ORDER QUASHED; REMANDED.

ORFINGER, CJ., SAWAYA, and BERGER, JJ., concur.

      . Although these cases were not consolidated on appeal, we review them together because they arise from the same facts and present the identical issue.

      . See also Kissimmee Health Care Assocs. v. Garcia, 76 So.3d 1107, 1108 n. 1 (Fla. 5th DCA 2011) (“Although certiorari generally does not lie to review the denial of a motion to dismiss, there .is a well-established exception for motions to dismiss for failure to comply with presuit conditions precedent.” (citation omitted)); Cent. Fla. Reg’l Hosp. v. Hill, 721 So.2d 404 (Fla. 5th DCA 1998).