IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
MARI E LYNN HARRISON AND DEBORAH HARRISON , Appell ant s,

v. Case No s

. 5D 16 -1 037 5D16-2552
WIL LIAM GREGORY, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JOSHUA RAIM KALPHAT LOPEZ , AND BASICH, INC. , Appell ee s. ________________________________/ Opinion f iled July 7 , 20 17 Appeal from the Circuit Court for Orange County , Margaret H. Schreiber , Judge. Angela C. Flowers, of Kubicki Draper, Ocala, for Appellant. David C. Beers and James Gordon, of Beers and Gordon, P.A., Oviedo, for Appellee , William Gregory, as Personal Representative of the Estate of Joshua Raim Kalphat Lopez

. No A ppearance for Appellee, Basich, Inc.
LAMBERT , J.
In thi s wrongful death case, Marie Lynn Harrison and Deborah Harrison ("Appellants") app eal a final judgment entered against them and in favor of William Gregory, as personal representative of the estate of Jo shua Raim Kalphat Lopez2 (“Appellee”)

. Lopez (“Decedent”) died as a result of injuries that he sustained when his motorcycle collided w ith a motor vehicle driven by Co

- Appellant, Marie Harrison , at an intersection located in Orlando, Florida. Appellants also appeal the separate "Final Cost Judgment" entered against them and in favor of Appellee. 1
T he issue of liability or fault for the accident was vigorously disputed at trial, with both sides presenting significantly di v er g ent testimony , from lay witnesses and expert witness es , as to how and why the accident occurred , including whether D ec e dent was under the influence of cocaine or marijuana to the extent that his normal faculties were impaired at the time of the accident

. The jury determined that both Marie Harrison and
D ecedent were negligent and a legal cause of the loss or damage to Appellee , a ssess ing 75% fault to Harrison and 25% fault to D ecedent for this accident. The jury awarded significant damages to D ecedent's parents for their respective mental pain and suffering , plus damages to A ppellee for funeral expenses and medical expenses. Appellants raise three substantive grounds for reversal , which we will address in seriati m

. Concluding that the cumulative effect of the errors at trial materially prejudiced Appellants, we reverse the final judgments and remand for a new trial. Ruben O rtiz Testimony While she was still at the accident scene, Marie Harrison told her twin sister that "I just killed a kid." 2 Appellants filed a pretrial motion in limine to exclude this statement at trial , arguing that it was not relevant and that even if it were marginally relevant, the
statement was nevertheless inadmissible pursuant to section 90.403, Florida Statutes

1 The two appeals were consolidated sua sponte by the court.

2 Decedent was twenty

- two years old.3 (2012), because its probative value was substant ially outweighed by the danger of unfair prejudice. Following a hearing, t he trial court agreed, concluding that "the tendency of that statement is to suggest an improper basis to the jury for resolving the matter" and that the statement "doesn't necessarily imply fault." On the morning of trial, Appellee's counsel advised the court and Appellants ’ counsel that he intended to call Ruben Ortiz to testify. Ortiz had seen D ecedent operate his motorcycle just prior to the accident and was at the scene when he heard Marie Harrison state on her cell phone that "I think I killed some body." Appellants objected to the admissibility of this statement, arguing that be caus e the statement was essentially identical to Harrison ’s statement t o her sister that the court had previously excluded pursuant to section 90.403 , it would be patently i nconsistent to now allow Ortiz to testify
to , essentially , th e same statement . The trial court did no t change its earlier ruling on the
in admissibility of Harrison’s statement to her sister ; nevertheless, it permitt ed Ortiz to testify as to this second statement. We review this evidentiary ruling under the abuse of discretion standard. La Marr v. Lang , 796 So. 2d 1208, 1209 (Fla. 5th DCA 2001). Section 90.403 provides that " [ r ] elevant evidence is inadmissible if its probative value is substantially out weighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence." '" U nfair prejudice' has been described as 'an undue tendency to suggest decision on an improper basis, commonly, though n ot necessarily, an emotional one."' McDuffie v. State, 970 So. 2d 312,
3 27 (Fla. 2007) (quoting Brown v. State, 719 So. 2d 882, 885 (Fla. 1998)). The trial court correctly ruled that , under the facts of this case, Harrison's statement to her sister was inadmissible under section 90.403

. T herefore , we conclude that the court abused its4 discretion in not similarly excluding Ortiz's testimony regarding Harrison's essentially identical statement. References to Insurance Prior to trial, the parties stipulated to the entry of an order in limine to prevent the mentioning of the “existence of insurance” before the jury. During the course of the trial, Appellee’s counsel questioned his accident reconstruction exper t witness about the inspection of Marie Harrison’s motor vehic l e and specifically asked the witness where the vehicle had been taken following the collision. 3 Appellee’s expert responded that it had been transported to a storage yard by “the insurance com pany.” Appellants moved for a mistrial. Outside the presence of the jury, the court admonished the witness to make no further comment about insurance , but it denied Appellants’ motion . Neither this witness

n or counsel mentioned insurance again. “The lon g - standing purpose of exc luding improper references [to] a defendant’s insurance coverage in civil proceedings is to preclude jurors from affixing liability where

none otherwise exists or to arrive at excessive amounts [of damages] through sympathy for the injured party with the thought that the burden would not have to be borne by the defendant.” M e l

a ra v. Cicione , 712 So. 2d 429, 431 (Fla. 3d DCA 1998) (citing Carls
Mkts

. , Inc. v. Meyer , 69 So. 2d 789, 793 (Fla. 1953)). Here, the order in limine was
violated. Normally, b ecause this one comment regarding insurance was not pervasive,

we likely would have concluded that there was no abuse of discretion by the trial court in denyi ng Appellants ’ motion for mistrial. See Ricks v. Loyola , 822 So. 2d 502, 506 (Fla.

3 T he record does not indicate the significance of the vehicle’s location after being moved from the accident scene

.5 2002) (holding that an appellate court reviews a trial court’s rulings on motions for mistrial under the abuse of discretion standard of review )

. However, as we explain, t his comment about insurance 4 in conjunction with the earlier error in admitting Ortiz’s testimony and the prejudicial comment of Appellee ’ s counsel during closing argument , discussed below , requires reversal. Improper Closing Argument Appellants presented evidence and argument at trial that D ecedent’s impairment by the use of cocaine and marijuana was a cau s al factor for the accident. On this issue,

s ection 768.36, Florida Statutes (2012), provides, in pertinent part: (2) In any civil action, a p laint i ff may not recover any damages for loss or injury to his or her person or property if the trier of fact finds that, at the time the plaintiff was injured: (a) T he plaintiff was under the influence of any alcohol ic beverage or drug to the e x tent tha t the plaintiff’s normal faculties were impaired . . . ; and (b) A s a result of t he influence of such alcoholic be ve rage or drug the plaintiff was more than 50 percent at fault for his or her own harm

. [ 5 ]

4 Appellants point out that there were multiple references to insurance during trial. On two occasi ons, the principal and a n employee of the co

- defendant , Basich, Inc., separately mentioned insurance during testimony . As the question s posed by Appellee’s counsel to these witnesses were not intended to elicit insurance information, these comments , o ver which Appellee ha d no control, do not justify reversal. Finally, two separate jurors provided two written questions for witnesses regarding insurance, but the trial court did not allow the questions to be asked and did not advise the other members of the jury about those questions.

5 Though not raised by either party , this statute providing an intoxication defense applies in a wrongful death action. See Griffis v. Wheeler , 18 So. 3d 2 , 4

- 5 (Fla. 1st DCA 2009).6 On the verdict form, this determination of drug impairment was presented for
resolution as interrogatory question s 5 and 5 ( a ) , which the jury was to consider after it answered the prior four questions on the verdict form . Specifically, t he first two questions

on the verdict form asked the jury to determine whether there was negligence on the part of Marie Harrison that was a legal cause of loss, injury , or damage to Appellee and , if so,
whether there was also negligence on D e c ed e nt’s part that was a legal cause of loss, injury , or damage. As pr eviously indicated, the jury answered “yes” to both questions. Question 4 of the verdict form 6 then directed the jury to state the percentage of fault that it charged to Harrison and that it charged to D ecedent.
T he verdict form next instructed the jury that if it had ass igned a percentage of fault
to D ecedent that is 50% or less, that it was to skip questions 5 and 5(a), but that if it had

ass igned a percentage of fault to D ecedent greater than 50% , th en it was to answer questions 5 and 5(a) before answering the remaining questions on the verdict form

. 7 Question s 5 and 5(a) on the verdict form stated: 5. If you attributed any percentage of fault to [ D ec e d e nt] in question 4 above was some or all of that fault caused by [ D ecedent] being under the inf luence of cocaine and/or marijuana to the extent that his normal faculties were impaired? Yes: _______ No: _______ (a) A s a result of that influence of cocaine and/or marijuana , was [ D ecedent] more than fifty percent (50%) at fault for his own harm? Yes: _______ No: _______

6 Question 3 of the verdict form pertain ed to an issue of vicarious liability that is not pertinent to this appeal.

7 The remaining questions related to various elements of damages.7 In his closing argument, Appellee’s counsel recommended how the jury should approach filling out the verdict form during deliberation . Counsel suggested that instead of answering the questions on the verdict form in the order instructed on the form , the jury should skip the first four questions on the verdict form and go directly to question 5. Counsel argued that the answer to questions 5 and 5(a) should “very simp l [y]” be “no

. ” Counsel then inexplicably advised the jury as follows: “By the way, 50 percent or more at fault, there’s no recovery.” Appellants ’ counsel immediately objected and moved for a mistrial. The trial court sustained the objection, correctly ruling that it was improper for
counsel “to let [t he jury] know the mathematical effect of a finding of a percentage of fault.” The court issued a curative instruction directing the jury to follow the instructions on the verdict form regarding the manner in which it was to proceed in filling out the verd ict form
and also admonishing the jury that the attorneys do not give the instructions on the law. The court deferred ruling on the motion for mistrial but later denied the motion after the jury returned its verdict. The purpose of closing argument is to assist the jury with its application of the law that the judge has given to the facts of the case. Murphy v. Int ’l Robotic Sys

. , I n c. , 766 So. 2d 1010, 1028 (Fla. 2000) ( quoting Hill v. State , 515 So. 2d 176, 1 78 (Fla. 1987)).

“ Moreover, closing argument must not be used to ‘ inflame the minds and passions of the jurors so that their verdict ref lects an emotional re s pon s e . . . rather than the logical analysis of the evidence in light of the applicable law. ’” Id. (quoting Bertolotti v. State , 476 S o . 2d 130, 134 (Fla. 1985) )

. While Appellee’s counsel was entitled to argue to the jury that the evidence presented did not establish that D ecedent was impaired by cocaine or marijuana at the time of the accident and could properly argue for a significa nt damage8 award for the parents for their understandable trauma resulting from the death of their

son , it was highly improper for couns el to advise the jury as to the pot ential adverse effect to the parents of the jury’s potential factual findings regardin g comparative fault . Frankly,

w e can conceive of no reason why counsel would advise the jury that D ecedent’s parents would not receive any money if it found D ecedent to be greater than 50% at fault , other
th a n to deliberately and improperly evoke sympathy and compassion for D ecedent’s parents. Cumulative Error Lastly , Appellants argue that while any one of the aforementioned errors , by itself , is sufficient to justify a reversal , at a minimum , the errors collectively require a new trial. A cumulative error claim asks an appellate court to “evaluate claims of error cumulatively to determine if the errors collectively warrant a new trial.” R o gers v. State , 957 So. 2d 538, 553 (Fla. 2007) (citing Suggs v. State , 923 So. 2d 419, 441

- 42 (Fla. 2005)). I n analyzing the entire record, we conclude that Appellee has not shown that the cumulative effect of these errors is harmless

. See Special v. W. Boca Med. Ctr. , 160 So. 3d 1251,
1256 (Fla. 2014) (holding that the harmless error analysis in civi l cases requires that “the beneficiary of the error must prove that there is no reasonable possibility that the error contributed to the verdict”). Accordingly, we reverse the final judgment awarding damages in favor of Appellee and remand for a new trial . Furthermore, because we have reversed this final judgment ,
we must also reverse the separate final cost judgment. See Thornb u rg v. P u rsell , 476 So. 2d 323, 324 (Fla. 2d DCA 1985). REVERSED and REMANDED for new trial.9 ORFINGER , J., and HERNDON, L. , Associate Judge, concur.