Courtroom scene with lawyer arguing before jury.

In Sanchez v. GEICO Indem. Co. (Fla. 1st DCA July 22, 2019), an unusual series of events caused a juror to be improperly included on a panel. The First DCA affirmed the trial court’s granting of a new trial, despite the fact that the party opposing the juror did not make a final objection to the panel before the jury was sworn, and did not request an additional peremptory challenge to use against the juror.

In this uninsured motorist case, potential jurors number 13 and 17 both had the last name “Johnson.”

During voir dire, juror number 13 answered several questions by indicating that he would be biased in favor of the plaintiff and against the insurance company. He stated that he was dissatisfied with the result of his own previous insurance claim, and that his girlfriend had a current claim against Geico.

Conversely, the other Johnson, juror number 17, answered questions indicating a bias in favor of Geico.

Plaintiff’s counsel successfully challenged juror number 17 for cause. However, Geico’s counsel did not seek to have juror 13 removed for cause. During the peremptory strike phase, Geico used all of its peremptory strikes on other jurors. This resulted in juror 13, the anti-Geico Johnson, being selected for the panel. Both sides agreed to the jury. However, the judge did not put the jury under oath at that time, but first called a lunch recess.

Over lunch, Geico’s counsel realized that he had failed to move to strike juror 13 for cause, due to mixing up the two Johnsons. Plaintiff’s counsel objected, and the trial court announced that juror 13 would only be stricken if it was clear that the juror should be stricken for cause.

Juror 13 was brought in for additional questioning, and maintained that although he would do his best to be fair, he would be inclined to find for the plaintiff if the evidence equally favored the plaintiff and defendant.

The judge denied Geico’s strike for cause, over defense counsel’s continued objections that the juror had repeatedly expressed bias against Geico. Geico’s renewed motion to strike juror 13 on the second day of trial was never ruled upon.

The jury returned a verdict for Plaintiff, awarding her $2.5 million in damages. The trial court granted Geico’s motion for new trial, conceding that juror 13 should have been struck for cause because there was reasonable doubt as to his impartiality. The trial court further stated that it accepted defense counsel’s failure to move to strike juror 13 was caused by to mistake, due to the existence of two jurors Johnson seated on the same row.

In a divided opinion, the First DCA affirmed the trial court’s order granting a new trial. The opinion agreed that the juror expressed bias against the defendant, and that the juror was not rehabilitated by subsequent questioning.

The opinion also held that the objection to juror 13 was properly preserved, despite defense counsel not renewing his objection before the jury was sworn, and despite not moving for an additional peremptory challenge to exercise on juror 13. Nonetheless, defense counsel made a clear argument that juror 13 should be stricken for cause immediately before the jury was sworn, thus putting the trial court on notice that he was dissatisfied with the panel. Moreover, the trial court had previously announced that it would not strike juror 13 unless it was clear that he should be stricken for cause. Thus, for the purposes of appellate preservation, any defense motion for an additional peremptory challenge would have been futile.

In a dissent, Judge Bilbrey wrote that he would have reversed the order granting a new trial because defense counsel did not request an additional peremptory challenge. Judge Bilbrey noted that long-standing Florida precedent requires a party to exhaust its peremptory challenges, and have a motion for additional peremptory challenges be denied, in order to preserve the question of an improper denial of a challenge for cause for appellate review. Judge Bilbrey further observed that it is speculative to assume that the trial court would not have granted an additional peremptory challenge.