Glenn Brosnan v. State Farm Florida Insurance Company and Lucille V. Brosnan

FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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Case No. 5D2022-3062

LT Case No. 2019-10751-CIDL

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GLENN BROSNAN,

Appellant,

v.

STATE FARM INSURANCE

COMPANY and LUCILLE V.

BROSNAN,

Appellees.

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On appeal from the Circuit Court for Volusia County.

Kathryn D. Weston, Judge.

Mark A. Nation and Paul W. Pritchard, of The Nation Law Firm,

Longwood, for Appellant.

Bretton C. Albrecht, of Kubicki Draper, P.A., Fort Lauderdale, for

Appellees.

August 20, 2024

PRATT, J.

In this appeal, we consider whether the trial court erred when

it permitted counsel for State Farm Florida Insurance Company

(“State Farm”) to highlight, during closing argument, Appellant’s

failure to call eyewitnesses during the jury trial. We conclude that

State Farm’s closing argument was not improper, and we affirm

the final judgment.

I.

This case arises from a homeowners’ insurance claim that

Appellant Glenn Brosnan and his mother, Lucille Brosnan,

submitted to State Farm in February 2019 after their toilet

overflowed. The applicable policy period ran from July 2, 2018, to

July 2, 2019. In their claim, the Brosnans asserted that their loss

occurred on November 22, 2018. The same toilet was the subject of

a cancelled 2016 claim. In addition, the Brosnans previously had

submitted—and State Farm previously had paid—water loss

claims in 2009 and 2011. Those two prior claims concerned a

washing machine overflow and a kitchen waste line leak.

Following its adjuster’s inspection, State Farm partially paid

the new claim, contending in its partial denial letter that certain

policy exclusions applied to the claimed loss. At this time, the

Brosnans had not informed State Farm’s adjuster that the

cancelled 2016 claim concerned the same toilet. After receiving the

partial denial, the Brosnans brought a breach of contract suit,

seeking additional payment for their claim.

Mr. Brosnan testified during his deposition that on the day

the water loss occurred, he was at work when he received a call

from his visiting sister informing him that the toilet was leaking.

When he arrived home, Mr. Brosnan saw towels on the floor, and

he used a shop vacuum to dry the floors. Mr. Brosnan also testified

that November 22, 2018, was the first date on which someone in

the home noticed something wrong with the toilet. Ms. Brosnan

testified in her deposition that she usually reported her

household’s claims to State Farm and that she and Mr. Brosnan’s

sister put down newspapers and towels to clean up the water after

the 2018 leak. Mr. Brosnan’s sister, a New York resident, testified

in her deposition that she knew there was a flood in the bathroom

while she was visiting the Brosnan home for Thanksgiving in

November 2018 because she remembered putting towels down and

calling Mr. Brosnan. All three depositions repeatedly referenced

the claimed loss date of November 22, 2018.

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The case proceeded to a jury trial. At some point during the

trial, it was discovered that November 22, 2018, could not be the

actual date of the loss because that day was Thanksgiving, Mr.

Brosnan did not work on Thanksgiving, and Mr. Brosnan had

testified that he learned of the leak while at work. While on the

stand, Mr. Brosnan, for the first time, testified that the date of the

loss was not November 22, 2018. In a sidebar discussion, the

parties conferred about how to treat the deposition testimony of

Mr. Brosnan’s sister, given that her testimony repeatedly

referenced the inaccurate November 22 date. The sidebar

established that the discrepancy would go to credibility, and State

Farm stated that it would read the deposition as part of its case.

Afterward, the Brosnans elected not to introduce the sister’s

deposition testimony during their case. State Farm did likewise.

Accordingly, the sister’s testimony was never introduced at trial.

Before closing arguments, the Brosnans orally moved in

limine to prevent State Farm from asking the jury to make any

adverse inference from their failure to call the sister as a witness

at trial. Indeed, the court had afforded similar relief to State Farm

by granting its pre-trial motion in limine and prohibiting the

Brosnans from making arguments about State Farm’s failure to

call certain witnesses or failure to bring deposed witnesses to the

trial. Nonetheless, the court allowed State Farm to highlight the

absence of testimony from other witnesses, so long as it confined

its argument to the proposition “that there were other people there

the date when this happened and they weren’t here to testify.”

State Farm availed itself of the court’s allowance and argued

credibility at closing. It asked the jury to consider when the loss

happened, whether it happened during the policy period or instead

owed to the 2016 toilet problem, and whether it even happened at

all. After reciting Mr. Brosnan’s repeated assertions of a November

22 loss date, his insistence that he’d learned of the leak while at

work during a phone call from his sister, and his testimony that

others were present at his house on that date, State Farm’s counsel

argued:

You remember, there were people at his house

that date. Why? For Thanksgiving. Now, the

easiest thing in the world right now if Mr.

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Brosnan wants to, to fix that date, because now

he said, well, maybe it was the Thursday before

Thanksgiving, the easiest thing in the world

right now would be to bring people in to

corroborate that story. That would be the easiest

thing in the world to do.

State Farm’s counsel urged the jury to conclude that the Brosnans

failed to prove that any loss happened during the policy period,

“because you’re not even sure if there was an event. You know it

wasn’t on Thanksgiving. Was it the week before? No one came in

to corroborate it. That would have been easy to do.”

Ultimately, the jury sided with State Farm and concluded that

the Brosnans failed to prove a policy-period loss. It therefore

rendered a verdict for State Farm. The trial court denied the

Brosnans’ motion for new trial and entered final judgment for

State Farm. Mr. Brosnan then timely appealed.

II.

Appellant asserts that he is entitled to a new trial because it

was reversible error for the trial court to allow State Farm, during

closing argument, to ask the jury to make an adverse inference

from his failure to call his sister as a witness. We review for abuse

of discretion a trial court’s determinations on the propriety of a

closing argument, whether those determinations occur in limine,

during trial, or on a motion for new trial. See Patrick v. State, 104

So. 3d 1046, 1056 (Fla. 2012); Murphy v. Int’l Robotic Sys., Inc.,

766 So. 2d 1010, 1031 (Fla. 2000); Cloud v. Fallis, 110 So. 2d 669,

673 (Fla. 1959).

State Farm first contends that Appellant did not preserve his

argument on appeal because he did not contemporaneously object

to the trial court’s limitations on argument when it ruled on his

oral motion in limine, he did not object to the argument when it

was made at closing, and his motion for new trial did not expressly

seek rehearing of the court’s earlier decision on his oral motion in

limine. We disagree. Appellant’s anticipatory motion in limine

timely and clearly apprised the trial court of his position that it

would be error to allow State Farm to argue an adverse inference

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from his failure to call his sister as a witness. And he makes the

same argument on appeal that he did below in his motion in

limine. Moreover, Appellant reiterated the argument in his motion

for new trial, acknowledging that the court had denied his motion

in limine but contending that State Farm could not argue adverse

inferences from his failure to call a witness equally available to

both parties. Therefore, we conclude that the argument is

preserved for our review. See Aills v. Boemi, 29 So. 3d 1105, 1108

(Fla. 2010); see also Sparre v. State, 289 So. 3d 839, 848 (Fla. 2019)

(to preserve an issue for appellate review, a litigant must “present

the issue to the trial court in a timely, specific manner and obtain

a ruling”).

III.

Having concluded that Appellant’s argument is properly

before us, we now turn to its merits.

A.

At common law, “[t]he nonproduction of evidence that would

naturally have been produced by an honest and therefore fearless

claimant permits the inference that its tenor is unfavorable to the

party’s cause.” 2 J. Wigmore, Evidence in Trials at Common Law

§ 285, at 192 (J. Chadbourne rev. ed. 1979); see Robert H. Stier,

Jr., Revisiting the Missing Witness Inference – Quieting the Loud

Voice from the Empty Chair, 44 Md. L. Rev. 137, 139 (1985). That

principle extended to the nonproduction of witnesses. See Graves

v. United States, 150 U.S. 118, 121 (1893) (“The rule, even in

criminal cases, is that, if a party has it peculiarly within his power

to produce witnesses whose testimony would elucidate the

transaction, the fact that he does not do it creates the presumption

that the testimony, if produced, would be unfavorable.”). This oft-

called “missing witness rule” derived as a negative inference from

the common-law practice that calling a witness entailed vouching

for the witness’s testimony, and the calling party could not

impeach his own witness. See Harris v. State, 182 A.3d 821, 832

(Md. Ct. App. 2018). If a party declined to call a witness that was

peculiarly within his power to produce, juries could infer that any

testimony the witness might have given would have been

unfavorable to the party. See id.; see also Graves, 150 U.S. at 121.

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With the adoption of modern evidence and discovery codes—

under which parties have broader access to witnesses before trial,

may call at trial any witness they choose, and may impeach their

own witnesses’ testimonies—some courts have suggested that the

missing witness rule is an anachronism. See, e.g., Harris, 182 A.3d

at 834–35; Herbert v. Wal–Mart Stores, Inc., 911 F.2d 1044, 1048

(5th Cir. 1990); Jones v. Otis Elevator Co., 861 F.2d 655, 659 n.4

(11th Cir. 1988). However, no party to this appeal disputes the

rule’s continuing viability, and indeed, both we and the Florida

Supreme Court have continued to recognize it. See, e.g., Terry v.

State, 668 So. 2d 954, 963–64 (Fla. 1996); Conner v. State, 910 So.

2d 313, 315–16 (Fla. 5th DCA 2005); Davis v. State, 744 So. 2d

1091, 1094–95 (Fla. 5th DCA 1999). Other district courts of appeal

have done likewise, in both criminal and civil cases. See, e.g.,

Washington v. State, 811 So. 2d 724, 725 (Fla. 3d DCA 2002);

Lowder v. Econ. Opportunity Fam. Health Ctr., Inc., 680 So. 2d

1133, 1135–36 (Fla. 3d DCA 1996); Fino v. Nodine, 646 So. 2d 746,

750–51 (Fla. 4th DCA 1994).

The Florida Supreme Court clearly articulated the contours of

the missing witness rule in a line of criminal cases culminating in

Jackson v. State, 575 So. 2d 181 (Fla. 1991). Before Jackson, the

Court already had observed a traditional limitation on the rule:

when an available and competent witness is “equally available to

both parties, no inference should be drawn or comments made on

the failure of either party to call the witness.” State v. Michaels,

454 So. 2d 560, 562 (Fla. 1984). Jackson reaffirmed this limitation

on the missing witness rule and clarified that the factfinder may

draw an adverse inference from a missing witness where the

defendant “voluntarily assumes some burden of proof by asserting

the defenses of alibi, self-defense, and defense of others, relying on

facts that could be elicited only from a witness who is not equally

available to the state.” 575 So. 2d at 188. It continued: “A witness

is not equally available when there is a special relationship

between the [criminal] defendant and the witness.” Id.

While Jackson focused on the missing witness inference’s

implications for certain rights of the accused, see id. at 188 & n.4,

courts have understood Jackson and its progeny to mark the

permissible bounds of the inference not just in criminal cases, but

in civil cases as well. See, e.g., Lowder, 680 So. 2d at 1135 (citing

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Terry, 668 So. 2d at 963; Jackson, 575 So. 2d at 188). Courts also

have understood Jackson to displace earlier conceptions of equal

availability. Some pre-Jackson appellate decisions had suggested

that the equal-availability inquiry should “take into account both

practical and physical considerations” beyond simply the

relationship between the party and the witness. Martinez v. State,

478 So. 2d 871, 871–72 (Fla. 3d DCA 1985) (quotation marks

omitted). However, post-Jackson opinions—including one from our

court—have read Jackson to “eliminat[e] any arguable distinction

between a witness classified as ‘not equally available’ . . . and a

witness who has a ‘special relationship’ with the defendant,”

concluding that those terms “are simply different ways of saying

the same thing.” Davis, 744 So. 2d at 1095 (quoting Lawyer v.

State, 627 So. 2d 564, 567 (Fla. 4th DCA 1993)). This relationship-

focused approach has been followed in jurisdictions outside Florida

as well. See Welsh v. United States, 844 F.2d 1239, 1245 n.1 (6th

Cir. 1988) (observing that under Kentucky law, “a witness is not

considered ‘equally available’ if he is presumptively interested in

the outcome or if his relationship to one party would reasonably be

expected to make his testimony naturally more favorable to that

party”).

The Florida Supreme Court has found a special relationship

where the uncalled witness had a close familial relationship to the

defendant. See Jackson, 575 So. 2d at 188 (mother of the

defendant); Michaels, 454 So. 2d at 562 (daughter of the

defendant); Buckrem v. State, 355 So. 2d 111, 112 (Fla. 1978) (wife

of the defendant); see also Jackson, 575 So. 2d at 188 (approvingly

citing Jenkins v. State, 317 So. 2d 90, 91 (Fla. 1st DCA 1975)

(common-law wife of the defendant)). More distant personal

relationships, however, may not qualify. For example, we have

concluded that an employer-employee relationship did not

constitute a “special relationship” under Jackson. See Davis, 744

So. 2d at 1095; accord Lawyer, 627 So. 2d at 567.

B.

We conclude that State Farm’s closing argument did not stray

beyond the permissible bounds of the missing witness rule.

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First, when viewed in context, State Farm’s closing argument

appears not to have urged the kind of adverse inference that falls

within the missing witness rule. The argument did not identify a

particular uncalled witness, and it came short of claiming that the

witness would have testified adversely to Appellant. Instead, it

observed that Appellant himself claimed there were other

witnesses to the loss, and yet he failed to bring any eyewitnesses

before the jury. Because State Farm’s primary argument was that

Appellant failed to prove a policy-period loss, this seems to us a

fair comment on Appellant’s failure to satisfy his burden of proof,

rather than an invitation for the jury to infer that a particular

absent witness would contradict Appellant’s testimony.

Even if State Farm’s argument were best characterized as

urging the jury to infer that Appellant’s sister would have testified

adversely to him, it still would be permissible. That’s because

Appellant bore the burden of proof to establish a policy-period loss,

and his sibling relationship with his sister qualifies as a special

relationship. These two facets of the case meet the “narrow

exception” allowing the missing witness inference under Jackson.

See Jackson, 575 So. 2d at 188; Davis, 744 So. 2d at 1095.

Appellant responds that we should overlook the sibling

relationship in favor of a more practical consideration: that his

sister’s deposition testimony was, as a functional matter, equally

accessible to both sides. However, as we explain above, we

understand Jackson to eschew such practical considerations and

eliminate any potential daylight between “special relationship”

and “equal availability.” The phrases “‘are simply different ways of

saying the same thing.’” Davis, 744 So. 2d at 1095 (quoting Lawyer,

627 So. 2d at 567). Given that close familial relationships qualify

as special relationships, and in the absence of any countervailing

evidence of estrangement, cf., e.g., Wall v. Costco Wholesale Corp.,

857 So. 2d 975, 976 (Fla. 3d DCA 2003), we conclude that

Appellant’s sister was not equally available to State Farm.

In sum, whether framed as a missing witness inference or an

inference of another sort, we find no impropriety in State Farm’s

closing argument. Put plainly, Appellant himself opened the door

to the argument by testifying that others witnessed the loss that

he bore the burden to prove. Cf. Jenkins, 317 So. 2d at 91 (allowing

the State “to comment that [the] defendant failed to produce his

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common law wife to testify as his counsel promised” during his

opening statement). It was a fair reply for State Farm’s counsel to

observe that Appellant never produced for the jury any witnesses

to corroborate his version of events. State Farm was entitled to

argue, and the jury was entitled to infer, that Appellant’s failure

to come forward with any eyewitnesses cut against his credibility

in establishing a claim on which he bore the burden of proof.

IV.

For the foregoing reasons, we affirm the final judgment.

AFFIRMED.

JAY and KILBANE, JJ., concur.

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Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

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