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Five Key Things Insurers Need to Know to Preserve Appellate Rights in Florida
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Five Key Things Insurers Need to Know to Preserve Appellate Rights in Florida

August 13, 2021 Insurance Industry Legal Blog

Reading Time: 6 minutes

To appeal an issue in Florida after the conclusion of a trial, insurers must have raised that issue during the trial.  This is known as preserving appellate rights.  The Florida state court rules and federal rules governing the preservation of appellate rights are largely the same.  However, in either jurisdiction, properly preserving your appellate rights can be tricky.  This article is designed to provide insurers with five key pieces of information that will allow them to better understand the procedural and substantive requirements for preserving appellate rights in Florida.

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Issues Must Be Raised in a Timely Manner

The nature of the issue that an insurer wants to appeal will dictate when it must take action to successfully preserve its appellate rights.  Issues must be raised in a timely manner.  Fla. Stat. § 90.104(1)(a).  This means that each issue must be raised when it arises.  For example, affirmative defenses need to be pled after service of the complaint, jury challenges must be made during voir dire, and objections based on improper conduct or questioning must be made after the conduct or questioning occurs.  The requirement that issues are raised in a timely manner makes anticipation of possible issues even more important.  An insurer or attorney who is blindsided by an issue during trial may not recall the procedural or substantive requirements for raising that issue in time to successfully preserve the insurer’s appellate rights.  In addition to anticipating potentially appealable issues, insurers and their attorneys should stay abreast of the statutes or procedural rules that provide deadlines for raising issues such as affirmative defenses.

How to Raise an Issue Depends on the Issue

Different potentially appealable issues can be preserved in different ways.  Some issues can be raised by simple objections, some can be raised through motions, and others can be raised through challenges.  Simply put, each issue carries specific substantive rules that must be followed in order for an insurer to successfully preserve its right to appeal that issue.

For example, objecting to a statement or question during trial can satisfy the requirement of raising an issue, provided that the objecting attorney makes a general or specific objection when necessary.  On the other hand, certain issues, such as those arising during voir dire require an attorney to do more than make a simple objection.  During voir dire, an attorney is permitted to challenge individual prospective jurors or the entire selected jury.  When challenging an individual prospective juror, an attorney must exhaust all peremptory challenges, request additional ones, identify to the court which jurors the attorney would have struck, and renew his or her objections before the jury is sworn in.  U.S. v. Davis, 854 F.3d 1276, 1296 (11th Cir. 2017).  Thus, in addition to knowing when an issue must be raised, insurers and their attorneys should know what must done to raise that issue and preserve the insurer’s appellate rights.

Some Objections Must Be Renewed

Some issues require objections or challenges to be renewed at the conclusion of the stage of litigation in which they are objected to initially.  As stated previously, challenges to individual prospective jurors during voir dire are an example of objections that must be renewed.  Failure to do so means the insurers issue with the jury will not be appealable.  Other objections, such as those to evidentiary issues are not required to be renewed; however, renewal can be useful for reminding the court of an attorney’s objection or narrowing the scope of the objection in advance of an appeal.  Failing to renew objections or challenges when required can be as devastating as failing to raise the issue at all.

Failing to Preserve Your Rights Waives Them

Either way, it is important for attorneys to know that if they fail to timely raise an issue during trial, the insurer’s right to appeal the issue post-trial will be waived.  If an insurer waives its right to appeal a specific issue, the insurers’ right to appeal the final judgment is not completely extinguished.  However, if the right to appeal a specific issue is waived, an insurer will face an unfavorable standard of review at the appellate level—the plain or fundamental error standard.  Under the plain or fundamental error standard, the court will only be able to reverse a trial court’s decision if the error was so influential that the jury could not have reached its verdict absent the error being made.  See Polls v. State, 134 So.3d 1068, 1070 (Fla. 4th DCA 2013) (“To constitute fundamental error, ‘the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’”) (quoting State v. Delva, 575 So.2d 643, 644-45 (Fla. 1991)).  This standard is extremely narrow, and appellate courts rarely reverse cases reviewed under the plain and fundamental error standard.

Anticipation is Key

Attorneys must think ahead to each part of the trial before the actual trial even begins.  Preserving appellate rights begins with raising issues in affirmative defenses or insufficient pleadings and continues to the end of trial where motions for a directed verdict or new trial are proper.  Therefore, attorneys should spend time before trial anticipating the potential issues that are likely to arise in their specific case.  Different issues each have their own procedural and substantive preservation requirements.  Anticipating potential issues that are likely to arise will help with understanding the preservation requirements specific to each issue.


Insurers must preserve their appellate rights during trial to avoid becoming subject to the plain or fundamental error standard of review.  The first step to preserving appellate rights is anticipating which issues may arise and when they may arise.  Determining potentially appealable issues before trial allows for an understanding of the necessary substantive and procedural requirements for preserving insurers’ appellate rights.  If an insurer’s attorney knows which issues may arise, when those issues may arise, and how those issues can be raised, he or she can preserve the insurer’s rights in advance of an appeal.

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