
    Paul GORMLEY and Josephine Gormley, Appellants, v. GTE PRODUCTS CORPORATION, Appellee.
    No. 86-1987.
    District Court of Appeal of Florida, Third District.
    Sept. 26, 1989.
    Ress, Gomez, Rosenberg, Howland and Mintz and Keith A. Truppman, North Miami, for appellants.
    
      Pyszka, Kessler, Massey, Weldon, Catri, Holton & Douberley and Phillip D. Black-mon, Cooper, Wolfe & Bolotin and Sharon L. Wolfe, Miami, for appellee.
    Before SCHWARTZ, C.J., and BARKDULL, HUBBART, NESBITT, BASKIN, FERGUSON and JORGENSON, JJ.
   ON REHEARING EN BANC

PER CURIAM.

On the court’s own motion, this case was set for rehearing en banc to decide whether we should adhere to the ruling in Cook v. Eney, 277 So.2d 848 (Fla.3d DCA 1973), that admitting evidence suggesting that the plaintiffs were entitled to collateral source payments for their claimed loss is an error which is presumed to have affected a jury verdict exonerating the defendant from all liability.

This case arose when a fire broke out in the home of Paul and Josephine Gormley. The Gormleys, alleging that the fire was caused by a defect in their television set, sued GTE Products Corporation, the manufacturer of the set. They claimed damages to both their persons and property.

During the trial of the case, the Gorm-leys testified, inter alia, to the value of their property loss. To impeach this testimony, the defendant offered a sworn proof of loss statement submitted by the Gorm-leys to their insurance carrier in which the Gormleys placed a lower value on the very same property. Over the Gormleys’ objection, the trial court admitted the impeaching document.

It is clear that the admission of the proof of loss statement, from which the jury could infer that the Gormleys were entitled to be compensated for their property losses by their insurance company, violated the general rule prohibiting the introduction of evidence of the receipt of collateral source benefits. While the defendant was entitled to introduce evidence to show that at trial the Gormleys had inflated their property losses, it was not entitled to show that the Gormleys were insured for the losses under their homeowners policy and had therefore likely received collateral source benefits. This same impeachment could have been, but was not, accomplished by redacting the statement so as to eliminate any reference to insurance.

But while we agree that the admission of the insurance statement was error, we do not agree that the Gormleys have shown that the error was harmful and that, therefore, reversal is required.

The jury in this case returned a special interrogatory verdict finding that there was no negligence on the part of the defendant which was a legal cause of damage to the plaintiffs and that the defendant did not place a defective television set on the market which was a legal cause of damage to the plaintiffs. The defendant argues, therefore, that because the inadmissible evidence pertains to damages only, and because the jury’s verdict found no liability without ever reaching the questions concerning damages, the error is completely harmless.

Predictably, the plaintiffs challenge the defendant’s first premise. Correctly invoking Cook v. Eney, they observe that although collateral source evidence ostensibly pertains to damages only, it in fact contaminates the jury verdict on liability:

“It is argued that such an error did not affect the appellant’s substantial rights since the introduction of collateral benefits can affect only the question of recoverable damages, a question upon which the jury herein did not pass, inasmuch as no liability was found on appellee’s part.
“Appellee’s suggestion that evidence of receipt of collateral benefits would be restricted to the issue of damages, and would not affect the determination of liability, ignores that the evidence was presumably considered without qualification as bearing on a basic fact essential to liability. It cannot be said with any degree of certainty that the jury did not determine that since the appellant was otherwise being taken care of, there should be no recovery against appellee in tort.”

Cook v. Eney, 277 So.2d at 850.

Admittedly, this holding in Cook v. Eney has attracted a following. See Miami Beach Texaco v. Price, 433 So.2d 1227 (Fla. 3d DCA 1983) (affirming grant of new trial on liability); Kreitz v. Thomas, 422 So.2d 1051 (Fla. 4th DCA 1982) (collateral source evidence may have influenced the jury on the question of whether plaintiff suffered permanent injury); Clark v. Tampa Electric Co., 416 So.2d 475 (Fla. 2d DCA 1982); Williams v. Pincombe, 309 So.2d 10, 11 (Fla. 4th DCA 1975) (“Such evidence had the tendency to confuse and mislead the jury on the issue of the defendant’s liability and its admission by the trial court constituted error prejudicial to the plaintiff.”). Nonetheless, the defendant says that this court has often found that a new trial on damages only is a sufficient remedy to cure the error of admitting collateral source evidence. See Pfister v. Parkway General Hospital, Inc., 405 So.2d 1011 (Fla. 3d DCA 1981); Peppe v. Clow, 307 So.2d 886 (Fla. 3d DCA 1974). Moreover, in a number of cases where courts have decided that a new trial on both damages and liability was required, they did so only after concluding that the collateral source evidence had a “specific and articulable propensity for genuine prejudice on liability issues.” Stanley v. United States Fidelity & Guaranty Co., 425 So.2d 608, 615 (Fla. 1st DCA 1982), reversed on other grounds, 452 So.2d 514 (Fla.1984). It would seem, then, that because the eases are in conflict, we must choose the rule to be followed.

We think the better rule is that evidence of the receipt of benefits from collateral sources affects only the question of damages in the absence of a showing that it affects the question of liability. Although the district court in Stanley v. United States Fidelity & Guaranty Co., 425 So.2d 608, 617, concluded that the burden of showing that this improperly admitted evidence did not influence the jury on liability should be on the defendant who sought the benefit of the evidence, we think placing the burden on the defendant — now, the ap-pellee — runs counter to the supreme court rule that the burden to demonstrate on appeal that an error was harmful is upon the appellant. See Whitman v. Castlewood International Corp., 383 So.2d 618 (Fla.1980); Colonial Stores, Inc. v. Scarbrough, 355 So.2d 1181 (Fla.1978). See also Pfister v. Parkway General Hospital, Inc., 405 So.2d 1011.

Our inquiry thus becomes whether the appellants — no longer the beneficiaries of a presumption — satisfied their burden to show that the jury found against them on the liability issue because of the evidence that suggested that they received benefits for their loss from collateral sources. We conclude that they have not.

First, the defendant presented a vigorous defense on the issue of liability, and there was more than substantial evidence upon which the jury could have concluded — as it did — that the defendant was not liable. Compare Skislak v. Wilson, 472 So.2d 776, 778 (Fla. 1st DCA 1985); Kreitz v. Thomas, 422 So.2d at 1052. Second, the jury’s finding of no liability rejected the plaintiffs’ claims for property and personal injury losses, notwithstanding that the inadmissible evidence was a proof of loss regarding property only. It is thus extremely doubtful that it was the inadmissible evidence that persuaded the jury to find no liability whatsoever. Third, the inadmissible evidence at most suggested that the plaintiffs were insured, not that they had actually been compensated for any loss by the in-suranee carrier. See Johnson v. Canteen Corp., 528 So.2d 1364 (Fla. 3d DCA 1988). And, quite obviously, since there was no evidence that the plaintiffs actually received collateral source payments, the jury was not told that the plaintiffs were completely compensated by such payments. Compare Stanley v. United States Fidelity & Guaranty Co., 425 So.2d at 615.

Accordingly, we recede from Cook v. Eney to the extent that it suggests that a plaintiffs entitlement to collateral source benefits is presumed to affect the jury’s determination on liability. We instead adopt the rule which places the burden on the appellant to demonstrate that the admission of such evidence affected the jury's liability determination. ■ Since the appellants have failed to satisfy their burden that they were harmed by the error of admitting the collateral source evidence, the judgment for the defendant is

Affirmed.

BARKDULL, NESBITT, BASKIN and JORGENSON, JJ., concur.

SCHWARTZ, Chief Judge

(dissenting).

I must dissent from the decision to affirm. In my view, there is no basis whatever for departing from the rule embodied in Cook v. Eney, 277 So.2d 848 (Fla. 3d DCA 1973), cert. denied, 285 So.2d 414 (Fla. 1973), that an improper reference to the plaintiff's receipt of collateral payments prejudicially affects his ability to recover for the same loss from a third party. This doctrine, as articulated and applied in Cook, is both independently well-founded and, undoubtedly for that reason, is supported by a virtual unanimity of authority to the same effect. Following the rule of stare decisis, I would therefore apply Cook and reverse the judgment below.

On the point in question, Cook reasons as follows:

It is argued that such an error did not affect the appellant’s substantial rights since the introduction of collateral benefits can affect only the question of recoverable damages, a question upon which the jury herein did not pass, inasmuch as no liability was found on appellee’s part.
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Appellee’s suggestion that evidence of receipt of collateral benefits would be restricted to the issue of damages, and would not affect the determination of liability, ignores that the evidence was presumably considered without qualification as bearing on a basic fact essential to liability. It cannot be said with any degree of certainty that the jury did not determine that since the appellant was otherwise being taken care of, there should be no recovery against appellee in tort.

Cook, 277 So.2d at 850. The majority's decision contains no criticism of the soundness of this determination. In fact, its correctness is supported by:

(a) A long series of decisions of this court which cite, rely upon and follow Cook, culminating in the very recent case of Goodman v. Roma Const. Co., 537 So.2d 597 (Fla. 3d DCA 1988), review denied, 544 So.2d 200 (Fla. 1989); accord Winston Towers 100 Ass’n v. De Carlo, 481 So.2d 1261 (Fla. 3d DCA 1986), cause dismissed, 488 So.2d 832 (Fla.1986); Skislak v. Wilson, 472 So.2d 776 (Fla. 3d DCA 1985); Miami Beach Texaco, Inc. v. Price, 433 So.2d 1227 (Fla. 3d DCA 1983); Freeman v. Rubin, 318 So.2d 540 (Fla. 3d DCA 1975);

(b) The decision of the Supreme Court of Florida in Sosa v. Knight-Ridder Newspapers, Inc., 435 So.2d 821 (Fla.1983), reversing Knight-Ridder Newspapers, Inc. v. Sosa, 407 So.2d 916, 918 (Fla. 3d DCA 1981), which strongly indicates an identical holding. See Knight-Ridder, 407 So.2d at 919 (Baskin, J., dissenting);

(c) A series of decisions of other districts which are likewise to the same effect: Clark v. Tampa Electric Co., 416 So.2d 475 (Fla. 2d DCA 1982), pet. for review denied, 426 So.2d 29 (Fla.1983); Grossman v. Beard, 410 So.2d 175 (Fla. 2d DCA 1982); Williams v. Pincombe, 309 So.2d 10 (Fla. 4th DCA 1975). Of these, the pre-Cook decision in Seminole Shell Co. v. Clearwater Flying Co., 156 So.2d 543 (Fla. 2d DCA 1963), that references by the defendant in a property damage action to the plaintiff-owner’s receipt of insurance benefits requires a new trial on both liability and damages is almost identical to the present case;

(d) The United States Supreme Court decision on the same question in Eichel v. New York Cent.R.R., 375 U.S. 253, 84 S.Ct. 316, 11 L.Ed.2d 307 (1963), which Cook explicitly follows, Cook, 277 So.2d at 850; and

(e) A series of analogous Florida cases in which, for example, improper references to insurance implying that one other than the defendant must pay the judgment, have been held adversely to affect the question of the defendant’s liability vel non. See Carls Markets, Inc. v. Meyer, 69 So.2d 789 (Fla.1953).

Moreover, and contrary to the court’s position on the issue, I do not believe that one may say even that “the cases are in conflict” on this question. At 731. Upon analysis, none of the only three cases cited for this proposition support that conclusion. Pfister v. Parkway General Hospital, Inc., 405 So.2d 1011 (Fla. 3d DCA 1981), review denied, 413 So.2d 876 (Fla.1982) does not refer, much less consider the effect of Cook, but affirms upon an application of the two issue rule which the majority quite correctly acknowledges does not apply in a situation in which the Cook rule is involved. At 731 n. 2. Peppe v. Clow, 307 So.2d 886 (Fla. 3d DCA 1974), cert. denied, 339 So.2d 1171 (Fla.1976) similarly does not cite nor concern Cook; it merely states without analysis or discussion that when a plaintiff has improperly injected the defendant’s liability insurance into the case, a new trial is properly granted for the defendant on damages alone. I do not understand the pertinence of Peppe to the present issue. Finally, Stanley v. United States Fidelity & Guaranty Co., 425 So.2d 608 (Fla. 1st DCA 1982), rev’d sub nom on other grounds. Florida Physician’s Ins. Reciprocal v. Stanley, 452 So.2d 514 (Fla. 1984) does not at all conflict with Cook; to the direct contrary, Stanley specifically cites Cook v. Eney as one of the decisions it approves and follows in which the collateral source evidence had a specific and articulable propensity for genuine prejudice on liability issues, either suggesting that claimant was already fully compensated for his injury or tending to defame claimant’s motives or general verdict-worthiness.

Stanley, 425 So.2d at 615.

Finally, as the court concedes, there is nothing in the two issue rule established by Colonial Stores, Inc. v. Scarbrough, 355 So.2d 1181 (Fla.1977), which affects the propriety of our adherence to or departure from Cook. The rule is one of appellate procedure which provides that an appellant may not secure a reversal because of an error which affects the determination of only one separate issue when, because of the absence of special interrogatories or otherwise, he cannot establish that that issue was the basis for the jury decision. Under Cook, however, it is a given that the issues are not discrete, because the collateral source error is deemed, as a matter of law, to infect the liability verdict — indeed, this is the very nature of the rule itself. Thus, a “special interrogatory” demonstrating the basis of the verdict would be irrelevant and unnecessary to a showing of harmful error. To alter a well-founded principle of law regarding the presumptive existence of prejudice in order to render dispositive an otherwise irrelevant technical requirement concerning the preservation of error would result only in the procedural tail unjustifiably wagging the substantive dog.

In sum, the majority presents us with no ground based upon either reason or authority to overrule Cook v. Eney or its numerous ancestors, collateral relatives and descendants. While the strength of the doctrine of stare decisis may well be debatable, it seems clear that it forbids discarding this vast array of authority on grounds as tenuous as those asserted by the court. See Old Plantation Corp. v. Maule Indus., 68 So.2d 180 (Fla. 1953); Joseph v. State, 447 So.2d 243 (Fla. 3d DCA 1983) (Hubbart, J., dissenting). Instead of departing from Cook, therefore, I would overrule Pfister which, as all acknowledge, cannot stand in the face of the Cook holding. Accordingly, I would reverse the judgment below for a new trial.

HUBBART and FERGUSON, JJ., concur. 
      
      . In Stanley, the district court characterized Kreitz v. Thomas, 422 So.2d 1051, Clark v. Tampa Electric Co., 416 So.2d 475, and Williams v. Pincombe, 309 So.2d 10, as cases involving demonstrable rather than presumptive prejudice on the liability issue.
     
      
      . We cite these cases for the general proposition that the appellant has the burden of proving harmful error. The "two-issue” rule discussed in these cases is simply not involved in the analysis unless one first determines that the inadmissible evidence goes to the issue of damages only. Only then can it be said that because the jury found no liability, the plaintiffs have failed to show that the error harmed them. However, if one concludes as the court did in Cook v. Eney that the inadmissible evidence goes to the issues of damages and liability, then the error is harmful even if the jury finds no liability.
     
      
      . The supreme court upheld a new trial order which included the following:
      7. This Court also grants the motion for new trial on the ground that this Court improperly allowed reference to collateral source to be made to the jury. The trial testimony reflects that counsel for the plaintiff agreed only that certain bills "have been paid.” ... In closing argument, counsel for the defendants argued over the plaintiff's objection overruled by this Court ... that the bills were paid by the workmen’s compensation carrier. The argu-. ment advanced by counsel for the defendants was predicated on facts not in evidence for which a new trial be and the same is hereby granted.
     
      
      .The "two-issue" rule discussed in these cases is simply not involved in the analysis unless one first determines that the inadmissible evidence goes to the issue of damages only. Only then can it be said that because the jury found no liability, the plaintiffs have failed to show that the error harmed them. However, if one concludes as the court did in Cook v. Eney that the inadmissible evidence goes to the issues of damages and liability, then the error is harmful even if the jury finds no liability.
     
      
      . The court’s footnote 1 at page 731 mistakenly omits Cook v. Eney from the cases designated by the First District in Stanley as those which involve "demonstrable rather than presumptive prejudice on the liability issue” and of which the majority therefore apparently deems correct.
     
      
      . See supra note 2.
     
      
      . While, whatever the wisdom of that course may be, this court at least has the power to overrule one or more of its own cases, we do not have the similar authority to refuse to follow a pertinent decision of the Supreme Court of Florida. See Hoffman v. Jones, 280 So.2d 431 (Fla.1973). In my view, Sosa v. Knight Ridder, 435 So.2d at 821 is just such a decision.
     