1 Fla. L. Weekly Supp. 335d
Insurance — Personal injury protection — Denial of coverage — Jury was properly instructed on issue of whether insured unreasonably withheld from insurer notice of existence of PIP claim — Argument — Remarks by defense counsel that insured never had to pay a penny out of her pocket and that he paid insurance premiums so people could recover whether or not they deserve it not preserved for appeal where plaintiff failed to move for mistrial after her objection to comments was sustained — Although improper, remarks did not constitute fundamental error
SUSAN YANES, Appellant, vs. ALLSTATE INSURANCE COMPANY, a foreign insurer, Appellee. 11th Judicial Circuit in and for Dade County, Appellate Division. Case No. 91-359AP. Opinion filed: October 02, 1992. An Appeal from County Court for Dade County, Florida, A. Leo Adderly, Judge. Dean A. Mitchell, Attorney for Appellee. Bernard H. Butts, Jr., Attorney for Appellant.
(Before SALMON, KORNBLUM, DEAN, JJ.)
(KORNBLUM, J.) Susan Yanes was injured in an automobile accident on May 5, 1985.
Allstate was the insuror of the vehicle in which Ms. Yanes was riding at the time of the accident. The policy provided personal injury protection benefits to Ms. Yanes.
Yanes notified Allstate of the accident within days after the accident. Yanes, being in doubt about the P.I.P. coverage, then proceeded against the tort feasor and obtained a settlement of $10,000.00 which included the medical expenses.
Thereafter, on June 20, 1989, Yanes made claim with Allstate for her medical expenses.
Allstate denied the claim contending that:
1. Yanes waived her P.I.P. benefits by recovering her expenses from the tort feasor.
2. Yanes failed to notify Allstate of the claim until more than 4 years after the accident.
3. Yanes unreasonably withheld notice of her claim and Allstate was prejudiced.
At trial, the Court granted Yanes Motion For A Directed Verdict on the first and second issues and submitted the third issue to the jury.
The jury returned a verdict for Allstate and Yanes appealed.
Yanes complains that:
1. The Court’s Instructions were contrary to its rulings on the Motions For Directed Verdict.
2. Allstate’s attorney made improper and prejudicial remarks in closing argument.
With regard to the First Complaint, the Trial Court instructed the jury as follows:
“In determining whether Susie Yanes unreasonably withheld notice of existence of her claim for personal injury protection benefits from Allstate Insurance Company, you may consider the following:
(A) The amount of time which passed from the time of the accident until the notice of the existence of the claim that was provided to Allstate Insurance Company.
(B) Whether Susie Yanes had concluded her treatment for the injury which she seeks to have compensated.
(C) Whether Susie Yanes settled her claim with the other driver before giving notice of the existence of her claim for personal injury protection benefits to Allstate Insurance Company.”
This instruction was entirely appropriate to the jury’s consideration of whether Yanes unreasonably withheld notice.
The argument of counsel complained of was that:
“Susie Yanes never took a penny out of her pocket. She took money that Mr. Butts led Johns Eastern to believe they had to pay because he led them to believe that Allstate had no coverage.
A penny never came out of her pocket, a penny never came out of his pocket even though his firm wrote the checks to Dr. Martinez that he sent her so that money came out of Johns Eastern, it didn’t come out of her pocket.
You know there has to come a time when enough is enough. I pay premiums and what am I paying premiums for? They’re getting paid so people can recover just like this, whether or not they deserve it.
Think about it when you deliberate — ”
These remarks were improper and Yanes’ objection was sustained. She did not preserve the objection by moving for a mistrial.
Though these remarks were improper, they do not constitute fundamental error. A.H. ROBINS CO., INC. v. FORD, 468 So.2d 318 (Fla.App.3 Dist. 1985).
There was substantial competent evidence to support the verdict on the only issue submitted to the jury.
AFFIRMED.
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