16 Fla. L. Weekly Supp. 413b
Online Reference: FLWSUPP 165NIEVE
Insurance — Personal injury protection — Coverage — Claimant who failed to maintain insurance on own vehicle — Inoperable vehicle — Evidence — Abuse of discretion to exclude, on grounds of insufficiency, insurer’s evidence of prevailing weather conditions in area, proffered to rebut claimant’s assertion that inclement weather rendered own vehicle inoperable and thus exempt from requirement to maintain PIP coverage — Factual questions about contents of evidence go to weight to be given evidence, not its admissibility
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. RICHANA NIEVES, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 07-456 AP & 08-055 AP. March 18, 2009. Counsel: Ivy R. Ginsberg, for Appellant. Michael J. Schwartz, for Appellee.
(Before DIANE WARD, WILLIAM THOMAS, REEMBERTO DIAZ, JJ.)
(PER CURIAM.) Defendant below, United Automobile Insurance Company (“United Automobile”), appeals a jury verdict in favor of Richana Nieves and the corresponding award of attorney’s fees and costs. The Court, having read the briefs and considered the arguments presented, is fully advised in the premises and finds as follows:
We reverse and remand with regard to the trial court’s ruling excluding United Automobile’s testimony to rebut Plaintiff’s assertion that her car suffered flood damage resulting in its inoperability and consequently any requirement that the vehicle be insured. Based on the record, United Automobile sought to offer evidence relating to the history of weather activity during the relevant time period in or around Opa Locka in an effort to show there were no floods that could have rendered Appellee’s vehicle inoperable and thus exempt from insurance coverage. However, based on factual misgivings about the contents of proffered evidence, the trial court excluded the evidence as insufficient to rebut Plaintiff’s assertion that her vehicle was rendered inoperable due to inclement weather.
The standard of review for evidentiary decisions is governed by the abuse of discretion standard. Hendry v. Zelaya, 841 So. 2d 572 (Fla. 3d DCA 2003). Factual questions arising from the contents of offered evidence go to the weight to be given, not the admissibility of the evidence and do not preclude admissibility. Pimentel v. Alamo, 555 So. 2d 895 (Fla. 3d DCA 1990). Thus, the concerns raised by the trial court, however valid, were proper subject matters for cross-examination. As such, the trial court abused its discretion in excluding Appellant’s rebuttal testimony. As to this issue, this matter should be reversed and remanded for a new trial. Reversal of the underlying judgment in favor of Appellee also requires reversal of the statutory attorney fee award. Therefore, it is,
ORDERED and ADJUDGED that this matter is REVERSED and REMANDED for a new trial.
