2000

25 Fla. L. Weekly D2725a

Insurance — Workers’ compensation — Employer-employee relationship — Where stipulation was entered into between workers’ compensation claimant and workers’ compensation insurer to the effect that insurer would pay claimant’s wife for attendant care services at the federal minimum wage standard for twelve hours per day, no employment relationship was created between insurer and claimant’s wife, and Fair Labor Standards Act was not applicable — Trial court properly entered summary judgment in favor of insurer on claim for overtime under FLSA

25 Fla. L. Weekly D1475b

Insurance — Workers’ compensation — Agent’s negligent procurement of coverage — Collateral estoppel — Where insured, in application for workers’ compensation coverage, had indicated that coverage for officers was desired, agent changed answer to state that officers were to be exempt from coverage, officer who subsequently sustained catastrophic injuries filed workers’ compensation claim against insurer, insurer denied claim, judge ruled that there was coverage for claim, and plaintiff settled with insurer for less than policy limit while insurer’s appeal was pending, trial court erred in entering summary judgment for agent in plaintiff’s action alleging negligence in failing to obtain workers’ compensation coverage for corporate officers — Agent was not entitled to invoke collateral estoppel based on workers’ compensation proceeding because agent was not party to that action and was not privy to parties to that proceeding — Plaintiff’s action in accepting compromise instead of running risk of appellate court’s reversal of workers’ compensation ruling was acceptable course of action — Plaintiff had no legal duty to go through with appeal and not settle it

25 Fla. L. Weekly D703aNOT FINAL VERSION OF OPINION
Subsequent Changes at 25 Fla. L. Weekly D1475b

Insurance — Workers’ compensation — Agent’s negligent procurement of coverage — Collateral estoppel — Where insured, in application for workers’ compensation coverage, had indicated that coverage for officers was desired, agent changed answer to state that officers were to be exempt from coverage, officer who subsequently sustained catastrophic injuries filed workers’ compensation claim against insurer, insurer denied claim, judge ruled that there was coverage for claim, and plaintiff settled with insurer for less than policy limit while insurer’s appeal was pending, trial court erred in entering summary judgment for agent in plaintiff’s action alleging negligence in failing to obtain worker’s compensation coverage for corporate officers — Agent was not entitled to invoke collateral estoppel based on workers’ compensation proceeding because agent was not party to that action and was not privy to parties to that proceeding — Plaintiff’s action in accepting compromise instead of running risk of appellate court’s reversal of workers’ compensation ruling was acceptable course of action — Plaintiff had no legal duty to go through with appeal and not settle it

25 Fla. L. Weekly D704a

Insurance — Uninsured motorist — Setoff — Trial court properly found that payments received by insured for past medical expenses under health insurance policy procured by insured’s employer were not subject to setoff from insured’s recovery of uninsured motorist benefits — Reimbursement provision contained in health insurance policy was activated by insured’s recovery from uninsured motorist insurer — No merit to claim that because health insurance payments were provided to insured through his employer, and thus subject to Employee Retirement Income Security Program, they were made under a similar law to statutes governing workers’ compensation, PIP, or disability benefit schemes as prescribed by section 627.727(1)

25 Fla. L. Weekly S329d
761 So. 2d 289

Torts — Damages — Setoff — Collateral source — Insurance — Uninsured motorist carrier seeking setoff for remaining future personal injury protection and medical payments benefits — Benefits paid or payable — Proper interpretation of term “payable” is that only PIP benefits “currently payable” or owed by PIP carrier as result of expenses incurred by the plaintiff should be set off from verdict that includes an award of future medical expenses — Under section 627.736(3), future medical damages should not be reduced by amount of a plaintiff’s remaining PIP benefits — Section 627.736(3) is limited by its express terms to personal injury protection benefits and does not apply to medpay benefits — Medpay benefits are collateral source to which general collateral source statute is applicable — Under that statute court must reduce amount of plaintiff’s award by total of all amounts paid or “otherwise available” to claimant from all collateral sources — Term “available” includes only those benefits that have already been paid or that are presently due and owing, rather than those benefits potentially payable in the future — Trial court correctly refused to set off remaining medpay benefits against verdict

25 Fla. L. Weekly D198a

Insurance — Uninsured motorist — Civil procedure — Action by insured against uninsured motorist carrier — Where, during trial recess, one of jurors handed defense attorney an advertisement from a magazine which juror had been reading in jury room regarding specially designed furniture which supposedly alleviates chronic back pain, trial court did not abuse discretion in excusing juror who had handed advertisement to attorney and denying plaintiff’s request for mistrial — Trial judge’s action in leaving courtroom during playing of videotaped testimony of plaintiff’s witnesses did not constitute fundamental error, and was not preserved for appellate review by objection to procedure

25 Fla. L. Weekly D1174b

Insurance — Uninsured motorist — Civil procedure — Court erred in dismissing insured’s claim for uninsured motorist benefits for failure to prosecute where insured presented sufficient proof of good cause for failure to file any record activity for one-year period — Previous counsel’s withdrawal because of ill health constituted good cause for failure to prosecute — Trial court could properly consider good cause motion which was filed seven days after dismissal order was entered where defendant failed to show how it was prejudiced by late filing

25 Fla. L. Weekly D989a

Insurance — Uninsured motorist — Damages — Additur — Where jury returned interrogatory verdict which awarded damages for future medical expenses, but which miscalculated present value of future damages and awarded an amount less than discount value recommended by plaintiff’s expert and defendant’s expert, trial court properly awarded additur without giving defendant option of new trial after plaintiff accepted discount figure suggested by defendant — Because only issue to be tried if new trial were granted would be the reduction of future medical expenses to present money value, and plaintiff had accepted defendant’s discount rate for reduction to present value, there was no issue left to be tried

25 Fla. L. Weekly D1873c

Insurance — Uninsured motorist — Record supports trial court’s conclusion that insurer failed to meet burden of proving, absent a written rejection, that there was an informed knowing rejection of UM coverage at time insured applied for new liability policy subsequent to expiration of prior policy

25 Fla. L. Weekly D898a

Insurance — Uninsured motorist — Coverage — Where commercial general liability policy issued in Illinois for Illinois company provided liability coverage for hired autos and nonowned autos, but did not provide uninsured motorist coverage although there was no written rejection of uninsured motorist coverage, insured’s employee who was involved in accident while driving Florida rental vehicle during the course of her duties was entitled to uninsured motorist coverage under Illinois law