2000

25 Fla. L. Weekly D1956a

Insurance — Damage to insured crane — Replacement cost — Although policy allowed insurer option of repairing damaged crane, court properly held that insurer was liable for replacement cost of crane because Occupational Safety and Health Administration regulations require that damaged crane be replaced — Insurance contract must be interpreted in light of existing statutes and regulations surrounding its subject — Exclusion that precludes coverage for indirect or consequential loss is not applicable to preclude recovery of cost of replacement

25 Fla. L. Weekly D1410a

Insurance — Farm liability — Subrogation — Indemnification — Action by insurer of property owner which settled wrongful death action arising from accident in which decedent was struck by tractor trailer while walking along roadway near property on which “open burning agricultural fire” was being conducted by property owner’s son, a licensed forester who was insured under separate farm liability policy — Exclusions — Applicability of exclusions contained in policy attached to complaint as an exhibit may be raised by motion to dismiss when allegations of complaint clearly show that the exclusions apply — Where complaint alleged that son controlled the fire, not the non-listed, uninsured property where the fire occurred, dismissal based on the non-listed location exclusion was improper — Pollution — Allegations of complaint regarding fire and how it was conducted were not sufficient to establish as matter of law that pollution exclusion applies to prohibit coverage — Business exclusion — Whether business exclusion applies to negate coverage is factual issue which should not be resolved by motion to dismiss for failure to state cause of action where there was no allegation that son received any compensation of any kind for conducting the fire, even though he was a forester and Certified Burn Manager — Allegation in complaint that son conducted an “open burn agricultural fire,” viewed in light most favorable to plaintiff raises factual issue of whether fire was for agricultural or farming purposes — Indemnity — In order to properly plead cause of action for common law indemnity, party seeking indemnity must allege that he is wholly without fault, that party from whom he is seeking indemnity is at fault, and that he is liable to injured party only because he is vicariously, constructively, derivatively, or technically liable for wrongful acts of party from whom he is seeking indemnity — Although dismissal was appropriate because attachments to complaint contained conflicting allegations concerning the active negligence of the property owner, leave to amend should have been granted — Subrogation — Complaint did not state cause of action for equitable subrogation where there was no allegation that plaintiff was subrogated to rights of injured party — Dismissal was appropriate, but leave to amend should have been granted — Release — Issue of release is affirmative defense that should properly be raised in answer to complaint — Whether release executed by decedent’s estate relieved son’s insurer of liability is issue more appropriately resolved by motion for summary judgment or at trial where the circumstances surrounding the settlement and execution of the release raise issues of fact whether the parties intended to release son’s insurer from liability

25 Fla. L. Weekly D857c

Insurance — Homeowners — Exclusions — Policy clearly and unambiguously provided that bodily injury coverage was not extended to named insureds — Severability of interest provision of policy does not provide avenue of relief to plaintiff, a named insured, who sought coverage for bodily injury allegedly caused by negligence of another named insured — Trial court may not sever one named insured from another named insured effecting a severance within an integrated class

25 Fla. L. Weekly D73c

Insurance — Uninsured motorist — Insurer was under no obligation under rental car agreement to furnish uninsured motorist coverage to husband where policy provided only excess coverage to husband, husband’s personal automobile policy provided primary coverage, and husband explicitly rejected opportunity to purchase primary coverage from insurer when he rented automobile in question

25 Fla. L. Weekly D798a

Insurance — Uninsured motorist — Civil procedure — Where, in action for uninsured motorist benefits, plaintiff insured had filed motion for new trial on ground that court had erroneously excluded testimony of physician who had performed independent medical examinations of plaintiff in connection with claim for personal injury protection benefits, trial court had initially denied motion without considering merits, trial court had thereafter granted motion for new trial on ground of exclusion of physician’s testimony, and trial court had then entered another order vacating its order granting new trial, court had jurisdiction to set aside initial order denying new trial upon finding that order was mistakenly entered and to reinstate second order granting new trial — Where proffered testimony showed that examination conducted by independent medical examiner occurred at or about the same time as examination by plaintiff’s treating physician and that examinations produced conflicting reports, court could have properly admitted testimony of physician who conducted independent medical examination as it related to uninsured motorist claim, but admission of such testimony was not required as matter of law — Remand for reconsideration of motion for new trial

25 Fla. L. Weekly D1306bNOT FINAL VERSION OF OPINION
Subsequent Changes at 27 Fla. L. Weekly D1240a

Insurance — Uninsured motorist — Action against insurer by passenger in insured vehicle which was struck by phantom vehicle on interstate highway — Where action was initially filed against insurer and Florida Department of Transportation, and claim against D.O.T. was settled, leaving insurer as sole defendant, trial court erred in allowing insurer to inform plaintiff on morning of trial that it would defend case by saying that accident was attributable to negligence of D.O.T., and to proceed with that defense and place D.O.T. on verdict form as nonparty defendant — In order to include a nonparty on the verdict form, defendant must plead as affirmative defense the negligence of the nonparty — Error to permit insurer to present testimony of expert witness who had been plaintiff’s expert in claim against D.O.T., where witness was not on insurer’s witness list, and insurer disclosed its intent to call witness on morning of trial — Error to permit insurer to elicit from expert witness the fact that expert had originally been plaintiff’s expert witness in claim against D.O.T. — Argument which accused plaintiff of hiding facts because plaintiff did not call expert as witness was improper — No abuse of discretion in exclusion of evidence of amount insurer paid for damage to insured vehicle — Where insurance policy was introduced into evidence, and fact sheet showed that it included no-fault benefits, court erred in failing to give collateral source jury instruction — Insurer was entitled to setoff for amount of PIP benefits it paid to plaintiff

25 Fla. L. Weekly D885b
754 So. 2d 840

NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, Appellant, v. KAY D. BLACKMON, as Personal Representative of the Estate of RICHARD BLACKMON, Appellee. 1st District. Case No. 1D98-3526. Opinion filed April 7, 2000. An appeal from the Circuit Court for Santa Rosa County. Paul Rasmussen, Judge. Counsel: Sylvia H. Walbolt and Robert E. Biasotti of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., St. Petersburg, for Appellant. Louis K. Rosenbloum, Pensacola and Rainey C. Booth of Levin, Middlebrooks, Thomas, Mitchell, Green, Echsner, Proctor & Papantonio, P.A., Pensacola, for Appellee.CORRECTED OPINION[Original Opinion at 25 Fla. L. Weekly D469b]

25 Fla. L. Weekly D469b
754 So. 2d 840

NOT FINAL VERSION OF OPINION
Subsequent Changes at 25 Fla. L. Weekly D885bInsurance — Uninsured motorist — Wrongful death — Action by wife of decedent, who was killed in automobile accident while driving his employer’s truck, against employer’s uninsured motorist insurer — Damages — Setoff — Collateral sources — Where plaintiff was entitled to maximum workers’ compensation death award, but had been paid only a portion of that amount at time of trial, court erred in reducing jury verdict by only amount which had been paid — Verdict should be reduced by present value of workers’ compensation award that remains due and payable at time of verdict — Evidence — Hearsay — Error to admit report which had been prepared by supervisor of paramedic team that responded to accident which contained statement made by tortfeasor to paramedic — Because statement had nothing to do with diagnosis or treatment of tortfeasor, it was not admissible under medical record exception to hearsay rule — Error in admission of statement was harmless where statement was cumulative — Statements made by decedent while he was in emergency room waiting to go to surgery, approximately an hour after accident, were properly admitted as excited utterances where decedent was still experiencing trauma of events — No error in award of additur to go to decedent’s son where jury had not recommended any award to him

25 Fla. L. Weekly D2504a

Appeals — Appeal dismissed where parties have entered stipulation for settlement of case and jointly moved for entry of order of dismissal after court had set case for rehearing en banc

25 Fla. L. Weekly D2459bNOT FINAL VERSION OF OPINION
Subsequent Changes at 25 Fla. L. Weekly D2504a

Appeals — Appeal dismissed where parties have entered stipulation for settlement of case and jointly moved for entry of order of dismissal after court had set case for rehearing en banc