2001

26 Fla. L. Weekly D356c

Insurance — Workers’ compensation — Error to enter summary judgment for workers’ compensation insurance carrier in action to collect additional workers’ compensation insurance premiums where carrier did not carry burden of demonstrating absence of genuine issue of material fact — Affidavit in support of motion for summary judgment which contained only conclusory statements of ultimate fact was insufficient to sustain burden of demonstrating absence of genuine issue of material fact

26 Fla. L. Weekly D2521a

Insurance — Uninsured motorist — Underinsured motorist — Res judicata — Claim for underinsured motorist benefits resulting from fact that tortfeasor had inadequate insurance to cover jury’s verdict is separate and distinct from claim for uninsured motorist benefits resulting from involvement of phantom vehicle — Insured was not required to assert claim for underinsured motorist benefits in her first lawsuit seeking damages based upon claimed negligence of known tortfeasor and uninsured motorist benefits based upon claimed negligence of phantom vehicle — Splitting of causes of action — Insured did not improperly split causes of action by pursuing second lawsuit against insurer for underinsured motorist coverage — Claims for uninsured and underinsured motorist coverage relate to separate and distinct coverage provisions, thereby giving rise to separate causes of action — Waiver — Insured did not waive claim for underinsured motorist benefits when she abandoned her proposed first amended complaint which asserted a claim based upon tortfeasor’s underinsurance and filed second amended complaint which only asserted a claim for uninsured motorist benefits based on phantom vehicle — Record is devoid of any evidence that insured made intentional or voluntary relinquishment of underinsurance claim

26 Fla. L. Weekly S519a

Torts — Automobile accident — Insurance — Where plaintiffs joined their underinsured motorist insurer as defendant in action against owner and driver of vehicle which was involved in accident with plaintiffs’ vehicle, plaintiffs were entitled to have the jury know that the joined carrier was the plaintiffs’ uninsured/underinsured motorist carrier — Trial court erred in identifying insurance company as plaintiffs’ insurer without clarifying that company was plaintiffs’ uninsured/underinsured motorist carrier

26 Fla. L. Weekly D40a

Insurance — Uninsured motorist — Insured seeking coverage for injuries he sustained when unidentified motorist struck him while he was walking — Evidence — Trial court erred in permitting defense counsel to question plaintiff’s expert about suspension of his privileges to perform surgery in certain hospitals due to peer review process absent showing of exceptional necessity or extraordinary circumstances

26 Fla. L. Weekly D745a

Insurance — Uninsured motorist — Trial court properly found that plaintiff who was injured in automobile accident while acting in scope and course of his employment and while riding as passenger in automobile owned not by employer but by fellow employee who was also acting in course and scope of his employment was not entitled under section 627.727(1) to recover uninsured motorist benefits from insurer which issued motor vehicle liability policy to employer — Plaintiff not entitled to UM coverage under statute where vehicle in which plaintiff was riding was not a “specifically insured or identified” vehicle under motor vehicle liability policy issued to employer

26 Fla. L. Weekly D168a

Insurance — Uninsured motorist — No error in directing verdict in favor of insured on issue of comparative negligence where evidence established without contradiction that sole cause of accident was tortfeasor’s act of suddenly and unexpectedly turning left into insured’s pathway — Setoff — Collateral source — Reversible error to deny setoff for personal injury protection benefits paid to insured by PIP carrier — Trial court should have conducted post-trial collateral source hearing to consider PIP setoff — Insurer not required to introduce evidence of PIP benefit payments during course of jury trial

26 Fla. L. Weekly D716a

Insurance — Uninsured motorist — Trial court erred in entering judgment for insured in action against uninsured motorist insurer where amount of damages awarded by jury, after apportionment for comparative negligence, was less than amount insured had received in settlement from other driver’s liability insurer — Because settlement received by insured from other driver’s liability insurer exceeded amount of damages awarded by jury, other driver was not underinsured, and UM coverage was not triggered

26 Fla. L. Weekly D41a

Torts — Automobile accident — Damages — Setoff — Collateral source — Where plaintiff settled with one tortfeasor and tortfeasor’s liability carrier for less than the policy limits, without authorization from plaintiff’s uninsured motorist insurer, and released tortfeasor and liability insurer from any future liability without UM insurer’s permission, and jury found settling tortfeasor 15% negligent, UM insurer was entitled to credit for those damages which could have been recovered from tortfeasor had she remained in trial — Where settling tortfeasor was jointly and severally liable for all economic damages awarded, her $100,000 policy limits should have been applied to offset the economic damages awarded — With respect to noneconomic damages, given jury’s finding that settling tortfeasor was 15% negligent, the most plaintiff could have recovered from tortfeasor had she not settled would have been 15% of the total noneconomic damages awarded

26 Fla. L. Weekly D1411a

Insurance — Uninsured motorist — Coverage — Policy issued to corporation did not provide coverage to individual who was struck by automobile being driven by uninsured motorist while individual was walking across street — Trial court erred in finding that individual who was a pedestrian was a named insured on business auto policy issued to corporation

26 Fla. L. Weekly D441b

Insurance — Uninsured/underinsured motorist — Argument — Improper “send a message” argument was properly handled by trial court who immediately put stop to improper remarks and advised jury to disregard the remarks and upbraided counsel when he continued to make improper argument after he had been instructed to stop