2003

28 Fla. L. Weekly D1710a

Venue — Insurance — Uninsured motorist — Gravamen of insured’s suit against her uninsured motorist insurer was not, as plaintiff alleged, for breach of contract occurring in county in which insured resided and in which insurer’s refusal to pay occurred, but for damages caused by an automobile collision occurring in a different county — Insurer’s refusal to meet insured’s demand for payment under policy is not a breach if no payment is due at time of demand — Plain language of insurance policy which was attached to complaint as exhibit affirmatively established that no payment from insurer was presently due under policy and, accordingly, the alleged breach was non-existent — Insurer’s obligation under policy was to pay damages which insured was legally entitled to recover from owner or operator of uninsured auto, and that amount has yet to be determined — Further, policy provided that in case of dispute between insured and insurer as to liability and damages, insured was to file suit against owner or operator of uninsured auto and the insurer to have issues of legal entitlement and amount of damages determined — Insurer did not breach policy by invoking its explicit provisions

28 Fla. L. Weekly D834a

Civil procedure — Dismissal — Failure to prosecute — Insurance — Action against insurer for uninsured/underinsured motorist benefits — Where plaintiff timely responded to motion to dismiss by filing verified response to motion outlining several grounds that she contended established good cause for delay in prosecution, trial court was required to make determination of whether she had established good cause prior to dismissing her complaint

28 Fla. L. Weekly D432a

Insurance — Uninsured motorist — Hit and run vehicle — Steel beam in roadway — Trial court improperly entered summary judgment for insurer, whose insured sought uninsured motorist benefits for injuries received when another vehicle ran over a steel beam which was lying in the roadway, propelling the beam into insured’s vehicle, on the ground that the steel beam was of unknown origin — As the responding highway patrol officer concluded, the only plausible source of the beam was an unidentified truck to which the beam was improperly secured, thus allowing it to fall from the truck into the roadway, and this truck fits within the policy definition of hit and run vehicle as a type of uninsured motor vehicle

28 Fla. L. Weekly D417e

Venue — Change — Forum non conveniens — Insurance — Action against insurer and its agent alleging defendants fraudulently failed to disclose to insured the existence of available uninsured motorist benefits and to pay certain UM benefits due under policy following an accident — Abuse of discretion to deny motion to change venue where initial venue selection was based on fact that insurer had office in county in which suit was filed, but all other record evidence indicated that insurer’s office had no connection to lawsuit or underlying claim, and that county in which insured obtained policy and in which claim was adjusted by insurer’s representative or county in which accident occurred and where insured received medical treatment were more convenient to parties and better served interest of justice

28 Fla. L. Weekly D1031a

Insurance — Uninsured motorist — Evidence — Collateral impeachment evidence — In insured’s action against uninsured motorist insurer, court erred in allowing insurer to cross-examine insured with evidence that insured gave her employer an accident report after she had altered the date to reflect a more recent accident and used the report to falsely explain her absence from work — Evidence was erroneously admitted because it had no relevance to the issues being tried and served only to impeach insured’s credibility and reflect poorly on her character — Where insured unsuccessfully argued the issue in pretrial motion in limine and objected when insurer’s counsel began discussing the incident in opening statements, issue was properly preserved for appellate review

28 Fla. L. Weekly D1704b

Insurance — Uninsured motorist — Error to deny insurer’s motion to reduce damage award for past lost earning ability by amount of Social Security disability payments insured received as result of her accidental injuries — Insureds’ contention that collateral source setoff statute does not apply because they claimed loss of earning capacity, not lost wages, not supported by plain reading of statute

28 Fla. L. Weekly D1029a
842 So. 2d 1031

Insurance — Uninsured motorist — Underinsured motorist — Damages — Trial court erred in refusing to offset jury verdicts for insureds by amount they recovered in settlement with tortfeasor’s liability insurer — Verdict was inadequate where jury found that insureds sustained permanent injuries and incurred significant medical expenses but awarded no past noneconomic damages — Where need for future economic damages was disputed and jury awarded only minimal future economic damages, failure to award future noneconomic damages was supported by evidence

28 Fla. L. Weekly D730a

Insurance — Uninsured motorist — Coverage — Resident relative — Son seeking coverage for injuries sustained in collision with uninsured motorist which occurred approximately six hours after son’s marriage while he was en route to honeymoon destination — Trial court erroneously relied on claimant’s statement that he intended upon return from honeymoon to share apartment leased by his wife in deciding he was not entitled to UM benefits under his parents’ policies — Lower court too narrowly focused on statement of where son intended to reside in the future rather than upon other salient facts — Three aspects of household residency were established, including close ties of kinship, enjoyment of all living facilities, and fixed dwelling unit — Fixed dwelling unit was satisfied by application of theory that son was relative living primarily with his insured parents at time of accident or theory that son maintained his residency at parents’ household as a dependent child living away from home while attending school — Remand with directions that judgment be entered for son

28 Fla. L. Weekly D725a

Insurance — Uninsured motorist — Coverage — Where insureds owned five vehicles, insurer allowed only four vehicles per declaration page or policy, and second policy was issued for fifth vehicle, the policy insuring the fifth vehicle was not a separate policy requiring a separate written rejection of UM coverage, but was simply part of the four-vehicle policy under which UM coverage had previously been rejected — Under facts of case, there was only one policy of insurance, and second UM rejection was not required — Error to grant summary judgment in favor of insureds in action seeking UM coverage on ground that there was no written rejection of UM coverage for policy covering fifth vehicle

28 Fla. L. Weekly D1169d

Insurance — Uninsured motorist — Directed verdict was properly entered in favor of uninsured motorist insurer, standing in the shoes of the driver of a phantom vehicle who successfully swerved in time to avoid an unlawfully parked truck, into which plaintiff subsequently crashed — There was no evidence that the driver of the phantom vehicle was guilty of any causal negligence — Because the owner of the unlawfully parked truck, who was held 100% responsible for the accident, was fully insured for the amount of the verdict for the insured, there was no cognizable harm to the insured, and UM coverage was unavailable