2005

30 Fla. L. Weekly D1413a

Workers’ compensation — Successive carriers — Occupational disease — Coronary artery disease suffered by firefighter — Where claimant firefighter suffered first heart attack while first carrier provided coverage, and suffered complications after second carrier had begun providing coverage, second carrier is liable for current benefits due claimant — Carrier on risk at time of last injurious exposure is liable when compensation is payable for an occupational disease, and claimant’s performance of his firefighting duties constituted the last injurious exposure before his periods of disablement — In finding second carrier not liable judge of compensation claims erroneously concluded that claimant had not suffered a disability during second carrier’s period of coverage because employer city had continued to pay claimant’s salary during his hospitalization and recovery so that his condition had not resulted in a diminution of earnings — Determining whether a person is disabled for purposes of workers’ compensation turns upon the person’s capacity to earn income, not upon the employer’s decision to pay the injured person’s salary while he or she is incapacitated

30 Fla. L. Weekly D1601a

Administrative law — Workers’ compensation — Department of Financial Services did not err in affirming stop-work and penalty assessment orders against employer for failing to provide workers’ compensation coverage to employees engaged in new home construction — No merit to claim that section 440.107, Florida Statutes (2001), violates due process because it does not provide for notice or opportunity to be heard before or immediately upon issuance of stop-work order — No merit to claim that statute violates excessive fines clause of Florida Constitution because the amount of penalty assessed against employer is disproportionate to employer’s offense where employer honestly believed workers were independent contractors

30 Fla. L. Weekly S440a
905 So. 2d 84

Torts — Workers’ compensation immunity — Intentional torts — Workers’ compensation law immunizes an insurance carrier for mere negligent conduct, simple bad faith, and minor delays in payment, but does not afford blanket immunity for all conduct during the claims process, particularly the insurance carrier’s intentional tortious conduct — Insurance carrier who utilizes process of administering benefits to intentionally injure a worker is not afforded immunity — Trial court properly denied motion to dismiss injured employee’s action against employer’s workers’ compensation carrier on ground of workers’ compensation immunity where complaint alleged pattern of intentional, outrageous, and harmful conduct that would establish existence of intentional tort

30 Fla. L. Weekly D1386c

Insurance — Uninsured motorist — Venue — Error to grant insurer’s motion for change of venue to foreign state in which accident occurred for convenience of witnesses in absence of affidavits or other evidence demonstrating that there were any witnesses who would be inconvenienced by Florida trial

30 Fla. L. Weekly D2847a

Insurance — Uninsured motorist — Offset — Collateral source — Personal injury protection benefits — Trial court erred in not allowing setoff evidence to go to jury and in setting off PIP benefits after trial — Decision holding that proper remedy is remand for trial court to increase judgment by amount of PIP benefits that were deducted by court post-trial is not applicable under circumstances where elimination of post-trial setoff would allow double recovery and where insurer wishes to pursue setoff, even though a retrial of damages is required

30 Fla. L. Weekly D1092c

Insurance — Uninsured motorist — Court did not err in requiring insureds to prove permanent injury in their action against insurer for uninsured motorist coverage — Where policy providing UM coverage limits coverage for non-economic damages to injuries as described in section 627.737(2), permanency is an issue which must be decided by jury

30 Fla. L. Weekly D1587a

Insurance — Uninsured motorist — Setoff — Verdict that found permanent injury but awarded no damages for pain and suffering was inadequate where jury specifically found that the injuries for which medical expenses were awarded were caused by the accident at issue — New trial required on past noneconomic damages — Trial court did not abuse its discretion in determining that insurer was entitled to setoff of tortfeasors’ settlement based upon submission of case to jury on UM claim — Plaintiff is precluded from arguing that award of her medical expenses was a recovery under her personal injury protection claim and not pursuant to the UM award, given the way the claims were submitted to the jury — Insured brought claims against insurer for PIP and UM coverage and claimed medical expenses under both; under UM claim, insurer’s answer included affirmative defense that any settlement should be reduced by amounts paid or payable under PIP and any settlement from tortfeasor; parties stipulated to reserve issue of setoff until after jury verdict; jury was not instructed on separate PIP claim, but received only standard negligence instructions for automobile accident case; and parties used standard verdict form for automobile negligence cases

NOT FINAL VERSION OF OPINION
Subsequent Changes at 30 Fla. L. Weekly D1587a

30 Fla. L. Weekly D147b

Insurance — Uninsured motorist — Setoff — Unless otherwise stipulated, issue of setoff for personal injury protection benefits must be submitted to trier of fact — Verdict which found permanent injury but awarded no damages for pain and suffering was inadequate as a matter of law — New trial required

30 Fla. L. Weekly D1822a

Torts — Insurance — Uninsured motorist — Judges — Personal injury action seeking uninsured motorist benefits and damages from defendant who was involved in construction and repair work on Interstate highway for injuries suffered in single-car accident — Claim that trial judge, in presence of jury, repeatedly rebuked plaintiff’s counsel and improperly commented on evidence, with result that jury was prejudiced against plaintiff, as reflected in amount of damages awarded and percentage of comparative negligence attributed to plaintiff — Plaintiff is entitled to new trial where trial judge’s repeated rebuke of his counsel in presence of jury placed judge in adversarial position to plaintiff’s counsel, preventing judge from exercising fairness and impartiality, and where judge impermissibly commented on evidence — Inappropriate remarks by judge resulted in improper influence on jury, thereby vitiating atmosphere of absolute impartiality that is supposed to emanate from bench

30 Fla. L. Weekly D2725a

Insurance — Uninsured motorist — Trial court properly found that, under unambiguous provisions of policy, lessee of insured vehicle was not entitled to recover under UM portion of policy covering leased vehicle for injuries lessee sustained in accident occurring when her husband was driving leased vehicle and lessee was passenger, notwithstanding fact that coverage under liability portion of policy was denied based on resident relative exclusion