2013

38 Fla. L. Weekly D74d
103 So. 3d 1028

Insurance — Uninsured motorist — Trial court erred in entering summary judgment finding that there was no UM coverage because insured had failed to give written notice to insurer of the underinsured motorist claim where there were material issues of fact regarding whether insurance broker with whom insured communicated was agent or apparent agent for insurer, whether broker’s employee told insured to cash check which had been tendered by tortfeasor’s insurer, but not to sign release, and whether insurer was prejudiced by insured’s settlement with tortfeasor’s insurer

38 Fla. L. Weekly D1261a
120 So. 3d 6

Torts — Automobile accident — Insurance — In action against owners of automobile involved in accident and plaintiff’s uninsured motorist insurer, where only causation and damages were contested, trial court abused discretion in failing to grant motion for new trial when plaintiff testified, in violation of order on motion in limine, regarding uninsured motorists insurer’s failure to take responsibility, and plaintiff’s counsel argued that insurer was shirking its responsibilities and acting in bad faith

38 Fla. L. Weekly D2477a
127 So. 3d 808

Insurance — Uninsured motorist — Evidence — Where insured was injured while a passenger on a public bus that was involved in an accident with another vehicle, it was not an abuse of discretion to admit time lapse videos taken by surveillance cameras located within the bus — Trial court did not abuse discretion in determining that the videos were a fair and accurate representation of what occurred on the bus — Letters of protection sent by insured’s counsel to insured’s treating physicians, under the terms of which physicians would reduce their bills if insured failed to receive full value of claims against insurer, were not evidence of a collateral source, and trial court did not abuse discretion by admitting letters into evidence and allowing insurer to question physicians about their reduction-of-fee agreements

38 Fla. L. Weekly D1873b
119 So. 3d 1284

Insurance — Uninsured motorist — Damages — Verdict finding that uninsured driver’s negligence was legal cause of any damage to plaintiff, but awarding zero damages for past or future medical expenses was against manifest weight of evidence and inadequate — Plaintiff was at least entitled to recover cost of diagnostic testing where jury had no reasonable basis to conclude that plaintiff suffered no injury as result of accident — Evidence — No error in allowing defense to introduce letter of protection between plaintiff and treating physician who testified as expert witness on severity of plaintiff’s neck injury, as letter of protection was relevant to show potential bias

38 Fla. L. Weekly D1378a
188 So. 3d 852

Insurance — Uninsured motorist — Damages — Future medical expenses — Collateral source benefits — Medicare benefits of developmentally disabled adult plaintiff — Trial court erred in excluding from jury evidence of plaintiff’s receipt of medical services under Medicare program for purpose of determining future medical expenses — Because there is no evidence that plaintiff contributed to the financing of the Medicare program, the program’s benefits are unearned and not subject to exclusion under the collateral source rule

38 Fla. L. Weekly D1329a
116 So. 3d 523

Insurance — Uninsured motorist — Credits — Where insured sued county sheriff’s department and UM motorist insurer after being injured in crash with motorcycle operated by employee of sheriff’s department, and insured, with permission of UM carrier, eventually reached an agreement with sheriff to settle claim for $50,000, which was less than the $100,000 in self-insured liability funds available from the sheriff, insurer was only entitled to credit for the actual settlement amount against damages awarded by jury — Sheriff’s certificate of self-insurance does not constitute a liability policy — UM insurer is also entitled to credit for medical expenses and past lost wages paid by workers’ compensation and personal injury insurance benefits

38 Fla. L. Weekly D2455c
133 So. 3d 530

Insurance — Uninsured motorist — Trial court properly entered summary judgment in favor of insurer, because the damages incurred by plaintiff insured, injured by tortfeasor who was insured under a bodily injury liability policy, did not exceed the amount of the benefits available to her under the tortfeasor’s policy — An injured insured may bring a direct action against her own uninsured motorist carrier without having first resolved a claim against the tortfeasor, but the insured must first demonstrate that she is entitled to UM benefits on the basis that the tortfeasor is uninsured or underinsured — Here, tortfeasor was not underinsured, as tortfeasor’s $50,000 in liability coverage exceeds the amount of damages

38 Fla. L. Weekly D566a
110 So. 3d 66

Torts — Automobile accident — Insurance — Uninsured motorist — Action by plaintiff who was involved in two separate rear-end collisions in 2004 and 2006 against defendants involved in 2004 accident and against defendant and underinsured motorist carrier for damages resulting from 2006 accident, with plaintiff entering into high-low agreement with defendants involved in 2004 accident — Evidence — Trial court abused discretion in disallowing testimony by insurer’s expert that plaintiff’s shoulder surgeries and knee surgery were unrelated to 2006 accident — Although expert was first disclosed on amended witness list after date court had ordered that witness lists be served, amended witness list was filed sixty-nine days before trial, and late filing did not cause prejudice to plaintiff — Trial court erred in precluding insurer’s biomedical engineer from testifying that in his opinion plaintiff was not wearing seatbelt at time of accident — Biomechanics is not new or novel science, and Frye v. United States does not apply to testimony of a causal link between trauma and injury — Trial court erred in refusing to allow disclosure to jury of high-low agreement entered into between plaintiff and defendants involved in 2004 accident, by the terms of which defendants would remain in case and would pay plaintiff a minimum amount and a maximum amount regardless of the amount jury determined they were liable — Argument — Trial court erred in permitting plaintiff’s counsel to make argument regarding defendants’ failure to present expert testimony where plaintiff’s counsel had successfully excluded such evidence — Error to permit plaintiff’s counsel to argue that defendants were attempting to avoid responsibility and exhibited shameful conduct

38 Fla. L. Weekly D2121a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 38 Fla. L. Weekly D2542a

Contracts — Torts — Carriers — Federal preemption — Action against carrier by shipper whose valuable oil paintings she had created were not delivered to destination by carrier, but were sold by carrier to its lost goods contractor and eventually auctioned — Trial court properly found that claims against carrier were preempted by federal Carmack Amendment — Claims are excepted from Carmack Amendment only if the claims are based on conduct separate and distinct from the delivery, loss of, or damage to goods — Claim against carrier for conversion is preempted because it is predicated on failure to deliver goods — Claim of unauthorized use of plaintiff’s name and likeness in resale of paintings is preempted because it is directly related to carrier’s course of conduct in failing to deliver the paintings — Claims of fraud and deceptive and unfair trade practices are so closely related to the performance of the shipping contract that they are preempted

38 Fla. L. Weekly D1231a
117 So. 3d 1163

Insurance — Title — Class action alleging insurer uniformly overcharged for title insurance in mortgage refinance transactions — Trial court correctly interpreted Florida regulation which provides conditions under which a homeowner may qualify for lower premium on title insurance in a refinance transaction — In order for lower premium rate to apply, a previous owner’s policy must have been issued insuring seller or mortgagor in the current transaction and both reissuing agent and the reissuing underwriter must retain for their files copies of the prior owner’s policy — Only upon satisfaction of both these requirements does the regulation not only permit, but require, the insurer to charge the lower premium — Regulation does not require insurer to conduct a “reasonable search” for prior policies to protect eligible homeowners from being overcharged