TRIAL COURT PROPERLY ENTERED SUMMARY JUDGMENT FOR INSURER IN INSURED’S ACTION TO RECOVER PIP BENEFITS BASED ON THE INSURED’S FRAUD – TRIAL COURT ABUSED DISCRETION IN REFUSING TO AWARD INSURER ATTORNEY’S FEES WHEN THERE WAS NO EVIDENCE THAT OFFER OF JUDGMENT NOT MADE IN GOOD FAITH
Bosem v. Commerce and Industry Insurance Co., 35 Fla. L. Weekly D892 (Fla. 3rd DCA April 21, 2010):
Noting that cases alleging fraud are generally unsuitable for summary judgment, the court wrote that it had an “extraordinary case” before it where the facts of fraud were so clear, that entry of summary judgment was not only appropriate but compelled.
In this case, the plaintiff insured, an attorney, sought insurance benefits for lost wages, but had been fully compensated by his employer for a year’s worth of income. Additionally, his calculation of weekly earnings was immensely exaggerated.
The insured attempted to separate the fraud for the lost wages from the compensation for medical expenses. However, the court pointed out that §627.736(4)(g) states that any insurance fraud voids all coverages arising from the claim.
The court agreed with the insurer’s assertion that the trial judge should have granted the claim for attorney’s fees under the proposal for settlement. Because there was no evidence that the offer was not made in good faith, and the trial court made no finding to that effect, it was error not to award fees.
TRIAL COURT ABUSED DISCRETION IN DISMISSING ACTION BASED ON FORUM NON-CONVENIENS, WHERE MOTION TO DISMISS WAS UNTIMELY – DEFENDANT ALSO WAIVED THE ISSUE BY INITIALLY REPRESENTING IT WOULD NOT MOVE TO DISMISS ON THAT BASIS
Caraffa v. Carnival Corp., 35 Fla. L. Weekly D892 (Fla. 3rd DCA April 21, 2010):
The plaintiff sued Carnival for the wrongful death of her husband due to his prolonged exposure to asbestos while working on Carnival ships. Suit was filed on January 17, 2006, and Carnival served its motion to dismiss in March which included a forum non-conveniens argument. The case was litigated, amended complaint and new motions to dismiss filed (where Carnival did not raise the forum non-conveniens argument), and finally three years after the original complaint was filed, Carnival asked for dismissal based on forum non-conveniens.
The Third District reversed this dismissal for an abuse of discretion. Florida Rule of Civil Procedure 1.061(g) requires the service of a motion to dismiss no later than 60 days after service of process on the moving party. Not only was Carnival well beyond this time frame, the parties conducted discovery and expended time and resources, thereby waiving the right to claim the issue.
The court further noted that while Carnival included a forum non-conveniens argument in its first motion to dismiss, it declined to contest jurisdiction shortly thereafter, and in responses to requests for production, declared it was not moving to dismiss based on that doctrine anyway. The court reversed the dismissal.
CIRCUIT COURT IMPROPERLY ORDERED PLAINTIFF TO SUBMIT TO COMPULSORY MEDICAL EXAM IN PRESENCE OF VIDEOGRAPHER HIRED BY AND ACTING FOR DEFENDANT’S COUNSEL
Prince v. Mallari, 35 Fla. L. Weekly D909 (Fla. 5th DCA April 23, 2010):
The trial judge ordered plaintiff to submit to a compulsory exam under Rule 1.360 in the presence of a videographer hired by the defendant. The notice setting the exam stated that if the plaintiff videotaped it, the defendant would also at its own expense.
The plaintiff objected on multiple grounds (no authority under Rule 1.360 to allow a defendant’s rep. besides the IME doctor to be there, IME’s permit only minimal invasion of privacy rights of patients, HIPAA, IME is done by defendant’s expert and plaintiff can have a representative because of its adversarial nature).
Defense counsel argued he was entitled to his own videotape because plaintiff’s videotape would be work product that defendant could not get. The plaintiff argued that allowing defendant to videotape would impermissibly invade plaintiff’s privacy, and the videographer was there for the plaintiff’s benefit and protection.
While it is well established that a plaintiff may be accompanied at a CME by counsel or videographer of her choosing, Florida courts have made it clear that although the defense has a right, by rule to a compulsory exam, defense counsel does not have the right to be present there. The compulsory physical puts plaintiff in an awkward position of being examined by someone who is not only not of her choosing, but has no interest in the plaintiff’s well being or the plaintiff’s medical treatment.
The defense also loses nothing, because in the event plaintiff chooses to use the video, it must be produced to the defendant before trial.
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