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Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982

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Torts — Automobile accident — Damages — Setoff — Collateral sources — Settlement agreements — Uninsured motorist insurance — No error in denying defendant’s request to set off settlement proceeds plaintiff received from plaintiff’s uninsured motorist insurer against jury verdict — Defendant preserved claim that she was entitled to setoff of settlement proceeds under section 768.041(2) where, although defendant never specifically cited the statute below, the issue was thoroughly litigated in the trial court, and both parties and trial court relied on case law analyzing setoff of UM settlements under both sections 768.041(2) and 768.76(1) — Defendant is not entitled to a setoff in amount of settlement under section 768.041(2) where claims plaintiff asserted against his UM insurer were not asserted against defendant, and defendant was indisputably not a joint tortfeasor with UM insurer — Although settlement does not differentiate categories of damage to which the settlement funds are attributable, defendant is not entitled to recover the entire amount of the undifferentiated recovery as a setoff where plaintiff’s claims against UM insurer could not be brought against defendant — Court rejects argument that denial of setoff results in a windfall to plaintiff — Setoff under section 768.76(1) is unavailable because the UM insurer settlement proceeds do not fall within the statutory definition of “collateral sources” set forth in section 768.76(2)(a) — Extracontractual damages paid to a first-party claimant on a UM bad faith claim do not meet definition of “collateral source” because it is not a payment of “benefits” — Fact that some portion of the proceeds fell within the definitional ambit of section 409.910(6) has no bearing on whether the proceeds meet the definitional criteria of section 768.76(2)(a), which provides a narrower, more specific definition of “benefits” and sources thereof than section 409.910(6) — Question certified: Is a settlement payment made by an uninsured motorist insurer to settle a first-party bad faith claim subject to setoff under section 768.041(2) or a collateral source within the meaning of section 768.76?

46 Fla. L. Weekly D2221a ALBERTA S. ELLISON, Appellant, v. RANDY WILLOUGHBY, Appellee. 2nd District. Case No. 2D19-1961. October 13, 2021. Appeal from the Circuit Court for Hillsborough County; Ralph C. Stoddard, Judge. Counsel: Paul L. Nettleton of Carlton Fields, P.A., Miami; and Christine R. Davis of Carlton Fields, P.A., Tallahassee, for Appellant. Brent Steinberg, […]

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Workers’ compensation — Expert medical advisor — Compensable accidents — Stipulation — Judge of compensation claims erred by failing to appoint an alternate expert medical advisor after striking appointed EMA’s opinions based on Daubert objection — JCC also erred in ruling on compensability of claimant’s condition where parties had stipulated that it was compensable and not an issue for adjudication — Joint stipulation of the parties is binding on JCC

46 Fla. L. Weekly D2207a MICHAEL SHELTON, Appellant, v. PASCO COUNTY BOARD OF COUNTY COMMISSIONERS/COMMERCIAL RISK MANAGEMENT, INC., Appellees. 1st District. Case No. 1D20-3511. October 6, 2021. On appeal from an order of the Office of the Judges of Compensation Claims. Edward R. Almeyda, Judge. Date of Accident: February 13, 2008. Counsel: Bill McCabe, Longwood, […]

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Workers’ compensation — Independent contractors — Construction industry — Cable installation — Eligibility for benefits — No error in determining that claimant who was injured while installing cable for employer/carrier was ineligible for benefits because he was an independent contractor — Claimant’s installation of residential cable was not “work in the construction industry” which made him an “employee” under the law where the record does not show that claimant was working on or engaged in making a substantial improvement in the use of an existing structure when he sustained his injuries

46 Fla. L. Weekly D2204a VICTOR CABRERA, Appellant, v. KABLELINK COMMUNICATIONS, LLC/SEDGWICK CMS and NEW HAMPSHIRE INSURANCE COMPANY, Appellees. 1st District. Case No. 1D20-736. October 6, 2021. On appeal from an order of the Judge of Compensation Claims. Timothy S. Stanton, Judge. Date of Accident: August 24, 2016. Counsel: Michael J. Winer of Winer Law […]

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Torts — Discovery — It is not a departure from the essential requirements of law to permit discovery regarding the financial relationship between a defendant’s nonparty law firm and an expert witness retained by the defense

46 Fla. L. Weekly S291a STEVEN YOUNKIN, Petitioner, v. NATHAN BLACKWELDER, Respondent. Supreme Court of Florida. Case No. SC19-385. October 14, 2021. Application for Review of the Decision of the District Court of Appeal Direct Conflict of Decisions/Certified Great Public Importance. Fifth District — Case No. 5D18-3548 (Orange County). Counsel: Kansas R. Gooden, Miami, and […]

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Insurance — Bad faith — Refusal to settle — Summary judgment in favor of insurer on claimant’s Florida bad faith claim was appropriate because no reasonable jury could conclude that insurer acted in bad faith before, during, or after sending the proposed release to claimant — Overbroad language in insurer’s proposed release, which insurer made clear it was willing to modify and to let claimant’s attorney re-draft the release, did not create a fact question regarding bad faith under totality of circumstances of case, because what came before and after the overbroad release was sent demonstrates that insurer fulfilled its duty to act in good faith — District court aptly concluded that the before, during, and after facts show that insurer “did not act in bad faith in sending the unsolicited proposed release with the tender of the $50,000 BI policy limits under the circumstances of this case” — While an overbroad release can create a jury question about bad faith under Eleventh Circuit law, it “doesn’t necessarily do so” because question of bad faith is determined under totality of circumstances standard, and the scope of a release is only one of circumstances courts consider — Totality of circumstances show how the failure to settle the lawsuit against insureds did not result from bad faith of insurer

29 Fla. L. Weekly Fed. C383a RAUL A. PELAEZ, as Limited Guardian of the Person and Property of John Poul Pelaez, ward, and Michael Adam Conlon, Jr., Plaintiff-Appellant, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, Defendant-Appellee. 11th Circuit. Case No. 20-12053. September 20, 2021. Appeal from the U.S. District Court for the Middle District of Florida (No. […]

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