42
Fla. L. Weekly D596eop of Form
Fla. L. Weekly D596eop of Form
Torts
— Insurance brokers — Error to enter directed verdict in favor of broker on
claim that broker negligently failed to procure international liability, auto,
and workers’ compensation insurance to cover Bahamian corporation and its
employees working in the Bahamas — Verdict finding broker was 35% negligent in
procuring policy listing Florida corporation rather than Bahamian company as
named insured was supported by evidence that broker breached standard of care
and that plaintiff sustained damages when he was injured in the Bahamas in a
work-related automobile accident for which there was no coverage — Remand for
reinstatement of jury verdict
— Insurance brokers — Error to enter directed verdict in favor of broker on
claim that broker negligently failed to procure international liability, auto,
and workers’ compensation insurance to cover Bahamian corporation and its
employees working in the Bahamas — Verdict finding broker was 35% negligent in
procuring policy listing Florida corporation rather than Bahamian company as
named insured was supported by evidence that broker breached standard of care
and that plaintiff sustained damages when he was injured in the Bahamas in a
work-related automobile accident for which there was no coverage — Remand for
reinstatement of jury verdict
JAMES
T. GELSOMINO, Appellant, v. ACE AMERICAN INSURANCE COMPANY and BROWN &
BROWN, INC., Appellees. 4th District. Case No. 4D14-4767. November 9, 2016.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward
County; John T. Luzzo, Judge; L.T. Case No. 04-11578 CACE (09). Counsel: Andrew
A. Harris of Burlington & Rockenbach, P.A., West Palm Beach, and Geoff S.
Stahl of Liggio Benrubi, West Palm Beach, for appellant. Neil Rose of
Bernstein, Chackman & Liss, Hollywood, for appellee, Brown & Brown,
Inc.
T. GELSOMINO, Appellant, v. ACE AMERICAN INSURANCE COMPANY and BROWN &
BROWN, INC., Appellees. 4th District. Case No. 4D14-4767. November 9, 2016.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward
County; John T. Luzzo, Judge; L.T. Case No. 04-11578 CACE (09). Counsel: Andrew
A. Harris of Burlington & Rockenbach, P.A., West Palm Beach, and Geoff S.
Stahl of Liggio Benrubi, West Palm Beach, for appellant. Neil Rose of
Bernstein, Chackman & Liss, Hollywood, for appellee, Brown & Brown,
Inc.
(MAY,
J.) Litigation over a broker’s failure to procure the insurance coverage
resulted in a verdict for the plaintiff. The trial court however granted the
broker’s motion for judgment in accordance with the motion for directed verdict
and entered a judgment for the broker. The plaintiff now appeals and argues the
trial court erred in granting the broker’s motion. We agree and reverse.
J.) Litigation over a broker’s failure to procure the insurance coverage
resulted in a verdict for the plaintiff. The trial court however granted the
broker’s motion for judgment in accordance with the motion for directed verdict
and entered a judgment for the broker. The plaintiff now appeals and argues the
trial court erred in granting the broker’s motion. We agree and reverse.
The
plaintiff’s brother owned a business, completing interior construction of
hotels, named T & T Contracting. When the plaintiff and his brother began
work in the Bahamas, their company was required to be incorporated in the
Bahamas. They formed T & T Services and served as the officers and
directors of the Bahamian company.
plaintiff’s brother owned a business, completing interior construction of
hotels, named T & T Contracting. When the plaintiff and his brother began
work in the Bahamas, their company was required to be incorporated in the
Bahamas. They formed T & T Services and served as the officers and
directors of the Bahamian company.
T
& T Services needed an insurance policy. The plaintiff was referred to the
broker. The plaintiff’s brother testified he told the broker that T & T
Contracting was a Florida company located in Jacksonville, and acted as the
agent for T & T Services, a Bahamian company.
& T Services needed an insurance policy. The plaintiff was referred to the
broker. The plaintiff’s brother testified he told the broker that T & T
Contracting was a Florida company located in Jacksonville, and acted as the
agent for T & T Services, a Bahamian company.
T
& T Contracting paid for the policy. The Certificate of Insurance
identified the insured as T & T Services, with a Florida address, but the
policy listed T & T Contracting as the insured.
& T Contracting paid for the policy. The Certificate of Insurance
identified the insured as T & T Services, with a Florida address, but the
policy listed T & T Contracting as the insured.
The
plaintiff was involved in a car accident in the Bahamas on his way to the
airport. He immediately went to a clinic, but ultimately traveled home where he
learned he had “broken every bone in [his] foot.” The injury required surgery.
plaintiff was involved in a car accident in the Bahamas on his way to the
airport. He immediately went to a clinic, but ultimately traveled home where he
learned he had “broken every bone in [his] foot.” The injury required surgery.
The
plaintiff called the broker a few days later to report the accident, but the
insurer denied the claim because the plaintiff worked for T & T Services, a
Bahamian company, and the policy’s named insured was T & T Contracting, a
Florida corporation.
plaintiff called the broker a few days later to report the accident, but the
insurer denied the claim because the plaintiff worked for T & T Services, a
Bahamian company, and the policy’s named insured was T & T Contracting, a
Florida corporation.
The
plaintiff filed a fourth amended complaint against the broker, alleging
negligence in failing to procure the policy for T & T Services. The
complaint alleged the plaintiff’s brother, and co-manager of T & T
Services, contacted the broker to obtain an international insurance policy to
cover “general liability, automobile and worker’s compensation claims.” The
broker sold T & T Services an “International Advantage Commercial Insurance
Policy” and issued a Certificate of Insurance, naming T & T Services as the
insured. The plaintiff alleged he relied upon the Certificate of Insurance. He
claimed out of pocket expenses, medical expenses, and lost wages.
plaintiff filed a fourth amended complaint against the broker, alleging
negligence in failing to procure the policy for T & T Services. The
complaint alleged the plaintiff’s brother, and co-manager of T & T
Services, contacted the broker to obtain an international insurance policy to
cover “general liability, automobile and worker’s compensation claims.” The
broker sold T & T Services an “International Advantage Commercial Insurance
Policy” and issued a Certificate of Insurance, naming T & T Services as the
insured. The plaintiff alleged he relied upon the Certificate of Insurance. He
claimed out of pocket expenses, medical expenses, and lost wages.
The
broker answered, denied the allegations, and raised several affirmative
defenses, including comparative negligence, failure to mitigate damages,
set-off, and asserted that the damages were limited to coverage under the
policy. Three days before trial, the plaintiff filed a proposed joint pretrial
stipulation with attachments, which indicated that the disputed law or fact
issue was whether the broker’s negligence caused the plaintiff’s loss, injury,
or damages.
broker answered, denied the allegations, and raised several affirmative
defenses, including comparative negligence, failure to mitigate damages,
set-off, and asserted that the damages were limited to coverage under the
policy. Three days before trial, the plaintiff filed a proposed joint pretrial
stipulation with attachments, which indicated that the disputed law or fact
issue was whether the broker’s negligence caused the plaintiff’s loss, injury,
or damages.
On
the morning of trial, the broker filed a unilateral pre-trial stipulation with
attachments. That stipulation indicated the disputed issues were whether: (1)
the broker was negligent; (2) the negligence was the cause of injury; (3) the
plaintiff failed to mitigate his damages; and (4) the broker was entitled to a
setoff. Nothing in the broker’s pretrial stipulation raised coverage for the
plaintiff’s damages as an issue. The plaintiff filed a trial brief on the first
day of trial, which identified the following issue: “what amount of money
damages fairly and adequately compensates [the plaintiff] for his loss, injury
or damage, including any damage he is reasonably certain to incur in the
future,” past/future medical expenses, and lost earnings/earning capacity.
the morning of trial, the broker filed a unilateral pre-trial stipulation with
attachments. That stipulation indicated the disputed issues were whether: (1)
the broker was negligent; (2) the negligence was the cause of injury; (3) the
plaintiff failed to mitigate his damages; and (4) the broker was entitled to a
setoff. Nothing in the broker’s pretrial stipulation raised coverage for the
plaintiff’s damages as an issue. The plaintiff filed a trial brief on the first
day of trial, which identified the following issue: “what amount of money
damages fairly and adequately compensates [the plaintiff] for his loss, injury
or damage, including any damage he is reasonably certain to incur in the
future,” past/future medical expenses, and lost earnings/earning capacity.
In
his opening, plaintiff’s counsel discussed the plaintiff’s damages and
injuries. “[W]e think it’s very clear that this policy was the type of policy
that would cover [the plaintiff] for the exact type of damage that he incurred,
which was an auto accident during the course and scope of his job, which should
have been covered under the workers’ compensation portion of the policy.”
Defense counsel did not mention damages in his opening, except to discuss the
plaintiff’s settlement with T & T Services. Defense counsel stated that T
& T Services had to get insurance in the Bahamas and not the United States,
since it was a Bahamian company.
his opening, plaintiff’s counsel discussed the plaintiff’s damages and
injuries. “[W]e think it’s very clear that this policy was the type of policy
that would cover [the plaintiff] for the exact type of damage that he incurred,
which was an auto accident during the course and scope of his job, which should
have been covered under the workers’ compensation portion of the policy.”
Defense counsel did not mention damages in his opening, except to discuss the
plaintiff’s settlement with T & T Services. Defense counsel stated that T
& T Services had to get insurance in the Bahamas and not the United States,
since it was a Bahamian company.
Following
the close of the plaintiff’s case, the broker moved for a directed verdict on
liability, proximate cause, and damages. The motion was deferred until after
the close of all the evidence. The broker argued the plaintiff failed to prove
the proper measure of damages, and that damages were limited to the amount of
coverage that would have been available had the insurance policy been properly
procured. It argued that while the plaintiff presented evidence of medical
expenses and lost earnings, there was no evidence about what would have been
covered under the policy.1 It also argued the plaintiff failed
to prove he was entitled to workers’ compensation benefits.
the close of the plaintiff’s case, the broker moved for a directed verdict on
liability, proximate cause, and damages. The motion was deferred until after
the close of all the evidence. The broker argued the plaintiff failed to prove
the proper measure of damages, and that damages were limited to the amount of
coverage that would have been available had the insurance policy been properly
procured. It argued that while the plaintiff presented evidence of medical
expenses and lost earnings, there was no evidence about what would have been
covered under the policy.1 It also argued the plaintiff failed
to prove he was entitled to workers’ compensation benefits.
The
plaintiff responded that he submitted a claim for Voluntary
Compensation/workers’ compensation benefits in Florida, but the insurer denied
the claim.2 He presented evidence of damages
through lost wages and past and future medical expenses. He conceded the
insufficiency of evidence of future lost earnings. The plaintiff argued the
Voluntary Compensation benefits under the policy had a maximum recovery of one
million dollars, the damages were recoverable, and the broker asserted as an
affirmative defense that the plaintiff was limited to the policy limits. The
trial court granted the motion with regard to future wages, but deferred ruling
on the other issues.
plaintiff responded that he submitted a claim for Voluntary
Compensation/workers’ compensation benefits in Florida, but the insurer denied
the claim.2 He presented evidence of damages
through lost wages and past and future medical expenses. He conceded the
insufficiency of evidence of future lost earnings. The plaintiff argued the
Voluntary Compensation benefits under the policy had a maximum recovery of one
million dollars, the damages were recoverable, and the broker asserted as an
affirmative defense that the plaintiff was limited to the policy limits. The
trial court granted the motion with regard to future wages, but deferred ruling
on the other issues.
During
its closing, the broker argued the plaintiff failed to present evidence of the
benefits he would have received under the policy. It also argued there was no
evidence of the total number of weeks of coverage, how much of the medical
expenses were recoverable, whether there was a rate structure for medical
expenses, and what disability benefits were available.
its closing, the broker argued the plaintiff failed to present evidence of the
benefits he would have received under the policy. It also argued there was no
evidence of the total number of weeks of coverage, how much of the medical
expenses were recoverable, whether there was a rate structure for medical
expenses, and what disability benefits were available.
The
jury found the plaintiff proved that the broker was negligent and was a legal
cause of the plaintiff’s loss, injury, or damage. It found the plaintiff proved
“that an International Package insurance policy was available to cover T &
T Services for its employees working in the Bahamas, that T & T Services
would have secured an International Package policy for its employees working in
the Bahamas, and that [the Plaintiff] would have been successful in recovering
under that policy.” It found T & T Services, T & T Contracting, the
plaintiff’s brother, and the plaintiff were also negligent. The jury found the
plaintiff suffered lost earnings of $73,250; past medical expenses of $10,000;
and future medical expenses of $151,370. And, the jury found the broker was 35%
at fault.
jury found the plaintiff proved that the broker was negligent and was a legal
cause of the plaintiff’s loss, injury, or damage. It found the plaintiff proved
“that an International Package insurance policy was available to cover T &
T Services for its employees working in the Bahamas, that T & T Services
would have secured an International Package policy for its employees working in
the Bahamas, and that [the Plaintiff] would have been successful in recovering
under that policy.” It found T & T Services, T & T Contracting, the
plaintiff’s brother, and the plaintiff were also negligent. The jury found the
plaintiff suffered lost earnings of $73,250; past medical expenses of $10,000;
and future medical expenses of $151,370. And, the jury found the broker was 35%
at fault.
The
broker moved to set aside the verdict and enter judgment in accordance with its
motions for directed verdict, or alternatively for a new trial. It argued no
view of the evidence supported a verdict for the plaintiff because he failed to
prove the proper measure of damages, which is “what would have been covered had
the insurance been properly obtained.” It argued the plaintiff did not
introduce evidence establishing which state’s workers’ compensation law
applied. Even if Florida’s law applied, the plaintiff failed to prove the
proper measure of damages. The plaintiff responded that the policy designated
Florida as the governing damages state and the broker waived its argument on
measure of damages by not objecting to the proof of damages in his argument on
the directed verdict motion.
broker moved to set aside the verdict and enter judgment in accordance with its
motions for directed verdict, or alternatively for a new trial. It argued no
view of the evidence supported a verdict for the plaintiff because he failed to
prove the proper measure of damages, which is “what would have been covered had
the insurance been properly obtained.” It argued the plaintiff did not
introduce evidence establishing which state’s workers’ compensation law
applied. Even if Florida’s law applied, the plaintiff failed to prove the
proper measure of damages. The plaintiff responded that the policy designated
Florida as the governing damages state and the broker waived its argument on
measure of damages by not objecting to the proof of damages in his argument on
the directed verdict motion.
The
court granted the motion to set aside the verdict and entered final judgment in
favor of the broker. The court cited Capell v. Gamble, 733 So. 2d 534
(Fla. 1st DCA 1998) and found the plaintiff “failed to set forth any admitted
evidence of ‘what [damages] would have been covered had the insurance been
properly obtained.’ ” From this order, the plaintiff now appeals.
court granted the motion to set aside the verdict and entered final judgment in
favor of the broker. The court cited Capell v. Gamble, 733 So. 2d 534
(Fla. 1st DCA 1998) and found the plaintiff “failed to set forth any admitted
evidence of ‘what [damages] would have been covered had the insurance been
properly obtained.’ ” From this order, the plaintiff now appeals.
On
appeal, the plaintiff argues he proved, and the jury found, the broker was 35%
negligent in procuring insurance coverage. He presented evidence of his
economic losses arising from the car accident. It was unnecessary for him to
present expert testimony concerning the policy’s coverage and Florida’s
workers’ compensation law. It was the broker, who claimed that damages were
limited to the policy’s coverage, but the broker failed to establish that
limitation.
appeal, the plaintiff argues he proved, and the jury found, the broker was 35%
negligent in procuring insurance coverage. He presented evidence of his
economic losses arising from the car accident. It was unnecessary for him to
present expert testimony concerning the policy’s coverage and Florida’s
workers’ compensation law. It was the broker, who claimed that damages were
limited to the policy’s coverage, but the broker failed to establish that
limitation.
The
broker responds that the plaintiff failed to show what benefits would have been
covered had a proper insurance policy been procured. It was the plaintiff’s
burden to prove damages. Although it raised the issue of damage limitation in
its pleadings, it was not an affirmative defense.
broker responds that the plaintiff failed to show what benefits would have been
covered had a proper insurance policy been procured. It was the plaintiff’s
burden to prove damages. Although it raised the issue of damage limitation in
its pleadings, it was not an affirmative defense.
In
reviewing a directed verdict, we “must view the evidence and all inferences of
fact in a light most favorable to the nonmoving party, and can affirm . . .
only where no proper view of the evidence could sustain a verdict in favor of
the nonmoving party.” Frenz Enters., Inc. v. Port Everglades, 746 So. 2d
498, 502 (Fla. 4th DCA 1999). “The same standards apply to a post-verdict
motion for judgment in accordance with prior motions for directed verdict and
to the appellate court’s review of such directed verdicts.” Thor Bear, Inc.
v. Crocker Mizner Park, Inc., 648 So. 2d 168, 172 (Fla. 4th DCA 1994)
(citation omitted).
reviewing a directed verdict, we “must view the evidence and all inferences of
fact in a light most favorable to the nonmoving party, and can affirm . . .
only where no proper view of the evidence could sustain a verdict in favor of
the nonmoving party.” Frenz Enters., Inc. v. Port Everglades, 746 So. 2d
498, 502 (Fla. 4th DCA 1999). “The same standards apply to a post-verdict
motion for judgment in accordance with prior motions for directed verdict and
to the appellate court’s review of such directed verdicts.” Thor Bear, Inc.
v. Crocker Mizner Park, Inc., 648 So. 2d 168, 172 (Fla. 4th DCA 1994)
(citation omitted).
“An
insurance broker may be liable for damages where there is an agreement to
procure insurance and a negligent failure to do so.” Bennett v. Berk,
400 So. 2d 484, 485 (Fla. 3d DCA 1981) (citation omitted). “The measure of
damages in a negligent procurement of insurance case is what would have been
covered had the insurance been properly obtained.” Mondesir v. Delva,
851 So. 2d 187, 189 (Fla. 3d DCA 2003).
insurance broker may be liable for damages where there is an agreement to
procure insurance and a negligent failure to do so.” Bennett v. Berk,
400 So. 2d 484, 485 (Fla. 3d DCA 1981) (citation omitted). “The measure of
damages in a negligent procurement of insurance case is what would have been
covered had the insurance been properly obtained.” Mondesir v. Delva,
851 So. 2d 187, 189 (Fla. 3d DCA 2003).
The
plaintiff first argues the broker’s coverage argument is an affirmative defense
that it failed to prove. He asserts that because the policy states, “[w]e will
adjust the claim with the ‘employee’ by applying the ‘workers’ compensation
law’ of the ‘state’ you choose when making the claim,” the policy controls and
the burden is on the broker to prove the plaintiff was not covered or the
damages were too high. The broker responds that the burden to prove damages
belongs to the plaintiff.
plaintiff first argues the broker’s coverage argument is an affirmative defense
that it failed to prove. He asserts that because the policy states, “[w]e will
adjust the claim with the ‘employee’ by applying the ‘workers’ compensation
law’ of the ‘state’ you choose when making the claim,” the policy controls and
the burden is on the broker to prove the plaintiff was not covered or the
damages were too high. The broker responds that the burden to prove damages
belongs to the plaintiff.
Two
cases are instructive: Mondesir and Capell.
cases are instructive: Mondesir and Capell.
In Mondesir,
the plaintiff sued the defendant for negligent procurement of an insurance
policy when his loss was not covered by the policy. 851 So. 2d at 188. The jury
found in favor of the plaintiff and awarded damages. Id. The Third
District held the plaintiff proved damages.
the plaintiff sued the defendant for negligent procurement of an insurance
policy when his loss was not covered by the policy. 851 So. 2d at 188. The jury
found in favor of the plaintiff and awarded damages. Id. The Third
District held the plaintiff proved damages.
At trial, [the plaintiff]
submitted a copy of a certificate of insurance issued by [the insurer] which
indicates that the fire damage incurred was included in the $300,000 general
liability policy. [The plaintiff] introduced an inventory list that he prepared
after the fire which reflected the loss of fixtures, as well as merchandise.
The value of these damages was also uncontradicted. [The plaintiff] further
testified that [the defendant] assured him that he had received the desired
coverage. There is thus evidence from which a jury could determine [the
plaintiff’s] damages.
submitted a copy of a certificate of insurance issued by [the insurer] which
indicates that the fire damage incurred was included in the $300,000 general
liability policy. [The plaintiff] introduced an inventory list that he prepared
after the fire which reflected the loss of fixtures, as well as merchandise.
The value of these damages was also uncontradicted. [The plaintiff] further
testified that [the defendant] assured him that he had received the desired
coverage. There is thus evidence from which a jury could determine [the
plaintiff’s] damages.
Id.
We
agree with the Third District that Capell is distinguishable from Mondesir.
We
agree with the Third District that Capell is distinguishable from Mondesir.
There,
the plaintiffs brought a claim for the defendant’s alleged negligent failure to
procure flood insurance. Id. at 534. The plaintiffs prevailed at trial. Id.
The defendant appealed, arguing the plaintiffs failed to present sufficient
evidence of damages. Id. at 534. Significantly, the plaintiffs did not
introduce the policy or provide expert testimony on what the policy covered.
The plaintiffs presented evidence of only the “amount of damages sustained
which were not covered by their homeowner’s policy. . . .” Id. at 535
(footnote omitted).
the plaintiffs brought a claim for the defendant’s alleged negligent failure to
procure flood insurance. Id. at 534. The plaintiffs prevailed at trial. Id.
The defendant appealed, arguing the plaintiffs failed to present sufficient
evidence of damages. Id. at 534. Significantly, the plaintiffs did not
introduce the policy or provide expert testimony on what the policy covered.
The plaintiffs presented evidence of only the “amount of damages sustained
which were not covered by their homeowner’s policy. . . .” Id. at 535
(footnote omitted).
The
First District reversed, stating:
First District reversed, stating:
The measure of damages in a
negligent procurement of insurance case is what would have been covered had the
insurance been properly obtained. Neither the amount of damages
caused by the flooding, nor the required amount of flood insurance under the
loan commitment would necessarily reflect what items actually would have been
covered if flood insurance had been obtained.
negligent procurement of insurance case is what would have been covered had the
insurance been properly obtained. Neither the amount of damages
caused by the flooding, nor the required amount of flood insurance under the
loan commitment would necessarily reflect what items actually would have been
covered if flood insurance had been obtained.
Id.
(emphasis
added) (internal citations omitted).
(emphasis
added) (internal citations omitted).
Unlike
Capell, the plaintiff here proved he sustained an injury in a
work-related automobile accident. He proved lost wages and past and future
medical expenses through expert testimony. He introduced the policy that the
broker negligently procured for the wrong entity. This makes the case similar
to Mondesir and unlike Capell, where no policy was admitted into
evidence.
Capell, the plaintiff here proved he sustained an injury in a
work-related automobile accident. He proved lost wages and past and future
medical expenses through expert testimony. He introduced the policy that the
broker negligently procured for the wrong entity. This makes the case similar
to Mondesir and unlike Capell, where no policy was admitted into
evidence.
“A
directed verdict is improper if ‘any evidence’ will support a verdict for the
non-moving party.” Claire’s Boutiques v. Locastro, 85 So. 3d 1192, 1195
(Fla. 4th DCA 2012) (citation omitted). The plaintiff proved the broker
breached the standard of care, causing damages to the plaintiff because no
policy of insurance provided coverage for the plaintiff’s claim. The plaintiff
introduced the insurance policy into evidence. The trial court erred in taking
the verdict from the jury.
directed verdict is improper if ‘any evidence’ will support a verdict for the
non-moving party.” Claire’s Boutiques v. Locastro, 85 So. 3d 1192, 1195
(Fla. 4th DCA 2012) (citation omitted). The plaintiff proved the broker
breached the standard of care, causing damages to the plaintiff because no
policy of insurance provided coverage for the plaintiff’s claim. The plaintiff
introduced the insurance policy into evidence. The trial court erred in taking
the verdict from the jury.
We
therefore reverse and remand for reinstatement of the jury verdict and
proceedings consistent with this opinion.
therefore reverse and remand for reinstatement of the jury verdict and
proceedings consistent with this opinion.
Reversed
and Remanded for Reinstatement of the Verdict. (WARNER,
J., and ARTAU, EDWARD L., Associate Judge, concur.)
and Remanded for Reinstatement of the Verdict. (WARNER,
J., and ARTAU, EDWARD L., Associate Judge, concur.)
__________________
1The
plaintiff’s expert, Dr. Lichtblau, testified to the plaintiff’s injuries. He
assigned a seven percent whole body impairment rating. He also testified to the
types and costs of future medical care. Defense counsel cross-examined Dr.
Lichtblau, but did not ask any questions on the measure of damages or Florida’s
workers’ compensation coverage.
plaintiff’s expert, Dr. Lichtblau, testified to the plaintiff’s injuries. He
assigned a seven percent whole body impairment rating. He also testified to the
types and costs of future medical care. Defense counsel cross-examined Dr.
Lichtblau, but did not ask any questions on the measure of damages or Florida’s
workers’ compensation coverage.
2The
policy contained a Voluntary Compensation Endorsement. Voluntary Compensation
coverage “applies when you make a claim for bodily injury by accident . . . .
The bodily injury must be injury to your ‘employee’ and must arise out of and
in the course of employment by you.”
policy contained a Voluntary Compensation Endorsement. Voluntary Compensation
coverage “applies when you make a claim for bodily injury by accident . . . .
The bodily injury must be injury to your ‘employee’ and must arise out of and
in the course of employment by you.”
The
Policy also contained Employers Responsibility Coverage with Executive
Assistance, which provided:
Policy also contained Employers Responsibility Coverage with Executive
Assistance, which provided:
We will adjust the claim with
the “employee” by applying the “workers compensation law” of the “state” you
choose when you make the claim. The “state” whose law you choose must be one
which is shown in the Declarations. The workplace of the “employee” must be
within the “coverage territory.”
the “employee” by applying the “workers compensation law” of the “state” you
choose when you make the claim. The “state” whose law you choose must be one
which is shown in the Declarations. The workplace of the “employee” must be
within the “coverage territory.”
We Will Pay Benefits
We will pay promptly the
benefits which would be required of you by the “workers compensation law” of
the “state” you choose when making the claim. . . . “Voluntary Compensation” is
“the medical, disability and other benefits prescribed by the ‘workers
compensation law’ of the ‘state’ you choose when you make a claim.”
benefits which would be required of you by the “workers compensation law” of
the “state” you choose when making the claim. . . . “Voluntary Compensation” is
“the medical, disability and other benefits prescribed by the ‘workers
compensation law’ of the ‘state’ you choose when you make a claim.”
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