STATE FARM V. SWINDOLL

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State: Florida

Court: Florida Third District Court

Docket No: 10-1609

Case Date: 12/14/2011

Preview:Third District Court of Appeal
State of Florida, July Term, A.D. 2011
Opinion filed December 14, 2011. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D10-1609 Lower Tribunal No. 07-28316 ________________

State Farm Mutual Automobile Insurance Company,
Appellant,

William Swindoll,
Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Maxine Cohen Lando, Judge. Cooney Trybus Kwavnick Peets and Warren B. Kwavnick, (Ft. Lauderdale), for appellant. Kimberly L. Boldt; Hoffman & Hoffman and John D. Hoffman, (Hollywood), for appellee.

Before WELLS, C.J., and EMAS, J., and SCHWARTZ, Senior Judge. WELLS, Chief Judge.

State Farm Mutual Automobile Insurance Company appeals from a final judgment in William Swindoll's favor on his uninsured motorist (UM) benefits claim. Because Swindoll was permitted to make the payment of personal injury protection (PIP) benefits and the standard for the payment of such benefits a feature of the trial below, we reverse and remand for a new trial. On May 14, 2006, Swindoll was involved in an automobile accident, allegedly injuring his neck. Following the accident, he sought accident-related treatment from a chiropractor and from his primary care physician, submitting his medical bills for his treatment to State Farm, his insurer. State Farm thereafter paid $10,000 in PIP and an additional $5000 in MedPay benefits to Swindoll. It refused, however, to pay further sums under the UM portion of his policy, claiming that the medical treatment for which Swindoll sought payment did not stem from injuries incurred in the automobile accident. In Swindoll's ensuing action to recover UM benefits, State Farm moved in limine to preclude Swindoll from adducing testimony that payment of PIP benefits rested on a determination that the medical services for which these benefits had been paid were "reasonable, necessary, or connected to the accident." State Farm also argued that no testimony was appropriate regarding payment of MedPay benefits because the trial court, not the jury, was required to reduce any damage award by the amount of these benefits. While the trial court initially agreed, ruling

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that only testimony that these benefits had been paid would be permitted, at trial, the court below allowed Swindoll's counsel to "walk" a State Farm claims adjuster through the instant policy and the interaction between PIP, MedPay and UM coverages provided therein. With respect to PIP benefits, Swindoll's counsel was allowed to repeatedly elicit testimony from State Farm's claims adjuster that PIP benefits were payable for those medical services that were reasonable, necessary and related to the accident involved. Having established this fact, Swindoll's counsel then suggested that UM benefits were payable upon exhaustion of PIP and MedPay benefits. Finally, Swindoll's lawyer was allowed to question the adjuster about every bill submitted for payment, as well as each payment made, to Swindoll by State Farm under the policy's PIP and MedPay provisions. The jury ultimately found that the accident at issue was a legal cause of Swindoll's injury but that he suffered no permanent injury. Swindoll was awarded damages for past medical expenses in the amount of $23,505, which following reduction for payment of PIP and MedPay benefits, was reduced to a total of $8505. State Farm appeals from this judgment. 1. Evidence of payment of PIP benefits to Swindoll The Florida Supreme Court has held that in cases where a jury is the trier of fact "when the plaintiff introduces evidence of damages that would be covered by PIP benefits . . . evidence of PIP benefits [must be] introduced as well . . . `to

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prevent a plaintiff from obtaining a double recovery.'" Caruso v. Baumle, 880 So. 2d 540, 545 (Fla. 2004) (quoting McKenna v. Carlson, 771 So. 2d 555, 558 (Fla. 5th DCA 2000)); see also

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