5D01-2114 Caruso v. Baumle

State: Florida

Court: Florida Fifth District Court

Docket No: 5D01-2114

Case Date: 10/14/2002

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2002

HELEN M. CARUSO, Individually and on behalf of CRYSTAL GRUBBS, a minor, Appellant, v. EARL BAUMLE, Appellee. ______________________________/ Opinion filed October 18, 2002 Appeal from the Circuit Court for Orange County, Joseph P. Baker, Judge. D. Paul McCaskill and Jeffrey M. Byrd of Jeffrey M. Byrd, P.A., Orlando, for Appellant. Elizabeth C. Wheeler of Elizabeth C. Wheeler, P.A., and Lourdes Calvo-Paquette of Law Offices of Robert Soifer, Orlando, for Appellee. SHARP, W., J. Helen M. Caruso, individually and on behalf of Crystal Grubbs, a minor, asserts the trial court erred in ruling that appellee, Earl Baumle, could proceed to conduct post-trial discovery and present his evidence post-trial regarding the defense of PIP setoff benefits to the trial judge in a jury case. This lawsuit grew out of a 1998 automobile accident in which appellants were injured and received PIP benefits. Appellee admitted liability. CASE NO. 5D01-2114

Our initial view of this case was that although the applicable statutes are unclear as to how, when and to whom PIP setoff defenses should be proven, the appellants in this case had waived this issue by agreeing with the trial judge that the judge would determine the amount of the judgment by deducting the setoffs at a later proceeding. However, an additional review of the record convinces us there was no waiver. Counsel for appellants/plaintiffs below, Jeffrey Byrd, consistently argued that Baumle must submit evidence of PIP setoffs during the trial, although the trial court would later make the calculations and deduct those sums from the final award made by the jury. During the post-trial proceedings, Byrd again objected to Baumle's introduction of post-trial evidence concerning the PIP setoff defense on the ground Baumle had proffered at trial only objected- to- hearsay evidence of the setoffs and that it was then too late to prove that affirmative defense. The trial judge stated: I am clear you're not waiving. You clearly made your objection and I don't want to suggest in any way that you're waiving the objection by anything that I have said or anything you do, but I am still saying that the Defendant, if it wants to benefit from an off-set for PIP payments has to establish how much the PIP payments are and you do that post-judgment. You ordinarily start out by submitting an affidavit from somebody who says these are what the records show we paid out.... The judge then told defense counsel to file an affidavit on PIP payments and let Byrd look at it:

And let me make absolutely clear by

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