KENNETH O'BRIEN AND ALLSTATE INSURANCE CO., APPELLANTS,
v.
JESUS ORTIZ AND JULIA ORTIZ, APPELLEES
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In this negligence action arising from a motor vehicle accident, the Third District Court of Appeal affirmed the jury verdict for the plaintiffs but reversed in part regarding the inclusion of medical costs within PIP coverage, directing a remittitur or new trial on that issue.
The court affirmed the jury verdict but found error in permitting evidence of medical costs within PIP definitions. The court held that the motion in limine error was not preserved due to lack of objection at trial, that an exception to the privilege of accident reports exists when driver identity is at issue, and that medical costs within PIP definitions should not have been admitted as damages.
[1] A pretrial motion in limine is not preserved for appeal if no objection is made to the evidence during trial when it is tendered.
[2] An exception to the privilege and confidentiality of an accident report exists when the identity of the driver is an issue.
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Join FLexlaw to unlock all legal intelligence“any error in the ruling on the pretrial motion in limine was not preserved when no objection to the evidence (which was the subject matter of the motion in limine) was made, during the trial when the evidence was tendered”
Establishes that failure to object at trial waives preservation of motion in limine error
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Join FLexlaw to unlock all legal intelligenceA motor vehicle accident gave rise to a negligence action between Kenneth O'Brien and Allstate Insurance Co. against Jesus Ortiz and Julia Ortiz. A ju…
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PER CURIAM.
Appellants seek review of a final judgment for the plaintiffs. The judgment was entered by the trial court pursuant to a jury verdict in a negligence action which arose out of a motor vehicle accident. The appellant urges three points for reversal, first, error in denying the pretrial motion in limine, second, error in permitting evidence from an accident report filed pursuant to Chapter 316 of the Florida Statutes (1981) to be admitted as to the identity of the driver, and third, error in permitting evidence of medical bills as defined in PIP coverage.
As to the first, any error in the ruling on the pretrial motion in limine was not preserved when no objection to the evidence (which was the subject matter of the motion in limine) was made, during the trial when the evidence was tendered. Parry v. Nationwide Mutual Fire Insurance Company, 407 So. 2d 936 (Fla. 5th DCA 1981); Swan v. Florida Farm Bureau Insurance Company, 404 So. 2d 802 (Fla. 5th DCA 1981). Second, there is an exception to the privilege and confidentiality of an accident report, filed pursuant to Chapter 316 of the Florida Statutes (1981), when the identity of the driver is an issue. See Section 316.066(4), Florida Statutes (1981). As to the third point, we find under the present scheme of Florida no-fault insurance code that it was error to permit evidence of the medical costs which are within the PIP definitions. See Section 627.739(1), Florida Statutes (1981).
Therefore, for the reasons stated above, we affirm the final judgment on the jury’s verdict, except that we direct the trial court to enter a remittitur for the defendants in the amount of the medical costs, and if not accepted by the plaintiffs, order a new trial.
Reversed and remanded with directions.
BARKDULL and BASKIN, JJ., concur. DANIEL S. PEARSON, J., concurs in result only.
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Citator
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Rindfleisch v. Carnival Cruise Lines, Inc., 498 So. 2d 488 (Fla. 3d DCA 1986)…that a mere asking or tendering should require a reversal. Thus any error in the trial court’s ruling on the motion in limine was not preserved when Carnival offered no objection to the evidence when it was presented at trial. See O’Brien v. Ortiz, 467 So. 2d 1056 (Fla. 3d DCA 1985). As its second point on cross-appeal, Carnival argues that the trial court erred in allowing the opinion testimony of plaintiffs’ expert on the coefficient of friction test. The general rule is “evidence of an experiment whereby…
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Fredericson v. Levinson, 495 So. 2d 842 (Fla. 3d DCA 1986)…object to the disputed testimony when it was offered in evidence before the jury, and did not otherwise renew his prior motion in limine, which had previously been denied, when the disputed testimony was presented to the jury. See O’Brien v. Ortiz, 467 So. 2d 1056, 1057 (Fla. 3d DCA 1985); Parry v. Nationwide Mutual Fire Insurance Co., 407 So. 2d 936, 936 (Fla. 5th DCA 1981); Swan v. Florida Farm Bureau Insurance Co., 404 So. 2d 802, 803-04 (Fla. 5th DCA 1981). Moreover, the point urged does not present a fun…
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Porter v. Vista Bldg. Maint. Servs., Inc., 630 So. 2d 205 (Fla. 3d DCA 1993)…dissenting. I respectfully dissent upon the reasoning found in the following authorities. Rindfleisch v. Carnival Cruise Lines, Inc., 498 So. 2d 488 (Fla. 3d DCA 1986); Fredericson v. Levinson, 495 So. 2d 842 (Fla. 3d DCA 1986); OBrien v. Ortiz, 467 So. 2d 1056 (Fla. 3d DCA 1985).…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Swan v. Fla. Farm Bureau Ins. Co., 404 So. 2d 802 (Fla. 5th DCA 1981)
- Parry v. Nationwide Mut. Fire Ins. Co., 407 So. 2d 936 (Fla. 5th DCA 1981)