RALPH MIZRAHI, APPELLANT,
v.
PROVIDENT LIFE & ACCIDENT INSURANCE COMPANY, APPELLEE

Fla. 3d DCA | 1999-12-15
No. 98-2399
Before LEVY, GODERICH and GREEN, JJ.
748 So. 2d 1059 Florida District Court of Appeal, Third District (1999) Positive Treatment
Cited by 2 cases


Opinion of the Court
PER CURIAM.

PER CURIAM.

The plaintiff, Ralph Mizrahi, appeals from an adverse final judgment. We affirm for several reasons.

First, the record properly indicates that the insurer was required to carry the burden of proving that Mizrahi’s total disability had ceased. Aetna Life Ins. Co. v. Fruchter, 288 So. 2d 36, 37 (Fla.1973)(hold-ing that where an insurance company has previously acknowledged the existence of a total disability and then has terminated the disability payments, the insurance company has the burden of proof to show that the total disability has ceased). Next, the trial court acted within its discretion in determining the order of presentation at trial. Johnson v. Mortham, 915 F.Supp. 1574, 1581 (N.D.Fla.1996)(“[A] trial court has broad discretion to exercise control over the order of presentation at trial.... There will be no error in changing the order of presentation, so long as the court does not shift the ultimate burden of proof or persuasion to the other party....”). Lastly, there was substantial, competent evidence to support the trial court’s determination, as trier of fact, that Mizrahi was no longer totally disabled as defined by the disability policy in question.

Affirmed.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Shaps v. Provident Life & Accident Ins. Co., 826 So. 2d 250 (Fla. 2002)
    …nce Company, Inc. v. Fruchter, 283 So. 2d 36 (Fla.1973), is dicta. The Eleventh Circuit points out that several lower appellate courts in Florida have cited this Court’s opinion in Fruchter. See, e.g., Mizrahi v. Provident Life & Accident Ins. Co., 748 So. 2d 1059, 1060 (Fla. 3d DCA 1999); Derius v. Allstate Indem. Co., 723 So. 2d 271, 273 (Fla. 4th DCA 1998); Principal Mut. Life Ins. Co. v. Martin, 585 So. 2d 474, 475 (Fla. 3d DCA 1991). This does not change the fact that by discharging the writ in Fruchter,…
  • Shaps v. Provident Life & Accident Ins. Co., 244 F.3d 876 (11th Cir. 2001)
    …for certiorari. It is unclear whether such an opinion can constitute binding precedent. Several lower appellate courts in Florida have cited the Florida Supreme Court’s opinion as precedent. See, e.g., Mizrahi v. Provident Life & Accident Ins. Co., 748 So. 2d 1059, 1060 (Fla.App.3d Dist.1999); Principal Mut., 585 So. 2d at 475. On the other hand, Florida courts — including the Supreme Court itself — have suggested that “denial of certiorari by an appellate court cannot be construed as a determination of the i…

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