HAIM ZERWAL, APPELLANT,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, APPELLEE
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Haim Zerwal appealed a jury verdict denying his claim for additional PIP (Personal Injury Protection) lost wage benefits from his State Farm insurance policy. The court affirmed the judgment, finding that any instructional error regarding the maximum amount in dispute was harmless because the jury returned a verdict for the defendant anyway.
The court affirmed the judgment for State Farm, holding that even if the jury instruction was erroneous, the error was harmless because the jury awarded Zerwal nothing. The court declined to consider a second point of error that was not properly assigned as error and was raised for the first time in appellant's reply brief.
[1] An appellate court will not consider an issue raised for the first time on appeal in a reply brief.
[2] A jury verdict awarding a plaintiff nothing renders any instructional error harmless.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“If the instruction was erroneous, the error was harmless since the jury awarded Mr. Zerwal nothing.”
The court's application of the harmless error doctrine, concluding that instructional error regarding the maximum amount in dispute was immaterial because the jury ruled against the appellant anyway.
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Join FLexlaw to unlock all legal intelligenceOn October 24, 1973, Zerwal sustained injuries in a car-bicycle collision and remained home from work through December 24. He returned to work on Dece…
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PER CURIAM.
Plaintiff, Haim Zerwal, appeals an adverse final judgment entered in favor of defendant, State Farm Mutual Automobile Insurance Company, in an action to recover for lost wages under the PIP provision of his insurance policy.
On October 24, 1973, Mr. Zerwal sustained injuries when the car he was driving collided with a bicycle. He remained home from work through December 24 and upon his physician’s advice, returned to work on December 26. On February 13, 1974 Mr. Zerwal’s application to the Social Security Administration for permanent disability benefits was approved and on the same day he terminated his employment. In the meantime State Farm, pursuant to the PIP provision of Mr. Zerwal’s policy, paid him $2,036.69 for medical expenses and 85% of his lost earnings from October 24 through December 24. Mr. Zerwal then demanded that State Farm pay him additional PIP benefits for lost wages from February 13, 1974 until the present time. State Farm refused and Mr. Zerwal sought recovery of these lost earnings. At the conclusion of trial, the judge instructed the jury as follows:
“Tou are instructed that as a matter of law the amount in dispute is not to exceed $2,963.31.
“This is determined as follows: The aggregate amount of coverage under the terms of the policy is $5,000. Of that amount, $2,036.69 has already actually been paid to date.
“If you find that the Plaintiff is entitled to any additional sums under the terms of the policy, you shall award any such additional amount up to a maximum of $2,963.31.”
The jury returned a verdict for State Farm.
Appellant contends that the above instruction was erroneous in that his policy provided for $2,000 in excess medical coverage, and medical payments made pursuant to the PIP benefits should have been credited to the excess coverage allowing him to recoup the full $5,000 in lost wages.
If the instruction was erroneous, the error was harmless since the jury awarded Mr. Zerwal nothing.
The second point sought to be raised was not properly assigned as error and was raised for the first time on appeal in appellant’s reply brief. Therefore, this second point cannot be considered.
Affirmed.
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Kala Invs., Inc. v. Sklar, 538 So. 2d 909 (Fla. 3d DCA 1989)…ala raised the doctrine of equitable subrogation for the first time in its reply brief and that generally an issue raised for the first time in a reply brief will not be considered on appeal, Zerwal v. State Farm Mutual Automobile Insurance Company, 332 So. 2d 645 (Fla. 3d DCA 1976), a cause of action for equitable subrogation is fully supported by the record. See Hart Properties, Inc. v. Slack, 159 So. 2d 236 (Fla.1964) (where record indicates existence of valid cause of action or defense not pleaded, entry…
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Rolling Oaks Homeowner's Ass'n, Inc. v. Dade Cnty., 492 So. 2d 686 (Fla. 3d DCA 1986)…, and only to the extent of the rights of the individual plaintiffs, Harris and Young. However, as this issue was raised for the first time on appeal in appellants’ reply brief, it cannot be considered. Zerwal v. State Farm Mut. Automobile Ins. Co., 332 So. 2d 645 (Fla. 3d DCA 1976); Board of Regents v. Budjan, 242 So. 2d 163 (Fla. 1st DCA 1970). Accordingly, we affirm the dismissal of Counts I, II and III, with prejudice, and reverse the dismissal of Count VIII and remand the cause for further proceedings a…
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Gen. Mortg. Assocs., Inc. v. Campolo Realty & Mortg. Corp., 678 So. 2d 431 (Fla. 3d DCA 1996)…Carrasquillo v. Holiday Carpet Serv. Inc., 615 So. 2d 862 (Fla. 3d DCA 1993); Rolling Oaks Homeowner’s Ass’n, Inc. v. Dade County, 492 So. 2d 686 (Fla. 3d DCA 1986), review denied, 503 So. 2d 328 (Fla.1987); Zerwal v. State Farm Mut. Auto. Ins. Co., 332 So. 2d 645 (Fla. 3d DCA 1976); St. Regis Paper Co. v. Hill, 198 So. 2d 365 (Fla. 1st DCA 1967); Pursell v. Sumter Elec. Co-op., Inc., 169 So. 2d 515 (Fla. 2d DCA 1964). Going further than we need, however, we also find the position wanting on the merits. Whil…
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