Ruben FLORES, Appellant,
v.
ALLSTATE INSURANCE COMPANY, Appellee.
District Court of Appeal of Florida, Second District.
D. Russell Stahl, Tampa, for Appellant.
Butler Burnette Pappas, Christopher J. Nicholas, and Robert C. Weill, Tampa, for Appellee.
ON REMAND FROM THE SUPREME COURT OF FLORIDA
GREEN, Judge.
Pursuant to the mandate оf the Supreme Court of Florida and upon remand to this court, we resolve the remaining issue to determine whether Ruben Flоres is entitled to a new trial. See Flores v. Allstate Ins. Co.,
The operative facts in this appeal are outlined in the supreme court's opinion and our prior opinion in Flores v. Allstate Insurance Co.,
On appeal from the judgment entered based upon the jury's verdict, Mr. Flores argued that the trial court erred in denying his motion for new trial. Specifically, Mr. Flores argued (1) that any fraud by Mr. Flores in asserting a claim for PIP benefits would not void the coverage Allstate provided under the UM section of the insurance policy, and therefore this issuе was not properly placed before the jury; and (2) that the trial court erred in admitting evidence that Flores had submitted fraudulent bills in his claim for PIP benefits in respect to the other issues presented to the jury, particularly his failure to wear а seatbelt.
We initially held that the jury properly determined that fraud by Mr. Flores voided the UM coverage in his policy and thаt the trial court was correct in submitting to the jury the issue of his failure to wear his seatbelt. We certified to the Supreme Court of Florida as a matter of great public importance the question of whether an insured's fraud as to one part of a divisible insurance policy voids the entire policy. Id. at 7.
In Flores,
In this case, the fraud arose only in connection with a claim for PIP bеnefits and not in connection with the claim for UM coverage in which Allstate, as the UM carrier, stood in the shoes of the tortfeasor. We thus hold that this provision did not permit Allstate to deny UM coverage for unrelated fraud.
The supreme court pointed out that this court never considered if the evidence of fraud was independently admissible on the other issues in the case оr, alternatively, whether its admission constituted harmless error.
Allstate admitted liability for the automobile accident in which Ruben Flores was injured. A review of the transcript reveals that Allstate placed great emphasis upon Ruben Flores's alleged fraudulent acts. Allstate's рrimary strategy at trial was to obtain a verdict voiding the UM coverage. The jury knew that its verdict finding fraud would cause Ruben Flores to have no insurance coverage and to receive no payment from Allstate on the UM claim. Thus, even though the jury was told to resolve the remaining damages issues, it was left with the impression that these issues were rather hypothetical. The jury did not apportion damages when it answered the seatbelt issues; it declared *174 that 100% of Ruben Flores's damagеs was caused by his failure to wear a seatbelt. Even though many of Mr. Flores's injuries could be attributed to his failure to wear а seatbelt, this apportionment seems unusual.
It is not inconceivable that on retrial of the UM claim, Ruben Flores cоuld testify in a manner that made the questioned PIP claims admissible for some limited purpose. See Mendez v. State,
We therefore reverse and remand for a new trial.
ALTENBERND,[1] J., and SCHEB, JOHN M., Senior Judge, concur.
NOTES
Notes
[1] Judge Altenbernd has been substituted for Judge Campbell, who was on the original Flores panel.