12 Fla. L. Weekly Supp. 1179a
Insurance — Personal injury protection — Notice of loss — Collateral estoppel — Insurer is collaterally estopped from relitigating defense of late notice in present case where issue was fully litigated and decided in favor of medical provider in prior suit involving bills presented to insurer stemming from same accident involving same insured and accrued at facility owned by same owner as facility in present case
TOTAL REHABILITATION CTR., A/A/O SANDRA LAVERDE SUAREZ, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE CO., Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 03-9103 SP 26 (02). August 23, 2005. Bronwyn C. Miller, Judge. Counsel: Dwayne Terry. Kevin Whitehead, Downs Brill Whitehead & Sage.
ORDER GRANTING PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S AFFIRMATIVE DEFENSE OF LATE NOTICE
THIS CAUSE, having come before the Court upon Plaintiff’s Motion to Strike Defendant’s Affirmative Defense of Late Notice and the court having heard argument of counsel, reviewed the procedural history and relevant legal authority, and having otherwise been fully advised in the premises, the Court hereby GRANTS Plaintiff’s motion on the following grounds:
Undisputed Facts:
1. This is a breach of contract action for personal injury protection (hereinafter “PIP”) benefits. The action arises out of an automobile accident that occurred on April 1, 2002. As a result of the accident, Sandra Laverde Suarez allegedly sustained injuries for which she received medical treatment rendered by Plaintiff, TOTAL REHABILITATION CENTER.
2. Plaintiff submitted bills incurred pursuant to said treatment to UNITED AUTOMOBILE INSURANCE CO. (hereinafter “UNITED”). UNITED did not pay the bills and Plaintiff filed suit alleging that UNITED breached its contract with Suarez for PIP benefits.
3. Ms. Laverde Suarez was also referred for diagnostic testing at Prosper Diagnostic Centers, and, as a result, incurred additional medical bills. UNITED failed to pay Prosper Diagnostic for any of Ms. Laverde Suarez’s bills. Thus, Prosper Diagnostic filed suit in Case Number 03-454 SP 26 (02), alleging breach of contract.
4. UNITED asserted as an affirmative defense in both cases the following: Claimant failed to provide written notice as soon as practicable to Defendant of the alleged loss/accident.
5. Both cases were set for trial. Case Number 03-454 SP 26 (02) (Prosper Diagnostic) proceeded to trial first.
6. At trial, the sole affirmative defense raised by UNITED was the failure of Plaintiff to provide UNITED with notice as soon as practicable. Among the issues submitted to the jury were as follows: “Whether Sandra Laverde failed to notify Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, as soon as was practicable.” The jury checked “No” on the verdict form.
7. At trial, Ms. Laverde Suarez testified that she informed her insurance agent in a timely fashion of the accident. The jury unequivocally accepted this contention, as it found that Ms. Laverde Suarez did not fail to notify UNITED as soon as was practicable.
Conclusions of Law
“Collateral estoppel, also known as estoppel by judgment, serves as a bar to relitigation of an issue which has already been determined by a valid judgment.” Weiss v. Courshon, 768 So. 2d 2, 4 (Fla. 3d DCA 2000); Stogniew v. McQueen, 656 So. 2d 917, 919 (Fla. 1995). The essential prerequisites to the application collateral estoppel are as follows: (1) the issue at stake must be identical to the one litigated in the prior proceeding; (2) the issue must have actually been litigated in the prior proceeding; (3) the determination of the issue in the prior proceeding must have been a critical and necessary part of the judgment in that action; and (4) the party against whom the earlier decision was asserted must have had a full and fair opportunity to litigate the issue in the earlier proceeding. See I.A. Durbin, Inc. v. Jefferson National Bank, 793 F. 2d 1541 (11th Cir. 1986). Collateral estoppel assigns a preclusive effect only to those issues, “fully litigated and determined in a contest which results in a final decision of a court of competent jurisdiction.” Weiss v. Courshon, 768 at 4; Mobil Oil Corp. v. Shevin, 654 So. 2d 372, 374 (Fla. 1977). Finally, collateral estoppel “applies to bar relitigation of issues raised in a first suit by way of a defense.” Weiss v. Courshon, 768 at 4; Carson v. Gibson, 638 So. 2d 79, 81 (Fla. 2d DCA 1994) (“The adverse resolution of the affirmative defenses in the first action created an estoppel by judgment in this case.”).
The first suit involved bills presented to UNITED, stemming from the same accident, involving the same insured, and accrued at facilities owned by the same owner as the facility involved in the instant case.1 The jury made a determination, based on the relevant facts presented by both parties to the litigation and the applicable law, that UNITED had not received late notice. The affirmative defense of late notice in the first suit was identical to the affirmative defense raised in the instant case. The issue of late notice was fully litigated in the prior trial and it was specifically submitted to the jury for its consideration. The jury finding on that issue was a necessary part of the final judgment in the case, since, had there been a jury finding of late notice and prejudice as a result thereof, a verdict would have been rendered in favor of UNITED. Clearly, UNITED had a full opportunity to litigate the issue in the prior proceeding, as it was a party to the litigation. Furthermore, Plaintiff in the instant case was in the process of introducing Ms. Laverde Suarez’s trial testimony from the first suit in its case-in-chief to defeat UNITED’s affirmative defense it raised its Motion to Dismiss Defendant’s Affirmative Defense on grounds of collateral estoppel.
A review of the transcript of Ms. Laverde Suarez’s testimony from the first suit reveals that she maintained she notified her insurance agent in a timely fashion. UNITED fully cross-examined Ms. Laverde Suarez regarding this issue. Yet, the jury evidently believed Ms. Laverde Suarez and rejected UNITED’s affirmative defense.
The purpose of collateral estoppel is to avoid multiple suits on identical claims between the same parties or parties in privity to one another. Brown v. Felsen, 442 U.S. 127, 99 S. Ct. 2205, 60 L. Ed. 2d (1979). To permit this issue to be relitigated would expose the parties to inconsistent verdicts and preclude judicial economy.
THEREFORE, UNITED is estopped from relitigating the affirmative defense of late notice.
Plaintiff’s Motion to Strike the Defendant’s Affirmative Defense of Late Notice is hereby GRANTED.
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1During argument on this issue, UNITED conceded that there was privity of the parties involved in the two lawsuits. Furthermore, “in its broadest sense, privity is defined as ‘mutual or successive relationships to the same right of property, or such an identification of interest of one person with another as to represent the same legal right.’ ” Southeastern Fidelity Insurance Co. v. Rice, 515 So. 2d 240 (Fla. 4th DCA 1987).
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