Booker v. Allstate Insurance Co.

574 So. 2d 1128, 1991 Fla. App. LEXIS 273, 1991 WL 3580

• Court: District Court of Appeal of Florida
• Decided: January 18, 1991
• Docket: No. 90-00833
• Status: Published

Opinion

PER CURIAM.

The appellant, the plaintiff in a suit claiming personal injury protection (PIP) benefits under her mother’s automobile insurance policy, appeals from an adverse final judgment following a jury verdict which found that the plaintiff materially failed to cooperate with the appellee, the insurer, resulting in substantial prejudice to the appellee. We reverse.

We find error in one of the three issues raised by the appellant concerning the conduct of the trial. The trial judge gave the jury the following instruction:

You are instructed the plaintiff (Pamela Booker) was under no obligation to make a claim for personal injury protection benefits. Under Florida law, Pamela Booker has the option of waiving benefits available from a personal injury protection policy and collecting the entire amount from the negligent party.

The foregoing instruction is a correct statement of the law, but it had no relevance to the issues tried in this case. We agree with the appellant that the giving of this instruction, under the facts of this case, could have misled the jury or prejudiced the appellant’s right to a fair trial. See American National Bank v. Norris, 368 So.2d 897 (Fla. 1st DCA), cert. denied, 378 So.2d 342 (Fla.1979).

Reversed and remanded for a new trial.

DANAHY, A.C.J., and PARKER and PATTERSON, JJ., concur.