Mizrahi v. Provident Life & Accident Insurance Co.

748 So. 2d 1059, 1999 Fla. App. LEXIS 16828, 1999 WL 1143743

Opinion

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.