Filing # 83729736 E-Filed 01/22/2019 05:25:47 PM
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`IN THE CIRCUIT COURT OF THE 17TH
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`JUDICIAL CIRCUIT IN AND FOR
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`BROWARD COUNTY, FLORIDA.
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`CIVIL DIVISION
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`CASE No. CACE— l 6-014730 Div. 18
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`CARL HONEYGHAN,
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`Plaintiff,
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`V.
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`CONTINENTAL CASUALTY COMPANY,
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`a foreign insurer,
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`Defendant(s).
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`/
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`DEFENDANT’S MOTION FOR RECONSIDERATION
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`COMES NOW, Defendant, Continental Casualty Company (“CCC”), by and through its
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`undersigned counsel, and pursuant to the inherent and discretionary power of this Court, hereby
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`moves this Court to reconsider and reverse this Court’s January 21, 2019 Order denying
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`Plaintiffs Motion for Partial Summary Judgment, and in support of this motion states as follows:
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`1.
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`2.
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`This is a personal injury action arising out of a car motor vehicle accident.
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`Defendant filed its Motion for Partial Summary Judgment on Plaintiff’ s Claim for
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`Past Medical Expenses on January 3, 2019. See Exhibit A.
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`3.
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`On January 16, 2019, Defendant filed its Motion for Special Set Hearing. See
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`Exhibit B.
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`4.
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`This Court considered the Motion for Special Set Hearing sua Sponte and filed its
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`Order Denying Motion for Special Set Hearing on January 21, 2019. See Exhibit C.
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`*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 1/22/2019 5:25:47 PM.****
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`
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`IN THE CIRCUIT COURT OF THE 17TH
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`JUDICIAL CIRCUIT IN AND FOR
`
`BROWARD COUNTY, FLORIDA.
`
`CIVIL DIVISION
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`CASE No. CACE— l 6-014730 Div. 18
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`CARL HONEYGHAN,
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`Plaintiff,
`
`V.
`
`CONTINENTAL CASUALTY COMPANY,
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`a foreign insurer,
`
`Defendant(s).
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`/
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`DEFENDANT’S MOTION FOR RECONSIDERATION
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`COMES NOW, Defendant, Continental Casualty Company (“CCC”), by and through its
`
`undersigned counsel, and pursuant to the inherent and discretionary power of this Court, hereby
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`moves this Court to reconsider and reverse this Court’s January 21, 2019 Order denying
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`Plaintiffs Motion for Partial Summary Judgment, and in support of this motion states as follows:
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`1.
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`2.
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`This is a personal injury action arising out of a car motor vehicle accident.
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`Defendant filed its Motion for Partial Summary Judgment on Plaintiff’ s Claim for
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`Past Medical Expenses on January 3, 2019. See Exhibit A.
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`3.
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`On January 16, 2019, Defendant filed its Motion for Special Set Hearing. See
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`Exhibit B.
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`4.
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`This Court considered the Motion for Special Set Hearing sua Sponte and filed its
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`Order Denying Motion for Special Set Hearing on January 21, 2019. See Exhibit C.
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`*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 1/22/2019 5:25:47 PM.****
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`5.
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`In the order, the Court stated that the Defendant’s motion was denied because it
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`“was not timely filed in accordance with A0 2018-62-Civ and paragraph VII A. 1. of the
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`Uniform Trial Court.” Id.
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`6.
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`However,
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`the July 23, 2018 Order Re-Setting Trial provided: “The pretrial
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`procedures contained in the original trial order shall remain in effect and all time limits
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`should be adjusted to the new trial date.” See Exhibit D.
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`7.
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`The undersigned was of the Belief that the pretrial procedures which control the
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`timeliness of filings in this case can be found in the Uniform Trial Order dated January 10, 2017.
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`8.
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`That Uniform Trial Order states the following: “VII. NO LATER THAN TEN
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`(10) DAYS prior to the trial period set forth above the following shall be completed or heard by
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`the Court:
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`...All pretrial motions...” “VIII. MOTIONS FOR SUMMARY JUDGMENT will
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`NOT be heard at the calendar call, pretrial conference or at the time of trial.”
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`9.
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`The Defendant’s motion was filed more than 10 days before the Trial period as
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`required by the January 10, 2017 Uniform Trial Order.
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`WHEREFORE Defendant, CONTINENTAL CASUALTY COMPANY,
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`respectfully
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`requests that the Court (a) grant Defendant’s Motion for Reconsideration and (b) reverse this
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`Court’s January 21, 2019 Order denying Defendant’s Motion for Partial Summary Judgment on
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`Plaintiff’s Claim for Past Medical Expenses and for any other relief this Honorable Court deems
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`just and proper.
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`CERTIFICATE OF SERVICE
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`WE HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via the
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`Florida Courts E-filing Portal this 22nd day of January, 2019 to Henry Seiden, Esq., Seiden Law,
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`6274 Linton Blvd, Ste 103, Delray Beach, FL 33484, (561) 833-8988, service iiiseidcnlawiirmcom;
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`
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`
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`Michael Cecere , Esq. Cecere Santana, P.A., 13680 Northwest 5th Street , Suite 230, Sunrise, FL
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`33325-6234 (954) 653-9969 \z’lCecere {éECecereSantanacom and niarriccioQéZeeceresantana.oom.
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`KUBICKI DRAPER
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`1 East Broward Boulevard
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`Wells Fargo Tower— Suite 1600
`Ft. Lauderdale, Florida 33301
`Direct Line: (954) 713-2413
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`M'c-kd{{l§?,l<uhickidra emom
`BY: /s/ Michael J Carney
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`
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`MICHAEL J. CARNEY, ESQ
`Florida Bar No.: 44326
`
`Blake H. Fiery
`Florida Bar 68758
`
`bhi‘régflikubiekidrapercom
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`
`
`Filing # 82828753 E-Filed 01/03/2019 04:56:50 PM
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`IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT
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`IN AND FOR BROWARD COUNTY, FLORIDA
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`Case N0.: CACE-16-014730
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`CARL HONEYGHAN
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`Plaintiff(s)
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`V.
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`MICHAEL J. WELT,
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`CONTINENTAL CASUALTY COMPANY,
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`STATE FARM MUTUAL
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`AUTOMOBILE INSURANCE COMPANY
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`Defendant(s)
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`/
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`DEFENDANT. CCC’S MOTION FOR SUMMARY JUDGMENT ON
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`PLAINTIFF’S CLAIM FOR PAST MEDICAL EXPENSES
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`COMES NOW, the Defendant, Continental Casualty Company ("CCC"), by
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`and through undersigned counsel, and herein files its Motion for Summary Judgment
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`on Plaintiff s Claim for Past Medical Damages, stating as follows:
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`Introduction, Factual Background, and Relief Reguested
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`A.
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`Overview of the Issue.
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`Plaintiff has filed this Uninsured Motorist (“UM”) lawsuit against CCC,
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`seeking to obtain UM benefits under a policy of insurance issued to Plaintiff’s
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`employer, Colony Shiny Serenity LLC in Sunrise (“The Colony”) arising from a rear—
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`end motor vehicle accident occurring on April 30, 2015, while he was in the course
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`Exhibit A
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`and scope of his employment. Plaintiff’s vehicle sustained little to no damage in the
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`accident, although he claims to have suffered neck and back injuries, for which he
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`underwent injections, a lumbar laminectomy and a cervical fusion. The bulk of
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`Plaintiff’s medical expenses, which total almost $270,000.00, relate to bills arising
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`out of procedures performed on Plaintiff” 5 back and neck by Dr. Thomas Roush at
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`Deerfield Beach Outpatient Surgery Center (hereinafter “DBOSC”). Notwithstanding
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`that both Dr. Roush and DBOSC have testified that they accept and treat patient’s
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`under worker’s compensation, both treated Plaintiff under Letters of Protection
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`(“LOPs”).
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`Broadly speaking, at issue in this summary judgment motion is the interplay
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`between an injured employee’s obligation, where possible, to obtain payment of his
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`medical bills through workers’ compensation law, and the effect of his failure to do
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`so on his ability to seek payment for the exact same expenses as part of his UM case.
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`Boiled down to its most basic level, the novel question to be answered by the
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`Court is whether a plaintiff in a UM case, who is injured in the course and scope of
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`his employment, can (either purposely or otherwise) fail
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`to present evidence
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`necessary to establish entitlement to benefits during a workers’ compensation trial
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`and then—after his claim for benefits is denied due entirely to his failure to present
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`evidence that his medical bills were medically necessary and incurred as a result of
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`an injury from the motor vehicle accident— turn around in a UM trial, and present the
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`very evidence that he failed to present in the workers’ compensation trial, in order to
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`obtain payment of his bills under the LOPs in the UM case. CCC respectfully
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`submits that, both as a matter of fairness and as a matter of law, the answer to the
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`question is no.
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`To conclude otherwise, essentially allows a plaintiff to manipulate the court
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`system by failing to present necessary evidence to obtain benefits under workers’
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`compensation law so that—as Plaintiff is currently doing here—he can then seek full
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`payment of his medical bills under the LOPs without any set off for workers’
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`compensation benefits paid. As will be established below, neither the Florida UM
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`Statute, CCC’s insurance policy, nor Florida law permit this result. Therefore, CCC
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`respectfully requests that the Court grant its motion for summary judgment on
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`Plaintiff” s claim for past medical expenses and preclude Plaintiff from being able to
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`assert at trial that his past medical expenses were medically necessary and related to
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`the April 30, 2015 accident.1
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`1Without presenting such evidence in his UM case, Plaintiff cannot meet his
`burden of proof to prove entitlement to past medical expenses. E State Farm
`Mut. Auto. Ins. Co. v. Bowling, 81 So. 3d 538, 540 (Fla. 2d DCA 2012)
`(explaining that a plaintiff seeking UM coverage must demonstrate that his or her
`medical expenses are reasonable and necessary); USAA Cas. Ins. Co. v. Shelton,
`932 So. 2d 605, 608 (Fla. 2d DCA 2006) (recognizing that in a UM claim, just as
`he would in a suit against the tortfeasor, the plaintiff bears the entire burden to
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`3
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`B.
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`Facts Upon Which CCC’s Motion is Based.
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`1.
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`On August 16, 2016, Plaintiff filed a Complaint seeking UM benefits
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`following a rear-end motor vehicle accident occurring on April 30, 2015. [See copy
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`of Plaintiff‘s Complaint, attached as Exhibit “A ”]. At the time of the accident,
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`Plaintiff was operating a vehicle in the course and scope of his employment at The
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`Colony, which operates an assisted living facility in Sunrise, Florida. Plaintiff did not
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`immediately treat under workers' compensation for the April 30, 2015 accident.
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`2.
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`After treating with doctors of his own choosing for almost two years
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`under LOPs, Plaintiff filed a Petition for Workers‘ Compensation Benefits ("PFB")
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`on March 31, 2017, seeking payment for all the treatment rendered under LOPs.
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`Plaintiff claimed a total of $220,817.22 in past medical expenses for injuries
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`sustained while in the course and scope of his employment. [See copy of the PFB,
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`attached as "Exhibit B "].
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`3.
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`Plaintiffs workers' compensation claim was litigated over the course of
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`2017, culminating in a Final Merits Hearing on January 18, 2018. Following the
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`Final Merits Hearing, Judge of Compensation Claims (“JCC”), Iliana Forte, issued
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`prove that his claimed damages are reasonable, necessary, and related to the
`accident); m m East West Karate Ass’n, Inc. v. Riguelme, 638 So. 2d 604, 605
`(Fla. 4th DCA 1994) (stating that in a personal injury case, the plaintiff has the
`burden at trial to prove the reasonableness and necessity of medical expenses).
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`4
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`a Final Compensation Order on January 24, 2018. [See copy of the 1/18/18 Final
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`Compensation Order attached as "Exhibit C "].
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`4.
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`In the Final Compensation Order, the JCC finds that the accident
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`occurred while Plaintiff was in the course and scope of his employment and that the
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`accident was timely reported, so compensability was not an issue. [See EX. C at p. 4].
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`5 .
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`The JCC recognized, however, that the medical bills incurred were with
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`unauthorized providers, and that the greater weight of the evidence supported the
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`Employer/Carrier's ("E/C") position that Plaintiff "did not avail himself of treatment
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`under worker's compensation in order to control his selection of physician." [See EX.
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`C at p. 4]. The JCC further noted that Plaintiff was represented by his current counsel
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`in the UM case since May 7, 2015, "before he sought any unauthorized medical care
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`in [the worker's compensation] matter." [See EX. C at p. 5].
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`6.
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`In order to be compensated for his LOP bills in the workers'
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`compensation case, Plaintiff was required to "establish by medical records or
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`testimony by a doctor that the medical treatment sought is compensable and medically
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`necessary." [See Ex. C at p. 5]. Plaintiff failed to do so during the Final Merits
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`Hearing and, as a result, the JCC granted the equivalent of a directed verdict in a civil
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`proceeding and denied Plaintiff’ s claim for payment of his medical bills on grounds
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`that there was no evidence presented that the bills attached to the PFB were medically
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`necessary and incurred as a result of any injury resulting from April 30, 2015
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`accident. [See EX. C at p. 5].
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`7.
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`Following the issuance of the Final Compensation Order, CCC moved
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`to amend its Answer and Affirmative Defenses in the UM case in order to assert
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`collateral estoppel and judicial estoppel as affirmative defenses, contending that
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`Plaintiff is barred from obtaining payment of those medical bills that were previously
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`addressed in the workers’ compensation final hearing and is collaterally andjudicially
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`estopped from seeking such damages in the UM lawsuit. [See Motion to Amend
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`Affirmative Defenses, attached hereto as "Exhibit D"]. The motion to amend was
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`granted on April 9, 2018. [See Order on Motion to Amend Affirmative Defenses,
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`attached hereto as "Exhibit E "].
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`8.
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`Also following the issuance of the Final Compensation Order in the
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`workers‘ compensation case, CCC filed a Motion to Strike Plaintiffs Claim for Past
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`Medical Expenses in the UM case based on the JCC’s ruling, which denied Plaintiffs
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`claim for workers‘ compensation benefits based on a finding that Plaintiff failed to
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`meet his burden of proof during the Final Merits Hearing by failing to present any
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`evidence that his medical bills were medically necessary and incurred as a result of
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`an injury occurring in the April 30, 2015 accident. [See Motion to Strike Plaintiff’s
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`Claim for Past Medical Expenses, attached hereto as “Exhibit F’].
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`9.
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`Based on this finding in the JCC's Order, CCC argued that, as a matter
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`of law, both the Florida UM Statute and the doctrines of collateral and judicial
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`estoppel preclude Plaintiff from asking a jury in the UM case to award Plaintiff his
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`past medical expenses. [See Exh. F]. It argued that it would be completely inequitable
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`and contrary to the Florida UM Statute to allow Plaintiff to seek payment of past
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`medical expenses under LOPs in his UM case when these medical bills could have
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`and should been paid through workers' compensation had he presented evidence in
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`the workers' compensation proceeding that the bills were medically necessary. [See
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`Exh. F]. CCC further argued that, as a matter of law, Plaintiff should not be permitted
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`to not present evidence in one proceeding in order to defeat what would have been
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`a valid set off claim for workers' compensation benefits and then turn around in the
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`UM case and seek to establish and present evidence of exactly what he failed to prove
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`in the workers' compensation proceeding. [See Exh. F].
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`10.
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`Judge Garcia-Wood, who previously presided over this case, held a
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`lengthy hearing on CCC's Motion to Strike Plaintiff‘s Claim for Past Medical
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`Expenses on April 9, 2018, and, during the hearing, seemed to acknowledge CCC's
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`position, and in particular, the impropriety of allowing Plaintiff to present evidence
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`in the UM trial regarding the medical necessity of Plaintiff‘s treatment after failing
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`to present this same evidence during his workers' compensation trial, which results
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`in CCC being unable to assert what should have been a sizeable set—off for workers'
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`compensation benefits. [See copy of the April 9, 2018 hearing transcript, attached
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`hereto as “Exhibit G”]. At the end of the April 9, 2018 hearing, the Court reserved
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`ruling. [See Exh. G, pg. 67].
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`11.
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`On June 8, 2018, this Court entered an Order Denying Defendant's
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`Motion to Strike Plaintiffs Claim for Past Medical Expenses, which denied CCC's
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`motion not on the merits, but rather based on a conclusion that the CCC had
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`essentially brought its motion under the wrong Florida Rule of Civil Procedure, by
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`pursuing its request for relief as a motion to strike. [See copy of June 8, 2018 Order
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`Denying Defendant’s Motion to Strike Plaintiff’ s Claim for Past Medical Damages,
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`attached as “Exhibit H” and copy of June 29, 2018 Order Denying Defendant’s
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`Motion for Reconsideration, attached as “Exhibit 1”].
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`12.
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`Because CCC continues to believe that its legal position is correct, as a
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`matter of law, and that Plaintiff is precluded under the Florida UM statute and the
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`doctrines of collateral and/or judicial estoppel from taking an inconsistent position
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`that is contrary to the position taken n the workers’ compensation proceeding, it is
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`herein moving for summary judgment based on its collateral and/or judicial estoppel
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`affirmative defense and, in so doing, is asking this Court to conclude that Plaintiff is
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`precluded from asserting at trial that his past medical expenses were medically
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`necessary and related to the April 30, 2015 accident.
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`Legal Argument
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`A.
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`Both the Florida UM Statute and, Consistent Therewith, CCC’S
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`Insurance Policy Recognize that UM Coverage is Intended to Be
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`Excess Coverage, Over and Above, the Benefits Available Under
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`Workers’ Compensation Law and That a Plaintiff in a UM Case
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`Cannot Seek Payment For an Element of Damage that is Available
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`Under Workers’ Compensation Law.
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`Under PS. § 627.727(l), UM coverage “shall be over and above, but shall not
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`duplicate, the benefits available to an insured under any workers' compensation law,
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`personal injury protection benefits, disability benefits law, or similar law. .
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`. and such
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`coverage shall cover the difference, if any, between the sum of such benefits and the
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`damages sustained, up to the maximum amount of such coverage provided under this
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`section.”
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`Given the explicit statutory language in the Florida UM Statute that UM
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`coverage is “over and above” the “benefits available” under various types of
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`coverage, including workers compensation and the tortfeasor’s liability coverage, it
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`is well settled that UM coverage is considered “excess coverage” that is over-and-
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`above what is available to the insured from these other types of coverage. SE Egg
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`Neffv. Properg & Cas. Ins. Co. ofHartford, 133 So. 3d 530, 533 (Fla. 2d DCA 2013)
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`(citing to Allstate Ins. Co. V. Morales, 533 So. 2d 952, 953 (Fla. 5th DCA 1988) and
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`explaining that the purpose behind UM coverage is to compensate the plaintiff for a
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`deficiency in the tortfeasor's personal liability insurance coverage); Allstate Ins. Co.
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`V. Williams, 826 So. 2d 1017, 1018 (Fla. 3d DCA 2001) (holding that UM coverage
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`is excess coverage and pays over and above the tortfeasor‘s liability coverage should
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`it be inadequate to fully compensate the injured insured); State Farm Mut. Auto. Ins.
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`Co. v. Moher, 734 So. 2d 1088 (Fla. 2d DCA 1999)(quoting Government Employees
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`Ins. Co. v. Brewton, 538 So.2d 1375, 1376 (Fla. 4th DCA 1989) that “UM coverage
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`is excess coverage ‘and pays over and above the tortfeasor's liability coverage should
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`said coverage be inadequate to fully compensate the injured insured.’”).
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`In Lackore v. Hartford Acc. & Indem. Co., 390 So. 2d 486, 487 (Fla. 4th DCA
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`1980), the Fourth District explained that pursuant to this portion of PS § 627.727(1)
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`“an insured is not entitled to be twice compensated for the same element of damage,
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`such as payment for a medical bill or for lost wages, just because he has more than
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`one type of coverage for such element of damage.” The court clarified that so long
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`as a UM insured is not seeking to be compensated in a UM case for the same element
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`of damage, such as payment for a medical bill that is available under another
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`coverage, he is entitled to pursue his UM claim. Lackore was approved in Hartford
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`10
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`Ace. and Indem. Co. V. Lackore, 408 So. 2d 1040, 1042 (Fla. 1982) and the Florida
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`Supreme Court recognized that the reason that a tortfeasor’s liability proceeds are
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`setoff from a UM award is because they are duplicative and are meant to compensate
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`the plaintiff for the same element of damages, which is impermissible under the
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`Florida UM Statute.
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`Consistent with these concepts, CCC’s policy provides in the Florida
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`Uninsured Motorists Coverage — Nonstacked Endorsement as follows:
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`D.
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`Limits of Insurance:
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`(4) We will not pay for any element of "loss" if a person is entitled to
`receive payment for the same element of "loss" under any workers'
`compensation, disability benefits, or similar law.
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`[copy of policy, attached hereto “Exhibit J”].
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`The obvious intent of both the Florida UM Statute and, consistent therewith,
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`CCC’s policy is to clarify that in a scenario where benefits for certain elements of
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`damage—such as specific medical bills—are available to a plaintiff under workers’
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`compensation law, he cannot seek recovery of the same element of loss in a UM
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`claim.2 In other words, a plaintiff cannot successfully accomplish what Plaintiff is
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`2This idea is comparable to the idea that has been accepted by the Florida
`courts that a plaintiff cannot create a UM claim by settling with an insured
`tortfeasor for less than the amount of the plaintiff‘s damages where the tortfeasor's
`total policy limits could be used to cover those damages. E Allstate Ins. Co. v.
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`Rush, 777 So. 2d 1027, 1033 (Fla. 4th DCA 2000). By analogy, a plaintiff cannot
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`11
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`trying to here, which is to forego or fail to obtain payment of his medical bills through
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`workers’ compensation law in order to collect them in a UM case under LOPs.
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`Here, although Plaintiff wants to simply advise the Court that the JCC has
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`denied his claim for workers ’ compensation benefits and, as a result, take the position
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`in the UM case that no such benefits are available in this case under workers’
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`compensation law, his position is unsound when considering the specific reason why
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`Plaintiff” s claim for workers’ compensation benefits was denied. That is, this is not
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`a situation where the JCC found that the accident was not compensable or that
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`benefits are unavailable to pay Plaintiff’s medical bills based on something
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`unattributable to Plaintiff. Were this the case, then Plaintiffwould be correct to argue
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`that no benefits are available3 under workers’ compensation law and, as a result, he
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`can seek damages for his medical bills in the UM case.
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`However, in this case, and as made undeniably clear in the JCC’s January 24,
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`2018 order, which is attached hereto as Exhibit “C,” the reason Plaintiff was denied
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`manufacture a UM claim by failing to obtain payment of his medical expenses
`under workers’ compensation law and instead seeking payment as part of a UM
`claim.
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`3In United Services Automobile Ass’n v. Phillips, 740 So. 2d 1205, 1208—09
`(Fla. 2d DCA 1999), the court discussed the meaning of the phrase “benefits
`available” in §627.727(l) and explained that “benefits available” equates to a
`“legally enforceable right to recover which arises upon the occurrence resulting in
`the insured's injury.”
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`12
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`
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`the opportunity to have his past medical bills—which are the identical medical
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`expenses sought in the UM case— paid through workers’ compensation is because he
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`failed to meet his burden of proof to show that the his bills were medically necessary
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`and incurred as a result of an injury occurring in the April 30, 2015 accident. In other
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`words, had Plaintiff met his burden of proof to establish the medical necessity of his
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`medical bills in relation to the April 30, 2015 accident, they would have been paid
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`through workers’ compensation. E Chase V. Henkel & McCoy, 562 So. 2d 83 l, 832
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`(Fla. 1 st DCA 1990) (recognizing that pursuant to§ 440. 13(2), Fla. Stat, the employer
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`is required to furnish the claimant medically necessary treatment, and should such
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`treatment not be provided after request, the claimant may seek such treatment at the
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`expense of the employer, the reasonableness and necessity to be approved by the
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`JCC). The fact that they were not is not because benefits were unavailable under
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`workers’ compensation law, but rather because Plaintiff failed to meet his burden of
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`proof at the Merits Hearing.
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`Therefore, because Plaintiff’s attempt to recover his past medical expenses in
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`this UM case duplicates the benefits available to him under workers' compensation
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`law, he is precluded, under both the Florida UM Statute and CCC’s policy, from
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`recovering this element of damage in his UM case.
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`13
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`B.
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`Plaintiff is Estopped From Taking An Inconsistent Position In the
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`UM Case That
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`is Contrary to the Workers’ Compensation
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`Proceeding.
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`1.
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`Collateral Estoppel.
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`Collateral estoppel, also referred to as issue preclusion, serves to bar
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`relitigation of an issue that has already been determined by a valid final judgment.
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`E Stogniew V. McQueen, 656 So. 2d 917, 919 (Fla. 1995). As opposed to res
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`judicata, collateral estoppel applies "where two causes of action are different, in
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`which case the judgment in the first suit only estops the parties from litigating in the
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`second suit issues-that is to say points and questions-common to both causes of action
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`and which were actually adjudicated in the prior litigation." E Q. (citing Gordon V.
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`Gordon, 59 So. 2d 40, 44 (Fla), cert. denied, 344 US. 878 (1952)).
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`Five elements must be met for collateral estoppel to be properly raised: (1) the
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`identical issues were presented in a prior proceeding; (2) there was a full and fair
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`opportunity to litigate the issues in the prior proceeding; (3) the issues in the prior
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`litigation were a critical and necessary part of the prior determination; (4) the parties
`
`in the two proceedings were identical; and (5) the issues were actually litigated in the
`
`prior proceeding. & Pearce v. Sandler, 219 So. 3d 961, 965 (Fla. 3d DCA 2017).
`
`When all five elements have been satisfied, "[c]ollateral estoppel may be applied to
`
`bar subsequent causes of action even where the second claim requires proof of
`
`14
`
`
`
`different essential facts than those required to be proved in the initial suit." Sfi fl.
`
`(citing Larimore V. State, 76 So. 3d 1121, 1123 (Fla. lst DCA 2012)).
`
`Where an administrative agency acts in a judicial capacity and resolves
`
`disputed fact issues, when the parties have had an adequate opportunity to litigate,
`
`collateral estoppel applies. & U.S. Fidelity & Guar. Co. V. Odoms, 444 So. 2d 78,
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`80 (Fla. 5th DCA 1984). Furthermore, an "adjudication and award of compensation
`
`boards or commissions, as well as the judgments of courts are generally held to be
`
`conclusive on the parties as to matters and issues involved within their jurisdiction."
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`E Q. at 81 (citing Yovan v. Burdine's, 81 So. 2d 555, 557 (Fla. 1955)). Therefore,
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`it is well-established that a decision made by a workers' compensation court is
`
`binding on the parties to that suit. E Cutcher v. Walker, 455 So. 2d 1335 (Fla. lst
`
`DCA 1984) (finding in workers' compensation action that husband was not acting in
`
`course and scope of employment at the time of the accident is a conclusive finding
`
`in a subsequent tort lawsuit by wife). Successive parties can employ an adjudication
`
`by a workers' compensation court defensively under collateral estoppel, so long as
`
`there is mutuality of the parties.
`
`Under Florida law, mutuality of parties is generally required for collateral
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`estoppel to apply, i.e., the same parties are actually involved in both cases. E
`
`Stogniew, 656 So. 2d at 9 l 9. Even a non-party to prior litigation, however, can assert
`
`15
`
`
`
`collateral estoppel defensively in subsequent litigation, so long as there is privity with
`
`one of the prior litigants. E Southeastern Fidelity Ins. Co. V. Rice, 515 So. 2d 240,
`
`242 (Fla. 4th DCA 1987) ("Collateral estoppel
`
`is a complete defense to the
`
`relitigation of an issue when there is an identity of parties or their privies, an identity
`
`
`of issues, and an actual litigation thereof in the first suit"); see also Progressive Am.
`
`Ins. Co. V. McKinnie, 513 So. 2d 748, 749 (Fla. 4th DCA 1987) ("[A] careful
`
`statement of the identity of parties element .
`
`.
`
`. includes, alternatively, ones in privity
`
`with actual parties. .
`
`. .").
`
`In the most basic sense, privity exists when the "privy is one who is identified
`
`
`with the litigant in interest." E McKinnie, 513 So. 2d at 749; see alfl Rice, 515 So.
`
`2d at 242 ("In its broadest sense, privity is defined as ". .
`
`. such an identification of
`
`interest of one person with another as to represent the same legal right.
`
`V"
`
`
`); Jones v.
`
`Bradley, 366 So. 2d 1266, 1267 (Fla.4th DCA 1979) (". .
`
`. and privies in this context
`
`means persons identified with a litigant in interest").
`
`To be in privity with a prior party, "one must have an interest in the action such
`
`that she will be bound by the final judgment as if she were a party." & Pearce, 219
`
`
`So. 3d at 965; Atria v. Hodor, 790 So. 2d 1229, 1230 (Fla. 4th DCA 2001); see alfl
`
`Massey v. David, 831 So. 2d 226, 232 (Fla. 1st DCA 2002) ("Identity of parties and
`
`mutuality do not exist unless the same parties or their privies participated in prior
`
`16
`
`
`
`litigation that eventuated in a judgment by which they are mutually bound"). One
`
`cannot, therefore, use collateral estoppel if its interest is antagonistic to the parties in
`
`the prior action. E McKinnie, 513 So. 2d at 749.
`
`When an insurance carrier stands in the shoes of its insured, privity is present.
`
`
`E Rice, 515 So. 2d at 242. In Rice, the parties entered into a contract for the sale of
`
`a Rolls Royce. E. at 241. Between the time that payment was made and the time the
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`vehicle delivered, an accident occurred, which badly damaged the vehicle. & Q. at
`
`241. As a result, Occhuizzo never delivered the vehicle to Rice. E. Rice brought suit
`
`against Occhuizzo, Occhuizzo a/k/a Auto Warehouse, and Occhuizzo d/b/a Las Olas
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`Auto Service. At trial, Rice received a directed verdict against the three defendants
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`in the amount of $44,500.
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`After obtaining a judgment in his favor, Rice brought a declaratory action
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`against Southeastern as the insurer of Occhuizzo d/b/a Las Olas Auto Service. E. at
`
`242. Southeastern admitted that an insurance policy was in place, but denied coverage
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`and liability on the basis of an exclusion in its policy for vehicles owned by, rented
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`to, or held for sale by the named insured. Q. As Occhuizzo was determined to be the
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`owner of the vehicle in the prior litigation, Southeastern argued that Rice was barred
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`from relitigating the issue to create coverage when an exclusion existed. E Q. The
`
`trial court denied Southeastern's motion for summary judgment asserting collateral
`
`17
`
`
`
`estoppel, and the case went to trial where judgment was entered against Southeastern.
`
`E Q. The Fourth District ultimately held that all the requirements for collateral
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`estoppel had been satisfied and reversed the judgment.
`
`In discus sing the privity element, the Fourth District held that privity ofparties
`
`may be identified by identification of interest and when one party is bound by a final
`
`judgment as if it were a party to the lawsuit. E Q. As Southeastern was Occhuizzo's
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`insured, privity existed. 1g.
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`More recently, the Second District outlined some ways in which a non—party
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`may be in privity with a party in a prior action: (1) the nonparty agreed to be bound
`
`by the litigation of others; (2) a substantive legal relationship existed between the
`
`person to be bound and a party to the judgment; (3) the nonparty was adequately
`
`represented by someone who was a party to the suit; (4) the nonparty assumed control
`
`over the litigation in which the judgment was issued; (5) a party attempted to
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`relitigate issues through a proxy; or (6) a statutory scheme foreclosed successive
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`litigation by nonlitigants. @ Thews v. Wal-Mart Stores East LP, 210 So. 3d 723,
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`725 (F1a. 2d DCA 2017) (citing Griswold v. Cty. of Hillsborough, 598 F. 3d 1289,
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`1292 (11th Cir. 2010)).
`
`In this case, Defendant is in privity with the Employer/Carrier ("E/C") in the
`
`workers' compensation litigation. As stated above, a UIM carrier is bound by a
`
`18
`
`
`
`determination and/or payment under a workers' compensation policy pursuant to
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`FLA. STAT. § 627.727 (1). Therefore Defendant satisfies the requirement of privity
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`by "hav[ing] an interest in the action such that [it] will be bound by the final judgment
`
`as if [it] were a party."
`
`In addition to being actually bound by a determination of the workers'
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`compensation court, Defendant is in privity with the E/C due to being identified in
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`interest with the E/C. E McKinnie, 513 So. 2d at 749. CCC is in a similar position
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`as the defendant-carrier in Rice, because there is direct privity with an insured whose
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`coverage is contemplated in both this case and the workers' compensation action.
`
`
`Moreover, privity is established as noted in Thews because there is a
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`"substantive legal relationship" between CCC and the E/C by virtue of the employer's
`
`
`insurance policies. & Thews, 210 So. 3d at 725. Since privity is established, and
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`the medical necessity of Plaintiffs past medical treatment has already been fully
`
`litigated and determined in the workers' compensation action-and found not to be
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`medically necessary and incurred as a result of the April 30, 2015 accident—- Plaintiff
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`is precluded from now asking the jury in this UIM case to award his past medical
`
`expenses based on a finding that the same, exact bills were medically necessary and
`
`incurred as a result of the accident. To allow Plaintiff to go before a jury and prove
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`medical necessity in the UIM case-after he failed to do so in the workers'
`
`19
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`
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`compensation case-— would essentially permit Plaintiffto intentionally circumvent the
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`statutory scheme created under the Florida UM Statute, which makes UIM excess to
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`workers' compensation in order to obtain full payments under the LOPs. Such a result
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`cannot and should not be permitted.
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`Accordingly, Plaintiffs claim for past medical expenses should be stricken
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`based on a finding that he is collaterally estopped from asking the jury in the UIM
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`case to award the medical bills since these bills have now been found not to be
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`medically necessary and incurred as a result of the April 30, 2015 accident.
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`2.
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`Judicial Estoppel.
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`Moreover, CCC respectfully submits that—under the particular facts of this
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`case—principles ofjudicial estop
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