Opinion
No. 98-2399.
Opinion filed December 15, 1999.
An Appeal from the Circuit Court for Dade County, Robert P. Kaye, Judge; L.T. No. 96-19061.
Richard F. O'Brien, III, for appellant.
Shutts Bowen, Edmund T. Henry, III, and Stacey L. Goldberg, for appellee.
Before LEVY, GODERICH and GREEN, JJ.
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, 283 So.2d 36, 37 (Fla. 1973) (holding 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.