ST. PAUL MERCURY INSURANCE COMPANY, Appellant/Cross-Appellee, v. Linda COUCHER, etc., Appellee/Cross-Appellant, 837 So. 2d 483

ROUSE, R.K., Jr., Associate Judge. St. Paul Mercury Insurance Company (“St. Paul”) appeals an adverse $25,000 final judgment for uninsured motorist (UM) benefits entered after a jury trial. Linda Coucher, as Personal Representative of the Estate of Walter Luckner, cross appeals, complaining of the trial court’s rulings on evidentiary issues. Coucher is the daughter of decedent Walter Luckner and the personal representative of his estate.

After a car crash, which resulted in the death of both of her parents, she brought this action against the underinsured tortfeasor driver, Margaret Licht, for compensatory and punitive damages, and against St. Paul and other insurers alleged to provide UM coverage. The pleadings included St. Paul’s admission that its policy provided UM benefits to decedents in the amount of $50,000 per incident. St.

Paul’s pretrial compliance also specifically conceded that its UM policy afforded “coverage to Walter Luckner with policy limits of $25,000 per person.” The compliance further advised that Luck-ner’s estate would be entitled to those UM benefits, provided that the amount of loss “exceeds all other available liability insurance coverage.” (Emphasis supplied.) No other limitation with respect to St. Paul’s obligation to pay the UM benefits was stated. A settlement was reached with the other defendant insurers, and the case proceeded to trial against St. Paul and Licht. Both St.

Paul and Licht admitted that Licht caused the accident while intoxicated, and, two days before trial, Licht admitted that Coucher was entitled to recover punitive damages. Thus, the only remaining issues were the amount of compensatory damages and the amount of punitive damages. Immediately before trial began, St. Paul renewed its pretrial motions for bifurcation, which had sought one trial on compensatory damages and a separate trial on all punitive damages issues.

The trial court had denied those motions, but ordered that the case was to proceed to trial on the issues of compensatory damages and entitlement to punitive damages, followed by a separate consideration, by the same jury, to determine the amount of punitive damages. St. Paul contended that Licht’s admission of liability changed the posture of the case, and argued that the jury would be unfairly influenced to award excessive compensatory damages if it was provided any knowledge of the co-defendant tortfeasor’s intoxication.

The trial judge denied the renewed motion to bifurcate, and permitted the intoxication issue to be discussed on voir dire and in opening statements. Trial commenced, and the court read a statement of the case to the prospective jurors, which advised that St. Paul and Licht had admitted Licht’s liability, and that Licht was intoxicated at the time of the accident. Several prospective jurors responded negatively when questioned about their opinions of drunk driving, but none of them were empaneled.

Immediately after the first witness testified, Licht’s attorney announced outside the presence of the jury, that'the punitive damages claim had settled for $500. Contending that a new jury should be selected, St. Paul moved for mistrial, which was denied. Trial continued, and evidence was presented on the issue of compensatory damages. No evidence was admitted of any insurance other than that afforded by the St. Paul UM policy, and no mention was made of intoxication.

During closing arguments, Coucher’s trial counsel made one reference to the prior punitive damages aspect of the action, stating: “It ought not to be the prerogative of those that, coming from their own negligence, unexpectedly, needlessly, and senselessly steal the life of a loved one to set the price of this kind of horrible loss.” The court sustained St. Paul’s objection to this decidedly improper argument, but St. Paul did not move for mistrial or request a curative instruction.

Following closing arguments and the court’s instructions, including a cautionary instruction advising that the punitive damage claim had been settled and should not be considered, the jury returned its verdict finding $775,000 in compensatory damages. St. Paul’s timely motion for new trial was denied. St. Paul also filed a motion seeking a reduction of the verdict, raising for the first time the “other insurance” language of the policy. St.

Paul argued that this “other insurance” provision would limit Coucher’s recovery to the $200,000 she had received in UM benefits from Luckner’s Allstate Insurance Company policy, and, therefore, no judgment should be entered against it. Coucher responded that St. Paul waived that argument, and, in addition, that St. Paul had failed to prove that the insured had rejected “stacked” UM coverage. The trial court announced that it was rejecting St. Paul’s arguments; however, St. Paul moved for reconsideration, attaching to its unsworn motion what appeared to be a UM selection/rejection form signed by Luckner.

The trial court denied the motion for reconsideration, and entered judgment against St. Paul in the amount of its UM policy limits of $25,000. St. Paul contends that the trial court erred in entering judgment against it, because the “other insurance” language in the policy should have been applied to preclude recovery of any UM benefits. We disagree, and hold that St. Paul waived any application of the “other insurance” clause by failing to timely raise the issue in the trial court.

Generally, a defense which is not pled in the answer or affirmative defenses is waived, and may not be raised for the first time in a post-trial motion. See Fla. R. Civ. P. 1.110 and 1.140(h); see also Republic Nat’l Bank v. Araujo, 697 So.2d 164, 166 (Fla. 3d DCA 1997) (holding argument based on economic loss rule waived when raised for first time in post-trial motions). An affirmative defense is a defense which admits the cause of action, but avoids liability, in whole or in part, by alleging an excuse, justification, or other matter negating or limiting liability. See Henry P.

Trawick, Jr., Florida Practice & Procedure § 11-4, at 205 (2000 ed.)(citing Fla. E. Coast Ry. Co. v. Peters, 72 Fla. 311, 73 So. 151 (1916)). Ordinarily, an insurer’s defense based on an exclusion in the policy should be raised as an affirmative defense. See, e.g., Fla. Farm Bureau Gen. Ins. Co. v. Ins. Co. of N. Am., 763 So.2d 429, 432 (Fla. 5th DCA 2000) (“Policy exclusions are generally pled as affirmative defenses.”) (citing Peninsular Life Ins. Co. v. Hanratty, 281 So.2d 609 (Fla. 3d DCA 1973)).

The “other insurance” clause in this case is not a policy exclusion; its application does not result in a voiding or absence of coverage. Instead, when it applies, it reduces, limits or eliminates the recovery due with respect to a covered loss or occurrence. Although the “other insurance” language St. Paul seeks to have applied is not an exclusion, we conclude that the rationale which requires exclusions to be specifically raised in the pleadings also applies to such limiting language. Pleadings frame the matters at issue.

Parties are entitled to be fairly placed on notice of specific language which is sought to be applied by one party to a contract to avoid liability for payment, in whole or in part. This is especially true where, as here, an insurer has admitted coverage, and expressly stated that the claimant would be “entitled to [UM] benefits” where the loss exceeded available liability coverage. We further note that facts extrinsic to the insurance contract determine the application of the clause; it follows that the insurer should plead that which it bears the burden of proving.

Requiring such defenses to be raised permits full discovery regarding the issues, reduces unfair surprise, and may result in earlier resolution of suits. St. Paul relies on Reliance Mutual Life Insurance Company of Illinois v. Booher, 166 So.2d 222 (Fla. 2d DCA 1964) in support of its contention that its policy language should not be required to be pled as an affirmative defense.

That case is distinguishable, however, because in Booher, the plaintiffs complaint for declaratory judgment affirmatively alleged all of the terms and conditions of the policy, and thus, the court held that the complaint brought into issue the time limitation provision upon which the insurer relied.

Those facts are in marked contrast to the facts of this case, where all terms and conditions were not alleged by Coucher in her complaint, and the insurer specifically admitted coverage and Coucher’s entitlement to UM benefits, provided that the amount of loss exceeded available liability insurance, which it concededly did. The Booher court specifically declined to determine whether the time limitation at issue in that case was an affirmative defense. We hold that the “other insurance” clause of the St. Paul policy is an affirmative defense, and the failure to plead it in this ease resulted in waiver.

Although the trial court did not base its ruling on waiver, the ruling should be affirmed if it is correct on any basis. See Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644-45 (Fla.1999); Home Depot U.S.A. Co., Inc. v. Taylor, 676 So.2d 479 (Fla. 5th DCA 1996). St. Paul next contends that the trial court erred in denying St. Paul’s request for bifurcation, mistrial, and new trial, arguing that the jury’s knowledge of Licht’s intoxication resulted in unfair prejudice to St. Paul.

We hold that the trial court’s decision not to bifurcate and its denial of the motion for mistrial was not an abuse of discretion entitling St. Paul to a new trial. Florida Rule of Civil Procedure 1.270(

b) governs the bifurcation of trials, and provides: “The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim ... or of any separate issue or of any number of claims ... or issues.” Cases involving bifurcation uniformly provide that the trial court’s decision to bifurcate is subject to an abuse of discretion standard of review. See Microclimate Sales Co., Inc. v. Doherty, 731 So.2d 856, 858 (Fla. 5th DCA 1999); Maris Distrib. Co. v. Anheuser-Busch, Inc., 710 So .2d 1022, 1024 (Fla. 1st DCA 1998); Hardee Mfg. Co. v. Josey, 535 So.2d 655, 656 (Fla. 3d DCA 1988).

The trial court followed the bifurcation protocol established by the Florida Supreme Court in W.R. Grace & Co. v. Waters, 638 So.2d 502 (Fla.1994). In Grace, the supreme court held that when there is a claim for punitive damages in a negligence action, the jury should hear evidence on negligence, compensatory damages, and liability for punitive damages in phase one, and then the same jury should determine the amount of punitive damages in phase two.

Bifurcating in this manner will always result in a jury being questioned about, and hearing evidence of, alleged willful and wanton conduct in the same phase of the trial in which the jury is required to assess compensatory damages. We cannot conclude that a procedure prescribed by the supreme court results in excessive and unfair compensatory damages verdicts. If that procedure is deemed to be not unfairly prejudicial to defendants charged with bad conduct, we must presume that it is certainly not unfairly prejudicial to co-defendants who are not charged with any bad conduct.

This presumption survives, even when there is a settlement of the punitive damages claim during trial. We find that the trial court did not abuse its discretion when it followed the procedure described in Grace, or when it denied the motion for mistrial upon the settlement of the punitive damages claim during trial. We have carefully considered St. Paul’s two remaining issues on appeal and found them to also be without merit. Coucher’s cross-appeal is moot. AFFIRMED. SHARP, W., J., concurs. COBB, J., dissents with opinion. . Other claims were settled in advance of trial, including Coucher’s UM claim against St.

Paul because of the wrongful death of Coucher’s mother, which was settled for St. Paul’s per person policy limits of $25,000. . The trial court instructed the jury as follows: The Court has determined and now instructs you as a matter of law that the intoxication and criminal conviction of Defendant Margaret Licht is not relevant and should not be considered to determine the amount of damages necessary to compensate the Plaintiff for the loss of her father. The claim for punitive damages against Margaret Licht has been settled.

Punitive damages should not be considered in determining the amount of compensatory damages necessary to compensate Linda Couch-er for the loss of her father. . OTHER INSURANCE If there is other applicable similar insurance under this policy or any other policy: 1. Any recovery for damages sustained by you or any “family member”: b. While occupying a vehicle not owned by you or any "family member” may equal, but not exceed, the sum of:

(1) The limit of liability for Uninsured Motorists Coverage applicable to the vehicle you or any "family member” were occupying at the time of the accident; or

(2) The highest limit of liability for Uninsured Motorists Coverage applicable to any one vehicle under any one policy affording coverage to you or any "family member.” .We also observe that St. Paul did not at any stage of the proceedings properly establish the applicability of the "other insurance” clause to the facts of this case. For example, there was no proof of compliance with

section 627.727(9), Florida Statutes (1996), and no showing that the Allstate policy’s UM coverage was "other similar insurance.” See Nationwide Gen. Ins. Co. v. United Services Auto. Ass’n, 715 So.2d 1119 (Fla. 1st DCA 1998).