2001

26 Fla. L. Weekly D356c

Insurance -- Workers' compensation -- Error to enter summary judgment for workers' compensation insurance carrier in action to collect additional workers' compensation insurance premiums where carrier did not carry burden of demonstrating absence of genuine issue of material fact -- Affidavit in support of motion for summary judgment which contained only conclusory statements of ultimate fact was insufficient to sustain burden of demonstrating absence of genuine issue of material fact

26 Fla. L. Weekly D2521a

Insurance -- Uninsured motorist -- Underinsured motorist -- Res judicata -- Claim for underinsured motorist benefits resulting from fact that tortfeasor had inadequate insurance to cover jury's verdict is separate and distinct from claim for uninsured motorist benefits resulting from involvement of phantom vehicle -- Insured was not required to assert claim for underinsured motorist benefits in her first lawsuit seeking damages based upon claimed negligence of known tortfeasor and uninsured motorist benefits based upon claimed negligence of phantom vehicle -- Splitting of causes of action -- Insured did not improperly split causes of action by pursuing second lawsuit against insurer for underinsured motorist coverage -- Claims for uninsured and underinsured motorist coverage relate to separate and distinct coverage provisions, thereby giving rise to separate causes of action -- Waiver -- Insured did not waive claim for underinsured motorist benefits when she abandoned her proposed first amended complaint which asserted a claim based upon tortfeasor's underinsurance and filed second amended complaint which only asserted a claim for uninsured motorist benefits based on phantom vehicle -- Record is devoid of any evidence that insured made intentional or voluntary relinquishment of underinsurance claim

26 Fla. L. Weekly S519a

Torts -- Automobile accident -- Insurance -- Where plaintiffs joined their underinsured motorist insurer as defendant in action against owner and driver of vehicle which was involved in accident with plaintiffs' vehicle, plaintiffs were entitled to have the jury know that the joined carrier was the plaintiffs' uninsured/underinsured motorist carrier -- Trial court erred in identifying insurance company as plaintiffs' insurer without clarifying that company was plaintiffs' uninsured/underinsured motorist carrier

26 Fla. L. Weekly D40a

Insurance -- Uninsured motorist -- Insured seeking coverage for injuries he sustained when unidentified motorist struck him while he was walking -- Evidence -- Trial court erred in permitting defense counsel to question plaintiff's expert about suspension of his privileges to perform surgery in certain hospitals due to peer review process absent showing of exceptional necessity or extraordinary circumstances

26 Fla. L. Weekly D745a

Insurance -- Uninsured motorist -- Trial court properly found that plaintiff who was injured in automobile accident while acting in scope and course of his employment and while riding as passenger in automobile owned not by employer but by fellow employee who was also acting in course and scope of his employment was not entitled under section 627.727(1) to recover uninsured motorist benefits from insurer which issued motor vehicle liability policy to employer -- Plaintiff not entitled to UM coverage under statute where vehicle in which plaintiff was riding was not a ``specifically insured or identified'' vehicle under motor vehicle liability policy issued to employer

26 Fla. L. Weekly D168a

Insurance -- Uninsured motorist -- No error in directing verdict in favor of insured on issue of comparative negligence where evidence established without contradiction that sole cause of accident was tortfeasor's act of suddenly and unexpectedly turning left into insured's pathway -- Setoff -- Collateral source -- Reversible error to deny setoff for personal injury protection benefits paid to insured by PIP carrier -- Trial court should have conducted post-trial collateral source hearing to consider PIP setoff -- Insurer not required to introduce evidence of PIP benefit payments during course of jury trial

26 Fla. L. Weekly D716a

Insurance -- Uninsured motorist -- Trial court erred in entering judgment for insured in action against uninsured motorist insurer where amount of damages awarded by jury, after apportionment for comparative negligence, was less than amount insured had received in settlement from other driver's liability insurer -- Because settlement received by insured from other driver's liability insurer exceeded amount of damages awarded by jury, other driver was not underinsured, and UM coverage was not triggered

26 Fla. L. Weekly D41a

Torts -- Automobile accident -- Damages -- Setoff -- Collateral source -- Where plaintiff settled with one tortfeasor and tortfeasor's liability carrier for less than the policy limits, without authorization from plaintiff's uninsured motorist insurer, and released tortfeasor and liability insurer from any future liability without UM insurer's permission, and jury found settling tortfeasor 15% negligent, UM insurer was entitled to credit for those damages which could have been recovered from tortfeasor had she remained in trial -- Where settling tortfeasor was jointly and severally liable for all economic damages awarded, her $100,000 policy limits should have been applied to offset the economic damages awarded -- With respect to noneconomic damages, given jury's finding that settling tortfeasor was 15% negligent, the most plaintiff could have recovered from tortfeasor had she not settled would have been 15% of the total noneconomic damages awarded

26 Fla. L. Weekly D1411a

Insurance -- Uninsured motorist -- Coverage -- Policy issued to corporation did not provide coverage to individual who was struck by automobile being driven by uninsured motorist while individual was walking across street -- Trial court erred in finding that individual who was a pedestrian was a named insured on business auto policy issued to corporation

26 Fla. L. Weekly D441b

Insurance -- Uninsured/underinsured motorist -- Argument -- Improper "send a message'' argument was properly handled by trial court who immediately put stop to improper remarks and advised jury to disregard the remarks and upbraided counsel when he continued to make improper argument after he had been instructed to stop

26 Fla. L. Weekly D1992d

Insurance -- Uninsured motorist -- Stacked coverage -- Trial court erred in entering summary judgment finding that there was no uninsured motorist coverage for death of insured while occupying an owned vehicle not listed in policy because insured had signed valid nonstacked coverage election form when policy was first issued, where there was factual issue as to whether insurer had sent insured required annual notices of UM coverage options -- When insurer has failed to send required annual notice, insurer is required to provide full UM coverage regardless of insured's initial election of reduced coverage -- When insurer has sent required annual notices to insured, insured is bound by original election of reduced UM coverage

26 Fla. L. Weekly D2588a

Contracts -- Insurance -- Risk management pool -- Municipal corporations -- Government in the sunshine -- Trial court correctly determined that amended interlocal agreement and by-laws of risk management pool of several municipalities clearly and unambiguously set forth manner in which each member was to be assessed, that parol evidence was not necessary for interpretation, and that city was not liable for certain assessments imposed after city left pool -- Trial court properly found that meetings of risk management pool at which city was assessed payments were held in violation of Florida's Sunshine Law -- Initial meeting was not properly noticed, and subsequent ratification was merely perfunctory and did not correct problem -- Assessments made at those meetings were void -- Breach of fiduciary duty -- No error in ruling in favor of risk management pool, the pool's management firm, and a third entity on city's counterclaim for breach of fiduciary duty -- Attorney's fees -- City not entitled to attorney's fees on breach of contract claims, although interlocal agreement provided for award of fees to prevailing party, where city failed to adequately plead its demand for attorney's fees based on contract -- City is entitled to prevailing party attorney's fees for Sunshine Act claims -- As prevailing party, city is entitled to recover its costs

26 Fla. L. Weekly D734a

Insurance -- Personal injury protection -- Where PIP insurer which had been paying benefits for chiropractic treatment requested independent medical examination, and chiropractic physician who conducted examination concluded that insured had reached maximum medical improvement and that further chiropractic treatment was not medically necessary, insurer's reliance on that report to withdraw authorization for future chiropractic treatment was in compliance with requirements of section 627.736(7)(a) -- Circuit court sitting in its appellate capacity misapplied law when it found that section 627.736(7)(a) could not be used to withdraw authorization for future treatment and reversed county court judgment for insurer in insured's action against insurer -- Circuit court also disobeyed clearly established principles of law when it issued written opinion directly and expressly conflicting with dispositive precedent from district court of appeal

26 Fla. L. Weekly D1619a

Insurance -- Personal injury protection -- Claimant who was struck by automobile while riding bicycle and who sought PIP benefits under policy covering car that struck him challenging insurer's denial of coverage on ground that claimant was not resident of Florida -- Residency requirement in section 627.736(4)(d)(4), Florida Statutes (1993), is intended by legislature as pure residence requirement, not as requirement for domicile, legal residence, or citizenship -- Trial court erred by allowing extensive evidence of claimant's status as illegal alien and by instructing jury on that subject because, for purposes of statute, claimant's status as illegal alien was of marginal relevance -- Under circumstances, any probative value was clearly outweighed by its prejudicial effect because claimant's alien status, rather than his residency, became focus of jury's attention -- If jury trial should be necessary on remand, jury may need more complete instruction on definition of ``resident'' so that they do not confuse that term with concepts of domicile or citizenship

26 Fla. L. Weekly D1637b
788 So. 2d 403

Insurance -- Personal injury protection -- Plaintiff is not entitled to recover PIP benefits for magnetic resonance imaging services allegedly provided to insureds, where plaintiff does not perform necessary medical services and is not a ``physician, hospital, clinic, or other person or institution lawfully rendering treatment to an injured person for a bodily injury covered by PIP insurance''

26 Fla. L. Weekly D1999cNOT FINAL VERSION OF OPINION
Subsequent Changes at 27 Fla. L. Weekly D88b

Insurance -- Personal injury protection -- Appeals -- Certiorari -- Petition for writ of certiorari to review circuit court opinion affirming summary judgment in favor of insurer based on conclusion that insured was not prejudiced by insurer's payment of only that portion of medical expenses it deemed reasonable and necessary because insured suffered no damages until sued by a medical provider for unpaid amount -- Where established law provided no controlling precedent, circuit court cannot be said to have violated a clearly established principle of law -- Argument that PIP statute is violated by policy provision that requires injured person to be sued by medical provider before he can contest the reasonableness and necessity of medical expenses presents matter of statutory construction unsuitable for limited standard of review of certiorari proceeding -- County courts encouraged to certify issue

Quashed at 28 Fla. L. Weekly S287a
Circuit court order at 7 Fla. L. Weekly Supp. 760a

26 Fla. L. Weekly D1886b
810 So. 2d 514

NOT FINAL VERSION OF OPINION
Subsequent Changes at 27 Fla. L. Weekly D551e

Insurance -- Personal injury protection -- Error to hold that insurer could not defend against PIP claims of its insureds because insurer did not timely obtain reasonable proof that medical procedures were unreasonable, unnecessary, or unrelated to motor vehicle accidents -- Although trial court rightly perceived conflict between district courts on issue, court should have followed Fifth District's decision

26 Fla. L. Weekly S747a

Insurance -- Personal injury protection -- Where payment of benefits for a PIP claim is overdue because insurer has not paid benefits within 30 days after receipt of notice of claim and insurer does not have reasonable proof that it is not responsible for payment, insurer is liable for payment of statutory interest and attorney's fees, but is not barred from contesting the claim -- For purpose of insurer avoiding 30-day rule by showing that insurer has ``reasonable proof'' to establish that it is not responsible for payment, a medical report is not required to establish reasonable proof

26 Fla. L. Weekly D869a

Insurance -- Personal injury protection -- Error to enter summary judgment finding that insurer was liable for payment of PIP benefits plus interest on ground that insurer did not pay benefits within thirty days after claim, where conflicting opinions in physician affidavits created genuine issues of material fact regarding whether treatment insured received was reasonable -- If insurer has refused to pay bill within thirty days and does not have reasonable proof to establish that it is not responsible, this does not deprive insurer of its right to contest payment -- If insurer has refused to pay bill within thirty days and does not have reasonable proof to establish that it is not responsible, insurer is liable for ten percent interest when bill is paid

26 Fla. L. Weekly D1722a

Insurance -- Personal injury protection -- Insurer's failure to obtain written report required under section 627.736(7) within thirty days of receiving written notice of loss does not preclude insurer from defending on the basis that the medical bills are not reasonable, not related, and/or not necessary -- Conflict certified

26 Fla. L. Weekly D8c

Insurance -- Personal injury protection -- Insurer was not required to obtain report from physician licensed under same licensing chapter as treating physician stating that bill was not reasonable before reducing payment on certain bills based upon determination that bills exceeded reasonable and customary charge for same service in the geographic area -- No error in denying insured's motion for summary judgment on claim for balance of partially paid bills -- Failure of insurer to obtain reasonable proof that it was not responsible for payment within thirty days of receipt of bill did not preclude insurer from contesting payment on ground that treatment was medically unnecessary -- Error to grant summary judgment in favor of insured on claim for unpaid bill

26 Fla. L. Weekly D2408a

Insurance -- Personal injury protection -- Where insured's physician submitted bills to insurer for treatment allegedly relating to injuries sustained in automobile accident, insurer did not pay or deny bills within thirty days, insurer sought an independent medical examination, and insurer discontinued payments based on IME, insurer was not precluded from contesting payment by its failure to obtain negative IME within thirty days of receipt of bills -- Conflict certified -- No error in circuit court's reversal of trial court's final judgment in favor of insured for the medical bills received by insurer thirty days or more prior to date of IME where jury found none of insured's medical bills were related to injuries sustained as result of the automobile accident

26 Fla. L. Weekly D1658cNOT FINAL VERSION OF OPINION
Subsequent Changes at 26 Fla. L. Weekly D2408a

Insurance -- Personal injury protection -- Where insured's physician submitted bills to insurer for treatment allegedly relating to injuries sustained in automobile accident, insurer did not pay or deny bills within thirty days, insurer sought an independent medical examination, and insurer discontinued payments based on IME, insurer was not precluded from contesting payment by its failure to obtain negative IME within thirty days of receipt of bills -- No error in circuit court's reversal of trial court's final judgment in favor of insured for the medical bills received by insurer thirty days or more prior to date of IME where jury found none of insured's medical bills were related to injuries sustained as result of the automobile accident

26 Fla. L. Weekly D1793a

Insurance -- Personal injury protection -- Medical payments -- Circuit court acting in its appellate capacity applied incorrect law when it affirmed final judgment entered by county court in favor of insurer in action brought by insured for PIP and medpay benefits on ground that insured could not sue insurer without first paying medical provider -- Insured who incurs reasonable and necessary medical expenses on account of an automobile accident sustains losses and incurs liability for PIP and medpay purposes, whether or not the medical bills have been paid -- A right of action arises thirty days after notice to insurer that reasonable and necessary medical treatment against which it has insured has resulted in a debt -- Circuit court directed to reverse county court's summary judgment and remand to county court for further proceedings

26 Fla. L. Weekly D608a

Dissolution of marriage -- Child support -- Life insurance -- Constructive trust -- Where judgment of dissolution required father to maintain life insurance policy for benefit of child, father thereafter remarried, and upon father's death estate contained only policy naming widow as beneficiary, trial court erred in granting summary judgment finding that widow was entitled to policy proceeds -- Where mother showed that father failed to provide life insurance for child's benefit as required by final judgment of dissolution, mother sufficiently showed either abuse of confidence or clear mistake to establish constructive trust -- Trial court improperly determined that there was no basis to find that widow has been unjustly enriched -- Requirement that father maintain life insurance policy for benefit of child was not invalid court-ordered insurance estate for child but, rather, established collateral for child support obligation -- Constructive trust of life insurance proceeds did not depend on showing that widow against whom it would be imposed engaged in fraudulent conduct, undue influence, abuse of confidence, or mistake, but on showing of abuse of confidence or mistake by father -- Reversed and remanded for reconsideration of equity of case in light of fact that child is receiving more in Social Security benefits than he had been receiving in child support

26 Fla. L. Weekly D2906aNOT FINAL VERSION OF OPINION
Subsequent Changes at 27 Fla. L. Weekly D467a

Administrative law -- Department of Insurance properly suspended license to operate as a viatical settlement provider of company which failed to report to Division of Insurance Fraud that life insurance policies sold by viators had been fraudulently obtained by denying on insurance applications the existence of specific known and diagnosed medical conditions -- Statute requiring that licensee report to Division of Insurance Fraud a fraudulent insurance act of which licensee has knowledge is not unconstitutionally vague

26 Fla. L. Weekly D2093d

Torts -- Order adding insurance company as party defendant and judgment debtor to a judgment against school based upon finding in related insurance coverage declaratory judgment case that insurance company was school's insurer at time of accident summarily reversed in view of fact that appellate court reversed the final judgment stemming from the declaratory action and remanded for entry of judgment in insurance company's favor

26 Fla. L. Weekly D1237b

Insurance -- Personal injury protection -- Interest -- Error to enter summary judgment in putative class action, finding that interest insurer was required to pay on overdue PIP benefits was to be calculated from date insurer received written notice of the fact of a covered loss and its amount -- Statutory interest on overdue PIP payments accrues 30 days after insurance company receives written notice of claim

26 Fla. L. Weekly D664a

Insurance -- Homeowners -- Replacement cost -- Liability of insurance company toward purchase of a home different from the home damaged or destroyed is limited to cost of repairing or replacing insured home

26 Fla. L. Weekly D2344a

Insurance -- Homeowners -- Coverage -- Claim for injuries caused to pedestrian by insured's son driving golf cart owned by third party on a sidewalk -- Error to enter summary judgment in favor of insurer on coverage issue -- Where it was not clear whether a golf cart qualified as a recreational vehicle under terms of policy, and provisions of liability section of policy provided coverage for injury and damage resulting from a golf cart while golfing and for operating a non-owned recreational motor vehicle created an ambiguity as to whether there was coverage for a golf cart when it was not being used for golfing, policy must be construed in favor of insured -- Application of the dangerous instrumentality doctrine inapposite where the issue is narrowly one of interpreting the language in homeowners' policy

26 Fla. L. Weekly D723a

Wrongful death -- Medical malpractice -- Federal preemption -- Where plaintiff's claims of vicarious liability and negligence for wrongful death of plaintiff's wife related to the administration of an employee benefit plan, a health maintenance organization in this case, such claims were preempted by Employee Retirement Income Security Act -- Where the HMO controlled the referral process, required that authorization be obtained prior to the performance of diagnostic and therapeutic procedures, required contracted physicians to seek approval for diagnostic tests and arrange health care through the HMO and its contracted physicians, summary judgment on basis of ERISA preemption was proper -- HMO did not assume non-delegable duty to render proper medical care to decedent, where HMO did not contract to render medical services, but only contracted to provide care through the use of its primary care physicians and participating health care providers -- HMO could not be held vicariously liable for negligence of physicians who were independent contractors

26 Fla. L. Weekly D2847a

Contracts -- Insurance -- Venue -- Forum selection clause -- Trial court properly dismissed claim against medical insurer for improper venue where policy was issued in Colombia and contained a provision for jurisdiction where issued -- Plaintiff with only ``bald assertions of inefficiency and lethargy in the Colombian judicial system and the empty claim of adhesion,'' failed to make the required showing that trial in Colombia would be so gravely difficult that she would for all practical purposes be deprived of her day in court -- Appellate court cannot accept plaintiff's argument that there is time yet in which she may make the required showing -- Determination of the forum must occur before the trial on the merits

26 Fla. L. Weekly D2271aNOT FINAL VERSION OF OPINION
Subsequent Changes at 27 Fla. L. Weekly D63c

Torts -- Insurance -- Health -- Damages -- Appeal from award of compensatory and punitive damages in action for breach of contract, fraud in the inducement, unfair claims practices, intentional infliction of emotional distress, and promissory estoppel against health insurer that wrongfully terminated child with cerebral palsy from program for catastrophically ill children, brought by father of child individually and for use and benefit of child -- Error to instruct jury to award child damages for intentional infliction of emotional distress where fair and objective reading of allegations in complaint shows that father was seeking damages for himself only and not as best friend to his child -- Compensatory damages award reversed -- Punitive damages award must be reversed where fact that jury was allowed to hear evidence relating to insurer's alleged infliction of emotional distress upon child may have influenced it to award large amount of punitive damages -- Where judge instructed jury that insurer's conduct was ``so gross and flagrant as to show a reckless disregard for human life or the safety of persons exposed to the effects of its conduct'' and that insurer's conduct ``showed such an entire lack of care that [insurer] must have wantonly and recklessly disregarded the safety and welfare of the public,'' and judge did not instruct jury that it had the discretion to decline to assess punitive damages or to award only nominal amount, jury instructions invaded province of jury by characterizing the conduct of defendant -- Error to prevent insurer from introducing mitigating evidence to rebut testimony that its managed care practices violated industry standard -- Error to allow parents of other critically ill children to testify about their negative experiences with other health insurers which shared same parent company as defendant where parent company was not named as party in lawsuit, and there was no attempt to pierce the parent company's corporate veil or pursue a legal theory that would have allowed jury to disregard the corporate structure -- Evidence was irrelevant and unduly prejudicial -- Parent company's indemnification agreement with defendant may not be taken into account in setting damages where parent company is not a party to lawsuit -- Remand for new trial

26 Fla. L. Weekly D283a

Insurance -- Equitable subrogation -- Law of the case -- Insurer's action for equitable subrogation against tortfeasors who settled with insured, seeking to recover medical benefits paid to insured -- Prior decision by appellate court established that settling tortfeasors had no basis to assert defenses to instant subrogation claim based upon insurance contract between insurer and insured and also established that, with knowledge of insurer's subrogation rights, settling tortfeasors could not rely on a release signed by insured to avoid claim for equitable subrogation -- Error to enter summary judgment against insurer -- Remand for further proceedings

26 Fla. L. Weekly D725b

Insurance -- Health -- Class actions -- Trial court did not abuse discretion in certifying class in action alleging that insurer breached identical insurance contract provisions in non-renewal of policies

26 Fla. L. Weekly D1938a

Insurance -- Group health -- Civil procedure -- Amendment of affirmative defenses -- Action by individual insured under group health policy against insurer to recover disputed premium stabilization fund monies after association policy holder had assigned its rights in fund monies and its cause of action against insurer for recovery of the fund monies to plaintiff -- Abuse of discretion to deny defendant insurer's motion to amend its affirmative defenses to assert that plaintiff, as assignee, has no greater rights than rights of assignor, and that assignment from association policy holder to plaintiff de facto assigned all of premium refund to one policy beneficiary in violation of section 627.569, Florida Statutes -- Statute applies where an association provides group insurance to members and those members contribute to the cost of premiums, and a policy holder cannot preference an individual insured with all, or an unequal portion of dividends, premium refunds, rate reductions, commissions or service fees -- Motion to amend affirmative defenses should have been granted where motion was made before summary judgment hearing, defendant had not previously requested leave to amend affirmative defenses, and amendment does not require additional discovery

26 Fla. L. Weekly D229aNOT FINAL VERSION OF OPINION
Subsequent Changes at 27 Fla. L. Weekly D513c

Insurance -- General liability -- Coverage -- Spoliation of evidence claim -- Where insured's employee was injured when a ladder collapsed, and employee brought product liability action against manufacturer and seller of ladder, and action against insured for spoliation of evidence which was crucial to product liability action, insured's general liability policy did not provide coverage for spoliation of evidence claim -- Spoliation claim was not covered under policy provision providing coverage for bodily injuries because there was no causal relation between the bodily injuries suffered and destruction of the evidence -- Spoliation claim was not covered under policy provision providing coverage for property damage because plaintiff's only interest in destroyed property was an intangible interest which was excluded from coverage -- Error to enter summary judgment finding that insurer had duty to defend and indemnify spoliation of evidence claim

26 Fla. L. Weekly D1747b

Criminal law -- Insurance fraud -- Unlawful insurance solicitation -- Statute is unconstitutional

26 Fla. L. Weekly D149a

Criminal law -- Racketeering -- Predicate acts -- Unlawful insurance solicitation -- Fraudulent intent is not element of offense defined in section 817.234(8), which makes the solicitation of business with intent of receiving payment by making a motor vehicle tort claim or a claim for personal injury protection benefits a third degree felony -- Speech -- Statute as written violates state and federal constitutions -- Conflict certified -- Statute as written is too broad in its terms of the scope of activities it can potentially reach and is not narrowly tailored to address only state's interest in preventing insurance fraud

26 Fla. L. Weekly S765a

Criminal law -- Insurance fraud -- Unlawful insurance solicitation -- Section 817.234(8), Florida Statutes, unconstitutionally infringes upon protections afforded commercial speech

26 Fla. L. Weekly S515b

Criminal law -- Unlawful solicitation for purpose of filing insurance claim -- Constitutionality of statute

26 Fla. L. Weekly S401a

26 Fla. L. Weekly S369aNOT FINAL VERSION OF OPINION
Subsequent Changes at 26 Fla. L. Weekly D401a

Criminal law -- Insurance fraud -- Unlawful insurance solicitation -- Speech -- Section 817.234(8), Florida Statutes (1997), which prohibits solicitation for the making of motor vehicle tort claims or claims for personal injury protection benefits, unconstitutionally infringes upon the protections afforded commercial speech by the First Amendment to the United States Constitution because the Legislature did not include fraudulent intent as an element of the offense -- Commercial speech regulated by statute does not relate to an unlawful activity and is not misleading -- Although state's substantial interests in prevention of insurance fraud support restriction on commercial speech, statute does not directly and materially advance state's goal of preventing insurance fraud -- Statute is not narrowly tailored to achieve state's interest in prevention of insurance fraud

26 Fla. L. Weekly D235b

Jurisdiction -- Foreign corporations -- Service of process -- Allegation that defendant foreign corporation contracted to insure persons, property and/or risks located in Florida and breached contract in Florida insufficient to permit substitute service on Secretary of State pursuant to section 48.181, Florida Statutes (1999) -- Complaint did not sufficiently allege that defendant operated, conducted, engaged in, or carried on business or business venture in state -- Even if substitute service had been authorized, it was not properly effectuated because plaintiff served copy of process on defendant by private courier, Federal Express -- Error to deny defendant's motion to vacate default and quash service of process

26 Fla. L. Weekly D140a

Insurance -- Marine -- Jurisdiction -- Foreign insurer -- Forum selection clause -- Florida court has jurisdiction over foreign insurance company that denied coverage to a foreign shipping company when the insured vessel was extensively damaged while sailing in Florida waters -- Plaintiff sufficiently demonstrated statutory basis for jurisdiction by submitting detailed affidavits stating that vessel was in Florida when contract for hull and machinery insurance was initially executed and also when insurance coverage was extended for an additional year -- Long-arm jurisdiction exists where plaintiff's cause of action against insurer arose out of insurer's denial of claim under insurance contract insuring vessel which was located in Florida at time of contracting -- Due process -- Minimum contacts supporting exercise of jurisdiction over defendant include facts that defendant entered into insurance contract for vessel primarily trading in and out of Florida, vessel was in Florida at time of contract and at time of extension of contract, vessel was involved in previous litigation in Florida, defendant has network of correspondents in state, defendant utilized Florida insurance brokers, a foreign-based underwriter for defendant consistently visited Florida brokers for at least five years, including time period when the vessel was insured by defendant, and mechanical problem that disabled insured vessel that frequented Florida ports occurred in Florida waters, requiring the assistance of a Florida towing company and shipyard -- Further, defendant is international company, insuring risks around the world, and its own marketing materials, including those available on worldwide web, advertise network of correspondents who can handle claims quickly and specifically name correspondents in three Florida cities -- Venue -- Trial court erred in reading language in insurance policy as a forum selection clause -- Error to dismiss complaint for lack of jurisdiction

26 Fla. L. Weekly D2933a

Jurisdiction -- Contracts -- Health insurance -- Action by Honduran plaintiff insured by Swedish health insurance company, who became ill and received medical treatment while in Florida, after which the company failed to pay the expenses -- Trial court erred in dismissing complaint for lack of personal jurisdiction on ground that contract provision stating that disputes would be litigated in a United States court was not sufficient to subject a foreign corporation to Florida jurisdiction and that there must be independent basis for Florida jurisdiction to attach -- Defendant's action in breaching the contract in Florida by failing to pay medical expense claims to Florida-based medical providers provided independent basis for personal jurisdiction under long-arm statute

26 Fla. L. Weekly D1087a

Insurance -- Flood -- Jurisdiction -- Circuit court did not have subject matter jurisdiction over insured's action against ``Write Your Own'' insurer alleging negligence and breach of contract in failure to procure and write maximum flood insurance coverage under National Flood Insurance Program -- Federal courts have original, exclusive jurisdiction over all claims relating to the provision of flood insurance under National Flood Insurance Act regardless of whether they are pled in contract, tort or other state statutory remedies, and regardless of whether the named defendant is Federal Emergency Management Agency or a WYO insurer

26 Fla. L. Weekly D357a

Insurance -- Fire -- Insurable interest -- Relation back provision of criminal forfeiture statute does not serve to divest insured of insurable interest in property -- Where fire occurred in 1991 on insured property owned by husband and wife, husband was convicted in 1992 of trafficking in cocaine which occurred from 1983 through 1991, husband assigned wife all interest in property in 1993, and federal court entered final order of forfeiture of property in 1993, trial court erred in entering judgment for insurer in insured wife's action to recover proceeds under policy on ground that relation back provision of forfeiture statute served to deprive insured of insurable interest in property as of date of trafficking offense

26 Fla. L. Weekly D1106b

Insurance -- Exclusions -- Vandalism of building that had been vacant for more than 60 days before loss -- Where insured who planned to renovate vacant restaurant on his property into car showroom had hired architect and had city send inspectors to property, but property was vandalized before any renovations took place or permits were secured, trial court correctly found that building was vacant for purposes of exclusionary clause -- Although policy did not consider buildings ``under construction'' to be vacant and did not define ``under construction,'' trial court correctly found that building was not under construction at time of vandalism -- Summary judgment in favor of insurer affirmed

26 Fla. L. Weekly S611a

Insurance -- Legal malpractice -- Releases -- Action against Florida Insurance Guaranty Association as receiver for insolvent insurer by plaintiff who had entered into settlement agreement with insured -- Where settlement agreement provided that insured would consent to judgment against it, that judgment would never be recorded, would create no liens, and could not be recorded, but agreement clearly demonstrated intent of parties not to release FIGA from liability, settlement agreement constituted a covenant not to execute against insured and did not release FIGA from liability -- Error to characterize settlement agreement as a release which extinguished any liability that FIGA had as an insurer

26 Fla. L. Weekly D88b

Insurance -- Uninsured motorist -- Where policy provided UM coverage for bodily injury sustained while occupying or getting into or out of vehicle that was covered by liability portion of policy, and liability portion of policy specifically excluded coverage where a covered vehicle was pulling a trailer with a load capacity in excess of 2000 pounds, trial court erred in finding that plaintiff, a class II insured, was covered for injuries sustained in collision between uninsured vehicle and covered vehicle at a time when covered vehicle was towing a trailer with load capacity of 10,000 pounds -- Because liability policy specifically excluded coverage where covered vehicle was pulling an excluded trailer, concomitant exclusion from UM coverage did not violate principle that policy's uninsured motorist coverage may not be more narrowly drawn than liability coverage provisions -- Fact that accident involved collision with truck cab, and trailer played no part in accident, not relevant

26 Fla. L. Weekly D1835a

Insurance -- Uninsured motorist -- Coverage and exclusionary sections of policy unambiguously excluded coverage for injuries sustained by insured while occupying a vehicle not named in policy and owned by resident relative -- Coverage was not available under nonstacked UM coverage provisions, which permit insured when injured while occupying a vehicle other than a covered vehicle to elect between the policy covering the uninsured vehicle and the instant policy, since election clause only applies if coverage is otherwise available, and there was no coverage under insured's UM provisions -- Exclusions at issue are authorized exclusions under section 627.727(9), Florida Statutes -- No error in entering summary judgment in favor of insurer

26 Fla. L. Weekly D1559a

Insurance -- Life -- Exclusions -- Loss incurred while under influence of alcohol -- Where insured and a friend had been at bar for most of the night and were driving home when automobile accident which ultimately resulted in insured's death occurred, insured was driving because friend ``felt too intoxicated to drive,'' insured admitted to paramedic that he caused the accident, attributing it to his having fallen asleep while he was driving, paramedic noted the distinct smell of alcohol on insured's breath, and blood-alcohol test result of .189 confirmed that insured had been driving while under the influence, insurer carried its burden of showing causal relationship between death and intoxication, whether insured fell asleep as result of fatigue or the effects of alcohol -- Error to award proceeds of life insurance policy to beneficiary -- Conflict certified

26 Fla. L. Weekly D1457c

Insurance -- Liability -- Exclusions -- Liability between or among members of insured's family -- Trial court properly rendered final summary judgment in insurer's favor in declaratory judgment action seeking determination that liability policy did not cover insured's liability for injuries suffered by his adult son in a boating accident -- Exclusion was not ambiguous with regard to whether ``members of your family'' applied to family members who did not reside with insured

26 Fla. L. Weekly D752aNOT FINAL VERSION OF OPINION
Subsequent Changes at 26 Fla. L. Weekly D1559a

Insurance -- Life -- Exclusions -- Loss incurred as result of injury sustained while under the influence of alcohol -- Error to award policy proceeds to beneficiary where it was undisputed that injuries from which insured eventually died were result of automobile accident which occurred when insured was driving under the influence

26 Fla. L. Weekly D1067a

Insurance -- Medical -- Trial court properly entered summary judgment finding that policy did not afford coverage for treatment rendered after policy expired where policy excluded ``claims and costs for medical treatment incurred after expiration date of policy, resulting from accidents or illnesses during the policy period, unless the policy has been renewed'' -- Court must give effect to clear and unambiguous language in policy

26 Fla. L. Weekly D15a

Insurance -- Health -- Exclusions -- Preexisting conditions -- Insurer's denial of coverage for kidney failure was timely, regardless of whether litigation was initiated within two-year incontestability period, where insured's condition preceded policy's inception date and was not listed on application, and claimed loss occurred within two years of policy's inception -- With regard to contention that insurer had knowledge of insured's condition, preventing it from denying coverage, record is clear that insurer did not become aware of insured's misstatements until policy was issued and insured made claim -- Supreme court ruling that insured's truthful answers on insurance application, according to best of his ``knowledge and beliefs'' were not misstatements within meaning of statute and did not provide grounds for rescission of policy did not turn on whether insured's medical problems constituted preexisting conditions -- Insured's kidney failure was clearly preexisting condition under policy terms -- Prior hospitalization rider did not waive coverage exclusion based on preexisting conditions -- Policy clearly defines preexisting conditions as those for which medical advice or treatment was advised by or received from physician within five-year period prior to effective date of coverage, and insured's failure to list kidney failure on application does not make this definition ambiguous -- Loss which occurred within six months of policy's inception was not covered where loss was due to preexisting condition which was not listed in application

26 Fla. L. Weekly D255c

Insurance -- Health -- Exclusions -- Provision excluding benefits for, ``a condition resulting from you being drunk or under the influence of any narcotic unless taken on the advice of a physician,'' did not exclude coverage for medical expenses insured incurred after insured was hit by a vehicle at a time when she was inebriated -- Provision did not exclude coverage for injuries indirectly caused by intoxication

26 Fla. L. Weekly D2801a

Insurance -- Homeowners -- Where plaintiffs and their adult son were the named insureds on a mobile homeowners insurance policy, trial court erred in entering summary judgment for insurer on plaintiffs' claim for fire damage to mobile home on ground that fire was result of arson committed by plaintiff's son, because there was genuine issue of fact as to who started fire -- No merit to claim that trial court erred in granting summary judgment for defendant when defendant did not file motion for summary judgment -- No merit to claim that trial court erred in failing to exempt plaintiffs from exclusionary clause of policy because it did not recognize their status as innocent co-insureds

26 Fla. L. Weekly D1739b

Insurance -- Uninsured motorist coverage -- Action seeking declaration of insured's rights under uninsured motorist policy for injuries sustained when she was hit by automobile while riding on motorcycle driven by uninsured motorist -- Trial court correctly granted summary judgment against insured on basis of equitable estoppel where insured sued automobile driver on theory that automobile driver was only negligent party and then changed theory in declaratory action against uninsured motorist insurer to claim that motorcycle driver was concurring cause of her injuries -- Uninsured motorist carrier was prejudiced because it had no subrogation rights against automobile driver after insured's settlement of suit against driver

26 Fla. L. Weekly D1555a
788 So. 2d 369

Insurance -- Liability -- Duty to defend -- Coverage -- Declaratory judgments -- Torts -- Wrongful death -- Claims of negligent hiring and retention against medical transportation company by injured passenger/client and estate of deceased passenger who was not insured's client -- Action for declaratory relief to enforce Coblentz settlement agreements providing for entry of consent judgments against insured and an assignment of insured's rights against its insurer to plaintiffs -- Trial court erred in finding that estate of passenger who was not client of medical transportation company could not enforce settlement agreement against company's insurer where trial court found that insurance provided coverage for negligent hiring and retention, trial court's finding was not challenged on appeal, and estate's complaint succinctly and sufficiently stated a cause of action against insured for negligent hiring and retention -- When insurer refused to provide defense to its insured, and as result insured entered into settlement agreement with estate, insurer lost its chance to litigate factual issues surrounding duty, breach, and proximate cause which were pivotal to ultimate resolution of the legal principles involved in estate's claims -- Because settlement of negligent hiring claim served to establish insured's liability to estate, trial court erred in finding that there was no coverage for estate's claims -- Error to render final judgment on consent judgments without hearing on reasonableness issue where parties specifically agreed to bifurcate the proceedings and to reserve the issue of reasonableness of amount of consent judgments for another day -- Remand for evidentiary hearing on whether consent judgments are reasonable in amount and, thus, enforceable

26 Fla. L. Weekly D228a777 So. 2d 1034 COLONY INSURANCE COMPANY, Appellant, v. G & E TIRES & SERVICE, INCORPORATED, Appellee. 1st District. Case No. 1D00-0326. Opinion filed January 12,…

26 Fla. L. Weekly D75a
777 So. 2d 1034

NOT FINAL VERSION OF OPINION
Subsequent Changes at 26 Fla. L. Weekly D228aInsurance -- Garage liability and garage keepers legal liability -- Defense of suit with reservation of rights -- Where insurer provided defense of claims which were clearly excluded from coverage under policy and reserved right to be reimbursed for defense costs incurred, insurer was entitled to be reimbursed for expenses incurred in defending suit after court found in declaratory judgment action that insurer had no duty to defend -- Error to deny reimbursement to insurer which defended suit against insured under reservation of rights where there was an absence of even a potential basis for duty to defend

26 Fla. L. Weekly D2831a

Insurance -- Uninsured motorist -- Stacking -- Insured seeking to stack UM coverage from two policies, with insurer defending on basis that insured had specifically selected and paid for nonstacking coverage -- Discovery -- Error to grant production of voluminous material seeking information relative to how selection process concerning stacking coverage option was handled by insurer where trial court acknowledged that the requested discovery was irrelevant to any pleadings before the court -- Having to defend against potential, unstated cause of action while at the same time having to defend against action properly before court is sufficiently prejudicial to warrant certiorari -- Order to produce documents unrelated to present controversy but which might possibly lead to evidence supporting some subsequent cause of action is quashed

26 Fla. L. Weekly D1302a

Civil procedure -- Discovery -- Order requiring defendants' liability insurance carrier and their attorneys to produce information relating to a frequently employed independent medical examiner quashed -- Request was overly burdensome and irrelevant, and company was erroneously required to create records which did not exist -- Plaintiffs are entitled under prevailing law to production of carrier's taxpayer identification number and 1099 forms concerning the physician

26 Fla. L. Weekly D2541a

Civil procedure -- Insurance -- Personal injury protection -- Discovery -- Pure bill of discovery -- Petitions for pure bills of discovery and discovery pursuant to section 627.736(6)(c) filed by PIP insurer which became concerned that payment for six insureds was being sought for services which may not have been performed -- For good cause shown, PIP insurer can obtain informal discovery authorized by appellate court in Kaminester v. State Farm Mutual Automobile Insurance Company, including depositions, interrogatories, and production of documents or other things -- Remand for further proceedings

26 Fla. L. Weekly D2493a

Insurance -- Civil procedure -- Discovery -- Privilege -- Trial court did not err in compelling production of letters between insurer and its attorney alleged to be protected by work-product or attorney-client privilege where insurer's failure to prepare a privilege log waived the privilege

26 Fla. L. Weekly D2837a
800 So. 2d 689

Insurance -- Discovery -- Privilege -- Petition to review discovery order compelling insurer in bad-faith insurance action to produce documents in claim file and face-sheet notes over insurer's attorney-client and work product objections -- Trial court departed from essential requirements of law in requiring production of claim file documents that consist of communications to and from insurer's attorneys, billing statements, and a report of the civil action that insurer provided to defense counsel after the insureds filed complaint -- No error to require production of witness statements taken long before insureds threatened or filed suit where insurer failed to satisfy its burden of proving that it prepared statements in anticipation of litigation -- Insurer failed to prove that diary entries which commenced at time insured's truck was stolen were made in anticipation of litigation -- Error to require production of entries in face-sheet notes that constitute attorney-client communications, designated as conversations or summaries of conversations with defense counsel

26 Fla. L. Weekly D462a

Insurance -- Civil procedure -- Discovery -- Petition for writ of certiorari seeking review of order compelling discovery of privileged information granted -- Trial court's order requiring production of documents alleged to be protected by attorney-client privilege or work product doctrine and allowing counsel for party seeking discovery to determine if any documents are privileged quashed -- Trial court could not properly delegate to party's attorney the authority to perform a purely judicial function -- Proper procedure is for trial court to examine disputed documents in camera and remove those documents which fall into privileged category

26 Fla. L. Weekly D2304a

Administrative law -- Department of Insurance -- Sale of insurance without license -- Appeal from final order directing club to cease and desist sale and transaction of legal expense insurance in Florida -- Department erroneously rejected administrative law judge's finding that club provided only a referral and did not provide specific legal services or reimburse for specific legal expenses where that finding was supported by competent substantial evidence -- Under plans at issue, club member pays annual membership fee and receives referral from club to a plan attorney who has agreed to abide by a schedule of free and discounted services; member contacts attorneys directly when legal issue arises; and plan members are responsible for payment directly to attorneys of all legal fees incurred

26 Fla. L. Weekly D2262a

Administrative law -- Insurance -- Department of Insurance emergency cease and desist orders stating that some life insurance companies have, in the past, engaged in racially discriminatory practices and that such practices should be discontinued to extent that companies are continuing the practices -- Orders failed to satisfy statutory requirements where there were no allegations of statutorily proscribed conduct by named individual companies, there were no charges set forth as to what law was allegedly being violated, nexus between named companies and alleged improprieties and public harm was not indicated, and orders did not identify any specific company whose wrongful actions constitute immediate threat to public health, safety or welfare -- Emergency cease and desist orders reversed

26 Fla. L. Weekly D1470a

Administrative law -- Department of Insurance -- Appeals -- Petition for review of non-final agency action -- Court lacks jurisdiction to entertain petition where petitioners have failed to identify any agency order rendered within last thirty days which they seek to have reviewed -- Petition dismissed -- In absence of jurisdiction, court has no authority to grant stay pursuant to rule 9.190(e)(2)

26 Fla. L. Weekly D111a

Declaratory judgments -- Insurance -- Homeowners -- Coverage -- Exclusions -- Intentional torts -- Duty to defend -- Amended complaint which alleged only a cause of action for negligence against insured and which eliminated all specific descriptions of intentional tort contained in earlier complaint -- Case was proper for declaratory relief, since it involved the construction of policy language under the facts of the case -- Question certified: May the insurer pursue a declaratory action in order to have declared its obligation under an unambiguous policy even if the court must determine the existence or nonexistence of a fact in order to determine the insurer's responsibility? -- Trial court properly allowed declaratory judgment action to be tried prior to underlying negligence lawsuit -- Conflict certified -- Court recedes from that portion of its prior decision in Marr Invs., Inc. v. Greco which is inconsistent with instant opinion -- Trial court erred in failing to grant directed verdict on issue of insurer's duty to defend where cause of action alleged in amended complaint fairly and potentially fell within coverage of policy -- No abuse of discretion in granting new trial on coverage issues based upon insurer's reference during opening statements to settlement between injured party and one of the defendants in the original underlying negligence case -- Section 768.041(3), which provides that ``release or covenant not to sue, or that any defendant has been dismissed by order of court shall not be made known to the jury'' applies to instant action for declaratory relief pertaining to existence of insurance coverage, an action which is closely related to underlying negligence action -- Evidence -- Original complaint filed in negligence action, which the injured party, an experienced legal secretary, had typed for her attorney-employer, was admissible against the injured party as a statement offered against a party ``of which the party has manifested an adoption or belief in its truth'' -- Various statements made to physicians by injured party, which were admissible as admissions of a party under section 90.803(18)(a), did not have to also qualify for admission under section 90.803(4), as statements for purpose of medical diagnosis or treatment -- Jury instructions -- Interrogatory verdict form correctly framed the fact issues in the language of the policy exclusions -- No error in court's jury instructions

26 Fla. L. Weekly D764e

Declaratory judgments -- Insurance -- Coverage -- Exclusions -- Acts outside scope of employment -- Petition for declaratory judgment seeking determination of whether city and police officer, sued for officer's involvement in automobile accident while off-duty, driving unmarked police vehicle outside of city for unauthorized personal reasons, are entitled to be defended and/or indemnified under city's indemnity and coverage agreement with petitioner -- Trial court's dismissal of petition for declaratory judgment on ground that issue of ``scope of employment'' exclusion was factual issue inappropriate for review under declaratory judgment act was decided prior to district court ruling in Higgins, concluding that declaratory judgment is available to resolve fact issues concerning coverage, and that trial court has discretion to allow that issue to be tried in advance of trial of underlying tort claim -- Since trial court's dismissal of petition for declaratory judgment was based on belief that it had no discretion to allow the declaratory judgment case to be tried before the underlying tort claim, order of dismissal was reversed and matter was remanded for further proceedings -- Question certified -- Conflict noted

26 Fla. L. Weekly D2210a

Insurance -- Credit disability -- Error to apply workers' compensation concept of "permanent total disability'' to claim brought by insured under credit disability insurance policy and to find, based on that concept, that any ability to work part-time precluded finding that insured was totally disabled -- Workers' compensation law does not apply to occupational disability test contained in insurance contract, which required that insured be unable to engage in any occupation for which insured was reasonably qualified -- Review of case law leads to conclusion that Florida Supreme Court does not consider term ``any occupation'' as being synonymous with ``any employment'' -- Definition of occupation is, on facts of instant case, ambiguous -- Trial court failed to accord proper treatment to ambiguous language in policy

26 Fla. L. Weekly D2306a

Civil procedure -- Counsel -- Insurance -- Trial court departed from essential requirements of law when it entered order requiring parties, who were already represented by Florida lawyers, ``to retain associated local counsel in Okaloosa County within ten (10) days'' -- Insurer's assertion that petition for writ of certiorari is appropriate because of "inherent irreparable harm'' of trial court's action is insufficient to establish irreparable harm -- Insurer's claim that it may be required to pay the additional attorney's fees its insured will have to pay its local counsel insufficient to establish irreparable harm because insurer may never be ordered to pay insured's fees, and any such order could be remedied on appeal in any event -- Insurer's assertion that it will suffer irreparable injury for which it does not have adequate remedy on appeal because of the fees it will have to pay additional counsel has merit

26 Fla. L. Weekly D2171a

Insurance -- Comprehensive general liability -- Exclusions -- Bodily injury or property damages arising out of ownership, maintenance, use, or entrustment of motor vehicle -- Trial court in declaratory judgment action properly found that exclusion was applicable, and that insurer had no duty to defend or indemnify its insured under comprehensive general liability policy for claim arising out of automobile accident which occurred when insured's employee was driving insured's vehicle within the scope and course of his employment -- Florida law has generally recognized that duplicate coverage from both an automobile liability policy and a general liability policy for an automobile accident injury covered by an automobile policy is not ordinarily available simply by alleging the separate tort of negligent hiring, supervision, or retention -- When an insured defendant in a typical automobile negligence lawsuit is both the owner of the motor vehicle and the employer of the driver, the claim arises out of the ownership and use of the insured's motor vehicle -- Even if plaintiff alleges negligent hiring, supervision, or retention, the standard automobile exclusion clause in a general liability policy excludes coverage for such a claim

26 Fla. L. Weekly D2486a

Insurance -- Commercial general liability -- Exclusions -- Bodily injury or property damage included within products-completed operations hazard -- Trial court erred in finding that insurer had duty to defend claim against insured developer under commercial general liability policy issued after insured had completed construction of residence for claimants, alleging that insured negligently misrepresented that lot on which insured built residence for claimant was suitable for construction of residence, but that after residence had been constructed cracks appeared in residence because residence was situated on pockets of debris which caused settling and deterioration as debris decomposed -- Exclusion eliminated coverage for claims of bodily injury and property damage arising after insured completed its work -- No merit to insured's contention that completed operations exclusion did not apply because misrepresentations occurred before construction work was completed, and physical damage to property occurred during policy period

26 Fla. L. Weekly D1578b

Insurance -- Commercial general liability insurance -- Exclusion for bodily injury arising out of ownership, maintenance, or use of an automobile owned or operated by insured applied to claim brought by infant for injuries sustained when insured's employee was involved in an automobile accident while returning from a pizza delivery -- Insurer had no duty to defend claim for negligent hiring, training or supervision -- Insurer had no duty to defend or indemnify under concurrent cause doctrine where alleged multiple causes are related and dependent, and risk created by alleged corporate policies and practices of insured was risk of injury arising out of use of an automobile, not a separate and distinct risk

26 Fla. L. Weekly D1359a

Insurance -- Commercial general liability -- Exclusions -- Defamation -- Where policy excluded coverage for injury resulting from defamatory statements that were false and known to be false when made, trial court erred in entering summary judgment in declaratory judgment action, finding that insurer had no duty to defend amended complaint which alternatively alleged intentional wrongdoing or negligent defamation -- Liability insurer's duty to defend is controlled by allegations in complaint against insured, even if they may be factually incorrect or without merit -- When an amended complaint supersedes an earlier one, the allegations of the amended complaint control the duty to defend

26 Fla. L. Weekly D1630a
788 So. 2d 388

Insurance -- Commercial general liability -- Exclusions -- Torts -- Action for property damage to swimming pool and surrounding structures caused by negligence of general contractor and declaratory action to determine extent of coverage of contractor's commercial liability policy -- Coverage -- Terms ``real property'' and ``any property'' are not ambiguous -- Policy exclusion for real property ``on which you are performing operations'' bars coverage for pool which contractor was draining -- Policy exclusion for any property on which work was incorrectly performed bars coverage for pool where trial judge found that contractor drained pool in a negligent manner causing it to pop out of the ground -- Exclusion did not refer only to specified tiles and spots on pool that contractor was contracted to repair where damage occurred when contractor was draining the entire pool -- As insurer concedes, coverage existed for all property except the pool itself -- Damages -- No error in awarding homeowner the cost associated with replacing pool and repairing other damaged property where the record fails to demonstrate that this cost exceeded the value of the pool in its original condition or its depreciation in value, and homeowner demonstrated that replacing and repairing damage was practicable by having it done -- Where trial court awarded homeowner prejudgment interest, it correctly concluded that loss of use damages were not available -- Judgment taxing attorney's fees and costs against insurer vacated -- Nonjoinder -- Consolidation of liability and declaratory judgment actions is harmless error in non-jury case

26 Fla. L. Weekly D2938aNOT FINAL VERSION OF OPINION
Subsequent Changes at 27 Fla. L. Weekly D494b

Insurance -- Commercial general liability -- Coverage -- Exclusions -- Action by plaintiff who was a passenger in a taxi cab owned by insured and who was driven to remote location and sexually assaulted by cab driver, alleging negligent hiring, negligent retention, and breach of contract for safe transportation -- Where policy covered an ``occurrence'' which was defined as an ``accident,'' insurer had duty to defend complaint alleging that insured had constructive knowledge of driver's prior arrests for indecent exposure and loitering for prostitution and incident report in which another passenger stated that driver made sexual advances toward her -- As to insurer's duty to indemnify, issue of fact remains to be resolved as to whether insured had actual knowledge of driver's proclivity to commit sexual assault -- With regard to applicability of policy exclusion for bodily injury ``expected or intended from the standpoint of the insured,'' factual issue remains to be resolved as to whether driver's background would lead to the expectation that he would drive a passenger to a remote location and sexually assault her -- Policy exclusion of bodily injury arising out of the ownership, maintenance, use or entrustment of auto was not applicable because sexual assault did not arise out of use of the vehicle

26 Fla. L. Weekly D2193a

Insurance -- Personal injury protection -- Class actions -- Trial court properly granted class certification in action alleging that insurer violated section 627.736, Florida Statutes (Supp. 1996), by failing to pay 80% of insured's medical bills without first obtaining either a report of a physician who performed an independent medical examination or a record review justifying the reduced payment of those bills, and by failing to pay statutory interest after declining to provide PIP benefit payments within 30 days of being given notice of the loss -- Plaintiff was properly named as class representative although insurer has admitted liability and tendered payment to plaintiff purportedly for balance of PIP payment plus statutory interest, where insurer has failed to pay plaintiff's claim in full -- Even if insurer were to pay plaintiff's claim in full after class was certified, class representative may still be able to press the claim on behalf of the absent class members

26 Fla. L. Weekly D2193a

Insurance -- Personal injury protection -- Class actions -- Trial court properly granted class certification in action alleging that insurer violated section 627.736, Florida Statutes (Supp. 1996), by failing to pay 80% of insured's medical bills without first obtaining either a report of a physician who performed an independent medical examination or a record review justifying the reduced payment of those bills, and by failing to pay statutory interest after declining to provide PIP benefit payments within 30 days of being given notice of the loss -- Plaintiff was properly named as class representative although insurer has admitted liability and tendered payment to plaintiff purportedly for balance of PIP payment plus statutory interest, where insurer has failed to pay plaintiff's claim in full -- Even if insurer were to pay plaintiff's claim in full after class was certified, class representative may still be able to press the claim on behalf of the absent class members

26 Fla. L. Weekly D285a

Insurance -- Uninsured motorist -- Limitation of actions -- Affirmative defense of statute of limitations is not a ``coverage defense'' within meaning of section 627.426(2)(a), which precludes insurer from denying coverage based on a particular coverage defense unless it gives insured a written notice of reservation of rights to assert coverage defense within thirty days after insurer knew or should have known of defense -- Nothing in record supports contention that insurer agreed in writing to process the UM claim ``along with and in the manner it was processing'' claim for personal injury protection benefits or ``through its formal alternative dispute resolution program'' -- Circumstances were not such that doctrines of waiver and estoppel would prevent insurer from raising statute of limitations defense -- No error in entering summary judgment in favor of insurer on ground that UM claim was barred by statute of limitations

26 Fla. L. Weekly D2500b

Civil procedure -- Class actions -- Insurance -- Action arising out of group health insurance plans, alleging insurer and administrator violated Florida Statutes when they cancelled policies without properly offering replacement coverage -- Trial court did not err in certifying case as class action -- Appeals -- Appellate court lacks jurisdiction to review court's denial of motion to dismiss which asserted that Florida Department of Insurance had instituted administrative proceedings against insurer based on same violations and that Department had primary jurisdiction over claims against both insurer and administrator

26 Fla. L. Weekly D583b

Insurance -- Cancellation of policy -- Notice -- Proof of mailing -- Where insurer has good faith basis to believe that reason for cancellation is in fact true, insurer is not required to undertake further investigation

26 Fla. L. Weekly S754c

Civil procedure -- Service of process -- Dissolved corporation -- Pursuant to section 48.101, Florida Statutes (1991), service of process on dissolved corporation must be made on one or more directors of corporation as trustee rather than on corporation's registered agent -- Chapter 48, rather than chapter 607, is the Florida statute that expressly mandates the method by which service is to be perfected on dissolved corporation -- 1989 amendments to section 607.1405 did not repeal by implication the express requirements of section 48.101 -- Although district court correctly stated that service of process must be effected on a director of a dissolved corporation, it incorrectly assumed that this had not occurred where service was made on the only person ever listed with the State of Florida for any position with the corporation -- Fact that papers with which individual was served listed her as ``registered agent'' rather than as ``director'' did not render service of process wholly ineffective and void but merely voidable -- Because no timely challenge was made to allegedly defective service, trial court properly denied insurer's motions to set aside earlier judgment which had been entered in separate and distinct legal action

26 Fla. L. Weekly D532e

Insurance -- Bad faith -- Trial court correctly instructed jury that insurer's failure to respond to notice of violation within 60 days created presumption of bad faith shifting burden to insurer to show why it did not respond

26 Fla. L. Weekly D479a
778 So. 2d 1037

Insurance -- Health maintenance organizations -- Torts -- Action against HMO by plaintiff and spouse seeking, among other things, damages for bad faith and for loss of consortium -- Statutory first-party bad faith claim is not available against health maintenance organization -- There is no implied intent by legislature to provide private cause of action against an HMO for violation of Chapter 641 -- Bad faith claim not encompassed by section 641.28, which permits civil action to enforce terms and conditions of HMO contract -- Sections of Act prohibiting HMO from engaging in unfair or deceptive act or practice does not provide for any private cause of action -- Previous unsuccessful attempt by legislature to amend statute to provide for civil liability by an HMO for lack of good faith does not support finding that Act provides for an implied civil action -- Section 624.155, which provides that any person can bring civil action against an insurer when person is damaged by insurer for not settling claims in good faith is part of Insurance Code, which does not apply to health maintenance organizations -- No error in dismissing bad faith and loss of consortium counts -- Abuse of discretion to dismiss those counts without leave to amend -- Although complaint was amended four times, each amendment was agreed to by parties and the court, and case had not been litigated for long period of time -- Neither party argued that defendant would be prejudiced if amendment were permitted -- No merit to argument that amendment would be futile because common law actions would be barred by economic loss rule because plaintiffs allege that defendant's breach caused physical injury and pain to plaintiff -- Because HMO has seemingly placed itself, rather than physician, in charge of decisions as to what medical services are medically necessary for a patient, plaintiffs should be given opportunity to amend complaint and try to state cause of action on common law claims before court rules that no such claims exist in relation to defendant

26 Fla. L. Weekly D2680a

Insurance -- Bad faith -- Federal preemption -- Insurer seeking to prohibit circuit court from proceeding on statutory claim for bad faith failure to pay medical benefits on ground that claim is preempted by Employee Retirement Income Security Act -- Determination that ERISA deprives state court of jurisdiction cannot be made until it is established as matter of law that benefit plan is an ERISA plan -- Petition for writ of prohibition denied

26 Fla. L. Weekly D1316a

Contracts -- Insurance -- Implied duty of good faith and fair dealing -- Trial court properly dismissed claim by insurance broker that health plan breached implied covenant of good faith and fair dealing by not properly servicing customers, thus losing commissions for the broker, in absence of an allegation that an express term of the contract was breached

26 Fla. L. Weekly D905b

Insurance -- Automobile liability -- Indemnification -- Settlement agreement -- Action by car rental agency against renter's insurer for indemnification and recovery of litigation expenses for defense of wrongful death action brought by estate of person killed in automobile accident -- Where prior to car rental agency obtaining a judgment against the renter for indemnification, renter's insurer agreed to pay policy limits to estate but payment was not to be made until after estate's wrongful death action against the rental agency was resolved, and payment was promptly made by insurer after resolution of that action upon the estate's demand and pursuant to the previously resolved settlement terms, insurer and estate entered into valid settlement agreement, and insurer exhausted its policy limits and owed no further indemnity obligation -- Regardless of fact that insurer and estate agreed payment would be made after resolution of the wrongful death action, where essential term of payment was agreed upon, a valid and enforceable agreement existed

26 Fla. L. Weekly D1373a

Insurance -- Automobile liability -- Coverage -- Exclusions -- Intentional acts -- ``Bodily injury or property damage which may reasonably be expected to result from the intentional or criminal acts of an insured person or which are in fact intended by an insured person'' -- Trial court properly refused to apply exclusion to bodily injuries sustained by occupants of vehicles which were struck by insured's vehicle while insured was fleeing and eluding a law enforcement officer -- Expansive intentional acts exclusion at issue in instant case, if strictly applied, would contravene public policy behind financial responsibility laws

26 Fla. L. Weekly D17a

Wrongful death -- Automobile accident -- Leased vehicles -- Vicarious liability of lessor -- Insurance -- No error in entering declaratory judgment in favor of insurer in action seeking determination whether driver of leased vehicle was insured under policy issued to lessee and whether insurer had duty to defend driver against claims arising out of death of passenger, in light of lessee's allegation that car was driven without permission -- Vicarious liability -- No error in entering judgment for lessor on issue of vicarious liability where jury found, based on competent evidence, that driver of leased vehicle did not have express or implied consent to drive vehicle at time of collision in which passenger was killed

26 Fla. L. Weekly D2509a

Insurance -- Automobile liability -- Coverage -- Action by parties who were shot by hijackers of jitney bus on which plaintiffs were riding against insurer of company under whose transportation permit jitney bus was operated -- Because jitney bus was not owned by insured and was used frequently in connection with insured's business, it was not covered under policy -- Policy provision extending coverage for ``non-owned autos'' is intended to provide coverage to insured while engaged in infrequent or casual use of an automobile other than one described in policy -- Even if jitney bus had been covered under non-owned auto provision, there would still be no coverage for plaintiffs' injuries, because injuries resulted from use of the hijackers' guns not the use of the jitney bus, and the injuries therefore did not arise out of the ownership, maintenance or use of the jitney bus -- Mere fact that a vehicle is the site of an injury or incident is insufficient to create a connection between the use of the vehicle and the injury so as to bring the injury within policy coverage

26 Fla. L. Weekly D1868aNOT FINAL VERSION OF OPINION
Subsequent Changes at 26 Fla. L. Weekly D1960a

Insurance -- Automobile liability -- Bad faith failure to settle -- Insurer was not guilty of bad faith in not accepting offer to settle which was made by surviving husband of wife who was killed in collision with insured's vehicle and father of minor who was injured in collision, where offeror had not been appointed personal representative of his wife's estate and had not obtained court approval of a settlement on behalf of his minor daughter at time of settlement offer, and offer was revoked before offeror gained authority to make valid offer to settle -- Because insurer had no reasonable opportunity to settle claim, insurer could not have acted in bad faith as matter of law -- Insurer could not be held liable for failure to notify insured of offer of settlement where there was no valid opportunity to settle -- Trial court erred in failing to grant summary judgment for insurer on failure to settle and failure to notify claims -- Trial court properly entered summary judgment for insurer on claim that insurer acted in bad faith in rejecting proposal characterized as Cunningham proposal where, at time of proposal, law required that an excess judgment exist before a bad faith claim could be brought -- It was not bad faith on part of insurer to follow the law as it existed at the time and reject the proposal

26 Fla. L. Weekly D2174a

Insurance -- Automobile liability -- Bad faith failure to settle -- Insurer was not guilty of bad faith in not accepting offer to settle which was made by surviving husband of wife who was killed in collision with insured's vehicle and father of minor who was injured in collision, where offeror had not been appointed personal representative of his wife's estate and had not obtained court approval of a settlement on behalf of his minor daughter at time of settlement offer, and offer was revoked before offeror gained authority to make valid offer to settle -- Because insurer had no reasonable opportunity to settle claim, insurer could not have acted in bad faith as matter of law -- Insurer could not be held liable for failure to notify insured of offer of settlement where there was no valid opportunity to settle -- Trial court erred in failing to grant summary judgment for insurer on failure to settle and failure to notify claims -- Trial court properly entered summary judgment for insurer on claim that insurer acted in bad faith in rejecting proposal characterized as Cunningham proposal where, at time of proposal, law required that an excess judgment exist before a bad faith claim could be brought -- It was not bad faith on part of insurer to follow the law as it existed at the time and reject the proposal

26 Fla. L. Weekly D725a

Insurance -- Automobile -- Where policy limited insurer's liability to amount necessary to repair or replace insured automobile, insured was not entitled to recover an amount for the diminished value of the automobile following damage resulting from hurricane

26 Fla. L. Weekly D2129b

Insurance -- Automobile -- Error to enter summary judgment finding that injured daughter was not family member residing in insured mother's Nevada household when she was injured in a Florida automobile accident and, accordingly, was not covered under policy issued in Nevada to mother -- Factual issue existed as to whether injured person was resident of Nevada household, and Nevada law reserves resolution of issue of fact of residency for jury

26 Fla. L. Weekly D2898a

Insurance -- Automobile -- Collision -- Where insurer paid for repair of insured vehicle which had been involved in collision, and completed an excellent repair, insurance policy which was silent with regard to payment for diminished value of a repaired vehicle did not require insurer to compensate insured for inherent diminution in value of vehicle due to fact that it had been involved in a collision

26 Fla. L. Weekly D1506a

Insurance -- Automobile collision -- Where insurer elected to repair insured vehicle which had been involved in collision, and completed a repair which restored vehicle to its pre-accident level of performance, appearance and function, insurer was not required to also compensate insured for inherent diminution in value of vehicle due to fact that it had been involved in a collision -- Question certified: Does an automobile collision policy which provides that the insurer must repair or replace the damaged vehicle ``with other of like kind and quality'' obligate the insurer to compensate the insured in money for any diminution in market value after the insurer completes a first-rate repair which returns the vehicle to its pre-accident level of performance, appearance and function?

26 Fla. L. Weekly D1125aNOT FINAL VERSION OF OPINION
Subsequent Changes at 26 Fla. L. Weekly D1506a

Insurance -- Automobile collision -- Where insurer elected to repair insured vehicle which had been involved in collision, and completed a repair which restored vehicle to its pre-accident level of performance, appearance and function, insurer was not required to also compensate insured for inherent diminution in value of vehicle due to fact that it had been involved in a collision -- Question certified: Does an automobile collision policy which provides that the insurer must repair or replace the damaged vehicle ``with other of like kind and quality'' obligate the insurer to compensate the insured in money for any diminution in market value after the insurer completes a first-rate repair which returns the vehicle to its pre-accident level of performance, appearance and function?

26 Fla. L. Weekly D1413a

Insurance -- Automobile -- Cancellation of policy -- For purpose of statute under which United States postal proof of mailing of notice of cancellation is sufficient notice of cancellation, whether or not notice was actually received by insured, United States postal proof of mailing must conform to requirements of United States postal regulations -- Discovery -- Postal employee was improperly permitted to testify as expert witness on postal regulations where witness was listed in pretrial catalog as a lay witness, witness was not identified as a postal employee, and witness was not disclosed as being an expert witness -- Error to enter directed verdict for insured in insured's action on automobile policy where insurer claimed that policy had been canceled, insurer's proof of mailing was improper, but there was factual issue for jury as to whether insured received notice of cancellation

26 Fla. L. Weekly D1187bNOT FINAL VERSION OF OPINION
Subsequent Changes at 26 Fla. L. Weekly D1413a

Insurance -- Automobile -- Cancellation of policy -- For purpose of statute under which United States postal proof of mailing of notice of cancellation is sufficient notice of cancellation, whether or not notice was actually received by insured, United States postal proof of mailing must conform to requirements of United States postal regulations -- Discovery -- Postal employee was improperly permitted to testify as expert witness on postal regulations where witness was listed in pretrial catalogue as a lay witness, witness was not identified as a postal employee, and witness was not disclosed as being an expert witness -- Error to enter summary judgment for insured in insured's action on automobile policy where insurer claimed that policy had been canceled, insurer's proof of mailing was improper, but there was factual issue for jury as to whether insured received notice of cancellation

26 Fla. L. Weekly D2483b

Insurance -- Automobile -- No error in trial court's confirmation of umpire's determination of reasonable estimate of costs of repair of insured vehicle -- Error to dismiss with prejudice insured's breach of contract action against insurer, where complaint clearly states that insurer breached insurance policy by failing to repair insured's vehicle in a timely and proper manner in accordance with its duty under policy which resulted in insured incurring towing and storage costs and loss of business income -- In ruling on motion to dismiss for failure to state cause of action, court is confined to consideration of allegations found within four corners of complaint

26 Fla. L. Weekly D478a
780 So.2d 239

Insurance -- Automobile -- Bad faith -- Unfair claim settlement practices -- Insured's action against insurer -- Discovery -- Privilege -- Work product privilege attaches to documents prepared in contemplation of litigation and not for ``mere likelihood of litigation'' -- No error in requiring insurer to produce agent's statement of certain date, computer diaries and entries from date insured reported accident through certain date, and internal memorandum from claims adjuster to her boss -- With respect to certain other documents, court finds they were prepared in anticipation of litigation and are protected, and insureds have not met burden to overcome privilege

26 Fla. L. Weekly D1670b

Insurance -- Uninsured motorist -- Attorney's fees -- Where, during course of litigation for recovery of uninsured motorist benefits, insurer requested that insured sign broad authorizations allowing insurer to obtain insured's medical records and warned that failure to do so ``may result in a denial of coverage,'' and insured filed declaratory judgment action seeking declaration that she could not be compelled to execute any authorizations which would lead to ex parte contact by insurer with insured's health care providers, trial court erred in failing to award insured attorney's fees incurred in declaratory judgment action after granting insured's motion for summary judgment on ground that rules of civil procedure rather than insurance contract governed discovery in uninsured motorist action postsuit -- Because insurer informed insured that coverage could be denied if insured refused to execute authorizations, declaratory judgment action involved a coverage dispute, and insured was entitled to award of attorney's fees upon prevailing in that action

26 Fla. L. Weekly D1301a

Insurance -- Property damage -- Interest -- Attorney's fees -- Where payment of appraisal award was made by carrier three weeks after its filing, in accordance with time period specified in insurance contract, trial court erred in awarding ``pre-judgment'' interest from date appraisal was demanded -- Appellate court reendorses its decision in Aries Insurance Co. v. Hercas -- Error to deny attorney's fees for services of counsel in establishing his entitlement to and effecting payment of a previous award of fees, as provided by both an order agreed to by both parties and by section 627.428

26 Fla. L. Weekly D381a

Insurance -- Attorney's fees -- Personal injury protection -- Trial court acted within its discretion and committed no error in awarding attorney's fees to medical provider where insurer made payment subsequent to filing of lawsuit -- Where insured executed ``Appointment as Agent-in-Fact with Power of Attorney,'' which according to its language was not an assignment of coverage, but was for purpose of collecting medical bills from insurer, and which empowered provider to sue and collect attorney's fees on insured's behalf, provider was entitled to award of attorney's fees -- Insurer's contention that provider lacked standing to sue not preserved for appellate review -- Person who is named an agent for the purpose of collecting money and who is authorized to commence legal action to collect has standing to appeal the matter -- Assuming that despite language in power of attorney stating that it was not an assignment, the trial court properly found provider to be insured's assignee, law supports provider's entitlement to attorney's fees under that alternate theory -- Insurer's delay in paying medical bills was not excused by insured's alleged non-compliance with insurer's requests for information -- Insurer cannot extend thirty-day period by requiring claims to be submitted only on specified in-house claims forms -- Once insurer received information it needed to process claim, it had responsibility of contacting insured within thirty-day period to obtain any other information it needed -- Single letter to insured was not sufficient, especially in light of fact that insured's telephone number and correct address were printed on medical provider's medical claim forms, and that insured was residing at residence of policyholder and owner of vehicle involved in accident

26 Fla. L. Weekly D335a

Insurance -- Personal injury protection -- Attorney's fees -- Error to cut off insured's entitlement to attorney's fees as of date insurer tendered check payable to insured and two entities with competing claims where insurer should have determined that competing claims were illusory -- Insurer faced with competing claims for PIP benefits may withhold direct payment to insured and issue joint check to competing claimants or interplead funds only when competing claims involve factual or legal issues that insurer cannot be expected to resolve on its own -- Private hospital was ineligible as matter of law to have valid lien -- Hospital registration form which insurer believed contained assignment of benefits listed different insurer as carrier -- No error in denying collision benefits based on finding that there was no evidence that insured did not receive full value of his automobile from settlement with other driver involved in accident

26 Fla. L. Weekly D278a

Insurance -- Personal injury protection -- Attorney's fees -- Interest -- Plaintiff in action against PIP insurer was entitled to award of attorney's fees and statutory interest where insurer failed to verify claim within 30 days, and delayed payment on claim until it received proof of coverage -- Burden is on insurer to verify claim within 30 day period, and insurer's failure to do so was not excused by fact that insurer initially received incorrect information

26 Fla. L. Weekly D1103a

Attorney's fees -- Offer of judgment -- Insurance -- Uninsured motorist -- Action against underinsured motorist and UM carrier in which UM carrier rejected insured's offer to settle for policy limits -- Where final judgment against UM carrier was conformed to policy limits, error to use the amount of the award in jury verdict, rather than the amount of the final judgment, to calculate whether the judgment obtained was at least 25% more than insured's rejected offer for judgment and determine that insured was entitled to section 768.79 attorney's fees -- Claim that statute violates equal protection guarantee of Florida Constitution rejected as being raised for first time on appeal and lacking merit

26 Fla. L. Weekly D2870a

Attorney's fees -- Offer of judgment -- Insurance -- Contingency risk multiplier should not be used to compute attorney's fees awarded pursuant to offer of judgment statute -- Conflict acknowledged

26 Fla. L. Weekly D2227b

Insurance -- Commercial general liability policy -- Coverage -- Attorney's fees assessed in suit on behalf of former resident of insured adult assisted living facility -- Question certified: Can an insured recover reasonable attorney's fees as ``damages'' from its liability insurer when the attorney's fees were awarded to a prevailing plaintiff pursuant to section 400.429, Florida Statutes, against the insured, and the insurance contract provides the insurer ``will pay on behalf of the insured all sums which the insured shall become obligated to pay as damages because of injury to which this insurance applies caused by a medical incident which occurs during the policy period?

26 Fla. L. Weekly D1568bNOT FINAL VERSION OF OPINION
Subsequent Changes at 26 Fla. L. Weekly D2227b

Insurance -- Commercial general liability policy -- Coverage -- Attorney's fees -- Liability of adult assisted living facility's liability insurer for attorney's fees assessed in suit on behalf of former resident of facility under section 400.428 -- Appeals -- Brief opinion from appellate court is of doubtful precedential value -- There is no indication in section 400.429 that legislature intended to impose any liability for attorney's fees directly on liability insurer absent language in insurance contract assuming such liability -- Insurance contract providing coverage for ``damages because of injury to which this insurance applies caused by a medical incident which occurs during the policy period'' did not include liability coverage for attorney's fees -- Attorney's fees are not damages, but are ancillary to damages, and not part of a substantive claim -- Attorney's fees are separate type of relief requiring special language before they may be assumed to have been included in a damage award in policy

26 Fla. L. Weekly D12a

Attorney's fees -- Justiciable issues -- Where insurer which paid uninsured motorist benefits to its insured sued the two tortfeasors against whom its insured had claims, but voluntarily dismissed the case after it was unable to locate one of the tortfeasors whose testimony was necessary to prove liability against the other, trial court erred in awarding attorney's fees pursuant to section 57.105 -- Under applicable version of statute, attorney's fees could only be awarded if there was lack of justiciable issues when complaint was initially filed -- Trial court erred in concluding that there were no justiciable issues because insured filed suit on basis of accident report which would not have been admissible in evidence, where it was not accident report, but rather the testimony of the second tortfeasor, which would have been the basis for the case against the remaining tortfeasor, and there is no evidence in record to show that insurer knew it would never be able to locate the second tortfeasor when it filed suit

26 Fla. L. Weekly D1818a

Insurance -- Automobile -- Attorney's fees -- Where insurer initially denied insured's claim that his automobile had been stolen, but thereafter settled claim and sent payment to lienholder without advising insured of amount or terms of settlement, and refused to furnish insured with settlement documentation after insured filed breach of contract action, insured was entitled to award of attorney's fees -- Court erred in denying award of attorney's fees to insured because insurer's failure to cooperate with insured caused an unnecessary continuation of lawsuit -- Payment for loss did not vitiate insurer's failure to deal fairly and in good faith with its insured

26 Fla. L. Weekly D1146aNOT FINAL VERSION OF OPINION
Subsequent Changes at 26 Fla. L. Weekly D1818a

Insurance -- Automobile -- Attorney's fees -- Where insurer initially denied insured's claim that his automobile had been stolen, but thereafter settled claim and sent payment to lienholder without advising insured of amount or terms of settlement, and refused to furnish insured with settlement documentation after insured filed breach of contract action, insured was entitled to award of attorney's fees -- Although trial court properly granted summary judgment for insurer in insured's breach of contract action after insurer eventually furnished insured with copy of check it had sent to lienholder as payment for loss of automobile, court erred in denying award of attorney's fees to insured because insurer's failure to cooperate with insured caused an unnecessary continuation of lawsuit

26 Fla. L. Weekly D1204a

Attorney's fees -- Proposal for settlement -- Insurance -- Uninsured motorist -- Where insured brought claim against uninsured motorist insurer and insured's husband brought loss of consortium claim against insurer, plaintiffs' proposal for settlement which did not allocate the amount between the two claims was invalid -- When two offerors make a proposal for settlement to one offeree, the offeree is entitled to know the amount and terms of the offer that are attributable to each offeror in order to evaluate the offer as it pertains to that party -- Conflict certified -- Error to apply contingent fee multiplier where there was no evidence presented that relevant market required contingency fee multiplier to obtain competent counsel, that attorney was unable to mitigate risk of nonpayment, or that any of the factors set forth in Florida Patient's Compensation Fund v. Rowe were applicable

26 Fla. L. Weekly D2542a

Insurance -- Coverage -- Denial -- Misrepresentation of material fact related to claim -- Failure to comply with document production demanded by insurer prior to instituting suit -- Where insured owned two watches, only one of which was insured, whether insured's initial misrepresentation of where he originally obtained the second uninsured watch was material misrepresentation which would void coverage for loss of insured watch should be determined by trier of fact -- Disputed issue of fact exists as to whether certain documents requested by insurer were in fact produced and whether failure to produce documents requested was material breach -- Error to grant summary judgment in favor of insurer

26 Fla. L. Weekly D702a

Insurance -- Personal injury protection -- Assignment of benefits -- Where a medical provider agrees to perform services based on an unqualified assignment of medical benefits on condition that the insured will be responsible for bills not covered or paid by the insurer, the insured does not have standing to assert a claim against the insurer

26 Fla. L. Weekly D202a

Insurance -- Property -- Action by primary insurer against excess insurer after primary insurer had settled insured's claim for hurricane damage for less than limit of primary policy and had taken assignment of insured's claim against excess insurer for amount of loss which exceeded limit of primary policy -- No merit to excess carrier's claim that excess carrier owes nothing because primary insurance has not been exhausted -- Insured may proceed against excess carrier for amount of loss which exceeds limit of primary coverage even though insured has not exhausted primary coverage by collecting full amount of primary policy -- Trial court properly entered summary judgment for excess insurer on ground that insured's assignment of claim against excess insurer to primary insurer violated public policy -- It is against public policy and contrary to the relationship between primary insurer and excess insurer to allow primary insurer to settle within primary limits, take an assignment from insured, and then assert a claim against excess insurer

26 Fla. L. Weekly D2727a

Insurance -- Homeowners -- Rates -- Action by Florida Department of Insurance seeking vacation of arbitration award which approved rate increases for homeowners insurance policies on ground that arbitrators exceeded their powers -- Highly deferential standard is applicable in judicial review of arbitration awards -- Arbitrators did not exceed their powers by their use of hearsay evidence or by admitting evidence of models and output ranges that had not been determined to be accurate and reliable by the Florida Commission on Hurricane Loss Projection Methodology -- There is no authority for vacating an arbitration award because the arbitrators considered evidence, even evidence that would be inadmissible in a judicial or administrative proceeding -- Arbitrators did not exceed their powers by rendering award more than ninety days after demand for arbitration -- There is no requirement that arbitration must conclude within ninety days of the demand -- Arbitrators did not exceed their powers by overruling Department's objection to scheduling hearing more than sixty days after demand for arbitration -- Trial court properly dismissed complaint and motion to vacate arbitration award

26 Fla. L. Weekly D536a

Insurance -- Personal injury protection -- Arbitration -- Error to dismiss class action by medical provider against personal injury protection insurer alleging failure to pay statutory interest due upon late payment of PIP claims and to stay proceedings pending completion of arbitration mandated by statute which has been declared unconstitutional by Florida Supreme Court -- Plaintiff did not waive right to challenge constitutionality of statute by failing to raise issue in trial court -- Because order compelling arbitration was an interlocutory ruling subject to reconsideration by trial court at any time prior to entry of final order, plaintiff could benefit from change in law while appeal from order was pending

26 Fla. L. Weekly D517b

Insurance -- Appraisal -- Trial court properly granted motion to stay proceedings and compel appraisal where insurance company did not actively participate in lawsuit or take any action inconsistent with its contractual right to appraisal

26 Fla. L. Weekly D2843b

Insurance -- Homeowners -- Appraisal -- Res judicata -- Limitation of actions -- Where trial court denied insured's initial application to compel appraisal/arbitration of loss under homeowners policy on ground that insured had not performed conditions precedent although at time of insured's initial demand for appraisal/arbitration law in district did not permit insured or insurer to refuse to submit to appraisal once demand had been made, during pendency of insured's appeal district court receded from prior decisions and held that performance of policy preconditions was required prior to granting motion to compel appraisal/arbitration, and district court affirmed summary judgment denying insured's motion to compel appraisal/arbitration without opinion, insured's second action to compel appraisal/arbitration after insurer had refused to permit insured to comply with conditions precedent to appraisal/arbitration was not barred by res judicata -- Although all elements of res judicata exist, application of res judicata would work an injustice to insured because insured had attempted to comply with legal prerequisites for appraisal, and other similarly situated policyholders had been afforded opportunity to comply with conditions precedent to appraisal/arbitration -- Trial court erred in finding that insured's action to compel appraisal/arbitration was barred by statute of limitations because statute could only have begun to run when insured offered to perform conditions precedent and insurer refused to allow such performance

26 Fla. L. Weekly D1737d

Insurance -- Homeowners -- Appraisal -- Prejudgment interest -- Prejudgment interest on losses insureds incurred due to hurricane should be computed from date of appraisal award, and not from date of loss -- Because policy provisions allowed insurer sixty days in which to pay appraisal award, and insurer made payment within that time, insureds are not entitled to receive any prejudgment interest -- Insureds are entitled to award of costs and attorney's fees incurred while litigating entitlement to costs and attorney's fees -- Insureds are entitled to award of pre-judgment interest on previously awarded attorney's fees, with interest accruing from date entitlement to attorney's fees was fixed through agreement, arbitration award, or court determination

26 Fla. L. Weekly D1411bNOT FINAL VERSION OF OPINION
Subsequent Changes at 26 Fla. L. Weekly D1737d

Insurance -- Homeowners -- Appraisal -- Prejudgment interest -- Prejudgment interest on losses insureds incurred due to hurricane should be computed from date of appraisal award, and not from date of loss -- Because policy provisions allowed insurer sixty days in which to pay appraisal award, and insurer made payment within that time, insureds are not entitled to receive any prejudgment interest

26 Fla. L. Weekly D1412b

Insurance -- Homeowners -- Appraisal -- Where homeowners policy contained appraisal provision, there was no entitlement to formal hearing under Florida Arbitration Code -- Trial court was correct in upholding neutral umpire's decision to conduct appraisal in informal manner and in granting motion to confirm appraisal award -- Conflict certified

26 Fla. L. Weekly D390a

Insurance -- Homeowners -- Appraisal -- Where homeowners filed claim for damage to home allegedly caused by blasting, a covered peril, and insurer denied claim on ground that damage was caused by settling of foundation, an excluded peril, and claim was submitted to appraisal, appraiser did not have authority to determine that damage was caused by settling and was not covered by policy -- Question of whether loss was caused by covered peril or excluded peril was for court rather than appraiser -- Conflict certified -- Trial court erred in confirming appraisal award of zero -- Insurer did not waive right to appraisal by failing to request appraisal prior to insureds' filing of lawsuit -- Insurer did not waive right to appraisal by participating in litigation filed by insureds

26 Fla. L. Weekly D1681a

Insurance -- Appraisal -- In ordering appraisal, trial court did not err in ruling that appraisal process was to be conducted as an informal one with no attorney participation, no court reporter transcription, and no quasi-judicial hearing -- Appraisal and arbitration are not identical processes, and appraisal process is not governed by Florida Arbitration Code -- Conflict certified -- Error to order that prejudgment interest be paid from date of loss -- If insured is entitled to prejudgment interest it is to be calculated from termination of sixty days after date of appraisal award because policy gave insurer sixty days after date of appraisal award within which to make payment -- Error to award costs to insured where policy provides that each party is to pay appraiser it chooses and equally bear all other expenses

26 Fla. L. Weekly D455a

Insurance -- Appraisal process to determine amount of losses resulting from theft and vandalism -- Error to award prejudgment interest from date of last loss rather than from date of appraisal award -- Date of appraisal award was date on which damages were liquidated -- No error in denial of insured's motion for appraisal costs where policy provides that each party shall pay fees for its chosen appraiser

26 Fla. L. Weekly D1637c

Insurance -- Comprehensive general commercial liability -- Appraisal -- Court properly confirmed appraisal award for business income loss -- There is no impropriety in umpire requesting parties' respective positions to aid him in resolving differences, and umpire's neutrality was not tainted by ex parte communications with counsel -- Court properly determined that endorsement which was neither listed nor attached to policy could not form part of the policy

26 Fla. L. Weekly D1397a

Insurance -- Appraisal -- Automobile -- Comprehensive property loss -- Order compelling appraisal in action contesting insurer's right to take ``betterment'' deduction under the policy -- Because there is no disputed issue of fact regarding the amount of loss or the amount of the ``betterment'' deduction taken by insurer, but only the company's right to take such a deduction under the policy, issue raised is based upon construction of policy language and does not fall within provision for appraisals

26 Fla. L. Weekly D1816d

Insurance -- Automobile -- Attorney's fees -- Where insured sued insurer after insurer had not paid claim for stolen vehicle, insurer demanded appraisal, and insurer paid award after appraisers determined amount of loss, insured was entitled to award of attorney's fees because payment was effected by law suit -- No merit to insurer's argument that appraisal process was condition precedent to filing of suit

26 Fla. L. Weekly D368a

Insurance -- Attorney's fees -- Error to award attorney's fees to insured for services rendered during appraisal or arbitration to determine amount of loss where insurer paid award in full prior to insured having filed suit

26 Fla. L. Weekly D1815a

Insurance -- Appraisal

26 Fla. L. Weekly D1194c

Appeals -- Certiorari -- Insurance -- Personal injury protection -- District court of appeal concludes that it improvidently granted certiorari to review case in which circuit court acting in its appellate capacity affirmed a county court's erroneous ruling where petitioner was not deprived of due process in circuit court, and isolated error from which circuit court has already receded in a subsequent appeal cannot be characterized as a miscarriage of justice

26 Fla. L. Weekly S706a

Insurance -- Uninsured motorist -- Evidence -- Appeals -- In insured's action against her uninsured motorist insurer, trial court erred in denying insured's motion in limine seeking to exclude collateral source evidence regarding insurance and other benefits provided to insured by her employer -- Where, after trial court erroneously denied insured's motion in limine, parties stipulated that insured would have standing objection to introduction of collateral source evidence, insured did not waive trial court's error in denying motion in limine by introducing collateral source evidence in her case-in-chief -- Once a trial court makes an unequivocal ruling admitting evidence over a movant's motion in limine, the movant's subsequent introduction of that evidence does not constitute a waiver of the error for appellate review -- Error in failing to exclude collateral source evidence was not harmless

26 Fla. L. Weekly D327a

Insurance -- Duty to defend -- Appeals -- Where insured's action against insurers alleged breach of contract and misrepresentations in connection with expenses incurred in remediating pollution, and included an allegation that insurers owed insured the duty to defend claims arising from environmental conditions, and insurers filed motion to dismiss duty to defend allegations on the ground that no ``suit'' existed which would trigger any duty to defend, trial court order granting motion to dismiss duty to defend allegations was not an appealable order -- Order was not a partial final judgment of dismissal, and order did not determine liability in favor of a party seeking affirmative relief -- Order dismisses only portions of causes of action asserted against insurers and does not dispose of an entire case against any party

26 Fla. L. Weekly D151a

Torts -- Fraudulent and negligent misrepresentation -- Action against real estate broker and agent and insurance agent alleging that real estate agent representing seller falsely informed plaintiffs' agent that home plaintiffs eventually purchased was not located in Coastal Barrier Resource Area, although seller's agent was in possession of document indicating otherwise; and further alleging that insurance agent understood plaintiffs would not close on purchase unless they were fully insured, including federal flood insurance, and that insurance agent falsely represented that they would be so insured -- Error to grant summary judgment for real estate broker and agent on ground that claims were precluded as matter of law because CBRA designations are land regulations that are part of public record and, accordingly, plaintiffs could have reasonably ascertained this information -- Court also erred in determining that plaintiffs did not rely on representation by real estate agent that property was not in CBRA where defendants concede that agent made this representation to plaintiffs' agent and concede that at the time the defendant had document stating that property was located in CBRA -- Question of reliance remains disputed issue of material fact -- Conflict certified -- Error to enter summary judgment in favor of insurance agent where agent knew that plaintiffs would not close unless they were fully insured at closing, including federal flood insurance coverage, assured plaintiffs that coverage would be effective upon closing, and discovered prior to closing that property was located in CBRA but failed to notify plaintiffs of this information or provide the promised insurance -- Question of insurance agent's negligence presents issues of material fact -- Trial court erred in finding that plaintiffs did not establish damages because they have not suffered flood damage and have not purchased private flood insurance -- Plaintiffs presented evidence regarding large price differential between federal and private flood insurance and regarding their purchase of a house they would not have bought had they known the property was located in CBRA

26 Fla. L. Weekly D1430a 789 So. 2d 1045Insurance -- Personal injury protection -- Anticipatory breach -- No error in dismissing insured's complaint for failure to state a cause of action where, although PIP insurer had notified insured that it no longer considered medical treatment necessary and did not intend to honor future claims, insured did not allege that she had incurred any medical bills that were denied or refused by insurer -- Appeals -- Insured was not denied due process by assignment of appeal from county court to single circuit court judge where local rules of 17th circuit permit single qualified judge to function as the court in first-tier certiorari review and the supreme court has not promulgated a rule mandating three-judge appellate panels in circuit -- Insured failed to demonstrate that single judge review deprived her of fair and meaningful opportunity to be heard

26 Fla. L. Weekly D843b

Appeals -- Insurance -- Appraisal -- Order denying motion to compel appraisal is not appealable where trial court had rescinded its previous order compelling appraisal and determined that insured was obligated to comply with post-loss obligations as stated in policy before insured could compel appraisal -- No basis for petition for writ of certiorari where there is no showing that trial court departed from essential requirements of law, causing irreparable injury which cannot be adequately remedied on appeal

26 Fla. L. Weekly S473a
790 So. 2d 1061

Torts -- Limitation of actions -- Negligence -- Professional malpractice -- Negligence/malpractice cause of action accrues when client incurs damages at the conclusion of the related or underlying judicial proceedings or, if there are no related or underlying judicial proceedings, when client's right to sue in the related or underlying proceeding expires -- If suit is filed prior to time that client's right to sue has expired or during time that a related or underlying judicial proceeding is ongoing, defense can move for abatement or stay of claim on ground that negligence/malpractice action has not yet accrued -- In case at issue, limitations period for negligence action against insurance agent for failure to procure coverage for sports cards did not accrue until proceeding against insurer was final -- Plaintiff's action against agent was nonetheless barred due to principles of judicial estoppel where jury returned verdict in favor of plaintiff in action against insurer on promissory estoppel theory which, in essence, means that coverage existed for the cards -- Plaintiff could not then turn around and claim, in action against agent, that coverage did not exist -- Although judicial estoppel normally requires mutuality of parties, case falls within exception available where special fairness or policy considerations appear to compel it

26 Fla. L. Weekly D291a

Insurance -- Commercial liability -- Errors and omissions -- Attorney's fees -- Offer of judgment -- Declaratory judgment action brought by insurance broker who received renewal premium and insurance broker's errors and omissions carrier to determine whether insurance policy issued by commercial liability insurer to insured was in full force and effect on date of an automobile accident involving one of insured's vehicles -- Agency -- Record contained no evidence that broker was apparent agent for insurer, so that acceptance of premium payment bound insurer to cover the insured -- Insurer did not make any representation itself to insured suggesting an agency relationship -- Although insurer's general agent informed insured of the need to fill out a renewal application and pay the premium to broker, letter referred to broker as insured's agent and warned that renewal was subject to receipt of a fully completed application received by the general agent, not the broker -- General agent's second communication with insured informed it unequivocally that the policy was canceled for underwriting reasons, including failure to provide completed renewal application -- Affidavit from officer of general agent stated that broker was not provided with promotional or advertising material or any ``letterhead, stationery, brochures, binder forms, signs, or other materials evidencing any relationship'' with insurer, and no counter-affidavits were filed by broker -- No proof was offered to corroborate allegation that broker was supplied applications in blank form by insurer -- Payment of renewal premium to broker not sufficient to establish apparent agency where insurer never demanded premium or calculated what premium would be because it had never received renewal application form -- Attorney's fees -- Instant declaratory judgment action was not a civil action for damages within meaning of section 768.79 where ``real issue'' in case was insurance coverage for an underlying tort action, and no money damages or payment of money was directly requested in the instant action