2002

27 Fla. L. Weekly D587b

Workers' compensation -- Enforcement of employer coverage requirements by Division of Workers' Compensation -- Penalties -- Substantial competent evidence supported finding that workers were employees, not independent contractors, and that employer did not have required workers' compensation insurance coverage for its employees

27 Fla. L. Weekly D623a

Insurance -- Florida Windstorm Underwriting Association -- Administrative law -- Association is not an ``agency'' for purposes of chapter 120 -- Administrative law judge did not have jurisdiction to address challenge to procedures adopted by the Association for review of offers of coverage made by member companies at renewal

27 Fla. L. Weekly S360a

Insurance -- Uninsured motorist -- Damages -- Additur -- Trial court erred in granting additur related to future medical expenses without affording defendant option of a new trial on damages -- Error to find that defendant was not entitled to new trial because plaintiffs accepted defendant's discount rate for determining present value of future medical expenses -- Because special verdict forms were used, and record reflects that jurors' error occurred only in the area of future medical damages, it is appropriate to limit retrial to issue of future medical expenses only

27 Fla. L. Weekly D277a

Insurance -- Uninsured motorist -- Multiple rear-end collisions in which first tortfeasor was insured and second tortfeasor was uninsured -- Verdict form -- Where jury placed a zero by each defendant's name on verdict form, including the name of the uninsured motorist, where it was asked to indicate ``if it is reasonably possible to do so'' the percentage of each defendant's negligence or fault which was legal cause of plaintiff's injuries, and jury had been instructed that uninsured motorist was negligent and that such negligence was legal cause of loss, injury, or damage to plaintiff, reasonable interpretation of verdict form was not that jury found no liability on part of uninsured motorist, but that jury did not find it reasonably possible to divide the liability into specific percentages -- Jury instruction regarding apportionment of liability, which requested jury to apportion liability only if they decided that both plaintiff and one or more of the defendants were negligent, sheds no light on what jury may have meant by its verdict because verdict form did not provide any space for jury to make a determination whether plaintiff was negligent -- Trial court erred in ruling that jury was precluded from awarding uninsured motorist damages to plaintiff and derivative loss of consortium damages to insured's wife based on interpretation that jury found uninsured motorist not liable -- Error to find that recovery from UM insurer was barred because plaintiff had settled with an insured joint tortfeasor for less than the joint tortfeasor's policy limits, which limits were higher than the plaintiff's uninsured motorist coverage, where there was no finding by jury that uninsured motorist and insured defendant were joint tortfeasors -- Jury was not instructed that an issue for its determination was whether any of the defendants were joint tortfeasors, and verdict form did not include question on the issue of joint tortfeasors -- Burden of proof -- Although normally plaintiffs have initial burden of proving that they are entitled to UM coverage and, where there are two successive accidents, of allocating the injuries, those burdens were eliminated in instant case by jury instruction that uninsured motorist was liable immediately followed by instruction that plaintiff was entitled to recover from uninsured motorist insurer -- After reviewing jury instructions and verdict form, appellate court concludes that judgment should be entered in favor of plaintiffs on their claims for UM benefits and loss of consortium -- Insurer's argument that jury intended that disputed award of damages be applied against the first tortfeasor relies on too many unsupported assumptions and would ignore and render meaningless the instruction that the second, uninsured, tortfeasor was negligent, that such negligence caused damages, and that plaintiff was entitled to recover from UM carrier

27 Fla. L. Weekly D550b

Insurance -- Uninsured motorist -- Replacing insured vehicle with another vehicle does not trigger need to offer uninsured motorist coverage on an existing policy where the liability limits of the policy remain the same -- Mere substitution of vehicles with no additional changes in coverage constitutes the renewal of an existing policy -- Increase in premium as result of insuring a newer model vehicle does not trigger need to offer UM coverage on existing policy -- Because insured previously executed knowing waiver of UM coverage, trial court properly entered summary judgment in favor of insurer in action to recover UM benefits

27 Fla. L. Weekly D1440b

Insurance -- Uninsured motorist -- Insurer was not required to obtain new UM selection form electing nonstacked coverage when insured added vehicle to existing policy -- Plain language of statute makes insured's original selection of nonstacked UM coverage applicable to all renewals, extensions, and changes to an existing policy unless insured specifically requests a change in UM coverage and pays the additional premium -- Final judgment in favor of insureds in claim for stacked UM coverage conflicts with plain language of statute

27 Fla. L. Weekly D105aNOT FINAL VERSION OF OPINION
Subsequent Changes at 27 Fla. L. Weekly D447e

Torts -- Immunity -- Judicial proceedings -- Error to dismiss action on ground that claims were barred by litigation privilege because appellate court had previously affirmed summary judgment in favor of another defendant, a law firm, on that ground -- Appellate court cannot affirm dismissal on basis of facts not contained in complaint -- Allegations that, in order to extort a settlement and put plaintiff out of business, defendants conspired to maliciously give false information to law enforcement authorities resulting in plaintiff being wrongfully arrested, jailed, and charged with crimes, if proved, would not be protected by absolute litigation privilege -- Such actions would enjoy, at most, a qualified privilege which could be overcome by proof that false information was given to law enforcement authorities with intent to injure plaintiff -- Allegations were sufficient to state cause of action for intentional infliction of emotional distress -- Error to dismiss title insurance agency's action against title insurance underwriters alleging tortious interference with relationships between plaintiff and its customers on ground that defendants were engaged in relationship with plaintiff -- Fact that plaintiff title insurance agency had relationship with defendant title insurers did not preclude plaintiff from suing defendants for interfering with plaintiff's relationships with its customers

27 Fla. L. Weekly D44aNOT FINAL VERSION OF OPINION
Subsequent Changes at 27 Fla. L. Weekly D1149a

Insurance -- Uninsured motorist -- Civil procedure -- Relief from judgment -- Mistake -- Absent showing of bad faith, judgment cannot be entered against insurer in excess of policy limits -- Policy amount was established in the record, although insurer did not appear and assert defense of policy limits or reveal the limits in discovery, where complaint itself alleged that policy limits were $50,000 -- Where insurer failed to answer complaint and default was entered, insurer admitted all well-pled factual allegations of the complaint, including the policy limits alleged -- Default precluded insured from contending that policy limits were greater than amount alleged in complaint, and insured could not allege bad faith on part of insurance company without amending her complaint and giving notice to insurer -- Entering judgment in excess of policy limits established by record was ``mistake,'' and trial court erred in failing to grant relief pursuant to rule 1.540(b)(1) -- Remand with directions to conform judgment to policy limits as alleged in the admitted pleadings and for reconsideration of issue of attorney's fees in light of appellate court's ruling

27 Fla. L. Weekly D1757a

Insurance -- Personal injury protection -- Reasonable expenses for necessary medical services -- Declaratory action seeking ruling that insurer's use of a computer-generated database to determine the reasonableness of medical bills is in violation of statute -- Error to find that insurer could not decline to pay less than the full amount of a healthcare provider's bill based solely on computer database, and that insurer's reliance solely on database would violate statute

27 Fla. L. Weekly D1149a

Insurance -- Uninsured motorist -- Civil procedure -- Relief from judgment -- Mistake -- Absent showing of bad faith, judgment in excess of policy limits cannot be entered against insurer -- Policy amount was established in record, although insurer did not appear and assert defense of policy limits or reveal the limits in discovery, where complaint itself alleged that policy limits were $50,000 -- Where insurer failed to answer complaint and default was entered, insurer admitted all well-pled factual allegations of complaint, including the policy limits alleged -- Default precluded insured from contending that policy limits were greater than amount alleged in complaint, and insured could not allege bad faith on part of insurance company without amending her complaint and giving notice to insurer -- Nothing in record supports insured's contention that default was vacated prior to trial -- Even if there were no default and all issues were tried and resolved by jury, no notice was given to insurer that insured claimed policy limits in excess of one million dollars instead of the $50,000 alleged in complaint -- Judgment based on lack of notice cannot stand

27 Fla. L. Weekly D814a

Insurance -- Personal injury protection -- In action by insured against insurer which had failed to pay medical bills incurred for injuries received in an automobile accident, trial court erred in entering summary judgment for insurer on ground that insured had suffered no damage because he had not been sued by medical providers -- Insured's right of action against PIP and medical payments insurer arises thirty days after written notice to the insurer that reasonable and necessary medical treatment covered by the insurance has resulted in a debt

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

27 Fla. L. Weekly D1681c

Insurance -- Personal injury protection -- Trial court properly ruled that unambiguous language of Florida endorsement to policy did not provide PIP coverage for accident which occurred outside Florida when insured was occupying rental vehicle -- Endorsement specifically provided that there would be no PIP coverage for injury to insured outside Florida unless insured was occupying either vehicle owned by the insured or vehicle owned by the insured's relative for which security is maintained under Florida No-Fault Law -- Language is consistent with applicable statute -- ``Special Provision for Rented or Leased Vehicles'' merely adopted language consistent with section 627.7263 establishing which insurance coverage is primary when insured is operating a rental vehicle, and even if this part of endorsement were ambiguous, that ambiguity would not contravene plain language of PIP provisions expressly limiting PIP coverage for accidents occurring outside state

27 Fla. L. Weekly D371a

Insurance -- Personal injury protection -- Arrangement whereby company ``leased'' space, equipment and services from entity which performed MRI, entity billed the referring company, and company, in turn, billed insurer an increased amount for the MRI is nothing more than fee-splitting scheme to compensate for MRI referrals, which is prohibited by statute -- Referral and billing services do not constitute medical services under PIP provisions -- Trial court properly granted summary judgment in favor of insurer

27 Fla. L. Weekly D321a

Insurance -- Personal injury protection -- Trial court erred in declaring unconstitutional statute providing that insurer is not required to pay charges for treatment or services rendered more than 30 days before postmark date of provider's statement and that injured party is not liable for charges that are unpaid because of the provider's failure to comply with 30-day requirement -- Equal protection -- Legislature had legitimate state purpose for distinguishing between services provided by medical providers and services provided by hospital emergency departments and ambulance providers -- Timely statement requirement ensures that PIP insurer is aware of commencement of treatment, places insurer in a better position to assure that treatment is reasonable, related to motor vehicle accident, or necessary and also reduces practice of bulk billing by some medical providers which, in turn lowers insurer's cost of providing PIP coverage and makes independent medical examination a more effective cost-control tool -- Because medical providers frequently provide ongoing medical treatment involving regular office visits, while services provided by hospital emergency room or ambulance provider usually occur only once, immediately following motor vehicle accident, logical basis exists for placing statutory time limit upon medical providers only -- Due process -- Rational basis analysis applied to equal protection claim applies also to claim that statute violates provider's due process rights -- Statute does not violate medical providers' due process rights -- Access to courts -- Statute does not deny access to courts by medical providers who fail to meet timely statement requirement, but merely imposes a reasonable restriction or a condition precedent to filing a claim -- There is no conflict between statute, which establishes 30-day period, and section 95.11(2)(b), which affords medical providers five years to initiate claims to recover PIP benefits since provider would have had five years to assert cause of action against insurer had provider complied with timely statement requirement

27 Fla. L. Weekly D551e
810 So. 2d 514

Insurance -- Personal injury protection -- Appellate attorney's fees -- Order awarding appellate attorney's fees to appellant insurance company which prevailed on appeal should have been conditioned on company ultimately prevailing in litigation -- Assignee of insured who did not prevail on appeal is not entitled to conditional award of appellate attorney's fees based on section 627.428, Florida Statutes

27 Fla. L. Weekly D1158a

Insurance -- Medical malpractice -- Coverage -- Prejudgment interest and costs over stated limits of policy -- Prejudgment interest under section 766.209, which is designed to encourage prompt resolution of medical malpractice claims, is distinguished from prejudgment interest traditionally imposed on liquidated damages under Argonaut Ins. Co. v. May Plumbing Co. -- Trial court erred in finding no coverage for prejudgment interest based on its conclusion that prejudgment interest was part of ``damages,'' and parties' settlement had exhausted the policies' limits for damages -- Florida case law has long held that insurance policies generally provide coverage for costs over the stated limits of liability, and both policies at issue specifically provide for the payment of taxable costs under ``Other Payments'' or ``Additional Benefits'' provisions of the policies

27 Fla. L. Weekly D1904a

Insurance -- Uninsured motorist -- Settlement agreement -- Mediation -- Confidentiality -- Where settlement agreement plainly and unambiguously required insurer to pay plaintiff ``$75,000.00 by 2:00 p.m. on 7/20/01,'' trial court was required to enforce the contract according to its plain meaning -- Evidence adduced at hearing demonstrated that no mention was made during mediation of an offset of $40,000 to be credited to insurer and, accordingly, any mistake in failing to provide that settlement amount would be reduced by $40,000 insurer previously paid to plaintiff was unilateral mistake on insurer's part -- Court did not exceed its authority by considering evidence of what occurred during mediation proceedings -- Confidentiality privilege which attaches to communications made during court-ordered mediation did not apply where mediation resulted in settlement agreement signed by the parties, and one of the parties claimed that there was mutual mistake

27 Fla. L. Weekly D467a

Administrative law -- Department of Insurance properly revoked 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

27 Fla. L. Weekly D973a

Administrative law -- Department of Insurance -- Disciplinary action for falsifying application for insurance -- Where Department gave notice on eve of administrative hearing that it was adding a document to its exhibit list, administrative law judge erred in overruling objection that Department's action was unfairly prejudicial because there would be no opportunity to prepare a response or bring forward other evidence

27 Fla. L. Weekly S987a

Insurance -- Public officials and employees liability -- Coverage -- Where policy provided that insurer would defend any “suit” against insured, and defined the term “suit” as “a proceeding in a court of law where money damages may be awarded,” insurer had no duty to defend insured in proceeding before county career service council, alleging that insured discriminated against an employee in employment decisions on basis of political affiliation -- County career service council is an administrative agency possessing only quasi-judicial powers, and is not a court of law

27 Fla. L. Weekly D148c

Insurance -- Error to deny insurer's motion to set off liability payments made to plaintiffs prior to trial

27 Fla. L. Weekly D377b

Insurance -- Liability -- Coverage -- Occurrence -- Where there were three separate acts of shooting, causing three separate injuries to three separate persons in three separate instances, trial court properly ruled that there were three separate occurrences for which insurer was liable -- Issue certified to Florida Supreme Court as one of great public importance

27 Fla. L. Weekly D747b

Insurance -- Liability -- Addition of insurer as defendant in tort action against insured -- Where plaintiff was awarded a tort judgment against insured, trial court erred in subsequently granting plaintiff's motion to amend tort judgment to add insurance company as an additional defendant after plaintiff had obtained declaratory judgment against insurer on issue of coverage -- Motion to add insurer as a defendant in tort action must be made prior to, or at time of entry of judgment against tort defendant -- Plaintiff's proper remedy is application for supplemental relief in declaratory judgment action

27 Fla. L. Weekly D596a

Insurance -- Legal malpractice -- Claims-made policy -- Coverage -- Failure of insured attorney to include all responsible defendants in client's medical malpractice action resulted in single claim, and ``per claim'' policy limits, not aggregate limit, apply to client's claim against attorney -- Although attorney's negligent omission of several defendants may be considered multiple wrongful acts, client suffered only one injury as result of attorney's negligence, an award that did not represent the full extent of his damages

27 Fla. L. Weekly D1772a
823 So. 2d 210

Torts -- Uninsured motorist -- New trial -- No error in denial of motion for new trial on ground of juror misconduct -- Juror's failure to disclose on voir dire six and seven year old workers' compensation claims were properly found not to be material to jury service in personal injury action -- Where juror disclosed on voir dire that he was an insured of insurance company which was a defendant in action, juror's failure to disclose a contractual arrangement whereby he had agreed to repay insurance company for double reimbursement juror had received from insurance company and another insurance company was properly found not to constitute concealment because questioning on voir dire was ambiguous as to whether it sought such information -- Evidence -- Plaintiff's single inadvertent mention of name of defendant's liability insurer in violation of pre-trial ruling did not give rise to level of prejudice required for granting of mistrial -- No error in failing to award interest on jury verdict from date verdict was rendered until date final judgment was entered

27 Fla. L. Weekly D958b
823 So. 2d 210

NOT FINAL VERSION OF OPINION
Subsequent Changes at 27 Fla. L. Weekly D1772a

Torts -- Uninsured motorist -- New trial -- No error in denial of motion for new trial on ground of juror misconduct -- Juror's failure to disclose on voir dire six and seven year old workers' compensation claims were properly found not to be material to jury service in personal injury action -- Where juror disclosed on voir dire that he was an insured of insurance company which was a defendant in action, juror's failure to disclose a contractual arrangement whereby he had agreed to repay insurance company for double reimbursement juror had received from insurance company and another insurance company was properly found not to constitute concealment because questioning on voir dire was ambiguous as to whether it sought such information -- Evidence -- Plaintiff's single inadvertent mention of name of defendant's liability insurer in violation of pre-trial ruling did not give rise to level of prejudice required for granting of mistrial -- Trial court erred in failing to award plaintiff interest on jury verdict from date verdict was rendered until date final judgment was entered

27 Fla. L. Weekly D2583d

Insurance -- Interest -- Error to award prejudgment interest on insured property damage claim from date of jury verdict rather than from date of loss agreed upon by parties

27 Fla. L. Weekly D400b

Insurance -- Personal injury protection -- No error in entering summary judgment in favor of insurer in putative class action suit in which insureds sought late payment interest on medical expenses -- Interest on overdue PIP payments does not commence until loss accrues, which is 30 days after insurer receives notice of loss -- Trial court correctly determined that interest begins to accrue on the thirty-first day, when PIP payments are overdue

27 Fla. L. Weekly D1492a

Torts -- Medical malpractice -- Stay of proceedings -- Insolvent insurer -- Where action was brought against four defendants, one of defendants was insured by insolvent insurer, and order entered by foreign state court required that all actions in which insurer was or might be obligated to defend were stayed unless otherwise waived or agreed by all parties to the action, stay of proceeding under the circumstances was mandatory in order to allow Florida Insurance Guaranty Association time to investigate, evaluate, and defend the claims -- Trial court erred in ruling that six-month stay was limited to proceedings against only the defendant whose insurer was insolvent, in granting plaintiffs' motion to sever only that defendant from the lawsuit, and in allowing plaintiffs to proceed to take the severed defendant's deposition, although all other discovery against him was stayed for the six-month time period -- In order to protect FIGA's interest, stay must be as to entire proceeding, not just as to one party

27 Fla. L. Weekly D49a

Declaratory judgments -- Insurance -- Life -- Trial court correctly held that valid orders and mediation agreements in dissolution of marriage action provided former wife with an insurable interest to purchase life insurance policies on former husband -- Appropriate remedy for former husband, who maintained that insurer had no authority to provide former wife with life insurance policies insuring his life, is to file pleading in dissolution action to establish change in circumstances warranting reduction in insurance coverage or change in beneficiary of the policies -- Any modification would need to account for fact that former husband apparently owes child support arrearage and that premiums on policies have apparently been paid for several years by former wife

27 Fla. L. Weekly D153a

Insurance -- Liability -- Indemnity -- Where Little League Association contracted to use city's facilities for Little League events, and promised to indemnify city for all claims arising out of use of facilities and to procure insurance policy naming city as co-insured, trial court properly found that Little League's liability insurer was obligated to indemnify city and city's liability insurer for attorney's fees and costs incurred in successfully defending a personal injury claim which arose out of Little League's use of facilities -- Agreement with Little League shifted exposure from city's liability carrier to Little League's liability carrier, and primary obligation to defend city for an action arising out of Little League's use of city's facilities was with Little League's insurer -- Error to award city and city's insurer attorney's fees and costs incurred in bringing declaratory action seeking determination of right to indemnity -- Attorney's fees incurred in the defense of a claim indemnified against are part of the damages allowable, but attorney's fees incurred in establishing the right to indemnification are not allowable

27 Fla. L. Weekly D1722a

Torts -- Contracts -- Health maintenance organizations -- Action against HMO alleging breach of contract, fraud in inducement, fraud, intentional infliction of emotional distress, breach of implied covenant of good faith and fair dealing, and loss of consortium, arising out of HMO's withholding or denying authorization of claim for coverage under health benefit contract on ground that treatment sought was for a preexisting condition and therefore excluded from coverage -- Medical malpractice -- Trial court erred when it determined that claims dealt with medical malpractice and dismissed complaint on ground that plaintiffs failed to comply with statutory presuit notice requirements -- Conclusory allegation in complaint that the procedure for which HMO withdrew authorization was medically necessary is not an allegation that HMO rendered medical care to plaintiff -- Further, plaintiff's contractual claim calls for determination as to whether condition was pre-existing as contemplated by parties' contract which does not require a determination as to whether procedure was necessary -- Claims for fraudulent inducement, intentional infliction of emotional distress, and breach of implied covenant of good faith deal with HMO's alleged misrepresentations prior to parties entering into contract and with whether HMO's decision to deny authorization was malicious, not with the rendering of medical care -- Remand for further proceedings

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 -- Jurors -- Post-trial interview -- Where juror during voir dire claimed she was never party to lawsuit when, in fact, she had been sued in another county by a health care provider for allegedly failing to pay her daughter's medical bills, trial court should have granted defendant's request for juror interview -- No error in admitting evidence of defendant's indemnity agreement with its parent company -- Once defendant claimed that large award of punitive damages would hurt or bankrupt the company financially, the indemnity agreement became relevant for purposes of proving otherwise

27 Fla. L. Weekly D2533b

Insurance -- Uninsured motorist -- Evidence -- Fraud -- Where insured's fraud in connection with claim for personal injury protection claim did not void uninsured motorist coverage under policy, erroneous admission of evidence of the fraud in UM portion of trial was not harmless -- New trial on UM claim required

27 Fla. L. Weekly D2538a

Criminal law -- Grand theft of insurance proceeds -- Evidence was sufficient to establish that defendant knowingly used insurance proceeds for which third person had superior legal interest -- No error in denying motion for judgment of acquittal -- Jury instructions -- No error in failing to instruct jury regarding defendant's good-faith belief that he was entitled to insurance proceeds after house was damaged by fire -- Where defendant's mortgage deed gave mortgagee a legal interest in insurance proceeds superior to defendant's, and sufficient evidence was presented that defendant used the insurance proceeds for his own personal ends, knowing that mortgagee had superior possessory interest in funds, trial court properly instructed jury to determine whether such action constituted theft

27 Fla. L. Weekly D182a

Torts -- Fraud -- Insurance -- Limitation of actions -- Fraud action against insurance company for sale of whole life insurance policies represented to the plaintiffs to be retirement plans -- Where plaintiffs allege that they continued to pay premiums to insurer for what they believed to be retirement plans and did not learn of the fraud until eight years after purchase of policies, alleged fraud was an ongoing fraud, and each payment resulted in consequent injury to plaintiffs -- Fraud was not complete until plaintiffs were no longer suffering consequent injuries through payment of premiums and, thus, statute of limitations could not have begun to run until year plaintiffs learned of fraud or year they stopped paying premiums, whichever is later

27 Fla. L. Weekly D170a

Torts -- Fraud -- Insurance -- Limitation of actions -- Plaintiff who purchased policy from defendants alleging she was led to believe that she had purchased a retirement plan, only to learn that retirement plan was merely a life insurance policy with no retirement benefits -- Error to dismiss complaint with prejudice on statute of limitations grounds -- Statute of limitations could not have begun to run until date plaintiff learned of fraud or date plaintiff stopped paying premiums, whichever was later

27 Fla. L. Weekly D80b

Insurance -- Florida Insurance Guaranty Association -- Limitation of actions -- Declaratory action against FIGA asserting that FIGA is responsible for payment of judgment obtained in negligence action against insured of an insolvent insurer is barred by statute of limitations where plaintiff sued neither insured nor FIGA within one-year limitations period -- No authority to support plaintiff's contention that 1998 declaratory action against FIGA relates back to 1990 negligence action against the insured

27 Fla. L. Weekly D1640a

Insurance -- Uninsured motorist -- Exclusions -- Bodily injury sustained while using or occupying vehicle owned by insured but not insured under policy -- Where section of insurance policy dealing with uninsured motor vehicle coverage did not define ``vehicle'' or ``motor vehicle,'' applicable definition is that contained in section 324.021(1) -- Motorcycle falls within statutory definition of motor vehicle -- Error to enter judgment in favor of insureds who sustained bodily injury while using or occupying motorcycle owned by insured but not listed in policy

27 Fla. L. Weekly D1337a

Torts -- Contribution -- Indemnity -- Equitable subrogation -- Action against employer and employer's liability insurer by plaintiff who was injured on job when garage door on storage unit leased to employer malfunctioned, received workers' compensation benefits from employer, filed suit against lessor and its principals asserting breach of duty to maintain premises, and, as part of settlement of that suit, received assignment of ``all legal and equitable rights of actions, claims and interest, including but not limited to indemnity and contribution'' claims lessor might have against plaintiff's employer and employer's insurer -- Trial court correctly dismissed plaintiff's claim, as lessor's assignee, for equitable subrogation -- Under doctrine of equitable subrogation, upon payment of any claims which should have been paid by employer, lessor would have stood in the shoes of plaintiff and succeeded to plaintiff's rights against employer and insurer; and plaintiff's rights to sue employer in tort were non-existent because employer had paid workers' compensation benefits for accident and was immune from suit under workers' compensation law -- Common law indemnification -- Record does not show any legal relationship between lessor and employer which would render lessor vicariously, constructively, derivatively, or technically liable to plaintiff because of some negligence or fault on employer's part -- Record established that employer was in possession and control of rented storage space and that co-employee directed plaintiff to attempt to open jammed garage door, which resulted in plaintiff's injuries -- Absent vicarious liability, lessor, and plaintiff as lessor's assignee, had no cause of action for common law indemnity against employer -- Contractual indemnity -- Although lessor was not entitled to contractual indemnification for its own negligent acts under terms of lease between lessor and employer, factual issue remains as to whether lessor was legally or factually responsible for plaintiff's damages -- Finding that lessor was wholly or partially at fault in accident could not be based on underlying lawsuit where lessor never admitted negligence in that suit, release signed in connection with the settlement of the suit specifically acknowledged that lessor's payment to plaintiff was not to be considered as an admission of liability, and lessor steadfastly denied its liability -- Trial court properly found that insurer would not be liable to pay employer's damages under a contractual indemnity theory based on provision in liability policy expressly excluding liability assumed under a contract

27 Fla. L. Weekly D2186b
830 So. 2d 156

Insurance -- Homeowners -- Liability -- Exclusions -- Intentional acts -- Where insured, while investigating damage to his vehicle after accident, heard someone behind him, turned around and saw hands in the air, and, believing that he was going to be hit, reacted quickly and punched plaintiff on the side of the head, intentional acts exclusion was applicable, and homeowners policy provided no coverage for injuries suffered by plaintiff as result of blow to his head -- Where complaint alleged that insured either intentionally struck plaintiff or intentionally struck plaintiff based upon an erroneous belief that he was an assailant, the intentional act falls within the exclusion of the homeowners policy -- Even if insured's acts were deemed to be in self defense, such acts would be excluded from coverage under intentional acts exclusion -- Insurer had no duty to defend or indemnify insured where allegations of complaint, when fairly read, did not bring case within coverage

27 Fla. L. Weekly D1845a
829 So. 2d 242

Insurance -- Homeowners -- Exclusions -- Damage caused by earth movement -- Trial court erred in finding that there was coverage under homeowners policy for structural damage to insured home caused by construction blasting near the property where policy excluded coverage for losses from any earth movement however caused -- When construing lead-in provision with earth movement exclusion, it is clear that policy excludes from coverage any loss resulting from earth movement, regardless of the cause of the earth movement, and trial court erred in finding that terms of earth movement exclusion and lead-in provision of policy were ambiguous as to whether the exclusion referred only to earth movement from natural causes

27 Fla. L. Weekly D748a
816 So. 2d 140

Insurance -- Uninsured motorist -- Excess coverage -- Where insured rented a car from a car rental agency and purchased an optional ``Rental Supplemental Liability Insurance Policy,'' but no uninsured motorist benefits were made available to insured, insured was entitled to uninsured motorist coverage because of insurer's violation of statutory requirement that UM coverage be made available at request of insured -- Trial court erred in finding that statutory obligation of carrier to offer UM coverage was negated by fact that self-insured rental company was not required to offer or provide primary UM coverage -- Excess coverage may arise by statutory requirement, even when no underlying or primary UM coverage exists

27 Fla. L. Weekly D1667a

Torts -- Insurance -- Interest -- Declaratory judgment action against excess liability insurer to enforce personal injury judgment which stated that it would bear interest at rate of twelve percent per year -- Trial court did not have jurisdiction to amend personal injury judgment six years after it was entered to alter and amend the interest rate -- Error to limit excess insurer's liability for interest on personal injury judgment to amount which exceeded primary coverage where express language of policy required insurer to pay all accrued interest, including interest on underlying judgment -- Under language of policy, excess insurer is required to pay interest which accrues on entire judgment up until time insurer pays its part of damages awarded -- Trial court's finding that insurer had notice of accident and suit was not erroneous or against manifest weight of evidence

27 Fla. L. Weekly D218a

Insurance -- Liability -- Excess coverage -- Indemnity -- Costs -- Insured's action against excess insurer seeking indemnity for damages arising out of incident in which diesel engine designed and manufactured by insured and installed on ship overheated and exploded, severely burning a deck hand -- No error in entering judgment following verdict in favor of insurer on insured's claim for indemnity where policy required insured to notify insurer of any claims or developments in any lawsuits that might reach into its policy coverage, and jury found that insured's failure to give timely notice to insurer caused actual prejudice to insurer and further found that broker was not agent of insurer for purpose of receiving notice of injured party's claim -- Evidence -- No abuse of discretion in granting insurer's motion in limine to exclude testimony by insured's experts where experts, who were the attorneys who represented deck hand and ship owner's excess carrier in deck hand's negligence action, refused to answer certain deposition questions and to produce documents on ground of attorney-client privilege -- Having chosen to use attorneys who were involved in underlying proceedings, it was incumbent upon insured to obtain waiver of any attorney-client privilege if it intended to present those attorneys as testifying experts -- No merit to insured's argument that trial court abused its discretion in refusing to admit evidence of insurer's conduct subsequent to its receipt of written notice of underlying lawsuit -- Decision to exclude evidence of insurer's lack of investigation and lack of participation in remaining dispute among codefendants following its receipt of notice of settlement was not error -- If ruling were erroneous, any error was harmless because trial court ultimately did admit evidence of insurer's action after receipt of notice during insurer's portion of case, and insured was free at that point to recall witnesses during its rebuttal to fully explore insurer's post-notice activities -- No error in denying motion for directed verdict on issue of whether broker was acting as excess carrier's agent pursuant to terms of parties' contract -- Cost judgment cannot be effectively reviewed on appeal where judgment did not specify how it determined amount, and its determination was not evident from face of record -- With regard to expert attorney fees included in cost judgment, the same findings should be provided by court as are required for the award of a party's attorney's fees, including reasonable number of hours expended, reasonable hourly rate, and any other components which make up any part of fee -- Remand for entry of order setting forth findings as to calculation of that fee

27 Fla. L. Weekly D1345

aInsurance -- Uninsured motorist -- Evidence -- Abuse of discretion to fail to admit into evidence the application for social security benefits that insured made eight months prior to accident in which he described in detail his inability to work -- Evidence was not merely cumulative to insured's trial testimony -- Stated basis for ruling, that admission of documents would incorrectly admit evidence of a collateral source, is erroneous where insurer sought to introduce social security application for limited purpose of showing the jury insured's statements regarding his physical limitations made eight months prior to accident -- Fact that statements were made in an application for social security benefits does not introduce evidence of receipt of benefits from a collateral source

27 Fla. L. Weekly D1240a

Insurance -- Uninsured motorist -- Action against insurer by passenger in insured vehicle which was struck by phantom vehicle on interstate highway -- Where action was initially filed against insurer and Department of Transportation, and negligence claim against D.O.T. was settled, leaving insurer as sole defendant, trial court erred in allowing insurer to inform plaintiff on morning of trial that it would defend case by saying that accident was attributable to negligence of D.O.T., and to proceed with that defense and place D.O.T. on verdict form as a nonparty defendant -- In order to include nonparty on verdict form, defendant must plead as affirmative defense the negligence of the nonparty -- Error to permit insurer to present testimony of expert witness who had been plaintiff's expert in claim against D.O.T., where witness was not on insurer's witness list, and insurer disclosed its intent to call witness on morning of trial -- Reservation of right to call witnesses on other parties' pretrial catalog was not fair disclosure -- Error to permit insurer to elicit from expert witness, on direct examination, the fact that expert had originally been plaintiff's expert witness in claim against D.O.T. -- As a general rule, jury should not be told during direct examination of the witness that he was originally the expert of the plaintiff -- If plaintiff were to open door on cross-examination, insurer can walk through the door; and if plaintiff were to take position that D.O.T.'s negligence played no part in accident at all, then insurer could bring out the fact that expert was originally hired by plaintiff to testify that D.O.T. was, in fact, negligent -- No abuse of discretion in denying motion for directed verdict or in excluding evidence of amount insurer paid for damage to vehicle which plaintiff did not own -- Collateral source jury instruction should have been given where insurance policy was introduced into evidence, and face sheet showed that it included no-fault benefits -- Insurer entitled to setoff for personal injury protection benefits that it paid to plaintiff

27 Fla. L. Weekly D579a

Insurance -- Life -- Action against life insurance company for failure to pay life insurance benefit upon death of insured, with company asserting affirmative defense that policy had lapsed as result of non-payment of premium -- Where policy provided grace period for payment of premiums and required company to provide owner of policy with lapse notice, with notice to be deemed delivered when mailed, and company presented evidence of its routine business practices as proof that it mailed lapse notice, trial court did not err in admitting testimony of insured's personal representative and insured's insurance agent that lapse notice was not received to rebut company's proof of mailing -- Because appellate court, in reversing prior summary judgment in case, had held that insured was entitled to contradict company's proof of mailing by arguing non-receipt as one of multiple facts the personal representative relied on in opposition to company's claim of mailing, appellate court's prior opinion is law of the case on issue of admissibility of evidence in question -- Prejudgment interest -- Trial court properly found that where the provisions of section 627.4615, Florida Statutes, governing interest payable on death claim payments, limited prejudgment interest to 8 percent, limitation was applicable only from the date of filing of the claim until the date of filing of suit

27 Fla. L. Weekly D628c

Insurance -- Employers liability -- Coverage -- Spoliation of evidence claim -- Claim by insured's employee, who was injured when a ladder collapsed, against insured for spoliation of evidence by losing or disposing of ladder which was needed as evidence in plaintiff's product liability suit against manufacturer and distributor of ladder -- Where policy provided that, ``We will pay all sums you legally must pay as damages because of bodily injury to your employees, provided the bodily injury is covered by this Employers Liability Insurance,'' policy provided coverage for spoliation of evidence claim, and insurer was obligated to defend and indemnify insured -- Insurer's contention that coverage was not provided under language which provided that insurer would pay damages ``because of bodily injury to your employee that arises out of and in the course of employment, claimed against you in a capacity other than as employer,'' is without merit because insured was sued as the owner of the ladder who accidentally destroyed it, and therefore was sued in a capacity other than as employer

27 Fla. L. Weekly D1806b

Insurance -- Workers' compensation -- Employer's liability -- Plaintiff seeking to recover from insurer the amount of a judgment entered against insureds pursuant to a settlement agreement whereby the insureds admitted liability and conceded damages in specified amount, insureds assigned their rights under policy to plaintiff, and plaintiff agreed to seek to recover under the judgment only against insurer under the policy -- Where insurer refused both coverage and a defense to its insured for claims brought by injured employee against insured in a civil action, insurer thereby ceded to its insured control of the litigation and the right to settle the claims -- Insurer is bound by settlement waiving defense of workers' compensation immunity and may not assert that defense against plaintiff's claim for policy benefits to satisfy the judgment entered against the insured pursuant to settlement agreement -- Insurer may not relitigate issue of liability by raising any affirmative defenses that could have been raised in the civil action -- Error to grant summary judgment in favor of insurer on ground that exclusive remedy for claims covered by judgment was workers' compensation benefits -- On remand, trial court will have to determine whether employer's liability policy coverage extended to include plaintiff's civil action -- Workers' compensation exclusion in employer's liability coverage does not apply to civil action because the settlement judgment was not an ``obligation imposed by worker's compensation'' law, but instead arose from claims in civil action and settlement agreement among parties to that action, neither of which involve obligations imposed by workers' compensation law -- Whether supervisor was insured under policy and whether intentional tort exclusion applies are issues remaining to be determined -- If there is coverage, it will be necessary to determine whether amount of judgment is reasonable

27 Fla. L. Weekly D1145b

Insurance -- No error in entering summary judgment in favor of insurer in declaratory action in which insured sought coverage and defense for certain counterclaim where dates alleged in counterclaim were clearly outside the term of insurer's coverage, and insurer was never notified of a claim within its coverage

27 Fla. L. Weekly D2330b

Insurance -- Uninsured motorist -- Torts -- Fraud -- Action in which insured alleged that insurer fraudulently failed to disclose and pay uninsured motorist benefits that were available under her insurance policy -- Discovery -- Trial court departed from essential requirements of law in setting aside protective order under which insurer designated as confidential the performance, planning and review evaluations of the personnel involved in handling of insured's claim -- Financial practices that constitute economic fraud are not a “public hazard” under provision of Sunshine in Litigation Act prohibiting court from entering order or judgment which has purpose or effect of concealing a public hazard or any information concerning a public hazard -- Protective order, which allowed the parties to designate documents to be produced as confidential, and thereby limit their availability to parties and witnesses involved in litigation, was agreed to by the parties and fairly balanced the discovery and privacy interests involved in the underlying case

27 Fla. L. Weekly D458b

Insurance -- Personal injury protection -- Discovery -- Where PIP insurer was billed for MRI performed on its insured by entity which did not perform the MRI services, county court properly granted insurer's petitions seeking discovery from the service which did perform the MRI, directing the service which performed the MRI to produce unredacted copy of servicing/leasing agreement with entities who ultimately billed insurer for MRI services, as well as copies of all invoices, bills, and other documentation evidencing the costs of MRI services -- Owner of MRI facility which actually rendered MRI services for insured can be required to produce discovery although it has neither accepted an assignment of benefits from the insured nor billed the insurer for its services -- No merit to claim that MRI facility should not be required to produce lease agreements with billing entities because lease agreements contain confidentiality clause -- Lease confidentiality clause cannot act as a shield to discovery of facts and documentation necessary for an insurer's determination of benefits -- County court had jurisdiction of equity proceeding where amount in controversy in case did not exceed $15,000

27 Fla. L. Weekly D2344d

Insurance -- Civil procedure -- Discovery -- Action against insurer alleging bad faith failure to conduct reasonable investigation of personal injury protection claim -- Plaintiff is entitled to discovery of records of payments to physicians who performed independent medical examinations, and insurer cannot avoid disclosure of such records by employing a third party to arrange, schedule, and pay for IMEs on behalf of insurer -- Trial court order granting motion for leave to inspect computer system of third party that maintained records for insurer was overly broad in that it set no limitations on the inspection of computer system, notwithstanding third party's claim that there is confidential and privileged information in its computer system -- Remand for trial court to craft narrowly tailored order that accomplishes purposes of discovery requests and provides for confidentiality of the discovery

27 Fla. L. Weekly D1966a

Insurance -- Uninsured motorist -- Discovery -- Dispute arising from UM insurer's denial of coverage for injuries sustained by insured's daughter on ground that daughter was not a ``resident'' in insured's Nevada household -- Portion of order requiring insurer to produce ``copies of all coverage opinions which define resident, residence, and residency'' requires the disclosure of protected work product, and trial court departed from essential requirements of law in ordering disclosure of this information -- Trial court departed from essential requirements of law by requiring insurer to disclose ``copies of lawsuits wherein the defendant has been sued'' since this information could be obtained by insured through alternative means

27 Fla. L. Weekly D2292b

Insurance -- Discovery -- Count for common law bad faith failure to defend brought in first-party action against insurer -- Insurer which sought certiorari review failed to show irreparable harm -- Whether insured's settlement of underlying claim provides necessary “determination of liability” should await trial of the matter

27 Fla. L. Weekly D1135c

Torts -- Insurance -- Discovery -- Trial court departed from essential requirements of law in compelling insurance company to produce portions of its claim file and to produce a privilege log in personal injury action where insurance company was not a party to the action

27 Fla. L. Weekly D1378b

Venue -- State agencies -- Home venue privilege -- Exceptions -- Where plaintiff obtained a money judgment for attorney's fees in Broward County as result of her successful defense of a libel suit, and initiated proceedings supplementary by impleading Department of Insurance as a defendant, in its limited capacity as a bondholder, and seeking to levy on bond posted by the judgment debtor, a former Department of Insurance viatical settlement provider licensee, trial court had discretion to dispense with Department's home venue privilege -- Trial court did not abuse its discretion in holding that home venue privilege should give way to well-recognized, statutorily-based precept that venue in supplementary proceedings remains where venue began in the underlying action

NOT FINAL VERSION OF OPINION
Subsequent Changes at 27 Fla. L. Weekly D1378b

27 Fla. L. Weekly D474a

Venue -- State agencies -- Home venue privilege -- Exceptions -- Where plaintiff obtained judgment against viatical settlement provider in Broward County, and initiated proceedings supplementary by impleading Department of Insurance as a defendant and seeking to levy on bond posted by viatical settlement provider, trial court had discretion to dispense with Department's home venue privilege -- Because Department was named as an impleaded defendant in the original action already proceeding in Broward Circuit Court, and was sued in its limited capacity as a bond holder, transfer of case would result in new and additional litigation in a different court and would do little to further the policy considerations of the home venue privilege

27 Fla. L. Weekly D2417c

Insurance -- Insured's action against insurer seeking declaration that policy provided coverage for accident involving insured's son -- Discovery -- Trial court departed from essential requirements of law by ordering claims adjuster to answer all deposition questions, even those calling for trade secrets -- Portion of order directing claims adjuster to answer question that is objected to on grounds of trade secrets before trial court determines whether insurer has valid trade secret privilege to assert quashed

27 Fla. L. Weekly D2358a

Administrative law -- Department of Insurance -- Administrative law judge properly rejected collateral challenge by insurance company to allegations in section 120.57 administrative proceeding brought by Department, contending that specified allegations in the administrative complaint were in fact unpromulgated rules -- Department's complaint alleged that certain of company's underwriting practices are facial violation of regulatory statutes, and company made no showing of any statement of general applicability so as to require rulemaking by Department -- Administrative law judge properly found that company has no right to pursue a separate, collateral challenge to an alleged nonrule policy where an adequate remedy exists through a section 120.57 proceeding

27 Fla. L. Weekly D523b

Declaratory judgments -- Advisory opinion -- Insurance -- Trial court erred in entering declaratory judgment holding to be unconstitutional statute governing rate filings with Department of Insurance where plaintiff insurance companies had no rate increase requests pending before Department at time of filing declaratory judgment action, so that there was no present controversy -- Allegations which merely raise the possibility that plaintiffs might, in the future, have rate changes disapproved based on the challenged statutory provision are insufficient to create a present controversy -- Because there was no actual, present dispute concerning rate filings involving the challenged provision, declaratory judgment constituted an impermissible advisory opinion

27 Fla. L. Weekly D815a

Insurance -- Liability -- Declaratory judgment -- Coverage -- Discovery -- Where, after underlying tort action against insured had been bifurcated into liability and damages, with court entering partial summary judgment against insured on liability, insurer filed declaratory judgment action alleging that no coverage existed for insured's liability in underlying action, trial court improperly entered order compelling insurer to turn over its claim file and to submit its counsel and corporate representative to deposition -- Certiorari is appropriate where the trial court has ordered production of an insurer's claim file prior to a determination of coverage, and where the trial court has ordered production of a privileged document -- When the issue of insurance coverage is unresolved and at issue in pending court proceedings, a trial court must not order an insurer to produce its claim file and other work product documents -- Neither the insured nor the third party plaintiff is entitled to discovery of the claim file in a declaratory action to determine coverage, because the claim file is the insurer's work product

27 Fla. L. Weekly S692a

Attorneys -- Insurance staff attorneys -- Circuit court judge directed to vacate orders prohibiting defense counsel who are employed as full-time insurance company staff counsel from using their individual firm names in pleadings and correspondence, or requiring insurance company staff counsel to disclose their insurance company affiliation in filing pleadings and other papers in litigation over which judge presides -- Prohibitions encroach upon supreme court's ultimate jurisdiction to adopt rules for courts

27 Fla. L. Weekly D61d

Insurance -- Contracts -- Modification -- Reformation -- Appeal of summary judgment in which trial court determined that parties in a document entitled Modification of Management Agreement properly reformed their original agreement to provide an always-intended indemnification against its own negligence for property manager -- Summary judgment error because position now taken by insureds, landowner and property manager, that they had always meant to include indemnification provision, is contrary to position taken by landowner in earlier appeal -- Modification document cannot properly be viewed as a reformation -- Modification document is an impermissible attempt to modify original agreement retroactively so as to shift priority of insurance coverage after an insured loss has occurred

27 Fla. L. Weekly S710a

Insurance -- Disability -- Conflict of laws -- Appeals -- In Florida, the burden of proof is a procedural issue for conflict of laws purposes -- District court decision that places burden of proof on insurer to establish that the insured no longer comes within the purview of the policy in a situation where the insurer begins to pay disability benefits but later ceases to pay because it believes the insured is not disabled is not part of substantive law of Florida, and it would be applicable in a case where under Florida's doctrine of lex loci contractus the substantive law of another state governs the parties' contract dispute -- Florida Supreme Court opinion discharging writ of certiorari as improvidently granted does not constitute binding precedent

27 Fla. L. Weekly D985a

Insurance -- Commercial general liability -- Duty to defend -- Advertising injury -- Insured's display of cigar lighter which infringed on competitor's copyright and trade dress at industry's largest trade show, whether it was open to general public or not, was sufficient to qualify as "widespread public distribution'' -- Error to find that insurer had no duty to defend insured in suit brought against insured by competitor

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

27 Fla. L. Weekly D513c

Insurance -- Commercial general liability -- Exclusions -- Spoliation of evidence claim -- Action by insured's employee, who was injured when a ladder collapsed, against insured for spoliation of evidence by losing or disposing of ladder which was needed as evidence in plaintiff's product liability suit against manufacturer and distributor of ladder -- Plaintiff's claim for spoliation of evidence is properly viewed as being ``because of bodily injury'' and is within scope of insuring agreement in commercial general liability policy -- Coverage for spoliation of evidence claim is excluded under exclusion for ``bodily injury to an employee of the insured arising out of and in the course of employment by the insured'' -- Because plaintiff's claim is for bodily injury suffered in the course of employment, exclusion is applicable, and trial court erred in entering summary judgment finding that coverage existed

27 Fla. L. Weekly D844a

Civil procedure -- Class actions -- Insurance -- Where plaintiffs suffered covered loss, and insurer paid the disputed amount with interest shortly after plaintiffs brought county court action and before complaint was amended to assert class action claims against insurer, there was no existing dispute between plaintiffs and insurer that would give plaintiffs standing to proceed on behalf of other potential plaintiffs with similar disputes -- No error in dismissing class action claims for lack of standing -- Situation was not one in which insurer ``picked off'' putative class representatives since plaintiffs were paid in full two years before class action claims were filed -- Plaintiffs may pursue any individual claim they may have against insurer, including their claim for attorney's fees and costs

27 Fla. L. Weekly D1521a

Civil procedure -- Class actions -- Certification -- Insurance -- Error to certify class of Florida insureds where plaintiff did not prove elements required for certification -- Size of insurer's business alone does not establish numerosity -- Claim that insurer should treat all of its insureds the same is insufficient to establish commonality, and plaintiff demonstrated no common right of recovery based on the same essential facts -- Plaintiff's claims are not typical of any purported class claims -- Nothing in record demonstrates that plaintiff would be adequate class representative

27 Fla. L. Weekly D2405b

Insurance -- Liability -- Commercial lines policy -- Coverage -- Policy did not cover truck which was not in service at time insurance policy was issued and was not included in the policy as a covered vehicle -- Policy clearly stated that additional vehicles were covered only if the insured had reported the vehicle to the insurer, and expressly provided that no automatic coverage was afforded for new and/or replacement vehicles -- By failing to report truck prior to collision, insured failed to meet essential condition of policy, and coverage did not exist -- Coverage did not exist for individual driving truck at time of collision because he was new driver who had not been added to policy at time of collision -- Estoppel -- Violation of claims administration statute by hiring attorney to represent insured in wrongful death action without obtaining consent of insured -- Estate of individual who was killed when truck struck his automobile did not have standing to assert claim of estoppel under section 627.426(2) -- Conditions imposed by section 627.426(2) apply only to immediate parties to insurance contract -- Coverage not established as matter of federal law -- Trial court incorrectly relied on Form MCS-90 which provides, in essence, that premium paid on policy to insure fleet of trucks also covers truck not specifically listed in policy if truck is involved in accident in course of interstate shipment, because there was no evidence that driver was using truck in interstate shipment of goods at time of collision -- Fact that truck might be used for interstate shipment in future does not bring accident within scope of Motor Carrier Act's insurance coverage provision

27 Fla. L. Weekly S499a

Insurance -- Uninsured motorist -- Personal injury protection -- Coverage -- Denial -- Fraud -- Submission of fraudulent bill under PIP portion of a divisible automobile liability policy does not void UM coverage where the policy contains a general condition that provides that the insurer ``will not provide coverage for any loss that occurs in connection with any material misrepresentation, fraud or concealment of material facts, or if any material misrepresentation or omission was made on the auto insurance application'' -- Insured did not forfeit his right to make claim for UM benefits after he submitted fraudulent bills for reimbursement under PIP benefits provision of the policy -- Because district court concluded that UM coverage was properly voided based upon the fraud relating to PIP coverage, that court never considered if evidence of fraud was independently admissible on other issues in the case, or alternatively, whether its admission constituted harmless error -- Court declines to address these issues

NOT FINAL VERSION OF OPINION
Subsequent Changes at 27 Fla. L. Weekly D2405b

27 Fla. L. Weekly D1883a

Insurance -- Liability -- Commercial lines policy -- Coverage -- Policy did not cover truck which was not in service at time insurance policy was issued and was not included in the policy as a covered vehicle -- Policy clearly stated that additional vehicles were covered only if the insured had reported the vehicle to the insurer, and expressly provided that no automatic coverage was afforded for new and/or replacement vehicles -- By failing to report truck prior to collision, insured failed to meet essential condition of policy, and coverage did not exist -- Coverage did not exist for individual driving truck at time of collision because he was new driver who had not been added to policy at time of collision -- Estoppel -- Violation of claims administration statute by hiring attorney to represent insured in wrongful death action without obtaining consent of insured -- Estate of individual who was killed when truck struck his automobile did not have standing to assert claim of estoppel under section 627.426(2) -- Conditions imposed by section 627.426(2) apply only to immediate parties to insurance contract -- Coverage not established as matter of federal law -- Trial court incorrectly relied on Form MCS-90 which provides, in essence, that premium paid on policy to insure fleet of trucks also covers truck not specifically listed in policy if truck is involved in accident in course of interstate shipment, because there was no evidence that driver was using truck in interstate shipment of goods at time of collision -- Fact that truck might be used for interstate shipment in future does not bring accident within scope of Motor Carrier Act's insurance coverage provision

27 Fla. L. Weekly D1808b

Insurance -- Commercial general liability -- Claims administration -- Insured is entitled to recover expenses incurred in defending himself against a covered claim, even if insured violated policy provision requiring prompt notice of claim, after insurance carrier agreed to defend only with a reservation of its right to deny coverage -- Under Claims Administration Statute, once carrier gives insured notice of reservation of rights, carrier must either get a nonwaiver of right to contest coverage from its insured or furnish mutually acceptable counsel to represent insured in lawsuit -- No error in failing to exclude expenses incurred between commencement of suit and time suit papers were sent to insurer -- Any violation of notice provision by insured is in nature of a ``coverage defense'' within meaning of CAS, and carrier is barred from asserting a coverage defense unless carrier has complied fully with the statute -- Even if insured's violation of notice provision survived carrier's failure to comply with claims administration statute and its policy duty to defend, carrier can point to no prejudice from insured's failure to send papers earlier -- Delay in giving notice had no effect on carrier's contractual duty to defend suit because carrier refused an unconditional defense and thereby ceded defense to the insured

27 Fla. L. Weekly D643b

Insurance -- General liability -- Action by plaintiff who had recovered default judgment against insured seeking recovery from liability insurer which had canceled policy prior to date of accident in which plaintiff was injured, alleging that policy was erroneously canceled and that finance company was without authority to issue cancellation notice -- Because plaintiff was not a party to premium finance contract between insured and finance company and had no assignment of interest from insured, plaintiff lacked standing to challenge premium finance contract -- Summary judgment properly entered for defendant insurer

27 Fla. L. Weekly D425b

Insurance -- Cancellation of policy -- Notice of cancellation

27 Fla. L. Weekly D1700a

Insurance -- Claims for breach of insurance contract and bad faith, alleging insured suffered covered loss under her insurance policy consisting of damage to her truck -- Discovery -- Claim file -- Work product -- Order requiring insurer to produce its ``entire claim file'' to plaintiff quashed -- Trial court departed from essential requirements of law in determining that counsel for insured made requisite showing of undue hardship required by Rule 1.280(b)(3) for obtaining materials otherwise protected by work product

27 Fla. L. Weekly D1005a

Insurance -- Personal injury protection -- Discovery -- Attorney-client privilege -- Work product -- Insured's action against insurer alleging bad faith based, in part, on letter from insurer to insured's medical providers representing that insurer had statutory right to arbitrate regarding bills, allegedly sent after district court had declared mandatory arbitration to be unconstitutional -- Failure of insurer to file privilege log listing specific documents to which it claimed privilege would attach resulted in waiver of attorney-client and work product privileges -- The only part of trial court's order compelling production of documents for which certiorari is granted is portion requiring letters, memoranda, or other written or recorded communication to or from insurer's attorneys concerning compliance with particular district court decision because, on its face, that request required disclosure of attorney-client communications -- Production should not have been ordered without first conducting in camera inspection -- Interrogatory requesting names and addresses of other PIP claimants who were advised that a healthcare provider must arbitrate directly with insurer appears to be overbroad and a fishing expedition and should not be allowed -- Other PIP claimants were not parties to instant action, and insurer's handling of their claims is not relevant to limited question of whether insurer acted in bad faith in handling insured's claim -- Trial court did not depart from essential requirements of law by allowing insured to pursue discovery on issue of insurer's bad faith based on conclusion that insurer's payment of disputed medical bills by the time the complaint was served was the functional equivalent of a determination of insured's damages, thereby concluding underlying claim for benefits -- Whether trial court erred in denying insurer's motion to dismiss can be reviewed on plenary appeal, if necessary

27 Fla. L. Weekly D2188a

Insurance -- Automobile liability -- Contracts -- Settlement agreement -- Meeting of the minds -- Where insurer agreed to plaintiffs' demand for settlement of claim for policy limits and submitted settlement check along with release which provided for plaintiffs to indemnify insurer for any future claims or litigation arising out of accident, but plaintiffs' attorney returned settlement checks to insurer with letter rejecting the indemnification language in the release, there was no binding settlement agreement -- Disagreement between parties as to the indemnification language was an essential element of the settlement -- Trial court should have denied insurer's motion for summary judgment on its settlement enforcement claim, and should have granted plaintiffs' motion for summary judgment on the defense that there was no meeting of the minds -- Plaintiffs' failure to respond after objectionable language was removed from the release did not indicate an acceptance because insurer's removal of the indemnification language evinced a new settlement offer which plaintiffs were not obliged to accept

Circuit court order granting motion for summary judgment at 8 Fla. L. Weekly Supp. 827a

27 Fla. L. Weekly D331c

Insurance -- Automobile liability -- Other insurance -- In consolidated civil actions relating to an accident involving a tractor-trailer, trial court incorrectly determined two insurance policies, one carried by the driver and owner of the tractor and the other by the owner of the trailer, both provided primary coverage -- In light of the respective ownerships of the tractor and trailer, the ``other insurance'' clauses, found in each of the policies, specifying primary and excess coverage for cases involving trailers connected to motor vehicles with different owners, provide for primary coverage under the driver's policy and excess coverage under the policy of the owner of the trailer -- Although multiple primary coverages are appropriate in some circumstances, the plain wording and meaning of the policies at hand control the resolution of this case

27 Fla. L. Weekly D1723a

Insurance -- Automobile liability -- Commercial general liability -- Multi-flex policy -- Stacking -- Antistacking clause in automobile part of multi-flex policy is unambiguous, and limits coverage provided by affiliate insurance carriers for the same accident to $1 million -- Parties do not dispute that entity providing automobile liability coverage and entity providing CGL coverage are affiliated insurance carriers -- Evidence established that automobile liability and CGL were coverage parts within a single multi-flex policy with a single policy number, not separate policies, and that neither the auto part nor the CGL part included an integration clause which would preclude application of antistacking provision in auto part to CGL portion of multi-flex policy -- Fact that antistacking clause in auto part applies to both auto and CGL part is buttressed by policy's inclusion of a provision limiting liability coverage in the auto part -- Assertion of antistacking clause does not constitute a coverage defense requiring insurer to comply with Florida's Claims Administration Statute -- Claims administration statute does not apply where insurer is not denying coverage under CGL part of policy, but is arguing that liability is limited to $1 million under policy's antistacking clause -- Antistacking clause applies to additional insured as well as named insured -- Trial court reversibly erred when it granted summary judgment in favor of plaintiffs, finding that plaintiffs were entitled to stack coverages from the two policy parts

27 Fla. L. Weekly D652a

Insurance -- Automobile liability -- Bad faith -- Discovery -- Privilege -- Work product -- Memoranda prepared by insurer's employees during litigation over insurance coverage for claims arising from automobile accident involving multiple deaths and injuries fell within work product privilege where the documents were prepared during ongoing bad faith litigation -- Intervenors who sought the memoranda failed to establish that they had substantial need for the documents, an exception to the work product rule -- Inconsistencies in testimony and discrepancies are not basis to compel production of work product material -- The memoranda concerned when one of the employees first learned that one of the persons injured in accident had been rendered quadriplegic, and it appears that, with respect to bad faith issues, intervenors received the ``substantial equivalent'' of the requested memoranda when the two employees testified at depositions that they did not know or bother to inquire about this person's condition prior to paying out policy limits to other claimants -- Order requiring production of memoranda quashed

27 Fla. L. Weekly D1615a

Insurance -- Automobile liability -- Settlement agreement -- Letter from insurer's counsel which stated that it was insurer's ``intention to consummate a settlement'' for the full extent of the policy limits did not result in a binding settlement agreement -- Statement was a conditional statement of intention to take action in the future, and did not give rise to an enforceable contract -- Trial court erred in entering order enforcing settlement

27 Fla. L. Weekly D2389a
833 So. 2d 804

Insurance -- Class actions -- Action against automobile insurer to recover unearned premiums -- Where insured was involved in accident after her policy had been canceled, insured demanded that insurer afford coverage for the accident or return unearned premiums, and insurer agreed to reinstate policy and provide coverage for the accident, insured did not have standing to maintain class action against insurer to recover unearned premiums, because insured had no claim for unearned premiums -- Because insured had sustained no damages, she had no standing to maintain action on behalf of class -- Trial court properly denied class certification

27 Fla. L. Weekly D351a

Contracts -- Insurance -- Automobile -- Class action seeking damages for breach of contract based on insurer's policy of authorizing non-original equipment manufacturer parts to be used in repair of automobiles -- Trial court erred in going beyond four corners of complaint and dismissing complaint for failure to state cause of action based on lack of proof -- Appellate court cannot say, based on allegations of complaint, that insured could not produce prima facie evidence supporting his allegations that insurer authorized automobile to be repaired with non-OEM parts without insured's knowledge, that the non-OEM parts were not of ``like kind and quality'' and were not only uniformly inferior in quality, but did not restore vehicle to its pre-loss condition, and that insurer's obligations under policy ``could be met only by requiring the exclusive use of factory-authorized or OEM parts''

27 Fla. L. Weekly S492a

Insurance -- Automobile -- Collision -- Coverage -- Diminution in value -- Automobile collision policy which provides that the insurer must repair or replace the damaged vehicle "with other of like kind and quality'' does not 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 -- Insurer's use of terms "repair,'' "replace,'' and "like kind and quality'' does not create an ambiguity in policy

27 Fla. L. Weekly D881aI

nsurance -- Automobile -- Collision -- Coverage -- Competent substantial evidence supported trial court's finding that insured had eliminated collision coverage in policy prior to accident, after receiving notice of increased premium, in order to reduce her insurance premium -- Statute setting forth procedure an insurance company must follow when an additional premium is sought does not preclude insured from changing coverage in order to reduce premium -- No merit to insured's contention that, because reduction of coverage is not one of three options specified in statute, amendment to policy had no effect and original policy remained in effect until cancellation date specified in notice of premium increase -- Although letter from insurer stated that policy was reinstated ``as originally written,'' witnesses testified that language referred to policy with any amendments, including the reduction in coverage

27 Fla. L. Weekly D1841a

Insurance -- Automobile -- Coverage -- Estoppel -- Cancellation of policy by insurer upon receipt of copy of cancellation notice from premium finance company -- Where insured never received notice of cancellation from premium finance company because premium finance company did not have insured's correct address, court erred in finding that insurance company should be equitably estopped from denying coverage under policy which had been canceled, because insurance company did have insured's correct address but failed to provide the correct address to premium finance company -- Doctrine of estoppel may not be used to create or extend coverage

27 Fla. L. Weekly D778a
814 So. 2d 1119

Insurance -- Automobile -- Summary judgment in favor of insureds on insurer's claims for rescission and cancellation is fully supported by record -- Insurer failed to make tender of all premiums paid by insureds, a necessary condition precedent to rescission claim -- Insurer failed to comply with statutory obligations to effect cancellation of policy where it sent refund of unearned premium solely to premium finance company rather than to insured -- Indemnity -- Claim for common law indemnity is wholly without merit where there is nothing in the record to support a conclusion that party seeking indemnification could be held vicariously liable for any misconduct of party from whom indemnification was sought

27 Fla. L. Weekly D2212a

Insurance -- Automobile -- Cancellation of policy -- Notice of cancellation given by premium finance company was not effective prior to accident, even though company had notified insured that policy would be cancelled on a date earlier than the date on which accident occurred, where insurer did not receive notice of cancellation until after the accident occurred -- Under section 627.848(1)(d), advance notice cancellation requirement contained in policy at issue applied to premium finance company and, accordingly, company could not make cancellation effective prior to insurer receiving notice of cancellation -- Insurer's argument that, because insured had already been notified by premium finance company that policy would be canceled on a specified date, the cancellation became effective on that date even though insurer did not receive notice of cancellation until subsequent date, is contrary to advance notice requirement of policy, which is applicable by statute to premium finance company

NOT FINAL VERSION OF OPINION
Subsequent Changes at 27 Fla. L. Weekly D2212a

27 Fla. L. Weekly D1659a

Insurance -- Automobile -- Cancellation of policy -- Notice of cancellation given by premium finance company was not effective prior to accident, even though company had notified insured that policy would be cancelled on a date earlier than the date on which accident occurred, where insurer did not receive notice of cancellation until after the accident occurred -- Insurer's argument that, because insured had already been notified by premium finance company that policy would be canceled on a specified date, the cancellation became effective on that date even though insurer did not receive notice of cancellation until subsequent date is contrary to section 627.848

27 Fla. L. Weekly D1672c

Insurance -- Personal injury protection -- Attorney's fees -- Waiver -- Where initial complaints contained request for attorney's fees as result of litigating PIP benefits, final judgment contained reservation of jurisdiction to award fees, and insurer did not appeal reservation or otherwise object to reservation, insurer waived any objection it might have to insurers' failure to properly plead entitlement to attorney's fees -- Circuit court departed from essential requirements of law in denying award of attorney's fees

Circuit court opinion at 8 Fla. L. Weekly Supp. 596b

27 Fla. L. Weekly D2251a

Insurance -- Automobile -- Cancellation of policy -- Estoppel -- Where insured received notice of cancellation of policy for non-payment of premium from premium finance company and also received a notice of cancellation of policy from insurer, which stated a later date of cancellation than the notice received from the premium finance company, insurer was not estopped from denying coverage for accident which occurred after effective date of cancellation of policy stated in notice from premium finance company but before effective date of cancellation of policy stated in notice from insurer -- Insured could not reasonably rely on insurer's cancellation date when he had twice been placed on notice that his policy would be canceled earlier by premium finance company -- Estoppel cannot generally be used affirmatively to extend coverage

NOT FINAL VERSION OF OPINION
Subsequent Changes at 27 Fla. L. Weekly D2251a

27 Fla. L. Weekly D1979a

Insurance -- Automobile -- Cancellation of policy -- Estoppel -- Where insured received notice of cancellation of policy for non-payment of premium from premium finance company and also received a notice of cancellation of policy from insurer, which stated a later date of cancellation than the notice received from the premium finance company, insurer was not estopped from denying coverage for accident which occurred after effective date of cancellation of policy stated in notice from premium finance company but before effective date of cancellation of policy stated in notice from insurer -- Insured could not reasonably rely on insurer's cancellation date when he had twice been placed on notice that his policy would be canceled earlier by premium finance company -- Estoppel cannot generally be used affirmatively to extend coverage

27 Fla. L. Weekly D1621a

Insurance -- Comprehensive general liability -- Duty to defend -- Attorney's fees -- Because comprehensive general liability policy issued to building contractor provided no coverage for class action claims for damages for repair of defective workmanship, but did provide coverage for claims for personal injury or damages to personal property which might result from defective workmanship, insurer had no duty to defend complaint against insured seeking damages for defective workmanship before amendment of complaint by interlineation to add claim for damage to personal property caused by construction defects -- Error to grant attorney's fees to insured on basis of insurer's failure to defend from time of service of suit on insured until date of amendment of complaint by interlineation to add covered claims -- Attorney's fees claim based on duty to defend cannot arise until duty to defend arises

27 Fla. L. Weekly D1188a

Insurance -- Automobile -- Medical payments -- Attorney's fees -- Where insured who had been injured in automobile accident requested that medical payments insurer preauthorize surgery for tear to the menisci in his knee, but, after insurer's physician examined insured and concluded that there was no tear, insurer advised insured that it was not going to make any additional payments for further orthopedic care, plaintiff's action against insurer was not premature although it was filed prior to insured having surgery in question -- Trial court properly awarded statutory attorney's fees to insured after insured had surgery, surgeon found that insured did, in fact, have torn meniscus, and insurer paid bills for surgery -- Trial court properly found that insurer has obligation to preauthorize surgery in a situation in which the injury is within the coverage of the medical payments portion of insurance policy

27 Fla. L. Weekly D920b

Attorney's fees -- Insurance -- Class action against automobile insurer for failing to comply with applicable statutes in cancellation of insurance policies -- Error to apply contingency fee multiplier in determining attorney's fee award on grounds that case involved complex and novel issues and that case had less than fifty percent chance of success at the outset, where there was no evidence that without risk enhancement plaintiff would have faced substantial difficulties in finding counsel in the local or other relevant market -- Award of prejudgment interest on attorney's fees from date summary judgment was entered for plaintiff was inequitable where plaintiff did not file motion for attorney's fees until more than three years after summary judgment, and defendant did not receive amount being requested until after filing of motion

27 Fla. L. Weekly D247e
805 So. 2d 119

Attorney's fees -- Appellate -- Insurance -- Personal injury protection -- Circuit court acting in its appellate capacity failed to apply correct law when it denied insured's motion for appellate attorney's fees solely because she did not prevail in appeal to the circuit court -- Circuit court apparently neither considered nor applied general rule set forth in Aksomitas v. Maharaj, that appellate court should ordinarily grant prevailing party attorney's fees contingent on party ultimately prevailing in case below and failed to consider exceptions in Aksomitas for appeals deemed unnecessary or where appellee should have confessed error -- Remand for further proceedings

27 Fla. L. Weekly D973b

Insurance -- International health insurance policy -- Arbitration -- Action by medical care provider, as assignee of insured, against insurer for breach of contract -- Trial court properly found that international health insurance policy containing arbitration clause which was issued to insured in Panama was subject to Federal Arbitration Act and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards -- Trial court did not err in compelling parties to submit breach of contract claim to arbitration -- Where arbitration clause in policy contained venue selection clause requiring arbitration in Jackson, Mississippi of any disputes arising from the policy or its breach, court erred in compelling arbitration in South Florida -- In the absence of showing that enforcing the forum selection clause would be unreasonable or that the clause is otherwise invalid, trial court erred in refusing to enforce arbitration in the contractual forum

27 Fla. L. Weekly D1843a

Arbitration -- Insurance -- Error to deny motion to compel arbitration -- Argument regarding McCarran-Ferguson Regulation Act is without merit, as party failed to demonstrate that application of Federal Arbitration Act would invalidate, impair, or supercede particular state law regulating business of insurance

27 Fla. L. Weekly D1196a

Arbitration -- Insurance -- Confirmation of award -- Where insurer never moved to vacate, modify, or clarify award pursuant to section 682.13, trial court properly affirmed award -- Prejudgment interest -- Insureds entitled to prejudgment interest from date of appraisal award unless policy provisions allow insurer to pay award within a certain period, and insurer made payment within the allotted time -- Remand for further proceedings

27 Fla. L. Weekly D340a

Insurance -- Insurer's action against insureds for breach of contract and return of insurance proceeds based on insureds' material misrepresentations on supplemental loss claim -- Trial court properly entered summary judgment for insureds where record does not show any material misrepresentations by insureds -- Error to award insureds prejudgment interest from date of loss -- Prejudgment interest to be awarded from date of appraisal award

27 Fla. L. Weekly S1028a

Insurance -- Homeowners -- Appraisal -- Where homeowners policy contained unambiguous provision for appraisal, there was no entitlement to formal arbitration under Florida Arbitration Code -- Once a trial court has determined that the appraisal provisions of a contract of insurance have been properly invoked, further proceedings should be conducted in accord with those provisions, rather than by the wholly different proceedings contemplated by an agreement to arbitrate

27 Fla. L. Weekly S1043a

Insurance -- Homeowners -- Appraisal clause in policy at issue plainly provided for appraisal proceedings, and did not represent an agreement to submit to formal arbitration

27 Fla. L. Weekly S779a

Insurance -- Homeowners -- Appraisal -- Causation is a coverage question for the court when an insurer wholly denies that there is a covered loss and an amount-of-loss question for the appraisal panel when an insurer admits that there is covered loss, the amount of which is disputed

27 Fla. L. Weekly D436a

Insurance -- Automobile -- Class action against automobile insurer alleging that insurer's corporate policy requiring use of non-original equipment manufacturer replacement parts for repairs constitutes a breach of insurance policy -- No error in denying insurer's motion to compel appraisal on ground that complaint states more than a disagreement over amount of loss for plaintiffs' vehicle -- Order denying insurer's motion to dismiss is not appealable

27 Fla. L. Weekly D1373b

Insurance -- Appraisal -- Where insured had provided insurer with sworn proof of loss and produced its corporate representative and sole shareholder for examination under oath; and counsel for insurer admitted that insurer had obtained through discovery the documents it had requested from insured, insurer had adequate information from which it could make determination as to insured's loss -- No error in ordering insurer to submit to appraisal

27 Fla. L. Weekly D2098a

Insurance -- Medical malpractice -- Misrepresentations on application -- Defendant insurer's motion for directed verdict in action on medical malpractice policy should have been granted where record demonstrates that insured falsely and materially represented in response to question on application that he had had no previous malpractice claims against him

27 Fla. L. Weekly D637b FIRE & CASUALTY INSURANCE COMPANY OF CONNECTICUT, Appellant, v. JAMES DAVID SEALEY, Appellee. 1st District. Case No. 1D01-3651. Opinion filed February 19, 2002. An appeal…

NOT FINAL VERSION OF OPINION
Subsequent Changes at 27 Fla. L. Weekly D637b

27 Fla. L. Weekly D428d

Insurance -- Uninsured motorist -- Appeals -- Timeliness -- Time for appeal from final judgment began to run on date judgment was reduced to writing, signed, and filed -- Defendant's post-trial motions for new trial and for judgment notwithstanding verdict were ineffective to suspend rendition of final judgment where motions were filed more than ten days after return of verdict -- Motion for remittitur filed more than three months after verdict was untimely and therefore ineffective to suspend rendition -- Taking into consideration content of motion for remittitur, motion was conditional motion for new trial, not a motion to alter or amend the judgment which would have suspended rendition -- Distinction made between post-trial motions that challenge verdict and those that challenge judgment -- Motion for new trial or motion for judgment in accordance with a prior motion for directed verdict must be filed within ten days after return of verdict -- Motion to alter or amend must be served within ten days of judgment

27 Fla. L. Weekly D266a

Insurance -- Appeals -- Certiorari -- Appellate court lacks jurisdiction to entertain merits of petition for writ of certiorari where petitioner has not made prima facie showing that order granting partial summary judgment creates irreparable harm -- Where trial court did not rule on merits of insurer's affirmative defense of misrepresentation, but merely ruled insurer's notice of cancellation ineffective based on policy's terms, there is no injury that cannot be remedied on plenary appeal

27 Fla. L. Weekly D1189b

Insurance -- Appraisal -- Appeals -- Law of the case -- Appeal from nonfinal order compelling appraisal affirmed on ground that prior appeal serves as law of the case -- Adherence to law of case will not result in manifest injustice, even though law of district has since changed

27 Fla. L. Weekly D1364a

Jurisdiction -- Non-residents -- Forum non conveniens -- Insurance -- Aircraft hull war risks -- Other hull risks -- Action against insurers and underwriters arising out of denial of claims for loss of airplane, which was lost, stolen, and/or hijacked after landing on island in center of lake in Nicaragua -- Minimum contacts -- Jurisdiction does not lie against defendant from whom insured obtained aircraft hull war risks policy where defendant did not have any contacts with Florida whatsoever -- Fact that Honduran insurance broker maintained Florida bank account which may have been used to collect premiums in Florida is too tenuous to support jurisdiction -- Error to deny motion to dismiss -- Abuse of discretion to deny remaining defendants' motions to dismiss on basis of forum non conveniens where non-war-risk hull policies included overseas jurisdiction clause that provided that insurance would be governed by law of Nicaragua -- Nicaraguan courts can provide adequate alternative forum; most relevant evidence and witnesses are in Nicaragua, and perhaps Colombia; documentary evidence is in Nicaragua or Honduras; there is no relevant evidence in Florida; and plaintiff was unable to list even one Florida witness

27 Fla. L. Weekly D2477c

Insurance -- Fire -- Misrepresentations on application -- Insured's action against insurer for breach of contract after insurer had denied coverage for fire on insured's property on ground that insured had made material misrepresentations on application for insurance -- Error to enter summary judgment for insurer where there is factual issue as to whether insurer's agent had knowledge of facts that insurer claims insured failed to disclose on application -- Notice to the agent at the time of application for insurance of facts material to the risk is notice to the insurer