2003

28 Fla. L. Weekly D1710a

Venue -- Insurance -- Uninsured motorist -- Gravamen of insured's suit against her uninsured motorist insurer was not, as plaintiff alleged, for breach of contract occurring in county in which insured resided and in which insurer's refusal to pay occurred, but for damages caused by an automobile collision occurring in a different county -- Insurer's refusal to meet insured's demand for payment under policy is not a breach if no payment is due at time of demand -- Plain language of insurance policy which was attached to complaint as exhibit affirmatively established that no payment from insurer was presently due under policy and, accordingly, the alleged breach was non-existent -- Insurer's obligation under policy was to pay damages which insured was legally entitled to recover from owner or operator of uninsured auto, and that amount has yet to be determined -- Further, policy provided that in case of dispute between insured and insurer as to liability and damages, insured was to file suit against owner or operator of uninsured auto and the insurer to have issues of legal entitlement and amount of damages determined -- Insurer did not breach policy by invoking its explicit provisions

28 Fla. L. Weekly D834a

Civil procedure -- Dismissal -- Failure to prosecute -- Insurance -- Action against insurer for uninsured/underinsured motorist benefits -- Where plaintiff timely responded to motion to dismiss by filing verified response to motion outlining several grounds that she contended established good cause for delay in prosecution, trial court was required to make determination of whether she had established good cause prior to dismissing her complaint

28 Fla. L. Weekly D432a

Insurance -- Uninsured motorist -- Hit and run vehicle -- Steel beam in roadway -- Trial court improperly entered summary judgment for insurer, whose insured sought uninsured motorist benefits for injuries received when another vehicle ran over a steel beam which was lying in the roadway, propelling the beam into insured's vehicle, on the ground that the steel beam was of unknown origin -- As the responding highway patrol officer concluded, the only plausible source of the beam was an unidentified truck to which the beam was improperly secured, thus allowing it to fall from the truck into the roadway, and this truck fits within the policy definition of hit and run vehicle as a type of uninsured motor vehicle

28 Fla. L. Weekly D417e

Venue -- Change -- Forum non conveniens -- Insurance -- Action against insurer and its agent alleging defendants fraudulently failed to disclose to insured the existence of available uninsured motorist benefits and to pay certain UM benefits due under policy following an accident -- Abuse of discretion to deny motion to change venue where initial venue selection was based on fact that insurer had office in county in which suit was filed, but all other record evidence indicated that insurer's office had no connection to lawsuit or underlying claim, and that county in which insured obtained policy and in which claim was adjusted by insurer's representative or county in which accident occurred and where insured received medical treatment were more convenient to parties and better served interest of justice

28 Fla. L. Weekly D1031a

Insurance -- Uninsured motorist -- Evidence -- Collateral impeachment evidence -- In insured's action against uninsured motorist insurer, court erred in allowing insurer to cross-examine insured with evidence that insured gave her employer an accident report after she had altered the date to reflect a more recent accident and used the report to falsely explain her absence from work -- Evidence was erroneously admitted because it had no relevance to the issues being tried and served only to impeach insured's credibility and reflect poorly on her character -- Where insured unsuccessfully argued the issue in pretrial motion in limine and objected when insurer's counsel began discussing the incident in opening statements, issue was properly preserved for appellate review

28 Fla. L. Weekly D1704b

Insurance -- Uninsured motorist -- Error to deny insurer's motion to reduce damage award for past lost earning ability by amount of Social Security disability payments insured received as result of her accidental injuries -- Insureds' contention that collateral source setoff statute does not apply because they claimed loss of earning capacity, not lost wages, not supported by plain reading of statute

28 Fla. L. Weekly D1029a
842 So. 2d 1031

Insurance -- Uninsured motorist -- Underinsured motorist -- Damages -- Trial court erred in refusing to offset jury verdicts for insureds by amount they recovered in settlement with tortfeasor's liability insurer -- Verdict was inadequate where jury found that insureds sustained permanent injuries and incurred significant medical expenses but awarded no past noneconomic damages -- Where need for future economic damages was disputed and jury awarded only minimal future economic damages, failure to award future noneconomic damages was supported by evidence

28 Fla. L. Weekly D730a

Insurance -- Uninsured motorist -- Coverage -- Resident relative -- Son seeking coverage for injuries sustained in collision with uninsured motorist which occurred approximately six hours after son's marriage while he was en route to honeymoon destination -- Trial court erroneously relied on claimant's statement that he intended upon return from honeymoon to share apartment leased by his wife in deciding he was not entitled to UM benefits under his parents' policies -- Lower court too narrowly focused on statement of where son intended to reside in the future rather than upon other salient facts -- Three aspects of household residency were established, including close ties of kinship, enjoyment of all living facilities, and fixed dwelling unit -- Fixed dwelling unit was satisfied by application of theory that son was relative living primarily with his insured parents at time of accident or theory that son maintained his residency at parents' household as a dependent child living away from home while attending school -- Remand with directions that judgment be entered for son

28 Fla. L. Weekly D725a

Insurance -- Uninsured motorist -- Coverage -- Where insureds owned five vehicles, insurer allowed only four vehicles per declaration page or policy, and second policy was issued for fifth vehicle, the policy insuring the fifth vehicle was not a separate policy requiring a separate written rejection of UM coverage, but was simply part of the four-vehicle policy under which UM coverage had previously been rejected -- Under facts of case, there was only one policy of insurance, and second UM rejection was not required -- Error to grant summary judgment in favor of insureds in action seeking UM coverage on ground that there was no written rejection of UM coverage for policy covering fifth vehicle

28 Fla. L. Weekly D1169d

Insurance -- Uninsured motorist -- Directed verdict was properly entered in favor of uninsured motorist insurer, standing in the shoes of the driver of a phantom vehicle who successfully swerved in time to avoid an unlawfully parked truck, into which plaintiff subsequently crashed -- There was no evidence that the driver of the phantom vehicle was guilty of any causal negligence -- Because the owner of the unlawfully parked truck, who was held 100% responsible for the accident, was fully insured for the amount of the verdict for the insured, there was no cognizable harm to the insured, and UM coverage was unavailable

28 Fla. L. Weekly D2682a

Insurance -- Uninsured motorist -- Trial court erred in entering summary judgment in declaratory judgment action finding that plaintiff is entitled to uninsured motorist benefits under policy issued to plaintiff's mother where plaintiff did not fit within any of the categories of persons for whom policy provided uninsured motorist coverage

28 Fla. L. Weekly D2590a

Insurance -- Uninsured motorist -- Complaint -- Amendment -- Abuse of discretion to deny insured's motion to amend complaint to add existence of phantom vehicle which dropped mattress on highway to the claim against UM insurer -- Amendment did not state new cause of action, but introduced alternative theory of causation based upon deposition of witness who saw mattress fall off pick-up truck some distance ahead of him, which caused vehicles on interstate to slow down, ultimately resulting in multi-vehicle collision -- Insurer knew about this possible additional theory at least from time of deposition and did not suggest that amendment would entail additional discovery or a continuance of the scheduled trial -- Insurer's contention that further claims would be barred by statute of limitations lacks merit, as claim arose out of same incident as initial complaint against underinsured motorist and, in fact, insurer relied upon this alternative theory to avoid liability when it argued that named defendant should not be liable because accident was caused by negligence of phantom pick-up truck which dropped mattress on highway -- Remand with directions to grant amendment of complaint

28 Fla. L. Weekly D131b

Insurance -- Uninsured motorist -- Wrongful death action against underinsured tortfeasor driver and UM insurer for compensatory and punitive damages arising from death of plaintiff's parents in automobile accident which tortfeasor admittedly caused while intoxicated -- “Other insurance” clause of UM policy, which provided UM benefits if amount of loss exceeded all other available liability insurance coverage, was an affirmative defense, and failure of insurer to plead it resulted in waiver -- Bifurcation -- Trial court followed bifurcation protocol established by supreme court when it ordered case to proceed to trial on issues of compensatory damages and entitlement to punitive damages, followed by separate consideration, by the same jury, to determine amount of punitive damages -- No abuse of discretion in denying motions for bifurcation in which insurer sought one trial on compensatory damages and a separate trial on all punitive damages issues, notwithstanding insurer's contention that underinsured tortfeasor's admission of liability changed posture of case and that jury would be unfairly influenced to award excessive compensatory damages if it was provided any knowledge of tortfeasor's admitted intoxication -- No abuse of discretion in denying insurer's request for mistrial and new trial based on argument that jury's knowledge of tortfeasor's intoxication resulted in unfair prejudice to insurer

NOT FINAL VERSION OF OPINION
Subsequent Changes at 30 Fla. L. Weekly D1943a

28 Fla. L. Weekly D1679b

Insurance -- Personal injury protection -- Transportation expenses -- Class actions seeking to challenge as too low and not reasonable the 32.5 cents per mile travel reimbursement benefit paid to PIP insureds for automobile travel expenses incurred while driving to and from medical providers -- Actions properly dismissed -- Section 627.736(1)(a), Florida Statutes does not provide for payment of automobile travel expenses for travel to and from medical providers -- Conflict certified

Substituted opinion at 30 Fla. L. Weekly D1943a
Quashed at 30 Fla. L. Weekly S145a

28 Fla. L. Weekly D1239a

Insurance -- Personal injury protection -- Transportation costs for medical treatment -- PIP statute provides only for transportation by ambulance -- Automobile transportation expenses are not payable -- Conflict certified -- Class action claiming that 34.5 cents a mile was insufficient to compensate insured for cost of driving car to obtain medical treatment properly dismissed for failure to state cause of action

Quashed at 30 Fla. L. Weekly S145a
Circuit Court order at 9 Fla. L. Weekly Supp. 111b

28 Fla. L. Weekly S287a

Insurance -- Personal injury protection -- Certiorari -- An insured has standing to bring a breach of contract action against a PIP insurer where the insurer refuses to pay medical expenses but the insured has incurred no out-of-pocket expenses, the medical provider has not brought a collection action against the insured, and the policy contains a defend and indemnify provision should such an action ensue -- Where county court granted summary judgment for insurer in insured's action for failure to pay medical bills on the ground that insured had suffered no damages because insured had not paid medical bills and had not been sued for payment by medical provider, and circuit court affirmed county court judgment, district court of appeal properly concluded that circuit court had applied incorrect law and that it was sufficiently egregious and fundamental to require certiorari review -- “Clearly established law” can derive from a variety of legal sources -- In addition to case law dealing with the same issue of law, an interpretation or application of a statute, a procedural rule, or a constitutional provision may be the basis for granting certiorari review

District Court opinion in Caravakis v. Allstate Indemnity Co. at 27 Fla. L. Weekly D88b
Circuit court order and opinion in Caravakis v. Allstate Indemnity Co. at 7 Fla. L. Weekly Supp. 760a

28 Fla. L. Weekly D615a

Insurance -- Personal injury protection -- Fee schedule -- Magnetic resonance imaging -- Effective date of revised MRI fee schedule -- Trial court improperly relied on parol evidence of a contrary legislative intent in finding an incorrect statutory effective date for new MRI fee schedule where the relevant subsection unambiguously provided for its own effective date, the day the Act became a law

28 Fla. L. Weekly D1511a
851 So. 2d 762

Insurance -- Personal injury protection -- Preferred providers -- No error in finding that insurer was required to pay PIP benefits at rate of 80% of usual, customary and related charges, as mandated by statute, rather than at PPO rates where insurer failed to comply with section 627.736(10) -- While medical provider was a member PPO network of which insurer was also a member, insurer had not directly contracted with provider for PPO benefits -- Section 627.736(10) provides the sole language relating to availability of PPO benefits in PIP cases, and language indicates legislature's intent that availability of PPO PIP benefits is subject to strict compliance with the terms of statute -- Although an insurance company is permitted to contract with licensed health care providers for PPO benefits, statute provides no specific authority for insurance companies to contract with PPO networks -- Trial court's ruling did not void agreement between insurer and PPO network, but merely held that agreement was not applicable under facts presented in instant case -- It is irrelevant that section 627.736(10) does not contain private right of enforcement, because provider, as assignee of insured, was merely suing for recovery of benefits under standard PIP statute

NOT FINAL VERSION OF OPINION
Subsequent Changes at 29 Fla. L. Weekly D652e

28 Fla. L. Weekly D2649a

Insurance -- Personal injury protection -- Physical therapy services rendered by medical assistants who were not licensed as physical therapists were not lawfully rendered, and PIP insurer is not obligated to pay for such services

28 Fla. L. Weekly D2605a

Insurance -- Personal injury protection -- Preferred providers -- No-fault law does not prohibit insurers from making payment for health care services covered by personal injury protection benefits at reduced preferred provider organization rates -- Section 627.736(10) establishes framework under which PIP insurers are authorized to enter into preferred provider contracts with health care providers -- Insurer who chooses to enter such contracts is authorized by statute to offer prospective insureds preferred provider policies, subject to certain conditions and requirements -- Authorization to contract with providers for preferred rates encompasses contractual arrangements in which insurer contracts to obtain services of providers through an intermediary PPO network -- Statute does not require that all insurers which contract to pay providers at PPO rates issue preferred provider policies -- Statute requiring PIP insurers to pay 80 percent of “all reasonable expenses” for covered medical services, subject to policy limits, does not require insurer to pay a provider for services at a rate higher than the rate the provider has contractually agreed to accept in payment for such services -- If provider has agreed in valid and enforceable contract to accept payment for services at a particular rate, that rate would necessarily be “reasonable amount” for services rendered -- Conflict certified

28 Fla. L. Weekly D1464a

Insurance -- Personal injury protection -- Claimant who was injured in a collision when operating a vehicle rented by the insured while the insured's car was being repaired was not entitled to benefits under the insured's PIP policy -- Claimant was not an “injured person” as defined in PIP section definitions because she was not riding in an “insured motor vehicle” as that phrase was specifically defined in PIP section of policy -- PIP section of policy clearly defined “insured motor vehicle” to mean a motor vehicle owned by the insured -- Where definition of insured vehicle in PIP section of policy was unambiguous, trial court erred in borrowing definitions of “insured auto” from liability and uninsured motorist sections of policy, which defined that term to include a substitute auto being temporarily used while an insured auto was being serviced or repaired

28 Fla. L. Weekly D484a

Insurance -- Personal injury protection -- Circuit court acting in appellate capacity applied wrong law in affirming decision of county court, which entered summary judgment in favor of insurer based on conclusion that insurer had no duty to act on insured's claims for medical bills within thirty days because insurer raised a coverage issue -- Certain claim which was not paid by insurer within thirty days was mature, and insured was entitled to seek judicial determination of his rights -- There was no arguable breach of contract by insured that appellate court can identify that would excuse payment of this claim and statutory penalties if coverage is established -- Circuit court and county court were wrong in concluding that insured's subsequent refusals to attend examinations under oath, as required by policy, justified insurer's refusal to pay earlier claims which were more than thirty days old -- With regard to insured's refusal to attend examination under oath, which county court found to be material breach of policy, this would bar recovery for any claim that was not thirty days old when policy was breached

28 Fla. L. Weekly D796a

Insurance -- Personal injury protection -- Action against insurer by insured after insurer had suspended benefits -- Appellate division of circuit court departed from essential requirements of law in affirming county court's directed verdict for insurer on ground that insured was required to prove, as part of his prima facie case, that his medical providers were licensed to perform the services that they rendered -- Fact that a provider is not licensed is more appropriately raised as an affirmative defense by the insurer

28 Fla. L. Weekly D1661a

Insurance -- Personal injury protection -- Insured's assignment of PIP benefits to a third party who is not a medical provider is not prohibited by statute -- Corporation that is not a physician, hospital, clinic or other person or institution lawfully rendering treatment to an insured person for bodily injury covered by personal injury protection benefits is entitled to recover PIP benefits services provided by a healthcare provider pursuant to a valid assignment of benefits from the insured -- Possible conflict noted -- Insured's assignment of PIP benefits to a billing company is not contrary to public policy

28 Fla. L. Weekly S57a

Insurance -- Personal injury protection

28 Fla. L. Weekly D935a

Administrative law -- Nursing homes -- Medicaid reimbursement -- Interim rate increase -- Agency for Health Care Administration erred in rejecting hearing officer's findings and conclusions and in denying nursing homes' request for interim rate increase due to increase in liability insurance premiums -- Because Federal Medicare Program's Health Insurance Manual (HIM-15) makes it clear that a prudent Medicaid provider is expected to carry liability insurance or to self insure, AHCA erred in denying request for interim rate increase on ground that there was no specific requirement in Florida Title XIX Long-Term Care Reimbursement Plan or in state or federal law requiring that liability insurance be carried by a nursing home -- AHCA erred in rejecting as erroneous the ALJ's conclusion that the requirements of HIM-15 are Medicaid standards -- Because competent substantial evidence demonstrated that nursing homes were effectively required, under the HIM-15 guidelines, to maintain liability insurance, ALJ's determination that the preponderance of the evidence proved that an unanticipated large increase in liability insurance premiums justified the approval of interim rate increase was proper and should not have been rejected by agency

28 Fla. L. Weekly D1042d

Insurance -- Liability -- Coverage -- Insured's failure to secure workers' compensation coverage was not an “occurrence” under liability policy

28 Fla. L. Weekly D2220a

Insurance -- Liability -- Coverage -- Where policy limited coverage to “bodily injury arising out of the ownership, maintenance or use of the premises shown in the schedule and operations necessary or incidental to those premises,” there was no coverage for a shooting death by a member of the crowd at a street rally sponsored by the insured a mile away from the insured's insured premises -- In concluding that there was coverage under the policy on the basis of a finding that the event at which the shooting occurred was an operation necessary or incidental to the business of the insured, the trial court erroneously substituted “business” for the policy word “premises”

NOT FINAL VERSION OF OPINION
Subsequent Changes at 29 Fla. L. Weekly D388b

28 Fla. L. Weekly D1059a

Torts -- Automobile accident -- Action by plaintiff individually and on behalf of his minor son arising out of accident in which vehicle owned and occupied by plaintiff's former wife, who was at time two months pregnant with son, was struck, causing serious injury to former wife and unborn child -- Insurance -- Plaintiff was not entitled to uninsured motorist coverage under insurance policy that covered a vehicle which was owned by plaintiff but sold two weeks prior to accident -- Plaintiff did not maintain an insurable interest for 30 days after sale of his car because he did not meet conditions necessary to trigger policy's 30-day grace period, which were that he become owner of another car within policy period and request coverage, in writing, within 30 days of date of ownership -- Because insurable interest expired when plaintiff sold car, and plaintiff did not create new insurable interest by acquiring new vehicle and requesting coverage within 30 days, plaintiff had no insurable interest in policy at time of accident, and trial court should have granted insurer's motion for summary judgment -- Damages -- Loss of parental consortium -- Unborn, non-viable fetus can be considered an “unmarried dependent” for purposes of statute permitting recovery of damages for loss of parent's services, comfort, companionship, and society, although court notes that fetus does not have this claim until after it is born alive -- Damages for loss of filial consortium are limited to period of child's minority by common law, and award of these damages must be remitted to reflect this -- Damages recoverable by child for loss of parental consortium are not limited to period of child's minority

28 Fla. L. Weekly D287c

Insurance -- Insolvent insurers -- Uniform Insurers Liquidation Act -- Where Florida action against insurer for declaratory relief and breach of contract had been stayed indefinitely by foreign state court in delinquency proceeding finding insurer to be insolvent, Florida court departed from essential requirements of law in lifting stay after it had been in effect for six months

NOT FINAL VERSION OF OPINION
Subsequent Changes at 29 Fla. L. Weekly D98d

28 Fla. L. Weekly D2540a

Insurance -- Insolvent insurers -- Liquidation proceedings -- Jurisdiction -- Insurers Rehabilitation and Liquidation Act confers jurisdiction on circuit court to consider action by receiver to recover damages against a third party -- Circuit court properly determined that it had subject matter jurisdiction to adjudicate claims made by Department of Insurance, as receiver of insolvent insurance company, on behalf of policyholders and other third parties against trustee of insolvent insurance company

28 Fla. L. Weekly D813a

Insurance -- Homeowners -- Coverage -- Dog bite -- Plaintiff, who was a defendant in dog bite suit, was not entitled to coverage for the incident under a homeowner's insurance policy issued to her sister where plaintiff was not a resident of her sister's household so as to entitle her to coverage as an insured under the policy -- Although insurer issued a homeowner's insurance policy to sister for house owned by sister, and plaintiff lived in that house, sister never lived in the property, never spent more than a few nights at the house prior to plaintiff moving in, and infrequently came by to visit when plaintiff lived in the house -- Plaintiff was never resident relative of sister's household

28 Fla. L. Weekly D1141f

Torts -- Medical malpractice -- Health maintenance organizations -- Vicarious liability for negligence of physician -- Agency -- Error to enter summary judgment for defendant health maintenance organization in medical malpractice action on ground that negligent physician was not acting as agent of defendant where record supports inference of control sufficient to present jury question on issue of agency

28 Fla. L. Weekly D961a

Torts -- Medical malpractice -- Health maintenance organizations -- Action alleging vicarious liability of HMO for negligent acts of physician with whom HMO has contracted as independent contractor -- Error to enter summary judgment for defendant HMO where there was factual issue as to whether physician was acting as the apparent agent of the HMO in improperly performing surgery on plaintiffs' minor child

28 Fla. L. Weekly S267a
843 So. 2d 842

Wrongful death -- Medical malpractice -- Health maintenance organizations -- Federal preemption -- Vicarious liability claim against HMO based upon allegations that agents or apparent agents of HMO made negligent treatment decisions in caring for decedent is not preempted by Employee Retirement Income Security Act -- Court properly rejected plaintiff's argument that HMO assumed a non-delegable duty to render medical care to decedent in a non-negligent manner when decedent purchased health care coverage from HMO -- Error to grant summary judgment for defendant on claims of vicarious liability for negligence of physicians who were allegedly agents or apparent agents on ground that contractual provisions designated the physicians as independent contractors and that there was no evidence that HMO exercised actual control over the medical judgments and decisions made in the care and treatment of decedent -- In considering action based on actual agency, it is the right to control, rather than actual control, that may be determinative -- Summary judgment was improper where defendant has not conclusively demonstrated the absence of genuine issues of material fact as to whether defendant HMO can be held vicariously liable for alleged negligence of member physicians when providing service pursuant to health plan under theories of actual agency

28 Fla. L. Weekly D532a

Health maintenance organizations -- Declaratory action by health care providers against health maintenance organization seeking declaration that various payment methods engaged in by HMO violated the Health Maintenance Organization Act -- Trial court properly granted defendant HMO's motion for judgment on pleadings on ground that Act does not create a private cause of action to bring a declaratory judgment suit to enforce the Act or to declare its violation

28 Fla. L. Weekly D1565a

Insurance -- Health insurance -- Equitable subrogation -- Action by plaintiff which was administrator of health insurance program and had, as administrator and agent of insurer, paid claims insurer had insured, against reinsurers that had reinsured insurer's obligations, seeking reimbursement for claims paid -- Complaint appropriately alleged that plaintiff acted under its obligations under its agreement with insurer, and not as a volunteer, and properly stated a claim that plaintiff was equitably subrogated to insurer's rights against the defendant reinsurers -- Error to dismiss action for failure to state a cognizable, direct action against defendant reinsurers

28 Fla. L. Weekly D505a

Insurance -- Health -- Failure to pay claims within time limits prescribed by insurance contract and Florida statute -- Trial court properly found that insureds could not prevail because they assigned claims to medical providers and, accordingly, did not have standing to bring action against insurer -- Damages -- Insureds did not sustain damages in form of interest on overdue payments because it was the providers to whom claims were assigned, not the insureds, who lost use of money for a time -- Confession of judgment -- With regard to insureds' assertion that they were entitled to judgment in their favor because insurer's payment of outstanding claims after commencement of litigation was tantamount to confession of judgment, trial judge never made determination that payment was not timely made and, in view of assignments, the insureds, at best, could have succeeded only in forcing insurer to fulfill obligations in which insureds no longer had an interest -- No error in entering judgment in favor of insurer

28 Fla. L. Weekly D1597d

Administrative law -- Insurance -- Department of Insurance erred in rejecting administrative law judge's conclusion that Department failed to prove violations of statutory provisions under which out-of-state group health insurance provider was charged, and in finding insurer guilty of violations of insurance code -- Competent substantial evidence supported ALJ's finding that insurer did not violate statute by failing to provide form or information to individual who applied for converted policy because individual never specifically asked for information about a conversion policy -- Competent substantial evidence supported ALJ's finding that out-of-state insurer did not engage in unfair method of competition or deceptive act or practice in violation of section 626.9541(1)(g), Florida Statutes, when it annually reevaluated health status and claims history of insureds upon renewal of policies and engaged in tier rating by raising the premiums charged to some individual class members on the basis of those reevaluations -- ALJ properly determined that Department failed to prove that the actuarially supportable class enumerated in section 626.9541(1)(g)2, Florida Statutes, was frozen at the time of the initiation of the policy and that, therefore, no violation of the statute was proven -- Department could not properly base its finding of a violation on statute where statute was not referenced in charging document or addressed by ALJ

NOT FINAL VERSION OF OPINION
Subsequent Changes at 28 Fla. L. Weekly D1597d

28 Fla. L. Weekly D1437b

Administrative law -- Insurance -- Department of Insurance erred in rejecting administrative law judge's factual determination that Department failed to prove violations of statutory provisions under which out-of-state group health insurance provider was charged, and in finding insurer guilty of violations of insurance code -- Competent substantial evidence supported ALJ's finding that insurer did not violate statute by failing to provide form or information to individual who applied for converted policy because individual never specifically asked for information about a conversion policy -- Competent substantial evidence supported ALJ's finding that out-of-state insurer did not engage in unfair method of competition or deceptive act or practice in violation of section 626.9541(1)(g), Florida Statutes, when it annually reevaluated health status and claims history of insureds upon renewal of policies and engaged in tier rating by raising the premiums charged to some individual class members on the basis of those reevaluations -- ALJ properly determined that Department failed to prove that the actuarially supportable class enumerated in section 626.9541(1)(g)2, Florida Statutes, was frozen at the time of the initiation of the policy and that, therefore, no violation of the statute was proven -- Department could not properly base its finding of a violation on statute where statute was not referenced in charging document or addressed by ALJ

NOT FINAL VERSION OF OPINION
Subsequent Changes at 28 Fla. L. Weekly D1437b

28 Fla. L. Weekly D1002a

Administrative law -- Insurance -- Department of Insurance erred in rejecting administrative law judge's factual determination that Department failed to prove violations of statutory provisions under which out-of-state group health insurance provider was charged, and in finding insurer guilty of violations of insurance code -- Competent substantial evidence supported ALJ's finding that insurer did not violate statute by failing to provide form or information to individual who applied for converted policy because individual never specifically asked for information about a conversion policy -- Competent substantial evidence supported ALJ's finding that out-of-state insurer did not engage in unfair method of competition or deceptive act or practice in violation of section 626.9541(1)(g), Florida Statutes, when it annually reevaluated health status and claims history of insureds upon renewal of policies and engaged in tier rating by raising the premiums charged to some individual class members on the basis of those reevaluations -- ALJ properly determined that Department failed to prove that the actuarially supportable class enumerated in section 626.9541(g)2, Florida Statutes, was frozen at the time of the initiation of the policy and that, therefore, no violation of the statute was proven -- Department could not properly base its finding of a violation on statute where statute was not referenced in charging document or addressed by ALJ

28 Fla. L. Weekly D2305a

Torts -- Contracts -- Malicious prosecution -- Bad faith -- Negligent hiring, training, and supervision -- Action by insured against insurer and insurer's agent who referred insurance fraud claims against insured to Department of Insurance, Division of Insurance Fraud -- Trial court properly granted summary judgment for defendants on ground that defendants were immune from liability under Insurance Fraud Statute -- Where defendant's agent referred matter to Division of Insurance Fraud, Division's investigator issued complaint/arrest warrant charging plaintiff with insurance fraud, and state attorney's office concluded that there was probable cause for issuance of criminal information against plaintiff, trial court properly found that defendants did not act fraudulently or with bad faith and were statutorily immune from suit -- Fact that state attorney's office declined to proceed with its prosecution against plaintiff does not vitiate its initial probable cause finding -- Breach of contract action was properly dismissed on statute of limitations grounds where amended complaint alleging breach of contract was not filed until more than five years after the alleged breach

28 Fla. L. Weekly D2802c
861 So. 2d 1185

Torts -- Insurance -- No-fault law -- Trial court erred in refusing to require plaintiffs to prove threshold injury necessary to recover for non-economic damages on ground that threshold requirement was not applicable because defendant's Michigan automobile insurance policy did not extend personal injury protection coverage within the State of Florida -- Policy in question specifically provides coverage required under any state's financial responsibility laws when insured vehicle is being operated in that state -- Attorney's fees -- Joint proposals for settlement were void for failure to apportion settlement amount between parties -- Error to award attorney's fees pursuant to offer of judgment statute

28 Fla. L. Weekly D2625a

Insurance -- Uninsured motorist -- Exclusions -- Injuries sustained when claimant is not physically occupying vehicle -- Plaintiffs who were struck and injured by underinsured motorist while pedestrians were not entitled to coverage under extended protection purchased from rental car company where contract for benefits clearly and unambiguously stated that UM protection was limited to injuries sustained by vehicle renter, or family member, while physically occupying rental car -- In situations involving Class II or additional insureds, public policy of state is not offended by issuance of UM policy that restricts coverage to injuries or death that occur while insured is occupying the vehicle

28 Fla. L. Weekly D1965a
854 So. 2d 726

Insurance -- Business automobile policy -- Uninsured motorist -- Coverage -- Passenger in automobile owned by president and sole shareholder of corporation and insured under policy providing business automobile coverage -- Business auto policy cannot be written to include sole stockholder and his family within the UM coverage while excluding all other class II insureds -- Statute permits an insured to reject UM coverage “on behalf of all insureds under the policy,” but does not allow rejection of UM coverage on behalf of only some insureds under the policy -- Trial court erred in finding that UM limitation did not violate purpose of UM statute -- Error to grant summary judgment in favor of insurer -- Remand for further proceedings

28 Fla. L. Weekly D957a

Insurance -- Uninsured motorist -- Exclusions -- Bodily injury sustained while occupying auto owned by insured but not insured under policy -- No error in finding that motorcycle owned by insureds fit within policy's definition of “auto” -- Genuine issues of material fact existed as to whether insurer complied with section 627.727(9), which requires insurer to provide notice to insured of coverage limitations and to file revised premium rates with Department of Insurance prior to initially providing limited UM coverage -- Error to enter summary judgment in favor of insurer on this issue

28 Fla. L. Weekly D2746a

Insurance -- Title -- Nonconforming mortgage lender that bought and sold mortgage loans from challenged credit borrowers seeking to recover losses sustained when it rejected certain note and entity with which it had mortgage warehousing arrangement resold loan but failed to repay plaintiff the proceeds -- Where all of the acts that prevented plaintiff from enforcing its mortgage lien occurred subsequent to the issuance of title insurance policy and arose as direct result of plaintiff's actions or inactions, the loss was either not covered by, or was excluded by provisions of title insurance policy -- Trial court erred in finding coverage under title insurance policy and awarding damages to plaintiff

28 Fla. L. Weekly D567a

Insurance -- Property insurance on residential rental property -- Exclusions -- Vacant property -- Error to enter directed verdict for insurer in insured's action for breach of insurance contract on ground that property was vacant where different conclusions can be drawn on issue from evidence -- Whether property was vacant was issue for jury

28 Fla. L. Weekly D1013a

Insurance -- Liability -- Exclusions -- Liquor liability exclusion was applicable to exclude coverage under policy issued to bar for death of a minor who became intoxicated in insured's bar, walked out of bar, and later, while on foot, was killed by a train -- Coverage was not provided under theory that premises owner has a duty to a person known to be drunk to render aid so that the person does not leave and injure himself or others

28 Fla. L. Weekly D11a

Insurance -- Liability -- Additional insured -- Pollution exclusion

28 Fla. L. Weekly D853a

Insurance -- Liability -- Declaratory judgment -- Coverage -- Trial court improperly denied airline passengers' motion for supplemental declaratory relief seeking a declaration that airline's liability policy covered a jury verdict against the airline arising from a forcible strip/cavity search that took place after the passengers were removed from aircraft during a stopover -- No merit to insurer's contention that policy afforded no coverage to plaintiffs because they were not passengers after they were removed from the aircraft and placed in a terminal bathroom where they were cavity searched, because insurer may still be liable to plaintiffs under coverage provided by policy to third parties -- No merit to insurer's contention that no bodily injury occurred under terms of the policy -- Plaintiffs, having suffered from physical intrusions and emotional consequences therefrom, sufficiently demonstrated that they suffered a bodily injury under the policy -- No merit to insurer's contention that there was no coverage under policy because injuries did not occur as the result of an accident -- Where term “accident” is not defined in policy, resulting damage which is unintended is accidental even though the original acts were intentional -- Even though airline employees intentionally had plaintiffs removed from the aircraft, there is no evidence that employees intended physical harm, so while permitting the searches was negligent, it was also an accident -- Malicious acts provision -- Claim that plaintiffs cannot recover any damages under policy because policy contains an exclusionary provision disallowing coverage for malicious acts, which insurer argues is inherent in all three of plaintiffs' theories of recovery in underlying action: intentional infliction of emotional distress, negligence, and false imprisonment -- Malice was not implicit in all three theories and there was no allegation of malice on the negligence count, nor was it implicit in the punitive damage awards, which were authorized by the jury instruction where the defendant was grossly negligent -- Neither the negligence claim nor the damage stemming from it was excluded from coverage by the policy's malicious acts provision -- Because the entire amount awarded may have been on the negligence claim, the general verdict on the plaintiffs' three claims does not preclude recovery -- Because the insurer made no effort to have the final disposition result in a verdict that would provide a basis for consideration of the exclusionary clause, plaintiffs are entitled to recover the unsegregated damage awards on all three of their claims

28 Fla. L. Weekly D2128a

Insurance -- Liability policy issued to airport authority -- Duty to defend -- Exclusions -- Bodily injury arising out of auto owned or operated by or on behalf of insured while off airport -- Insurer had no duty to defend airport authority in wrongful death action brought against it by estate of individual who landed at airport, hired a car which was operated by shuttle service which had facility in airport terminal and which was driven by shuttle service employee, and was killed in collision which occurred off airport premises where allegations against authority rested on theory that shuttle service and its employees were apparent agents of authority -- Fact that phrase “on behalf of” was not defined did not in itself mean that term was ambiguous -- Operating vehicle “on behalf of” authority encompasses alleged agency theory, and exclusion bars coverage

NOT FINAL VERSION OF OPINION
Subsequent Changes at 28 Fla. L. Weekly D2128a

28 Fla. L. Weekly D1487a

Insurance -- Liability policy issued to airport authority -- Duty to defend -- Exclusions -- Bodily injury arising out of auto owned or operated by or on behalf of insured while off airport -- Insurer had no duty to defend airport authority in wrongful death action brought against it by estate of individual who landed at airport, hired a car which was operated by shuttle service which had facility in airport terminal and which was driven by shuttle service employee, and was killed in collision which occurred off airport premises where allegations against authority rested on theory that shuttle service and its employees were apparent agents of authority -- Fact that phrase “on behalf of” was not defined did not in itself mean that term was ambiguous -- Operating vehicle “on behalf of” authority encompasses alleged agency theory, and exclusion bars coverage

28 Fla. L. Weekly D1146e

Insurance -- Homeowners -- Coverage -- Declaratory judgment -- Exclusions -- Intentional or criminal act -- Joint obligations -- Action arising out of incident in which insureds' minor son shot plaintiff in underlying personal injury action with firearm which belonged to insureds -- Under clear and unambiguous language of joint obligations clause contained in policy, parents and son must be treated as a joint and inseparable legal entity, so that the intentional or criminal act of son, in essence, became the act of the parents for purposes of coverage under policy -- Plaintiff cannot bypass intentional or criminal act exclusion clause by suing parents for the negligent supervision or negligent failure to safely store firearm -- Concurrent cause doctrine would not support coverage where, based on record, appellate court is unable to say that alleged acts of negligent supervision and failure to properly secure firearm were sufficiently separate and distinct from son's act of shooting victim with firearm -- Trial court properly granted insurer's motion for judgment on pleadings, finding that insurer had no duty to defend or indemnify insureds or their son in personal injury action

28 Fla. L. Weekly D2221a

Insurance -- Homeowners -- Exclusions -- Trial court properly found that coverage for structural damage to home and personal property loss caused by nearby blasting activities was excluded by earth movement exclusion in policy -- Under policy language, damage resulting from explosion would be covered only if the explosion followed a specifically listed natural disaster or peril, and the damage in question was caused by man-made explosions

28 Fla. L. Weekly D2850a

Administrative law -- Department of Management Services -- Insurance -- Public employees -- State group health insurance -- Exclusions -- Intentional self-inflicted injury -- Employee alleging that denial of health benefits to her and her daughter for medical services required as result of intentionally self-inflicted injuries violated constitutional rights to substantive due process and equal protection -- State's interest in protecting public funds was rational basis which justified exclusion -- Keeping costs at an affordable level is legitimate state interest -- Denial of health benefits affirmed

28 Fla. L. Weekly D1319a

Insurance -- Employee Dishonesty Policy -- Coverage -- Where coverage period for plaintiff insured law firm's Employee Dishonesty Optional Coverage policy had ended in 1999 and defalcating employee's dishonesty was not discovered until 2001, and the policy provided only for coverage of loss discovered within 90 days of the end of the coverage period, trial court improperly entered summary judgment in favor of insured plaintiff

28 Fla. L. Weekly D1867b

Insurance -- Liability -- Duty to defend -- Exclusions -- There is no obligation on an insurer to defend an action against its insured when the complaint shows the applicability of a policy exclusion -- Complaint alleging that insured violated section 934.03, Florida Statutes and invaded plaintiffs' privacy rights by intercepting their oral communications without their consent stated claims that were within the policy exclusion for “any claim for injury arising out of a willful violation of a penal statute or ordinance committed by or with the knowledge of the insured” -- Trial court erred in entering declaratory judgment finding that insurer had duty to defend claims

28 Fla. L. Weekly D632c

Insurance -- Professional liability -- Coverage -- Duty to defend -- Exclusions -- Dispute between former partners in law firm over how to divide fees and costs received from lawsuit was not an “act, error or omission in Professional Services provided” within meaning of policy -- Dispute over how law firm was to divvy up fees and expense payments “pertained” to firm's “charges for services or expenses” within meaning of policy language excluding those matters from the definition of professional services -- Because amended complaint did not allege facts that created potential coverage under policy, insurer had no duty to defend

28 Fla. L. Weekly D2653a

Insurance -- Liability -- Duty to defend and indemnify insureds in civil suit brought alleging negligence and sexual assault and battery -- Allegations in sixth amended complaint filed against insureds in underlying tort action determine insurer's duty to defend where that complaint did not expressly state an intent to preserve portions of previously filed fifth amended complaint -- Exclusions -- Intentional acts -- Bodily injury which is expected or intended, or willful and malicious -- Where plaintiff in underlying suit alleged that she was drugged without her knowledge with GHB, that she became incapacitated and was caused to engage without her consent in sexual acts in parking lot of nightclub in early morning hours, and that insureds knew or should have known she was incapacitated by a drug placed in her drink by insureds or a third party, her allegation that insureds may neither have expected nor intended the resultant harm, bodily injury, or damage, was unreasonable and illogical -- Policy at issue does not provide insurance coverage for “negligent rape” or sexual assault of an incapacitated adult -- Public policy dictates against insuring for losses from intentional or criminal acts, since this would shift financial burden of loss from wrongdoer to insurer -- Because no coverage exists, trial court erred in entering final judgment for insureds

28 Fla. L. Weekly D722a

Insurance -- Uninsured motorist -- No error in dismissing suit against insurer with prejudice because insured made intentional misrepresentations as to material facts during deposition -- Record supports conclusion that insured knowingly and intentionally concealed his lack of employment at time of accident and finding that misrepresentation was central to issue of lost wages, which was integral part of claim against insurer

28 Fla. L. Weekly S227a

Insurance -- Employers liability -- Coverage -- Bodily injury by accident -- Spoliation of evidence claims -- Plain language of employers' liability insurance policy, which applies to bodily injury by accident, does not provide coverage for claims against insured for negligent spoliation of evidence -- Claim for spoliation of evidence is not claim for “bodily injury by accident” because what is claimed as “accident” is negligent loss of the ladder, and that accident did not result in bodily injury but rather in ladder not being available as evidence in bodily injury claim -- Plaintiff's spoliation claim seeks compensation not for bodily injury he sustained in falling from ladder but, rather, for loss of probable expectancy of recovery in underlying suit

28 Fla. L. Weekly D2009b
855 So. 2d 167

Insurance -- Uninsured motorist -- Venue -- Forum non conveniens -- Civil procedure -- Record does not demonstrate that trial court conducted requisite analysis of applicable factors before dismissing plaintiff's action against insurer for underinsured motorist benefits and transferring it to foreign state where accident occurred

28 Fla. L. Weekly D1077a

Insurance -- Uninsured motorist -- Dismissal -- Fraud -- Trial court did not abuse discretion in dismissing action against uninsured motorist insurer for benefits arising out of accident on ground that plaintiff, during discovery, actively sought to conceal a subsequent accident, and gave false information regarding the extent and nature of injuries from earlier accidents -- Where there is no evidence that plaintiff had any mental incapacity, her misstatements cannot be excused as mere forgetfulness

28 Fla. L. Weekly D568b STATE FARM FLORIDA INSURANCE COMPANY, Petitioner, v. ISAAC GALLMON, Respondent. 2nd District. Case No. 2D02-3439. Opinion filed January 29, 2003. Petition for Writ of Certiorari…

NOT FINAL VERSION OF OPINION
Subsequent Changes at 28 Fla. L. Weekly D568b

28 Fla. L. Weekly D330a

Insurance -- Homeowners -- Discovery -- Privileged work product -- In breach of contract action by insured against insurer, seeking more coverage for sinkhole damage than insurer had offered, trial court improperly ordered insurer to disclose internal operating materials and various other items -- Materials ordered disclosed were either irrelevant to the first-party dispute or were privileged work product

NOT FINAL VERSION OF OPINION
Subsequent Changes at 30 Fla. L. Weekly D2450a

28 Fla. L. Weekly D2751a

Insurance -- Discovery -- Attorney-client privilege -- Crime-fraud exception to privilege -- Where insured sued insurer for breach of contract and defamation after insurer had denied claim for property damage, including in its letter of denial the statement that insured had “attempted to commit insurance fraud,” trial court departed from essential requirements of law in finding that defendant insurer had committed fraud by accusing insured of fraud and thereby waived attorney-client privilege under crime-fraud exception to privilege -- Under circumstances where insured's second claim of loss was far in excess of its initial claim of loss which had been settled, insurer knew that insured had not undertaken any repairs to insured property prior to submission of second claim of loss, insurer knew that individual who signed second claim of loss had previously been convicted of insurance fraud, and insurer knew that company which had prepared estimate used in claim of loss was under investigation for improper inflation of insurance estimates, insurer had reasonable belief that insured had attempted to commit insurance fraud

28 Fla. L. Weekly D2744a

Insurance -- Liability -- Discovery -- Attorney-client privilege -- Trial court departed from essential requirements of law when it ordered insurer to produce documents which included communications between counsel and insurer involving legal opinions on coverage

28 Fla. L. Weekly D359a

Insurance -- Uninsured motorist -- Discovery -- Insured's bad faith action against underinsured motorist insurer which had initially offered to settle insured's claim for substantially less than full coverage amount, but tendered policy limits after award of damages to insured in negligence action -- Trial court improperly granted insured's renewed motion to compel production of insurer's “entire claim file,” with the exception of any materials pertaining to underwriting, after prior motions had been denied -- Although failure to provide a privilege log generally waives insurer's right to assert attorney-client and work-product privileges, insurers did not waive right to assert privileges by failure to file privilege log because insurer was entitled to rely on two prior orders that granted insurer's motion for protective order -- Trial court's finding that insured made sufficient showing that he was unable to obtain necessary information relating to his claim by other means, does not warrant production of entire claim file because that showing only relates to the work-product privilege, not the attorney-client privilege -- Remand for trial court to either permit insurer to provide privilege log or for in camera inspection of file by trial court

28 Fla. L. Weekly D2519b

Insurance -- Disability -- Sickness which manifested itself before policy was issued -- Incontestability clause -- Where disability policy provided benefits for any sickness which first manifests itself after the date of issue of the policy, and insured's degenerative eye disease was diagnosed and treated prior to issuance of the policy, insurer properly denied claim for disability benefits based on insured's eye disease although claim was submitted beyond policy's two-year incontestability period -- Incontestability clause does not apply to claim that falls outside policy's scope of coverage

28 Fla. L. Weekly D2800b

Insurance -- Insured alleging that her insurer had not complied with statute which prohibits insurance companies from including in their rate base monies paid on bad faith and punitive damages claims and related attorney's fees and taxable costs -- Exclusive remedy for asserting claim based on purported violation of section 627.0651 is to seek administrative review pursuant to section 627.371 -- Once administrative review is completed, exclusive jurisdiction for judicial review is district court of appeal -- Section 624.155, which provides for civil remedy against insurers who knowingly charge excessive rates, does not apply to challenge to rate-making process -- Complaint filed in circuit court should be dismissed for failure of plaintiff to pursue and exhaust administrative remedy

28 Fla. L. Weekly D23a
832 So. 2d 916

Administrative law -- Declaratory statements -- Primary jurisdiction -- Department of Insurance -- Where insured's class action against personal injury protection insurer seeking additional reimbursement for travel to and from medical appointments was dismissed by circuit court, which declined to exercise jurisdiction on basis that Department of Insurance had primary jurisdiction over subject matter of the suit, and insured appealed the order of dismissal and filed petition for declaratory statement with Department, asking Department to determine whether it had primary jurisdiction to determine the rate of reimbursement for personal automobile mileage payable under personal injury policy, Department properly dismissed the petition for declaratory statement -- When questions presented in a petition for declaratory statement are at issue in pending judicial proceedings, the administrative agency to which the petition is addressed should refrain from issuing a declaratory statement until the proceedings in court conclude -- Petition was properly dismissed because issue of primary jurisdiction is still at issue in pending appeal -- Even if petition for declaratory statement could be construed as seeking a substantial interest proceeding under sections 120.569 and 120.57(1), dismissal would have been proper, because Department of Insurance does not have statutory authority to adjudicate simple contractual disputes about the amounts of benefits payable under personal injury protection policies

28 Fla. L. Weekly D2193a

Declaratory judgment -- Stay -- Insureds seeking to stay declaratory judgment action as to any determination of insurers' duty to indemnify during pendency of class action cases which insurers alleged arose prior to inception of insurance policy and for which insurers alleged coverage was precluded by several policy exclusions -- Trial court did not depart from essential requirements of law by denying motion to stay -- At this point in declaratory judgment litigation, it appears that resolution of indemnity issue would not necessarily involve determination of facts or issues that are of central concern in class action lawsuits -- Further, prompt determination of coverage potentially benefits insured, insurer, and injured party

28 Fla. L. Weekly D1195a

Declaratory judgments -- Insurance -- Uninsured motorist -- Appeals -- Dismissal of declaratory judgment action is reviewable as a final order -- No error in striking insurer's claim for declaratory judgment as to coverage under an uninsured motorist insurance policy where essential disputed fact was whether accident was caused by hit-and-run “phantom vehicle” or whether accident was a single vehicle accident for which there was no UM coverage -- There was logical basis for court's determination that declaratory judgment action would not serve any useful purpose and might impair or defeat rights of the parties

28 Fla. L. Weekly D2215a

Declaratory judgments -- Dismissal -- Trial court erred in granting motion to dismiss declaratory judgment action seeking declaration of coverage under insurance policy on ground that there was no coverage under the policy -- Motion to dismiss a declaratory judgment action is not a motion on the merits, but is, rather, a motion only to determine whether there is an entitlement to a declaration of rights

28 Fla. L. Weekly D1826a

Insurance -- Comprehensive general liability -- Coverage -- Estoppel -- Question certified: Can the estoppel theory approved in Doe v. Allstate Insurance Co. be applied to conduct arising out of the insurer's investigation of a claim before the claimant has filed a lawsuit?

NOT FINAL VERSION OF OPINION
Subsequent Changes at 28 Fla. L. Weekly D1826a

28 Fla. L. Weekly D900a

Insurance -- Comprehensive general liability -- Coverage -- Estoppel -- When policy excludes coverage, insurer can be estopped to deny coverage if it negligently investigates a claim before suit is filed, and the insured is prejudiced -- No merit to insurer's contention that estoppel can apply only to conduct occurring after insurer undertakes the defense of a lawsuit -- Trial court erred in instructing jury on section 627.426(2)(a), Florida Statutes (1995), which provides that a liability insurer shall not be permitted to deny coverage based on a coverage defense unless notice of reservation of rights to assert coverage defense is given to insured within thirty days after insurer knew or should have known of coverage defense -- Statute does not apply where there is a complete lack of coverage for the loss sustained -- No merit to insurer's claim that because policy was issued to municipal corporation, it could be liable for a settlement of claim only up to the $100,000 limit provided in waiver of sovereign immunity statute -- Claimant could receive compensation in excess of $100,000 through a claims bill, and if claimant were successful in having legislature pass a claims bill, it would be paid with funds of the insured

28 Fla. L. Weekly D1287a

Contracts -- Indemnity -- Insurance -- Limitation of actions -- Third-party complaint against construction contractor and insurance company by mall operator who was sued by contractor's employee for injuries sustained while employee was working at mall -- Assuming, as alleged, that defendant breached construction contract by failing to obtain liability insurance and by failing to clean up and maintain safety precautions at time employee was injured, trial court correctly dismissed breach of contract claims as time-barred where action was not commenced within five years of incident -- Declaratory judgment -- Count seeking declaration of mall operator's rights as additional insured under insurance policy issued to contractor was filed well within statute of limitations -- Issue of coverage under policy became ripe for determination when mall operator settled employee's negligence action -- Rule against splitting of causes of action does not apply because mall operator had not previously filed any action regarding right to insurance coverage under this policy -- Although it is unclear why contractor was made party to declaratory judgment action, that issue is not before court -- Error to dismiss declaratory judgment action

28 Fla. L. Weekly D2584c

Insurance -- Comprehensive business liability -- Policy which was issued to insured which cryopreserved sperm samples of person who subsequently became sterile as result of chemotherapy treatment did not provide coverage for damages resulting when the sperm samples were destroyed when the cooling apparatuses failed on the tanks where the sperm samples were stored -- Policy which provided coverage for bodily injury but excluded coverage for “personal property in the care, custody or control of any insured,” did not provide coverage for destroyed sperm samples, because sperm which had been removed from the body no longer constituted a part of the body, but instead constituted property whose destruction is not considered bodily injury

28 Fla. L. Weekly D785a

Insurance -- Broad form products/completed operations coverage -- Duty to defend -- Exclusion in policy issued to contractor for property damage to that particular part of any property that must be restored, repaired or replaced because insured's work was incorrectly performed on it was not applicable to action against insured alleging that insured improperly constructed windows, window sills, and exterior walls in assisted congregate living facility it was constructing, and that defects permitted severe water infiltration which caused owner of property to suffer damage in its business and property -- There was potential coverage under policy because damage due to severe water infiltration could include damage to property other than the improperly constructed windows and exterior walls -- Exception to exclusion for completed products was applicable because complaint against insured alleged damage to a completed product -- Insurer had duty to defend where claims in complaint against insured were potentially covered under policy

28 Fla. L. Weekly S194a

Insurance -- Commercial general liability -- Per occurrence limit of liability -- Action against insured restaurant owner by two victims who were shot in restaurant during a single incident, alleging negligent failure to provide security -- When the insured is sued based on negligent failure to provide adequate security arising from separate shootings of multiple victims, there are multiple occurrences under the terms of policy that defines occurrence as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions” -- Consistent with the “cause theory,” in the absence of clear language to the contrary, when the insured is being sued for negligent failure to provide security, “occurrence” is defined by the immediate injury-producing act and not by the underlying tortious omission -- No merit to claim that all of the shots should be considered one “occurrence” due to the close proximity in time and place of the individual shots fired

28 Fla. L. Weekly D1161a

Insurance -- Commercial general liability -- Coverage -- Intentional acts -- Trial court properly determined that insurer had no duty to defend insured university in action by former students who alleged that university falsely represented that there was no accreditation problem with the physical therapy program in which they were enrolled, that accreditation of the program was withdrawn, that university failed to act diligently in seeking reconsideration, that students were ineligible to sit for licensing examination because the program was not accredited, and that students suffered mental stress, anxiety disorders, post-traumatic stress disorder, and depression as result of program having lost its accreditation -- Under terms of policy, no coverage was provided because alleged conduct of insured was intentional, not mistaken -- Allegation that insured “recklessly” disregarded facts did not allege negligent or non-intentional conduct -- Trial court properly entered declaratory judgment finding that insurer had no duty to defend or indemnify insured university

28 Fla. L. Weekly D681a

Insurance -- Civil procedure -- Class actions -- Settlement -- Modification by trial court -- Attorney's fees -- Trial court improperly entered final judgment approving a negotiated settlement in class action personal injury protection lawsuit as to the payments to the class members, but making referral to a special master for a determination as to the reasonableness of the attorney's fee which was agreed upon as part of the settlement -- Trial court may receive the special master's report and, if it concludes the fee is unreasonable, may reject the settlement in its entirety and advise the parties what modifications to the agreement may make it acceptable to the court, but the trial court may not effectively re-write the settlement by approving part of it while reserving the right to approve an attorney's fee different from the one the parties negotiated

28 Fla. L. Weekly D2362a

Insurance -- Class actions -- Jurisdiction -- Error to certify class action against life insurance company by group of policyholders who claim to have been improperly excluded from receipt of dividends from annual divisible surplus of disability policies, where insurance company is domiciled in State of Wisconsin, and Wisconsin Commissioner of Insurance has found that actions taken by company were proper -- Company which is domiciled in State of Wisconsin is subject to insurance code of that state, and it is not for the courts of Florida to determine whether the actions of the company were improper

28 Fla. L. Weekly D849a

Insurance -- Liability -- Cancellation of policy -- Extension of coverage by notice of nonpayment -- Trial court properly entered summary judgment for insurer determining that there was no coverage where insured's customer was injured just after the expiration date of the policy and insurer had mailed a notice of nonpayment with a cancellation date of one month after the expiration of the policy, but before receiving the notice of nonpayment the insured had already told the local representative of the insurer that he did not intend to renew the policy -- Where the insured had already rejected the renewal policy entirely, the notice of nonpayment did not breathe new life into the rejected renewal

28 Fla. L. Weekly S307d

Insurance -- Builder's risk -- Exclusions -- Policy's design defect exclusion bars recovery by insured of expenses incurred in repairing structural deficiencies in condominium building which resulted from design defect -- Sue and labor clause of policy requires that an actual covered loss must have occurred or be in progress before insured can recover under this provision for the expenses incurred -- Because insured was acting to prevent a potential collapse in expending funds to repair deficiencies, and no actual loss had occurred, funds expended by insured are not recoverable under policy's sue and labor clause

28 Fla. L. Weekly D1895a

Insurance -- Builders risk -- Condominiums -- Construction defects -- Indemnification -- Error to find that builders risk policy purchased by condominium developers and effective during construction of condominium project was required to indemnify for construction defects and deficiency claims made after association and individual unit owners had taken over control and occupancy of the condominium from builders and developers -- Builders risk policy is a first-party contract which did not indemnify a third party for faulty workmanship and is not a liability policy -- Remand with directions that judgment be entered in favor of insurer

28 Fla. L. Weekly S510aStandard jury instructions -- Civil -- Amendments -- Insurance -- Bad faith failure to settle

28 Fla. L. Weekly D1349a

Insurance -- Liability -- Bad faith -- Discovery -- Attorney-client privilege -- Communications between an insured and the counsel hired by insurer to defend him in a liability suit that pertain to common interest held by insured and insurer are available to insurer, and this right of access continues even if interests of insurer and insured become adverse -- Communications concerning matters not related to defense or resolution of liability case may be privileged -- Error to find that insurer was entitled to access to all communications between insured and counsel -- On remand, trial court should review documents and order disclosure of only those documents relating to defense of liability claim, not communications pertaining primarily to insured's own interests

28 Fla. L. Weekly D1214c

Insurance -- Title insurance -- Discovery -- In action by insured against title insurance company alleging that insurer refused to pay damages under policy and that failure to pay was done in bad faith, trial court departed from essential requirements of law in requiring that insurer produce documents relating to insurer's business policies and practices regarding its handling of claims and documents relating to claim litigation before there had been a determination of coverage under the policy -- A party is not entitled to discovery of an insurer's claim file or documents relating to the insurer's business policies or practices regarding the handling of claims in an action for insurance benefits combined with a bad faith action until the insurer's obligation to provide coverage has been established

28 Fla. L. Weekly D2547c

Insurance -- Bad faith -- Trial court properly entered summary judgment for insurer in insured's bad faith action against insurer where insured did not meet conditions precedent to maintenance of a first-party bad faith action -- Bad faith claims alleging that insurer had filed groundless lawsuits against insured were cured before expiration of sixty days after notice of violation -- Claim that insurer filed groundless declaratory judgment action in federal court with regard to insured's lightning claim was cured by jury verdict in favor of insured on his counterclaim in that action -- Claim that insurer filed groundless declaratory judgment action in federal court with regard to insured's windstorm claim was cured by dismissal of insurer's claim in district court

28 Fla. L. Weekly D1193a

Insurance -- Automobile liability -- Rental vehicles -- Excess coverage -- Supplemental liability insurance -- Exclusions -- Family member -- Insured who purchased supplemental liability insurance at time she rented vehicle seeking coverage for injuries sustained by her daughter in one-vehicle accident which occurred when insured was driving rental car in which daughter was passenger -- General statement in rental agreement that SLI insurance is subject to other specific exclusions, which are summarized in a separate document available on request, does not satisfy section 627.421, which requires delivery of every insurance policy to insured “or to the person entitled thereto” no more than sixty days after effectuation of coverage -- Further, statute requires that any automobile liability policy contain on front page a summary of exclusions and limitations contained in policy -- Because neither readable policy nor policy with front page summary of exclusions was delivered to insured, trial court properly held that insured was not bound by family member exclusion to supplemental liability insurance coverage

28 Fla. L. Weekly D2844a

Jurisdiction -- Non-residents -- Declaratory judgments -- Insurance -- Automobile liability -- Other insurance -- Priorities -- European liability insurer which, through tour operator, sold excess coverage to protect Europeans driving rental cars while visiting in the United States is subject to personal jurisdiction in declaratory action brought to determine coverage for Florida accidents -- Foreign insurer had contracted to insure a risk located in Florida under section 48.193(1)(d), notwithstanding insurer's contention that there was no risk in Florida at time of contract because contract was entered into with tour operator before insurer ever actually insured a tourist -- Due process was satisfied because, by specifically providing excess insurance for tourists driving in Florida, insurer should have foreseen that it would be haled into court in Florida if coverage dispute arose

28 Fla. L. Weekly D1611b

Insurance -- Automobile liability -- Bad faith settlement of claims -- Question certified: In an automobile accident scenario involving clear liability, multiple claims, and inadequate policy limits, does insurance good faith law require that an insurer reasonably investigate all claims prior to payment of any claim, keep the insured informed of the claims resolution process, and attempt to minimize the magnitude of possible excess judgments against the insured?

NOT FINAL VERSION OF OPINION
Subsequent Changes at 28 Fla. L. Weekly D1611b

28 Fla. L. Weekly D1023b

Insurance -- Automobile liability -- Bad faith settlement of claims -- Trial court erred in entering summary judgment for insurer in action alleging that insurer acted in bad faith by exhausting policy limits in settling some claims arising out of accident involving multiple deaths and injuries while other claims went unpaid -- Insurer had duty to fully investigate all claims to determine how to best limit the insured's liability, to settle as many claims as possible within the policy limits, and to avoid indiscriminately settling selected claims and leaving the insured at risk of excess judgments that could have been minimized by wiser settlement requirements -- After full investigation and communication with the insured, insurer could have elected to follow a strategy of settlement with selected claimants, if that policy were reasonable -- The reasonableness of that policy is a question for the jury -- Insurer's good faith duty to the insured requires it to fully investigate all claims arising from a multiple claim accident, keep the insured informed of the claim resolution process, and minimize the magnitude of possible excess judgments against the insured by reasoned claim settlement -- Whether insurer has met its good faith duty and undertaken a reasonable claims settlement strategy are questions for a jury to decide

28 Fla. L. Weekly D1142a

Insurance -- Automobile liability -- Florida Insurance Guaranty Association -- Claim for excess judgment allegedly caused by FIGA's failure to defend insured is not cognizable under FIGA Act -- Error to enter summary judgment for plaintiff in action against FIGA

28 Fla. L. Weekly D312b

Insurance -- Automobile -- Cancellation of policy -- Unearned premium -- Interest -- Section 627.7283 clearly articulates legislature's intent that insurer be given thirty days within which to return unearned premium, and clearly states that interest will begin to accrue at rate of 8% if refund is not made within that thirty-day grace period -- Statute does not deny access to courts but simply imposes reasonable restriction on filing of claim for interest

28 Fla. L. Weekly D2830a

Insurance -- Attorney's fees -- Error to award fees to attorney who represented plaintiff on contingency fee basis in action against insurer for failure to pay personal injury protection benefits where attorney voluntarily withdrew from representation of plaintiff before suit was settled -- Where attorney withdrew when she married and moved to another state, the withdrawal was voluntary

28 Fla. L. Weekly D2371a

Insurance -- Uninsured motorist -- Attorney's fees -- Error to award attorney's fees to insured where insurer did not dispute UM coverage under the policy, as is required for recovery of fees pursuant to section 627.727(8) -- Court rejects insured's contention that insurer's acknowledgment that a policy existed between the parties and that coverage provided was subject to terms and conditions of the policy was not an admission of coverage -- Denial of paragraph of complaint which alleged that insurer was responsible for damages sustained by plaintiff as result of actions of the other driver, in that other driver was underinsured to compensate plaintiff for injuries, and further alleged that plaintiff was legally entitled to recover uninsured/underinsured motorist benefits from insurer did not amount to a denial of coverage -- Any denial by insurer was as to issues of liability of underinsured motorist, damages, permanency, and other statutory threshold, which are non-coverage defenses -- Joint pre-trial stipulation, witness and exhibit lists, discovery, and proposed verdict forms all show that coverage was not an issue

28 Fla. L. Weekly S455a

Insurance -- Attorney's fees -- Enforcement of settlement agreement -- Where insured sued insurer for coverage under policy, insured claims that insured and insurer reached a settlement agreement, but insurer claims that there was not a valid settlement agreement, prevailing insured is entitled to be awarded attorney's fees under section 627.428, Florida Statutes, for litigating issue of whether there was a settlement agreement

28 Fla. L. Weekly S626a

Attorney's fees -- Insurance -- Surety on performance bond -- Section 627.428 authorizes recovery of attorney's fees in excess of performance bond's face amount from a subcontractor's surety when fees claimant has not shown independent misconduct on part of surety -- Statute unambiguously mandates that surety pay its obligee's attorney's fees upon rendition of judgment against it, and there is no other statute that limits attorney's fees liability of sureties under a performance bond -- Case is distinguishable from prior decision in Nichols v. Preferred National Insurance Co., because that case dealt with guardianship surety

28 Fla. L. Weekly D1404a

Attorney's fees -- Offer of judgment -- Insurance -- Personal injury protection -- An insurer may recover attorney's fees under rule 1.442 and section 768.79 in an action brought by its insured to recover under a personal injury protection policy -- Question certified -- Validity of offer -- In case at issue, insurer's proposal for settlement was defective in form and content under rule 1.442 because proposal required that insured execute a “general release,” of all “claims, causes of action, etc., that have accrued through the date” on which insured accepted the proposal, and this release would have extinguished separate outstanding claim for uninsured motorist benefits which was not a part of instant case -- Because intent of release condition could not be determined without resort to clarification or judicial interpretation, it was not sufficiently particular to comply with rule -- Error to award attorney's fees to insurer

28 Fla. L. Weekly D1884b

Insurance -- Uninsured motorist -- Attorney's fees -- No error in allowing costs and interest taxable in excess of UM policy limits -- Issue relating to award of prejudgment interest not preserved for review -- Sanctions -- Although trial court acted within its discretion in sanctioning insurer for violation of court's discovery orders, trial court erred in striking insurer's opposition to plaintiffs' attorney's fees claim under offer of judgment statute as sanction -- Because plaintiffs' demand for judgment was untimely, it was void from its inception -- Remand for consideration of any alternative sanctions trial court may deem appropriate

28 Fla. L. Weekly D2471a

Insurance -- Personal injury protection -- Attorney's fees -- Offer of judgment -- Section 768.79, Florida Statutes, applies to cases brought pursuant to section 627.736, Florida Statutes, and to cases pending in small claims court -- Question certified: May an insurer recover attorney's fees under rule 1.442, Florida Rules of Civil Procedure, and section 768.79, Florida Statutes, in an action by its insured to recover under a personal injury protection policy?

28 Fla. L. Weekly S740a
863 So. 2d 210

Attorney's fees -- Offer of judgment -- Insurance -- It is error to use contingency risk multiplier in awarding attorney's fees pursuant to offer of judgment statute -- Because attorney's fees awarded under the offer of judgment statute are sanctions against the party against whom the sanction is levied, the statute and rule must be strictly applied -- Rule of Civil Procedure 1.442 does not include the use of a multiplier as a factor to be considered in the award of attorney's fees as sanctions

28 Fla. L. Weekly D2461d

Attorney's fees -- Insurance -- Insolvent insurers -- Rehabilitation and liquidation -- Where receiver successfully established claim to funds at issue, trial court was without discretion to deny receiver an award of reasonable attorney's fees

28 Fla. L. Weekly D2275a

Insurance -- Group health -- Attorney's fees -- Trial court properly determined that because group health policy was delivered out of state, attorney's fees were not recoverable by insured who prevailed in suit against insurer for insurance coverage -- Delivery of certificate of insurance to which were attached several amendatory endorsements required by Florida was not the equivalent of delivery of full policy in Florida

NOT FINAL VERSION OF OPINION
Subsequent Changes at 29 Fla. L. Weekly D85a

28 Fla. L. Weekly D2443b

Insurance -- Insolvent insurers -- Florida Insurance Guaranty Association -- Attorney's fees -- Error to award insured attorney's fees and costs against FIGA where awards do not qualify as “covered claims” -- Where insurer wrongfully refused to defend insured in action against insured, insured filed declaratory judgment seeking determination that policies provided coverage for claims against insured and that insurer had duty to defend insured, insurer was declared insolvent and FIGA was substituted as successor in declaratory judgment action, and insured prevailed in underlying action after insured had incurred attorney's fees and costs in that action, FIGA was erroneously found liable for fees and costs incurred by insured in defending underlying action -- FIGA was not liable for attorney's fees and costs arising out of insolvent insurer's breach of duty to defend because such damages were not within the coverage of the policy -- Because FIGA did not affirmatively deny a covered claim, FIGA is not responsible for fees and costs incurred by insured in prosecuting declaratory judgment action

28 Fla. L. Weekly D679a

Insurance -- Personal injury protection -- Arbitration -- Attorney's fees -- Trial court improperly entered final summary judgment for insurer denying attorney's fees to medical provider assignee, in assignee's action to recover interest on late PIP claim payments, on grounds that insurer had tendered payment of the interest due and assignee had incurred no attorney's fees between the time arbitration was ordered and the time the interest payment was tendered -- The payment of PIP benefits before action was taken in the ordered arbitration proceeding was “equivalent to a confession of judgment” and entitled the provider assignee to a fee award -- The fact that the statute under which the insurer had moved to compel arbitration was ruled unconstitutional by the Florida Supreme Court before arbitration proceedings began does not change the provider's entitlement to a fee because any dispute which leads to a judgment against the insurer in favor of the insured or insured's assignee creates an entitlement to attorney's fees

28 Fla. L. Weekly D2664c

Attorney's fees -- Insurance -- Justiciable issues -- Where insurer undertook defense of personal injury action against restaurant franchisor under reservation of right to withdraw its defense in the absence of a duty to defend, and insurer was granted summary judgment in its declaratory judgment action seeking declaration that franchisor was not an additional insured under insurance policy, insurer was not entitled to award of attorney's fees for its defense of franchisor in underlying suit because the reservation of rights did not reserve rights to attorney's fees and costs -- Error to award attorney's fees to insurer under section 57.105 in declaratory judgment action where franchisor's position was not wholly unsupported by facts at any time before final summary judgment in that action -- Defense in declaratory judgment action was not so completely lacking in merit as to support finding that position was frivolous

28 Fla. L. Weekly D1488b

Attorney's fees -- Insurance -- Contingency risk multiplier -- Contract between insured and attorney in which attorney technically was entitled to recover fee up to $200 per hour from client, win or lose, but agreed to accept “a reasonable fee awarded by the Court” was not a contingent fee arrangement -- Error to use “contingent risk” multiplier based on finding that the fee would, in either case, be based upon winning the case because of insured's “indigent financial condition” -- Likelihood that client will not pay agreed-upon hourly fee is not criterium upon which “contingency” in this context is based

28 Fla. L. Weekly D106b

Attorney's fees -- Torts -- Insurance -- Order awarding attorney's fees to plaintiff who prevailed against insurer in claim for proceeds of life insurance policy and to defendant on civil theft claim was insufficient in that it did not contain amount of time reasonably spent in litigation, failed to state attorneys' hourly rates, and included contingency risk multiplier without stating grounds justifying use of multiplier -- Although record supports some form of attorney's fees award, absence of written findings in order coupled with lack of verbal findings on the record requires reversal

28 Fla. L. Weekly D1139a

Insurance -- Automobile -- Stolen vehicle -- Assistance and cooperation -- Where insured cooperated to some degree by providing some, but not all, documents requested by insurer, issue of whether there has been material breach of insurance contract is one for jury, not trial judge

28 Fla. L. Weekly D2366a

Attorney's fees -- Insurance

28 Fla. L. Weekly D1891a

Insurance -- Structured settlement -- Transfer of structured settlement payment rights -- Statutory requirement that written response to application for transfer of structured settlement payments “must” be filed within fifteen days after service of transferee's notice is directory, not mandatory -- No error in trial court's consideration of objection to transfer which was filed several days beyond the fifteen-day period -- Release which provided for structured settlement prohibited claimant from assigning or accelerating the periodic payments, and court is authorized by statute to deny transfer if it would “contravene the terms” of the settlement -- Risk of adverse tax consequences warrants upholding of non-assignability provision in structured settlement documents -- Trial court properly refused to approve assignment

28 Fla. L. Weekly D2140a

Insurance -- Personal injury protection -- Assignment -- Although insured executed assignment agreement with provider regarding her right to receive PIP payments from insurer, material issue of fact exists as to whether that agreement was subsequently rescinded by mutual agreement of the parties -- Circuit court acting in its appellate capacity properly reversed summary judgment entered by county court in insurer's favor

28 Fla. L. Weekly D2679a

Insurance -- Health -- Arbitration -- Trial court erred in dismissing action against health insurer on basis that dispute was subject to mandatory arbitration pursuant to arbitration clause in insurance contract without first resolving threshold issue of whether a contract exists between the parties

28 Fla. L. Weekly D1432c

Insurance -- Homeowners -- Appraisal -- Where insurer denied claim for damages to insured home on ground that damage caused by nearby blasting activities was excluded from coverage under policy, trial court properly entered summary judgment for insurer in insureds' suit for appraisal on ground that issue of coverage is one for court, not for appraisers -- Request for appraisal was premature absent a determination that coverage exists under policy -- Court's denial of appraisal does not preclude insureds from filing suit on policy

28 Fla. L. Weekly D327a

Insurance -- Appraiser -- Competency -- Trial properly granted defendant insurer's motion to dismiss complaint on ground that plaintiff did not designate a competent and disinterested appraiser because, although the policy does not require an insured to select an expert as an appraiser, there was insufficient evidence to establish the attorney designated by the plaintiff was competent to serve in that capacity

28 Fla. L. Weekly D744a

Insurance -- Arbitration -- Foreign insurers -- P&I policy issued to ship owner and charterers -- Trial court erred in denying motion of foreign insurer of ship owners, who disclaimed coverage for maritime claim, to compel arbitration in Oslo, Norway pursuant to clauses in policies -- Arbitration agreement is enforceable under Federal Arbitration Act and is governed by the Convention on the Recognition and Enforcement of Foreign Arbitral Awards -- Ship owner's contention that the dispute is subject to Florida law, under which insurance coverage disputes cannot be arbitrated, rather than FAA, based on McCarran-Ferguson Act, is incorrect because the McCarran-Ferguson Act does not apply in cases involving foreign commerce -- Arbitration agreement is enforceable under FAA because dispute meets the four conditions for FAA applicability

28 Fla. L. Weekly D1337a

Insurance -- Venue -- Trial court erred in finding that venue provision in application for workers' compensation insurance policy did not apply to insurer's action to collect unpaid premiums for renewal policy -- Application became a part of the agreement between the parties -- Venue provision in application for insurance was applicable to renewal of policy

28 Fla. L. Weekly D1321b

Insurance -- Appraisal -- Judgment against insurer affirmed where insurer had notice of the loss and the amount of the loss was properly submitted to the appraisal panel

28 Fla. L. Weekly D1744a

Torts -- Action by insurance company against property inspectors seeking recovery of insurance proceeds paid to insured due to fire loss, alleging that defendant negligently inspected the wrong property and consequently failed to report that insured premises included a nightclub serving alcoholic beverages, a prohibited risk for which coverage would not have been provided under plaintiff's underwriting guidelines, and further alleging that plaintiff relied upon erroneous inspection report in maintaining coverage under the policy -- Trial court erred in entering summary judgment in favor of defendant based on finding that plaintiff's payment to its insured was deemed voluntary because plaintiff had failed to avail itself of defense under section 627.409(1) based on insured's failure to list nightclub as business occupying building on insurance application -- Policy at issue voided coverage for material misrepresentation or omission only if the insured “intentionally” concealed or misrepresented a material fact in procuring the insurance, and there was nothing in the record that directly or indirectly indicated existence of fraud or intentional misrepresentation by insured -- Although statute voids policy for misrepresentation or omission without regard to whether same was intentional, insurance policy is to be given effect rather than the statute when policy alters standard for coverage, so long as it does not contravene public policy -- Court rejects notion that rule established by caselaw giving primary effect to policy provisions are distinguishable, based upon whether or not application for insurance is based upon “information and belief,” since policy and application together constitute the contract of insurance

28 Fla. L. Weekly D2274a

Insurance -- Personal injury protection -- Appeals -- District court declines to exercise discretionary jurisdiction to answer question certified by county court regarding requirement that insured countersign medical bills submitted by assignee/medical provider on HCFA Form 1500, given plethora of cases uniformly interpreting the countersignature requirement of section 627.736(5)(a) as permitted, not mandatory, where insured has assigned benefits to medical provider -- Appeal transferred to circuit court

28 Fla. L. Weekly D607c

Insurance -- Completed operations coverage -- Contractors -- Named insured -- Where contractor was an officer and director of corporation which was involved in negligent construction of department store, contractor sold his interest in corporation and company's name was changed, contractor thereafter formed a second corporation having the same name as the original corporation, and contractor was issued completed operations coverage policy naming the contractor's corporation as a named insured, trial court properly entered summary declaratory judgment finding that policy provided coverage to corporation which was involved in negligent construction of store -- Any ambiguity as to which corporation was covered under the policy has to be liberally interpreted in favor of the insured and strictly against the insurer -- Because coverage existed for corporation as a named insured, contractor individually was covered because policy provided coverage for officers and directors of named insureds -- Prejudgment interest -- Where parties stipulated in a settlement agreement to an amount to be paid once a judgment for coverage was rendered, the damages became liquidated as of the date of the stipulation, and prejudgment interest began to run from that date

28 Fla. L. Weekly D546a

Insurance -- Commercial all-risk -- Exclusions -- Damages due to settling, cracking, shrinking or expansion -- Term “settling” as used in exclusions clause connoted only normal settling, not type of subsidence that occurred here as result of decay of construction debris which, unbeknownst to insured or insurer, was buried in ground beneath the home

28 Fla. L. Weekly S119a
840 So. 2d 993

Insurance -- Title insurance -- Misfeasance of licensed title insurance agent -- Section 627.792, Florida Statutes (1997), which provides that title insurer is liable for defalcation, conversion, or misappropriation by a licensed title insurance agent of certain funds held in trust by the agent, does not apply to attorneys who are acting as title insurance agents if those attorneys are exempt from licensing requirements of section 626.8417, Florida Statutes (1977)

28 Fla. L. Weekly D1590a

Administrative law -- Department of Insurance -- Suspension of agent's license -- Evidence was sufficient to support license suspension on basis of two instances of engaging in unauthorized transactions with clients by agent who obtained new annuity policies for elderly clients who intended only to make changes to existing annuity policies -- For purpose of calculating period of license suspension where multiple grounds for suspension exist, only the violation producing the highest penalty may be considered as the penalty for that count -- Violation of section 626.611(9), Florida Statutes, which proscribes fraudulent or dishonest practices in the conduct of business under the license or appointment, requires more than a solitary lapse or single act of misconduct -- Department improperly imposed nine-month suspension under section 626.611(9) for agent's solitary lapse in professional conduct giving rise to first violation -- Because agent's second violation constituted multiple practices for the purpose of section 626.611(9), nine-month suspension for that offense was appropriate

28 Fla. L. Weekly D197a

Contracts -- Implied -- Plaintiff's claim for quantum meruit, alleging that plaintiff's employee provided certain services to defendant which defendant used in underwriting and issuing an insurance policy -- A plaintiff may not assert a contract implied in law to circumvent a statutory requirement that a person be licensed to perform services as a life insurance agent -- Legislature has determined that “valid license” is required in order to be entitled to “any commission or other valuable consideration” in return for “services as a life insurance agent” -- Statute bars payment “directly or indirectly” -- It is not inequitable to preclude plaintiff's recovery because legislature has imposed license requirement as condition of doing type of business involved in instant case -- Successor judge was not precluded from granting summary judgment based on same legal theories rejected by predecessor in earlier motion for summary judgment, as facts became more fully developed after initial judge's ruling -- Attorney's fees -- Offer of judgment -- Under 1989 version of section 768.79 applicable to instant case, defendant was not entitled to attorney's fees

28 Fla. L. Weekly D1259a

Torts -- Insurance -- Contracts -- Damages -- Lost profits -- Action against insurance agent who failed to procure coverage for plaintiff's power screen which was ultimately destroyed by fire, despite plaintiff's request that power screen be added to policy -- No abuse of discretion in allowing plaintiff's expert to offer his opinion regarding amount of plaintiff's lost profits -- Although there was no evidence that expert witness had accounting degree, witness could be qualified to testify as expert where witness possessed special knowledge, experience, or skill in the subject upon which witness is called to testify -- Evidence of lost profits was too speculative because plaintiff's expert relied upon a series of assumptions, including assumption that plaintiff would increase production of mulch by 250%, that certain one of plaintiff's customers would pay maximum price of $12 per yard and buy five or six loads daily, and that plaintiff would not experience the same price decline that other mulch businesses had experienced -- Further, expert witness failed to deduct salaries -- Remand for new trial on damages

28 Fla. L. Weekly D1363a

Torts -- Insurance agents -- Negligent failure to procure requested coverage -- Where plaintiff procured defendant agent to provide liability policy for his business for protection against damage from fire and flood, but defendant procured general liability policy that excluded coverage for property damage, trial court properly entered judgment in favor of plaintiff in action alleging negligent procurement of insurance policy after fire occurred at business causing destruction of inventory, stock, and business records -- Measure of damages in a negligent procurement of insurance case is what would have been covered had the insurance been properly obtained -- Plaintiff proved the measure of damages by submitting copy of certificate of insurance indicating that fire damage incurred was included in general liability policy and by introducing an inventory list that he prepared after the fire which reflected the loss of fixtures, as well as merchandise -- Defendant cannot rely on defenses available to co-defendant at trial to defend his own interests because he failed to appear at trial and present merits of his own defense

28 Fla. L. Weekly D1531a

Torts -- Insurance agents -- Failure to procure or renew automobile policy -- Law of the case -- Issue adjudicated in prior declaratory judgment action and resolved in appeal was legal relationship between agent and insurer, not relationship between agent and tortfeasor or injured party -- Injured party's negligent procurement action claimed that agent should have timely renewed insurance policy, whereas declaratory judgment action merely determined that tortfeasor's delivery of payment and application to agent did not trigger any obligation by insurer based upon legal relationship between them -- Trial court properly entered summary judgment in favor of injured party where there were no genuine issues of material fact as to agent's failure to procure insurance for tortfeasor -- Attorney's fees -- Injured party not entitled to recover attorney's fees from insurance agent under section 627.428(1) -- Florida Supreme Court has held that only persons named in statute are entitled to recover attorney's fees -- Although an exception exists where fees are an element of damages in tort action, and insured's damages in a negligent procurement action may include a claim for attorney's fees against insured's agent, injured party's attorney's fees are not a component of her damages because she was not forced to incur those fees as a result of her agent's failure to procure insurance coverage

28 Fla. L. Weekly D2340a

Insurance -- Automobile -- Cancellation of policy -- Insurance agency was broker for insurer and did not act as statutory, actual or apparent agent for insurer when it collected premium payments from insured after insurer had cancelled policy -- Circumstances indicating that agency was acting as broker included facts that agency solicited insurance business from general public and had relationships with numerous insurance companies with which it placed applications for insurance on behalf of its customers; insurer's relationship with agency was made clear in written agreement which provided that agency had authority to solicit, receive, and transmit applications for insurance contract for commission; application executed by insured for coverage with insurer clearly informed insured that agency did not have authority to bind insurer to coverage without first obtaining telephonic binder from insurer with a corresponding binder number; and application also provided that agency had no right to make, alter, modify, or discharge any contract or policy issued on basis of insured's application -- Broker did not become statutory agent for insurer under section 626.342(2) where application for insurance executed by insured specifically informed insured of limitations placed by insurer on broker's authority -- Pursuant to agreement between insurer and agency, agency had no actual authority to collect premium payments for premium financing company on behalf of insurer -- Nothing in record indicated that insurer made representation to insured that agency had the authority on behalf of insurer to accept premium payments for premium financing company and, accordingly, agency was acting on behalf of premium financing company, not insurer, when it accepted these payments -- Even if agency had actual or apparent authority to act on behalf of insurer, agency would have been acting outside the scope of that authority when it accepted premium payments from insured after having received notice of cancellation of policy -- Accordingly, acceptance of premium payments by agency on behalf of premium financing company after policy was cancelled did not estop insurer from asserting cancellation as a defense -- Because policy was effectively cancelled prior to accident, insurer provided no coverage for accident -- Remand for entry of summary judgment in favor of insurer