2004

29 Fla. L. Weekly D664b

Insurance -- Workers' compensation -- Refunds to insurers for overpayments into Special Disability Trust Fund and Workers' Compensation Administrative Trust Fund -- For purpose of computing amount to be assessed to fund SDTF and WCATF, “net premiums written” and “net premiums collected” include reinsurance premiums -- Error to order refunds that are attributable to reinsurance premiums

29 Fla. L. Weekly D1528b
877 So. 2d 774

Insurance Windstorm -- Exclusions -- Concurrent cause -- Valued Policy Law -- Multiple perils -- Homeowner who had wind insurance policy with one carrier for specific face amount, which policy excluded flood damage, and flood insurance policy with another carrier seeking review of trial court's holding that wind insurer was liable only for its pro rata share, not for face amount of policy, when building was declared total loss after hurricane when local authority, acting pursuant to local ordinance, essentially condemned building after determining that cost of repairs for total damage exceeded half the value of the building -- VPL provides that any liability of a casualty insurer where a covered peril is involved in a total loss must be for the face amount of the policy rather than pro rata with other coverages -- VPL statutory text does not require that a covered peril be the specific covered peril causing the entire loss -- Anti-concurrent cause clause excluding coverage for any damage other than by wind conflicted with VPL text and created ambiguity in policy where policy was silent on whether insurer's liability under the ACCC became merely pro rata with other coverage, or whether instead the VPL takes precedence over the ACCC -- Resolving ambiguity in favor of insured, if windstorm insurer had any liability at all, even fractional share of total damage, under VPL it is liable for face amount of policy -- Without deciding whether an attempt by VPL insurance carrier to limit its liability to single peril would be permitted under VPL, court notes that an expressly worded provision to that effect would be necessary to make such a limitation arguably possible -- Even if VPL allowed for pro rata liability where damages result from multiple perils, insurer failed to show that condemnation resulting from local ordinance was not attributable solely to the wind damage, as insurer failed to establish that the specific value used by the official was greater than twice the amount of the windstorm damage -- “Ordinance or law coverage” -- Trial court erred in failing to enforce provision of policy affording additional 25% in benefits, in excess of face amount of insurance, when building is deemed total loss and must be rebuilt -- Additional ordinance or law coverage not excluded by general exclusions in policy, because general exclusion clause makes it clear that it does not apply to “other coverage,” and ordinance or law coverage provision is found in section of policy clearly labeled “other coverages” and states in bold letters that “This is an additional amount of insurance” -- Remand for entry of judgment awarding owner policy limits, subject to any deductions or reductions otherwise required by policy and permitted by applicable law, along with additional 25% of face amount for additional coverage

29 Fla. L. Weekly D1970a

Insurance -- Uninsured motorist -- Offset -- Collateral source -- Personal injury protection -- Error to make PIP collateral source offset post-trial over insured's objection rather than allowing jury to do setoff as required by statute -- Appellate court required to apply law as it exists at time of appeal and cannot, as insurer suggests, ignore supreme court decision issued after appellate court's original affirmance but before time for filing rehearing had expired

29 Fla. L. Weekly D712a

Torts -- Where plaintiff was injured on defendant retailer's premises when he was struck by stack of falling garden hoses and subsequently was injured in a car accident in which the driver of the other car was an uninsured motorist; plaintiff alleged that due to proximity of two accidents injuries could not be apportioned; and plaintiff's uninsured motorist carrier became a defendant in suit the plaintiffs had already brought against retailer, trial court erred by prohibiting insurer from being identified as plaintiff's uninsured motorist carrier -- Identifying insurer as party defendant who was an insurer and was liable for tortfeasor's negligence did not adequately apprise jury of insurer's specific party status -- New trial required

29 Fla. L. Weekly D1717a

Insurance -- Uninsured motorist -- Evidence -- Collateral source -- Workers' compensation claims -- In action against uninsured motorist insurers to recover for injuries allegedly suffered by plaintiff in automobile accident, trial court erred in excluding evidence of plaintiff's workers' compensation claims which would have established that in workers' compensation proceedings plaintiff attributed the injuries on which his claim against defendant insurers was based solely to work-related accidents -- Evidence regarding claims by a plaintiff arising from an event other than the accident at issue is not evidence of a collateral source

29 Fla. L. Weekly D1517a

Insurance -- Uninsured motorist -- Coverage -- Relative residing primarily with insured -- Error to find granddaughter entitled to coverage under grandfather's insurance policy where at time of accident granddaughter, her fiancé and their baby were staying with grandfather while waiting for their water-damaged house to be repaired, and she had clear intent to move back to her house when repairs were complete

NOT FINAL VERSION OF OPINION
Subsequent Changes at 30 Fla. L. Weekly D114c

29 Fla. L. Weekly D2189a

Torts -- Insurance -- Uninsured motorist -- Attorney's fees -- Costs -- Where plaintiff who was injured in automobile accident brought action against tortfeasor and plaintiff's UM insurer, tortfeasor's insurer offered policy limits of $100,000 which plaintiff wished to accept, but did not because UM insurer refused to waive its subrogation rights and paid plaintiff the amount of the offer, UM insurer subsequently accepted policy limits of $100,000 from tortfeasor's insurer and waived its subrogation rights against tortfeasor, and verdict of $48,000 was returned on the UM claim, trial court erred in granting tortfeasor's motion to tax costs against plaintiff -- When UM insurer became subrogated to plaintiff's claim against tortfeasor, it became the real party in interest in suit against tortfeasor and is therefore liable for costs -- Court did not err in awarding attorney's fees and costs to UM insurer based on its offer of judgment in the amount of $501 -- Because the UM insurer had no exposure unless plaintiff's damages exceeded tortfeasor's policy limits of $100,000, insurer's offer of $501 was the equivalent of $100,501, and was made in good faith

29 Fla. L. Weekly D1704a

Insurance -- Title insurance -- Declaratory judgments -- Relief from judgment -- Error to grant relief from judgment under rule 1.540(b) where motion alleged only that trial court failed to rule on defenses presented at trial -- Rule 1.540 motion cannot be used as substitute for untimely motion for new trial or rehearing -- Although trial court characterized its correction as an inadvertent omission, trial court in reality reversed its legal position, and this is type of judicial error that is not correctable on rule 1.540 motion -- Judicial errors that affect substance of judgment cannot be corrected on court's own motion pursuant to rule 1.540(a), which allows judges to correct errors arising from “oversight or omission” at any time on their own initiative -- Trial court correctly ruled that it could not grant relief pursuant to rule 1.530(g) because motion was not timely -- Time for service of motion ran from entry of original judgment rather than amended judgment where amended judgment did not change matters of substance -- Remand with directions to reinstate amended final judgment

29 Fla. L. Weekly D1812a

Contracts -- Insurance -- Insured alleging that although insurance contract provided insurer with subrogee rights to seek recovery of monies it paid to insured pursuant to the contract, insurer breached duty it owed to insured by failing to notify her of Georgia lawsuit filed against tortfeasor by insurer listing insured as an individual plaintiff and by representing to Georgia court that the amount of UM benefits the insurer had paid to insured was a fair and reasonable amount for damages and injuries insured suffered, when insurer knew or should have known that her damages far exceeded this amount -- Error to enter final judgment in favor of insurer on ground that release and trust agreement executed by insured upon her receipt of UM benefits released insurer from all future claims “of whatsoever kind” -- Language limited release to claims arising prior to and including the date of the release that grew out of the UM policy issued by insurer to insured and further limited claims to those “resulting or to result from” specific automobile accident -- Instant complaint was based on acts taken by insurer after execution of release and was not based on the accident itself, but rather on the filing of the Georgia lawsuit in insured's name personally without notifying her and the reduction of the lawsuit to a judgment in an amount that insurer allegedly knew did not represent insured's total damages -- Paragraph of release authorizing insurer to file action against tortfeasor without mentioning notice to insured did not support trial court's finding that insurer had no duty to advise insured of lawsuit or finding that insurer was not required to seek full recovery for insured's injuries instead of limiting recovery to sums insurer had paid to insured as UM benefits -- It was clear from release that action insurer was authorized to file was an action for insured's damages, not insurer's -- Remand for further proceedings

29 Fla. L. Weekly D2717c

Civil procedure -- Default -- Vacation -- Due diligence -- Insurer's appeal from order setting aside final default judgment entered against corporations engaged in manufacturing and selling consumer products in action in which insurer, as subrogee, sought to recover amounts paid to insured as result of fire loss at insured's residence allegedly caused by defect in defendants' product -- Trial court grossly abused its discretion in finding that defendants acted with due diligence where defendants did not seek relief from default until seven weeks after entry of default final judgment, and defendants' affidavit offered no explanation for delay -- Although there is no bright line rule by which to measure reasonableness of delay in seeking relief from default, court notes that filing of motion to vacate within 20 days of entry of default judgment provides starting point for analysis, and once 20 days have passed, as in present case, other factors must be considered

29 Fla. L. Weekly D734c

Insurance -- Contracts -- Statute of frauds -- Action by insurer as subrogee of its insured seeking contractual indemnity from manufacturer of candle holders who supplied candle holders to the insured for damages paid to insured's customer for injuries suffered when one of the candle holders broke in half -- Error to enter summary judgment for defendant manufacturer on ground that indemnity agreement between manufacturer and the insured was unenforceable under section 725.01, Florida Statutes, the general statute of frauds, because it was not in a writing signed by defendant and was a promise to answer for the debt, default or miscarriage of another -- Because the contract between the manufacturer and the insured was a contract for the sale of goods, the statute of frauds contained in article 2 of the Uniform Commercial Code, and not the general statute of frauds, was applicable

29 Fla. L. Weekly D996a

Contracts -- Indemnification -- Insurance -- Subrogation -- Waiver -- Error to enter directed verdict in favor of horse trainer in race track's action seeking contractual indemnity for damages paid to injured exercise rider in satisfaction of judgment entered in separate tort action on ground that subrogation issue had been tried by consent, and track's insurer had waived subrogation -- Only evidence on issue of waiver came from insurance agent who indicated that “subro” was short for subrogation and that “subro” column on check issued for payment of rider's claim contained a check mark in the “no” column, and this testimony failed to establish knowing, intelligent, and voluntary waiver of insurer's right of subrogation -- Remand for reinstatement of jury verdict

29 Fla. L. Weekly D1222c

Insurance -- Uninsured motorist -- Stacking -- Where insured signed an approved UM motorist coverage rejection/selection form and placed check mark in box indicating a rejection of stacking form of coverage and selection of non-stacking form of coverage, trial court erred in finding that stacking was available because of a patent ambiguity created by the manner in which the form had been filled out -- Insurer was entitled to rely upon insured's signature on form as a conclusive presumption of the insureds' knowing and voluntary waiver of stacking UM coverage

29 Fla. L. Weekly D1847a

Civil procedure -- Requests for admissions -- Insurance -- Insolvent self insurers fund -- Where Department of Financial Services, as receiver for insolvent self insurers fund, assessed company for a deficiency under section 624.474, and company argued that it was not a member of the self insurers fund and sent to receiver a request for admission that company was not a member of the self insurers fund, receiver's untimely response to the request for admission is deemed an admission which established that company was not a member of the self insurers fund for purposes of assessment under section 624.474

29 Fla. L. Weekly D2359a

Creditors' rights -- Insurance -- Assignment of proceeds of settlement -- Where liability insurer had settled claim against its insured by agreement to pay monthly payments to injured party over period of years, and injured party's husband, who had become the contingent payee of the monthly payments upon the injured party's death, secured a loan under a loan agreement that provided that repayment was to be made from the payments received from the insurer under the settlement agreement, lender could not collect balance of loan from insurer upon default by borrower, because the settlement agreement contained an anti-assignment provision -- Under applicable Texas law, the anti-assignment provision is valid and enforceable, and defeats creditor's right to make direct claim against insurer under the settlement agreement

29 Fla. L. Weekly D662b

Insurance -- Civil rights violations by state employees -- Action seeking payment from Florida State Risk Management Trust Fund for judgment obtained against Florida Game and Fresh Water Fish Commission officers for violation of plaintiff's federal civil rights -- Trial court erred in dismissing action on ground that plaintiff was precluded from recovering through Fund because civil rights violations were based on intentional torts by the officers, where judgment did not contain finding that harm was intentionally caused -- Findings of liability for malicious prosecution, for punitive damages, and for conspiracy to violate civil rights do not necessarily constitute a determination that harm was caused intentionally

29 Fla. L. Weekly D2165b

Insurance -- Personal injury protection -- Reimbursement of insurer for benefits paid -- Insurer was entitled to reimbursement from employer for benefits paid to employee after employee was involved in accident while driving employer's commercial vehicle -- Employer is not immune under Workers' Compensation Act from suit brought by insurer for reimbursement of PIP benefits paid to an employee of the employer -- Section 627.7405, Florida Statutes, is not unconstitutional to extent it allows an insurer reimbursement from an employer for PIP benefits paid to an employee of the employer without regard to fault of the employer

29 Fla. L. Weekly D219a

Insurance -- Personal injury protection -- Reimbursement -- PIP insurer seeking reimbursement from insurer of owner of commercial motor vehicle which insured was driving at time of accident -- Constitutionality of statute -- Equal protection -- Plain language of section 627.7405 provides for reimbursement of insurer providing PIP benefits on private passenger vehicle by owner or insurer of the owner of commercial vehicle without regard to fault -- Statute bears rational relationship to legitimate state interest in reducing overall automobile insurance rates -- Conflict certified

29 Fla. L. Weekly D1817b

Insurance -- Personal injury protection -- Allowable amount to be paid by PIP insurer to providers of magnetic resonance imaging -- Trial court properly found that under statutory scheme, as it existed prior to 2003 amendment, participating physician fee schedule was the proper fee schedule for amounts payable to MRI service providers -- Purpose of 2003 amendment was to clarify that the participating fee schedule was the proper fee schedule under the original statute

29 Fla. L. Weekly D2355b

Insurance -- Personal injury protection -- A medical service provider can “render” a medical service under section 627.736(5)(a), Florida Statutes, when the medical service was provided through the use of an independent contractor -- Where provider performed an MRI scan on insured and sent MRI scan for interpretation to an independent contractor radiologist who was paid by provider, provider is entitled to be paid for the professional component of the MRI performed by the independent contractor radiologist

29 Fla. L. Weekly D2342c

Insurance -- Personal injury protection -- Allowable amount to be paid by PIP insurer to providers of magnetic resonance imaging -- The allowable amount under Medicare Part B, as used in section 627.736(5)(b)5, refers to the participating physician fee schedule of Medicare Part B

29 Fla. L. Weekly D2828b

Insurance -- Personal injury protection -- Trial court erred in finding that insurer has the right to require a medical provider to submit to an Examination Under Oath when the provider has accepted assignment of benefits from insured and asserted the right to pursue personal injury protection benefits -- When an insured assigns benefits to a health care provider, the obligation to attend an Examination Under Oath remains with the insured, and the insurer has a good defense to the provider's claim if the insured refuses to attend an EUO -- Obligation to attend EUO does not shift to the provider merely because the insured assigns benefits

29 Fla. L. Weekly D652e

Insurance -- Personal injury protection -- Coverage -- Medical assistants who were not licensed as physical therapists were authorized to perform physical therapy modalities enumerated in section 486.021(11), Florida Statutes (2001) for purposes of qualifying for payment of assigned personal injury protection benefits -- PIP insurer is obligated to pay for such services rendered to its insured

29 Fla. L. Weekly D2310a

Insurance -- Personal injury protection -- Coverage -- PIP statute does not require payment of mileage reimbursement for travel to necessary medical treatment -- Conflict certified -- Trial court correctly held that parties' insurance contract required insurer to reimburse claimant for mileage driven traveling to compulsory medical examination set by insurer where policy required insured to “submit to mental or physical examinations at our expense” without defining “at our expense” -- Court need not address question certified by county court as to whether PIP statute requires this reimbursement

29 Fla. L. Weekly D24c

Insurance -- Personal injury protection -- Trial court and circuit court acting in its appellate capacity failed to correctly apply newer version of section 627.736 when calculating amount due under PIP policy to insured who was involved in automobile accident during course and scope of employment and was paid two-thirds of his lost wages under workers' compensation scheme before filing PIP claim -- Certiorari review is appropriate -- Circuit court directed to reverse county court's summary judgment and remand to county court for further proceedings

29 Fla. L. Weekly D783a

Insurance -- Personal injury protection -- Company which owns portable diagnostic testing equipment, and takes its equipment to the office of health care providers to perform diagnostic tests on patients, is not a “clinic” that is required to register with Department of Health under section 456.0375, Florida Statutes (2001) -- PIP insurer could not properly refuse to pay company for diagnostic tests performed for insureds on ground that company rendered services at time when company was not registered

29 Fla. L. Weekly D889a

Insurance -- Administrative law -- Immediate final order of Office of Insurance Regulation ordering insurance company to cease and desist from the transaction of any new or renewal business in Florida -- Order is deficient for failure to include a factual recitation demonstrating the existence of an immediate danger to the public health, safety, or welfare -- Allegation of a statutory violation is insufficient to support immediate final order

29 Fla. L. Weekly D2025b

Administrative law -- Declaratory statements -- Office of Insurance Regulation -- Petition which essentially challenged correctness of OIR's approved rate increase to petitioner's single-life, small group HMO plan was properly dismissed

29 Fla. L. Weekly D2289c

Administrative law -- Office of Insurance Regulation -- Immediate final order finding that corporation was in violation of insurance laws for conducting viatical settlements without a license and directing corporation and all parties involved to immediately cease and desist from transacting any new viatical insurance business alleged specific and particularized facts sufficient to demonstrate risk of immediate and ongoing harm to insurance buying public

29 Fla. L. Weekly D1594a

Administrative law -- Office of Insurance Regulation -- Licensing -- Revocation -- Service of process -- Publication -- Attempted personal service on licensee was legally inadequate where personal service at last known residence was unsuccessful, but agency made no attempt to contact licensee by telephone or through his known attorneys -- Because this was not case where personal service could not be made, service by publication was not justified -- Remanded for proceedings on merits

29 Fla. L. Weekly D475b

Insurance -- Life -- Error to enter summary judgment in favor of personal representative of insured's estate where there existed material issues of fact as to whether insured was actually dead, whether insured died within two-year incontestability period, and whether insurer waived right to contest reinstatement of lapsed policy by continuing to collect premium payments -- Probate ruling does not constitute prima facie evidence of insured's death, and trial court erred in according presumptive evidentiary value to the death certificate and in placing burden on insurer to demonstrate that insured was alive -- Material issue of fact exists as to whether insurer had intention to relinquish right to contest policy through continued acceptance of premiums where insurer presented evidence that at the time it continued to accept premium payments, it was not aware that policy may have been fraudulently reinstated

29 Fla. L. Weekly D2063a

Insurance -- Interest -- Where contractor was additional insured under commercial general liability policy issued to subcontractor, contractor's builder's risk insurer paid contractor for property damage which occurred during construction project, and builder's risk insurer recovered judgment against liability insurer for damages caused by negligent work of subcontractor, prejudgment interest should have been calculated based on date proceeds for loss would have been due under liability policy -- Trial court erred in determining that prejudgment interest was due from date of builder's risk insurer's payment to contractor

NOT FINAL VERSION OF OPINION
Subsequent Changes at 29 Fla. L. Weekly D2063a

29 Fla. L. Weekly D1719a

Insurance -- Interest -- Where contractor was additional insured under builder's risk policy issued to subcontractor, contractor's general liability insurer paid contractor for property damage which occurred during construction project, and general liability insurer recovered judgment against builder's risk policy insurer for damages caused by negligent work of subcontractor, prejudgment interest should have been calculated based on date proceeds for loss would have been due under builder's risk policy -- Trial court erred in determining that prejudgment interest was due from date of general liability insurer's payment to contractor

29 Fla. L. Weekly D1182a

Insurance -- Property and casualty -- Action by homeowners against insurer to recover damages to home under policy identified as “Lenders Security Program Master Policy” in which the mortgagee was the named insured with the plaintiffs to be considered as an “additional insured as respects any residual amounts of insurance over and above the insurable interest of the Insured” -- Because the outstanding balance due to the mortgagee exceeded the amount of insurance coverage provided under the policy, the insurable interest of the mortgagee exhausts the coverage available under the policy and there are no residual amounts of insurance available to the plaintiff homeowners -- Trial court properly entered summary judgment in favor of defendant insurer because plaintiffs sued for relief to which they were not entitled under the policy

29 Fla. L. Weekly D2642a

Contracts -- Torts -- Insurance -- Homeowners -- Civil procedure -- Consolidation of civil actions having common plaintiff, but different defendants -- No abuse of discretion in denying homeowners insurer's motion to consolidate insured's action seeking declaration of rights under homeowner's insurance policy and damages, filed after insurer denied coverage based on belief that there was no sinkhole on insured's property and that any damage was result of earth movement unrelated to sinkhole activity, with separate lawsuit brought by insured against seller of real property alleging seller failed to disclose material information and actively concealed damage to residence caused by sinkhole activity -- Consolidation would not accelerate trial proceedings in insurance action or save insurer any significant costs -- Although there is possibility of inconsistent verdicts, lawsuits are different causes of action based on unrelated theories and feature different measures of damages

29 Fla. L. Weekly D1614a

Administrative law -- Office of Insurance Regulation -- Licensing -- Appeal of Immediate Final Order involving sale and administration of health insurance product not authorized by State of Florida -- IFO on its face sufficiently states particularized facts showing immediate danger to public welfare -- IFO contained allegations of past and recent conduct which would support inference that licensees' unauthorized activity might continue absent a cease and desist order -- IFO was narrowly tailored to be fair and did not suspend or affect status of licenses to sell legitimate and authorized insurance products or to conduct legitimate business

29 Fla. L. Weekly D1481b

Contracts -- Municipal corporations -- Retired employees -- Forms signed by city employees upon their retirement to continue participation in city's group health insurance plan after retirement did not constitute an agreement that employees' contribution or premium amount shown on the form would continue unchanged -- Trial court erred in entering summary judgment finding that city was obligated to continue to provide insurance coverage to retirees at rate stated in forms

29 Fla. L. Weekly D1784c

Insurance -- Jurisdiction -- Foreign insurers -- Provision for service of process on a foreign insurer under Florida's Unauthorized Insurer's Process Law may only be invoked by Florida residents -- Subsection (4) of UIPL, which uses language “transaction of insurance,” is available only to Florida residents -- Conflict certified -- Trial court erred in denying Russian marine insurer's motion to quash service of process in action brought against it by Honduran insured -- To construe UIPL as being available to nonresidents would broaden statute's jurisdictional reach such that it would violate constitutional due process requirements, given paucity of insurer's contacts with Florida

29 Fla. L. Weekly D971b
873 So. 2d 411

Insurance -- Florida Windstorm Underwriting Association -- Rates -- Arbitration is improper means of deciding whether and in what amount FWUA's premiums should be raised -- Under FWUA's Plan of Operation, insurance rate increases proposed by FWUA require approval by Department of Insurance -- FWUA's resort to arbitration of rate filing after Department disapproved request for rate increases was not authorized, because FWUA's Plan of Operation required departmental approval or assent, not an arbitration award -- Trial court erred in entering judgment in declaratory action declaring that “the arbitration resulted in Department approval as a matter of law” -- Court did not err in denying premium refunds and injunctive relief -- Requests for refunds should be addressed to Department of Insurance rather than to court

29 Fla. L. Weekly D466a

Insurance -- Fire -- Loss payee mortgagee's entitlement to proceeds of insurance on property where foreclosure occurred after loss -- Where mortgagee foreclosed on insured property after fire loss had occurred, and value of property on date of foreclosure sale was less than the amount of the foreclosure judgment, trial court erred in finding that mortgagee was entitled to the full amount of the settlement subsequently paid by the insurer for the loss -- Mortgagee was entitled to only the amount of the deficiency of the security debt that was not recouped at the foreclosure sale, plus interest, and insured mortgagor is entitled to the balance of the insurance settlement

29 Fla. L. Weekly D2062a

Federal preemption -- Insurance -- Group health -- Employee Retirement Income Security Act -- Error to find that ERISA preempted plaintiff's state-law claims against insurer for declaratory relief, equitable estoppel, and respondeat superior tied to negligence count against insurance agent where uncontroverted testimony demonstrated that employers never intended to provide benefits to its employees, but intended only to procure group insurance for employers' family through their business and to allow employees to insure themselves as they saw fit

29 Fla. L. Weekly D2756a

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 -- Uninsured motorist -- Coverage -- Stacking -- Trial court erred in failing to direct verdict for insurer on issue of uninsured motorist protection -- UM coverage was unavailable to plaintiff and his son under plaintiff's policy where plaintiff knowingly accepted policy limitations on UM coverage, one of which was that UM coverage was not available if a family member was injured while in a vehicle that was not insured under the policy at issue, even if the vehicle was owned by the insured or family member; and vehicle owned and occupied by wife at time of injury was insured under a separate policy, not plaintiff's policy -- Fact that there was an ambiguity as to whether plaintiff selected uninsured motorist coverage, in that it was undisputed that in upper portion of election form, plaintiff selected boxes both accepting and rejecting UM coverage, did not create an ambiguity as to whether plaintiff selected stacked or non-stacked coverage in the lower portion of the form -- Plaintiff clearly checked box for non-stacked coverage and, in fact, received and remitted the premium for such coverage -- Where it was undisputed that form was approved by Department of Insurance, and form was signed by plaintiff, as matter of law, insurer was entitled to statutory conclusive presumption that plaintiff's rejection of stacked coverage was knowingly made -- Further, language used in form sufficiently informed plaintiff of limitations on UM coverage -- Damages -- Loss of parental consortium -- Child born alive is entitled to claim loss of consortium damages under section 768.0415 for permanent injuries sustained by parent that result in a permanent total disability as prescribed by statute, notwithstanding that child was only a fetus at time of injury to parent -- Damages, which do not accrue until the loss of parental companionship occurs upon the live birth of the child, relate back to time of injury -- Loss of filial consortium -- Damages for loss of filial consortium are limited to period of child's minority -- Parent's award for loss of filial consortium remanded for remittitur to child's years of minority -- Child's damages for loss of parent's consortium are not limited to duration of child's minority

NOT FINAL VERSION OF OPINION
Subsequent Changes at 29 Fla. L. Weekly D2756a

29 Fla. L. Weekly D388b

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 -- Uninsured motorist -- Cancellation of policy -- Where policy provided that plaintiff could cancel policy covering his vehicle, which was sold two weeks prior to accident, either by returning policy to insurer or by giving advance written notice of date cancellation was to take effect, and no evidence was presented that plaintiff returned the policy, the earliest the cancellation could have become effective was the date plaintiff requested cancellation in writing, which date was after the accident at issue -- Under clear and unambiguous terms of policy, policy could not have been cancelled retroactively to date plaintiff sold his vehicle even if plaintiff had requested retroactive cancellation -- No error in denying insurer's motion for summary judgment on ground that plaintiff had retroactively cancelled policy prior to accident -- Where policy provision allows for vehicle other than the vehicle listed in the policy to become the “covered auto” for purposes of insurance coverage, if that vehicle was purchased during policy period and insurer was notified of that purchase within thirty days, simply because vehicle listed in policy had been sold and new one had not yet been purchased or declared to insurer does not alter the fact that insurance coverage, including any UM coverage, remained in existence -- No error in denying insurer's motion for summary judgment on ground that plaintiff had no insurable interest on day of former wife's accident -- Ambiguities -- Multiple checks on UM coverage election form created ambiguity, and jury could have concluded that the fact that plaintiff selected boxes both accepting and rejecting UM motorist coverage created an ambiguity to be resolved in favor of plaintiff, providing him with UM coverage -- Because plaintiff failed to make clear choice accepting or rejecting UM coverage, it cannot be said that he made a knowing and informed decision regarding that coverage, and jury could have concluded that he could not have made knowing choice of non-stacked insurance coverage in the lower portion of the form -- Further, insurer cannot benefit from presumption of informed choice created by plaintiff's signature on election form where insurer provided no documentary evidence that election form had been approved by Department of Insurance -- Moreover, there was UM coverage for former wife's accident because she was an insured subject to UM coverage under plaintiff's policy so as to allow recovery of loss of consortium damages for her accident -- Insurer cannot rely on policy language and definitions to attempt to create an exclusion based on former wife's having been injured while occupying a vehicle owned by her but for which UM coverage was not purchased where insurer did not obtain approval of language used in policy provisions, inform plaintiff of the exclusion on an approved form, or obtain knowing acceptance of the exclusion -- No error in denying insurer's motion for directed verdict on issue of existence of UM coverage -- Damages -- Loss of parental consortium -- Unborn, non-viable fetus can be an “unmarried dependent” for purposes of statute establishing a child's claim for loss of parental consortium, although fetus does not have this claim until after it is born alive -- No error in awarding infant loss of consortium damages due to injuries to his mother -- Loss of filial consortium -- Damages for loss of filial consortium are limited to period of child's minority -- Parent's award for loss of filial consortium remanded for remittitur to child's years of minority -- Child's damages for loss of parent's consortium are not limited to duration of child's minority

29 Fla. L. Weekly D1980a

Insurance -- Title -- Insurer from whom mortgagees sought coverage based on questioned signature on warranty deed brought declaratory judgment action regarding its obligations under policy, and mortgagees counterclaimed for breach of contract -- Where loan secured by mortgage deed was criminally usurious, loan agreement was unenforceable -- Unenforceable usurious loan cannot give rise to an insurable interest -- Without insurable interest in loan, mortgagees could not enforce title policy -- Moreover, title policy at issue expressly excluded coverage for defects or adverse claims for invalidity or unenforceability of the lien of the insured mortgage based upon usury -- Error to enter summary judgment in favor of mortgagees

29 Fla. L. Weekly D1133a
880 So. 2d 721

Insurance -- Uninsured motorist -- Evidence -- Expert opinion -- Scientific evidence -- Court did not err in admitting expert opinion testimony that trauma from an automobile accident was the legal cause of insured's fibromyalgia -- Because expert testimony was pure opinion testimony based on the experts' clinical experience, insured's history, and the recognized relationship between trauma and the onset of fibromyalgia, the testimony was not subject to the Frye standard for the admission of evidence based upon new or novel scientific techniques

29 Fla. L. Weekly D1362a

Insurance -- Uninsured motorist -- Evidence -- Insurer's subrogation judgment against uninsured motorist

29 Fla. L. Weekly D1819a

Torts -- Insurance -- Errors and omissions -- Negligent misrepresentation -- Action by insured which purchased group health insurance from managing general agent that was not licensed to transact insurance business in state and that subsequently became insolvent, against insurer which provided errors and omissions insurance to the managing general agent, alleging that defendant, by issuing the errors and omissions policy to managing general agent, negligently misrepresented that managing general agent was licensed to transact insurance business in state -- Because defendant is in the business of selling insurance, not the business of supplying information to third persons about its insureds' business qualification, defendant had no pecuniary interest in its insured's transactions with plaintiff, and defendant's issuance of errors and omissions policy was not intended to influence plaintiff's decision about whether to begin a business relationship with the defendant's insured, trial court properly entered summary judgment for defendant on negligent misrepresentation claim -- Trial court also properly entered summary judgment for defendant on claim that defendant, by issuing errors and omissions policy, aided unauthorized insurer in soliciting, negotiating, effectuating, and procuring insurance policies, in violation of section 626.901, Florida Statutes

29 Fla. L. Weekly D2769b

Insurance -- Employers liability -- Coverage -- Intentional torts -- Workers' compensation immunity -- Where policy provided coverage for bodily injury by accident and excluded coverage for bodily injury intentionally caused, insurer was obligated to defend and indemnify insured employer in wrongful death action alleging that employees were killed when trench caved in as result of insured's engaging in conduct which was substantially certain to result in serious injury or death -- Because plaintiffs did not allege that insured intended to cause harm to its employees, but alleged only that injury or death was substantially certain to result from insured's conduct, the incident in which decedents were killed falls within the scope of an “accident” under the liability policy

29 Fla. L. Weekly S774a

Insurance -- Employers liability -- Intentional tort exception to workers' compensation immunity -- Employers liability policy which covers claims for “bodily injury by accident” and excludes from coverage claims of “bodily injury intentionally caused” by insured employer extends coverage to claim brought against employer by injured employee who satisfied the intentional tort exception to workers' compensation immunity by demonstrating that the employer engaged in conduct that was objectively substantially certain to result in injury -- Public policy does not prohibit an employer from insuring against the risk of liability arising under the objectively-substantially-certain standard -- Court does not decide whether a claim brought under the newly-enacted virtual-certainty standard would fall outside such an employers liability policy

29 Fla. L. Weekly D474a

Contracts -- Insurance -- Workers' compensation -- Employer's liability -- Insurer's claim for final premium based on audit -- Limitation of actions -- Insurer's cause of action against insured did not accrue when it first became aware that insured had been classifying employees as subcontractors, but instead accrued when amount of insured's liability for additional premiums became liquidated

29 Fla. L. Weekly D715c

Insurance -- Insolvent insurers -- Workers' compensation -- Florida Workers Compensation Guaranty Association -- Torts -- Duty to defend or indemnify -- Where policy issued by insurer provided both workers' compensation coverage and employer's liability insurance, insurer paid two employees full workers' compensation benefits for injuries sustained during course of their employment and was thereafter declared insolvent, and FWCIGA assumed covered claims for workers' compensation obligations, trial court properly concluded as matter of law that FWCIGA did not have duty to defend tort action against employer or indemnify employer or its employees in tort action filed against employer by the two employees

29 Fla. L. Weekly D2638a
889 So. 2d 93

Insurance -- Homeowners -- Discovery -- Attorney-client privilege -- Work product -- Insurer's failure to submit privilege log by due date for the response to request to produce does not automatically constitute waiver of right not to disclose work product -- Under circumstances of instant case, trial court departed from essential requirements of law in compelling discovery of alleged privileged documents as sanction for delay in submitting privilege log -- Insurer provided notice of work-product claim when it objected to discovery requests, and although there was delay of several months beyond service of response in serving the privilege log, the log was provided well before hearing at which judge found waiver of work product immunity -- Claim that privilege log submitted by insurer was too general to show that documents were privileged not considered by appellate court, because it does not appear that trial court considered sufficiency of log -- Court notes that rule requires adequate identification of each document, which would usually include, at a minimum, sender, recipients, title or type, date and subject matter; and identification of documents in bulk or as class such as “claims file” should be the exception

29 Fla. L. Weekly D1070b

Insurance -- Casualty -- Commercial property -- Deductible -- Where policy provision concerning amount of deductible applicable to loss due to windstorm is ambiguous, reference may properly be made to unambiguous provisions of insured's application for insurance and other policy provisions to determine the amount of the deductible -- For purpose of determining the extent of insurer's obligation to pay the insured for loss to covered property, the amount of deductible is not to be applied to total loss, including noncovered loss as well as covered loss -- Interpretation of policy to apply deductible to loss that is not covered by policy would be unreasonable and would threaten to render the deductible a nullity

29 Fla. L. Weekly D348a

Insurance -- Casualty -- Commercial property -- Deductible -- Where policy provision concerning amount of deductible applicable to loss due to windstorm is ambiguous, reference may properly be made to unambiguous provisions of insured's application for insurance and other policy provisions to determine the amount of the deductible -- For purpose of determining the extent of insurer's obligation to pay the insured for loss to covered property, the amount of deductible is not to be applied to total loss, including noncovered loss as well as covered loss -- Interpretation of policy to apply deductible to loss that is not covered by policy would be unreasonable and would threaten to render the deductible a nullity

29 Fla. L. Weekly D2174a

Insurance -- Disability -- Where, according to policies at issue, total disability meant the “inability to perform the important duties of the insured's occupation,” insured's occupation was defined as the occupation in which insured “is regularly engaged at the time disability begins,” and policy contained no language requiring that insured be actively working at time disability arose, trial court erred in failing to find as matter of law that insured was regularly engaged in an occupation at the time his disability began, notwithstanding fact that insured was not actively employed on date listed in claim as the date disability began -- Language of insurance contract should have been interpreted in reasonable manner, consistent with objectives and intentions of contracting parties to provide disability benefits in event insured established that he had become physically disabled during term of policy -- Trial court was correct in leaving jury the task of deciding as factual matter the true nature and scope of insured's “occupation”

29 Fla. L. Weekly S630a CHARLES B. HIGGINS, Petitioner, vs. STATE FARM FIRE AND CASUALTY COMPANY, Respondent. CHERYL L. INGALLS, etc., Petitioner, vs. STATE FARM FIRE AND CASUALTY COMPANY, Respondent.…

NOT FINAL VERSION OF OPINION
Subsequent Changes at 29 Fla. L. Weekly S630a

29 Fla. L. Weekly S533a

Insurance -- Homeowners -- Declaratory judgments -- Coverage -- Declaratory judgment statutes authorize declaratory judgments in respect to insurance policy coverage and defense obligations in cases in which it is necessary to resolve issues of fact in order to decide the declaratory judgment action -- The determination of the issue of whether the declaratory judgment action or the underlying tort action against the insured should proceed first is within the discretion of the trial court weighing factors outlined by Court as well as factors of the particular case -- Trial court did not abuse discretion in allowing declaratory judgment action to be tried prior to underlying negligence action against insured

29 Fla. L. Weekly D2854a

Insurance -- Uninsured motorist -- Limitation of actions -- Conflict of laws -- Lex loci contractus -- Action by plaintiff who was a named insured seeking UM coverage under policy which was issued in Michigan to plaintiff's mother who was Michigan resident -- Where record does not establish that plaintiff was a Florida resident when automobile accident occurred or that insurer had notice that policy risk with respect to plaintiff would be centered in Florida, cause of action between plaintiff and insurer arose in Michigan where policy was issued -- Error to enter summary judgment for insurer on ground that policy contained one-year time limitation for pursuit of legal action for UM benefits, and action was brought more than one year after accident -- One-year limitation clause in policy is contrary to Michigan public policy

29 Fla. L. Weekly D2518b
892 So. 2d 1107

Insurance -- Underinsured motorist -- Exclusions -- Anti-stacking provisions -- Conflict of laws -- Lex loci contractus -- Action for underinsured motorist benefits brought by year-round Florida residents who were injured while riding as passengers in automobile which was owned and operated by their winter neighbors and which was insured under policy issued to owners in foreign state at owners' address in that state, through agent in that state -- Error to enter summary judgment in favor of insurer based on exclusionary provision of policy which would preclude passengers from “stacking” underinsured motorist benefits on top of policy limits they received from the policy covering the other vehicle involved in collision and from insurer in its capacity as owners' liability insurer, an exclusion which was permitted under laws of state in which policy was issued but which is contrary to Florida public policy that UM coverage must be over and above benefits available under any motor vehicle liability insurance coverage and that amount of underinsured coverage shall not be reduced by setoff against any coverage, including liability insurance -- Exception to general rule of lex loci contractus occurs when Florida court recognizes a “paramount interest” in protecting Florida residents from provision of insurance contract that is repugnant to public policy of Florida -- Exception applies when Florida bears significant connection to insurance coverage and when insurance company has reasonable notice that persons and risks covered by insurance policy are centered in Florida -- Where there is significant degree of permanency in an insured's sojourn in Florida, insured may invoke Florida's public policy to invalidate an exclusionary clause prohibiting stacking of underinsured motorist benefits, provided that insurance company is on reasonable notice that risk of policy is centered in Florida at time of accident -- Owners established significant degree of permanency in Florida by owning home in Florida continuously since 1993, returning to reside in Florida for approximately five and a half months every year thereafter, and garaging vehicle in Florida at the time the accident occurred -- Whether insurer had reasonable notice that risk of policy was centered in Florida at time of accident is disputed issue of fact which precluded entry of summary judgment -- Court notes instant case involves only the application of Florida's public policy to invalidate exclusionary provision, and insurer's duty to provide coverage is not at issue -- Accordingly, court was not required to consider meaning of “principally garaged” as it appears in section 627.727(1) -- Passengers' status as year-round Florida residents not relevant to court's holding in this appeal -- Question certified: When Florida is the forum for an action to obtain underinsured motorist benefits under an insurance contract that is otherwise governed by the law of another state, may an insured invoke Florida's public policy to invalidate an exclusionary clause prohibiting the “stacking” of underinsured motorist benefits when there is a significant degree of permanency in the insured's sojourn in Florida and the insurer is on reasonable notice that the risk of the policy is centered in Florida at the time of the accident that occurred in Florida?

29 Fla. L. Weekly D1546d
892 So. 2d 1107

NOT FINAL VERSION OF OPINION
Subsequent Changes at 29 Fla. L. Weekly D2518b

Insurance -- Underinsured motorist -- Exclusions -- Anti-stacking provisions -- Conflict of laws -- Lex loci contractus -- Action for underinsured motorist benefits brought by year-round Florida residents who were injured while riding as passengers in automobile which was owned and operated by their winter neighbors and which was insured under policy issued to owners in foreign state at owners' address in that state, through agent in that state -- Error to enter summary judgment in favor of insurer based on exclusionary provision of policy which would preclude passengers from “stacking” underinsured motorist benefits on top of policy limits they received from the policy covering the other vehicle involved in collision and from insurer in its capacity as owners' liability insurer, an exclusion which was permitted under laws of state in which policy was issued but which is contrary to Florida public policy that UM coverage must be over and above benefits available under any motor vehicle liability insurance coverage and that amount of underinsured coverage shall not be reduced by setoff against any coverage, including liability insurance -- Exception to general rule of lex loci contractus occurs when Florida court recognizes a “paramount interest” in protecting Florida residents from provision of insurance contract that is repugnant to public policy of Florida -- Exception applies when Florida bears significant connection to insurance coverage and when insurance company has reasonable notice that persons and risks covered by insurance policy are centered in Florida -- Where there is significant degree of permanency in an insured's sojourn in Florida, insured may invoke Florida's public policy to invalidate an exclusionary clause prohibiting stacking of underinsured motorist benefits, provided that insurance company is on reasonable notice that risk of policy is centered in Florida at time of accident -- Owners established significant degree of permanency in Florida by owning home in Florida continuously since 1993, returning to reside in Florida for approximately five and a half months every year thereafter, and garaging vehicle in Florida at the time the accident occurred -- Whether insurer had reasonable notice that risk of policy was centered in Florida at time of accident is disputed issue of fact which precluded entry of summary judgment -- Court notes instant case involves only the application of Florida's public policy to invalidate exclusionary provision, and insurer's duty to provide coverage is not at issue -- Accordingly, court was not required to consider meaning of “principally garaged” as it appears in section 627.727(1) -- Passengers' status as year-round Florida residents not relevant to court's holding in this appeal

29 Fla. L. Weekly D1450a

Insurance -- Commercial lines -- Title Errors and Omissions Liability Endorsement -- Insured automobile dealership seeking coverage in connection with suit brought by bankruptcy trustee for damages relating to dealership's transfer of car titles to individuals and entities other than corporate bankruptcy debtor although cars were purchased with corporation's checks -- Insured not entitled to coverage under endorsement because corporation was not a “lienholder or legal owner” within meaning of policy, but was, at most, equitable owner -- Further, trial court properly concluded that there was no negligent act, error or omission by insured within meaning of policy, as insured did not owe duty to corporation to look behind transactions and conduct quasi-criminal investigation

29 Fla. L. Weekly D1728b

Insurance -- Commercial general liability -- Exclusions -- Bodily injury or property damage arising out of ownership, maintenance, use or entrustment to others of auto owned or operated by insured -- Trial court properly found that exclusion encompassed claim that an insured negligently failed to train his employee not to leave keys in ignition of unattended vehicle

29 Fla. L. Weekly D289a

Insurance -- Homeowners -- Class action alleging that policies had excessive premiums because premium was calculated on inflated value or replacement value of homes -- Trial court properly entered summary judgment adverse to class representative and other class members who were insured by an insurer other than the named defendant -- Summary judgment was improper as to other class members who were insured by the named defendant -- Certification of class is not final if it can be found that subsequent developments have altered previous certification ruling -- Although appellate court affirmed order certifying class, trial court is not precluded by law of the case from revisiting propriety of class action

29 Fla. L. Weekly D2586d

Declaratory judgments -- Insurance -- Commercial general liability -- Coverage -- Advertising injury -- Duty to defend -- Appeals -- Declaratory judgment which resolved both coverage and duty to defend issues is appealable under rule 9.110(n) -- Rule does not preclude review of a final judgment resolving an insurer's duty to defend, but rather provides an alternative for expedited review of insurance coverage issues -- Trial court properly found that insurer did not owe duty to defend insured against patent infringement claim and that claim was not a covered claim -- Trial court erred in finding that insurer owed duty to defend insured against unfair competition claim -- Complained of activities did not fall within policy terms so as to constitute “advertising injuries”

29 Fla. L. Weekly D2125a

Florida Unauthorized Insurer Act -- Action by insured's assignee against trade credit insurance broker alleging breach of Act; broker negligence and malfeasance in representing that insurer was authorized to do business in Florida, failing to select an insurer that could do business in Florida, and negligently preparing and submitting claims under policy; and breach of contract -- Trial court properly found that broker, who placed insured with an insurer who was not authorized to offer, sell, or place insurance in Florida, came within reach of section 626.901 -- Damages -- To confer liability upon broker/agent, trial court must look at insured's claims and determine which, if any, would have been covered under policy, and trial court erred in finding that broker was liable for all claimed damages, without regard to policy terms and coverages

29 Fla. L. Weekly D2791a

Insurance -- Bad faith -- Certiorari review of order denying motion for summary judgment and/or judgment on pleadings denied because petitioner has not demonstrated that order was departure from essential requirements of law that caused material injury and that there was no other adequate remedy to review the order

29 Fla. L. Weekly D363a

Insurance -- Builders risk -- Renovations and alterations to existing building -- Insured's claims against insurer for bad faith and unfair claim settlement practices may only be brought after coverage and contractual issues between the insured and the insurer are resolved -- Trial court properly struck paragraphs related to bad faith cause of action -- Trial court departed from essential requirements of law in its order dealing with count alleging unfair claims settlement where dispute remained as to whether policy at issue covered damages to interior improvements only or also covered damages to exterior of existing building -- On remand, trial court should either dismiss count without prejudice or abate count pending resolution of coverage issues

29 Fla. L. Weekly D2190a

Insurance -- Discovery -- Work product privilege -- Bad faith action -- Work product privilege attaches when bad faith litigation becomes substantial and imminent -- Trial court did not depart from essential requirements of law in finding that bad faith litigation did not become substantial and imminent until insurer forwarded its file to counsel to defend bad faith claim, and in ordering production of insurer's file predating that event

29 Fla. L. Weekly D2116b
885 So. 2d 905

Insurance -- Discovery -- Claim file -- Attorney-client and work product privilege -- Insured's bad faith and breach of contract action against liability insurer after insurer had agreed to defend insured in underlying action for negligent and intentional infliction of emotional distress under reservation of rights to deny coverage for intentional acts, damages were awarded against insured, and insurer denied coverage for the damages based on an opinion from the law firm retained to represent insured that the verdict was based on intentional conduct -- In light of fiduciary relationship during trial of underlying action, any correspondence or communications between insurer and law firm which represented insured concerning insured and his case are not privileged under attorney-client privilege and must be produced by insurer -- Communications between insurer's employees or agents and insurer's in-house counsel are protected by attorney-client privilege -- Because it is clear that portions of alleged acts against insured were not covered by policy, many of documents in claims file, including some trial notes of the underlying proceedings, are protected from discovery by work product privilege -- Any notes, observations, or evaluations by representatives of insurer concerning legal work or performance by law firm while representing insured must be produced

29 Fla. L. Weekly D544b

Insurance -- Bad faith -- Trial court did not err in denying insurer's motions for directed verdict and new trial where there were disputed issues of fact as to whether insurer acted in good faith toward its insured

29 Fla. L. Weekly D662a

Insurance -- Bad faith -- Certiorari -- Insurer not entitled to writ of certiorari quashing order denying motion to dismiss bad faith claim because insurer has not shown that it will suffer irreparable harm that cannot be adequately remedied on appeal -- Petition for writ of certiorari denied without prejudice to insurer seeking writ of certiorari if trial court compels discovery of privileged or protected documents

29 Fla. L. Weekly S787c 896 So. 2d 665

29 Fla. L. Weekly S679a
896 So. 2d 665

NOT FINAL VERSION OF OPINION
Subsequent Changes at 29 Fla. L. Weekly S787c

Insurance -- Automobile liability -- Bad faith failure to settle -- Excess judgment -- Failure of insurer to accept offer to settle which was made by surviving husband of wife who was killed in collision with insured's vehicle and father of minor who was injured in collision -- Court approval is not a prerequisite to a valid settlement offer on behalf of a minor -- District court erred in holding that because husband had neither been appointed personal representative of his wife's estate nor been given court approval for the proposed settlement of his minor daughter's claim, he was without authority to make a valid settlement offer to insurer, and that insurer could not have acted in bad faith as a matter of law -- Insurer's agreement to pay policy limits did not preclude a finding of bad faith as a matter of law -- Question of whether insurer acted in bad faith in failing to complete the settlement within the time deadlines established by the settlement offer, thereby insulating its insured from an excess judgment, was properly submitted to jury -- District court erred in holding that insurer did not owe duty to advise insured of settlement offer because the offer contemplated settling within policy limits -- Duty to inform insured of settlement opportunities is one of the duties subsumed within the duty of good faith owed by insurer to insured -- Failure to inform insured of settlement offer does not automatically establish bad faith, but it is one factor for jury to consider in determining whether insurer acted in bad faith -- Under totality of circumstances standard, competent substantial evidence supported jury verdict that insurer breached duty of good faith to insured

29 Fla. L. Weekly D1260d

Jurisdiction -- Non-residents -- Breach of contract in state by failing to perform acts required to be performed in state -- Insurance -- Bad faith failure to settle -- Action against insurer which issued policy to Virginia resident insuring car which was involved in accident in Florida, resulting in death, brought by named insured and driver after insurer refused offer to settle for policy limits and subsequent lawsuit resulted in judgment over the policy limits against insured and driver -- Insurer's failure to exercise good faith is breach of contract -- Because policy covered accidents in all states, it was a contractual obligation to be performed in Florida in this case and, accordingly, insurer was subject to personal jurisdiction under section 48.193(1)(g) -- Due process -- Where insurer agreed to exercise good faith in defending claims against insured throughout United States, it should have foreseen that breach of that duty in Florida, resulting in a Florida judgment, would subject it to being haled into Florida court

29 Fla. L. Weekly D2096c

Insurance -- Automobile -- Premium financing -- Plaintiff alleging on behalf of herself and others similarly situated that $5 “service fee” included with each premium installment payment made to insurer violated premium financing statutes of Florida Insurance Code and seeking declaratory and injunctive relief as well as statutory damages of twice the service fees paid -- Error to grant summary judgment in favor of defendants based on conclusion that premium service charges were not subject to premium financing statute because they did not constitute an “advancement of funds or credit” -- Although transaction at issue involved only the insurer and its customer and did not involve “advancement” of funds, transaction was “financing” as contemplated by part XVI of Code -- Insurer itself apparently considered its plan to be “premium financing” subject to Part XVI because it filed service charge and interest rate plan with Department of Insurance as required by statute -- Insurers and subsidiaries become subject to part XV, which governs premium finance companies, if total service charge per year or interest rate “is substantially more than that provided in s. 627.901 . . . .” -- Question of material fact remains as to whether service charges assessed were substantially more than that provided in statute, which would subject insurer to part XV of Code, and penalties for any noncompliance -- Remand for further proceedings

NOT FINAL VERSION OF OPINION
Subsequent Changes at 29 Fla. L. Weekly D2096c

29 Fla. L. Weekly D1181b

Insurance -- Automobile -- Premium financing -- Plaintiff alleging on behalf of herself and others similarly situated that $5 “service fee” included with each premium installment payment made to insurer violated premium financing statutes of Florida Insurance Code and seeking declaratory and injunctive relief as well as statutory damages of twice the service fees paid -- Error to grant summary judgment in favor of defendants based on conclusion that premium service charges were not subject to premium financing statute because they did not constitute an “advancement of funds or credit” -- The only provisions of Florida law permitting insurer to collect additional amount from insured when premium is paid in installments are premium financing statutes contained in parts XV and XVI of Insurance Code -- Insurer itself apparently considered its plan to be “premium financing” subject to part XVI because it filed service charge and interest rate plan with Department of Insurance as required by statute -- No error in denying insured's cross-motion for summary judgment -- Question of material fact remains as to whether service charges assessed were substantially more than that provided in statute, which would subject insurer to part XV of Code, and penalties for any noncompliance -- Remand for further proceedings

29 Fla. L. Weekly D1586a

Insurance -- Automobile -- Theft -- Ambiguities -- Trial court erred in finding that coverage was excluded for theft of vehicle which had been parked for the night on the side of a street under policy provision which stated that “warranted vehicle not left on open highway overnight” -- Policy's failure to define the term “open highway” made the provision ambiguous, and the ambiguity must be construed in favor of insured

29 Fla. L. Weekly D921a

Insurance -- Automobile -- Collision -- Coverage -- Fraud -- Claim for collision coverage by insured who had been involved in one-car accident in insured vehicle but initially reported that the vehicle had been stolen -- Error to enter summary judgment finding no coverage where one of insurer's policies contained a “misrepresentations and fraud” provision which allowed insurer to void the policy where the insured has attempted fraud touching upon any matter relating to the insurance, the “misrepresentations and fraud” provision of another one of insurer's policies relates only to applications, and there is a factual question as to which of the policies was issued to insured

NOT FINAL VERSION OF OPINION Subsequent Changes at 30 Fla. L. Weekly D1471a 29 Fla. L. Weekly D2812a Insurance -- Automobile -- Subrogation -- Class action complaint for declaratory judgment against insurance carrier to recover full collision deductible and unpaid rental car bill from subrogation funds insurer obtained from third party tortfeasor's insurance carrier -- No error in dismissing complaint because insured's allegations, based on common law “made whole” doctrine, failed to state cause of action as matter of law -- Insured has not alleged or shown any recovery or attempts to recover her unreimbursed losses from tortfeasor; has not alleged or shown a limited fund or other indication that the tortfeasor is uninsured, judgment-proof, or otherwise unable to pay for her full unreimbursed losses; and has not alleged or shown that insurer has made a claim on any recovery she has received from the tortfeasor that would impair her ability to be made whole -- Florida law does not recognize affirmative right or cause of action by an insured against its insurer to be “made whole” beyond the payment of the insurance policy proceeds -- Instead, Florida law allows “made whole” doctrine as a defense used by insureds to protect the insured's direct recovery from a tortfeasor, where the insured's own insurer makes subrogation claim upon the insured's recovery

NOT FINAL VERSION OF OPINION
Subsequent Changes at 30 Fla. L. Weekly D43a

29 Fla. L. Weekly D911b

Insurance -- Automobile -- Collision -- Insured's action against insurer alleging insurer violated “made-whole” doctrine by returning only a portion of insured's deductible after insurer recovered from third party's insurer an amount less than it had paid insured -- No error in dismissing action with prejudice on grounds that insured could not state claim for relief and that claims were “inappropriate for class action treatment” in light of district court decision which found that class could not be certified on substantially the same issues as those raised in present case

29 Fla. L. Weekly D246a Insurance -- Automobile collision -- Misrepresentation of material facts in reporting claim -- Where insured crashed the insured vehicle into a retaining wall while driving it on a race track, but insured's girlfriend, in reporting the claim for damage to the vehicle, lied to insurer with insured's knowledge by telling insurer that she was driving vehicle on a public street at the time of the accident, trial court properly denied insured's motion for directed verdict and entered final judgment for insurer in action for damages under automobile collision policy -- Where there is a willful false statement of a material fact, there is no requirement that insurer show prejudicial reliance in order to enforce policy provision precluding coverage for loss which occurs in connection with any material misrepresentation, fraud, or concealment of material facts -- No merit to insured's contention that insurer should not have had right to have jury determine the material misrepresentation issue because insured eventually corrected his false statement after he made it

29 Fla. L. Weekly D114a

Insurance -- Automobile -- Cancellation of policy -- Interest on unearned premiums -- Where insurer did not return unearned portion of premium to insured in timely manner after cancellation of policy, insured could properly maintain common law claim for interest on the unearned premium -- Insured was not required to bring claim for interest on unearned premium under section 624.155, Florida Statutes (1999) -- Trial court erred in entering summary judgment for insurer in insured's common law action to recover interest on unearned premium on ground that insured had failed to file notice with Department of Insurance as condition precedent to filing suit -- Apparent conflict noted

29 Fla. L. Weekly D1454a

Insurance -- Medical malpractice -- Coverage -- Where policy at issue provided coverage only for one named physician and physician's employer/professional association, which was an additional insured, trial court properly found that there was no coverage for the employer under this policy for malpractice claim against another physician employed by it -- When all provisions of policy are read together, professional association was an additional insured only for medical treatment rendered by named physician -- Estoppel -- Error to deny professional association's motion to amend its pleadings to include claim that insurer was estopped from denying coverage, based on conduct by insurer during time insurer initially provided a defense to professional association -- Motion for attorney's fees under section 627.428, which provides for attorney's fees where an insured obtains a judgment “under a policy” denied, because professional association was not insured under policy as statute requires -- Any recovery by professional association in instant case will be based on estoppel, not “under a policy”

NOT FINAL VERSION OF OPINION
Subsequent Changes at 29 Fla. L. Weekly D1454a

29 Fla. L. Weekly D815a

Insurance -- Medical malpractice -- Coverage -- Where policy at issue provided coverage only for one named physician and physician's employer/professional association, which was an additional insured, trial court properly found that there was no coverage for the employer under this policy for malpractice claim against another physician employed by it -- When all provisions of policy are read together, professional association was an additional insured only for medical treatment rendered by named physician -- Estoppel -- Error to deny professional association's motion to amend its pleadings to include claim that insurer was estopped from denying coverage, based on conduct by insurer during time insurer initially provided a defense to professional association -- Motion for attorney's fees under section 627.428, which provides for attorney's fees where an insured obtains a judgment “under a policy” denied, because any recovery by professional association in instant case will be based on estoppel, not “under a policy” as statute requires

29 Fla. L. Weekly D1119a

Insurance -- Personal injury protection -- Attorney's fees -- Where action was filed in county court seeking to recover PIP benefits, insurer filed unsuccessful motions to disqualify insureds' counsel and to stay disqualification proceedings, and insurer filed unsuccessful petitions for writ of certiorari in circuit court seeking review of county court's rulings, circuit court departed from essential requirements of law in awarding insureds appellate attorney's fees pursuant to section 57.105, Florida Statutes, because certiorari is a proper procedural remedy for review of a disqualification order -- Circuit court properly found that insureds were entitled to receive a provisional award of attorney's fees pursuant to sections 627.428 and 627.736(7) based upon their successful defense of insurer's petitions for writs of certiorari filed in relation to the motions to stay the disqualification proceedings

29 Fla. L. Weekly D2641a

Insurance -- Personal injury protection -- Attorney's fees -- Offer of judgment -- Insurer may recover attorney's fees pursuant to offer of judgment or proposal for settlement in action filed by its insured to recover personal injury protection benefits -- Question certified -- Whether an offer is made in good faith is a matter of discretion with the trial court after considering circumstances at time offer was made

NOT FINAL VERSION OF OPINION
Subsequent Changes at 30 Fla. L. Weekly D235b

29 Fla. L. Weekly D2412a

Insurance -- Personal injury protection -- Attorney's fees -- Proposal for settlement -- 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?

29 Fla. L. Weekly D1815b

Insurance -- Uninsured motorist -- Attorney's fees -- Proposal for settlement -- Error to use multiplier in awarding attorney's fees under offer of judgment statute -- Damages -- Verdict regarding pain and suffering was not against manifest weight of evidence -- Trial court properly limited amount of judgment to policy limits

29 Fla. L. Weekly D85a

Insurance -- Insolvent insurers -- Florida Insurance Guaranty Association -- FIGA liability for attorney's fees and costs incurred by insured as result of insurer's breach of contract in refusing to defend insured in underlying action -- Error to award insured attorney's fees and costs against FIGA as damages for breach of contract 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, that insurer had duty to defend insured, and that insurer had breached terms of insurance policies by refusing to defend; 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 as result of insurer's breach of duty to defend -- 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 -- Although FIGA may be responsible for attorney's fees incurred in defending the insured of an insolvent insurer, FIGA was erroneously held responsible for monetary judgment for insurer's breach of contract where the damages did not constitute a covered claim

29 Fla. L. Weekly D578a

Insurance -- Attorney’s fees -- Contingency risk multiplier -- Question certified whether in light of the Supreme Court’s decision in Sarkis v. Allstate Insurance Company, 28 Fla. L. Weekly S740 (Oct. 2, 2003), a multiplier may be applied to enhance an award of attorney’s fees granted under fee shifting statutes such as sections 627.428 and 627.756, Florida Statutes (2001)

29 Fla. L. Weekly D278a

Insurance -- Attorney's fees -- Contingency risk multiplier -- Trial court properly applied contingency risk multiplier in awarding attorney's fees to one insured who brought successful suit against insurer to recover fire damages under homeowner's policy upon finding that likelihood of insured prevailing was less than 50 percent and that very few attorneys in area would have taken case without potential for multiplier -- Trial court erred in refusing to apply contingency risk multiplier in awarding fees to other insured who brought successful action against insurer on ground that multiplier was not permissible under contingency fee agreement between insured and her attorney which provided that insured would pay attorney the greater of the statutory fee or the contingency fee -- Question certified: In light of the supreme court's decision in Sarkis, may a multiplier be applied to enhance an award of attorney's fees granted under a fee-shifting statute such as section 627.428, Florida Statutes (2002)

29 Fla. L. Weekly D1974b

Insurance -- Attorney's fees -- Question certified: Under section 627.428 is an insured entitled to recover from its insurer attorney's fees incurred in successfully litigating entitlement to an attorney's fee multiplier?

NOT FINAL VERSION OF OPINION
Subsequent Changes at 29 Fla. L. Weekly D1974b

29 Fla. L. Weekly D1523a

Attorney's fees -- Insurance -- Circuit court departed from essential requirements of law by affirming county court's order allowing attorney's fees under section 627.428 for time spent litigating necessity of an attorney's fee multiplier

29 Fla. L. Weekly D1821c

Insurance -- Health -- Arbitration -- Validity of arbitration clause in policy which does not provide for award of attorney's fees

29 Fla. L. Weekly D1310b

Insurance -- Arbitration -- Trial court erred in denying insurers' application for arbitration of coverage dispute under provision of insurance policies on the ground that McCarran-Ferguson Act precluded applicability of Federal Arbitration Act because the arbitration clause merely permits an award of attorney's fees to a successful insured in an action against an insurer, whereas section 627.428(1), Florida Statutes, requires an award of attorney's fees to a successful insured -- Permissive attorney's fees provision of arbitration clause does not, within the meaning of McCarran-Ferguson Act “invalidate, impair, or supersede” section 627.428(1) -- Arbitration clause is not rendered unenforceable under the McCarran-Ferguson Act because of its preclusion of an award of punitive damages -- Section 624.155, Florida Statutes (2003), is not a law regulating insurance to which the Act might apply

29 Fla. L. Weekly D2078b

Insurance -- Discovery -- Appraisal -- Where appraisal clause provided that if appraisers cannot agree on an umpire, either may request that selection be made by court, and parties went before trial court pursuant to petition for selection of umpire after parties were not able to agree on an umpire, there was no need or justification for deposition of party's appraiser -- Trial court improperly denied motion for protective order

29 Fla. L. Weekly D1242a

Insurance -- Property -- Theft -- Error to grant summary judgment in favor of insurer based upon alleged misrepresentation in application for insurance that insured's business premises were equipped with “central station burglary alarm” where there was disputed issue of material fact concerning whether any misrepresentation was made -- Affidavits and other documents relied upon by insurer conflicted with insured's deposition testimony that he had not misrepresented nature of his security system when applying for insurance policy

29 Fla. L. Weekly D659e

Appeals -- Jurisdiction -- Insurance -- Order granting or denying appraisal is not appealable as an order involving entitlement to arbitration -- Appeal from order denying insurer's motion for appraisal dismissed for lack of jurisdiction

NOT FINAL VERSION OF OPINION
Subsequent Changes at 29 Fla. L. Weekly D2026f

29 Fla. L. Weekly D1751c

Insurance -- Homeowners -- Appraisal -- Appeals -- Non-final orders -- Order denying motion to compel appraisal under homeowner's policy is not appealable because it does not qualify as an order that determines entitlement to arbitration -- Certiorari review is not available because there has been no showing that trial court departed from essential requirements of law in denying motion to compel appraisal or that denial of motion will result in irreparable injury

29 Fla. L. Weekly D2026f

29 Fla. L. Weekly D1326a

Administrative law -- Securities -- Administrative complaints against Florida-licensed life and health insurance agents who sold clients viatical settlement contracts, alleging agents acted as unregistered securities dealers and offered and sold unregistered securities to Florida investors -- Viatical settlement purchase agreements at issue met investment contract analysis as adopted by Florida courts -- No merit to agents' argument that regulation of viatical settlement agreements is within exclusive purview of Department of Insurance -- Chapter 626, Part X, the Viatical Settlement Act, does not expressly preempt Florida Securities and Investors Protection Act -- Because Chapter 517 and Chapter 626 are not positively repugnant to one another, and there is no express preemption, preemption should not be read into statutory scheme -- Order requiring agents to cease and desist and to pay fine for each violation, the total of which equaled or exceeded amount of commissions agents had collected for settling VSPA's, affirmed

29 Fla. L. Weekly D1442a

Insurance -- Agents -- Negligent misrepresentation -- Action against insurance agent alleging that agent negligently misrepresented to insured that her cancellation of supplemental cancer insurance policy would not take effect until end of insurance year, but that cancellation was effective before end of year -- Damages -- Insurance agent's liability for negligence leading to the cancellation of an insurance policy cannot exceed the amount of the insurance obtained -- Where amount awarded to insured was greater than the maximum benefit she would have been entitled to during the period for which she would have been covered, court erred in denying defendant's motion for remittitur