2005

30 Fla. L. Weekly D1413a

Workers' compensation -- Successive carriers -- Occupational disease -- Coronary artery disease suffered by firefighter -- Where claimant firefighter suffered first heart attack while first carrier provided coverage, and suffered complications after second carrier had begun providing coverage, second carrier is liable for current benefits due claimant -- Carrier on risk at time of last injurious exposure is liable when compensation is payable for an occupational disease, and claimant's performance of his firefighting duties constituted the last injurious exposure before his periods of disablement -- In finding second carrier not liable judge of compensation claims erroneously concluded that claimant had not suffered a disability during second carrier's period of coverage because employer city had continued to pay claimant's salary during his hospitalization and recovery so that his condition had not resulted in a diminution of earnings -- Determining whether a person is disabled for purposes of workers' compensation turns upon the person's capacity to earn income, not upon the employer's decision to pay the injured person's salary while he or she is incapacitated

30 Fla. L. Weekly D1601a

Administrative law -- Workers' compensation -- Department of Financial Services did not err in affirming stop-work and penalty assessment orders against employer for failing to provide workers' compensation coverage to employees engaged in new home construction -- No merit to claim that section 440.107, Florida Statutes (2001), violates due process because it does not provide for notice or opportunity to be heard before or immediately upon issuance of stop-work order -- No merit to claim that statute violates excessive fines clause of Florida Constitution because the amount of penalty assessed against employer is disproportionate to employer's offense where employer honestly believed workers were independent contractors

30 Fla. L. Weekly S440a
905 So. 2d 84

Torts -- Workers' compensation immunity -- Intentional torts -- Workers' compensation law immunizes an insurance carrier for mere negligent conduct, simple bad faith, and minor delays in payment, but does not afford blanket immunity for all conduct during the claims process, particularly the insurance carrier's intentional tortious conduct -- Insurance carrier who utilizes process of administering benefits to intentionally injure a worker is not afforded immunity -- Trial court properly denied motion to dismiss injured employee's action against employer's workers' compensation carrier on ground of workers' compensation immunity where complaint alleged pattern of intentional, outrageous, and harmful conduct that would establish existence of intentional tort

30 Fla. L. Weekly D1386c

Insurance -- Uninsured motorist -- Venue -- Error to grant insurer's motion for change of venue to foreign state in which accident occurred for convenience of witnesses in absence of affidavits or other evidence demonstrating that there were any witnesses who would be inconvenienced by Florida trial

30 Fla. L. Weekly D2847a

Insurance -- Uninsured motorist -- Offset -- Collateral source -- Personal injury protection benefits -- Trial court erred in not allowing setoff evidence to go to jury and in setting off PIP benefits after trial -- Decision holding that proper remedy is remand for trial court to increase judgment by amount of PIP benefits that were deducted by court post-trial is not applicable under circumstances where elimination of post-trial setoff would allow double recovery and where insurer wishes to pursue setoff, even though a retrial of damages is required

30 Fla. L. Weekly D1092c

Insurance -- Uninsured motorist -- Court did not err in requiring insureds to prove permanent injury in their action against insurer for uninsured motorist coverage -- Where policy providing UM coverage limits coverage for non-economic damages to injuries as described in section 627.737(2), permanency is an issue which must be decided by jury

30 Fla. L. Weekly D1587a

Insurance -- Uninsured motorist -- Setoff -- Verdict that found permanent injury but awarded no damages for pain and suffering was inadequate where jury specifically found that the injuries for which medical expenses were awarded were caused by the accident at issue -- New trial required on past noneconomic damages -- Trial court did not abuse its discretion in determining that insurer was entitled to setoff of tortfeasors' settlement based upon submission of case to jury on UM claim -- Plaintiff is precluded from arguing that award of her medical expenses was a recovery under her personal injury protection claim and not pursuant to the UM award, given the way the claims were submitted to the jury -- Insured brought claims against insurer for PIP and UM coverage and claimed medical expenses under both; under UM claim, insurer's answer included affirmative defense that any settlement should be reduced by amounts paid or payable under PIP and any settlement from tortfeasor; parties stipulated to reserve issue of setoff until after jury verdict; jury was not instructed on separate PIP claim, but received only standard negligence instructions for automobile accident case; and parties used standard verdict form for automobile negligence cases

NOT FINAL VERSION OF OPINION
Subsequent Changes at 30 Fla. L. Weekly D1587a

30 Fla. L. Weekly D147b

Insurance -- Uninsured motorist -- Setoff -- Unless otherwise stipulated, issue of setoff for personal injury protection benefits must be submitted to trier of fact -- Verdict which found permanent injury but awarded no damages for pain and suffering was inadequate as a matter of law -- New trial required

30 Fla. L. Weekly D1822a

Torts -- Insurance -- Uninsured motorist -- Judges -- Personal injury action seeking uninsured motorist benefits and damages from defendant who was involved in construction and repair work on Interstate highway for injuries suffered in single-car accident -- Claim that trial judge, in presence of jury, repeatedly rebuked plaintiff's counsel and improperly commented on evidence, with result that jury was prejudiced against plaintiff, as reflected in amount of damages awarded and percentage of comparative negligence attributed to plaintiff -- Plaintiff is entitled to new trial where trial judge's repeated rebuke of his counsel in presence of jury placed judge in adversarial position to plaintiff's counsel, preventing judge from exercising fairness and impartiality, and where judge impermissibly commented on evidence -- Inappropriate remarks by judge resulted in improper influence on jury, thereby vitiating atmosphere of absolute impartiality that is supposed to emanate from bench

30 Fla. L. Weekly D2725a

Insurance -- Uninsured motorist -- Trial court properly found that, under unambiguous provisions of policy, lessee of insured vehicle was not entitled to recover under UM portion of policy covering leased vehicle for injuries lessee sustained in accident occurring when her husband was driving leased vehicle and lessee was passenger, notwithstanding fact that coverage under liability portion of policy was denied based on resident relative exclusion

30 Fla. L. Weekly D114c

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 -- $100,000 offer from tortfeasor was not an offer of judgment, but was merely an offer which was not accepted -- Refusal of offer and subsequent verdict for damages which is less than the offer did not make defendant tortfeasor the prevailing party for purposes of taxing 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

30 Fla. L. Weekly D1206a

Insurance -- Uninsured motorist -- Evidence -- Action for uninsured motorist benefits in which insurer raised affirmative defense that uninsured motorist who struck insured vehicle was not negligent due to sudden brake failure -- Trial court erred in denying insurer's motion in limine to exclude reference to number of years insureds had been insured by and paid premiums to insurer, and in permitting plaintiffs to argue in closing argument the insureds' entitlement to benefits based on a long history or paying premiums -- Error to allow plaintiffs to insinuate that insurer acted in bad faith in defending action rather than paying benefits -- Argument was improper because insurer, standing in the shoes of the uninsured motorist, was entitled to raise and assert any defense that uninsured motorist could have argued -- Error to allow plaintiffs' attorney to question insured about coverage for future medical expenses -- Such testimony improperly juxtaposes economic disparity between wealthy insurance company and uninsured working person -- New trial required because of cumulative prejudicial errors

30 Fla. L. Weekly D797b

Insurance -- Torts -- Insurer's subrogation complaint against security company based upon theft loss suffered by its insured, which was tenant in industrial park for which company provided security services -- Defendant's contention that it could not be held liable because there had been no prior criminal acts similar to the one in question is rejected -- Comparative negligence -- No error in including on verdict form the insured tenant and two negligent defendants who had been voluntarily dismissed from action -- Claim was based on negligent manner in which defendant conducted its security responsibilities, and there was no attempt to apportion damages based upon intentional criminal conduct of perpetrator of theft -- Apportionment of damages -- Calculation -- Defendant security company was first liable for damages based on its proportion of liability -- In addition, statute allows joint liability for up to another $500,000 where a defendant is found to be at least 25 percent but not more than 50 percent at fault -- Prejudgment interest -- No merit to insurer's contention that prejudgment interest should have been calculated from date of theft, as opposed to date insurer paid insured for its loss

30 Fla. L. Weekly S172d SANDRA MALU, Petitioner, v. SECURITY NATIONAL INSURANCE COMPANY, Respondent. Supreme Court of Florida. Case No. SC03-1327. LAZARO PADILLA, et al., Petitioners, v. LIBERTY MUTUAL INSURANCE…

30 Fla. L. Weekly S145a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 30 Fla. L. Weekly S172d

Insurance -- Personal injury protection -- PIP statute requires reimbursement of transportation costs incurred in connection with medical treatment that is reasonably medically necessary

30 Fla. L. Weekly D1281b

Insurance -- Personal injury protection -- Coverage -- Transportation costs incurred in connection with medical treatment

30 Fla. L. Weekly D1943a

Insurance -- Personal injury protection -- Transportation costs incurred in connection with medical treatment that is reasonably medically necessary -- Class action alleging that travel reimbursement rate of 32.5 cents per mile for automobile transportation costs is not reasonable -- Determination of whether travel mileage reimbursement rate is fair, just, and reasonable is a legislative rather than a judicial function -- Order dismissing suit affirmed

30 Fla. L. Weekly S153a

Insurance -- Personal injury protection -- Reimbursement -- PIP insurer seeking reimbursement from insurer of commercial motor vehicle which insured was driving at time of accident -- Constitutionality of statute -- Equal protection -- Plain language of section 627.7405, Florida Statutes, 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 -- Classification in statute does not violate federal and state equal protection clauses because it is rationally related to a legitimate state objective of regulating insurance rates -- Insurer of commercial vehicle has right to challenge the reasonableness and necessity of expenses sought to be reimbursed by PIP insurer

30 Fla. L. Weekly D2497a

Insurance -- Personal injury protection -- Medically necessary medical treatment -- Claim by insurer that jury verdict finding insurer liable for payment for dynamic motion x-ray was not supported by evidence because there was no evidence that the evaluation was “in accordance with generally accepted methods of medical practice,” which is an element of “medically necessary” as defined in amended statute -- Statutory amendment defining the term “medically necessary” became effective June 19, 2001 -- Circuit court departed from essential requirements of law in refusing to apply the medically necessary definition set forth in amended statute where accident triggering the treatment occurred in September of 2001

30 Fla. L. Weekly D2512a

Insurance -- Personal injury protection -- Coverage -- Transportation costs incurred in connection with medical treatment

30 Fla. L. Weekly D1396b

Insurance -- Personal injury protection -- Medical benefits -- MRI

30 Fla. L. Weekly D592a

Insurance -- Personal injury protection -- An insurer is not required to comply with the provisions of section 627.736(10) in order to take preferred provider reductions in the payment of PIP benefits for medical services rendered to its insureds -- Conflict certified -- Statute authorizes PIP insurers to enter into contractual arrangements for provision of preferred provider medical services and to issue preferred provider PIP policies under certain circumstances, but does not limit insurers to entering into only direct contracts with providers or permit only those PIP insurers who offer preferred provider policies to enter into contracts with health care providers -- Remand for consideration of any outstanding issues concerning contracts between insurer and company in the business of establishing preferred provider networks and contracts between company and health care provider

30 Fla. L. Weekly D2286a

Insurance -- Personal injury protection -- Chiropractic services -- Where chiropractic clinic was exempt from statutory registration requirement because the owner/supervisor of the clinic was a licensed chiropractor, but clinic lost its exemption when the licensed chiropractor was killed in an automobile accident, services provided by the clinic after the death of the licensed chiropractor and before the clinic complied with the registration requirement were not lawfully rendered -- Because services were not lawfully rendered, insurer was not obligated to pay clinic for services under PIP policies -- Sixty-day grace period for registration of existing clinics is not applicable to the registration of an existing, exempt clinic whose practitioner/owner is killed -- Once clinic lost its exemption, it was required to cease its operation until it complied with registration requirement

30 Fla. L. Weekly D1156b
904 So. 2d 449

Insurance -- Personal injury protection -- Where provider accepted partial payment without advising insurer that amended claim for balance would be forthcoming, provider did not have a priority claim against funds remaining undisbursed -- There is no requirement that insurance company set aside a “reserve” fund for claims that are reduced or denied

30 Fla. L. Weekly D2622b

Insurance -- Personal injury protection -- Standing -- Health care provider which had not received an assignment of benefits from insured at time of filing of complaint against insurer for recovery of benefits had no standing to file suit -- Assignment of benefits executed after filing of suit did not relate back to time of filing of complaint -- Plaintiff's lack of standing at inception of case is not a defect that may be cured by acquisition of standing after case is filed -- Assignment of PIP benefits is not merely a condition precedent to maintain an action on a claim held by the person or entity who filed the lawsuit, but rather is the basis of the claimant's standing to invoke the processes of the court in the first place -- Circuit court departed from essential requirements of law with resulting miscarriage of justice when it reversed county court judgment dismissing action filed by provider who had no standing -- Because circuit court's decision establishes a general application concerning the relation back of amended pleadings to remedy claimant's lack of standing when action is filed, decision results in miscarriage of justice that warrants exercise of certiorari jurisdiction

30 Fla. L. Weekly S197b

Insurance -- No-fault -- Personal injury protection -- Section 627.736(5)(b), Florida Statutes (1999), which requires providers of non-emergency medical services and medical services not provided in and billed by a hospital to submit a statement of charges to insurers within thirty days of service, is constitutional -- Thirty-day provision does not violate rights of equal protection, due process, and access to courts -- District court properly found that Legislature had reasonable basis for distinguishing between certain medical providers -- Legislature's objectives of reducing bulk billing and ensuring that charges covered under no-fault insurance are reasonable, necessary, and related to motor vehicle accident are permissible legislative objectives and are reasonably related to thirty-day requirement imposed upon certain medical providers -- Thirty-day requirement does not abolish medical providers' access to courts, but imposes reasonable condition precedent to filing claim for certain insurance benefits

District Court opinion at 27 Fla. L. Weekly D321a
County court ruling at 7 Fla. L. Weekly Supp. 803a

30 Fla. L. Weekly D2845b

Estates -- Insurance -- Life insurance -- IRA and annuity accounts -- Where decedent had entered into marital settlement agreement with former wife which provided that each party would receive as their own certain assets, including the life insurance policies and various retirement plans in dispute in instant case, agreement made no mention of the “proceeds” or death benefits of the policies or retirement plans, and decedent never took the steps necessary to accomplish a change of beneficiary on the disputed policies and retirement plans although clearly authorized to do so by marital settlement agreement, trial court erred in finding that marital settlement agreement constituted a waiver of any claim former wife might have to proceeds of policies and retirement accounts upon death of former husband a year and a half later -- Although wife also asserts that an ERISA preemption respecting certain of the assets compels reversal of trial court's determination, appellate court need not address this issue -- Assuming there is a federal common law right of waiver associated with ERISA benefit plans, minority rule among courts would require execution of particular documents referenced in ERISA benefit plan to change the beneficiary, which was not done; and majority rule would still require determination of what constitutes an effective waiver -- Under applicable Florida Supreme Court precedent, parties were ineffective in their attempt at waiver -- Remand for entry of judgment in favor of former wife

APPROVED. 36 Fla. L. Weekly S252a

30 Fla. L. Weekly D2088b
909 So. 2d 593

Insurance -- Uninsured motorist -- Limitation of actions -- Conflict of laws -- Action against uninsured motorist insurer seeking UM benefits pursuant to policy issued in Georgia for damages that resulted from automobile accident that occurred in Florida -- Because Florida applies doctrine of lex loci contractus to determine where cause of action for UM benefits arose, cause of action arose where contract was executed, in Georgia, and Florida borrowing statute applies -- Pursuant to Florida's borrowing statute, court must look to Georgia law to determine if action is barred by applicable statute -- Georgia law provides that the applicable statute of limitations is the time allowed for service of the defendant in the underlying tort action, which in this case was Florida's four-year tort statute of limitations -- Because action was filed within the four-year limitations period, trial court erred in determining that action was time barred

30 Fla. L. Weekly D2366a

Administrative law -- Licensing -- Department of Financial Services -- Suspension of limited customer service representative insurance license, which authorized licensee to sell automobile insurance, but not other property and casualty insurance -- License was properly suspended on basis that licensee acted as a general lines agent, outside her license restrictions, in selling mobile home homeowner's insurance, that licensee sold an ancillary contract along with the mobile home homeowner's policy without explaining that it was separate from the policy and entailed an additional cost, and that licensee assisted another person in selling insurance, knowing that the other person did not have a license to sell insurance -- No merit to licensee's contention that her conduct was exempt from statutory prohibitions because she was in training for licensing as a general lines agent, and her involvement in the transaction should be considered part of her training under the supervision of a licensed agent

30 Fla. L. Weekly D2364a

Administrative law -- Licensing -- Department of Financial Services -- Suspension of license to sell insurance

30 Fla. L. Weekly D46a

Insurance -- Equitable subrogation -- Dismissal -- Equitable subrogation action against medical providers by liability insurer which had settled slip and fall claim against its insured, alleging that amount paid in settlement was greater than would have been fair and reasonable but for medical providers' negligence -- Trial court erred in relying on release executed in connection with settlement agreement in dismissing action where the release was not attached to the complaint -- Trial court did properly dismiss action on basis of paragraph in amended complaint alleging that claimants would not agree to release language expressly releasing subsequent negligent medical providers -- In order to state a cause of action for equitable subrogation, the allegations of the complaint must demonstrate that the subrogee paid off the entire debt -- Based on allegation in complaint that claimants would not agree to release language releasing subsequent negligent medical providers, plaintiff insurance company cannot establish that it paid off entire debt

30 Fla. L. Weekly D610a

Insurance -- Liability -- Coverage -- Negligent act, error or omission in conduct of travel agency operations -- Insured travel agency sought indemnification for losses it sustained when Automated Ticket Boarding Forms issued and distributed by Airline Reporting Corporation were stolen and ARC refused to defend or cover agency against airlines' demands for payment because of its unilateral determination that the travel agency had been negligent and had failed to use reasonable care in safeguarding ATBFs -- No error in finding that claim was not covered under policy because loss was result of theft, not insured's negligence -- Fact that ARC had concluded that travel agency violated its obligation under their contract does not make the loss a covered claim under policy provisions at issue

30 Fla. L. Weekly D336a

Insurance -- Liability -- Trial court properly entered summary judgment finding no coverage under policy which expired by its temporal terms eight days prior to event which gave rise to wrongful death action against insured

30 Fla. L. Weekly D1438a

Insurance -- Liability -- Insurer's third-party complaint seeking indemnification or contribution from management company based upon settlement of wrongful death action in which insured homeowners association was sued for negligence based upon an accident in which motorist lost control of vehicle while driving through puddle of standing water, crossed roadway's median, and collided head on with decedent's vehicle -- Error to dismiss fourth amended third-party complaint with prejudice on ground that management company was additional insured under policy -- Although insurance policy defined insured as any person or organization qualifying as an insured in “Persons insured” provision of applicable insurance coverage, and “Persons insured” section included any person or organization while acting as a real estate manager for the named insured, there were two contracts between insured homeowners association and management company, a management contract which required company to arrange for the supervision of maintenance of common areas, improvements, and equipment of the association, and a lawn services contract for lawn services, detail work, irrigation, and fountain services; and insurer alleged that any liability attributable to company was result of negligent performance of lawn services contract, and not result of company's conduct as real estate manager -- Whether company was acting as real estate manager and therefore an additional insured was mixed question of law and fact which was not appropriately resolved on motion to dismiss

30 Fla. L. Weekly D2626b

Jurisdiction -- Insurance -- Order directing insurance company to pay unpaid balance of judgments against insured -- Court had no in personam jurisdiction over insurance company because company was never served and was never a party to suit against insured -- Although a liability carrier may be joined at or before the time judgment is entered against its insured, there was no such joinder in present case

30 Fla. L. Weekly D2449b

Civil procedure -- Class actions -- Standing to proceed as class representative -- Breach of contract action against health insurer on behalf of Florida physicians for whom payment on claims for high intensity and costly procedures has either been denied or systematically reduced by defendant pursuant to alleged “downcoding” practice -- Plaintiff physician lacked standing to serve as class representative because he has no claim for damages against defendant -- Trial court abused discretion in certifying class where evidence demonstrated at outset that class plaintiff had no claim for damages and therefore no standing to proceed with case

30 Fla. L. Weekly D75a

Environmental protection -- Florida Petroleum Liability and Restoration Insurance Program -- Financial responsibility requirement for participation in FPLRIP -- Department of Environmental Protection improperly denied restoration coverage under FPLRIP for petroleum discharge which occurred during period when property owner's petroleum liability insurance policy was in effect, but which was not reported until two weeks after the policy had expired -- Property owner was eligible for FPLRIP participation where discharge occurred within policy period and was reported within six months after expiration of the policy

30 Fla. L. Weekly D2834a

Jurisdiction -- Insurer -- Foreign insurer -- Question certified whether a Michigan insurer, which does not sell insurance in Florida, is subject to personal jurisdiction in Florida in a suit by the insured seeking a defense and coverage, where (a) the insured is being sued in Florida for committing slander in Florida and (b) the policy is a homeowner's policy covering only a Michigan residence but also providing coverage for torts including slander?

30 Fla. L. Weekly D1123a

Health maintenance organizations -- Service providers, claiming as third-party beneficiaries under a subscriber's HMO contract, may bring an action founded on HMOs' failure to comply with prompt pay provisions of Health Maintenance Association Act -- Question certified whether prompt pay provisions of Act are enforceable by courts in an action founded on principles of breach of contract brought against HMO by a service provider

NOT FINAL VERSION OF OPINION
Subsequent Changes at 30 Fla. L. Weekly D2834a

30 Fla. L. Weekly D2174a

Jurisdiction -- Insurance -- Foreign insurer -- Trial court properly found that it lacked jurisdiction over foreign insurer who had issued policy insuring a property having a permanent situs outside Florida -- Fact that policy was delivered to property owner at his Florida address not basis for jurisdiction -- Unauthorized insurers process law does not apply to suits arising out of any contract of insurance for liability arising out of ownership, operation, or maintenance of any property having permanent situs outside state -- Fact that property insurance policy also provides a provision for personal protection for the owner does not change this result -- Non-residents -- Argument that court had jurisdiction under general Florida long-arm statute was waived for appellate review where argument was never advanced in trial court

30 Fla. L. Weekly D1786b

Insurance -- Homeowners -- Bodily injury liability -- Exclusions -- Business -- Day care center -- Coverage for wrongful death of child who was allegedly negligently supervised in the course of home day care business was excluded by business exclusion as clarified by home day care endorsement of policy -- Trial court erred in finding that home day care endorsement is ambiguous because it contains the sentence, “This endorsement does not constitute a reduction in coverage” -- Coverage is excluded if child's injuries arose out of or in connection with regular provision of home day care services for monetary or other compensation as long as child is not an insured or a relative, and the compensation was not the mutual exchange of home day care services -- Even payment as reimbursement for expenses in home day care constitutes compensation for purposes of home day care endorsement

NOT FINAL VERSION OF OPINION
Subsequent Changes at 30 Fla. L. Weekly D1786b

30 Fla. L. Weekly D1005a

Insurance -- Homeowners -- Bodily injury liability -- Exclusions -- Business -- Home day care -- Coverage for wrongful death of child who was allegedly negligently supervised in the course of home day care business was excluded by business exclusion as modified by home day care endorsement of policy -- Trial court erred in finding that home day care endorsement is ambiguous because it contains the sentence, “This endorsement does not constitute a reduction in coverage” -- Coverage is excluded if child's injuries arose out of or in connection with regular provision of home day care services for monetary or other compensation as long as child is not an insured or a relative, and the compensation was not the mutual exchange of home day care services -- Even payment as reimbursement for expenses in home day care constitutes compensation for purposes of home day care endorsement

30 Fla. L. Weekly D1073a

Insurance -- Liability -- Exclusions -- Pollution -- Loss arising out of governmental direction that named insured test for, monitor, clean up, remove, contain, treat, detoxify or neutralize pollutants -- Trial court properly found that expenses incurred by county in course of remedying pollution as provided by consent order and settlement agreement between Department of Environmental Protection and county were excluded from coverage by government direction exclusion

30 Fla. L. Weekly D1136b

Insurance -- Liability -- Exclusions -- Professional services -- Products-completed operations -- Where insured inspected and maintained hoists which were owned by a customer and located at the customer's facility, insurer had no duty to defend or indemnify insured for claim for damages occurring when one of the hoists which had been inspected by insured failed and dropped a jet engine -- Professional services exclusion in policy was not applicable to inspection and maintenance work performed by insured because personnel who perform inspections on hoists are not required to have any specialized training or experience -- Because damages alleged to have been caused by insured resulted from work that insured had completed five months prior to the accident, the policy's “products-completed operations exclusion” excludes coverage for the damages

30 Fla. L. Weekly D1213a

Insurance -- Windstorm -- Homeowners -- Claims against Florida Windstorm Underwriters Association and homeowners insurer for wind-driven rain damage resulting from rain that entered homes through window and sliding glass door openings, and by seeping through second floor patio tiles and cracks in stucco -- Where court entered summary judgment against FWUA and summary judgment for homeowners insurer in a single document, and FWUA filed appeal, insureds' cross-appeal of the summary judgment for homeowners insurer was not a valid cross-appeal, but was rather an untimely appeal from a separate and different judgment than that appealed by FWUA -- Exclusions -- Coverage for damage was excluded by wind-driven rain exclusion in FWUA policy -- Court erred in finding that FWUA was responsible for covering damage because FWUA later amended its policies to cover wind-driven rain damage, because FWUA participated in damages appraisal of insured homes, and because the wind-driven rain exclusion is against public policy -- Wind-driven rain exclusion is not void as against public policy

30 Fla. L. Weekly D820b

Insurance -- Marine insurance -- Exclusions -- Racing -- Term “any speed race” used in policy exclusion is not ambiguous and means any race, regardless of whether it is officially sanctioned or impromptu -- Fact that term is not defined by policy does not render the term ambiguous -- Error to enter summary judgment in favor of insured on ground that exclusion was ambiguous and should be interpreted in favor of insureds as excluding only officially organized and sanctioned powerboat races

30 Fla. L. Weekly D1428a

Insurance -- Uninsured motorist -- Where insured filed action for uninsured motorist benefits and thereafter notified insurer that he would assert a bad faith claim under section 624.155, thereby triggering sixty-day period in which insurer could resolve claim and eliminate exposure for bad faith, insurer tendered payment of policy proceeds, insured asserted that tender was untimely, court issued pretrial ruling that tender was untimely, and verdict was returned for insurer, trial court properly ruled that insured could not retain payment which had been made by insurer -- By successfully taking the pretrial position that tender was untimely, insured rejected the tendered payment and could not retain the payment -- Evidence -- Expert -- Court erred in allowing insurer's expert to answer questions about photographs of insured's car where court had previously ruled the photographs inadmissible -- Error was harmless under circumstances -- No merit to insured's claim that verdict was against manifest weight of evidence as to accident which lengthened recovery time from jaw surgery for TMJ -- Mere delay in recovery is not itself a permanent injury

30 Fla. L. Weekly D331a

Insurance -- Excess liability -- Business pursuits exclusion -- Personal umbrella policy does not provide coverage for injuries occurring at apartment complex owned by insured -- Personal umbrella policy which excluded from coverage injury arising from premises of rental properties owned by anyone covered by policy unless also covered by insurance under a homeowners, comprehensive personal liability, or farmers personal comprehensive personal liability policy, did not provide coverage for injury occurring at apartment complex because commercial lines policy covering apartment complex does not qualify as a homeowners or farmowners personal protection policy, or a personal liability policy of any type

30 Fla. L. Weekly D1063a

Insurance -- Workers' compensation -- Promissory estoppel -- Where workers' compensation insurer had informed insured by letter that its policy would not cover employees who were working on navigable waters because coverage for those workers had to be obtained pursuant to federal Longshore and Harbor Workers' Compensation Act and could not be provided by insurer, attaching to the letter a document entitled “Longshore and Harbor Workers' Compensation Act Exclusion Endorsement,” and insurer, after conducting a second inspection of insured's business, sent insured a second letter stating that its initial survey was accurate, trial court erred in entering summary judgment finding that insurer was estopped from refusing to pay losses insured incurred due to lack of Longshore and Harbor Workers' Compensation Act coverage because insured had reasonably relied on insurer's representation that it covered all activities of insured's employees -- Trial court improperly found that, as a matter of law, insurer's second letter was a representation of coverage -- Determination of whether insured's reliance on what it understood to be a representation of coverage was reasonable involved resolution of factual issues, which precluded summary judgment

30 Fla. L. Weekly D77b

Insurance -- Liability -- Coverage -- Error to consider parol evidence to determine intent of parties with regard to coverage of premises where personal injury occurred where insurance policy was not ambiguous with regard to coverage of the premises -- Promissory estoppel -- Case does not involve circumstances that would place it within narrow exceptions to general rule that estoppel will not operate to create or extend coverage where coverage does not exist

30 Fla. L. Weekly D96b

Insurance -- Florida Insurance Guaranty Association -- Estoppel -- FIGA, as successor to insolvent insurer, is not estopped from denying that insolvent insurer had duty to defend and indemnify insured, where only action taken by insolvent insurer in underlying suit was the filing of an answer

30 Fla. L. Weekly D2776b

Insurance -- Duty to defend -- Action for writs of mandamus and garnishment against Insurance Commissioner and State Treasurer, and Risk Management Trust Fund which provides civil rights liability insurance for employees, to enforce section 1983 civil rights judgment obtained by Coblentz agreement against the estate of a former state employee after Fund refused to defend the estate -- Trial court erred in granting summary judgment for defendants on ground that agreement between plaintiff and estate required as a condition precedent that the estate file suit against the Fund and recover a judgment, that the estate had never filed any such lawsuit, and that plaintiff's demand letter failed to inform defendants that plaintiff would receive an assignment only when the estate received a judgment in a successfully litigated suit against defendants -- Trial court erred in concluding that the settlement agreement was incorporated into the federal judgment and in allowing the Fund, as a nonparty to the agreement and lawsuit, to collaterally attack the terms of the consent agreement between plaintiff and the estate -- Although a judgment may be entered pursuant to a settlement, once the judgment is entered, its enforceability is not tied to the terms of the settlement -- Fund, as a nonparty to the settlement agreement, has no standing to enforce it -- Consent judgment is entitled to same preclusive, res judicata effect as any other judgment -- Having refused to defend the estate, the Fund lost its right to claim a defense that it otherwise could have raised in federal court -- When an insurer has denied coverage that actually exists, the insurer has breached the contract and therefore cannot be allowed to rely upon a contractual provision prohibiting the insured from settlement of the claim with a responsible party in order to relieve itself from liability -- To enforce the consent judgment, plaintiff must demonstrate coverage, a wrongful refusal to defend, and that the settlement was reasonable and made in good faith -- Mandamus and garnishment are appropriate remedies to collect against Fund -- Court did not abuse discretion by denying defendants section 57.105 attorney's fees -- Cited cases do not support argument that Fund is not sui juris

30 Fla. L. Weekly D2257a

Insurance -- Motor cargo insurance -- Duty to defend -- Policy at issue clearly and unambiguously created “right” to defend rather than a duty to defend -- Limitation of liability -- Target commodities endorsement limiting insurer's liability for losses of certain commodities, including audio and video equipment, to 10% of the limit of insurance applied to instant case where items listed on invoices reflected that stolen cargo fell within this provision

30 Fla. L. Weekly D566b

Insurance -- Duty to defend -- Discovery -- Work product -- Insured's communications with counsel -- Failure of insured to serve privilege log -- Because appellate court cannot determine basis for trial court's order directing insured to produce its entire litigation file in a previous case to insurer, matter remanded for reconsideration in light of recent district court decision clarifying the application of the abrogation of privilege as a sanction for failure to serve a privilege log

30 Fla. L. Weekly D991c

Insurance -- Workers' compensation -- Discovery -- Trade secrets -- Trial court departed from essential requirements of law in ordering workers' compensation insurer to produce information and documents which would involve disclosure of insurer's customer list, and which were claimed to be protected by trade secret privilege, without conducting in camera inspection and without making necessary findings of fact

30 Fla. L. Weekly D2450a

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

30 Fla. L. Weekly D290c

Insurance -- Discovery -- Privilege -- Documents in claim file -- Record is unclear whether attorney-client or work product privilege applies in case at issue -- On remand, trial court should determine which documents are in dispute and conduct in camera inspection to determine whether documents are protected by either work product or attorney-client privilege

30 Fla. L. Weekly D847a

Insurance -- Disability -- Insured's action against insurers for breach of contract based on their failure to provide disability benefits -- Judicial estoppel -- Error to apply doctrine of judicial estoppel based on insured's conduct during earlier bankruptcy proceeding, in which insured seemingly made equivocal or inconsistent statements about his disability -- General rule of judicial estoppel in Florida appears to be that claim or position successfully maintained in former action or judicial proceeding bars party from making completely inconsistent claim or taking clearly conflicting position in subsequent action or judicial proceeding to the prejudice of adverse party, where parties are the same in both actions, subject to “special fairness and policy considerations” exception to mutuality of parties requirement -- In bankruptcy proceeding, insured did not “successfully maintain” that he was not disabled, as bankruptcy court did not rule on disability issue -- Moreover, insurers were not parties to bankruptcy action -- “Special fairness and policy considerations” exception to mutuality of parties requirement does not apply in instant case -- Insured has not used intentional self-contradiction to obtain unfair advantage

30 Fla. L. Weekly D1317a

Insurance -- Directors and officers liability -- Exclusions -- Policy's insured versus insured exclusionary clause did not exclude coverage for insured former president and director of bankrupt corporation in bankruptcy trustee's adversary action against insured on behalf of creditors in bankruptcy proceeding alleging negligence and breach of fiduciary duties

30 Fla. L. Weekly D1698a

Attorneys -- Disqualification -- Acquisition of material which was protected by opposing party's attorney-client privilege -- Trial court departed from essential requirements of law in disqualifying counsel who had received privileged information pursuant to a trial court discovery order compelling disclosure of the privileged information which was subsequently quashed by appellate court -- Although in “inadvertent disclosure” cases, disqualification of counsel may result if attorney receiving privileged documents gains an unfair tactical advantage by virtue of the disclosure, a higher standard applies for disqualifying counsel when the privileged documents are received pursuant to a court order that is subsequently vacated -- Appropriate standard for granting motion to disqualify counsel where counsel receives privileged documents by court order that is subsequently quashed is whether counsel's review of privileged documents caused actual harm to party moving for disqualification, and whether disqualification is necessary because trial court lacks means to remedy moving party's harm -- Disqualification was improper where moving party failed to proffer any evidence of actual harm caused by opposing counsel's review of privileged documents

30 Fla. L. Weekly D367a
895 So. 2d 1136

Insurance -- Commercial liability -- Nonjoinder statute -- Where contractor on condominium project brought action against insured sprinkler subcontractor for damages resulting from sprinkler system ruptures at project, sought declaratory judgment that contractor's commercial liability policy provided coverage for the damages, and, in another count, alleged that it was an additional insured under the policy and sued insurer directly for a declaratory judgment, trial court departed from essential requirements of law in denying insurer's motion to sever or stay the direct action against the insurer -- Denial of the motion to sever or stay would result in irreparable harm to insurer throughout the remainder of the proceedings, effectively leaving no adequate remedy on appeal, because it would permit jurors to learn that an insurance company is a party to the action and that coverage may exist for damages sought

30 Fla. L. Weekly D538b

Insurance -- Commercial liability -- Duty to defend -- Trial court properly determined that builder's commercial general liability policy did not provide coverage for homeowners' claim against builder for replacement and repair of deficient construction, which was based on discovery that builder had constructed home below Federal Emergency Management Agency and county elevation requirements and that stop work order would not be removed until structure was either elevated or demolished -- Claims were expressly precluded by work product, business risk, and professional services exclusions contained in policy

30 Fla. L. Weekly S633a
913 So. 2d 528

Insurance -- Commercial general liability -- Exclusions -- Products-completed operations hazard -- Action by municipalities against insured gun manufacturer for cost of medical and other services incurred as result of gun violence in communities -- Language in policies excluding from coverage “all bodily injury and property damage occurring away from premises you own or rent and arising out of your product” excludes coverage for suits brought against gun manufacturer by municipalities -- Plain language of exclusion excludes coverage for all product-related injuries, not merely defective products -- Phrase “arising out of your product” in exclusion is not ambiguous, and should be interpreted broadly

30 Fla. L. Weekly D893c

Insurance -- Commercial general liability -- Products/completed operations liability -- Duty to defend or indemnify insured lumber company for damages claimed in complaint filed by subcontractor against insured, alleging subcontractor suffered damages because of insured's failure to supply proper grade of cedar siding for certain project, which resulted in subcontractor's having to replace siding -- With regard to commercial general liability policy, trial court properly concluded that there were no allegations of property damages, that dispute concerned breach of contract, and that failure to supply product specified in a contract was business risk not covered by this policy -- With regard to products/completed operations liability policy, allegations in complaint showed the owner or general contractor's property suffered no damage from insured's failure to supply the correct quality of lumber; rather, the only damage alleged was cost or expense to vendor to remove defective product and supply an acceptable substitute -- Recall exclusion -- Further, both policies provided that insurance did not apply to damage to impaired property, and both policies contained exclusions which clearly exempted from coverage damages incurred by a vendor who supplies defective products and is required to remove and replace them with specified products -- Recall exclusion encompassed deficient or inadequate materials -- No error in entering declaratory judgment determining that insurer had no duty to defend or indemnify insured

30 Fla. L. Weekly D2502a

Insurance -- Commercial general liability -- Coverage -- Duty to defend -- Insured which sold blood irradiation machine to client seeking determination as to whether insurer owed duty to defend and/or indemnify with respect to suit filed against insured by client after irradiation unit was damaged in transit -- Exclusions -- Contractual liability -- Error to grant insurer's motion for summary judgment based on “contractual liability” policy exclusion -- Although policy language excluded “damages by reason of the assumption of liability in a contract or agreement,” insurer failed to point out any language in the purchase order wherein insured assumed liability for property damage to irradiator during shipment -- Exclusion for “property damage” to “your product” “arising out of it or any part of it” is limited in scope to situations wherein product itself is defective -- In present case, client does not allege that irradiator was defectively manufactured or that a defect within the machine caused the damage -- Accordingly, it was error to grant insurer's motion for summary judgment based on this exclusion

30 Fla. L. Weekly D1057a

Insurance -- Commercial general liability -- Professional liability -- Trial court properly entered summary judgment in declaratory judgment action, finding that insurer had no duty to indemnify or defend insured nursing home against claims for wrongful death and violation of nursing home resident's rights, where there was no evidence that any relevant event or injury took place during the period of time when insurer's policy provided coverage

30 Fla. L. Weekly D774a

Insurance -- Commercial general liability -- Coverage -- Damage to homes constructed by insured general contractor -- Policy provided coverage for damage suffered by completed homes when exterior walls moved or sank as result of subcontractors' use of poor soil, improper soil compaction, or improper testing -- Occurrences in question fall within coverage provisions of policy, and no exclusions contained in policy are applicable

30 Fla. L. Weekly D2162a

Insurance -- Commercial general liability -- Additional insureds -- Where insured had contract with owner of building to perform janitorial functions in building, and policy listed building owner as an additional insured with respect to liability “arising out of” insured's ongoing operations performed for the building owner, building owner was an additional insured with respect to liability arising out of named insured's operations performed for building owner -- Because policy did not contain specific language limiting coverage to named insured's direct negligence, policy provided coverage to the additional insured building owner for its own negligence -- Insurer has duty to defend building owner in action alleging that building owner's negligence resulted in slip and fall in men's room in building

30 Fla. L. Weekly D1256c

Civil procedure -- Class actions -- Insurance -- No-fault -- Personal injury protection -- Coverage -- Magnetic resonance imaging services -- Plaintiff provider alleging insurer failed to pay “annual Florida medical consumer price index increase” for MRI services, as required by statute -- Typicality -- Plaintiff is improper class representative for class as presently defined where plaintiff's claim is based on bill for services provided in 2003, and class definition encompasses MRI providers who did not receive payment in amount adjusted annually for CPI from November 1, 2001 through July 31, 2003 -- If trial court were to accept insurer's interpretation of when CPI adjustment should begin and conclude that no CPI adjustment is due on payments for services performed between November 1, 2001, and November 1, 2002, plaintiff would not be aggrieved and could not represent those members of the class who might be aggrieved -- Error to grant motion for class certification

30 Fla. L. Weekly D1563a

Civil procedure -- Class actions -- Insurance -- Health -- Wrongful termination of policy with automatic enrollment in replacement plan which had lower benefits -- Plaintiff attempting to represent class of employees whose employers had originally purchased the same type of health insurance policy as plaintiff, and whose health care plans were replaced by insurer with a plan with inferior benefits -- No abuse of discretion in denying motion for class certification based on finding that plaintiff's claim differed from those who would have been members of class

30 Fla. L. Weekly D1561a

Appeals -- Non-final orders -- Insurance -- Class actions -- Insured's action against insurance carrier on his behalf and on behalf of proposed class of similar policy holders for violations of repair and replacement provisions -- Order dismissing class action allegations with prejudice is not reviewable -- Order did not determine that class should not be certified or deny a motion to certify -- The only basis for dismissal raised by motion to dismiss under rule 1.140 was legal sufficiency of the pleading for class relief

30 Fla. L. Weekly D110c

Insurance -- Group health -- Out-of-state groups -- Civil procedure -- Class actions -- Certification -- Action seeking monetary damages and declaratory relief, including declaration that dispute resolution provision in policies at issue be rendered unenforceable -- No abuse of discretion in considering, but not reaching, procedural unconscionability issue when deciding to certify class -- Trial court was entitled to review evidence available regarding procedural unconscionability claim in considering whether prerequisites of rule 1.220(a) were established, and record demonstrates that trial court did not conduct in-depth inquiry into merits of this claim, but instead focused on whether prerequisites for class certification had been met -- Adequacy of class representatives -- No error in finding plaintiffs to be adequate class representatives, although they were no longer insured under challenged policy -- Abuse of discretion to certify class under rule 1.220(b)(2) -- Although enforceability of dispute resolution provision appearing in all policies issued to class applies to all class members equally and declaratory relief is at issue, monetary recovery is predominant issue, rendering class certification under rule 1.220(b)(2) inappropriate -- No error in certifying class under rule 1.220(b)(3) because common issues involving enforceability of dispute resolution provision which is common to all class members' policies, and compliance with statutes predominate to an extent that minimizes the risks stemming from any individualized damages inquiry that might be required

30 Fla. L. Weekly D173a

Insurance -- Unfair insurance trade practices -- Action against insurer alleging fraud and deceit in claims handling process, violations of section 624.155, and violations of section 626.9541 brought by insured who received personal injury protection, Med Pay, and collision benefits, but no uninsured motorist benefits, following automobile accident -- Stay -- Error to enter indefinite stay of lawsuit pending resolution of appeals in two unrelated cases involving insurer -- Two appeals were not initiated in same appellate court and did not involve an identical dispositive issue, and instant case and two pending appellate cases did not arise out of same accident or insurance contract

30 Fla. L. Weekly D386a

Administrative law -- Department of Financial Services -- Insurance regulation -- Appeal from department order concluding that insurer knowingly and willfully failed to pay build-up funds due a bail bond agent upon discharge of liabilities, in violation of section 648.29(3) -- Willfulness -- Department erred when it recast administrative law judge's finding on willfulness as a conclusion of law, took exception to this conclusion, and imposed penalty based upon its own conclusion that violation of statute was knowing and willful -- ALJ properly found that the existence of a circuit court order allowing insurer to hold build-up funds until conclusion of insurer's lawsuit against bail bond agent prevented the Department from establishing that insurer was in willful violation of statute

30 Fla. L. Weekly D556a

Insurance -- Bad faith -- Trial court improperly allowed assertion of bad faith claim against insurer before coverage issue had been resolved -- Where court consolidated two cases for discovery and trial, court improperly treated the two cases as merged -- Because of potential prejudice to defendant insurer, which had been granted summary judgment in one of the cases, order allowing the filing of a single amended complaint, operating as to both cases, constituted departure from essential requirements of law

30 Fla. L. Weekly D804a REBECCA GALANTE and CHRISTOPHER GALANTE, Appellants, v. USAA CASUALTY INSURANCE COMPANY, a corporation, Appellee. 4th District. Case No. 4D03-3816. Opinion filed March 15, 2005. Appeal…

NOT FINAL VERSION OF OPINION
Subsequent Changes at 30 Fla. L. Weekly D804a

30 Fla. L. Weekly D525a

Insurance -- Uninsured motorist -- Bad faith -- No error in dismissing insureds' first-party bad faith action with prejudice where it was undisputed that underinsured motorist insurer paid contractual amount due the insured within sixty days of receipt of civil remedy notice, in compliance with safe harbor provision of section 624.155(3)(d)

30 Fla. L. Weekly S219c
899 So. 2d 1121

Insurance -- Bad faith actions -- Discovery -- Work product privilege -- Any distinction between first-party and third-party bad faith actions with regard to discovery purposes is unjustified and without support under section 624.155 -- Claim file type material presents virtually the only source of direct evidence with regard to the essential issue of insurance company's handling of insured's claim -- In connection with evaluating the obligation to process claims in good faith under section 624.155, all materials, including documents, memoranda, and letters, contained in the underlying claim and related litigation file material that was created up to and including the date of resolution of the underlying disputed matter and pertain in any way to coverage, benefits, liability, or damages, should be produced in a first-party bad faith action -- All such materials prepared after the resolution of the underlying disputed matter and initiation of the bad faith action may be subject to production upon a showing of good cause or pursuant to an order of the court following an in-camera inspection -- Where coverage and bad faith actions are initiated simultaneously, court should employ existing tools, such as abatement of actions and in-camera inspections, to ensure full and fair discovery in both causes of action

NOT FINAL VERSION OF OPINION
Subsequent Changes at 30 Fla. L. Weekly D1170d

30 Fla. L. Weekly D478b

Insurance -- Liability -- Bad faith -- Dismissal or abatement of action -- Action against insurer for bad faith failure to settle after plaintiff in underlying action offered to settle his bodily injury claim for what he believed to be the bodily injury liability limits of insured's liability policy plus his property damage, insurer asserted that policy did not afford bodily injury liability and refused the offer, plaintiff submitted a second offer to settle all claims in return for payment of the property damage limits, insurer rejected that offer as well, plaintiff sued insured for bodily injury and property damage, insurer settled property damage claim only by paying plaintiff the amount he had previously sought to settle all claims, and plaintiff's action for bodily injury liability proceeded to verdict, resulting in judgment against insured -- In action by plaintiff and insured against agent, alleging negligent failure to procure full coverage, and against insurer, alleging vicarious liability for agent's conduct and bad faith failure to settle, trial court did not depart from essential requirements of law by denying insurer's motion to dismiss or abate bad faith counts until final determination is made on merits of remaining counts -- Decisions holding that a tort action against an insured cannot proceed simultaneously with an action by the insured against the insurer alleging bad faith are not applicable -- Discovery -- Court did not depart from essential requirements of law in denying insurer's motion for protective order asking court to deny request for production of insurer's litigation files and claim-handling material generated before final judgment in suit against insured -- Claim that trial court departed from essential requirements of law by compelling production of material and documents in claims file without ordering in camera inspection to determine whether any documents are protected by attorney-client privilege or as work product is not ripe for review -- Where order compelling insurer to comply with discovery request made no determination that insurer had waived any privileges or protections, and insurer subsequently filed privilege log, trial court has not yet made any determination regarding claim of privilege

30 Fla. L. Weekly D1170d ALLSTATE INDEMNITY COMPANY, Petitioner, v. TIMOTHY OSER, SABRINA PATTERSON, and JO LYNN WALKUP, Respondents. 1st District. Case No. 1D04-2683. Opinion filed February 17, 2005. Petition…

30 Fla. L. Weekly D1045a

Insurance -- Automobile liability -- Supplemental liability policy purchased in connection with rental of vehicle -- Exclusions -- Driving under influence of alcohol -- Trial court erred in finding that driving while intoxicated exclusion was not applicable because insurer failed to deliver copy of policy to insured within 60 days after issuance, where notice of exclusion was placed in large print in rental agreement signed by insured -- Trial court erred in finding that exclusion for driving while intoxicated violates public policy -- Florida public policy does not preclude an exclusion for alcohol impairment in an excess or supplemental liability policy

30 Fla. L. Weekly D2193a

Insurance -- Automobile liability -- Exclusions -- Trial court properly ruled that exclusion in automobile liability policy for any loss caused while insured is committing or attempting to commit a felony is void as against public policy -- Trial court did not abuse discretion in awarding attorney's fees pursuant to section 57.105 -- “Good faith effort to change existing law” theory as basis for avoiding liability for attorney's fees pursuant to section 57.105 is insufficient to demonstrate that trial court abused discretion in awarding fees, and is not considered by appellate court where raised for first time in appellant's reply brief

NOT FINAL VERSION OF OPINION
Subsequent Changes at 30 Fla. L. Weekly D2193a

30 Fla. L. Weekly D1939c

Insurance -- Automobile liability -- Exclusions -- Trial court properly ruled that exclusion in automobile liability policy for any loss caused while insured is committing or attempting to commit a felony is void as against public policy -- Attorney's fees properly awarded pursuant to section 57.105

NOT FINAL VERSION OF OPINION
Subsequent Changes at 30 Fla. L. Weekly D1939c

30 Fla. L. Weekly D1413b

Insurance -- Automobile liability -- Exclusions -- Trial court properly ruled that exclusion in automobile liability policy for any loss caused while insured is committing or attempting to commit a felony is void as against public policy

30 Fla. L. Weekly D2371a

Insurance -- Automobile liability -- Coverage -- Stacking -- Where garage liability policy and personal liability policy were issued to two different named insureds, the duplication of coverage provision in personal liability policy could not be used to reduce the available coverage under both policies

30 Fla. L. Weekly S581a Insurance -- Automobile liability portion of garage operations policy -- Duty to defend -- Insolvent insurers -- Florida Insurance Guaranty Association -- Claim for excess judgment in wrongful death action allegedly caused by FIGA's failure to defend insured -- Duty of FIGA to defend a claim against an insured party is identical to that of the insolvent insurer, and, as such, is triggered when the complaint alleges facts that fairly and potentially bring action within policy coverage -- Any doubts with regard to duty to defend must be resolved in favor of insured -- Immunity provision of FIGA's enabling act does not preclude initiation of actions for FIGA's breach of statutory or contractual duties owed to an insured to defend under the terms of an insurance contract, even though a different form of action alleging that FIGA exercised bad faith in handling the settlement of a claim may not be viable -- With regard to permissible damages in a duty to defend action, FIGA's liability shall not exceed policy limits of insolvent insurer, up to the statutory maximum, plus interest from date of judgment against the insured, if payment of interest is provided for under policy's supplementary payment provision, as well as statutory interest from date of judgment against FIGA and any attorney's fees resulting from FIGA's denial of coverage -- FIGA's arguments that plaintiff failed to present “covered claims” were either decided adversely to FIGA's position in the entry of the judgment in the underlying action or were properly rejected by the trial court

30 Fla. L. Weekly D1997a

Insurance -- Automobile -- Bad faith failure to settle -- Discovery -- Attorney-client privilege -- Communications between plaintiff and his counsel regarding counsel's authority to settle the initial suit against defendant's insured were privileged -- Privilege not waived by filing of bad faith suit against insurer or by plaintiff's deposition testimony -- Motives of plaintiff and his attorney regarding timing of settlement offer and rejection of insurer's subsequent settlement offer are not elements that plaintiff has to prove to establish a bad faith claim against insurer -- Plaintiff did not inject issue of attorney's authority to settle into litigation just because he could not remember many details about the settlement offer -- Although insurer asked plaintiff numerous questions about settlement demand and rejection of insurer's offer during deposition, plaintiff gave limited responses and did not disclose any specific discussions or substance of any communications with attorney -- Portion of order allowing discovery of documents related to counsel's authority to settle case is quashed

30 Fla. L. Weekly D1471a

Insurance -- Automobile -- Subrogation -- Class action for declaratory decree that defendant's insureds are entitled to recover up to full extent of their uninsured losses before defendant insurer can participate in any recovery it obtains from third-party tortfeasors -- 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 -- Court can find no Florida authority applying “made whole” rule so as to preclude insurer from pursuing subrogation in accordance with the unambiguous subrogation provisions of insurance contract -- Florida law does not appear to recognize affirmative right or cause of action by an insured against its insurer to be made whole beyond the payment of insurance policy proceeds

30 Fla. L. Weekly D182b

Insurance -- Automobile collision -- Automobile insurer will not be held to have violated made-whole doctrine where it returns to its contributorily negligent insured a properly calculated prorated portion of insured's collision deductible after recovery in a subrogation claim -- Order granting class certification to group of insureds reversed

30 Fla. L. Weekly D43a

Insurance -- Automobile collision -- Subrogation -- Actions against insurers alleging insurers violated “made-whole” doctrine by returning only a portion of deductible after insurers recovered from third parties' insurers an amount less than insurers had paid to insureds -- Where insurers received less than total recovery on their subrogation claims because insureds were found to be comparatively negligent and legally responsible for portion of the harm done, insureds were not entitled to receive windfall of being totally absolved from liability -- Insureds were made whole where insurers returned deductibles reduced by the percentage the insureds were found to be negligent

30 Fla. L. Weekly D31a

Insurance -- “Betterment” deductions -- Unambiguous terms of policy permitted insurer to deduct from its payment to insured the depreciation of the repaired or replaced parts

30 Fla. L. Weekly D2447a

Insurance -- Automobile -- Cancellation of policy -- Where insurer notified insured that a higher premium was due, properly notifying insured of insured's options, and insured failed to respond, insurer's cancellation of policy after insured's failure to respond was effective although insurer returned the unearned premium on the policy to a premium finance company rather than to the insured

30 Fla. L. Weekly D1239b

Attorney's fees -- Insurance -- No-fault -- Litigating applicability of multiplier involves litigating amount of fee rather than issue of entitlement to fees -- Accordingly, in action for no-fault benefits when insured has recovered damages and insurer concedes entitlement to reasonable attorney's fees and costs, insured may not be awarded attorney's fees for successfully litigating whether a multiplier is applicable

30 Fla. L. Weekly D1885a

Insurance -- Commercial general liability -- Action by insured contractor and its surety against primary and excess insurers for judgment declaring that provisions of commercial general liability policies required defendants to defend and indemnify contractor and surety for damages to golf course constructed by contractor -- Although coverage allowed under “product-completed operations hazard” exception to “your work” exclusion in policies does not apply to “work that has not yet been completed or abandoned,” trial court erred in entering summary judgment for defendants where there was genuine issue of material fact as to whether damage to golf course occurred before or after insured contractor completed its work on the project -- Attorney's fees -- Surety is entitled to award of appellate attorney's fees under section 627.248, Florida Statutes (2000), conditioned upon ultimate entry of judgment in favor of contractor and surety on remand -- Where surety properly makes payment to correct defective construction or to complete construction project undertaken by its principal, surety becomes subrogated to rights and remedies of its principal, and is entitled to award of fees under statute -- Conflict certified

30 Fla. L. Weekly D235b

Insurance -- Attorney's fees -- Proposal for settlement -- Error to strike insurer's proposal for settlement in action under valuable items policy

30 Fla. L. Weekly D5b
890 So. 2d 1163

Attorney's fees -- Insurance -- Prevailing party -- Under circumstances insured was entitled to attorney's fees under section 627.428 after insurer voluntarily dismissed its declaratory judgment action seeking determination as to whether there was a duty to defend or coverage -- Insurer's voluntary dismissal of declaratory action was functional equivalent of a confession of judgment or verdict in favor of insured where insurer actually provided insured a defense and coverage in separate tort litigation by defending insured with reservation of right to deny coverage, filing separate declaratory relief action, and while declaratory action was pending, resolving tort claim, following small judgment in favor of claimant which was less than offer of judgment, by stipulation for dismissal with prejudice

30 Fla. L. Weekly D1585d

Attorney's fees -- Insurance -- Insured prevailing in action against insurer -- Attorney's fees award reversed because underlying judgment was reversed on appeal

30 Fla. L. Weekly D2359a

Insurance -- Attorney's fees -- Insured's action against insurer -- No abuse of discretion in dismissing with prejudice declaratory judgment action in which insured had sought declaration of rights under policy and in which insured argued that insurer's settlement of third-party claim against insured, which insurer had defended under a full reservation of rights, resulted in a confession of judgment in the independent declaratory judgment action, thereby entitling insured to award of attorney's fees -- In settling with third party, insurer did not “decline to defend its position” in the pending declaratory action initiated by insured -- Insured was not forced to sue insurer to be provided a defense -- Instead, it appropriately provided defense under reservation of rights -- When insurer settled claim on behalf of insured within its policy limits, thereby protecting insured from financial exposure, coverage issue became moot, as trial court found

30 Fla. L. Weekly D1228a

Insurance -- Professional liability -- Attorney's fees -- Where insured was defendant in tort action, insured tendered lawsuit to insurer, insurer filed declaratory judgment action, insurer voluntarily dismissed declaratory judgment action without prejudice, and insurer settled underlying lawsuit, trial court erred in denying insured's motion for attorney's fees -- Actual rendition of order or decree is not an absolute prerequisite to an insured's entitlement to attorney's fees under section 627.428(1) -- For purposes of statute, whether voluntary dismissal is “functional equivalent of a confession of judgment or verdict in favor of the insured” does not turn on order of voluntary dismissal of a declaratory action against an insured and the settlement of a claim against the insured; rather, fact that dismissal and settlement are related to each other is enough to trigger operation of statute

30 Fla. L. Weekly D466a

Attorney's fees -- Offer of settlement -- Under unique circumstances of case, offer of settlement made by insurer to two insureds in action filed by insureds following insurer's denial of their claim against their homeowner's policy was not invalid for failing to apportion amounts attributable to each insured -- Plaintiffs' claims were unified, not separate and distinct, plaintiffs were represented by the same lawyer, and there was no conflict of interest between the plaintiffs -- Good faith -- No abuse of discretion in finding that offer off $30,000 in settlement of claim for loss in excess of $300,000 was made in good faith after extensive discovery and after insurer received documentation which it claimed would support its belief that insureds misrepresented material facts regarding their insurance claim by altering receipts for items claimed as a loss, a fact which was borne out during trial and resulted in defense verdict

30 Fla. L. Weekly D1125a

Attorney's fees -- Proposal for settlement -- Insurance -- Uninsured motorist -- Plaintiff's failure to plead and move for attorney's fees within 30 days of jury verdict did not preclude attorney's fees award where appellate court reversed final judgment, including amount awarded for fees, thereby requiring trial court to enter new final judgment upon remand -- Thirty-day period did not begin to run until entry of new final judgment -- Error to award fees for time prior to entry of jury's verdict where award was entered without notice to insurer and failed to articulate both reasonable amount of hours expended and reasonable hourly rate -- No error in amount awarded for work performed subsequent to entry of jury's verdict, since insurer was on notice of motion for fees, and court determined number of hours reasonably expended and reasonable hourly rate, neither of which were objected to by insurer

30 Fla. L. Weekly D2513e

Contracts -- Attorney's fees -- Insurance -- Torts -- An attorney and client may enter into a single representation agreement which anticipates both a negligence action against tortfeasor and a breach of contract action against client's insurance carrier and which provides separate agreements as to amount of attorney's fees which can be awarded for these different actions -- When such an agreement exists, attorney's fees to be awarded for one action cannot be determined by or limited to the amounts that might have been awarded if the parties had brought a different action -- Instead, amount of attorney's fees will be determined based on provisions of the representation agreement relating to the type of action actually at issue -- In case at issue, fee agreement between attorney and client clearly provided for an award of a “reasonable fee” to be determined by the court should client prevail in a no-fault action against insurer -- Trial court erred in limiting attorney's fees to a percentage of no-fault recovery

30 Fla. L. Weekly D2648a

Insurance -- Automobile liability -- Attorney's fees -- Where insurer filed declaratory judgment action to determine its rights and duties under policy, and subsequently settled claim against insured in a settlement that did not include a reservation of rights concerning attorney's fees and dismissed the declaratory judgment action, insurer was properly held liable for insured's attorney's fees, even though insured was convicted of insurance fraud

30 Fla. L. Weekly D552a

Insurance -- Life -- Attorney's fees -- Where insurer did not pay benefits under life insurance policy within 60 days after receipt of proof of loss forms and related documents, beneficiary filed complaint seeking damages and attorney's fees 86 days after proof of loss was received by insurer, and insurer sent payment to beneficiary six days after complaint was filed, but before service of process, insurer was liable for payment of attorney's fees -- Payment of benefits constituted substantial equivalent of confession of judgment -- Fact that insurer was unaware of lawsuit at time of payment does not defeat insurer's obligation to pay attorney's fees -- Trial court erred in entering summary judgment finding that insurer was not liable for attorney's fees

30 Fla. L. Weekly D2719d

Attorney's fees -- Multiplier -- Question certified whether, in light of the supreme court's decision in Sarkis v. Allstate Insurance Company, a multiplier may be applied to enhance an award of attorney's fees granted under a fee-shifting statute such as section 627.428, Florida Statutes (2002)

30 Fla. L. Weekly D1677b

Attorney' fees -- Insurance -- Question certified whether in light of the Supreme Court's decision in Sarkis, a multiplier may be applied to enhance an award of attorney's fees granted under a fee-shifting statute such as section 627.428, Florida Statutes (2002)

30 Fla. L. Weekly D1434a

Attorney's fees -- Appellate fees -- Plaintiff entitled to appellate attorney's fees reasonably expended in defending issue which raised question regarding entitlement of plaintiff to trial court attorney's fees

30 Fla. L. Weekly D793a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 30 Fla. L. Weekly D1434a

Insurance -- Uninsured motorist -- Attorney's fees -- Multiplier -- Trial court did not err in using 1.5 multiplier in awarding attorney's fees to insured who recovered judgment in action against insurer to recover uninsured motorist benefits -- 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)? -- Insured is not entitled to appellate attorney's fees incurred in insurer's appeal of order granting attorney's fees -- Time spent litigating appropriateness of a fee multiplier goes to amount of fees rather than entitlement to fees, and fees are not awardable under section 627.428 for litigating amount of fees -- Question certified: Under section 627.428, Florida Statutes, is an insured entitled to recover from its insurer attorney's fees incurred in successfully litigating entitlement to an attorney's fee multiplier?

30 Fla. L. Weekly D2762c

Attorney's fees -- Insurance -- No abuse of discretion in awarding 2.0 multiplier on attorney's fee award in action for determination of coverage under policy

30 Fla. L. Weekly D1129a

Insurance -- Personal injury protection -- Attorney's fees -- Where county court awarded insured attorney's fees in his successful personal injury protection action against insurer, insurer appealed the fee award to circuit court appellate division, and appeal was dismissed for failure to file initial brief, circuit court departed from essential requirements of law in denying award of appellate attorney's fees to insured on ground that insured did not prevail on the merits of the appeal -- Prevailing party clause in appellate fee portion of section 627.428, which mandates a fee award “in the event of an appeal in which the insured or beneficiary prevails” includes cases in which an insurer commences an appeal, but the appeal is then dismissed without a decision on the merits

30 Fla. L. Weekly D2598b

Insurance -- Personal injury protection -- Attorney's fees -- Appellate -- An insured is not entitled to appellate attorney's fees under section 627.428(1) when it loses an appeal, even if the insured ultimately prevails at a trial on the merits -- Conflict certified

30 Fla. L. Weekly D2252c

Insurance -- Personal injury protection -- Attorney's fees -- Appellate -- Where an insured loses an appeal, but the matter is remanded for a new trial, the insured is not entitled to any appellate attorney's fees for the appeal which the insured has lost -- Conflict certified

30 Fla. L. Weekly D1356a

Insurance -- Personal injury protection -- Attorney's fees -- Circuit court acting in appellate capacity departed from essential requirements of law by awarding appellate attorney's fees to assignee of PIP benefits where the only issues on appeal were calculation of hours spent and use of multiplier in arriving at fee to be awarded, both of which related only to amount of fees, not entitlement to fees

30 Fla. L. Weekly D1953a

Attorney's fees -- Insurance -- Personal injury protection -- Circuit court acting in its appellate capacity departed from essential requirements of law by granting assignee's request for attorney's fees for time spent litigating necessity of contingency risk multiplier, an issue which goes to amount of, and not entitlement to, attorney's fees -- Circuit court departed from essential requirements of law by granting request for appellate attorney's fees based on finding that insurer waived objection to the appellate fees by failing to file response to attorney's fee motion within ten days following service -- Failure to serve response to motion for attorney's fees does not create an independent basis for an attorney's fee award

30 Fla. L. Weekly D2110b

Insurance -- Automobile liability -- Notice of claim -- Failure to cooperate -- Error to enter summary judgment for insurer in action for coverage and liability insurance proceeds on basis that insured breached insurance contract by entering into settlement agreement with injured party after insurer agreed to defend insured under reservation of rights, and that insured failed to provide insurer with timely notice of lawsuit against insured -- Material question of fact exists as to whether insurer was prejudiced by insured's delay in notifying insurer, especially where insurer received notice of lawsuit prior to execution of settlement agreement -- There is genuine issue of fact as to whether letter from insured to insurer constituted a rejection of insurer's offer of defense under reservation of rights -- If insured's letter constituted a rejection of defense under reservation of rights, insured would have been entitled to retain its own attorney to defend against claim without jeopardizing its right to seek indemnification from insurer

30 Fla. L. Weekly D1671a

Insurance -- Underinsured motorist -- Action against insurer arising out of accident with underinsured motorist, claiming damages based upon insured's injuries which plaintiff contended included meningitis contracted by insured after the accident -- No abuse of discretion in precluding insured's counsel from reopening voir dire to ask additional questions regarding the believability of a low impact collision triggering catastrophic injuries -- Counsel had full opportunity to examine jury, and insured has not made any showing of prejudice -- No abuse of discretion in excluding portion of insured's expert's medical opinion, arrived at only two weeks before trial, that automobile accident delayed diagnosis of insured's meningitis because doctors attributed insured's symptoms to injuries caused by the accident rather than meningitis, which theory was also based upon notion that accident's force caused release of an encapsulated fungus which, in turn, caused meningitis and insured's ensuing disability -- Any error in excluding this testimony was harmless because jury found that accident was not a legal cause of any injury to insured, and expert's theories all depended on some impact in the accident causing injury to insured -- Any error in overruling objection to defendants' reference to facts outside evidence in closing argument was harmless

30 Fla. L. Weekly D590b

Insurance -- Uninsured motorist -- Argument -- UM carrier contending that inflammatory closing argument comparing defense to Iraqi Minister of Information justified new trial and that repeated references to insured's payment of premiums and insurer's failure to pay violated pretrial order on insurer's motion in limine -- Because no objection was made at trial, only objections raised in motion for new trial will be considered on appeal -- Under supreme court's decision in Murphy v. International Robotics Systems, Inc., which set forth standard to be applied by trial court when considering unobjected-to argument upon a motion for new trial, party must establish that challenged argument was improper, harmful, incurable, and such that it so damaged fairness of trial that public's interest in system of justice requires new trial -- Trial court did not abuse its discretion by denying insurer's motion for new trial where improper comments did not satisfy all of the Murphy factors

30 Fla. L. Weekly D180a

Insurance -- Homeowners -- Appraisal -- Appeals -- Insurer is not entitled to certiorari review of trial court order denying insurer's motion to delineate scope of appraisal, in which insurer contended that insureds were seeking damages for repair expenses that were not covered by policy, because any error in trial court's order can be corrected by way of postjudgment appeal -- Submission of claim to appraisal does not foreclose insurer from challenging an element of loss as not being covered by policy in underlying breach of contract action

30 Fla. L. Weekly D962c
900 So. 2d 676

Attorney's fees -- Insured's action against insurer for losses to MRI machine -- Award to insured of attorney's fees and costs incurred in connection with drawn-out appraisal process necessitated by insurer's disputed value estimation was proper -- Insured's involvement of formal judicial system was not unnecessary -- Given that goal of section 627.428(1) is to place insured in place it would have been if insurer had seasonably paid claim without causing insured to retain counsel and incur obligations for attorney's fees, taken in conjunction with rule of law that insured could have recovered any attorney's fees incurred in reaching settlement of lawsuit had a settlement been reached, court sees no rationale for not extending statute to cover award of attorney's fees associated with appraisal in instant case

30 Fla. L. Weekly D600a

Insurance -- Cargo insurance -- Misrepresentations on application -- Trial court properly entered summary judgment for insurer in insured's action to recover policy limit under cargo insurance policy where insured failed to truthfully answer question on insurance application as to whether any insurer had refused to renew or had cancelled policy issued to insured within past five years -- Materiality of misrepresentation -- Less stringent “knowledge and belief” standard set forth in insurance application controls over strict standard set forth in statute -- Even under less stringent “knowledge and belief” standard, trial court correctly granted summary judgment in favor of insurer because there was no dispute that insured had actual knowledge of non-renewal and cancellation which was not disclosed -- Insurer's failure to comply with Claims Administration Statute by failing to timely notify insured of coverage defense by registered or certified mail is irrelevant because insured's material misrepresentation rendered policy null and void from the date of inception

30 Fla. L. Weekly D1283b

Insurance -- Motor truck cargo liability -- Duty to defend -- Provision of policy stating that insurer “reserves the right as its sole option to defend such action” does not unambiguously mean that insurer has no duty to defend any claim that might be brought against insured that is arguably covered under policy -- Policy is ambiguous with respect to insurer's duty to defend, and ambiguity must be resolved against insurer -- Remand for determination of whether allegations of complaint against insured fall within terms of coverage of insurance policy

NOT FINAL VERSION OF OPINION
Subsequent Changes at 30 Fla. L. Weekly D1283b

30 Fla. L. Weekly D845b

Insurance -- Motor truck cargo liability -- Duty to defend -- Provision of policy stating that insurer “reserves the right as its sole option to defend such action” does not unambiguously mean that insurer has no duty to defend any claim that might be brought against insured that is arguably covered under policy -- Policy is ambiguous with respect to insurer's duty to defend, and ambiguity must be resolved against insurer -- Remand for determination of whether allegations of complaint against insured fall within terms of coverage of insurance policy

30 Fla. L. Weekly D2349a

Insurance -- Windstorm -- Appraisal -- Appraisal after insured and insurer agreed that policy provided coverage for windstorm damage to insured property but disagreed as to whether windstorm caused all the claimed damage or just part of it and disagreed as to cost to repair claimed loss -- Where insurer agreed that there was a covered loss, but disagreed as to the amount of the loss, it was permissible for appraisal panel to decide causation issues, because causation was not a coverage question, but rather an amount-of-loss question -- Court erred in confirming appraisal award where umpire, appointed by court after appraisers could not agree as to amount of covered loss, exceeded duties assigned to it and made findings specifically reserved for determination by court -- Umpire did not comply with trial court order that umpire “derive at an amount of the total loss, and shall further breakdown the amount of the loss by virtue of excluded causes” -- In contravention of trial court order, umpire did not fulfill tasks assigned to it and instead made factual findings as to coverage, an issue not in dispute and an issue it lacked authority to resolve; and causation, an issue which pursuant to trial court's order, trial court had reserved for itself

30 Fla. L. Weekly D329a

Insurance -- Personal injury protection -- Ambiguous provision in policy -- Where insurer asserted as one basis for its refusal to pay for insured's medical treatment that insured failed to attend a contractually compulsory examination under oath, and county court entered partial summary judgment for insured on that issue on the ground that the compulsory EUO language in the policy was ambiguous, circuit court departed from clearly established principles of law in reversing summary judgment on the ground that question of whether an ambiguity exists in an insurance contract is one for the jury to decide rather than the court -- It is well settled in Florida that the initial determination of whether a contractual term is ambiguous is a question of law for the court -- Certiorari granted -- Portion of circuit court opinion that reversed partial summary judgment quashed

30 Fla. L. Weekly S203a

Insurance -- Homeowners -- All risk policy -- Exclusions -- Earth movement -- Blasting activities -- Absent specific language in policy to the contrary, an earth movement exclusion is limited to damage caused by natural phenomena -- Where all risk policy excluded damage caused by “earth movement” from coverage, policy did not include a lead-in provision excluding coverage for damage resulting from earth movement regardless of its cause, and policy expressly defined term “earth movement” to mean “earthquake, including land shock waves or tremors before, during or after a volcanic eruption; landslide; mine subsidence; mudflow; earth sinking, rising or shifting,” policy did not exclude coverage for damage caused by blasting

30 Fla. L. Weekly D750a

Insurance -- All risk -- Defective design exclusion -- Ensuing loss exception to defective design exclusion -- Where all risk policy contained exclusion for cost of making good defective design or specifications, it did not provide coverage for insured's business interruption and extra expense losses after defects in design and installation of “wet” end to insured's paper mill caused plant to be shut down -- Ensuing loss exception to design defect exclusion, which provided that “this exclusion shall not apply to loss or damage resulting from such defective design or specifications,” did not provide coverage for insured's business interruption and extra expense losses -- Under clear and unambiguous terms of policy, business interruption and extra expense losses are covered only if resulting from damage or destruction of property caused by a covered peril -- An ensuing loss exception is not applicable if the ensuing loss is directly related to the original excluded risk

30 Fla. L. Weekly D1017a

Administrative law -- Department of Financial Services -- Licensing -- Revocation -- Insurance license -- Error to deny licensee's motion to set aside default revocation, entered when licensee failed to request administrative hearing within 21 days of receipt of administrative complaint, where factual issues were raised in motion and accompanying affidavit which should have been resolved via an administrative hearing -- Licensee made allegations which could create situation where doctrine of equitable tolling of his obligation to timely respond to administrative complaint might be applicable where he stated that he believed there was no need to request administrative proceeding while he awaited response from agency to his inquiry letter concerning the complaint and that, since he had only the initials of the customers at issue, he was unable to analyze allegations against him and accurately respond to administrative complaint prior to expiration of 21-day period -- Remand for administrative hearing

30 Fla. L. Weekly D156a

Torts -- Insurance company's claim against insurance adjuster with which it contracted to service insurance claims, alleging breach of contract, fraudulent concealment, and breach of fiduciary duty in connection with mishandling of settlement opportunities in case in which an injured person sued insured -- No error in directing verdicts on claims of fraud and breach of fiduciary duties, which resulted in elimination of punitive damages claims, where contract between parties did not impose any fiduciary duties upon adjuster, and there was no evidence that adjuster's failure to notify insurance company of verdict for sixty-six days was anything other than negligent -- No error in denying motions for directed verdict and new trial on breach of contract count -- No abuse of discretion in denying defendant's motion in limine and objections to testimony of plaintiff's insurance expert -- Prejudgment interest -- Where final judgment reserved jurisdiction to award prejudgment interest, insurance company filed notice of appeal the next day but never moved to relinquish jurisdiction to permit trial court to award prejudgment interest, claim for prejudgment interest was waived