2006

31 Fla. L. Weekly D897a

Workers' compensation -- Insurance -- Assessments on workers' compensation carriers for Special Disability Trust Fund and Workers' Compensation Administration Trust Fund based on net premiums written and net premiums collected -- Department of Labor and Employment Security was not estopped, because of communications between carrier's agents and Department personnel, from challenging carrier's deductions from net premiums of ceded premiums paid by carrier to reinsurers and brokerage fees and commission paid to agents -- Carrier did not establish exceptional circumstances necessary for application of equitable estoppel against governmental entity

31 Fla. L. Weekly D724a

Torts -- Workers' compensation immunity -- Trial court properly dismissed complaint against workers' compensation insurance carrier alleging that carrier acted in bad faith during course of claims process, where complaint did not allege intentional and outrageous conduct that would establish an independent tort

31 Fla. L. Weekly D802a

Insurance -- Attorney's fees -- Workers' compensation -- Section 627.428, Florida Statutes, which authorizes award of attorney's fees for insureds who successfully sue their insurers, does not authorize attorney's fees in workers' compensation cases -- Award of attorney's fees incurred in rule nisi proceeding was proper

31 Fla. L. Weekly D1835d

Insurance -- Windstorm -- Contracts -- Agreement for deed -- No error in requiring insured to release proceeds from windstorm insurance settlement to mortgagee, who intended to apply the entirety of the insurance proceeds to the principal amount due on the mortgage, even though this would make it difficult or impossible for insured to repair the significant structural damage to his mobile home -- Where agreement for deed required borrower to keep buildings on property “insured against loss by fire, windstorm and tornado” to the extent of the value of such improvements and agreed “that the proceeds of any such insurance policies shall be applied to the payment of the indebtedness herein, or at the option of the first party, to the repair or replacement of the improvements upon said property,” as long as the outstanding indebtedness on the agreement exceeded the amount of the insurance settlement, the agreement gave the lender the sole and unfettered right to decide whether an insurance payment for windstorm damage was to be used to repair the property

31 Fla. L. Weekly D1798a

Insurance -- Uninsured motorist -- Evidence -- Payment of personal injury protection benefits -- Insurer's payment of PIP benefits in connection with an automobile accident is not relevant to issue of whether medical expenses claimed in insured's uninsured motorist claim are reasonable, necessary, or connected to the accident, and evidence of such payment is not admissible for that purpose -- Error in admission of evidence of insurer's payment of PIP claims in insured's action for underinsured motorist benefits was harmless where issue was not a feature of the trial, and evidence was sufficient to support insured's claim that she had herniation in spinal discs as result of accident which necessitated surgery

31 Fla. L. Weekly D1433a
929 So. 2d 702

Insurance -- Uninsured motorist -- Court did not err in awarding underinsured motorist insurer a setoff against jury verdict in insured's favor for payment made to insured by tortfeasor's automobile insurance carrier, where the jury award duplicated the benefits insured received from tortfeasor's insurer -- Jury's award was a total award even though jury found there was no permanent injury and made no monetary award for non-economic damages -- Award of no damages for insured's pain and suffering was not erroneous where insured failed to demonstrate that she suffered permanent injury as result of accident

31 Fla. L. Weekly D964a

Civil procedure -- Dismissal -- Fraud on court -- Court abused discretion in dismissing action for uninsured motorist benefits for fraud on court based on discrepancies between plaintiff's discovery responses and evidence developed by defendant in its investigation of plaintiff's claim

31 Fla. L. Weekly D776c

Insurance -- Uninsured motorist -- Limit of coverage -- Each person/each accident -- Pain and suffering damages suffered by insured's wife and child as consequence of witnessing the death of insured in an Alabama automobile accident -- Wife and child's pain and suffering damages, which were independently recoverable under applicable tort law of Alabama as part of their own bodily injuries arising from the accident, were subject to the “each accident” limit of coverage rather than the “each person” limit of coverage -- Trial court properly rejected insurer's claim that proceeds available for wife and child's pain and suffering damages under policy's coverage provisions were exhausted when insurer paid husband's estate the policy limits for bodily injury for “each person”

31 Fla. L. Weekly D1320a

Insurance -- Uninsured motorist -- Error to fail to limit judgment on UM claim to policy limits where there was no basis pleaded or litigated in case for damages greater than UM coverage afforded by insurer -- Insureds did not include claim for bad faith in their complaint, but asserted only a claim for UM benefits under specified policy number -- Reference to separate umbrella/excess coverage policy in response to insureds' counsel's request for information under section 627.4137 not basis for reading excess coverage limits into UM coverage -- With respect to insureds' contention that they did not know limits of UM policy, as parties to both UM and umbrella policies, insureds were charged with knowledge of policies' contents and were bound by policies' terms -- Assuming that it was somehow necessary for insurer to offer evidence as to amount of UM policy limits, there was nothing improper or insufficient about its post-verdict affidavit -- Remand with instructions to reduce judgment to UM policy limits

31 Fla. L. Weekly D1951a

Insurance -- Business automobile policy -- Uninsured motorist -- No error in holding that underinsured motorist coverage provided by insurer on a business automobile insurance policy issued to unincorporated business did not provide coverage for the business owner's minor son when, as a pedestrian, he was struck by an underinsured motorist -- A business automobile insurance policy issued in Florida insuring exclusively business or commercial vehicles is not statutorily compelled to utilize a definition of “insured” that would provide uninsured or underinsured motorist coverage to a family member of the owner of the insured commercial vehicle when the family member is struck as a pedestrian, and policy at issue did not voluntarily provide coverage for this claim -- If insureds desired to have higher limits of uninsured motorist coverage, they were free to purchase that coverage on their family automobiles

31 Fla. L. Weekly D1411b

Insurance -- Uninsured motorist -- Claim arising out of accident which occurred when insured became involved in automobile chase of criminal suspect while he was on duty as deputy sheriff -- Future medical and wage benefits -- Setoff -- Future workers' compensation benefits -- Bifurcation of trial -- No error in refusing to bifurcate trial of uninsured motorist insurer from that of negligent motorist -- With respect to claim that trial court should have limited testimony and evidence describing negligent motorist's criminal conduct, to the extent that any irrelevant evidence was admitted over objection, error was harmless -- Damages -- Court is not authorized to give UM insurer a set off for future medical and wage benefits that are likely to be available for insured under workers' compensation coverage

31 Fla. L. Weekly D2818a

Insurance -- Uninsured motorist -- Bad faith -- Failure to disclose and pay benefits -- Trial court departed from essential requirements of law in allowing insured's statutory bad faith claim to proceed without prior determination of liability and extent of damages allegedly owed on insurance contract -- However, insurer failed to show that it would suffer irreparable harm that cannot be adequately remedied on appeal

31 Fla. L. Weekly D2495a
939 So. 2d 1113

Insurance -- Uninsured motorist -- Bad faith -- Discovery -- Claims file -- Attorney-client privilege applies in first-party bad faith action -- Question certified: Does the Florida Supreme Court's holding in Allstate Indemnity Co. v. Ruiz, 899 So. 2d 1121 (Fla. 2005), relating to discovery of work product in first-party bad faith actions brought pursuant to section 624.155, Florida Statutes, also apply to attorney-client privileged communications in the same circumstances?

31 Fla. L. Weekly D1445a

Attorney's fees -- Offer of settlement -- Nominal offer -- Insurance -- Uninsured/underinsured motorist -- Insurer had reasonable basis for making nominal settlement offer in amount of $500 where at time it made offer, insurer was aware of insured's past medical expenses, but was also aware that insured had received a settlement in excess of $200,000 from owner of vehicle that had struck her vehicle from behind

31 Fla. L. Weekly D850a

Insurance -- Automobile liability -- Subrogation -- Insurer was not entitled to recover amount of bodily injury damages paid to injured party in subrogation action against defendant where insurer did not prove that it paid all of injured party's damages or that it obtained a release of defendant from the injured party

31 Fla. L. Weekly D238d

Insurance -- Subrogation -- Releases -- Error to grant motion for summary judgment in favor of defendants in subrogation action brought by insurer seeking to recover comprehensive collision insurance and uninsured motorist benefits paid to its insured on ground that insured, in settlement of separate lawsuit against the defendants, released all claims against defendants and agreed to indemnify them for any claim relating to the accident -- Settlement executed by insured cannot act as bar to action for subrogation by insurer against third-party tortfeasor where tortfeasor knew of insurer's perfected subrogation rights prior to entering into settlement agreement with insured

31 Fla. L. Weekly D654a
922 So. 2d 353

Insurance -- Uninsured motorist -- Stacking -- Class action for money had-and-received against insurer by insured who paid premiums for and received stacked uninsured motorist coverage during years when she owned only one automobile -- Because insurer complied with statutory requirement by giving insured option each year of choosing stacked or non-stacked coverage, and insured failed to select non-stacked coverage, complaint failed to state cause of action and was properly dismissed -- Further, an insured who purchases stacked coverage receives certain benefits even when only one vehicle is owned

31 Fla. L. Weekly D1315b

Insurance -- Uninsured motorist -- Attorney's fees -- Because insured did not reject uninsured/underinsured motorist coverage in writing, he was entitled to this coverage by operation of law -- Where insurer denied coverage which actually existed, insurer breached contract and could not rely upon contractual provision prohibiting the insured from settlement of claim with a responsible party in order to relieve itself of liability -- By virtue of insurer's breach, insured was relieved of obligation to notify insurer of its settlement with responsible party -- Insurer could not cure its breach by subsequent offer of UM coverage conditioned upon insured's payment of premium -- Attorney's fees -- No error in trial court's award of attorney's fees to insured -- No abuse of discretion in refusing to apply risk multiplier in determining amount of fee award

31 Fla. L. Weekly D257c

Insurance -- Settlement agreement -- Attorney's fees -- Retaining lien -- No error in directing insurer to wire settlement funds to trust account of insured's former counsel, as required by terms of settlement agreement -- No error in ruling that insurer properly transmitted settlement funds to former counsel by bank check -- Although insured claims that settlement agreement contemplated payment by an “immediately cashable” instrument, this argument is unavailing -- Settlement agreement provided for payment by either “bank check” or “cashier's check” and insured did not bargain for a more restrictive meaning for the term “bank check” -- No error in granting former counsel's motion for lien on funds -- Former counsel had right to retaining lien on all of client's property held by attorney, including money collected for the client, to cover balance due for legal work done for client

31 Fla. L. Weekly S882a

Insurance -- Performance bond -- Bad faith refusal to settle claim under performance bond -- Obligee of a surety contract qualifies as an “insured” and is therefore entitled to sue its surety for bad faith refusal to settle claims pursuant to section 624.155(1)(b)(1), Florida Statutes (1999) -- Language of section 624,155(1)(b)(1), Florida Statutes (1999), eliminates the requirement of proof of a general business practice when a plaintiff pursues a section 626.9541 claim through the right of action provided by section 624.155(1)(b)(1) -- Arbitration panel's findings that a surety's principal has breached its duty to the obligee and that the surety is obligated to the extent that its principal is bound satisfies the condition precedent to a section 624.155 bad faith refusal to settle claim -- Arbitration panel's finding that a surety's principal has breached its duty to the obligee and that the surety is obligated to the extent that its principal is bound does not bar a later claim against a surety for bad faith refusal to settle under section 624.155 under doctrine of res judicata -- Arbitration panel's denial of defendant's affirmative defense in breach of contract claim collaterally estops same defendant from raising those affirmative defenses in subsequent section 624.155 bad faith refusal to settle when the essential elements of collateral estoppel are present

31 Fla. L. Weekly S690b

Insurance -- Automobile liability -- Bad faith failure to settle -- An insurer's tender of the policy limits to an insured in response to the filing of a civil remedy notice under section 624.155 by the insured, after the initiation of a lawsuit against the insured but before entry of an excess judgment, does not preclude a common law cause of action against the insurer for third-party bad faith

31 Fla. L. Weekly D836a

Insurance -- Automobile liability -- Bad faith refusal to settle -- Insurer can be held liable for bad faith refusal to settle where demand for settlement made by assignee of insured owner of vehicle agreed to release insured owner but refused to release permissive driver of vehicle, who was an additional insured -- Trial court erred in entering directed verdict for insurer in bad faith action on ground that insurer could not enter into settlement and release which operated to totally exonerate insured owner without also releasing vehicle driver

31 Fla. L. Weekly D1645c

Insurance -- Automobile liability -- Bad faith -- Where insurer accepted that its insured was responsible for automobile accident as early as the next day and recognized the potential for an excess judgment about four months later, misplaced injured party's offer to settle which came approximately eight months after the accident, and then purportedly accepted settlement offer, but simply ignored some of the conditions of the offer without explanation and, in fact, did not inquire of insured regarding certain of these conditions, or even inform insured of settlement offer, until after suit was filed against insured, it cannot be said as matter of law that insurer fulfilled its duty to use same degree of care and diligence as a person of ordinary care and prudence should exercise in the management of his own business -- Error to enter summary judgment absolving insurer of bad faith claim brought by insured's bankruptcy estate

31 Fla. L. Weekly D2984c

Insurance -- Automobile liability -- Bad faith -- Declaratory judgment -- Accident involving injuries to multiple parties in which insurer exhausted policy limits by paying two claimants, initially denied a third claim because of the exhausted policy limits, and later tendered per person policy limit to third claimant, which third claimant rejected -- Error to enter summary judgment for insurer in its declaratory judgment action seeking a declaration that its tender extinguished any bad faith claim insureds might assert -- To extent that judgment was meant to bar first party claim of bad faith in settling claims of two claimants without investigating all claims to determine how to best limit insured's liability, judgment seems to be in error -- Judgment also seems to be in error to extent it purports to bar common law third party bad faith claim

31 Fla. L. Weekly D2467a Insurance -- Bad faith -- Failure to settle -- No abuse of discretion in denying motion for new trial based upon newly discovered evidence when, after trial, insurance company expert acknowledged errors in his testimony, or based upon cumulative errors -- Expert's admission that, contrary to his testimony at trial, his law firm did not use a release worded similarly to the one used by insurer in instant case, which released all persons from liability, was not material to issue of bad faith, but would be evidence to impeach expert's opinion -- Moreover, expert maintained that the fact that the questioned language had been removed from his firm's release years earlier did not change expert's opinion that the release was appropriate, nor did he waiver in his opinion that insurer did not commit bad faith -- Evidence regarding law firm's use of different form was not the type of evidence that would probably change result in case because insurer had already established that the attorney for claimant had crossed out over-inclusive language in another release submitted to him by the insurer on behalf of a different insured -- Cumulative error -- No merit to insured's contention that certain errors, when considered cumulatively, improperly attempted to shift focus to claimant's motives and conduct of claimant's attorney in refusing to settle, although correct focus should have been on motive of insurer in fulfilling its duty to insured -- Conduct of claimant and her attorney would be relevant to question of whether there was any realistic possibility of settlement -- None of the incidents individually were reversible, as they were either not error or were cured with instruction -- Incidents included statement by insurer's attorney in opening statement that claimant's attorney stood to earn $500,000 from case, suggesting he would be a biased witness with a financial interest in the outcome; cross-examination of claimant's attorney as to why attorney did not send request for insurance information to insurer and whether attorney had told claimant not to communicate with insurer; and response by insurer's expert to a jury-initiated question as to why, in expert's opinion, claimant's attorney didn't make insurer aware of attorney's appointment as claimant's legal representative, a question to which insured did not object, even though he had reviewed it prior to expert's being allowed to answer

31 Fla. L. Weekly D3126a Administrative law -- Office of Insurance Regulation -- Windstorm insurance -- Rates -- Refund of excessive rates -- Property owners' challenge to OIR's determination that there was no probable cause showing that Florida Windstorm Underwriting Association, predecessor in interest to Citizens Property Insurance Company, violated rating law in setting rates effective during period of July 2000 through June 2002 -- Collateral estoppel bars court's consideration of property owners' claims -- Instant case and prior litigation both involved challenge to validity of rate setting process -- Matter was fully litigated and resulted in final decision by appellate court -- District court's determination that it was unnecessary to reach the two arguments revived by property owners in present case, that arbitration of proposed rate increases was unconstitutional and that no public hearing was held, does not alter conclusion, as the appellate court's decision represented a final adjudication and disposal of overriding, dispositive issue, which was the validity of the rate-setting process

31 Fla. L. Weekly D13b

Insurance -- Personal injury protection -- Insured is entitled to reimbursement of transportation costs incurred in connection with medical treatment that is reasonably medically necessary

31 Fla. L. Weekly D2675a

Insurance -- Circuit court, acting in its appellate capacity, departed from essential requirements of law in concluding that medical provider was entitled as matter of law to recover from insurer the reasonable value of services rendered to insurer's insured based on quantum meruit theory, where provider did not plead, or otherwise brief during appeal from a dismissal order, that it was entitled to recover from insurer based upon a quasi-contract or quantum meruit theory

31 Fla. L. Weekly D665a

Insurance -- Personal injury protection -- Coverage -- Pedestrian injured by insured driving a rental car -- Circuit court erred in concluding that insurer of driver of rental car was required to provide PIP coverage to pedestrian under section 324.021(9)(b)(2) although policy at issue limited PIP coverage to persons occupying a covered vehicle or struck by a covered vehicle, and rental car was not a “covered vehicle” as defined by policy -- Appeals -- Certiorari -- Appellate court had certiorari jurisdiction because circuit court failed to apply correct law when it refused to follow controlling precedent on this issue and when it found PIP coverage based on a statute which was not applicable to PIP coverage

31 Fla. L. Weekly D1120a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Magnetic resonance imaging -- Inflationary cost adjustment -- 2003 amendment to section 627.736(5)(b)(5) clarified original legislative intent, which was that Consumer Price Index to be applied was the “Medical Care Item of the Consumer Price Index for All Urban Consumers in the South Region” -- Trial court erred in dismissing with prejudice provider's amended complaint seeking payment for MRI services, including inflationary cost adjustment

31 Fla. L. Weekly D135a

Administrative law -- Department of Health -- Rules -- Insurance -- Personal injury protection -- Administrative law judge properly determined that portion of administrative rule which included surface EMG testing in list of diagnostic tests deemed not to be medically necessary for use in treatment of persons sustaining bodily injury covered by PIP benefits was an invalid exercise of delegated legislative authority -- In determining whether challenged portion of rule was an invalid exercise of delegated legislative authority, ALJ properly considered, weighed, and based her findings upon all of the available evidence, regardless of whether the evidence was presented to Department during its rulemaking proceedings or was presented for the first time during section 120.56 hearing -- Statute required that inclusion of a test on list of invalid diagnostic tests be based on lack of demonstrated medical value and level of general acceptance by relevant provider community -- Final order clearly set forth finding that surface EMG testing has significant medical value as diagnostic tool with respect to treatment of patient suffering from injuries like those arising out of motor vehicle accident, and this finding was supported by competent substantial evidence -- Thorough review of final order reveals that judge's finding that surface EMG testing had reached level of general acceptance in relevant provider community was not limited to chiropractic community alone -- Finding regarding general acceptance of test within relevant provider community was supported by competent substantial evidence

31 Fla. L. Weekly D129a

Insurance -- Uninsured motorist -- Personal injury protection -- Coverage -- Beneficial ownership of vehicle -- Where insured owner of vehicle agreed to sell vehicle to buyer who took possession of the vehicle and agreed to pay monthly installments, and seller retained title to the vehicle and continued to maintain insurance policy on the vehicle, the buyer of the vehicle was the beneficial owner of the vehicle, and was not entitled to coverage under policy issued to seller -- Exclusive possession and control, taken at the time of the agreement, is key factor in determining beneficial ownership of vehicle, regardless of whether legal title remains in seller's name

31 Fla. L. Weekly D708a

Insurance -- Personal injury protection -- Timeliness of claim -- Where claim for treatment was not submitted to insurer within 30 days from date of treatment, insurer was not responsible for paying the claim, although the claim had been mistakenly billed to another insurer in a timely manner -- 2001 amendment to section 627.736(5)(b), Florida Statutes, is not applicable to claims for services rendered before October 1, 2001 -- Circuit court departed from essential requirements of law by affirming county court's summary judgment finding insurer responsible for payment of untimely claim

31 Fla. L. Weekly D2478a

Insurance -- Personal injury protection -- Payment of untimely claims submitted by provider of medical services -- Insurer is prohibited by statute from paying for services rendered by provider where provider has failed to submit bills within time frame mandated by statute and has included untimely claims in billing statement submitted to insurer -- Insurer's payment of untimely and improperly billed charges is to be characterized as gratuitous, and should not be considered as having been made against the limits of PIP policy -- Appellate division of circuit court departed from essential requirements of law when it ruled that insurer was not required to pay one provider's timely claim because the limits of PIP policy had been exhausted by payment of another provider's untimely claim

31 Fla. L. Weekly D1551a

Insurance -- Personal injury protection -- Bad faith -- Unfair settlement practices -- Punitive damages -- Insured alleging that insurer, as a general business practice and in wanton and willful disregard for rights of its insureds, fails to pay 80% of reasonable and necessary medical expenses and continually reimburses its insureds in amounts on less favorable terms than those required by statute and its policy of insurance, and further alleging that this conduct constituted unfair settlement practice in violation of section 626.9541(1)(i)(2) -- Error to dismiss claim for punitive damages because insured failed to allege additional compensatory damages other than those which had already been paid as result of settlement of underlying PIP lawsuit -- Insurer's settlement of its obligation to insured was equivalent of verdict in favor of insured and therefore insured's actions for benefits have been resolved in his favor -- Insurer's failure to pay benefits to insured under his policy within 60 days of receiving notice under section 624.155 entitled insured to make his claim for bad faith -- Allegation that insurer's acts occurred with such frequency as to indicate general business practice and that these acts were willful, wanton, malicious and in reckless disregard of rights of its insureds was sufficient to state cause of action for punitive damages

31 Fla. L. Weekly S358a
932 So. 2d 1067

Insurance -- Personal injury protection -- Attorney's fees -- Offer of judgment -- In a suit for benefits under a personal injury protection policy, an insurer may recover attorney's fees pursuant to the offer of judgment statute -- A suit for PIP benefits is a “civil action for damages” -- Validity of offer -- Insurer's proposal for settlement, which stated that it would be a full and final satisfaction and settlement of any and all of insured's claims and causes of action in, or arising out of the case, and provided that insured would be required to execute a “general release,” in favor of insurer, “which will be expressly limited to all claims, causes of action, etc., that have accrued through the date,” of insured's acceptance of the proposal, was too ambiguous to satisfy rule 1.442 -- Settlement proposals must clarify which of an offeree's outstanding claims against the offeror will be extinguished by any proposed release -- Because insurer's settlement proposal failed to eliminate ambiguity regarding insured's outstanding uninsured motorist clam, it cannot support award of attorney's fees

NOT FINAL VERSION OF OPINION
Subsequent Changes at 32 Fla. L. Weekly D548b

31 Fla. L. Weekly D2610a

Insurance -- Personal injury protection -- Attorney's fees -- Circuit court departed from essential requirements of law by affirming county court's award of fees to insured at rate of $400 per hour, with a 2.5 multiplier, in insured's action against insurer to recover for unpaid chiropractic treatments -- Where there was nothing to suggest that insured had any difficulty obtaining competent counsel to pursue his PIP claim, application of multiplier, resulting in a fee of $1,000 an hour for 193.75 hours, was a manifest injustice

31 Fla. L. Weekly D1930a

Insurance -- Personal injury protection -- Appellate attorney's fees -- Where insurer appealed county court order granting attorney's fees to insured, including a 1.5 multiplier, raising only the appropriateness of the multiplier, appellate division of circuit court departed from essential requirements of law in awarding insured appellate attorney's fees upon affirming county court order -- Party is not entitled to fees for time spent litigating the propriety of a fee multiplier -- Order awarding appellate attorney's fees as a sanction under section 57.105 for filing a frivolous appeal departed from essential requirements of law because it did not contain specific findings that appeal was not supported by facts or application of law

31 Fla. L. Weekly D1614a

Insurance -- Uninsured motorist -- Personal injury protection -- Arbitration -- Action against insurer which denied coverage on ground that policy was canceled at its inception because insured's check was returned for insufficient funds -- No error in entering judgment in favor of insured pursuant to arbitrator's decision where insurer did not timely file motion for trial following the nonbinding arbitration decision -- Issue of coverage may be determined by arbitrator when a trial court refers a case to nonbinding arbitration pursuant to section 44.103 -- Insurer's argument that it was not required to request a trial de novo because issue of coverage was never properly before the arbitrator is without merit

31 Fla. L. Weekly D626a

Attorney's fees -- Insurance -- Personal injury protection

31 Fla. L. Weekly D1102a

Declaratory judgments -- Jurisdiction -- Torts -- Medical malpractice -- Settlement -- Defendant/insured's appeal from partial final judgment which granted declaratory judgment on complaint filed by medical malpractice insurer, as intervenor, and approved settlement agreement entered into between insurer and plaintiffs without the consent of insured, finding that settlement was “in good faith and the best interests” of insured -- There was “bona fide, actual, present, practical need for a declaration,” notwithstanding policy provision which gave insurer the right to settle claim without insured's consent, because insured was clearly opposed to proposed settlement and felt that it violated her due process rights and was against her best interests, insurer wanted to proceed with settlement because it believed settlement was in good faith and in insured's best interests, and insurer had need to be relieved of its uncertainty over its right to settle and not have to risk a subsequent bad faith action by insured -- Due process -- Insured has not articulated any constitutionally protected interest of which she has allegedly been deprived -- There is no protected property interest because, absent special circumstances not present in instant case, there is no cause of action for bad faith when an insurance company settles within policy limits over insured's objection -- Even if insured had property interest sufficient to invoke protection of due process clause, insured was afforded due process because she was provided two full adversarial evidentiary hearings, one on motion to intervene and one on settlement approval

31 Fla. L. Weekly D3104d

Insurance -- Uninsured motorist -- Insured injured in collision with vehicle driven by uninsured motorist and subsequently injured in a different collision which occurred roughly two months later -- Trial court erred as matter of law when it granted motion for mistrial following jury's verdict on ground that insurer's attorney had asked a question implying that plaintiff had settled with a subsequent tortfeasor -- Statute which proscribes informing a jury about settlements involving joint tortfeasors does not apply to instant case involving subsequent tortfeasor -- Settlement between insured and party who was responsible for second collision was relevant because it was intended to explain why doctor bills which before the settlement had indicated they were attributable to the second accident began indicating after the settlement that treatment was attributable to the first accident -- Remand with directions to reinstate verdict

31 Fla. L. Weekly D973a

Insurance -- Uninsured motorist -- Limitation of actions -- Conflict of laws -- Error to find that plaintiffs' claim for UM benefits was barred by Georgia two-year statute of limitations applicable to personal injury actions -- Under Georgia law, applicable statute of limitations period is time allowed for service of the defendant in the underlying tort action, which is Florida's four-year tort statute of limitations

31 Fla. L. Weekly D1643a

Insurance -- Life -- Wrongful denial of premium waiver benefits -- Attorney's fees -- Where insured's initial claim for waiver of premium payments based on disability mistakenly disclosed that her debilitating illness predated the issuance of the policies at issue, although, in fact, the onset of her illness occurred well after the issuance of the policies, insurer's denial of claim based on the erroneous information provided by the insured did not rise to the level of wrongful conduct necessary to impose attorney's fee award against the insurer -- Court rejects insured's contention that section 627.428 imposes strict liability on an insurer for attorney's fees even in cases where a valid claim was not submitted

NOT FINAL VERSION OF OPINION
Subsequent Changes at 31 Fla. L. Weekly D1114a

31 Fla. L. Weekly D1073a

Administrative law -- Licensing -- Insurance agents -- Department of Financial Services properly revoked insurance agent's license for various statutory violations, including representing an unauthorized insurer -- DFS properly found that statute imposes an absolute bar against representing an unauthorized insurer and that statute does not include a knowledge element -- Burden was on licensee to establish affirmative defense that unauthorized insurer's plan which he sold was an ERISA-qualified plan and exempt from state regulation

31 Fla. L. Weekly D1499a

Insurance -- Liability -- Garage operations -- Coverage -- Incident occurring after expiration of policy period -- Injuries sustained in automobile collision, which occurred after expiration of policy period, by passenger in rear seat of vehicle sold by insured, which injuries were allegedly caused by failure of passenger's seat belt -- Where policy did not expressly state that covered loss must occur during policy period, trial court properly found policy ambiguous and construed its language against the insurer

31 Fla. L. Weekly D1145a

Insurance -- Liability -- Summary judgment -- Error to enter final declaratory judgment finding that insurer has duty to indemnify and defend insured, where there is issue of fact regarding the applicability of a policy exclusion

31 Fla. L. Weekly D800a

Torts -- Insurance -- Duty to defend -- Where liability insurer initially denied coverage for personal injury claim against insured and refused to defend on ground that insured's notice of claim was untimely, but, after insured had filed breach of contract action against insurer, insurer sent insured a letter stating that it was no longer denying coverage and that it agreed to assume insured's defense, trial court departed from essential requirements of law in entering order permitting insurer to take control of the defense, to select counsel of its own choosing, and to defend insured in the personal injury suit -- Insurer had duty to defend, and insured's late notice did not relieve insurer from that obligation where there was no prejudice as result of the late notice -- By its initial wrongful refusal to defend, insurer forfeited the right to defend and to control the defense

31 Fla. L. Weekly D2440b

Insurance -- Commercial general liability -- Notice of claim -- Error to grant summary judgment in favor of insurer with respect to late notice where, viewing evidence most favorably to insured and drawing every possible inference in insured's favor, there was genuine issue of material fact concerning when insured knew of mold problems in construction project and whether insured failed to timely notify insurer

31 Fla. L. Weekly D1956a

Insurance -- Commercial general liability -- Insured's action against insurer alleging, among other claims, breach of contractual duty to pay following insured's settlement of lawsuit against it -- Order merely granting insured's motion for partial summary judgment on this claim is not final and not appealable -- Rule 9.110(m), which states that judgments determining “ the existence or nonexistence of insurance coverage in cases in which a claim has been made against an insured and coverage thereof is disputed by the insurer may be reviewed either by the method prescribed in this rule or that in rule 9.130,” does not grant appellate court jurisdiction to entertain appeals from nonfinal orders

31 Fla. L. Weekly D169a

Insurance -- Liability -- Discovery -- Attorney-client privilege -- Waiver -- Action against umbrella insurance carrier after plaintiffs entered into Coblentz agreement in which defendants entered into consent judgment and assigned to plaintiff any cause of action they had against umbrella insurance carrier in exchange for plaintiff's covenant not to execute on defendants -- Injured party wishing to recover under Coblentz agreement must bring action against insurer and prove coverage, wrongful refusal to defend, and that settlement was reasonable and made in good faith -- There was no blanket waiver of attorney-client privilege on the question whether the Coblentz agreement was reasonable and in good faith -- However, provision of settlement agreement stating that corporate defendant had been advised by prior corporate counsel and individual defendants had been advised by their personal counsel that “in their opinion, the case, if tried before a jury, would result in a verdict of liability” did waive attorney-client privilege as to the stated opinion of counsel that verdict of liability would result if the case were tried -- Recitations elsewhere in settlement agreement that parties had consulted with counsel regarding underlying tort action and settlement agreements did not disclose the substance of the legal advice given and did not accomplish a waiver of attorney-client privilege

31 Fla. L. Weekly D1669a
932 So. 2d 516

Insurance -- Liability -- Where insurer disputed coverage for patent infringement and unfair competition claims brought against insured, but agreed to defend under reservation of rights, and appellate court found that claims were not covered by policy and remanded for trial court to determine insurer's right to recover costs of defense incurred while defending insured, trial court did not err in finding that insurer was entitled to its defense costs, fees, and expenses -- Sending reservation of rights letter and appointing mutually agreeable defense counsel is an appropriate action when an insurance company disputes coverage -- Insured agreed to defense counsel and accepted the defense provided and, accordingly, “necessarily agreed to the terms” on which insurer extended its offer to provide a defense

31 Fla. L. Weekly D2734a

Insurance -- Aircraft liability -- Coverage -- Parties who entered into contract with named insureds to use insured aircraft to fly passengers to Bahamas were covered under policy's omnibus insured provision, which provided coverage for “any person while using or riding in the aircraft and any person or organization legally responsible for its use” -- Insurer had duty to defend parties who were using aircraft in wrongful death actions against those parties by estates of passengers who were killed when the aircraft crashed because estates' wrongful death lawsuits alleged facts which potentially brought suits within policy coverage -- Insurer also had duty to defend parties because they were equitably subrogated to rights of passengers' estates by virtue of defending their lawsuits and settling the claims -- Trial court properly entered summary judgment adverse to insurer in its action seeking declaratory relief -- Trial court did not err in staying counterclaim for damages pending appellate court's resolution of coverage issue

31 Fla. L. Weekly D2795a

Insurance -- Legal malpractice -- Notice of claim -- Error to enter summary judgment for insurer in action to enforce default judgment which had been entered against insured on ground that insurer did not receive notice of claim prior to filing of action -- Generally, under governing Louisiana law, an insurer may not raise failure of its insured to give notice of accident or suit as valid defense to claim of an injured third party, but third party's right to recover may be defeated if insurer can show prejudice from insured's failure to comply with notice requirements of policy -- Disputed issue of fact exists regarding whether plaintiff had knowledge of existing malpractice insurance -- Although insurer alleged that it suffered prejudice as matter of law because it had been deprived of opportunity to defend lawsuit against its insured, question of material fact exists as to whether insurer would have defended suit against its insured -- Summary judgment is not appropriate where there exists factual dispute concerning whether insurer contributed to lack of notice through an allegedly defective cancellation of policy

31 Fla. L. Weekly S875c

Insurance -- Uninsured motorist -- Leased vehicle -- Lessees of vehicles are not entitled to uninsured/underinsured motorist coverage under policy issued to lessor under policy as reformed by court -- Reformation of policy based on mutual mistake -- Federal district court properly reformed “named insured” provision of policy to reflect intent of contracting parties to exclude coverage for lessees of vehicles -- Lessees are not entitled to coverage under other insurance clause in policy endorsement -- Only effect of endorsement is to afford liability coverage to lessor in the event it is exposed to damages due to an accident involving a vehicle leased through one of programs listed in endorsement -- Other insurance clause does not alter description of covered auto found elsewhere in policy or endorsement, and does not alter definition of an insured under uninsured motorist coverage section of personal auto supplement

31 Fla. L. Weekly D719a

Insurance -- Class actions -- Standing -- Plaintiff who had obtained ruling that she was entitled to uninsured motorist coverage under Rental Supplementary Liability Insurance Excess Policy issued by defendant has standing to file class action complaint seeking declaratory judgment that plaintiff and other similarly situated individuals are entitled to uninsured motorist coverage and damages -- To satisfy the requirement of standing, plaintiff must show that a case or controversy exists between plaintiff and defendant, and that such case or controversy continues from the commencement through the existence of the litigation -- Plaintiff has standing because a final judgment has not been rendered on her claim for damages or defendant's liability -- Whether plaintiff is a proper class representative or whether there exists similarity of claims between the named plaintiff and the class members are questions addressed not by principles of standing, but, rather, by the application of the requirements for class action certification

31 Fla. L. Weekly D3017c

Insurance -- Personal injury protection -- Coverage -- Rented vehicle -- Where party who was not related to named insured, but was identified as an additional driver on declarations page of policy, rented a vehicle from leasing company, listed party who was injured while driving vehicle as an additional driver under the rental agreement, and listed the policy number under portion of rental agreement providing the “valid and collectible liability insurance and personal injury protection insurance of any authorized rental or leasing driver is primary,” the policy did not provide coverage to the injured driver and her husband -- Since the injured parties are not named insureds, they are not entitled to coverage merely because they suffered damages while occupying a motor vehicle -- Injured parties are not covered under provision affording coverage to any person who occupies the insured motor vehicle because the rental car they occupied does not qualify as an “insured motor vehicle” as that term is defined in policy -- Coverage shifting language in rental car agreement could not serve to create coverage where policy never extended valid and collectible PIP coverage to injured parties -- Error to require insurer to provide PIP coverage to injured parties

31 Fla. L. Weekly D2004a

Insurance -- Premium financing -- Unlawful or excessive insurance premium -- Difference between amount paid by installment customers and discounted amount paid by customers who pay in full -- Insurer seeking certiorari review of circuit court order finding that its actuarially based paid-in-full discount was an illegal finance charge, contending that insured was first required to seek administrative relief with Office of Insurance Regulation before pursuing civil cause of action -- Insured was required to first seek relief with OIR, which has primary jurisdiction over setting of insurance rates -- Circuit court erroneously determined that insured was not required to do so and that it had jurisdiction to proceed -- Insurer will suffer irreparable injury which cannot be remedied by direct appeal because if it follows trial court's order and discontinues discount, as it will be violating OIR's approved premium rates and all of its paid-in-full customers will be required to pay higher rate, whereas if it continues to offer OIR approved rates, it will incur additional liability under trial court's order

31 Fla. L. Weekly D848c

Jurisdiction -- Forum non conveniens -- Insurer's declaratory judgment action regarding coverage provided by policy and duty to defend -- Location of witnesses is not important in dispute involving question of law -- Because neither party would be significantly undermined or favored by one forum over another, private interests are in equipoise -- Where coverage question in case has direct connection to class actions pending in Florida, public interest factor favors Florida as forum -- Trial court did not abuse discretion in denying motion to dismiss based on forum non conveniens

31 Fla. L. Weekly D211a

Insurance -- Personal injury protection -- Interest -- Delay in payment of medical benefits -- Class actions -- Medical provider lacked standing to bring class action on behalf of medical providers and insureds who were allegedly owed statutory interest pursuant to section 627.736(4), Florida Statutes (1994), on PIP benefits not timely provided by insurer where insurer did not owe statutory interest to provider -- On date original claim was purportedly submitted to insurer, it was undisputed that policy deductible had not been met and insurer was not required to make any payment until deductible had been met -- Insurer subsequently submitted its payment to provider within 30 days of receipt of resubmitted claim

31 Fla. L. Weekly D723a

Insurance -- Life -- Interest on death benefits -- Limitation of actions -- Action against insurer alleging that amount paid to beneficiary of life insurance policy failed to include the correct amount of interest on death benefits as required by section 627.4615, Florida Statutes, is governed by the four-year statute of limitations for statutory violations, and not the five-year statute of limitations applicable to contract claims -- Statutory provision regarding payment of interest on lump sum benefits is not required to be written into insurance policies

31 Fla. L. Weekly D2305a

Dissolution of marriage -- Life insurance -- Modification -- Former husband seeking to modify life insurance provisions of parties' settlement agreement, alleging that wife no longer has insurable interest in his life, which allegations were based on fact that one child has become emancipated, reducing his child support obligation to just under $31,000, and former wife has remarried, ending his alimony obligation; and further alleging that former wife had procured insurance policy on husband's life for $1 million -- Error to grant wife's motion to dismiss on ground that plain language of settlement agreement provided wife with an insurable interest on husband's life where agreement was ambiguous in this regard -- Former husband's petition asserted that parties' intent in allowing additional life insurance was for purpose of securing support obligation in excess of life insurance policy husband owned, the agreement was modifiable on this point, the former wife had $1 million policy on husband's life, husband was uncomfortable with this fact, former wife had financial motive to do him harm, and couple's relationship had been strained and absent affection; and taken as true, the petition states triable cause of action -- Error to deny husband's motion for rehearing, in which former husband asserted that, in dismissing case, court failed to consider totality of insurance provisions and intent of parties at time of execution of the agreement -- Remand for evidentiary hearing on merits with respect to parties' intent as to former wife's interest in maintaining insurance

31 Fla. L. Weekly D2341a

Contracts -- Insurance -- Asset purchase -- Appeal from final judgment awarding damages and prejudgment interest to Department of Financial Services, as receiver of insolvent self-insurance medical malpractice trust, in breach of contract action brought against defendant, a California-based insurance entity which entered into agreement whereby defendant acquired trust's offices, including its staff and relationships with its agents throughout Florida, and defendant agreed to pay trust business fees for each new insured and for cumulative profit generated by its Florida operations during specified period of time -- Trial court did not abuse its discretion by excluding testimony of defendant's “expert in the field of insurance industry transactions and custom and usage” where it was apparent that opinion was based on conversations with defendant's attorney and with an actuary at witness's consulting firm -- Excluding testimony based on witness's “suspicion” that opposing expert's calculations of cumulative profit did not take into account bulk reserves was also an appropriate exercise of trial court's discretion -- Notice -- No abuse of discretion in excluding expert testimony of another witness whom defendant never identified as an expert witness -- Defendant failed to show that this witness's curriculum vitae or summary of proposed expert testimony was furnished to plaintiff -- Court declines to consider whether trial court erred in excluding remaining expert's testimony because defendant did not proffer testimony, as is required in order to preserve issue of excluded evidence -- No abuse of discretion in denying motion for continuance filed a little more than one month before scheduled date of trial in case which had been pending for three and a half years

31 Fla. L. Weekly D77a

Insurance -- Insolvent insurers -- Preferential transfers -- Action by Pennsylvania insurance commissioner, in her official capacity as liquidator of insolvent insurer, seeking to recover preferential payments made by insurer to defendants under reinsurance agreement -- Arbitration -- Trial court properly found that liquidator who was suing on behalf of insurer's creditors was not a party to the reinsurance agreement and therefore not bound by arbitration clause in agreement

31 Fla. L. Weekly D992a

Insurance -- Inland marine -- Furniture warehouse policy -- Duty to indemnify -- Settlement -- Binding effect on insurer of Coblentz settlement/consent judgment negotiated between insured and claimant -- Where policy clearly provided that insured property was to be valued in an amount that would not exceed “the value as shown in tariff documents, bills of lading or shipping receipts if any,” and warehouse receipt and storage contract indicated a declared value of $35,070, there was no legal basis to impose liability on insurer in excess of $35,070, and insurer clearly fulfilled its duty to indemnify by tendering such amount -- Because there was no breach of duty either to defend or indemnify, it was error to find that insurer was bound by settlement agreement/consent judgment

31 Fla. L. Weekly D2350a

Insurance -- Hospital and healthcare facility liability -- Coverage -- Claims made policy with extended coverage for claims made after policy period where incidents giving rise to claims were reported to insurer as probable claim events during the policy period and within sixty days of the incident -- Trial court erred in finding that coverage was provided under policy for medical malpractice claims made after policy period where incidents giving rise to claims were not reported to insurer within sixty days of the incidents -- Court erred in determining that the sixty-day requirement for probable claim event coverage was a condition of coverage rather than a term defining the scope of coverage

31 Fla. L. Weekly D576a

Insurance -- Homeowners -- Repair and remediation of water damage and mold contamination -- Action by insureds against insurer which allegedly exercised its option to repair damage, alleging breach of contract and breach of fiduciary duty by insurer, brought after post-repair inspections indicated the need for additional remediation beyond the policy limits after insurer had informed insureds that remediation had been completed successfully -- Error to enter summary judgment in favor of insurer where genuine issues of material fact exist as to whether insurer and insureds created a new contract to repair, including who selected repair company to conduct mold remediation and whether additional mold discovered by insureds' consultant was from certain walls not included in original repair areas -- If new contract to repair was formed, issue of whether insurer breached this contract is issue of fact for jury to determine

31 Fla. L. Weekly D1324a
930 So.2d 756

Insurance -- Homeowners -- Policy providing all-risk coverage for dwelling and named-peril coverage for personal property -- Coverage -- Direct physical loss caused by named peril -- Mold damage to property sustained when water pipe leaked under home's foundation while homeowners were away on month-long vacation resulted from discharge of water, a named peril -- Mold damage was direct consequence of named peril because discharge of water set into motion a sequence of events proximately resulting in mold damage to homeowners' personal property -- Error to deny coverage for mold damage -- Where trial court found that claims for future additional living expenses and depreciation were not covered, trial court did not err in requiring homeowners to repay insurer for monies it tendered to insured for these items -- Payment for these items was not tantamount to confession of judgment -- In cover letter forwarding payment, insurer clearly indicated that payment was made because of a recent federal court decision, insurer tendered payment to avoid any claim for bad faith even though it disagreed with court's decision, and tender of payment did not prevent insurer from asking state trial court to rule on this issue of coverage -- No merit to insureds' contention that “all-risk” provision of section providing coverage for dwelling also applied to section providing coverage for personal property

31 Fla. L. Weekly D1198a

Insurance -- Homeowners -- Exclusions -- Bodily injury caused by “any dog owned or kept by you” -- Although policy defined “you,” as the named insured and spouse, it is a strained reading to suggest that insurer intended to exclude named insured and spouse from coverage for injuries resulting from an incident involving their dog while at the same time intending to provide coverage for named insureds' nine-year-old daughter who jointly owned the dog with them -- Reading exclusion from perspective of an ordinary person and in conjunction with rest of policy does not support finding that daughter had coverage that her parents did not enjoy -- Trial court erred in determining that policy provided coverage for injuries sustained by child who was bitten by dog while visiting insureds' nine-year-old daughter

31 Fla. L. Weekly D3164c
943 So. 2d 823

Insurance -- Homeowners -- Valued Policy Law -- Question certified: Does section 627.702(1), Florida Statutes (2004), referred to as the valued policy law, require an insurance carrier to pay the face amount of the policy to an owner of a building deemed a total loss when the building is damaged in part by a covered peril but is significantly damaged by an excluded peril?

31 Fla. L. Weekly D2679a
943 So. 2d 823

NOT FINAL VERSION OF OPINION
Subsequent Changes at 31 Fla. L. Weekly D3164c

Insurance -- Homeowners -- Valued Policy Law -- 2004 version of Valued Policy Law forecloses an insurer's challenge to the measure of damages in the event of a total loss -- Where total loss of home during hurricane was caused by both wind, a covered peril, and water, an excluded peril, insurer was liable for the total loss under the 2004 Valued Policy Law -- 2005 amendment to Valued Policy Law cannot be read as clarification of legislative intent animating its predecessor, since the amendment states that the amended statute is not to be applied retroactively to claims filed before enactment of the amendment

31 Fla. L. Weekly D2835a

Insurance -- Homeowners -- Bad faith -- Failure to settle -- Unfair claims practices -- Action against insurer who refused to pay full amount of policy following hurricane-related loss on ground that loss was caused by both wind damage, which was covered under policy, and flood damage, which was not covered -- Trial court departed from essential requirements of law in forcing insurer to defend against statutory claims before issue of coverage was fully resolved -- Although insurer's attorney conceded at hearing that insurer had some liability under policy, this did not settle question of how much coverage was due -- Even if insurer's admission of limited liability under Valued Policy Law meant that it was liable for full policy limits as to dwelling itself, extent of loss or damage under remaining coverage provisions, including other structures coverage, ordinance and law coverage, personal property coverage, and loss of use coverage, remains unsettled -- Insurer will suffer irreparable harm if forced to defend against both breach of contract and bad faith claims simultaneously -- Trial court has authority to abate statutory claims, rather than to dismiss them, if it appears that abatement would be in interest of judicial economy

31 Fla. L. Weekly D2658a

Attorney's fees -- Insurance -- Homeowners -- Error to deny statutory attorney's fees incurred by insured in defending declaratory judgment action initiated by insurer, which claimed it had no duty to defend or indemnify the insured -- Insurer's voluntary dismissal of its declaratory action conferred a benefit on the defendant insured in the form of representation in the underlying tort suit against insured

31 Fla. L. Weekly D459a

Insurance -- Homeowners -- Appeals -- Order compelling appraisal does not meet requirements for certiorari relief -- Order is not appealable as an order that determines the entitlement of a party to arbitration -- Appeal dismissed

31 Fla. L. Weekly D2220a
937 So. 2d 199

Insurance -- Appraisal -- Attorney's fees -- Error to confirm appraisal award and enter judgment where insurer timely participated in appraisal and paid award without need for court intervention -- Insurer is not subject to attorney's fees where insured initiates litigation even though insurer has complied with terms of alternative dispute resolution provided for in insurance contract

31 Fla. L. Weekly D1310a

Insurance -- Homeowners -- Coverage -- Additional coverage for debris removal and trees, shrubs and other plants and for ordinance or law expenses -- Insureds whose home was declared a total loss were entitled to additional coverage for which they were charged and paid a premium -- However, as provided in policy, they could receive maximum of 25% of limit of liability only if they actually incurred the covered expenses -- Florida's Valued Policy Law does not alter this conclusion -- Remand for insureds to present proof of the incurred expenses consistent with policy -- Conflict certified

31 Fla. L. Weekly S669b
944 So. 2d 188

Health maintenance organizations -- Medical service provider may bring a cause of action as a third-party beneficiary to the contract between the health maintenance organization and its subscriber based on allegations that the health maintenance organization failed to comply with section 641.3155, Florida Statutes (2001), the “prompt pay provisions” of the Health Maintenance Organization Act -- The prompt pay provisions of the HMO Act can be incorporated into the contract between the HMO and its subscribers -- Medical service provider's status as a nonparticipating provider does not preclude it, as a matter of law, from establishing that the contracting parties had a clear or manifest intent to benefit the provider

31 Fla. L. Weekly D2579a

Health maintenance organizations -- Class action complaints against HMOs brought by professional association providing emergency orthopaedic services, as non-participating provider, to patients insured by HMOs, alleging violations of section 641.513(5), unjust enrichment and quantum meruit, and account stated and seeking declaratory and injunctive relief -- Trial court properly dismissed with prejudice plaintiff's account stated claims, but erred in dismissing remaining claims -- Emergency service providers are required to care for HMO subscribers regardless of whether the provider participates in HMO's health plan, and section 641.513(5) dictates how an HMO must reimburse these non-participating providers -- Trial court erred in finding that statute did not imply a private right of action -- With respect to HMOs' argument that the only avenues for vindication of plaintiff's rights under statute are either filing of claim under federal Employee Retirement Income Security Act or participating in alternative dispute resolution process established in section 408.7057, ERISA issue was not discussed or raised below, and dispute resolution under section 408.7057 is not mandatory -- Plaintiff's argument on appeal that trial court erred in failing to grant it leave to amend its complaints to assert a third-party beneficiary claim under recent district court holding not considered by appellate court where plaintiff was aware of the holding before trial court dismissed its claims, but failed to seek leave of court or consent of defendants to amend its complaints and never sought leave to amend by moving for rehearing -- Trial court erred in dismissing unjust enrichment claims on basis that plaintiff conferred no benefit on HMOs -- Plaintiff alleged facts sufficient to support its argument that plaintiff's treatment of subscribers conferred a benefit on the HMOs and alleged the elements necessary to state unjust enrichment/quantum meruit claim -- Trial court should not have considered ultimate merits of plaintiff's unjust enrichment claim at motion to dismiss stage -- No error in dismissing account stated claim -- For account stated to exist, there must be agreement between the parties that a certain balance is correct and due and an express or implicit promise to pay, circumstances not present in instant case -- Request for declaratory judgment seeking interpretation of section 641.513(5) was appropriate

31 Fla. L. Weekly D1942a
934 So. 2d 602

Health maintenance organizations -- Declaratory judgments -- Actual controversy -- Error to dismiss declaratory judgment complaint seeking interpretation of statute requiring HMOs to pay healthcare providers which have no contract with the HMO for emergency medical treatment rendered to subscribers of the HMO -- Dispute as to whether HMO was required to pay provider's full billed charges because they were “the usual and customary provider charges for similar services in the community where the services were provided” or whether HMO was only obligated to pay amount equal to 120% of what Medicare would reimburse for the same services was properly before the lower court for determination on provider's complaint seeking declaratory judgment -- Statute at issue establishes civil liability, and dispute is not whether liability was imposed by the statute, but the methodology for use in establishing the amount of that liability and the applicable enforcement remedy -- Under these circumstances, a private right of action may be implied -- Moreover, assuming statutory cause of action may not be implied, common law theories are available for redress through the courts -- Because civil remedy exists, whether arising from statute or common law, request for declaratory relief is authorized because an actual dispute, not merely a hypothetical one, exists between the parties

31 Fla. L. Weekly D244a

Health maintenance organizations -- Statewide provider and managed care organization dispute resolution program -- Appeal from final order of Agency for Health Care Administration adopting recommended order of organization under contract for dispute resolution -- Where during course of appeal parties to claims dispute amicably settled dispute underlying final order issued by AHCA, statute did not prohibit AHCA from vacating its prior final order to facilitate the parties' settlement -- AHCA erred in denying joint motion to vacate order on ground that it was prohibited by statute from doing so -- Remand with instructions to vacate final order to facilitate settlement between the parties

31 Fla. L. Weekly D131e

Insurance -- Health -- Arbitration -- Where insurer denied insured's claim under health insurance policy on basis that condition which formed basis of claim was preexisting and that insured's preexisting condition voided the policy, insured's action against insurer for breach of contract, fraud in the inducement, negligent misrepresentation, and violations of Deceptive and Unfair Trade Practices Act was not subject to arbitration under arbitration clause in policy -- By returning insured's premium and rescinding the contract, insurer voided the contract and rendered all contractual provisions, including the arbitration clause, unenforceable -- Error to grant insurer's motion to compel arbitration

31 Fla. L. Weekly D1041b

Insurance -- Habeas corpus -- It is impermissible and frivolous for a petitioner who is not incarcerated to litigate an insurance dispute in a petition for writ of habeas corpus -- Petitioner qualifies as a vexatious litigant, and clerk of court is directed to reject any further petitions for writ of habeas corpus on petitioner's behalf unless signed by member of Florida Bar

31 Fla. L. Weekly D1122a

Health maintenance organizations -- Coverage -- Exclusions -- Experimental or investigational services -- Exception -- Drug prescribed for treatment of cancer that has been approved by FDA for at least one indication, provided drug is recognized for treatment of covered person's cancer in Standard Reference Compendium or recommended for treatment of covered person's cancer in medical literature -- Error to enter summary judgment and final judgment awarding damages in favor of plaintiff in action against HMO which denied coverage for TheraSphere treatment for plaintiff's cancer after finding that exception to exclusion for experimental or investigational services was inapplicable because TheraSphere was a “device,” not a “drug” -- Lack of definitions for terms “device” and “drug” does not violate section 641.31(4), which requires a clear and understandable statement of any limitations on services or kinds of services to be provided, and does not make exclusion for experimental or investigational services inapplicable to plaintiff's claim -- Read in context, plan provides adequate notice as to services to which a subscriber is entitled and the limitations on those services or kinds of services -- Because trial court's decision largely rested on erroneous conclusion that plan violated statute, summary judgment and final judgment are reversed -- Further, trial court did not consider substance of medical expert's affidavit, which specifically outlined why TheraSphere treatment does not meet the requirements of the exception and stated that plaintiff was not diagnosed with type of cancer for which FDA had approved treatment with TheraSphere and that TheraSphere was not drug recognized for treatment of plaintiff's diagnosed condition; two of the articles on which plaintiff relied address only the treatment of a type of cancer other than that with which plaintiff was diagnosed -- Remand for further proceedings

31 Fla. L. Weekly D571a

Insurance -- Health -- Denial of coverage under policy for organ transplant -- Action against insurer and agents by plaintiffs who initially purchased policy that provided coverage for organ transplants but subsequently purchased renewal policy that did not provide coverage for organ transplants after agent represented that the renewal policy provided the same coverage as provided by prior policies that had been issued to plaintiffs -- Trial court erred in dismissing complaint primarily on basis of merger clause in application, which stated that agent was not authorized to change or modify insurance contract -- Trial court erred in dismissing count for declaratory judgment where complaint contained sufficient allegations entitling plaintiff to declaration of her rights -- Court erroneously treated motion to dismiss declaratory judgment action as motion on merits -- Error to dismiss count for reformation of contract to include coverage for organ transplants where complaint sufficiently alleged mutual or unilateral mistake -- Merger clause in application does not automatically bar plaintiff from seeking reformation of insurance contract -- Error to dismiss count for promissory estoppel where complaint alleged that defendants promised plaintiffs that renewal policy would contain same coverage as previous policies, that plaintiffs relied to their detriment on this promise, and that as result of their reliance damages were incurred -- Error to dismiss count for fraudulent misrepresentation -- Merger clause in insurance application did not automatically defeat plaintiffs' allegation of reliance because issue of whether plaintiffs reasonably relied on agent's misrepresentations is issue of fact -- Because complaint contains allegations connecting insurer with misrepresentations made by agent, court erroneously dismissed fraudulent misrepresentation count against insurer -- Error to dismiss count for negligent misrepresentation -- Error to dismiss count for negligent procurement of policy

31 Fla. L. Weekly S34a

Insurance -- Jurisdiction -- Foreign insurers -- Unauthorized Insurers Process Law -- Section 626.906(4), Florida Statutes (2005), of Florida's Unauthorized Insurers Process Law, which specifies the acts that will subject unauthorized foreign insurers to the jurisdiction of Florida courts, is available only to Florida residents -- Subsection (4) of UIPL, which uses language “transaction of insurance” is available only to Florida residents -- Trial court erred in denying Russian marine insurer's motion to quash service of process in action brought against it by Honduran insured

31 Fla. L. Weekly D1925a

Torts -- Contracts -- Insurance -- Action by assignee of fire insurance policy against reinsurers who settled fire loss claim with insured, alleging negligence and breach of contract -- Trial court properly entered summary judgment for defendant reinsurers where plaintiff failed to establish the existence of a common law or contractual duty on part of reinsurers to ascertain the existence of unknown assignees, failed to establish contractual privity with reinsurers, and failed to establish that reinsurers breached reinsurance agreement -- There is no existing Florida case law which mandates that an insurer or reinsurer has a common law duty to ascertain whether assignees exist before settling an insurance claim -- There is no evidence that reinsurers were aware of plaintiff's existence -- Because plaintiff failed to prove element of legal duty, it cannot establish prima facie case of negligence -- Contractual privity did not exist between reinsurers and plaintiff, and reinsurers did not breach any terms of reinsurance agreement when they issued payment of settlement proceeds to insured

31 Fla. L. Weekly D192b

Insurance -- Uninsured motorist -- Coverage -- Where employee who was driving vehicle owned by his corporate employer was involved in accident with another vehicle on interstate highway, employee and driver of the other vehicle stopped on opposite sides of roadway, employee crossed road and stood next to other driver's vehicle to offer assistance and exchange driver information, and employee was struck by a third vehicle driven by an uninsured motorist, employee was not entitled to coverage under his employer's uninsured motorist policy -- Policy extended coverage to employee only while he was occupying or getting into or out of a vehicle covered by policy, and employee was not occupying or getting into or out of vehicle when he was struck by uninsured vehicle -- Because employee was not a first named insured, he was not entitled to UM benefits as a pedestrian under terms of policy -- UM coverage exclusions for claimants who were not physically occupying the insured vehicle when injured are enforceable and do not violate public policy -- Public policy is not offended by more limited coverage in situations involving Class II or additional insureds

31 Fla. L. Weekly S840b

Insurance -- Underinsured motorist -- Conflict of laws -- Lex loci contractus -- Residents of another state who execute an insurance contract in that state, and who reside in Florida for several months of the year, may not invoke Florida's public policy exception to the rule of lex loci contractus to invalidate an exclusionary clause in the policy -- Public policy exception to lex loci rule may only be invoked to protect permanent Florida residents -- District court erroneously found that the public policy exception to the lex loci contractus rule is properly invoked when Florida bears a significant connection to the insurance coverage

31 Fla. L. Weekly D2784a

Insurance -- Homeowners -- Liability -- Occurrence -- Exclusions -- Wrongful death action alleging that insured either intentionally or negligently shot and killed decedent -- Where policy excluded bodily injury resulting from insured's intentional conduct only if insured either expected or intended to cause such injury, and there was factual issue as to whether decedent's injuries were intended or expected by insured when he fired gun in decedent's direction, trial court erred in entering summary judgment finding that insurer has no duty to defend or indemnify insured

31 Fla. L. Weekly D345a

Insurance -- Homeowners -- Liability -- Exclusions -- Bodily injury arising out of rental of premises -- Where insured property owner rented out the premises only one time for a period of two years as part of an effort to sell the property, the rental was not an occasional rental -- Exception to rental property exclusion in the case of an occasional rental was not applicable, and policy did not provide coverage for injury to son of renters of property

31 Fla. L. Weekly D929b

Insurance -- Homeowners -- Personal liability -- Coverage -- Exclusions -- Trial court properly found that insurer was not obligated to defend or indemnify insureds with respect to tenants' action against insureds for breach of residential lease based on allegations that house had become uninhabitable because of mold -- Policy excluded personal liability arising out of rental or holding for rental of any part of any premises by an “insured,” with certain exceptions -- Exception to exclusion applicable for rental of an insured location on an occasional basis did not apply because lease of the subject premises was for a one-year period, virtually the entire time that the insureds had owned the premises -- Exception to exclusion applicable to rental of premises in part for use only as a residence did not apply because residence in question was rented in its entirety

31 Fla. L. Weekly D363a

Insurance -- Homeowners -- Accidental direct physical loss -- Action alleging that insurer has obligation to repair plumbing abnormality in which, for an unknown reason, drain pipe connecting toilet to sewer pipe had become “backpitched,” thereby impeding flow of water -- Error to dismiss action on ground that because there was no evidence of damage from the obstructed toilet there was not a “physical loss” to the property -- Abnormality in the pipe itself was a physical loss -- Error to dismiss action on ground that, even if a physical loss were proven, policy exclusion for earth movement applied -- Burden of proof was on insurer to prove that the exclusion applied

31 Fla. L. Weekly D1198a

Insurance -- Homeowners -- Exclusions -- Bodily injury caused by “any dog owned or kept by you” -- Although policy defined “you,” as the named insured and spouse, it is a strained reading to suggest that insurer intended to exclude named insured and spouse from coverage for injuries resulting from an incident involving their dog while at the same time intending to provide coverage for named insureds' nine-year-old daughter who jointly owned the dog with them -- Reading exclusion from perspective of an ordinary person and in conjunction with rest of policy does not support finding that daughter had coverage that her parents did not enjoy -- Trial court erred in determining that policy provided coverage for injuries sustained by child who was bitten by dog while visiting insureds' nine-year-old daughter

31 Fla. L. Weekly D1122a

Health maintenance organizations -- Coverage -- Exclusions -- Experimental or investigational services -- Exception -- Drug prescribed for treatment of cancer that has been approved by FDA for at least one indication, provided drug is recognized for treatment of covered person's cancer in Standard Reference Compendium or recommended for treatment of covered person's cancer in medical literature -- Error to enter summary judgment and final judgment awarding damages in favor of plaintiff in action against HMO which denied coverage for TheraSphere treatment for plaintiff's cancer after finding that exception to exclusion for experimental or investigational services was inapplicable because TheraSphere was a “device,” not a “drug” -- Lack of definitions for terms “device” and “drug” does not violate section 641.31(4), which requires a clear and understandable statement of any limitations on services or kinds of services to be provided, and does not make exclusion for experimental or investigational services inapplicable to plaintiff's claim -- Read in context, plan provides adequate notice as to services to which a subscriber is entitled and the limitations on those services or kinds of services -- Because trial court's decision largely rested on erroneous conclusion that plan violated statute, summary judgment and final judgment are reversed -- Further, trial court did not consider substance of medical expert's affidavit, which specifically outlined why TheraSphere treatment does not meet the requirements of the exception and stated that plaintiff was not diagnosed with type of cancer for which FDA had approved treatment with TheraSphere and that TheraSphere was not drug recognized for treatment of plaintiff's diagnosed condition; two of the articles on which plaintiff relied address only the treatment of a type of cancer other than that with which plaintiff was diagnosed -- Remand for further proceedings

31 Fla. L. Weekly D14a

Insurance -- Excess coverage -- Error to enter summary judgment finding that umbrella policy provides coverage for claim, where there are genuine issues of material fact relating to affirmative defenses and counterclaim for rescission which may ultimately affect coverage

31 Fla. L. Weekly D1798a Insurance -- Uninsured motorist -- Evidence -- Payment of personal injury protection benefits -- Insurer's payment of PIP benefits in connection with an automobile accident is not relevant to issue of whether medical expenses claimed in insured's uninsured motorist claim are reasonable, necessary, or connected to the accident, and evidence of such payment is not admissible for that purpose -- Error in admission of evidence of insurer's payment of PIP claims in insured's action for underinsured motorist benefits was harmless where issue was not a feature of the trial, and evidence was sufficient to support insured's claim that she had herniation in spinal discs as result of accident which necessitated surgery

31 Fla. L. Weekly D3104d

Insurance -- Uninsured motorist -- Insured injured in collision with vehicle driven by uninsured motorist and subsequently injured in a different collision which occurred roughly two months later -- Trial court erred as matter of law when it granted motion for mistrial following jury's verdict on ground that insurer's attorney had asked a question implying that plaintiff had settled with a subsequent tortfeasor -- Statute which proscribes informing a jury about settlements involving joint tortfeasors does not apply to instant case involving subsequent tortfeasor -- Settlement between insured and party who was responsible for second collision was relevant because it was intended to explain why doctor bills which before the settlement had indicated they were attributable to the second accident began indicating after the settlement that treatment was attributable to the first accident -- Remand with directions to reinstate verdict

31 Fla. L. Weekly D1145a

Insurance -- Liability -- Summary judgment -- Error to enter final declaratory judgment finding that insurer has duty to indemnify and defend insured, where there is issue of fact regarding the applicability of a policy exclusion

31 Fla. L. Weekly D800a

Torts -- Insurance -- Duty to defend -- Where liability insurer initially denied coverage for personal injury claim against insured and refused to defend on ground that insured's notice of claim was untimely, but, after insured had filed breach of contract action against insurer, insurer sent insured a letter stating that it was no longer denying coverage and that it agreed to assume insured's defense, trial court departed from essential requirements of law in entering order permitting insurer to take control of the defense, to select counsel of its own choosing, and to defend insured in the personal injury suit -- Insurer had duty to defend, and insured's late notice did not relieve insurer from that obligation where there was no prejudice as result of the late notice -- By its initial wrongful refusal to defend, insurer forfeited the right to defend and to control the defense

31 Fla. L. Weekly D479b

Insurance -- Discovery -- Declaratory action seeking determination of whether fee/cost judgment against insured constitutes damages based on personal injury under terms of personal umbrella policy -- Trial court erred in ordering insurer to provide information and documents regarding the drafting, marketing and interpretation of its umbrella policies, training of agents and employees as to policies, and claims made under policies on which fees and/or costs were paid -- Because construction of policy is question of law to be determined by court, requested discovery was not relevant to litigation

31 Fla. L. Weekly D703a

Insurance -- Discovery -- Where insurer transferred its claim file to attorney it hired to represent insured in negligence suit, and insurer subsequently instituted declaratory judgment action to resolve coverage issue, trial court in declaratory judgment action departed from essential requirements of law in issuing protective order precluding attorney from disclosing contents of claim file to insured -- At the time he received the claim file, attorney was the attorney and agent for insured alone, despite the fact that his representation was paid for by insurer -- Trial court order improperly interferes with relationship between insured and its attorney

31 Fla. L. Weekly D848c

Jurisdiction -- Forum non conveniens -- Insurer's declaratory judgment action regarding coverage provided by policy and duty to defend -- Location of witnesses is not important in dispute involving question of law -- Because neither party would be significantly undermined or favored by one forum over another, private interests are in equipoise -- Where coverage question in case has direct connection to class actions pending in Florida, public interest factor favors Florida as forum -- Trial court did not abuse discretion in denying motion to dismiss based on forum non conveniens

NOT FINAL VERSION OF OPINION
Subsequent Changes at 31 Fla. L. Weekly D368b

31 Fla. L. Weekly D116a

Insurance -- Credit life -- Beneficiary's action against insurer which denied coverage under credit life policy on ground that decedent was ineligible for coverage because of his medical history, alleging fraudulent inducement, breach of fiduciary duty, unjust enrichment, fraud, and first-party bad faith -- Discovery -- Order compelling discovery did not improperly compel insurer to disclose information that was protected by work product doctrine, but instead made clear that work product materials were not ordered to be produced and that if work product issue arose later, trial court would address the matter upon appropriate motion -- Order did not improperly compel production of information about claim files, claims handling practices, and business policies before coverage had been established -- Complaint included causes of action other than bad faith, and trial court properly found that documents sought were within scope of discovery as to those claims -- With regard to insurer's argument that discovery requested was not relevant, proper test for discovery purposes is not relevance, but whether discovery is reasonably calculated to lead to admissible evidence -- Moreover, insurer's corporate representative has already testified extensively at his deposition regarding the topics at issue without objection -- No departure from essential requirements of law resulted from trial court's permitting plaintiff to continue deposition of insurer's corporate representative -- Although insurer argued that representative was a “senior management executive” and plaintiff was not entitled to take this “apex” deposition until she had exhausted other discovery and could demonstrate that the representative was uniquely able to provide relevant information that could not be obtained from other sources, the representative at issue was not an “apex” level executive, but an operational level vice present who reviewed all credit insurance claims in excess of $10,000 -- Representative was ultimately responsible for denial of claim and, moreover, had already been deposed by plaintiff for one day without this objection being raised

31 Fla. L. Weekly D368b Insurance -- Credit life -- Beneficiary's action against insurer which denied coverage under credit life policy on ground that decedent was ineligible for coverage because of his medical history, alleging fraudulent inducement, breach of fiduciary duty, unjust enrichment, fraud, and first-party bad faith -- Discovery -- Order compelling discovery did not improperly compel insurer to disclose information that was protected by work product doctrine, but instead made clear that work product materials were not ordered to be produced and that if work product issue arose later, trial court would address the matter upon appropriate motion -- Order did not improperly compel production of information about claim files, claims handling practices, and business policies before coverage had been established -- Complaint included causes of action other than bad faith, and trial court properly found that documents sought were within scope of discovery as to those claims -- Lack of relevancy alone is not sufficient basis for granting certiorari relief -- Moreover, insurer's corporate representative has already testified extensively at his deposition regarding the topics at issue without objection -- No departure from essential requirements of law resulted from trial court's permitting plaintiff to take deposition of insurer's corporate representative -- Although insurer argued that representative was a “senior management executive” and plaintiff was not entitled to take this “apex” deposition until she had exhausted other discovery and could demonstrate that the representative was uniquely able to provide relevant information that could not be obtained from other sources, the representative at issue was not an “apex” level executive, but an operational level vice present who reviewed all credit insurance claims in excess of $10,000 -- Representative was ultimately responsible for denial of claim and, moreover, had already been deposed by plaintiff for one day without this objection being raised

31 Fla. L. Weekly S840b

Insurance -- Underinsured motorist -- Conflict of laws -- Lex loci contractus -- Residents of another state who execute an insurance contract in that state, and who reside in Florida for several months of the year, may not invoke Florida's public policy exception to the rule of lex loci contractus to invalidate an exclusionary clause in the policy -- Public policy exception to lex loci rule may only be invoked to protect permanent Florida residents -- District court erroneously found that the public policy exception to the lex loci contractus rule is properly invoked when Florida bears a significant connection to the insurance coverage

31 Fla. L. Weekly D2440b

Insurance -- Commercial general liability -- Notice of claim -- Error to grant summary judgment in favor of insurer with respect to late notice where, viewing evidence most favorably to insured and drawing every possible inference in insured's favor, there was genuine issue of material fact concerning when insured knew of mold problems in construction project and whether insured failed to timely notify insurer

31 Fla. L. Weekly D719a

Insurance -- Class actions -- Standing -- Plaintiff who had obtained ruling that she was entitled to uninsured motorist coverage under Rental Supplementary Liability Insurance Excess Policy issued by defendant has standing to file class action complaint seeking declaratory judgment that plaintiff and other similarly situated individuals are entitled to uninsured motorist coverage and damages -- To satisfy the requirement of standing, plaintiff must show that a case or controversy exists between plaintiff and defendant, and that such case or controversy continues from the commencement through the existence of the litigation -- Plaintiff has standing because a final judgment has not been rendered on her claim for damages or defendant's liability -- Whether plaintiff is a proper class representative or whether there exists similarity of claims between the named plaintiff and the class members are questions addressed not by principles of standing, but, rather, by the application of the requirements for class action certification

31 Fla. L. Weekly S310a

Insurance -- Cancellation of policy -- Section 627.848, Florida Statutes (2002), contemplates a single date of cancellation for the insurance contract as a whole -- The insurance contract cannot be cancelled as to different insureds at different times depending on when a statutorily required notice is given to that insured -- Where policy provision required notice of any cancellation to mortgagee, policy was not effectively cancelled when insurer received notice of cancellation from premium finance company -- Cancellation could not have been effective prior to expiration of period required for notice to mortgagee

31 Fla. L. Weekly D2495a
939 So. 2d 1113

Insurance -- Uninsured motorist -- Bad faith -- Discovery -- Claims file -- Attorney-client privilege applies in first-party bad faith action -- Question certified: Does the Florida Supreme Court's holding in Allstate Indemnity Co. v. Ruiz, 899 So. 2d 1121 (Fla. 2005), relating to discovery of work product in first-party bad faith actions brought pursuant to section 624.155, Florida Statutes, also apply to attorney-client privileged communications in the same circumstances?

31 Fla. L. Weekly D169a

Insurance -- Liability -- Discovery -- Attorney-client privilege -- Waiver -- Action against umbrella insurance carrier after plaintiffs entered into Coblentz agreement in which defendants entered into consent judgment and assigned to plaintiff any cause of action they had against umbrella insurance carrier in exchange for plaintiff's covenant not to execute on defendants -- Injured party wishing to recover under Coblentz agreement must bring action against insurer and prove coverage, wrongful refusal to defend, and that settlement was reasonable and made in good faith -- There was no blanket waiver of attorney-client privilege on the question whether the Coblentz agreement was reasonable and in good faith -- However, provision of settlement agreement stating that corporate defendant had been advised by prior corporate counsel and individual defendants had been advised by their personal counsel that “in their opinion, the case, if tried before a jury, would result in a verdict of liability” did waive attorney-client privilege as to the stated opinion of counsel that verdict of liability would result if the case were tried -- Recitations elsewhere in settlement agreement that parties had consulted with counsel regarding underlying tort action and settlement agreements did not disclose the substance of the legal advice given and did not accomplish a waiver of attorney-client privilege

31 Fla. L. Weekly S882a

Insurance -- Performance bond -- Bad faith refusal to settle claim under performance bond -- Obligee of a surety contract qualifies as an “insured” and is therefore entitled to sue its surety for bad faith refusal to settle claims pursuant to section 624.155(1)(b)(1), Florida Statutes (1999) -- Language of section 624,155(1)(b)(1), Florida Statutes (1999), eliminates the requirement of proof of a general business practice when a plaintiff pursues a section 626.9541 claim through the right of action provided by section 624.155(1)(b)(1) -- Arbitration panel's findings that a surety's principal has breached its duty to the obligee and that the surety is obligated to the extent that its principal is bound satisfies the condition precedent to a section 624.155 bad faith refusal to settle claim -- Arbitration panel's finding that a surety's principal has breached its duty to the obligee and that the surety is obligated to the extent that its principal is bound does not bar a later claim against a surety for bad faith refusal to settle under section 624.155 under doctrine of res judicata -- Arbitration panel's denial of defendant's affirmative defense in breach of contract claim collaterally estops same defendant from raising those affirmative defenses in subsequent section 624.155 bad faith refusal to settle when the essential elements of collateral estoppel are present

31 Fla. L. Weekly D2818a

Insurance -- Uninsured motorist -- Bad faith -- Failure to disclose and pay benefits -- Trial court departed from essential requirements of law in allowing insured's statutory bad faith claim to proceed without prior determination of liability and extent of damages allegedly owed on insurance contract -- However, insurer failed to show that it would suffer irreparable harm that cannot be adequately remedied on appeal

31 Fla. L. Weekly D1551a

Insurance -- Personal injury protection -- Bad faith -- Unfair settlement practices -- Punitive damages -- Insured alleging that insurer, as a general business practice and in wanton and willful disregard for rights of its insureds, fails to pay 80% of reasonable and necessary medical expenses and continually reimburses its insureds in amounts on less favorable terms than those required by statute and its policy of insurance, and further alleging that this conduct constituted unfair settlement practice in violation of section 626.9541(1)(i)(2) -- Error to dismiss claim for punitive damages because insured failed to allege additional compensatory damages other than those which had already been paid as result of settlement of underlying PIP lawsuit -- Insurer's settlement of its obligation to insured was equivalent of verdict in favor of insured and therefore insured's actions for benefits have been resolved in his favor -- Insurer's failure to pay benefits to insured under his policy within 60 days of receiving notice under section 624.155 entitled insured to make his claim for bad faith -- Allegation that insurer's acts occurred with such frequency as to indicate general business practice and that these acts were willful, wanton, malicious and in reckless disregard of rights of its insureds was sufficient to state cause of action for punitive damages

31 Fla. L. Weekly D2835a

Insurance -- Homeowners -- Bad faith -- Failure to settle -- Unfair claims practices -- Action against insurer who refused to pay full amount of policy following hurricane-related loss on ground that loss was caused by both wind damage, which was covered under policy, and flood damage, which was not covered -- Trial court departed from essential requirements of law in forcing insurer to defend against statutory claims before issue of coverage was fully resolved -- Although insurer's attorney conceded at hearing that insurer had some liability under policy, this did not settle question of how much coverage was due -- Even if insurer's admission of limited liability under Valued Policy Law meant that it was liable for full policy limits as to dwelling itself, extent of loss or damage under remaining coverage provisions, including other structures coverage, ordinance and law coverage, personal property coverage, and loss of use coverage, remains unsettled -- Insurer will suffer irreparable harm if forced to defend against both breach of contract and bad faith claims simultaneously -- Trial court has authority to abate statutory claims, rather than to dismiss them, if it appears that abatement would be in interest of judicial economy

31 Fla. L. Weekly D2467a

Insurance -- Bad faith -- Failure to settle -- No abuse of discretion in denying motion for new trial based upon newly discovered evidence when, after trial, insurance company expert acknowledged errors in his testimony, or based upon cumulative errors -- Expert's admission that, contrary to his testimony at trial, his law firm did not use a release worded similarly to the one used by insurer in instant case, which released all persons from liability, was not material to issue of bad faith, but would be evidence to impeach expert's opinion -- Moreover, expert maintained that the fact that the questioned language had been removed from his firm's release years earlier did not change expert's opinion that the release was appropriate, nor did he waiver in his opinion that insurer did not commit bad faith -- Evidence regarding law firm's use of different form was not the type of evidence that would probably change result in case because insurer had already established that the attorney for claimant had crossed out over-inclusive language in another release submitted to him by the insurer on behalf of a different insured -- Cumulative error -- No merit to insured's contention that certain errors, when considered cumulatively, improperly attempted to shift focus to claimant's motives and conduct of claimant's attorney in refusing to settle, although correct focus should have been on motive of insurer in fulfilling its duty to insured -- Conduct of claimant and her attorney would be relevant to question of whether there was any realistic possibility of settlement -- None of the incidents individually were reversible, as they were either not error or were cured with instruction -- Incidents included statement by insurer's attorney in opening statement that claimant's attorney stood to earn $500,000 from case, suggesting he would be a biased witness with a financial interest in the outcome; cross-examination of claimant's attorney as to why attorney did not send request for insurance information to insurer and whether attorney had told claimant not to communicate with insurer; and response by insurer's expert to a jury-initiated question as to why, in expert's opinion, claimant's attorney didn't make insurer aware of attorney's appointment as claimant's legal representative, a question to which insured did not object, even though he had reviewed it prior to expert's being allowed to answer

31 Fla. L. Weekly D1090a

Insurance -- Uninsured motorist -- Discovery -- Work product -- Claim file -- When a litigant files claims for both coverage and bad faith in same action, claim file is not discoverable until issue of coverage has been resolved -- Because insured was pursuing a claim for coverage under policy and seeking to void release she previously signed, the circuit court departed from the essential requirements of law by ordering insurer to produce its claim file for inspection by insured's counsel -- Requiring disclosure of claim file during litigation of coverage issues would result in irreparable harm that cannot be adequately addressed on plenary appeal

31 Fla. L. Weekly D3124a

Insurance -- Disability income -- Bad faith -- Insured's action against insurer, brought after insurer stopped monthly payments from disability income policy -- Discovery -- Attorney-client privilege -- Error to compel discovery of documents protected by attorney-client privilege -- Question certified: Does the Florida Supreme Court's holding in Allstate Indemnity Co. v. Ruiz, relating to discovery of work product in first-party bad faith actions brought pursuant to section 624.155, Florida Statutes, also apply to attorney-client privileged communications in the same circumstances?

31 Fla. L. Weekly D160b
917 So. 2d 1008

Insurance -- Bad faith -- Discovery

31 Fla. L. Weekly D850a

Insurance -- Automobile liability -- Subrogation -- Insurer was not entitled to recover amount of bodily injury damages paid to injured party in subrogation action against defendant where insurer did not prove that it paid all of injured party's damages or that it obtained a release of defendant from the injured party

31 Fla. L. Weekly D963a

Insurance -- Automobile liability -- Intervention -- Where party who was injured in automobile accident with insured accepted insurer's policy limit in settlement and released insured and insurer, and later filed negligence action against insured and obtained judgment against insured based on insured's failure to respond to requests for admissions, court did not abuse discretion in denying insurer's postjudgment motion to intervene in the negligence action to assert the settlement and release as a defense -- Insurer did not have a direct and immediate interest in the action that would justify intervention -- Insurer's concern that it may later be subject to a suit for bad faith refusal to defend and will have to pay judgment against insured is a contingent interest which did not justify intervention -- Although bad faith action could be initiated by injured party on behalf of insured, judgment in negligence action will not automatically result in such an action being filed, and insurer will have a forum in which it can raise its objections if it is in fact sued for bad faith

31 Fla. L. Weekly D2984c

Insurance -- Automobile liability -- Bad faith -- Declaratory judgment -- Accident involving injuries to multiple parties in which insurer exhausted policy limits by paying two claimants, initially denied a third claim because of the exhausted policy limits, and later tendered per person policy limit to third claimant, which third claimant rejected -- Error to enter summary judgment for insurer in its declaratory judgment action seeking a declaration that its tender extinguished any bad faith claim insureds might assert -- To extent that judgment was meant to bar first party claim of bad faith in settling claims of two claimants without investigating all claims to determine how to best limit insured's liability, judgment seems to be in error -- Judgment also seems to be in error to extent it purports to bar common law third party bad faith claim

31 Fla. L. Weekly D836a

Insurance -- Automobile liability -- Bad faith refusal to settle -- Insurer can be held liable for bad faith refusal to settle where demand for settlement made by assignee of insured owner of vehicle agreed to release insured owner but refused to release permissive driver of vehicle, who was an additional insured -- Trial court erred in entering directed verdict for insurer in bad faith action on ground that insurer could not enter into settlement and release which operated to totally exonerate insured owner without also releasing vehicle driver

31 Fla. L. Weekly S690b

Insurance -- Automobile liability -- Bad faith failure to settle -- An insurer's tender of the policy limits to an insured in response to the filing of a civil remedy notice under section 624.155 by the insured, after the initiation of a lawsuit against the insured but before entry of an excess judgment, does not preclude a common law cause of action against the insurer for third-party bad faith

31 Fla. L. Weekly D1645c

Insurance -- Automobile liability -- Bad faith -- Where insurer accepted that its insured was responsible for automobile accident as early as the next day and recognized the potential for an excess judgment about four months later, misplaced injured party's offer to settle which came approximately eight months after the accident, and then purportedly accepted settlement offer, but simply ignored some of the conditions of the offer without explanation and, in fact, did not inquire of insured regarding certain of these conditions, or even inform insured of settlement offer, until after suit was filed against insured, it cannot be said as matter of law that insurer fulfilled its duty to use same degree of care and diligence as a person of ordinary care and prudence should exercise in the management of his own business -- Error to enter summary judgment absolving insurer of bad faith claim brought by insured's bankruptcy estate

31 Fla. L. Weekly D1700b

Insurance -- Automobile -- Cancellation of policy -- Where insured purchased policy directly from a direct issuer of automobile insurance, and insured had no independent agent, insurer was not required to provide notice of cancellation to an agent in order for its cancellation of policy to be effective -- Insurer effectively cancelled policy after it noticed insured and a lienholder within the statutory time frames and delivered notice of the cancellation by electronically forwarding bundled reports that included the cancellation to its internal agent

NOT FINAL VERSION OF OPINION
Subsequent Changes at 31 Fla. L. Weekly D1700b

31 Fla. L. Weekly D1097a

Insurance -- Automobile -- Cancellation of policy -- Where insured purchased policy directly from a direct issuer of automobile insurance, and insured had no independent agent, insurer was not required to provide notice of cancellation to an agent in order for its cancellation of policy to be effective -- Insurer effectively cancelled policy after it noticed insured and a lienholder within the statutory time frames and delivered notice of the cancellation by electronically forwarding bundled reports that included the cancellation to its internal agent

31 Fla. L. Weekly D2287a
948 So. 2d 1

Insurance -- Automobile -- Cancellation of policy -- Misrepresentation or omission -- Where insurer cancelled policy because of insured's failure to disclose her son as an additional driver in application for insurance, insurer was required to return premiums paid by insured -- Insurer's cancellation of policy in effect rendered the insurance contract void, and insurer's retention of premiums entitled insured to receive restitution of premiums paid -- Failure to return premiums did not waive insurer's right to deny coverage of claim for theft of automobile

31 Fla. L. Weekly D935a

Insurance -- Automobile -- Cancellation of policy -- No error in finding that insurer did not effectively cancel insurance policy because it failed to give notice to state as required by statute applicable to commercial vehicles -- Specific provision of section 320.02(5)(e) controls over general cancellation notice provisions of section 627.7281

31 Fla. L. Weekly D802a

Insurance -- Attorney's fees -- Workers' compensation -- Section 627.428, Florida Statutes, which authorizes award of attorney's fees for insureds who successfully sue their insurers, does not authorize attorney's fees in workers' compensation cases -- Award of attorney's fees incurred in rule nisi proceeding was proper

31 Fla. L. Weekly D1951a

Insurance -- Business automobile policy -- Uninsured motorist -- No error in holding that underinsured motorist coverage provided by insurer on a business automobile insurance policy issued to unincorporated business did not provide coverage for the business owner's minor son when, as a pedestrian, he was struck by an underinsured motorist -- A business automobile insurance policy issued in Florida insuring exclusively business or commercial vehicles is not statutorily compelled to utilize a definition of “insured” that would provide uninsured or underinsured motorist coverage to a family member of the owner of the insured commercial vehicle when the family member is struck as a pedestrian, and policy at issue did not voluntarily provide coverage for this claim -- If insureds desired to have higher limits of uninsured motorist coverage, they were free to purchase that coverage on their family automobiles

31 Fla. L. Weekly D1669a
932 So. 2d 516

Insurance -- Liability -- Where insurer disputed coverage for patent infringement and unfair competition claims brought against insured, but agreed to defend under reservation of rights, and appellate court found that claims were not covered by policy and remanded for trial court to determine insurer's right to recover costs of defense incurred while defending insured, trial court did not err in finding that insurer was entitled to its defense costs, fees, and expenses -- Sending reservation of rights letter and appointing mutually agreeable defense counsel is an appropriate action when an insurance company disputes coverage -- Insured agreed to defense counsel and accepted the defense provided and, accordingly, “necessarily agreed to the terms” on which insurer extended its offer to provide a defense

31 Fla. L. Weekly D2658a

Attorney's fees -- Insurance -- Homeowners -- Error to deny statutory attorney's fees incurred by insured in defending declaratory judgment action initiated by insurer, which claimed it had no duty to defend or indemnify the insured -- Insurer's voluntary dismissal of its declaratory action conferred a benefit on the defendant insured in the form of representation in the underlying tort suit against insured

31 Fla. L. Weekly S358a
932 So. 2d 1067

Insurance -- Personal injury protection -- Attorney's fees -- Offer of judgment -- In a suit for benefits under a personal injury protection policy, an insurer may recover attorney's fees pursuant to the offer of judgment statute -- A suit for PIP benefits is a “civil action for damages” -- Validity of offer -- Insurer's proposal for settlement, which stated that it would be a full and final satisfaction and settlement of any and all of insured's claims and causes of action in, or arising out of the case, and provided that insured would be required to execute a “general release,” in favor of insurer, “which will be expressly limited to all claims, causes of action, etc., that have accrued through the date,” of insured's acceptance of the proposal, was too ambiguous to satisfy rule 1.442 -- Settlement proposals must clarify which of an offeree's outstanding claims against the offeror will be extinguished by any proposed release -- Because insurer's settlement proposal failed to eliminate ambiguity regarding insured's outstanding uninsured motorist clam, it cannot support award of attorney's fees

31 Fla. L. Weekly D626a

Attorney's fees -- Insurance -- Personal injury protection

31 Fla. L. Weekly D1926a

Insurance -- Attorney's fees -- Prejudgment interest on award of attorney's fees accrues from date entitlement is determined -- Error to award interest on attorney's fees from date jury rendered its verdict on coverage under insurance policy rather than from date court determined entitlement to attorney's fees -- Attorney's fees are not awardable for time spent determining amount of fees -- Error to award fees for time spent litigating whether fee was limited to $8,000 maximum -- Civil procedure -- Dismissal for failure to prosecute -- Trial court properly denied defendant's motion to dismiss for failure to prosecute where plaintiff had requested court to take action, either by way of entering a final judgment or ordering a hearing -- Once parties to suit have fulfilled their duties, it is court's responsibility to proceed

NOT FINAL VERSION OF OPINION
Subsequent Changes at 32 Fla. L. Weekly D548b

31 Fla. L. Weekly D2610a

Insurance -- Personal injury protection -- Attorney's fees -- Circuit court departed from essential requirements of law by affirming county court's award of fees to insured at rate of $400 per hour, with a 2.5 multiplier, in insured's action against insurer to recover for unpaid chiropractic treatments -- Where there was nothing to suggest that insured had any difficulty obtaining competent counsel to pursue his PIP claim, application of multiplier, resulting in a fee of $1,000 an hour for 193.75 hours, was a manifest injustice

31 Fla. L. Weekly D2955b

Insurance -- Bad faith -- Attorney's fees -- Assignee of third-party bad faith claim is entitled to attorney's fees pursuant to section 627.428 when the assignee obtains favorable judgment in the bad faith action -- Multiplier -- Trial court has discretion to award multiplier to attorney's fees awarded under section 627.428 when there is risk of nonpayment -- Court rejects insurer's argument that policy language in Sarkis v. Allstate Insurance Co. leaves open the question of whether supreme court's decision in Standard Guar. Ins. Co. v. Quanstrom is still good law and instead views Sarkis decision as reaffirming holding in Quanstrom that use of multiplier could be appropriate under section 627.428 when there is a risk of nonpayment

31 Fla. L. Weekly D1643a

Insurance -- Life -- Wrongful denial of premium waiver benefits -- Attorney's fees -- Where insured's initial claim for waiver of premium payments based on disability mistakenly disclosed that her debilitating illness predated the issuance of the policies at issue, although, in fact, the onset of her illness occurred well after the issuance of the policies, insurer's denial of claim based on the erroneous information provided by the insured did not rise to the level of wrongful conduct necessary to impose attorney's fee award against the insurer -- Court rejects insured's contention that section 627.428 imposes strict liability on an insurer for attorney's fees even in cases where a valid claim was not submitted

31 Fla. L. Weekly S762a
944 So. 2d 252

Attorney's fees -- Appellate -- Insurance -- Under plain language of section 627.428(1), an appellate court may not award attorney's fees to an insured unless the insured prevails on appeal

31 Fla. L. Weekly D1930a

Insurance -- Personal injury protection -- Appellate attorney's fees -- Where insurer appealed county court order granting attorney's fees to insured, including a 1.5 multiplier, raising only the appropriateness of the multiplier, appellate division of circuit court departed from essential requirements of law in awarding insured appellate attorney's fees upon affirming county court order -- Party is not entitled to fees for time spent litigating the propriety of a fee multiplier -- Order awarding appellate attorney's fees as a sanction under section 57.105 for filing a frivolous appeal departed from essential requirements of law because it did not contain specific findings that appeal was not supported by facts or application of law

31 Fla. L. Weekly D1925a

Torts -- Contracts -- Insurance -- Action by assignee of fire insurance policy against reinsurers who settled fire loss claim with insured, alleging negligence and breach of contract -- Trial court properly entered summary judgment for defendant reinsurers where plaintiff failed to establish the existence of a common law or contractual duty on part of reinsurers to ascertain the existence of unknown assignees, failed to establish contractual privity with reinsurers, and failed to establish that reinsurers breached reinsurance agreement -- There is no existing Florida case law which mandates that an insurer or reinsurer has a common law duty to ascertain whether assignees exist before settling an insurance claim -- There is no evidence that reinsurers were aware of plaintiff's existence -- Because plaintiff failed to prove element of legal duty, it cannot establish prima facie case of negligence -- Contractual privity did not exist between reinsurers and plaintiff, and reinsurers did not breach any terms of reinsurance agreement when they issued payment of settlement proceeds to insured

31 Fla. L. Weekly D1614a

Insurance -- Uninsured motorist -- Personal injury protection -- Arbitration -- Action against insurer which denied coverage on ground that policy was canceled at its inception because insured's check was returned for insufficient funds -- No error in entering judgment in favor of insured pursuant to arbitrator's decision where insurer did not timely file motion for trial following the nonbinding arbitration decision -- Issue of coverage may be determined by arbitrator when a trial court refers a case to nonbinding arbitration pursuant to section 44.103 -- Insurer's argument that it was not required to request a trial de novo because issue of coverage was never properly before the arbitrator is without merit

31 Fla. L. Weekly D2220a
937 So. 2d 199

Insurance -- Appraisal -- Attorney's fees -- Error to confirm appraisal award and enter judgment where insurer timely participated in appraisal and paid award without need for court intervention -- Insurer is not subject to attorney's fees where insured initiates litigation even though insurer has complied with terms of alternative dispute resolution provided for in insurance contract

31 Fla. L. Weekly D2474a

Appeals -- Jurisdiction -- Non-final orders -- Insurance -- Partial summary judgment in favor of injured plaintiff and against insurer on issue of existence of insurance coverage was not subject to immediate and expedited review under rule 9.110(m) where there was no unresolved underlying personal injury action between the injured plaintiff and the insured -- Personal injury action claim in excess of policy limits had been settled, and insured had assigned his rights under insurance policy to the injured plaintiff, so there was no danger of delay of an underlying personal injury action against insured absent prompt appellate review -- Appeal dismissed

31 Fla. L. Weekly D3163a

Appeals -- Judgments that determine existence or nonexistence of insurance coverage in cases in which claim has been made against an insured and coverage is disputed by insurer -- Absence of claim against insureds

31 Fla. L. Weekly D2734a

Insurance -- Aircraft liability -- Coverage -- Parties who entered into contract with named insureds to use insured aircraft to fly passengers to Bahamas were covered under policy's omnibus insured provision, which provided coverage for “any person while using or riding in the aircraft and any person or organization legally responsible for its use” -- Insurer had duty to defend parties who were using aircraft in wrongful death actions against those parties by estates of passengers who were killed when the aircraft crashed because estates' wrongful death lawsuits alleged facts which potentially brought suits within policy coverage -- Insurer also had duty to defend parties because they were equitably subrogated to rights of passengers' estates by virtue of defending their lawsuits and settling the claims -- Trial court properly entered summary judgment adverse to insurer in its action seeking declaratory relief -- Trial court did not err in staying counterclaim for damages pending appellate court's resolution of coverage issue

31 Fla. L. Weekly D131e

Insurance -- Health -- Arbitration -- Where insurer denied insured's claim under health insurance policy on basis that condition which formed basis of claim was preexisting and that insured's preexisting condition voided the policy, insured's action against insurer for breach of contract, fraud in the inducement, negligent misrepresentation, and violations of Deceptive and Unfair Trade Practices Act was not subject to arbitration under arbitration clause in policy -- By returning insured's premium and rescinding the contract, insurer voided the contract and rendered all contractual provisions, including the arbitration clause, unenforceable -- Error to grant insurer's motion to compel arbitration

31 Fla. L. Weekly D1956a

Insurance -- Commercial general liability -- Insured's action against insurer alleging, among other claims, breach of contractual duty to pay following insured's settlement of lawsuit against it -- Order merely granting insured's motion for partial summary judgment on this claim is not final and not appealable -- Rule 9.110(m), which states that judgments determining “ the existence or nonexistence of insurance coverage in cases in which a claim has been made against an insured and coverage thereof is disputed by the insurer may be reviewed either by the method prescribed in this rule or that in rule 9.130,” does not grant appellate court jurisdiction to entertain appeals from nonfinal orders

31 Fla. L. Weekly D459a

Insurance -- Homeowners -- Appeals -- Order compelling appraisal does not meet requirements for certiorari relief -- Order is not appealable as an order that determines the entitlement of a party to arbitration -- Appeal dismissed

31 Fla. L. Weekly D256c

Appeals -- Certiorari -- Insurance -- Order denying motion to dismiss claim against insurer for violation of statute setting forth specific minimum standards for investigating sinkhole claims -- Failure of petitioner to show that it will suffer material injury that cannot be adequately remedied on appeal

31 Fla. L. Weekly D1131b
929 So. 2d 578

Insurance -- Aircraft -- Insured's action against insurer alleging breach of contract and bad faith -- Discovery -- Attorney-client privilege -- Trial court departed from essential requirements of law in ordering insurer to produce attorney-client privileged documents relating to defense of bad faith claim, underlying breach of contract claim, and time period after bad faith claim was made -- Florida Supreme Court's decision in Allstate Indemnity Co. v. Ruiz applies to work-product privilege, not attorney-client privilege -- Ruiz did not overrule controlling precedent by district court indicating that attorney-client privilege should be applied in first-party bad faith action -- Moreover, plain meaning of sections 624.155, the general statute dealing with bad faith, and section 90.502, the more specific statute dealing with attorney-client privilege, indicates that attorney-client privilege has not been eliminated in first-party bad faith actions -- Question certified: Does the Florida Supreme Court's holding in Allstate Indemnity Co. v. Ruiz, 899 So. 2d 1121 (Fla. 2005), relating to discovery of work product in first-party bad faith actions brought pursuant to section 624.155, Florida Statutes, also apply to attorney-client privileged communications in the same circumstances?

31 Fla. L. Weekly D571a

Insurance -- Health -- Denial of coverage under policy for organ transplant -- Action against insurer and agents by plaintiffs who initially purchased policy that provided coverage for organ transplants but subsequently purchased renewal policy that did not provide coverage for organ transplants after agent represented that the renewal policy provided the same coverage as provided by prior policies that had been issued to plaintiffs -- Trial court erred in dismissing complaint primarily on basis of merger clause in application, which stated that agent was not authorized to change or modify insurance contract -- Trial court erred in dismissing count for declaratory judgment where complaint contained sufficient allegations entitling plaintiff to declaration of her rights -- Court erroneously treated motion to dismiss declaratory judgment action as motion on merits -- Error to dismiss count for reformation of contract to include coverage for organ transplants where complaint sufficiently alleged mutual or unilateral mistake -- Merger clause in application does not automatically bar plaintiff from seeking reformation of insurance contract -- Error to dismiss count for promissory estoppel where complaint alleged that defendants promised plaintiffs that renewal policy would contain same coverage as previous policies, that plaintiffs relied to their detriment on this promise, and that as result of their reliance damages were incurred -- Error to dismiss count for fraudulent misrepresentation -- Merger clause in insurance application did not automatically defeat plaintiffs' allegation of reliance because issue of whether plaintiffs reasonably relied on agent's misrepresentations is issue of fact -- Because complaint contains allegations connecting insurer with misrepresentations made by agent, court erroneously dismissed fraudulent misrepresentation count against insurer -- Error to dismiss count for negligent misrepresentation -- Error to dismiss count for negligent procurement of policy

31 Fla. L. Weekly D178a

Torts -- Negligence -- Real estate appraisers -- Insurance -- Action by owner of building which was destroyed by fire against appraiser for negligently appraising the building too low for purposes of insurance, with result that cost of rebuilding the building would substantially exceed insurance coverage -- Where appraiser raised defense that insurance agent's negligence contributed to the insufficient amount of insurance coverage, trial court did not err in refusing to submit the insurance agent's negligence to the jury because there was no expert testimony to the effect that the agent was negligent -- Given that appraising requires expertise, and that the insurance agent did not have that expertise, jury could not have determined that the agent was negligent in the absence of an opinion of an expert

NOT FINAL VERSION OF OPINION
Subsequent Changes at 31 Fla. L. Weekly D1114a

31 Fla. L. Weekly D1073a

Administrative law -- Licensing -- Insurance agents -- Department of Financial Services properly revoked insurance agent's license for various statutory violations, including representing an unauthorized insurer -- DFS properly found that statute imposes an absolute bar against representing an unauthorized insurer and that statute does not include a knowledge element -- Burden was on licensee to establish affirmative defense that unauthorized insurer's plan which he sold was an ERISA-qualified plan and exempt from state regulation

31 Fla. L. Weekly D292a

Torts -- Insurance -- Where insured was sued for the wrongful death of an employee in an action which alleged that the employee's death was the result of insured's intentional acts or conduct that was substantially certain to result in injury or death, and insured filed third-party action against insurance agent which provided workers' compensation and employers liability policy to insured, alleging that agent breached its duty to obtain proper insurance for insured in that it obtained a policy which contained an exclusion for bodily injury intentionally caused by insured, and that agent misrepresented that it had obtained coverage for all liability with no exceptions, trial court properly entered summary judgment for the insurance agent on the third-party complaint -- Because public policy prohibits an insured from being indemnified from a loss resulting from its intentional acts, insured has no claim against agent for failure to procure coverage for intentional acts -- In order to prove its misrepresentation case, insured was required to establish that agent made a deliberate and knowing misrepresentation designed to cause, and actually caused detrimental reliance by insured -- Since insured would not have been able to obtain coverage for its intentional acts, there could be no detrimental reliance -- If allegations of wrongful death complaint against insured could be read to allege liability of insured under theory that insured's conduct was substantially certain to result in injury or death, coverage would have been provided under policy procured by agent, and there can be no claim against agent for failure to procure such coverage or any claim for misrepresentation

31 Fla. L. Weekly D2375c

Contracts -- Insurance -- Agent's commissions -- Attorney's fees -- Insurance agent's action against insurance agency seeking unpaid commission earned before and after termination of relationship with agency -- Trial court erred in entering summary judgment finding that agent was not entitled to post-termination renewal commissions where commission agreement between agent and agency unambiguously provided for payment of post-termination commissions -- Trial court erred in entering summary judgment finding that agent was equitably estopped from claiming attorney's fees in action for unpaid wages because agent was an independent contractor rather than an employee -- Although section 448.08 attorney's fees do not apply to independent contractors, issue of whether agent was an independent contractor or an employee should have been submitted to jury -- Trial court erred in entering summary judgment denying agent pre-termination renewal commission shortages on grounds of waiver and laches because of agent's delay in seeking the commission shortages -- Waiver is factual issue to be determined by jury -- Laches requires showing that defendant would suffer prejudice in event relief is accorded to plaintiff, and there was no showing that agency would suffer any prejudice by affording agent the relief he seeks in the form of an accounting -- Equitable defenses of waiver and laches require clean hands, and, if plaintiff's allegations are true, defendant's conduct does not demonstrate clean hands