2007

32 Fla. L. Weekly D2039a

Insurance -- Bad faith -- Action by sub-subcontractor on public construction project against surety on payment bond alleging surety had acted in bad faith in its handling of sub-subcontractor's claim against bond -- Releases -- Error to grant summary judgment in favor of defendant on ground that claim had been released under provisions of settlement agreement where broad release in favor of surety was limited in temporal scope to period ending on specified date, and bad faith claim did not accrue until after that date

32 Fla. L. Weekly D1280a
964 So. 2d 280NOT FINAL VERSION OF OPINION
Subsequent Changes at 32 Fla. L. Weekly D2326a

Insurance -- Medical malpractice -- Action by physician against insurer, alleging that defendant failed to exercise good faith in settling claim against physician -- Error to dismiss action on ground that section 627.4147, Florida Statutes, which requires that any settlement offer by insurer be made in good faith and in the best interests of the insured, does not create a private cause of action against the insurer

32 Fla. L. Weekly D2326a
964 So. 2d 280

Insurance -- Medical malpractice -- Action by physician against insurer, alleging that defendant failed to exercise good faith in conducting presuit investigation and settling claim against physician -- Trial court properly dismissed claim, finding that neither section 766.106 nor section 627.4147, upon which physician relied in making his claim, created a private cause of action against insurer -- Section 627.4147(a) requires malpractice insurance policies to grant insurer the sole authority to settle a claim where settlement is within policy limits, but requires that such settlement be made in the best interest of the insured -- Requiring that any settlement be in best interest of insured means the interest of insured's rights under policy, not some collateral effect unconnected with claim

32 Fla. L. Weekly D1787a

Venue -- Insurance -- Forum selection clause -- Insured's action against insurer alleging wrongful failure to defend -- Choice of law and forum selection clause contained in policy insuring plaintiff's gas station, which policy included coverage for defense costs incurred in administrative proceedings seeking to impose clean-up costs to insured due to underground pollution occurring at the gas station, was mandatory and must be enforced unless shown to be unreasonable or unjust -- Three-pronged test requires that chosen forum not be result of unequal bargaining power by one of parties, that enforcement of agreement not contravene strong public policy enunciated by statute or judicial fiat in the forum where litigation is required to be pursued or in the excluded forum, and that clause not transfer essentially local dispute into foreign forum -- Court rejects plaintiff's contention that enforcement of mandatory forum selection clause is unreasonable and unjust because it violates Florida's interest in environmental protection and insurance regulation -- Legislature has determined that Office of Insurance Regulation must review and approve insurance policies drafted by companies doing business in Florida, and policy at issue, including forum selection clause, was reviewed and approved by that agency -- Constitutional requirement of separation powers precludes court from directing legislative branch to adopt certain policy statements

32 Fla. L. Weekly D1797b

Insurance -- Trial court departed from essential requirements of law by allowing insureds to concurrently pursue first party breach of insurance contract claim and bad faith claim against insurer -- Under Florida law, it is inappropriate to litigate bad faith claim against insurer until underlying coverage dispute is resolved -- Error to deny insurer's motion to dismiss without prejudice as to bad faith/unfair settlement practices claim

32 Fla. L. Weekly D380a

Insurance -- Uninsured motorist -- Bad faith -- Trial court departed from essential requirements of law in denying insurer's motion to dismiss statutory claim for bad faith under sections 624.155 and 626.9541 where extent of damages has not been determined -- Insurer will suffer irreparable harm, which includes discovery of accident file, if it is forced to defend against both UM claim and bad faith claim simultaneously -- Remand with instructions to dismiss or abate bad faith claim until UM claim is resolved

32 Fla. L. Weekly D1791e 969 So. 2d 393 Insurance -- Homeowners -- Homeowners whose home was damaged by fire alleging insurer breached insurance contract by excluding depreciation and contractors' overhead and profit from its initial actual cash value payments and also alleging that withholding of payment for these items required insureds to retain counsel -- Circuit court acting in its appellate capacity departed from essential requirements of law by affirming county court order granting summary judgment in favor of insureds on ground that insurer's payment of certain funds subsequent to date suit was filed constituted a confession of judgment -- Confession of judgment doctrine does not apply in this case -- Prior to suit, insurer paid benefits to which plaintiffs were entitled under the policy and was abiding by its obligations under the loss settlement provision when it withheld final payment for replacement costs until insureds proved that they had performed act necessary under policy terms to entitle them to final payment -- Circuit court's error in affirming summary judgment resulted in miscarriage of justice because order awarded attorney's fees to insureds for bringing a premature suit against insurer, which was complying with its policy obligations -- Applying confession of judgment doctrine under circumstances would undermine statute's purpose by simultaneously rewarding unnecessary litigation and discouraging insurers' prompt compliance with their obligations

32 Fla. L. Weekly D1187a

Insurance -- Bad faith failure to settle -- Third party's action against insurer claiming insurer acted in bad faith in failing to settle her claim against insured -- Discovery -- Attorney-client privilege -- Trial court departed from essential requirements of law to the extent that it ordered insurer to produce documents without adequate consideration of attorney-client privilege possessed by either the insurer or its insured -- Communications between insurer and insurer's personal counsel regarding third party's wrongful death suit against its insured are clearly protected by attorney-client privilege -- Moreover, although plaintiff in original tort action against insured may “stand in the shoes” of the insured for the purposes of standing to bring a bad faith action, that position does not permit her access to otherwise privileged communications between the insured and his counsel in the wrongful death action, at least in the absence of a waiver of privilege by the insured or his written assignment of the bad faith claim -- A person does not waive or otherwise lose attorney-client privilege merely because a third party is authorized to file lawsuit against the person's insurance company -- Confidential communications between the insured, the insurer, and any counsel representing them regarding matter of common interest are protected by attorney-client privilege from discovery by third parties -- On remand, court must apply section 90.502 and case law interpreting it to determine whether documents insurer seeks to protect from disclosure are indeed ones protected by attorney-client privilege

32 Fla. L. Weekly D1514a

Insurance -- Automobile liability -- Discovery -- Trial court departed from essential requirements of law in ordering insurer to produce documents relating to its claims handling practices, even though the underlying coverage case has not been resolved and no bad faith case is pending -- No merit to claim that insurer opened door to such discovery by asserting defense of settlement

32 Fla. L. Weekly D262a

Insurance -- Automobile liability -- Excess liability -- Coverage -- Where first insurer's policy provided that if insured obtained other insurance, insurance under first policy would terminate on effective date of other insurance, and insured obtained policy from second insurer that was effective on day before he was involved in accident, first policy provided no coverage for liability resulting from accident -- Trial court erred in determining that first insurer is liable for pro rata share of settlement paid by second insurer

32 Fla. L. Weekly D460b

Insurance -- Automobile liability -- Coverage -- Family members -- Insurer was required to provide coverage for accident which occurred when insured's unlicensed son, who had been riding as passenger in friend's auto and who had been asked to drive when friend began feeling ill, struck moped and injured moped's passenger -- If objective of insurer is not to cover an underage, unlicensed family member, policy must state such an intention explicitly and plainly -- Policy at issue granted coverage to all covered persons, and the express definition of covered person included any blood relative of the named insured who resided in the same household and who did not own a private auto -- Nothing limited family coverage to only those family members having a valid driver's license; and all the words used in forms and policy are against the insurer's attempt to deny coverage -- Although insurer argued that son was excluded under provision excluding liability coverage for any person “using” a vehicle without a reasonable belief that the person is entitled to do so, a person may “use” a vehicle without actually driving it -- Meaning of this exclusion is more sensibly bound up with “using” a vehicle belonging to someone else while lacking probable reason to believe that one had consent to do so -- Sworn testimony by father and by insurer's officials to the effect that both parties to insurance contract intended that the policy would not cover son because he was unlicensed is irrelevant to construction of policy

32 Fla. L. Weekly D23a

Insurance -- Automobile liability -- Exclusions -- Exclusion for bodily injury sustained by any member of the family of an insured residing in the same household as the insured did not apply to exclude injuries to insured's sister who was temporarily residing with insured and who separately owned her own automobile and maintained insurance on that automobile -- Policy defines a “family member” as “a person related to you by blood, marriage or adoption who is a resident of your household,” “provided said family member does not own a private passenger automobile,” and injured sister owned her own automobile -- It is clear from plain meaning of words in policy that “family member” is the same thing as “member of the family” -- Declaratory judgment -- In bringing declaratory judgment action to determine its obligation to provide coverage under policy, insurer failed to join an indispensable party when it brought action against policy holder's husband but failed to join policy holder

32 Fla. L. Weekly D449c

Insurance -- Automobile liability -- Other insurance -- Bad faith -- Where driver of vehicle which hit pedestrian was covered by two policies, one of which contained a “pro rata” other insurance clause, and the other of which contained an “excess insurance” other insurance clause, effect is properly given to the “excess insurance” clause -- Where insurer whose policy contained “pro rata” other insurance clause defended action against insured, that insurer owed a duty of good faith to the excess carrier -- In excess carrier's action against primary carrier, alleging bad faith in the defense of insured, trial court erred in entering summary judgment for primary carrier on ground that primary carrier did not owe excess carrier a duty of good faith

32 Fla. L. Weekly D219a

Insurance -- Automobile liability -- Nonjoinder statute -- Plaintiff's action against liability insurer for breach of alleged agreement to repair plaintiff's automobile was properly dismissed for noncompliance with nonjoinder statute where plaintiff had not obtained a settlement or judgment against insured -- Presuit undertaking by automobile insurance carrier with third party for repair of property damage and payment of incidental costs caused by negligence of carrier's insured is not sufficient to satisfy conditions precedent of nonjoinder statute or to render statute inapplicable -- Presuit undertaking or agreement with insurer does not qualify as a settlement within meaning of nonjoinder statute because it does not occur within course of pending litigation in which insured is already a party -- Insurer's agreement to repair plaintiff's vehicle did not create a new and independent obligation

32 Fla. L. Weekly D48a

Insurance -- Automobile -- Section 319.30, Florida Statutes (2004), is inapplicable where vehicle is not a “total loss” as defined in statute -- Where there was no agreement between insurance company and vehicle owner to replace vehicle with one of like kind and quality, vehicle was not a total loss as defined in statute

32 Fla. L. Weekly D1390a

Civil procedure -- Dismissal -- Error to dismiss with prejudice premium finance companies' first amended complaint seeking class action status to recover interest on unearned premium refunds allegedly owed to them by insurance company -- Although order of dismissal is silent as to reason case was dismissed, defendants' motion to dismiss was based in part on plaintiffs' failure to attach insurance policies as required by rule 1.130 -- Dismissal with prejudice was improper and premature where plaintiffs alleged that the subject insurance policies were not in their possession but would be produced through discovery -- Reversed and remanded

32 Fla. L. Weekly D2353a Insurance -- Automobile -- Exclusions -- Intentional acts -- Appeal by husband and wife co-insureds from final declaratory judgment in favor of insurer holding that insureds' claims arising from incident in which wife crashed husband's car into wall of their family-operated car wash were excluded from coverage under automobile policy because their loss was result of an intentional act of wife -- Insured husband who filed a claim under collision provision for damage to his car is not excluded from coverage under provision excluding from coverage “any insured who” intentionally causes bodily injury or property damage, because policy language unambiguously restricts the exclusion to the “guilty” insured -- Clause excludes a particular insured, not a particular loss, and policy identifies the excluded insured as the insured “who intentionally causes” a loss -- Policy language plainly does not take away coverage of an innocent co-insured who did not intentionally cause property damage -- Phrase “any insured” does not always equate to joint coverage regardless of context in which it is used

32 Fla. L. Weekly D2113a

Insurance -- Automobile -- Cancellation of policy -- Return of unearned premium -- Interest -- Insurer required by statute to refund unearned premiums to premium financers within thirty days is liable for interest where the premiums are not refunded in thirty days -- Interest is due on late refunds to premium financers based on assignments to premium financers from insureds, which give premium financers same right as insureds to receive interest under Section 627.7283, and based on common law right to recover interest, where premium has not been refunded within statutory grace period

32 Fla. L. Weekly D359b

Insurance -- Uninsured motorist -- Attorney's fees -- Contingency risk multiplier -- Although insured who prevailed in breach of contract action against insurer was entitled to award of attorney's fees under offer of judgment statute, insured was not entitled to contingency risk multiplier of fees under section 624.155, Florida Statutes, where insured did not bring a bad faith action against insurer under section 624.155 -- Amended complaint asserting bad faith action against insurer was a legal nullity where insured never received leave of court to amend complaint

32 Fla. L. Weekly D2701a

Attorney's fees -- Proposal for settlement -- Ambiguities -- Insurance -- Uninsured motorist -- Trial court correctly struck proposal for settlement served on plaintiff's uninsured motorist insurer on ground that proposal was ambiguous -- Proposal contained conflicting provisions in that one paragraph stated proposal was meant to resolve all claims against defendant and one paragraph stated that proposal was for “full settlement of the claims raised in the suit” against defendant -- Further, proposal was unclear whether it addressed bad faith claim that had been noticed under civil remedies statute -- Ambiguity in proposal was patent

32 Fla. L. Weekly D1678a

Attorney's fees -- No error in denying insured's request for attorney's fees under section 627.428(1) for insured's defense of declaratory action that resulted in finding of no coverage and entry of summary judgment in favor of insurer -- There were two requests for relief between insured and insurer, the first of which was insurer's petition for declaratory judgment on coverage issue, and the second of which was insured's counter-petition seeking declaration that insurer owed defense of wrongful death action against insured and that general liability and umbrella policies provided coverage -- On duty to defend, insurer conceded the issue from the start, providing a defense to insured under reservation of rights so that insured's request for declaration on duty to defend was unnecessary and could not serve as basis for attorney's fees award -- On coverage issue, insurer prevailed -- Trial court ultimately ruled in wrongful death action that plaintiff's wrongful death claim against insured was barred by workers' compensation statute, and trial court granted summary judgment for insurer on coverage issue based upon workers' compensation exclusion

32 Fla. L. Weekly D2672a

Insurance -- Attorney's fees -- No error in awarding attorney's fees and costs to insured under section 627.428, Florida Statutes (2003), where insured submitted proof of loss and insurer made initial payments, insured filed suit for failure to pay amounts she believed were owed and insurer contested the claim, and insurer ultimately invoked appraisal process and later tendered additional payments pursuant to results of appraisal -- Court cannot conclude that insured filed her breach of contract lawsuit for improper purpose of generating attorney's fees

32 Fla. L. Weekly D548b
948 So. 2d 1027

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

32 Fla. L. Weekly D526a Insurance -- Contribution between insurers -- Where insured was covered by business auto policy issued by one insurer and specified medical professional and specified general liability policy issued by another insurer, and parties entered into settlement agreement for settlement of claim against insured, with parties signing general release, hold harmless and indemnity agreement in which they agreed not to litigate against each other, one insurer was not entitled to recover from the other insurer attorney's fees incurred in defending insured -- Insurer waived its right to seek contribution for attorney's fees from other insurer when it entered into release agreement without preserving its right to do so

32 Fla. L. Weekly D2766c

Insurance -- Attorney's fees -- Costs -- Where homeowners insurer petitioned trial court for appointment of an umpire after appraisers could not agree on an umpire, and insured's response agreed that an umpire should be appointed, insured was not entitled to attorney's fees pursuant to section 627.428 when insurer filed a voluntary dismissal after court entered order appointing an umpire -- Trial court's order appointing umpire did not amount to an order against insurer and in favor of insured for purposes of section 627.428(1) -- Once insurer filed its voluntary dismissal, insured was entitled to costs under rule 1.420(d)

NOT FINAL VERSION OF OPINION
Subsequent Changes at 33 Fla. L. Weekly D175b

32 Fla. L. Weekly D2519a

Insurance -- Uninsured motorist -- Error to enter judgment for insured against insurer for amount in excess of policy limits where there was no allegation or showing of bad faith on part of insurer -- Insurer did not waive or fail to preserve issue -- Attorney's fees -- Insurer is entitled to appellate attorney's fees pursuant to section 57.105 because insured's counsel knew or should have known that his proposed final judgment was not supported by existing law when he presented it for entry to trial court, and his defense of the amount of the final judgment on appeal was without merit

32 Fla. L. Weekly D7a

Insurance -- Personal injury protection -- Examination under oath -- Policy at issue did not provide for examination under oath for purposes of PIP claims -- Although liability provision of policy required examinations under oath as part of duties of a “person seeking coverage,” that section is replaced by a different section in the PIP coverage -- Pursuant to that section, “Duties After an Accident or Loss,” PIP claimant must promptly give insurer written proof of claim, under oath if requested, but no examination under oath is required by the clear and unambiguous terms of policy

32 Fla. L. Weekly D760a

Insurance -- Health -- Assignment -- Anti-assignment provision of benefits clause in health insurance policy was enforceable, unambiguous, and in accord with public policy -- Policy clearly and prominently stated that it would not honor assignments of benefits to non-participating providers and that all benefits for covered services rendered by non-participating providers would “always” be paid “directly to the Insured” -- No Florida case or statute requires specific verbal formula for ban on assignments to be effective, and cases cited by provider as precedent to support challenge to anti-assignment provision turn on scope of anti-assignment clause, not on whether language of clause was precise enough to be effective -- Anti-assignment clauses prohibiting insured's assignments to out-of-network medical providers are in accord with public interest in limiting health care costs

32 Fla. L. Weekly D537a

Insurance -- Homeowners -- Appraisal -- No abuse of discretion in denying rule 1.540 motions seeking to vacate order confirming appraisal award, to vacate appraisal award and compel reappraisal, and to disqualify homeowner's appraiser because of his bias against Citizens Property Insurance Corporation -- Insurer's argument was based upon erroneous premise that appraiser's unquestionable personal bias against insurer rendered him incompetent to serve as appraiser in the present case -- Language of policy required only that parties select a “competent” appraiser, and record clearly established that homeowner's appraiser was competent by virtue of his unquestionable prior experience and/or expertise -- Competence is not synonymous with neutrality or independence and, in fact, policy language required only that umpire selected in the event that appraisers could not agree be both competent and independent

32 Fla. L. Weekly D2679f
969 So. 2d 1133

Insurance -- Homeowners -- Appraisal -- Where insured was compelled to file suit against insurer when insurer refused to pay what even its own adjusters determined to be the amount of insured's loss due to hurricane damage, appraisal process resulted in award to insured of significantly more than adjuster had estimated, insurer continued to fail to pay full amount of insured's loss, and insurer finally filed balance of appraisal award into escrow on day insurer's motion for partial final judgment of dismissal was heard, appropriate course of action was for court to confirm appraisal award and enter final judgment thereon -- Error to dismiss insured's complaint with prejudice

32 Fla. L. Weekly D1522a Contracts -- Insurance -- Life insurance -- Torts -- Negligence -- Action alleging breach of contract by life insurance company and negligence by life insurance company and an individual licensed medical assistant who worked for an entity that provided medical examination services to the company and who assisted insured in the completion of his life insurance application, filed by trust beneficiary of policy and insured's widow after company rescinded policy following insured's death after unsuccessful surgery to remove brain tumor -- Circuit court properly considered insured's medical records in ruling on defendants' motion for summary judgment -- Error to grant summary judgment in favor of insurance company on breach of contract claim where factual issue existed concerning what insured knew about his health at time of application -- Although the general rule under controlling statute is that “a misstatement in, or omission from, an application for insurance need not be intentional before recovery may be denied pursuant to 627.409,” this rule was inapplicable because the insured's signed application contained the declaration that the information given was “correctly recorded, complete, and true” “to the best of my knowledge and belief” -- Further, insured's answers to certain question regarding his medical history were impacted by explanations provided by medical assistant -- No error in entering summary judgment in favor of medical assistant on negligence claim, as medical assistant owed no legal duty to insured or to plaintiffs -- Medical assistant was acting as agent of insurance company in filling out insurance application, and if she negligently misled insured in the application process, the insurance company is “estopped” from relying on resulting errors in the application to deny or revoke coverage

32 Fla. L. Weekly D120b

Administrative law -- Licensing -- Insurance agents -- Default -- Order of administrative law judge recommending that Department of Financial Services enter final order determining that application to be licensed as insurance agent “has been granted by operation of law” under default provision of section 120.60(1) -- ALJ, who sua sponte raised and decided issue of default after final hearing without giving parties opportunity to present evidence and argument, departed from essential requirements of law by denying DFS due process

32 Fla. L. Weekly D399a

Contracts -- Commercial leases -- Where landlord filed complaint against tenant for damages to premises caused by fire, trial court erred in dismissing tenant's third-party complaint asserting indemnification against insurer from whom tenant had obtained commercial policy containing all risk coverage from perils, including fire

32 Fla. L. Weekly D120a

Administrative law -- Licensing -- Insurance agents -- Default -- Order of administrative law judge recommending that Department of Financial Services enter final order determining that application to be licensed as insurance agent “has been granted by operation of law” under default provision of section 120.60(1) -- ALJ, who sua sponte raised and decided issue of default after final hearing without giving parties opportunity to present evidence and argument, departed from essential requirements of law by denying DFS due process