2008

34 Fla. L. Weekly D1166a
14 So. 3d 1100

Insurance -- Personal injury protection -- Appeals -- Circuit court acting in its appellate capacity improperly granted medical provider's motion to dismiss insurer's appeal from county court judgment entered in favor of medical provider on ground that circuit court lacked jurisdiction because insurer had failed to timely appeal county court's earlier order striking insurer's pleadings and entering default judgment as sanction for insurance adjuster's repeated failure to give requested deposition -- There is no authority for non-final appeal from an order striking a defendant's pleadings and entering a default under current version of rule 9.130(a)(3)(C), as amendment to rule resulted in removal of provision for appeals of orders determining liability in favor of a party seeking affirmative relief -- Such orders are not appealable until final judgment -- Even if order were appealable as an interlocutory appeal, insurer still had the right to wait to appeal the order after final judgment in a plenary appeal -- Dismissal of appeal quashed -- Remand to circuit court for further proceedings

33 Fla. L. Weekly D19a

Torts -- Insurance -- Uninsured motorist -- Medical expert -- In action against tortfeasor and uninsured motorist insurer, it was improper for trial court to limit defendants' choice of defense medical expert to the doctor who had examined plaintiff and evaluated his claim for personal injury protection benefits under policy

33 Fla. L. Weekly D2665b

Insurance -- Uninsured motorist -- Limitation of actions -- Error to deny claim for uninsured motorist benefits as barred by statute of limitations where claim was a compulsory counterclaim -- Where plaintiff and defendant were both insured under policy, plaintiff sued defendant to recover for injuries she had received while a passenger in vehicle driven by defendant, and insurer filed complaint requesting declaration that liability portion of policy afforded defendant no coverage and did not obligate insurer to defend defendant, plaintiff's claim that coverage was afforded to her under uninsured motorist portion of policy was a compulsory counterclaim

33 Fla. L. Weekly D1691b

Insurance -- Uninsured motorist -- Evidence -- Trial court abused its discretion by excluding testimony of insured's accident reconstruction expert as sanction for non-compliance with court's discovery orders -- Circumstances of discovery violations were not sufficiently compelling to justify striking of insured's most important witnesses, and insurer did not stand to suffer any prejudice -- As prescribed by court order, witness provided his files to plaintiff's counsel within 15 days and scheduled his deposition within 30 days -- Although expert did not create report within allotted 15 days, court struck him as witness before his scheduled deposition -- Expert's report was created within 3 days of his being struck by the court and were it not for trial court's order striking expert as a witness, defense counsel would have obtained expert's final report and deposed him months before trial -- New trial required

33 Fla. L. Weekly D2782a
995 So. 2d 1135

Insurance -- Underinsured motorist -- Damages -- Verdict form -- Verdict form was improper where jury was not required to determine future economic damages and future non-economic damages unless they determined that insured had sustained permanent injury -- Although future economic damages may be awarded even where jury does not find any permanent injury, erroneous verdict form was harmless where there was no evidence of future medical expenses reasonably certain to occur, and award of past damages was minimal -- Error to grant insured new trial on basis of erroneous verdict form

33 Fla. L. Weekly D958e

Insurance -- Uninsured motorist -- Coverage -- Bodily injury sustained while occupying or getting into or out of automobile -- Where driver of tow truck had parked tow truck on median of highway, took towing cable off tow truck, pulled cable toward disabled vehicle, dropped cable, and walked down into median twenty to twenty-five feet from cable and twenty to twenty-five feet from tow truck at time he was hit and killed by uninsured vehicle, driver was not occupying the insured tow truck at time of the accident -- Error to enter summary judgment for driver's estate on claim for entitlement to uninsured motorist benefits

33 Fla. L. Weekly D1447a

Insurance -- Uninsured motorist -- Trial court properly entered summary judgment in favor of insurer in insured's action seeking to recover under uninsured/underinsured motorist provision of policy, where insured settled her case with tortfeasor and released tortfeasor without first notifying insurer and obtaining insurer's consent, contrary to section 627.727(6)(a), Florida Statutes -- Insured's failure to comply with statutory provision created presumption of prejudice to insurer -- Where insured first submitted her affidavit to rebut presumption of prejudice to insurer when she filed motion for rehearing, and failed to show any compelling reasons or exigent circumstances to excuse affidavit's tardy filing, trial court did not abuse discretion in denying motion for rehearing

33 Fla. L. Weekly D241a

Civil procedure -- Class actions -- Competing class action suits against title insurance companies which merged during pendency of litigation -- Trial court erred in certifying settlement class, approving settlement agreement, and approving award of attorney's fees and costs in one action over objection of plaintiffs in competing actions -- Where plaintiff and defendant entered into settlement agreement before plaintiff sought class certification, trial court was required to apply heightened scrutiny before approving either settlement or class certification -- Where defendant prevented plaintiffs and their counsel in competing actions from becoming aware of and objecting to expansion of plaintiff's class action lawsuit to the detriment of the plaintiffs in the competing actions, defendants in the actions are estopped from claiming that their merger renders the competing actions unsupportable -- Because plaintiff expanded the class without notice to the expanded class and class counsel, settled the expanded class action before seeking certification of the class, and was to receive a payout far in excess of the class members, trial court erred in failing to apply heightened scrutiny, to make specific findings, and to articulate facts upon which it relied in certifying the class and accepting plaintiff as class representative -- Error to approve class action settlement which was inadequate and unfair -- Settlement notice failed to provide class members with essential information and was misleading

33 Fla. L. Weekly D2380b

Insurance -- Summary judgment -- Error to enter summary judgment for plaintiff insurer where defendant's pro se “statement of defense” filed and served in response to plaintiff's subrogation claim raised facially genuine and material issues of fact

33 Fla. L. Weekly D1993a

Contracts -- Insurance -- Subrogation -- Breach of contract action by property insurer, as subrogee of its insured paving contractor whose plant was damaged during negligent installation of a stationary batch asphalt plant, against the manufacturer of the asphalt plant -- Action was not barred by risk of loss provisions in contract between insured and defendant which related to losses during shipment, not losses arising from defendant's negligent performance of contract services subsequent to shipment -- Risk of loss provisions did not clearly express an intent to indemnify defendant against its own negligence -- Action was not barred by warranty, disclaimer and release provisions in contract because these provisions pertain to product defects, not defendant's performance of services -- Interest -- Court did not err in calculating prejudgment interest from date plaintiff insurer paid its insured's claim rather than from the date insured's claim became liquidated -- Appellate attorney's fees -- Proposal for settlement -- Plaintiff's claim for appellate attorney's fees is not precluded by defendant's bankruptcy discharge and stipulation entered into by plaintiff, defendant, and defendant's insurer, which stated that defendant's bankruptcy discharge injunction did not prohibit plaintiff from pursuing action against defendant solely for purpose of recovering available insurance proceeds which cover the claim -- Attorney's fees are included within the meaning of “the claim”

33 Fla. L. Weekly D2803a
995 So. 2d 1175

Insurance -- Subrogation -- Torts -- Security company -- Action by insurer as subrogee of insured warehouse owner against security company which had contracted with alarm company to respond to alarms at insured warehouse, seeking to recover monies paid on insured's claim for merchandise stolen after security company allegedly failed to respond to alarm at warehouse -- Error to dismiss negligence and breach of contract claims against security company on ground that security company owed no duty to warehouse owner -- Although security company contracted with alarm company, and not with warehouse owner, warehouse owner was an intended beneficiary of contract -- Security company undertook to render services which were necessary to protect property of alarm company customers, and complaint sufficiently pleads cause of action against security company under undertaker doctrine

33 Fla. L. Weekly D1444a

Insurance -- Uninsured motorist -- Stacking -- Trial court erred in determining that rejection of stacked coverage by husband was invalid where named insured under policy was wife -- Where husband applied for insurance, and signed application for insurance and form rejecting stacked coverage, husband was acting for his wife, the named insured, in securing insurance coverage and rejecting stacked uninsured motorist coverage

33 Fla. L. Weekly D1927a

Insurance -- Underinsured motorist -- Settlement -- Error to enter order compelling settlement where plaintiff failed to demonstrate by competent substantial evidence that there was a meeting of the minds sufficient to create an enforceable settlement agreement -- Voice mail message mistakenly sent from insurer's employee to plaintiff's counsel regarding replacement of a stale settlement check was not sufficient to establish meeting of the minds for settlement purposes

33 Fla. L. Weekly D2844g
999 So. 2d 693

Insurance -- Reinsurance -- Insolvent insurers -- Interpretation of structured reinsurance contract between reinsurer and property and casualty insurer where reinsurer paid coverage limits, less three quarterly premiums that were scheduled to be paid in future months, for hurricane loss, insurer became insolvent, Department of Financial Services was appointed receiver of insurer, and reinsurer gave notice of intent to terminate contract -- Reinsurer properly deducted premiums not yet paid from loss payment to insurer -- Trial court erred in finding that reinsurer wrongfully retained offset for unpaid premiums when it paid policy limit -- Trial court erred in finding that reinsurer was not entitled to recover non-renewal charge as provided in contract -- Funds in trust account created pursuant to contract are not part of receivership estate, and reinsurer is entitled to non-renewal charge to be paid from that account

33 Fla. L. Weekly D1201a

Insurance -- Personal injury protection -- Withdrawal of benefits -- Medical report issued for withdrawal of PIP benefits is not required to be based upon a physical examination of the insured that is personally conducted by the physician issuing the report -- Medical report may be based on physical examination of insured that is conducted by either the physician preparing the report or another physician's examination -- A valid report by physician is required where insurer attempts to reduce, withdraw, or deny PIP benefits on grounds of reasonableness, necessity, or relationship -- Conflict certified

33 Fla. L. Weekly D811a
979 So. 2d 324

Insurance -- Personal injury protection -- Claim for overdue benefits -- Presuit demand letter -- Where insureds failed to provide insurer with presuit demand letter as required by section 627.736(11) before filing their lawsuit for unpaid PIP claims, trial court erred in granting insureds' motion for summary judgment -- There was material disputed issue of fact as to whether insurer denied insureds' claim, thereby relieving insureds of obligation to provide insurer with presuit notice -- Presuit demand requirements of statute were applicable although policy was issued and accident occurred prior to effective date of statute -- Statute's application is dependent upon the date of treatment and services and when the lawsuit is filed, not when the policy was issued or when the accident occurred -- Application of statute's presuit notice requirements to pre-existing policy does not violate constitutional prohibition of laws impairing existing contracts because application of statute to claim for PIP benefits is procedural in nature, and it does not alter any contractual or vested right -- Presuit demand requirements apply to claims for wage loss benefits -- Insureds waived argument that their lawsuit was merely premature, and should have been abated until their failure to comply with statutory condition precedent was cured, where insureds willfully failed to request abatement or to voluntarily dismiss and refile their lawsuit after they were put on notice that the lawsuit was at best premature -- Demand letter sent eleven months after initiation of litigation was of no legal effect -- Remand for trier of fact to resolve question of whether insurer denied or reduced claim -- If insurer did not deny or reduce claim, insureds are barred from recovery under insurance contract

33 Fla. L. Weekly D839a
18 So. 3d 1059

Insurance -- Personal injury protection -- Section 627.736(7)(a), Florida Statutes, which requires a valid report based on a physical examination conducted by a similarly licensed physician before payment can be withdrawn, is not applicable when the insurer seeks to deny a single payment for treatment -- Circuit court violated clearly established principle of law resulting in miscarriage of justice when it affirmed county court judgment finding that insurer was precluded from defending against chiropractor's claims for PIP benefits because insurer denied payment for diagnostic tests before obtaining report based on physical examination by similarly licensed physician

33 Fla. L. Weekly D1174a
985 So. 2d 10

Insurance -- Personal injury protection -- Coverage -- Magnetic resonance imaging -- Challenge to application of section 627.736(5)(b)5, Florida Statutes, (2003), which provides for an adjustment of allowable amount for MRI fees by an additional amount equal to Consumer Price Index -- MRI inflation adjustment called for by Section 627.736(5)(b)5 is to be made for year 2001 -- Trial court properly relied on 2003 amendment to statute to establish the date for the annual CPI adjustment, in ruling that MRI provider was entitled to a CPI adjustment to Medicare Part B fee schedule for 2001 (base price) for MRI services rendered on August 5, 2002 -- Under Section 627.736(5)(b)5, the statutory adjustment is applicable to the MRI fee schedule annually and cumulatively commencing August 1, 2002, to date of subject scan -- Trial court correctly concluded that 2003 amendment to Section 627.736(5)(b)5 required applying cumulative and compounding inflation adjustments for 2001, 2002, and succeeding years, so that the fee schedule amount for the year in question will reflect the combined prior year's increases from 2001 through August 1st of year in which MRI scan is performed -- This construction does not result in unconstitutional retroactive application of statute; rather, it involves application of a statute which became effective October 1, 2003, to an MRI scan performed later in 2005

33 Fla. L. Weekly D1052a
985 So. 2d 10

NOT FINAL VERSION OF OPINION
Subsequent Changes at 33 Fla. L. Weekly D1174a

Insurance -- Personal injury protection -- Coverage -- Magnetic resonance imaging -- Challenge to application of section 627.736(5)(b)5, Florida Statutes, (2003), which provides for an adjustment of allowable amount for MRI fees by an additional amount equal to Consumer Price Index -- MRI inflation adjustment called for by Section 627.736(5)(b)5 is to be made for year 2001 -- Trial court properly relied on 2003 amendment to statute to establish the date for the annual CPI adjustment, in ruling that MRI provider was entitled to a CPI adjustment to Medicare Part B fee schedule for 2001 (base price) for MRI services rendered on August 5, 2002 -- Under Section 627.736(5)(b)5, the statutory adjustment is applicable to the MRI fee schedule annually and cumulatively commencing August 1, 2002, to date of subject scan -- Trial court correctly concluded that 2003 amendment to Section 627.736(5)(b)5 required applying cumulative and compounding inflation adjustments for 2001, 2002, and succeeding years, so that the fee schedule amount for the year in question will reflect the combined prior year's increases from 2001 through August 1st of year in which MRI scan is performed -- This construction does not result in unconstitutional retroactive application of statute; rather, it involves application of a statute which became effective October 1, 2003, to an MRI scan performed later in 2005

33 Fla. L. Weekly D2146a
990 So. 2d 633

Insurance -- Personal injury protection -- Trial court properly entered directed verdict for defendant insurer in action by insured's medical provider on ground that insured failed to report for two consecutive independent medical examinations without explanation -- Insured's submission to independent medical examination is a condition precedent to coverage -- Circuit court appellate division departed from essential requirements of law by reversing trial court's directed verdict

33 Fla. L. Weekly D1846b

Insurance -- Personal injury protection -- Untimely bills -- Decision of circuit court appellate division, concluding that insurer waived right to assert that medical bills submitted for payment by medical provider were untimely, amounted to violation of clearly established principle of law resulting in miscarriage of justice -- Insurer has no obligation to pay late-filed bills -- Neither submitting of untimely bills along with timely bills to an independent medical examiner for determination of medical necessity, nor failing to check “late billing” as reason for denying payment of untimely bills on explanation of benefits form, constitutes waiver

33 Fla. L. Weekly D1746a
990 So. 2d 3

Insurance -- Personal injury protection -- PIP insurer is not required to set aside a reserve fund for claims that are reduced or denied when other valid health care provider claims continue to be submitted -- In absence of a showing of bad faith, PIP insurer is not liable for benefits once benefits have been exhausted -- Where insurer denied health care provider's claim based on results of independent peer review, health care provider mailed insurer a 15-day demand letter demanding that its bills be paid and requesting that insurer hold monies in trust until disputed amount is settled, but insurer continued paying or denying claims from health care providers as they were submitted until insurance benefits had been exhausted, circuit court acting in its appellate capacity departed from essential requirements of law in finding that insurer violated health care provider's right to priority payment and therefore may be liable for claim plus statutory interest and penalties

33 Fla. L. Weekly D2543a

Insurance -- Personal injury protection -- Breach by insurer -- Failure to pay benefits -- Summary judgment properly granted in favor of insurer on claim that insurer failed to pay personal injury protection benefits mandated by Florida's PIP statute and the automobile insurance policy when insurer paid $8,000 of basic PIP benefits and $2,000 of additional PIP benefits, where unambiguous terms of policy did not provide for payment of any more than $10,000 of PIP or APIP payments, and insurer paid that amount

33 Fla. L. Weekly D1819b

Administrative law -- Office of Insurance Regulation -- Appeal of final order dismissing with prejudice insurance company's amended petition seeking formal administrative hearing of agency's requirement that company cease selling its long-term care insurance policies because of company's failure to submit annual rate certification filing -- OIR abused its discretion in not granting company leave to amend its amended petition where it was not apparent from face of amended petition that pleading defects could not be cured -- Fact that company submitted its rate filing untimely does not constitute defect in petition -- Moreover, amended petition raised new issues which arose after the filing of the original petition, and company has represented that it can allege specific disputed facts to support an amended petition for a formal hearing

33 Fla. L. Weekly D1947a

Torts -- Negligence -- Dismissal -- Nonjoinder of insurers -- Trial court erred in dismissing negligence complaint against insurer based on section 627.4136, Florida Statutes, ruling that insurer was not a first-party insurer, where language in unauthenticated document that formed basis for trial court's dismissal contained language that could be construed as directly indemnifying plaintiff for any losses sustained

33 Fla. L. Weekly D1343b

Insurance -- Homeowners -- Valued Policy Law -- Total loss resulting from covered and excluded perils

33 Fla. L. Weekly S224a

Insurance -- Homeowners -- Valued Policy Law -- Total loss resulting from covered and excluded perils

33 Fla. L. Weekly S223b

Insurance -- Homeowners -- Valued Policy Law -- Total loss resulting from covered and excluded perils

33 Fla. L. Weekly S223a

Insurance -- Homeowners -- Valued Policy Law -- Total loss resulting from covered and excluded perils

33 Fla. L. Weekly D2852a
2 So. 3d 360

Torts -- Insurance -- Subrogation -- Where homeowners policy provided for right of subrogation, insurer paid insured for fire loss to home, and insurer assigned its right of subrogation to insured, insured could properly maintain action against manufacturer of defective surge protector which allegedly caused fire

33 Fla. L. Weekly D1237a

Administrative law -- Licensing -- Office of Insurance Regulation abused discretion in denying application for approval of health flex plan on ground that applicant's owner had been named in a civil suit brought by the United States government alleging that he had committed fraud in relation to the practice of medicine -- Where applicant presented competent substantial evidence that it was entitled to administer a health flex plan, and there was no evidence regarding the truth or falsity of the allegations in the civil suit, it was improper to deny the application on the basis of a suspicion of wrongdoing or untrustworthiness

33 Fla. L. Weekly D1040a

Insurance -- Homeowners -- Exclusions -- Injury arising out of ownership, maintenance, use, loading or unloading of motor vehicle -- Injury to tenant who drove insured's automobile onto ramps on insured property's driveway, positioned himself underneath automobile to change the oil, and was injured when concrete driveway collapsed, causing automobile to fall on tenant -- Injury occurred because of defective driveway, and there was no causal connection between use and maintenance of the automobile and the injuries -- Automobile was merely the instrumentality of the injuries, and maintenance of the automobile was coincidental -- Error to enter summary judgment finding no coverage under policy

33 Fla. L. Weekly D1789a

Insurance -- Homeowners -- Exclusions -- No error in finding as a matter of fact that water damage in insureds' home fell within exclusion for “continuous or repeated leakage or seepage of water,” where leakage of water from a toilet supply line damaged the home and loss occurred over period of time

33 Fla. L. Weekly D1454a

Insurance -- Underinsured motorist -- Evidence -- Impeachment -- Trial court did not abuse its discretion in precluding insurer from impeaching insured with discrepancy between insured's prior deposition testimony regarding amount she earned as a waitress and amount of income she reported for the same period on her tax returns where insured dropped lost wage claim on day of trial -- Once wage loss claim was dropped, issue of income became a collateral matter, and impeachment on collateral matter is not permissible

33 Fla. L. Weekly D565a

Insurance -- Personal injury protection -- Discovery -- Payout log

33 Fla. L. Weekly D1996a

Insurance -- Professional liability -- Excess insurance -- Coverage -- Punitive damages and attorneys' fees awarded in wrongful death suit against insured -- Primary policy's definition of damages as “any compensatory amount which [the] insured is legally obligated to pay” was unambiguous and covered only compensatory damages -- Accordingly, coverage for punitive damages and attorneys' fees was excluded from excess policy, which applied only to damages covered by primary policy and was subject to same exclusions -- Use of phrase “compensatory amount” as opposed to “compensatory damages” does not change result -- Moreover, even if definition of “damages” contained in primary policy could be read to include punitive damages, primary policy's exclusions precluded coverage because they specifically excluded coverage for “civil penalties or fines” levied against the insured, and courts have described punitive damages as “nothing more than civil fines determined by juries instead of judges” -- Attorney's fees are not covered because policies did not expressly provide coverage for attorneys' fees awarded against insured in litigation, and Florida courts have held that attorneys' fees are not damages -- Error to enter summary judgment in favor of insured -- On remand, insured may pursue its claim that it was entitled to coverage for punitive damages on theory of promissory estoppel because primary insurer's agent had expressly represented to it that insurance policy did not have exclusion for punitive damages and that such representation induced insured to purchase policy -- Although issue was raised below, it was not addressed by trial court and was not fully developed

33 Fla. L. Weekly D166a

Insurance -- Personal injury protection -- PIP payout log -- Circuit court, acting in its appellate capacity, applied incorrect law by finding that section 627.736(6)(d), Florida Statutes (2003), requires an insurer to provide its PIP payout log to an insured or the insured's assignee

33 Fla. L. Weekly D35b

Insurance -- Personal injury protection -- PIP payout log -- Insurer was not required to provide PIP payout log to insured's assignee -- County court properly granted summary judgment for insurer in medical provider's action seeking declaratory judgment that insurer improperly failed to respond to provider's pre-suit request that insurer provide a payout log -- Circuit court departed from essential requirements of law in reversing county court's entry of summary judgment in favor of insurer

33 Fla. L. Weekly D283b

Civil procedure -- Discovery -- Privilege -- Work product -- Insured's breach of contract action against insurer -- Appellate court unable to tell from record whether trial court departed from essential requirements in ordering insurer to produce certain documents, including reports written by and communicated among insurance adjusters prior to determination of coverage and extent of damages, despite insurer's claim of work product privilege -- Trial court did not conduct in camera inspection, and no copy of privilege log, if prepared and filed below, was made part of appellate record -- Remand for further proceedings at which trial court shall determine whether items ordered to be produced constitute work product, and if so, whether insured is entitled to discovery of them pursuant to rule 1.280 notwithstanding work product designation

33 Fla. L. Weekly D752a

Insurance -- Personal injury protection -- Discovery -- Circuit court, acting in its appellate capacity, applied incorrect law when it found that section 627.736(6)(d), Florida Statutes (2003), requires an insurer to provide in presuit discovery its payout log to insured or insured's assignee and that if assignee “is forced to file a lawsuit of an insurance company's pre-litigation refusal to provide the log, a post-litigation production of the document is tantamount to a confession of judgment” -- Statute does not provide for or address insured's right to access documents prepared internally by the insurer, and an insurer's PIP payout log is a document generated by the insurer, not a document the insurer obtained pursuant to subsection 627.736(6)

33 Fla. L. Weekly D2204b

Insurance -- Discovery -- Claim file -- Non-final order compelling production of documents and interrogatory responses over insurance carrier's claims of work product privilege and irrelevance quashed, to extent it ordered production of documents in the claim file

33 Fla. L. Weekly D469a

Insurance -- Discovery -- Order allowing party to take deposition of insurer's corporate representative and requiring insurer to produce documents regarding whether party is an owner or lien holder of insured aircraft is overly broad -- To extent order requires production of insurer's claims files while parties are engaged in coverage dispute, order causes irreparable injury by allowing discovery of material protected by work product privilege -- On remand, trial court may enter order permitting deposition limited to deposition of underwriter with corporate knowledge of whether party is an owner or lien holder

33 Fla. L. Weekly D200a

Insurance -- Disability -- No error in entering summary judgment in favor of insurer on counts for breach of contract and declaratory judgment in which plaintiff contended that coverage under supplemental disability policy was to have increased from original coverage amount of $2,000 a month to over $6,000 a month when separate employer-provided disability policy terminated -- Trial court did not err in concluding that no ambiguity was created by asterisked notations added to policy application by plaintiff -- Record reflected not only that plaintiff was purchasing a $2,000 policy, but that plaintiff's asterisks and notation made it clear that he was not discontinuing his separate policy; and nowhere in application did it say that new policy would increase when old policy ceased to provide coverage -- Torts -- Economic loss rule -- No error in dismissing counts for fraud in inducement and negligent misrepresentation based on economic loss rule

33 Fla. L. Weekly D1154b

Contracts -- Insurance -- Disability -- Error to enter final summary judgment in baseball team's action for breach of contract and declaratory judgment seeking disability insurance coverage where there were genuine issues of material fact as to whether insurer assented or waived compliance with condition precedent in policy and whether insurer's authorized representative's knowledge about transfer in team's ownership constituted knowledge by the insurer

33 Fla. L. Weekly D2870c
997 So. 2d 1194

Insurance -- Uninsured motorist -- Discovery -- Work product -- Insurer's claims file constitutes work-product and is not subject to discovery until insurer's obligation to provide coverage and benefits is determined -- Order requiring insurer to produce its claims file to its insured constituted a departure from essential requirements of law -- No error in permitting limited deposition of insurer's claims adjuster

33 Fla. L. Weekly D1615a

Insurance -- Group health -- Foreign insurers -- Class action for breach of contract and declaratory judgment alleging that insurer improperly raised premiums -- Insureds may bring action against insurer under Chapter 627 if they can tie alleged violations to specific statutory language and establish entitlement to relief -- Plaintiff did not adequately plead breach of contract claim where she identified several statutory sections that may have been violated by contract, but failed to indicate how she, herself, had suffered because of these violations -- Although plaintiff claimed breach caused her to suffer monetary loss in excess of $1500, she failed to tie this loss to a statutory violation -- With respect to declaratory relief claim alleging that insurer improperly discriminated by increasing premium rates based on claimants' history/health status, in violation of Florida law, premium increase plaintiff cited to was for her entire classification group, not based on individual health-status-related factors -- Additionally, attached as exhibit to complaint was letter from trustee of association through which plaintiff received insurance stating that the trustees approved rate adjustment, suggesting that trustees of association, rather than insurer, raised the premiums -- Declaratory relief is available to determine whether general provisions of Part VII of Chapter 627 are applicable to an out-of-state policy, but only if claimant adequately alleges a potential claim based on the application of Part VII to the policy -- No error in dismissing complaint

33 Fla. L. Weekly D1693a

Administrative law -- Condominiums -- Division of Florida Land Sales, Condominiums, and Mobile Homes erroneously determined, in declaratory statement, that items, such as Jacuzzis, trellises, and screen enclosures, which were purchased, installed, may be removed, and are usable only by individual unit owners are “condominium property,” which must be insured by condominium association, merely because they are located on the patio outside the individual unit rather than inside the unit

33 Fla. L. Weekly D1372b

Insurance -- Commercial liability -- Exclusions -- Injury suffered by independent contractor during course and scope of her employment with insured -- Coverage was excluded under independent contractor exclusion which excluded bodily injury “arising out of operations performed for you by independent contractors” -- Coverage was excluded under cross liability exclusion which excluded bodily injury arising out of actions initiated or caused to be brought about by any insured covered by policy against any other insured covered by policy -- Exclusions are not ambiguous

33 Fla. L. Weekly S392a

Insurance -- Commercial general liability -- Court is not in position to answer question certified from Court of Appeals for the Eleventh Circuit as to whether post-1986 standard form CGL policy with products-completed operations hazard coverage, issued to a general contractor, covered the general contractor's liability to a third party for the costs of repair or replacement of defective work by its subcontractor, because there was unresolved factual issue as to whether “defective work” in this case was limited to faulty installation of windows or whether windows themselves were also defective -- Because that factual issue is determinative of outcome, case returned to Court of Appeals

33 Fla. L. Weekly D681aNOT FINAL VERSION OF OPINION
Subsequent Changes at 33 Fla. L. Weekly D774c

Civil procedure -- Discovery -- Class actions -- Precertification discovery -- Homeowners' action against title insurance company alleging homeowners were not provided discounted title insurance rate, known as “reissue rate,” for which they may have been eligible when they refinanced their homes for period July 1, 1999, to present -- Trial court abused its discretion in ordering, prior to class certification determination, full merits discovery of “all documents concerning, referring or relating to title insurance reissue rates” in the possession of defendant title insurance company and approximately 1,000 of its independent title insurance agents -- In general, precertification discovery should be limited to matters relevant to class certification, not merits of case -- Defendant introduced uncontradicted evidence demonstrating that the precertification discovery requested was unduly burdensome and would result in irreparable injury at this stage of litigation; and that trial court departed from essential requirements of law in ordering full merits discovery of closing files of defendant and its agents -- Court's decision does not deny plaintiffs discovery of defendant's closing files as necessary to establish facts relating to class certification -- On remand, trial court has discretion to limit discovery to decrease substantially the time, effort and expense involved in responding, including limiting discovery to a certain random sample of the files, and has discretion to require parties to jointly produce a detailed discovery plan which prioritizes class-related discovery, while not depriving parties from engaging in merits discovery when facts and issues are inextricably intertwined

33 Fla. L. Weekly D1287b

Administrative law -- Office of Insurance Regulation -- OIR had authority to issue immediate final order which suspended insurer's Certificates of Authority to transact new business in Florida until insurer produced documents OIR previously subpoenaed in an investigation of company's insurance practices -- OIR was not required to pursue enforcement of its subpoenas in circuit court -- Suspension of Certificates of Authority is one of OIR's available enforcement options -- IFO facially complied with requirements of section 120.60(6) -- Detailed factual allegations of monetary loss to policy holders and beneficiaries and ongoing criminal activity by insurer were sufficient to demonstrate immediate danger to public health, safety or welfare -- IFO was narrowly tailored to address harm -- Insurer was accorded the procedural due process demanded by state and federal constitutions

NOT FINAL VERSION OF OPINION Subsequent Changes at 33 Fla. L. Weekly D1287b 33 Fla. L. Weekly D931e Administrative law -- Office of Insurance Regulation -- OIR had authority to issue immediate final order which suspended insurer's Certificates of Authority to transact new business in Florida until insurer produced documents OIR previously subpoenaed in an investigation of company's insurance practices -- OIR was not required to pursue enforcement of its subpoenas in circuit court -- Suspension of Certificates of Authority is one of OIR's available enforcement options -- IFO facially complied with requirements of section 120.60(6) -- Detailed factual allegations of monetary loss to policy holders and beneficiaries and ongoing criminal activity by insurer were sufficient to demonstrate immediate danger to public health, safety or welfare -- IFO was narrowly tailored to address harm -- Insurer was accorded the procedural due process demanded by state and federal constitutions

33 Fla. L. Weekly D1433a

Insurance -- Cancellation of policy -- Notice -- Insured's action against insurer for breach of contract, alleging that insurer refused to pay claim for losses covered by policy -- Error to enter summary judgment for insurer on ground that insurer cancelled policy for nonpayment of premium with effective date prior to date of accident in which insured suffered losses, where insurer offered no proof that cancellation documents were actually mailed to insured -- Appellate attorney's fees -- Insured is entitled to award of appellate attorney's fees pursuant to section 57.105, Florida Statutes, where insurer moved appellate court to relinquish jurisdiction to trial court so that insurer could request trial court to vacate summary judgment, appellate court relinquished jurisdiction but trial court denied motion to vacate, and after jurisdiction was returned to appellate court insurer continued to assert that summary judgment should be affirmed although it knew or should have known that its defense of trial court's order was not supported by material facts

33 Fla. L. Weekly D2610b
998 So. 2d 1151

Insurance -- Business liability -- Exclusions -- Rendering of professional services at podiatric practice -- The act of positioning a patient's foot to take an x-ray falls within policy provision excluding coverage for injuries due to the rendering of professional services -- Act of positioning patient's foot is encompassed within the term “x-ray services”

33 Fla. L. Weekly D1247a

Insurance -- Group life -- Lost policy -- Policy issued as part of Military Airlift Command Agreement under which airline pilots who conducted flights to Vietnam for United States Government were provided death and disability coverage while they conducted these flights -- Where insured airline pilot was paid disability benefits after he was diagnosed with coronary artery disease in 1968, beneficiary was entitled to death benefits when insured died in 1991 as consequence of coronary artery disease, although a copy of the insurance policy could not be located and the policy had been cancelled -- Beneficiary seeking to prove coverage under a lost insurance policy need only do so by preponderance of evidence -- Once beneficiary established coverage under Agreement, burden shifted to insurer to prove a coverage limitation such as a term informing insured that coverage does not continue indefinitely after policy's cancellation -- Insurer failed to prove that coverage was terminated by cancellation of policy -- Beneficiary was entitled to death benefits for death resulting from illness insured incurred during the time he was working for Military Airlift Command Operation

33 Fla. L. Weekly D475b

Insurance -- Liability under Florida Unauthorized Insurer Act of trade credit insurance broker who placed insured with insurer who was not authorized to offer, sell, or place insurance in Florida is limited to coverage within the provisions of the insurance contract -- Broker was entitled to judgment as matter of law on insured's claim of violation of Unauthorized Insurer Act where policy did not provide coverage for insured's claims -- There was no coverage where policy covered transactions with insured buyers conducted on a forty-five day term, but insured extended sixty days of credit -- Further insured failed to comply with obligation to timely notify insurer of an insured buyer's failure to pay -- Doctrines of waiver and estoppel cannot be applied to alter coverage terms of policy

33 Fla. L. Weekly S770a

Torts -- Insurance -- Breach of fiduciary duty -- Negligence -- Assignment of claims -- A settlement agreement between two parties that explicitly contains both an assignment of causes of action against a third party insurer and an immediate release of the insured on the same causes of action is valid, and allows the assignees to bring the assigned causes of action against the third party insurer -- A claim for breach of fiduciary duty arising from the relationship between an insurance broker and the insured involving allegations of failure to provide insurance coverage was assignable, as it was analogous to a cause of action for bad faith -- Because negligence claims against insurance brokers are assignable, and negligence claims and claims of breach of fiduciary duty are separate causes of action, U.S. District Court improperly dismissed assigned negligence claims against insurance broker on ground that only breach of fiduciary duty claim could be presented to jury because there was a fiduciary duty between insurance broker and insured

33 Fla. L. Weekly D2283a

Insurance -- Personal injury protection -- Bad faith -- Although insured is entitled to recover bad faith damages from insurer, including those damages which are a reasonably foreseeable result of a specified statutory violation by the authorized insurer, jury is not free to set amount of economic damages reasonably resulting from the carrier's bad faith conduct in absence of any evidence quantifying specific losses -- Insurer was entitled to judgment in its favor on plaintiff's claim for bad faith damages where plaintiff offered no evidence on which to justify any amount of economic damages resulting from carrier's bad faith conduct

33 Fla. L. Weekly D2825a
996 So. 2d 942

Insurance -- Automobile liability -- Coverage -- Son who was operating motor vehicle owned by passenger at time passenger was injured was not an “insured” for purposes of coverage under his mother's automobile liability policy where policy provided liability coverage only for relatives who resided primarily with the named insured, and son was not residing primarily with mother on date of accident -- Evidence established that son was no longer being supported by mother, that he did not maintain room or belongings in her house, and he was not free to come and go from her house; and that mother had thrown son out of the house more than a year before accident occurred, had given his room to another of her children, and had called the police when son tried to return -- Insurer was not required to cover son until he established a new permanent residence or to prove that son had established a new residence

33 Fla. L. Weekly D2362c

Insurance -- Commercial lines policy -- Where endorsement amending liability coverage of policy provided that no coverage would apply to a truck driver who had not been approved by insurer, but also provided that, “Not withstanding the foregoing, we will pay up to $10,000 in property damage and no fault benefits as required by Florida law,” policy provided coverage for up to $10,000 in property damage and no fault benefits for an accident involving a driver who had not been approved by insurer -- Trial court erred in finding that there was no coverage because insured failed to have its employee approved by insurer before allowing him to drive

33 Fla. L. Weekly D63b

Insurance -- Coverage -- Declaratory judgment action to determine whether insurer was providing motor vehicle insurance to tour bus owner on date passenger was injured aboard bus -- Trial court correctly granted summary judgment in favor of insurer based on finding that there was no genuine issue of material fact that owner of bus had loaned its bus to third party for transportation of tourists without notice to insurer, with result that there was no coverage applicable to bus or accident, where no opposing “summary judgment evidence” was filed on insurer's sworn contentions that the undisclosed types of business were material and unacceptable underwriting risks

33 Fla. L. Weekly D246a

Insurance -- Automobile -- Breach of contract -- Insured's claim that insurer breached contract by refusing to declare her automobile a total loss after repair company declared the vehicle to be a total loss -- Error to enter summary judgment for insurer where there was conflicting evidence with regard to whether repair company in fact declared vehicle to be a total loss and whether insurer refused to accept that determination and pay the value of the vehicle at the time of the loss in accordance with terms of policy

33 Fla. L. Weekly D1720b

Attorney's fees -- Insurance -- Arbitration -- Order granting motion to confirm appraisal award was not a final judgment because the order lacked words of finality -- Accordingly, order did not trigger thirty-day cap provided in rule 1.525 for serving motion for attorney's fees and costs -- Error to grant motion to strike motion for attorney's fees and costs based on finding that motion was untimely served

33 Fla. L. Weekly D63a

Insurance -- Automobile -- Error to enter summary judgment for insurer in action claiming coverage for theft of automobile on ground that policy was properly cancelled before loss because of alleged failure to remit entire installment of premium payment -- There were unresolved factual issues as to whether notice of cancellation was properly mailed, and whether payment tendered by insured was insufficient

33 Fla. L. Weekly D81a

Insurance -- Motor vehicle -- Passenger liability -- Coverage -- Declaratory judgment -- Insurer who has bona fide coverage dispute with its insured is permitted to litigate coverage issue in a separate declaratory judgment action while the underlying tort action is in progress -- Trial court's abatement of insurer's declaratory judgment action pending conclusion of underlying tort action constituted departure from essential requirements of law that will cause material injury to insurer that cannot be remedied on plenary appeal -- Petition for common law certiorari granted

33 Fla. L. Weekly D2737a
998 So. 2d 636

Attorney's fees -- Insurance -- Insureds prevailing in action against insurer -- Trial court properly denied award of attorney's fees under section 627.428, Florida Statutes, for time spent preparing for, and participating in, evidentiary hearing to set amount of attorney's fees although insureds had agreed to compensate their attorney for litigating the amount of court awarded attorney's fees

33 Fla. L. Weekly D2081a

Attorney's fees -- Proposal for settlement -- Validity -- Trial court correctly determined that proposal for settlement was invalid and unenforceable for purpose of imposing fees against plaintiffs where proposal specified amounts to be individually paid to each plaintiff, but conditioned the proposal upon both plaintiffs accepting the amounts offered and specified that neither of them could independently accept the amount offered -- Conflict certified to extent that sister district court has held that joint offers conditioned on mutual acceptance of all of the joint offerees are valid and enforceable

33 Fla. L. Weekly S59a

Insurance -- Attorney's fees -- Bonds -- Performance and payment -- Surety on bond that pays money on behalf of its principal and is subrogated to any rights the principal has against its own insurer under principles of equitable subrogation is not entitled to recover its attorney's fees under section 627.428, Florida Statutes (2006), for prevailing in a coverage dispute against the principal's insurer -- Only the named or omnibus insured, the insured's estate, specifically named beneficiaries under the policy, and other third parties who claim policy coverage through an assignment are entitled to an award of fees under section 627.428 -- Surety that has no written assignment from the insured and is not a named or omnibus insured or named beneficiary under the policy is not entitled to attorney's fees under section 627.428

33 Fla. L. Weekly D1188a

Attorney's fees -- Insurance -- Award of fees and costs to insured reversed in light of appellate court's reversal of underlying judgment in favor of insured

33 Fla. L. Weekly D763a

Insurance -- Homeowners -- Attorney's fees -- Where insureds filed breach of contract action against insurer, alleging that insurer had failed to pay amount necessary to repair home after hurricane damage, insurer filed motion to dismiss or abate action in favor of appraisal, parties participated in appraisal of damage, and insurer paid amount of loss determined by appraisers, insureds were entitled to award of attorney's fees under section 627.428, Florida Statutes -- Insurer's payment to insureds after appraisal acted as a confession of judgment

33 Fla. L. Weekly D1798a

Insurance -- Personal injury protection -- Attorney's fees -- Where circuit court sitting in appellate capacity affirmed county court judgment for plaintiff in action to recover PIP benefits, circuit court departed from essential requirements of law in denying plaintiff's motion for appellate attorney's fees

33 Fla. L. Weekly D2694a

Insurance -- Homeowners -- Hurricane damage -- Attorney's fees -- Error to deny insured's claim for attorney's fees where insured filed suit after claims adjuster offered, and non-binding mediation confirmed, a net $65.00 for settlement of insured's hurricane damage claim, insurer invoked binding arbitration clause of policy after suit was filed, and arbitration process resulted in an appraisal award of over $50,000, which insurer promptly paid -- No error in rejecting insured's claim for interest prior to date of payment

33 Fla. L. Weekly D2833a
999 So. 2d 684

Insurance -- Homeowners -- Attorney's fees -- Where insureds whose home was damaged by hurricane brought breach of contract action against insurer, and insurer requested appraisal and paid significant additional amounts to insureds, insureds are entitled to award of attorney's fees under section 627.428 -- Actual rendition of an order or decree is not an absolute prerequisite to insured's entitlement to attorney's fees where insurer voluntarily paid loss before judgment could be rendered -- Actual cash value -- Depreciation -- Insurer could properly withhold portion of contractor's overhead and profit as depreciation in determining actual cash value

33 Fla. L. Weekly D301a
979 So. 2d 964

Insurance -- Insolvent insurers -- Florida Insurance Guaranty Association -- Where insured had sued her automobile insurer and entered into settlement agreement with insurer whereby insurer agreed to pay insured for her stolen automobile, as well as insured's attorney's fees and costs in an amount to be determined by the court, and insurer subsequently became insolvent, trial court properly granted motion to substitute FIGA as defendant in place of the insolvent insurer and to enforce settlement agreement, including agreement to pay attorney's fees and costs -- Attorney's fees and costs payable under the pre-insolvency settlement agreement were a covered claim eligible for payment by FIGA -- While FIGA is not responsible for further attorney's fees and costs incurred by insured after the insolvency, it is not relieved of the obligation to pay insured's attorney's fees and costs incurred pre-insolvency for prevailing on a covered claim

33 Fla. L. Weekly D2649a

Insurance -- Personal injury protection -- Discovery -- Trial court erred in finding that PIP insurer has duty to provide to assignee medical provider insurance information, including PIP payout sheet, name of insurer, name of each insured, limits of liability coverage, statement of any available policy or coverage defense, and copy of policy -- Pre-suit disclosure to assignee medical provider is not required by statutes -- Attorney's fees -- Where trial court ruled in insurer's declaratory judgment action that assignee was entitled to pre-suit disclosure of medical information, and appellate court reversed, neither party is entitled to appellate attorney's fees

33 Fla. L. Weekly D175b

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

33 Fla. L. Weekly D2049d

Insurance -- Appellate attorney's fees -- Where appellate division of circuit court reversed county court judgment in favor of insured and remanded for further proceedings, appellate division erred by stating that insured will be entitled to attorney's fees and costs if insured prevails upon remand -- Appellate court may not award attorney's fees to an insured unless insured prevails on appeal

33 Fla. L. Weekly D1779a

Insurance -- Health -- Assignment -- Trial court erred in concluding that state's health insurance plan contained anti-assignment clause prohibiting assignment of benefits to non-participating providers -- Plan's statement, “Benefits will be paid directly to you” falls far short of creating contractual bar to assignment -- Trial court erred in dismissing with prejudice class action complaint against medical third-party administrator hired by state to process claims in accordance with the plan on ground that this entity did not have ultimate decisionmaking authority regarding payment of benefits -- Dismissal was premature where plaintiff contended that administrator should be held accountable for its actions in knowingly paying benefits to the wrong recipients and not enough information has been developed about nature of administrator's relationship to state and its role in interpreting the plan -- Trial court erred in dismissing State of Florida as an improper party without allowing plaintiffs leave to amend complaint to name the proper state entities -- Dismissal of administrator cannot be upheld based on plaintiff's failure to exhaust administrative remedies relating to appeal of a denied claim because this case involved payment to the wrong payee, not an adverse coverage determination -- Dismissal cannot be upheld based on sovereign immunity because suit is predicated on a contractual breach -- Remand with directions to allow plaintiffs to amend complaint to name proper state agency and/or subdivision

33 Fla. L. Weekly D1117a

Insurance -- Liability -- Law of the case -- Airline validly assigned to county its claims to coverage under policies for remediation of environmental contamination caused by airline in settlement agreement entered into as part of airline's bankruptcy -- Where, in prior appeal, judge's concurring opinion stated that effect of airline's bankruptcy settlement was to assign to county airline's claims for environmental damage under its insurance policies, and dissenting opinion specifically agreed with concurring opinion on that issue, concurring opinion constituted law of the case on that issue -- Although concurring opinion does not constitute law of the case, where that special concurring opinion, or an issue in that special concurring opinion, is joined by a majority of the court, it does constitute law of the case as to that specific issue

33 Fla. L. Weekly D1822b

Administrative law -- Office of Insurance Regulation -- Life insurance -- Appeal from final order disapproving insurer's application to include mandatory arbitration agreement within its life insurance contracts on ground that proposed arbitration agreement did not comply with pertinent Florida statutes and that arbitration agreement contained inconsistent or ambiguous clauses, or exceptions and conditions which deceptively affected the risk purported to be assumed in the general coverage of the contract -- Although right to resolve any dispute through binding arbitration is established under provisions of the Federal Arbitration Act, under federal McCarran-Ferguson Act, the business of insurance is exclusive province of individual states -- Accordingly, state laws enacted for purpose of regulating business of insurance do not yield to conflicting federal statutes unless federal statute itself specifically relates to the business of insurance -- Federal Arbitration Act does not specifically relate to business of insurance -- Section 624.155, which provides for a civil action against an insurer, with relevant procedural protections, is a statute regulating the business of insurance -- Mandatory arbitration lacks procedural and constitutional protections of a civil action

NOT FINAL VERSION OF OPINION
Subsequent Changes at 33 Fla. L. Weekly D1822b

33 Fla. L. Weekly D1682a

Administrative law -- Office of Insurance Regulation -- Life insurance -- Appeal from final order disapproving insurer's application to include mandatory arbitration agreement within its life insurance contracts on ground that proposed arbitration agreement did not comply with pertinent Florida statutes and that arbitration agreement contained inconsistent or ambiguous clauses, or exceptions and conditions which deceptively affected the risk purported to be assumed in the general coverage of the contract -- Although right to resolve any dispute through binding arbitration is established under provisions of the Federal Arbitration Act, under federal McCarran-Ferguson Act, the business of insurance is exclusive province of individual states -- Accordingly, state laws enacted for purpose of regulating business of insurance do not yield to conflicting federal statutes unless federal statute itself specifically relates to the business of insurance -- Federal Arbitration Act does not specifically relate to business of insurance -- Section 624.155, which provides for a civil action against an insurer, with relevant procedural protections, is a statute regulating the business of insurance -- Mandatory arbitration lacks procedural and constitutional protections of a civil action

33 Fla. L. Weekly D2297c

Insurance -- Automobile -- Damages sustained by automobile as result of accident -- Appraisal

33 Fla. L. Weekly D1948a

Insurance -- Disability -- Denial of benefits -- Application -- Misrepresentations -- Error to grant summary judgment for insurer based upon finding that insured misrepresented a material fact on her insurance application by failing to disclose any recommended medical procedures, although a doctor had recommended that she undergo a hysterectomy at some point in time prior to her application -- Summary judgment should not have been granted where insurer's counsel conceded an ambiguity in application and factual dispute appears to exist regarding whether insured had pending recommendation for hysterectomy at time she applied for disability policy

NOT FINAL VERSION OF OPINION
Subsequent Changes at 34 Fla. L. Weekly D74a

33 Fla. L. Weekly D2828a

Insurance -- Appeals -- Final judgment -- Where insured sued homeowners insurer for breach of contract and insurer demanded appraisal, order confirming final appraisal award was not a final judgment where order did not contain language of finality disposing of breach of contract action

33 Fla. L. Weekly D708a Insurance -- Uninsured motorist -- First-party bad faith claim against insurer -- Premature action -- Discovery -- Trial court departed from essential requirements of law in denying insurer's motion to dismiss bad faith complaint as premature where there had not been a final determination of liability and damages in an underlying coverage claim -- Insurer's presuit settlement offer did not constitute a legally sufficient determination of damages -- Because insurer cannot establish that it will suffer irreparable harm as the result of denial of its motion to dismiss, appellate court does not have certiorari jurisdiction to review the order denying motion to dismiss -- Trial court's order requiring insurer to produce claim file and underwriting file where issues of liability and damages had not been determined constituted a departure from essential requirements of law resulting in irreparable harm -- Discovery order quashed

33 Fla. L. Weekly D1790b
988 So. 2d 96

Insurance -- Aircraft liability -- Bad faith -- Bad faith claim and bad faith discovery were premature where there had not been a determination of damages under the insurance contract -- Decision holding that bad faith claim requires an allegation that there has been a determination of damages is applicable to both third-party and first-party bad faith claims -- Orders denying motions to dismiss bad faith claims and order denying motion for protective order are quashed

33 Fla. L. Weekly D1343c

Administrative law -- Department of Financial Services -- Insurance -- Licensing -- Suspension -- Sale of ancillary insurance products without obtaining customers' informed consent, a practice known as “sliding” -- No error in administrative law judge's findings that department did not prove by clear and convincing evidence that licensee had demonstrated lack of fitness or trustworthiness to engage in business of insurance pursuant to section 626.611(7) or had engaged in fraudulent or dishonest practices pursuant to section 626.611(9) -- No error in finding that department had sufficiently proven sliding -- Discussion of interpretation of term “informed consent” in context of statute prohibiting sliding -- Sliding statute is not unconstitutionally vague as applied to licensee in this case -- Court rejects interpretation of “informed consent” which would require, in all circumstances, that insurance agents provide an oral assurance to customers that ancillary products are optional -- However, ALJ's findings demonstrate that licensee was guilty of sliding not because she failed to utter certain words or because written materials were unclear, but because licensee took no steps to ensure that customers understood the materials, and this finding is supported by particular facts of instant case -- Department improperly substituted its judgment for that of fact-finder when it rejected ALJ's finding that department failed to prove violation of section 626.611 on ground that ALJ had failed to comply with essential requirements of law because sliding is per se a violation of section 626.611(7) -- Statutory distinction between penalties for violations of sliding statute and for violations of section 626.611(7) indicates that Legislature recognized that some instances of sliding would not rise to level of a demonstration of unfitness or untrustworthiness -- Court notes that ALJ found that licensee failed to “effectively inform” customers regarding ancillary products, but did not find that licensee had intentionally engaged in sliding -- Because 12-month suspension imposed by department was predicated, in part, on violations that did not occur, department must reconsider appropriate penalty on remand

33 Fla. L. Weekly S425b

Insurance -- Surplus-lines insurance -- Consideration of questions certified by federal Court of Appeals in a case in which insured contended surplus-lines insurer was estopped from denying coverage because policy was delivered to insurance broker, not directly to insured -- Neither section 626.922 nor section 627.421 has abrogated the common-law agency analysis that the Court has previously applied in insurance-broker tests, under which it is presumed that an insurance representative, serving as an independent insurance broker, acts on behalf of the insured for purposes of procuring insurance coverage -- No language present in either of these statutes precludes a surplus-lines insurer or its direct surplus-lines agent from delivering a copy of coverage documents to the insured's independent representative-broker instead of directly to the insured -- Where a surplus-lines insurer or its direct surplus-lines agent delivers copies of an insurance policy to the representative of the insured, who is acting as an independent insurance broker in the transaction, the insured disputes that it received a copy of the policy, and the insured fails to present any evidence that its independent insurance representative-broker was actually acting as an agent of the insurer, the insured may not point to section 627.421 as mandating that the insurer was required to deliver a copy of the policy directly to the insured -- Same result occurs under section 626.922: when surplus-lines insurer or its direct surplus-lines agent delivers copy of surplus-lines policy to insured's independent representative-broker, that delivery constitutes delivery to the insured -- Insurer is incorrect in its assertion that none of statutory provisions of chapter 627 apply to surplus-lines insurance because of exclusionary provisions of section 627.021(2) -- Discussion of scope of section 627.021(2) -- Attorney's fees -- Federal final summary judgment in favor of insureds was contrary to Florida law, and accordingly, insureds have not obtained a valid judgment or decree against insurer which would entitle them to award of attorney's fees under 627.428 at this time