2009

34 Fla. L. Weekly D297a
15 So. 3d 5

Insurance -- Workers' compensation -- Insurer's action to collect retrospective workers' compensation premiums from insured -- Trial court departed from essential requirements when it denied insurer's motion for summary judgment based on insured's challenge to insurer's good faith calculation of final premiums where insured had not exhausted its administrative remedies -- Insured that has dispute with carrier regarding computation of retrospective premiums must avail itself of administrative dispute resolution and appeals process under section 627.371

34 Fla. L. Weekly D1659b
20 So. 3d 383

Insurance -- Workers' compensation -- Occupational diseases -- Responsible carrier -- Last injurious exposure -- Statute clearly provides that insurance carrier “on the risk” at time employee was last injuriously exposed is the carrier which is solely liable to pay benefits due as result of occupational disease which did not manifest itself until after claimant's period of employment had ended -- Last exposure rule is not limited to cases involving long-term exposure to conditions that cumulatively result in a disease

34 Fla. L. Weekly D333a
5 So. 3d 709

Insurance -- Commercial wind only policy -- Appraisal -- Court erred in entering judgment requiring insurer to pay full amount of appraisal award without a reduction for sums previously paid to insured and reduction for policy deductible, where appraisers made estimate of total loss without regard to any deductible or prior payments -- Attorney's fees -- Where insurer had underpaid insured, insured filed suit, and appraisal culminated in judgment for insured for additional sum, insured was entitled to award of attorney's fees

34 Fla. L. Weekly D466b
7 So. 3d 552

Insurance -- Homeowners -- Coverage -- Hurricane damage -- Valued Policy Law -- Covered and non-covered perils -- Error to hold that insurer was required to pay full policy limits where property was total loss, and loss was caused partially by wind, a covered peril under the policy, and partially by water, a non-covered peril -- Amount due under debris removal and law and ordinance provisions of policy to be determined on remand where record did not establish that costs claimed by homeowners were solely attributable to wind -- Prejudgment interest -- No error in refusing to award prejudgment interest from date residence was damaged by hurricane under debris removal and law and ordinance provisions where policy provided that insurer was not obligated to pay a claim for debris removal or law and ordinance coverage until twenty days after it reached an agreement with the insureds or sixty days after filing of an appraisal award or mediation settlement with insurer

34 Fla. L. Weekly D2530a
24 So. 3d 638

Appeals -- Insurance -- Uninsured motorist -- Appellate court lacks jurisdiction to review order granting summary judgment in favor of insureds on a claim for declaratory relief that was included as a count in a lawsuit seeking UM benefits where determination of right to receive UM benefits under the policy at issue and the amount receivable from insurer for claim is still pending in trial court

34 Fla. L. Weekly D2112b
19 So. 3d 996

Insurance -- Uninsured motorist -- Provision in UM policy requiring insured to join uninsured motorist in suit filed against insurer is contrary to public policy and therefore invalid -- Policy provision cannot lawfully restrict rights of a UM insured beyond those specifically provided by statute

34 Fla. L. Weekly D1046a
19 So. 3d 996

NOT FINAL VERSION OF OPINION
Subsequent Changes at 34 Fla. L. Weekly D2112b

Insurance -- Uninsured motorist -- Provision in uninsured motorist policy, which requires insured to join uninsured motorist in suit filed against insurer, is contrary to public policy and is therefore invalid

34 Fla. L. Weekly D1005b
13 So. 3d 99

Insurance -- Uninsured motorist -- Error to enter summary judgment in favor of personal representative of deceased insured in action for uninsured motorist benefits, filed after insurer denied coverage on ground that vehicle involved in accident was owned by insured but not covered under policy, where genuine issue of material fact existed as to whether vehicle involved in accident at issue was owned by insured or by insured's business -- Although vehicle was titled and registered in decedent's name, widow filed affidavit stating that she had mistakenly titled van in decedent's name, but it was actually used solely as a business vehicle by decedent's business, and finder of fact should determine credibility of this affidavit and whether it sufficiently rebutted presumption of ownership arising from fact that decedent's name appeared on certificate of title

34 Fla. L. Weekly D110a
999 So. 2d 1081

Insurance -- Uninsured motorist -- Umbrella policy -- Insured's rejection of uninsured motorist coverage under umbrella policy in 1992 precluded recovery under policy on account of his daughter's death in 2004 automobile accident -- Insurer complied with requirements of section 627.727(2), Florida Statutes, when it notified insured that uninsured motorist coverage was available under umbrella policy at the time he applied for policy -- Insurer was not required to renotify insured that he could purchase uninsured motorist coverage when umbrella policy was renewed, extended, or changed -- No merit to insured's contention that he is entitled to receive uninsured motorist coverage under umbrella policy because written rejection of coverage he signed in 1992 was ambiguous -- By making uninsured motorist insurance available to insured when he initially applied for umbrella policy, insurer fulfilled its obligations under section 627.727(2)

34 Fla. L. Weekly D2285a
21 So. 3d 895

Insurance -- Underinsured motorist benefits -- Where award of section 57.105 sanctions to insurer and award of policy limits to insured arose from the same proceeding, trial court should have set off the sanctions owed by the insured to the insurer against the amount the insurer owed to the insured, rather than entering two separate judgments

34 Fla. L. Weekly D1398a
11 So. 3d 1012

Insurance -- Uninsured motorist -- Circuit court did not err in finding that claimant, who had received personal injury protection benefits under his employer's policy until that coverage was exhausted, was obligated under the policy to submit to an examination under oath and to produce medical records , which were requested by insurer in order to investigate its potential liability under uninsured motorist provisions of the policy, even though claimant had not made a written claim under UM portion of policy -- No error in finding that policy permitted insurer to reserve its right to later deny coverage -- Record does not establish that insurer failed to abide by reasonableness provisions set forth in its policy or that it engaged in unfair claim settlement practices

34 Fla. L. Weekly D2588a
23 So. 3d 237

Insurance -- Appeals -- Uninsured motorist -- Where plaintiff was injured in single vehicle accident while riding as passenger in insured vehicle which was being operated by insured, and plaintiff had received from insurer the full policy limit under the liability provisions of policy, plaintiff may not obtain further recovery under uninsured motorist endorsement and existing pleadings -- Insurer is not entitled to writ of certiorari quashing trial court order denying motion for judgment on pleadings because insurer has not established irreparable harm -- Prospect that insurer may be put to expense and inconvenience of a trial does not establish irreparable harm -- Order is not appealable as a judgment determining the existence or nonexistence of insurance coverage because claim was asserted only against the insurer

34 Fla. L. Weekly D1023a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 34 Fla. L. Weekly D1278a

Insurance -- Uninsured motorist -- Discovery -- Order compelling production of insurer's claim file constituted departure from essential requirements of law where extent of damages incurred by insured as result of underlying accident had not been fully determined, and bad faith claim had not fully accrued -- Bad faith claim is premature where there has been no determination of damages claimed by insured -- Offer and acceptance of policy limits under uninsured motorist policy did not determine the amount of damages that must be established as a condition precedent to litigating the potential bad faith claim

34 Fla. L. Weekly D1326c
14 So. 3d 1230

Insurance -- Uninsured motorist -- Error to grant new trial based solely on insured's argument that previously undisclosed testimony of insurer's medical expert unfairly surprised and prejudiced insured and confused the jury -- Trial court erred in failing to consider factors set forth by supreme court in Binger v. King Pest Control in determining whether undisclosed testimony should be excluded as prejudicial to opposing party -- There was no substantial change between expert's trial testimony and the opinion contained in his report, which was that there was no evidence of impairment, there was no evidence to substantiate insured's claims, and there were inconsistencies in insured's medical records as to whether she began experiencing pain the day after the accident or immediately after the accident -- Expert's testimony did not violate order in limine limiting expert's testimony to matters within scope of his report -- Medical expert's testimony is not limited to exact wording of expert's written report -- Attorney's fees -- Offer of judgment made by insurer was not so vague that it could be construed as requiring insured to relinquish her right to bring suit for future causes of action unrelated to the subject matter of the instant case -- Remand for reinstatement of jury verdict and consideration of insurer's motion for lower court attorney's fees -- Motion for appellate attorney's fees provisionally granted, with directions to trial court to determine amount

34 Fla. L. Weekly D386a
3 So. 3d 421

Attorney's fees -- Insurance -- Uninsured motorist -- No error in awarding attorney's fees to insured where UM provisions of policy included arbitration clause which provided that, unless both parties agreed otherwise, arbitration would occur in the county in which the insured “lives,” insured requested that arbitration take place in Palm Beach County, insurer insisted that arbitration must take place in New Hampshire, and trial court found there was no basis for insurer's position -- Although insurer did not deny coverage per se, by maintaining that arbitration had to take place in New Hampshire, it forced insured to engage in unnecessary litigation in face of insured's insistence that he lived in Palm Beach County

34 Fla. L. Weekly D1753a
16 So. 3d 979

NOT FINAL VERSION OF OPINION
Subsequent Changes at 34 Fla. L. Weekly D1799a

Insurance -- Breach of contract between insurance agency and insurance company -- Agency breached contract with insurance company when it had company issue a policy excluding uninsured motorist coverage although agency had no written waiver of UM coverage from applicant and purportedly knew that applicant wanted UM coverage, and failed to notify company that applicant had not waived UM coverage until after a claim for UM benefits had been made against policy -- Summary judgment on breach of contract claim is improper where issue remains as to whether insurance company sustained any injury as consequence of breach -- If the insured wanted UM coverage, then insurer suffered no harm flowing from agency's failure to either secure a UM waiver or to advise insurer that it had no UM waiver -- If insured did not want UM coverage or decided after learning of its cost not to take it, then insurer was injured because of agency's failure to secure a UM waiver from insured

34 Fla. L. Weekly D1406a
32 So. 3d 68

Contracts -- Real property sale -- Action against seller and title insurance company by buyers who purchased property which was encumbered by a county maintenance easement which prevented buyers from building a residence on the property -- Error to grant summary judgment in favor of title insurance company on ground that buyers failed to obtain a survey of the property, and title insurance policy contained an exception for matters which would be disclosed by an accurate survey -- The accurate survey exception does not apply where the easement was of public record -- Error to grant summary judgment for seller on claim that seller breached sales contract by failing to deliver clear title on ground that sales contract merged into seller's warranty deed, which made an exception for recorded easements -- There was an inherent conflict within deed where deed stated that “land is free of all encumbrances, except taxes accruing subsequent to December 31, 2004,” but also stated that conveyance was subject to easements of record -- This conflict converted the bargained-for statutory warranty deed described in the sales contract into a nullity

34 Fla. L. Weekly D412b
18 So. 3d 1099

Insurance -- Uninsured motorist -- Subrogation -- Limitation of actions -- Four-year statute of limitations applies to claims for equitable or legal subrogation -- Where UM insurer, in order to protect itself from claims, paid a debt in full to its insured which in equity should have been paid by defendant and obtained a release for defendant from its insured, insurer's claim was one for equitable subrogation -- Error to grant motion to dismiss where complaint seeking reimbursement from defendant was filed within four years of paying claim

34 Fla. L. Weekly D859a
8 So. 3d 1213

Insurance -- Reinsurance -- Error to dismiss with prejudice plaintiff's complaint for reinsurance benefits based on statute prohibiting suits by unauthorized insurers where lawsuit did not arise out of an unauthorized insurance transaction by plaintiff -- Where plaintiff, a foreign corporation, insured a Florida corporation and consequently purchased reinsurance from defendants, section 626.903 did not prohibit plaintiff from suing defendants when they refused to pay reinsurance benefits to plaintiff, even if plaintiff was an unauthorized insurer of Florida corporation

34 Fla. L. Weekly D733a
15 So. 3d 8

Insurance -- Premium finance companies -- Class action alleging that premium finance company violated section 627.840(b), Florida Statutes, by charging customers more than one additional service charge of twenty dollars within twelve-month period -- Because plaintiff failed to allege sufficiently a knowing violation of statute, claim is not an appropriate claim for class action -- Trial court erred in certifying class action

34 Fla. L. Weekly D1516a
16 So. 3d 897

Insurance -- Personal injury protection -- Circuit court appellate division departed from essential requirements of law in holding that a medical report, produced in accordance with section 627.736(7)(a), Florida Statutes, as a precondition to withdrawal of PIP benefits, must be based on a physical examination performed by a physician, other than the treating physician, who conducts an independent medical examination -- Valid report for the withdrawal of PIP benefits may be based on a physical examination of the insured that is conducted by either the physician preparing the report or another physician's examination -- Physician preparing the report does not have to personally examine the insured

34 Fla. L. Weekly D2105a
22 So. 3d 632

Insurance -- Personal injury protection -- Summary judgment -- Insurer was deprived of due process when county court entered summary judgment against insurer in insured's action for breach of policy by failing to pay for medical treatment, without conducting hearing on motion for summary judgment -- Circuit court appellate division departed from essential requirements of law in affirming summary judgment entered by county court without hearing

34 Fla. L. Weekly D2229c
21 So. 3d 119

Insurance -- Personal injury protection -- Standing to bring suit against insurer for non-payment of medical bills -- Where insured had executed assignment of PIP benefits to non-existent entity under the name of which medical provider operated, and medical provider subsequently reassigned benefits to insured, insured had standing to bring suit for non-payment of medical bills -- Circuit court properly found that purported assignment to non-existent entity was invalid, and the insured retained his right to claim benefits under policy

34 Fla. L. Weekly D978c
13 So. 3d 74

Jurisdiction -- Amount in controversy -- Insurance -- Personal injury protection -- Circuit court did not have jurisdiction over provider's action against insurer for non-payment of personal injury protection benefits where amended complaint alleged it was seeking damages greater than $500, but less than $5000, and exhibits attached to amended complaint appeared to indicate the damages sought were less than $500 -- County courts have exclusive jurisdiction over actions in law not exceeding $15,000 unless action is within exclusive jurisdiction of circuit court -- Remand for transfer to county court

34 Fla. L. Weekly D2500a
26 So. 3d 21

Insurance -- Personal injury protection -- Defendant insurer's claim that it was not required to pay medical provider's bills because provider did not provide insurer with proper written notice of a covered loss where initial set of bills did not include a disclosure and acknowledgment form, and box 31 of CMS-1500 form did not contain physician's license number -- Where bills furnished to insurer contained physician's name, bills were substantially complete, and provided proper notice to insurer -- Even if physician's license number were deemed a material provision of statements or bills, absence of license number was cured by later submission of number to insurer -- Failure of medical provider to provide disclosure and acknowledgment form with initial set of bills was cured by submitting form prior to litigation -- Circuit court appellate division did not depart from essential requirements of law in affirming county court's entry of summary judgment for medical provider in action seeking unpaid benefits

34 Fla. L. Weekly D2189a
37 So. 3d 329

NOT FINAL VERSION OF OPINION
Subsequent Changes at 35 Fla. L. Weekly D1020a

37 So. 3d 329

WITHDRAWN 35 Fla. L. Weekly D1020a

Insurance -- Personal injury protection -- Provider's action against insurer -- Conditions precedent -- Examination under oath clause in insurance policy was binding on an assignee of the No-Fault benefits and the cause of action to recover those benefits where clause stated that “any person or organization making claim or seeking payment . . . must, at our option, submit to an examination under oath, provide a statement under oath, or do both, as reasonably often as we require” -- Trial court properly found that noncompliant assignee was prohibited from making a claim or seeking payment under the policy although the assignee had not specifically agreed to be bound by that condition -- Nothing in section 627.736(6) suggests that insurers are prohibited from conducting EUO of a medical provider that is authorized by the policy, and nothing in statute provides that it is sole and exclusive means by which a No-Fault insurer may obtain pre-suit information requested in an EUO -- Question certified whether the EUO provision in insurer's policies is a condition precedent that must be complied with when a medical care provider takes an assignment of no-fault benefits and cause of action from the insured without specifically agreeing to be bound by that condition?

34 Fla. L. Weekly D2268a
21 So. 3d 124

Insurance -- Personal injury protection -- Explanation of benefits -- Circuit court appellate division departed from essential requirements of law in affirming county court judgment finding that an insured has a private cause of action against a PIP insurer who fails to provide its insured an itemized specification of each item the insurer has reduced, omitted, or declined to pay within 30 days after the insurer is furnished written notice of the fact of a covered loss and the amount -- There is neither a requirement nor a deadline for a PIP insurer to respond to a request for payment -- A response is required from the insurer only when insurer either pays a portion of a claim or rejects a claim -- Insured has no private right of action against insurer for insurer's failure to provide an explanation of benefits to insured or insured's assignee in timely manner -- Appeals -- Case falls within limited category of cases in which district court is authorized to exercise discretion to review a circuit court appellate division per curiam affirmance of county court order or judgment

34 Fla. L. Weekly D1819a
20 So. 3d 889

Insurance -- Personal injury protection -- It was improper to strike a peer review report supporting insurer's denial of insured's claim on the ground that the report was created more than thirty days after the insured submitted its claim -- Section 627.736(4)(b) does not apply to claims for unrelated, unreasonable, or unnecessary treatment, and insurer may challenge such treatment at any time, and is permitted to rely on a report, obtained pursuant to section 627.736(7)(a), even if the report is obtained more than thirty days after the claim was submitted

34 Fla. L. Weekly D913c
12 So. 3d 242

Insurance -- Personal injury protection -- Benefits may be denied by insurer on ground that treatment was not reasonable, related or medically necessary based on a medical report that was obtained by the insurer more than thirty days after receiving notice of a claim based on that treatment -- Thirty-day time period set forth in section 627.736(4)(b) does not apply to claims for unrelated, unreasonable or unnecessary treatment -- Insurer may challenge such treatment at any time, and is permitted to rely on a report even if the report is obtained more than thirty days after the claim was submitted -- Report obtained by insurer to deny benefits on ground that treatment was not reasonable, related, or necessary may be a valid report even though the reviewing physician's report was not based on a personal physical examination of the insured, but instead was based on review of the insured's medical records, including an IME report

34 Fla. L. Weekly D2051b
21 So. 3d 60

Insurance -- Personal injury protection -- Insurer is not required to obtain a valid medical report in order to deny medical provider's claim -- Where medical provider filed suit after insurer had denied payment of claim on ground that treatment was not reasonable, related, and necessary, it was error to reject physician's affidavit submitted by insurer when ruling on motion for summary judgment on the ground that it was not based upon physician's personal examination of the insured, and on the ground that it was generated more than thirty days after claim for PIP benefits was submitted by medical provider -- Statute does not preclude insurer challenging submitted claim after thirty-day time period, or limit ability of insurer to obtain and submit proof, after the thirty-day period, that the treatment was not reasonable, necessary, or related -- Statute does not require that insurer obtain a “valid report” to deny payment of a claim -- Statute requires a valid report only when further benefits are withdrawn

34 Fla. L. Weekly D2396a
22 So. 3d 782

Insurance -- Personal injury protection -- Insurer is not required to obtain an independent medical examination before denying a PIP claim -- Valid report may be based on physician's review of treatment records of insured

34 Fla. L. Weekly D2174a
22 So. 3d 120

Insurance -- Personal injury protection -- It was improper to bar the admission of opinion of insurer's reviewing physician that some of treatment provided to insured was not medically necessary or related to automobile accident on ground that physician did not perform an independent medical examination of the insured

34 Fla. L. Weekly D2305a
22 So. 3d 699

Insurance -- Personal injury protection -- Circuit court appellate division departed from essential requirement of law in upholding county court judgment for insured in insured's action against insurer which had denied benefits on ground that insurer's physician's affidavit was not factually supported by examination and treatment records -- Statutory requirement that physician's report be factually supported by examination and treatment records is inapplicable in case where insurer has denied benefits rather than withdrawn benefits

34 Fla. L. Weekly D2267a
21 So. 3d 886

Insurance -- Personal injury protection -- Denial of benefits -- Circuit court appellate division erred in adopting county court ruling striking as untimely a report of insurer's expert on reasonableness, relatedness, and necessity and prohibiting expert from testifying -- Where an insurer fails to pay any or some of insured's medical bills, section 627.736(4)(b), Florida Statutes, applies -- Statute requires only that insurer have reasonable proof that a rejected claim or claims are unreasonable, unrelated, or unnecessary -- Such proof may be supplied by a report prepared in accordance with section 627.736(7)(a) or otherwise, and such proof may be provided at any time

34 Fla. L. Weekly D2218b
21 So. 3d 112

Insurance -- Personal injury protection -- In an action for PIP benefits, section 627.736(7)(a), Florida Statutes, does not prohibit the admission of expert testimony that is based on a physician's report not first obtained before PIP benefits were denied

34 Fla. L. Weekly D2216a
21 So. 3d 871

Insurance -- Personal injury protection -- Insurer is not required to obtain a valid medical report in order to deny a medical provider's claim -- Even when a valid report is required, such report need not be predicated on either a physical examination conducted by the reporting physician or on a physical examination conducted on behalf of the insurer

34 Fla. L. Weekly D2177a
21 So. 3d 858

Insurance -- Personal injury protection -- An insurer's denial of all or some benefits is governed by section 627.736(4), Florida Statutes -- Where insurer has paid benefits and then seeks to withdraw or terminate further payments, section 627.736(7) is applicable -- A claim may be rejected more than thirty days after submission to insurer notwithstanding being “overdue” -- Section 627.736(4)(b) requires only that an insurer have reasonable proof that rejected claims or bills are unreasonable, unrelated, or unnecessary -- While a section 627.736(7)(a) report may be utilized for this purpose, such a report is not required -- Where an insurer withdraws payments being made to a treating physician or withdraws or terminates authorization for further treatment by a treating physician, a section 627.736(7)(a) report must first be obtained -- Such a section 627.736(7)(a) report does not have to be predicated on either a physical examination by the reporting physician or on a physical examination conducted on behalf of the insurer, but may be premised on review of the records of the insured's treating physician

34 Fla. L. Weekly D1833b
16 So. 3d 1028

Insurance -- Automobile -- Medical expenses -- Insurer's denial of claim by named insured's son for medical expenses coverage on ground that claimant was not a resident relative of the named insured at time of accident -- Trial court erred in finding that policy definition of “relative” was ambiguous and that claimant was entitled to medical expenses coverage as matter of law -- Policy definition of “relative” as “a relative of any degree by blood or marriage who usually makes his home in the same family unit, whether or not temporarily living elsewhere,” is not ambiguous -- Where claimant lives in his own mobile home, and not in his parents' residence, but has close ties of kinship with his parents and is financially supported by them to a significant degree, there is a factual issue as to whether claimant may qualify as a relative for purposes of medical expenses coverage

34 Fla. L. Weekly D58a
997 So. 2d 1243

Insurance -- Personal injury protection -- Insurer's denial or partial payment of claim -- Physician report requirement

34 Fla. L. Weekly D1110a
12 So. 3d 850

Insurance -- Personal injury protection -- Class actions -- Action based on alleged failure of insurer to correctly compute consumer price index adjustments to reimbursements due to providers of magnetic resonance imaging services -- Trial court properly entered consent judgment certifying class, approving settlement agreement, and awarding fees to class representative and its attorneys -- Intervening MRI provider was provided adequate notice of terms and effect of proposed class certification and settlement -- Trial court properly declined to postpone fairness hearing to permit intervenor's last-minute discovery to proceed -- Predominant feature of settlement is uniform interpretation of CPI adjustment as directed by legislature -- Settlement is fair where base amount is adjusted annually, but without compounding, and CPI figures published by Bureau of Labor Statistics are rounded up to the nearest one-tenth of one percent -- Trial court properly approved award of attorney's fees and costs paid by settling insurer -- Provision for opt-out allowed class member claimants to recover their CPI adjustments as computed in a fair interpretation of the controlling statute and to seek any other penalties, fees, or other amounts available by law

34 Fla. L. Weekly D1548a
17 So. 3d 754

Insurance -- Personal injury protection -- Coverage -- Magnetic resonance imaging -- Computation of amount payable for MRI by applying annual consumer price index inflation adjustments -- Under version of section 627.736(5)(b)(5), Florida Statutes, effective July 5, 2005, the first CPI adjustment should be made as of August 1, 2002, for the year 2001 -- The adjustment should then be made annually on August 1 each year through the year in which the MRI is performed, and the CPI factor should be based on the statutorily-referenced chart for the 12-month period ending June 30 of each year

34 Fla. L. Weekly D15d
997 So. 2d 1208

Insurance -- Personal injury protection -- Class actions -- Pre-certification discovery -- Circuit court departed from essential requirements of law in affirming discovery order requiring production of documents including guidelines and procedure and practice manuals provided to insurer's claims adjusters because order allowed discovery that goes to merits of cause of action before necessary prerequisites of standing and class certification were established

34 Fla. L. Weekly D2364b
25 So. 3d 584

Attorney's fees -- Insurance -- Personal injury protection -- Circuit court acting in its appellate capacity departed from essential requirements of law when it reversed trial judge's order awarding a contingency fee multiplier because petitioner did not testify that she had difficulty securing counsel to represent her in the cause without a multiplier -- Expert testimony that petitioner would have difficulty securing counsel without the opportunity for a multiplier supported imposition of multiplier -- Circuit court failed to apply principle of law previously enunciated by district court, rather than that of a sister district court of appeal

34 Fla. L. Weekly D542a
7 So. 3d 583

Insurance -- Personal injury protection -- Attorney's fees -- Prevailing party -- Appellate panel of circuit court departed from essential requirements of law in awarding attorney's fees to insured where appellate panel reversed trial court's summary judgment for insured, so that insured was not prevailing party on appeal

34 Fla. L. Weekly D274a
2 So. 3d 1050

Insurance -- Personal injury protection -- Attorney's fees -- Fees awarded to insured's attorney for representation in PIP claim which was added shortly before initial action against tortfeasor and against insurer for uninsured motorist benefits was settled -- Fee award was excessive -- Late filed amendment to add PIP claim and request for attorney's fees did not relate back to beginning of action -- Date of amendment to add PIP claim was first date from which attorney's fees relating to that claim could have been awarded -- Counsel's testimony regarding number of hours he expended on action from date complaint was filed will not support fee award for litigating PIP claim -- Testimony of counsel and his expert about time expended on PIP claim amounts to little more than speculation

34 Fla. L. Weekly D672b
10 So. 3d 1106

Insurance -- Personal injury protection -- Assignment of benefits -- Insured's assignment of benefits to medical provider and medical provider's further assignment of benefits to billing service -- In action by second assignee against insurer for failure to pay benefits due, county court erred in entering summary judgment for insurer on ground that initial assignment to medical provider was ambiguous for failure to specifically name the medical provider -- County court's conclusion that initial assignment was ambiguous acknowledged the existence of a fact issue which precluded summary judgment -- Circuit court in its appellate capacity departed from essential requirements of law in affirming county court's summary judgment -- After-loss claim for PIP benefits may be assigned to third party who is not a medical provider

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

34 Fla. L. Weekly D1578a
22 So. 3d 594

Insurance -- Personal injury protection -- Rescission of policy -- Material misrepresentation in application -- Right of rescission for misrepresentation in application contained in section 627.409, Florida Statutes, applies to PIP insurance contracts issued pursuant to Florida Motor Vehicle No-Fault Law -- Insurer's failure to comply with requirement of section 627.728, Florida Statutes, that notice of cancellation be given to insured forty-five days prior to effective date of cancellation, does not abrogate insurer's ability to void policy ab initio pursuant to section 627.409 -- Insurer's right of rescission is not abrogated by section 627.736(9)(a), which requires that the renewal, cancellation, or nonrenewal of a PIP policy be reported to Department of Highway Safety and Motor Vehicles within 45 days from the effective date of the renewal, cancellation, or nonrenewal -- Circuit court appellate division departed from essential requirements of law in affirming county court declaratory decree that insurer's only remedy was to cancel policy prospectively under section 627.728 where insured had failed to list a member of his household on his insurance application

34 Fla. L. Weekly D2458b
29 So. 3d 1145

Insurance -- Personal injury protection -- Cancellation of no fault policy can be effective ab initio in light of mandatory requirements imposed by Florida No Fault Law

34 Fla. L. Weekly D1320a
15 So. 3d 701

Insurance -- Automobile -- Medical expenses coverage -- Where endorsement to policy covering automobile which was purchased for plaintiff by party to whom plaintiff was not married, but with whom she was living, provided medical expense coverage to the named insured or any relative, and the named insured was the person who purchased the automobile, coverage was not provided to plaintiff for medical expenses she incurred as result of injuries suffered when she was in an accident while driving the automobile -- Policy was not ambiguous as to whether plaintiff was entitled to medical payment coverage -- Trial court erred in entering summary judgment for plaintiff, finding that she is entitled to medical expenses coverage -- Remand to afford plaintiff opportunity to establish other theories supporting claim for medical expenses coverage

34 Fla. L. Weekly D1592b 17 So. 3d 770 Insurance -- Insurers Rehabilitation and Liquidation Act -- Voluntary liquidation and rehabilitation -- Objection to approval of claims report in which insurer recommended that claimants, who had obtained judgments in medical negligence suits against members of insurer's self-insurance fund in amounts in excess of policy limit, be limited to recovering the policy limit -- Claimants were not required to obtain an excess judgment or a finding of bad faith before insurer voluntarily sought liquidation -- IRLA statutory scheme clearly envisions that some claims will be based on events that occur before liquidation is initiated, and that such claims are not precluded merely because judgment is obtained after liquidation, or because judgment exceeds policy limits -- Trial court had discretion as to what weight to place upon claimants' final judgments in the claims objection process where, although medical negligence suits were brought before insurer's voluntary placement in receivership, judgments were not obtained until two and six years after receivership process began -- Trial court did not abuse its discretion in rejecting claimants' allegations of bad faith on part of insurer and determining that recovery should be limited to policy limit -- Trial court did not abuse its discretion by failing to award claimant monies beyond policy limit for litigation costs, interest, or liens or in approving insurer's motion for approval of distribution

34 Fla. L. Weekly D1533a
21 So. 3d 137

NOT FINAL VERSION OF OPINION
Subsequent Changes at 34 Fla. L. Weekly D2282a

Contracts -- Insurance -- Florida Kidcare Act -- Health maintenance organization's action for breach of contract, breach of implied covenant of good faith and fair dealing, and breach of fiduciary duty against Florida Healthy Kids Corporation, alleging that defendant erroneously determined that a special needs child could be enrolled in the FHKC program, with the result that plaintiff was obligated to provide child with medical costs exceeding $300,000 -- Trial court misinterpreted controlling statutes when it concluded that defendant did not breach its contract with plaintiff by enrolling child in FHKC program -- Child with special health care needs and family income exceeding 200% of federal poverty level is allowed to participate in Children's Medical Services Network, a program specifically designed to cover children with special needs, and it was error to find that child was ineligible for CMS program due to her family's income

34 Fla. L. Weekly D2282a
21 So. 3d 137

Contracts -- Insurance -- Florida Kidcare Act -- Health maintenance organization's action for breach of contract against Florida Healthy Kids Corporation, alleging that defendant erroneously determined that a special needs child could be enrolled in FHKC program because she was ineligible to be enrolled in Children's Medical Services Network due to her family's income -- Trial court erred in entering summary judgment finding that defendant did not breach contract with plaintiff by enrolling child in FHKC program -- Child with special health care needs and family income exceeding 200% of federal poverty level is allowed to participate in Children's Medical Services Network, a program specifically designed to cover children with special needs, and it was error to find that child was ineligible for CMS program due to her family's income

34 Fla. L. Weekly D2300a
25 So. 3d 13

Insurance -- Long-term care -- Provision in home health care policy which provides coverage for secondary services, such as a home health aide, only when such services are received in a week in which primary services, such as registered nurse, are received, is forbidden by statute -- Application of statute to invalidate provision in policy which was first issued prior to the effective date of the statute does not amount to an unconstitutional impairment of contract where the policy was renewed a number of times after the effective date of the statute -- Renewal of contract of insurance generally constitutes the making of a new contract for purpose of incorporating into policy changes in statutes regulating insurance contracts -- Further, policy is ambiguous and misleading

34 Fla. L. Weekly S111a
2 So. 3d 209

Insurance -- Uninsured motorist -- Subrogation -- Limitation of actions -- Where uninsured motorist insurer refused to grant insured permission to accept underinsured tortfeasor's liability insurer's tender of its policy limit in settlement of claim, and paid insured the amount of the settlement offer, preserving its subrogation rights against tortfeasor, uninsured motorist insurer had right to pursue its subrogation claim only after final resolution of the uninsured motorist claim -- Statute of limitations for bringing of an uninsured motorist subrogation action begins to run from the time of the final resolution of the uninsured motorist claim

34 Fla. L. Weekly D886a
8 So. 3d 1242

Insurance -- Renewable term life insurance policy -- Notice of right to renew -- There is no basis upon which an owner of a renewable term life insurance policy is entitled to receive notice of the right to renew beyond the notice in the policy itself -- Trial court erred in entering summary judgment finding plaintiff was, by virtue of a dissolution of marriage decree, the equitable owner of a ten-year, renewable, life insurance policy her former husband had purchased and, for that reason, was entitled to notice, as the end of the original term approached, of her right to renew the policy

34 Fla. L. Weekly D1547a
16 So. 3d 904

Insurance -- Errors and omissions -- Third party administrators professional liability policy -- Coverage -- There was no coverage under policy for action against insured by plaintiff who marketed health maintenance organization products for insured, alleging that insured breached marketing agreement and interfered with plaintiff's business relationships by insured's deliberate, intentional, and systematic actions -- Actions of insured, as alleged in complaint, were not done in the performance of professional services for plaintiff, and did not amount to negligent acts, errors, or omissions -- Insurer had no duty to defend and no duty to indemnify insured for sums it paid in settlement

34 Fla. L. Weekly D1585a
18 So. 3d 9

Insurance -- Liability -- Medical payments -- Policy which provided MedPay coverage, regardless of fault, for bodily injury caused by an accident on ways next to premises owned or rented by insured did not provide coverage for injuries suffered in an accident on the public highway in front of the shopping center in which insured rented a building where the shopping center and the shopping center parking lot were separated from the highway by two swales and a sidewalk -- Highway where accident occurred was not “next to” the insured premises

34 Fla. L. Weekly D2439a
23 So. 3d 1232

Insurance -- Business owners -- Exclusions -- Professional services exclusion in policy issued to physician which excluded coverage for bodily injury, property damage, personal injury or advertising injury due to rendering or failure to render any professional service -- Trial court properly determined that exclusion excluded coverage for services performed by insured's wife in filing, and making the insured aware of, lab reports -- Trial court properly found that insured's wife, who not only performed clerical tasks, but also assisted insured in all aspects of his practice, was a medical assistant and that her duties included the rendering of professional services -- Although insurer had no duty to indemnify, trial court properly found that insurer had duty to defend because complaint against insured in wrongful death action alleged facts that fell within the insuring language of the policy

34 Fla. L. Weekly D1001a
12 So. 3d 276

Insurance -- Liability -- Discovery -- Where insurer had denied coverage, trial court improperly denied insurer protection from notice of deposition directed to president of insurance company regarding policies and procedures concerning claims handling by insurer -- Discovery which concerns only potential issues of bad faith or other purported improprieties in defending the claim is impermissible unless and until it is determined that policy provides coverage

34 Fla. L. Weekly D1437a
17 So. 3d 732

Insurance -- Arbitration -- Coverage disputes -- Liability coverage under maritime policy -- Case law prohibiting arbitration of insurance coverage disputes must give way to requirements of Federal Arbitration Act and Convention on the Recognition of and Enforcement of Foreign Arbitral Awards -- There was no conflict between the arbitration clause of the policy and the service of suit clause, and even if there were a conflict, the arbitration clause would prevail -- McCarran-Ferguson Act applies only to arbitration agreements within the United States and has no effect on an international arbitration agreement that is governed by the Convention -- Arbitration agreement is protected by the Convention where the parties made an agreement in writing to engage in a commercial relationship, that of insurer and insured, and they agreed to arbitrate any disputes under the agreement in England, a country that is a signatory to the Convention -- Federal Arbitration Act and Convention apply, and the provisions of the Act and Convention are not preempted by state laws regulating the business of insurance

34 Fla. L. Weekly D186a
998 So. 2d 677

Insurance -- Commercial general liability -- Exclusions -- Workers' compensation obligations -- Provision excluding coverage for any obligation of the insured under workers' compensation and similar laws applied to negligence claims brought by insured's employees against insured based on injuries employees sustained during the course and scope of their employment, even though insured failed to maintain statutorily mandated workers' compensation insurance

34 Fla. L. Weekly D93a
998 So. 2d 662

Insurance -- Commercial general liability -- Coverage -- Declaratory judgment -- Trial court departed from essential requirements of law in staying coverage issues in non-jury declaratory judgment action pending resolution of jury proceeding in underlying wrongful death action where declaratory judgment action and underlying tort action were mutually exclusive and a decision on the issues underlying insurance coverage would promote settlement and avoid the problem of collusive actions between claimant and insured

34 Fla. L. Weekly D2614d
27 So. 3d 95

Insurance -- Liability -- Bad faith -- Error to enter summary judgment in favor of insurer in insured's action alleging that insurer acted in bad faith in failing to settle claim within policy limits, failing to properly advise insured of possibility of excess verdict, and failing to inform insured of remedial steps available to minimize her risk of a substantial money judgment against her where there existed genuine issues of material fact which might support a jury finding of bad faith

34 Fla. L. Weekly D1422a
15 So. 3d 749

Insurance -- Homeowners -- Prejudgment interest -- Where insurer was obligated to pay claim sixty days after filing of appraisal award, insured was entitled to prejudgment interest on portion of appraisal award not timely paid from date payment became due under policy -- Error to award prejudgment interest from date insured's property was damaged

34 Fla. L. Weekly D466b
7 So. 3d 552

Insurance -- Homeowners -- Coverage -- Hurricane damage -- Valued Policy Law -- Covered and non-covered perils -- Error to hold that insurer was required to pay full policy limits where property was total loss, and loss was caused partially by wind, a covered peril under the policy, and partially by water, a non-covered peril -- Amount due under debris removal and law and ordinance provisions of policy to be determined on remand where record did not establish that costs claimed by homeowners were solely attributable to wind -- Prejudgment interest -- No error in refusing to award prejudgment interest from date residence was damaged by hurricane under debris removal and law and ordinance provisions where policy provided that insurer was not obligated to pay a claim for debris removal or law and ordinance coverage until twenty days after it reached an agreement with the insureds or sixty days after filing of an appraisal award or mediation settlement with insurer

34 Fla. L. Weekly D1398a
11 So. 3d 1012

Insurance -- Uninsured motorist -- Circuit court did not err in finding that claimant, who had received personal injury protection benefits under his employer's policy until that coverage was exhausted, was obligated under the policy to submit to an examination under oath and to produce medical records , which were requested by insurer in order to investigate its potential liability under uninsured motorist provisions of the policy, even though claimant had not made a written claim under UM portion of policy -- No error in finding that policy permitted insurer to reserve its right to later deny coverage -- Record does not establish that insurer failed to abide by reasonableness provisions set forth in its policy or that it engaged in unfair claim settlement practices

34 Fla. L. Weekly D844b
10 So. 3d 1120

Insurance -- Insolvent insurers -- Discovery -- Department of Financial Services had authority to serve investigative demand to obtain information it believed to be relevant to the affairs of insolvent insurance companies -- Authority for investigative demand is established by section 631.156, Florida Statutes, which provides that the Department may conduct an investigation to determine the cause of an insurer's insolvency -- Right to obtain discovery is not limited to business entities that have managerial control over insurer or one of its affiliates -- Fact that entity from which discovery is sought is not authorized to do business in Florida has no bearing on issue, because statute does not contain an exemption for foreign corporations -- Argument that there is no basis for exercise of long-arm jurisdiction is out of place because Department does not seek relief against party as would be the case had Department filed lawsuit or administrative complaint against it

34 Fla. L. Weekly D1014b
8 So. 3d 506

Insurance -- Homeowners -- Discovery orders -- Appeals -- Certiorari -- Petition for writ of certiorari requesting that court quash order compelling production of certain materials regarding issuance of homeowners' policies to applicants with prior bankruptcies and regarding the obtaining of credit reports or other financial reports on policy applicants for two year period -- Insurer is not entitled to certiorari relief because insurer has not demonstrated irreparable harm where policy applicant has abandoned any claim of entitlement to materials insurer seeks to shield and insurer has abandoned its objection to producing the remaining materials -- Even without parties' concession, insurer is not entitled to relief, because it made no claim in trial court that materials at issue were proprietary

34 Fla. L. Weekly D1023a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 34 Fla. L. Weekly D1278a

Insurance -- Uninsured motorist -- Discovery -- Order compelling production of insurer's claim file constituted departure from essential requirements of law where extent of damages incurred by insured as result of underlying accident had not been fully determined, and bad faith claim had not fully accrued -- Bad faith claim is premature where there has been no determination of damages claimed by insured -- Offer and acceptance of policy limits under uninsured motorist policy did not determine the amount of damages that must be established as a condition precedent to litigating the potential bad faith claim

WITHDRAWN at 34 Fla. L. Weekly 1278a

34 Fla. L. Weekly D559b
6 So. 3d 1256

Insurance -- Discovery -- Claim file -- Circuit court departed from essential requirements of law in ordering insurer to produce certain items in its claims file where insured alleged breach of contract and sought declaratory judgment that coverage was in effect on date of accident and did not assert bad faith claim -- Requiring disclosure of claim file materials during litigation of coverage issues would result in irreparable harm that cannot be adequately addressed on appeal

34 Fla. L. Weekly D653a
9 So. 3d 655

Insurance -- Bad faith -- Discovery -- Attorney-client privilege -- Trial court improperly granted insured discovery of documents that were generated following entry of excess judgment against insurer -- Bill for legal services that contains description of billed-for attorney activities that predate underlying judgment was discoverable -- Nothing in Florida Supreme Court decision eliminates attorney-client privilege in first-party insurance cases where the plaintiff asserts statutory bad faith -- Even if privilege were eliminated, such nullification of privilege cannot extend to communications made after the underlying first-party insurance dispute is adjudicated

34 Fla. L. Weekly D2169b
24 So. 3d 588

Insurance -- Discovery orders -- Appeals -- Certiorari -- Insurer's “emergency” petition for writ of certiorari seeking review of order in which circuit court, acting in its appellate capacity, deferred ruling on insurer's motion for review of a county court order denying a stay pending appellate review in order to prevent the plaintiff in the county court case from obtaining bad faith discovery before liability was established -- Circuit court did not depart from essential requirements of law, and delay in ruling on request for stay pending appellate review did not result in irreparable harm

34 Fla. L. Weekly D2223c
23 So. 3d 1212

Insurance -- Bad faith -- Discovery -- Discovery regarding bad faith claim is premature where coverage issues have not been determined

34 Fla. L. Weekly D653a
9 So. 3d 655

Insurance -- Bad faith -- Discovery -- Attorney-client privilege -- Trial court improperly granted insured discovery of documents that were generated following entry of excess judgment against insurer -- Bill for legal services that contains description of billed-for attorney activities that predate underlying judgment was discoverable -- Nothing in Florida Supreme Court decision eliminates attorney-client privilege in first-party insurance cases where the plaintiff asserts statutory bad faith -- Even if privilege were eliminated, such nullification of privilege cannot extend to communications made after the underlying first-party insurance dispute is adjudicated

34 Fla. L. Weekly D1241e
12 So. 3d 306

Insurance -- Bad faith -- Appeals -- Certiorari -- Petition dismissed for failure to establish irreparable harm which is necessary to invoke court's certiorari jurisdiction

34 Fla. L. Weekly D2599b
25 So. 3d 62

Insurance -- Homeowners -- Bad faith -- Citizens Property Insurance Corporation is shielded by sovereign immunity from bad faith claims -- Petition for writ of prohibition granted -- Trial court directed to take no further action with respect to first-party bad faith claim against Citizens Property Insurance Corporation

34 Fla. L. Weekly D2119aNOT FINAL VERSION OF OPINION
Subsequent Changes at 36 Fla. L. Weekly D1558a

Insurance -- Hurricane damage to condominium -- Bad faith -- Ripeness of claim -- Where insurer's liability to insured condominium association had been determined, and an appraisal had been completed and confirmed by court, the conditions precedent for amendment to add a bad faith claim were met -- There is no merit to insurer's argument that prosecution of bad faith claim must be abated until insurer has been permitted to appeal the liability and appraisal decisions and exhaust all appellate remedies relating to those issues -- Trial court properly allowed insured to proceed with statutory bad faith claim and punitive damages claim

34 Fla. L. Weekly D488b
4 So. 3d 80

Insurance -- Automobile liability -- Where policy provided separate coverage for bodily injury and property damage liability, insurer was not collaterally estopped from contesting bodily injury coverage because of fact that it has paid property damage liability claim -- Where, at time of accident, insured vehicle was being driven by insured's wife, who was listed as driver under the named driver exclusion which provided that no coverages were available to wife while driving vehicle except PIP and property damage liability, insurer was not collaterally estopped from denying bodily injury coverage although it had paid property damage claim

34 Fla. L. Weekly D2324a
23 So. 3d 1221

Insurance -- Automobile liability -- Bad faith failure to settle claim against insured -- Trial court erred in entering summary judgment for insurer in insured's bad faith action where there was factual issue as to whether insurer, having knowledge of insured's fault in causing accident with motorcyclist and the catastrophic nature of injuries to motorcyclist, breached its duty of good faith by failure to tender policy limits -- Whether it was reasonable for insurer to insist on additional medical information beyond what it already knew, whether it was reasonable for insurer to insist on further verification of attorney's lien issue, and whether insurer reasonably handled purported “tender” are factual disputes for determination by finder of fact

34 Fla. L. Weekly D1833b
16 So. 3d 1028

Insurance -- Automobile -- Medical expenses -- Insurer's denial of claim by named insured's son for medical expenses coverage on ground that claimant was not a resident relative of the named insured at time of accident -- Trial court erred in finding that policy definition of “relative” was ambiguous and that claimant was entitled to medical expenses coverage as matter of law -- Policy definition of “relative” as “a relative of any degree by blood or marriage who usually makes his home in the same family unit, whether or not temporarily living elsewhere,” is not ambiguous -- Where claimant lives in his own mobile home, and not in his parents' residence, but has close ties of kinship with his parents and is financially supported by them to a significant degree, there is a factual issue as to whether claimant may qualify as a relative for purposes of medical expenses coverage

34 Fla. L. Weekly D1320a
15 So. 3d 701

Insurance -- Automobile -- Medical expenses coverage -- Where endorsement to policy covering automobile which was purchased for plaintiff by party to whom plaintiff was not married, but with whom she was living, provided medical expense coverage to the named insured or any relative, and the named insured was the person who purchased the automobile, coverage was not provided to plaintiff for medical expenses she incurred as result of injuries suffered when she was in an accident while driving the automobile -- Policy was not ambiguous as to whether plaintiff was entitled to medical payment coverage -- Trial court erred in entering summary judgment for plaintiff, finding that she is entitled to medical expenses coverage -- Remand to afford plaintiff opportunity to establish other theories supporting claim for medical expenses coverage

34 Fla. L. Weekly D386a
3 So. 3d 421

Attorney's fees -- Insurance -- Uninsured motorist -- No error in awarding attorney's fees to insured where UM provisions of policy included arbitration clause which provided that, unless both parties agreed otherwise, arbitration would occur in the county in which the insured “lives,” insured requested that arbitration take place in Palm Beach County, insurer insisted that arbitration must take place in New Hampshire, and trial court found there was no basis for insurer's position -- Although insurer did not deny coverage per se, by maintaining that arbitration had to take place in New Hampshire, it forced insured to engage in unnecessary litigation in face of insured's insistence that he lived in Palm Beach County

34 Fla. L. Weekly D274a
2 So. 3d 1050

Insurance -- Personal injury protection -- Attorney's fees -- Fees awarded to insured's attorney for representation in PIP claim which was added shortly before initial action against tortfeasor and against insurer for uninsured motorist benefits was settled -- Fee award was excessive -- Late filed amendment to add PIP claim and request for attorney's fees did not relate back to beginning of action -- Date of amendment to add PIP claim was first date from which attorney's fees relating to that claim could have been awarded -- Counsel's testimony regarding number of hours he expended on action from date complaint was filed will not support fee award for litigating PIP claim -- Testimony of counsel and his expert about time expended on PIP claim amounts to little more than speculation

34 Fla. L. Weekly D1326c
14 So. 3d 1230

Insurance -- Uninsured motorist -- Error to grant new trial based solely on insured's argument that previously undisclosed testimony of insurer's medical expert unfairly surprised and prejudiced insured and confused the jury -- Trial court erred in failing to consider factors set forth by supreme court in Binger v. King Pest Control in determining whether undisclosed testimony should be excluded as prejudicial to opposing party -- There was no substantial change between expert's trial testimony and the opinion contained in his report, which was that there was no evidence of impairment, there was no evidence to substantiate insured's claims, and there were inconsistencies in insured's medical records as to whether she began experiencing pain the day after the accident or immediately after the accident -- Expert's testimony did not violate order in limine limiting expert's testimony to matters within scope of his report -- Medical expert's testimony is not limited to exact wording of expert's written report -- Attorney's fees -- Offer of judgment made by insurer was not so vague that it could be construed as requiring insured to relinquish her right to bring suit for future causes of action unrelated to the subject matter of the instant case -- Remand for reinstatement of jury verdict and consideration of insurer's motion for lower court attorney's fees -- Motion for appellate attorney's fees provisionally granted, with directions to trial court to determine amount

34 Fla. L. Weekly D2364b
25 So. 3d 584

Attorney's fees -- Insurance -- Personal injury protection -- Circuit court acting in its appellate capacity departed from essential requirements of law when it reversed trial judge's order awarding a contingency fee multiplier because petitioner did not testify that she had difficulty securing counsel to represent her in the cause without a multiplier -- Expert testimony that petitioner would have difficulty securing counsel without the opportunity for a multiplier supported imposition of multiplier -- Circuit court failed to apply principle of law previously enunciated by district court, rather than that of a sister district court of appeal

34 Fla. L. Weekly D542a
7 So. 3d 583

Insurance -- Personal injury protection -- Attorney's fees -- Prevailing party -- Appellate panel of circuit court departed from essential requirements of law in awarding attorney's fees to insured where appellate panel reversed trial court's summary judgment for insured, so that insured was not prevailing party on appeal

34 Fla. L. Weekly D1104a
13 So. 3d 1079

Attorney's fees -- Insurance -- Homeowners -- Under facts of case, insureds were entitled to recover prevailing party attorney's fees from their insurer pursuant to section 627.428, even though they filed their civil complaint after insurer invoked its right to an appraisal -- Under circumstances, absence of court order or judgment is not fatal to insureds' claim -- More than a year after loss, insurer was taking position that bulk of damage to insureds' roof was not covered and indicating to insureds that insurer intended to take no further action and was closing its file; insureds invoked right to mediation under insurance contract; and when this failed to resolve dispute, insureds hired counsel and threatened suit, sending the insurer a draft complaint, stating a claim for breach of contract; and only at that point did insurer invoke right to appraisal, while asserting that it was retaining right to deny claim -- Although trial court never entered judgment or order confirming appraisal award in insureds' favor, it is undisputed that insurer paid claim, and Florida law squarely holds that payment after suit is filed operates as confession of judgment entitling insured to attorney's fees

34 Fla. L. Weekly D1377d 14 So. 3d 1264 Health maintenance organizations -- Appeal of dismissal of request for attorney's fees in action against HMO seeking injunctive relief and attorney's fees due to HMO's refusal to provide coverage for certain medical treatment -- Attorney's fees -- Appellate -- Imposition of sanction of appellate attorneys' fees pursuant to section 57.105 is appropriate where appeal of trial court's dismissal of plaintiff's request for attorney's fees lacked any statutory support and plaintiff attempted to keep material facts from court -- Each deficiency should have been obvious to party and her counsel at time that appeal was filed, and constitutes sufficient reason to impose sanction of appellate fees -- Argument on appeal that trial court should have awarded fees under section 641.28, which provides for prevailing party fees and costs in suits to enforce terms and conditions of HMO contract, lacks legal and factual merit, since purpose of lawsuit was not to enforce terms of HMO contract -- Plaintiff's failure to acknowledge in her complaint HMO's agreement to pay for cost of her medical treatment prior to filing of complaint is sanctionable conduct as it violates appellate counsel's ethical obligation to present facts accurately and forthrightly -- Attorney's fees to be paid in equal amount by plaintiff and her attorney pursuant section 57.105(1)

34 Fla. L. Weekly D1840a
106 So. 3d 452

Insurance -- Fidelity bond issued to bank to cover employee dishonesty -- Claim to recover for losses sustained by bank as result of bad loans employee wrote for used car dealer referral program -- Trial court did not err in allowing jury to determine the definition of “dishonesty” where that term was not defined in policy -- Based on jury's finding that employee's 1988 act was not dishonest, insurer cannot avoid liability for employee's fraudulent acts reported in 2003 -- Trial court did not err in denying insurer's motion for directed verdict on issue of termination of coverage or in instructing jury on termination of coverage -- Attorney's fees -- Trial court did not err in denying a contingency fee multiplier on attorney's fee awarded to bank where relevant market did not require a contingency fee multiplier in order for bank to obtain competent counsel

34 Fla. L. Weekly D232e
1 So. 3d 365

Insurance -- Attorney's fees -- Circuit court acting in appellate capacity departed from essential requirements of law in awarding appellate attorney's fees and costs to insured where insured was not prevailing party

34 Fla. L. Weekly D1437a 17 So. 3d 732 Insurance -- Arbitration -- Coverage disputes -- Liability coverage under maritime policy -- Case law prohibiting arbitration of insurance coverage disputes must give way to requirements of Federal Arbitration Act and Convention on the Recognition of and Enforcement of Foreign Arbitral Awards -- There was no conflict between the arbitration clause of the policy and the service of suit clause, and even if there were a conflict, the arbitration clause would prevail -- McCarran-Ferguson Act applies only to arbitration agreements within the United States and has no effect on an international arbitration agreement that is governed by the Convention -- Arbitration agreement is protected by the Convention where the parties made an agreement in writing to engage in a commercial relationship, that of insurer and insured, and they agreed to arbitrate any disputes under the agreement in England, a country that is a signatory to the Convention -- Federal Arbitration Act and Convention apply, and the provisions of the Act and Convention are not preempted by state laws regulating the business of insurance

34 Fla. L. Weekly D1422a
15 So. 3d 749

Insurance -- Homeowners -- Prejudgment interest -- Where insurer was obligated to pay claim sixty days after filing of appraisal award, insured was entitled to prejudgment interest on portion of appraisal award not timely paid from date payment became due under policy -- Error to award prejudgment interest from date insured's property was damaged

34 Fla. L. Weekly D333a
5 So. 3d 709

Insurance -- Commercial wind only policy -- Appraisal -- Court erred in entering judgment requiring insurer to pay full amount of appraisal award without a reduction for sums previously paid to insured and reduction for policy deductible, where appraisers made estimate of total loss without regard to any deductible or prior payments -- Attorney's fees -- Where insurer had underpaid insured, insured filed suit, and appraisal culminated in judgment for insured for additional sum, insured was entitled to award of attorney's fees

34 Fla. L. Weekly D1752a
16 So. 3d 977

NOT FINAL VERSION OF OPINION
Subsequent Changes at 34 Fla. L. Weekly D1872a

Insurance -- Homeowners -- Appraisal -- Prejudgment interest -- Where insurer initially denied coverage for claim, and later agreed to appraisal and paid appraisal award, trial court properly awarded prejudgment interest from date of loss -- By initially denying coverage for claim, insurer waived policy provision allowing deferred payment following appraisal award

34 Fla. L. Weekly D1872a
16 So. 3d 977

Insurance -- Homeowners -- Appraisal -- Prejudgment interest -- Where insurer initially denied coverage for claim, and later agreed to appraisal and paid appraisal award, trial court properly awarded prejudgment interest from date of loss -- By initially denying coverage for claim, insurer waived policy provision allowing deferred payment following appraisal award

34 Fla. L. Weekly D2481a
26 So. 3d 610

Insurance -- Commercial property damage -- Appraisal -- Insolvent insurers -- Where insolvent insurance company which was Florida Insurance Guaranty Association's predecessor failed to comply with notice requirements of statute, insured was not required to submit to loss appraisal process -- FIGA is not exempt from notice requirement -- Line of cases refusing to hold FIGA liable for misdeeds of defunct insurer, beyond those arising out of an insurance policy, does not provide basis for avoiding application of statute -- FIGA's contention that appraisal process here is not a “precondition to legal action” within meaning of statute rejected in view of fact that FIGA requested stay in circuit court until contractual loss appraisal process was completed

34 Fla. L. Weekly D2000a
18 So. 3d 703

Insurance -- Appraisal -- Trial court erred in denying Florida Insurance Guaranty Association's motion to compel appraisal of property damage pursuant to policy terms -- Association did not waive right to appraisal by denying claim or by participating in litigation -- Appraisal clause may be invoked for first time after litigation has commenced -- Right to appraisal was not waived where FIGA asserted right in its original motion to dismiss and in all subsequent pleadings and at hearings

34 Fla. L. Weekly D2482a
33 So. 3d 48

Insurance -- Commercial property damage -- Appraisal -- Insolvent insurers -- Florida Insurance Guaranty Association is precluded from asserting its right to compel appraisal process by failing to provide the notice required by the statute -- Impairment of contracts -- Statutory amendment subjecting commercial residential insurance policies to mediation provisions of amended statute was not an unconstitutional impairment of insurance policy which was in existence prior to effective date of amendment -- Discussion of balancing approach adopted by supreme court in Pomponio v. Claridge of Pompano Condo., Inc. for use in determining whether statute amounted to constitutionally impermissible impairment of contract -- FIGA's contention that appraisal process here is not a “precondition to legal action” within meaning of statute rejected in view of fact that FIGA requested stay in circuit court until contractual loss appraisal process was completed

34 Fla. L. Weekly D1578a
22 So. 3d 594

Insurance -- Personal injury protection -- Rescission of policy -- Material misrepresentation in application -- Right of rescission for misrepresentation in application contained in section 627.409, Florida Statutes, applies to PIP insurance contracts issued pursuant to Florida Motor Vehicle No-Fault Law -- Insurer's failure to comply with requirement of section 627.728, Florida Statutes, that notice of cancellation be given to insured forty-five days prior to effective date of cancellation, does not abrogate insurer's ability to void policy ab initio pursuant to section 627.409 -- Insurer's right of rescission is not abrogated by section 627.736(9)(a), which requires that the renewal, cancellation, or nonrenewal of a PIP policy be reported to Department of Highway Safety and Motor Vehicles within 45 days from the effective date of the renewal, cancellation, or nonrenewal -- Circuit court appellate division departed from essential requirements of law in affirming county court declaratory decree that insurer's only remedy was to cancel policy prospectively under section 627.728 where insured had failed to list a member of his household on his insurance application

34 Fla. L. Weekly D2458b
29 So. 3d 1145

Insurance -- Personal injury protection -- Cancellation of no fault policy can be effective ab initio in light of mandatory requirements imposed by Florida No Fault Law

34 Fla. L. Weekly D2530a
24 So. 3d 638

Appeals -- Insurance -- Uninsured motorist -- Appellate court lacks jurisdiction to review order granting summary judgment in favor of insureds on a claim for declaratory relief that was included as a count in a lawsuit seeking UM benefits where determination of right to receive UM benefits under the policy at issue and the amount receivable from insurer for claim is still pending in trial court

34 Fla. L. Weekly D873a
11 So. 3d 969

Appeals -- Insurance -- Order granting motion to confirm appraisal award is not appealable where no final judgment has been entered on order, and trial court has made no formal resolution of insurer's petition to set aside award

NOT FINAL VERSION OF OPINION
Subsequent Changes at 34 Fla. L. Weekly D370b

34 Fla. L. Weekly D74a

34 Fla. L. Weekly D370b
1 So. 3d 1272

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

34 Fla. L. Weekly D1185a
14 So. 3d 1120

Insurance -- Appeals -- Certiorari -- Petition for writ of certiorari quashing lower court order denying petitioner's renewed motion to amend complaint and denying petitioner's motion to strike defendant's requests for admissions, objection to request for admissions, and motion for protective order -- Certiorari must be denied where any error would be fully remediable on plenary appeal -- Attorney's fees -- Appellate -- Given courts' narrow interpretation of language of section 627.428, appellate court is not authorized to grant fees to an insured who does not succeed in application for certiorari

34 Fla. L. Weekly D2588a 23 So. 3d 237 Insurance -- Appeals -- Uninsured motorist -- Where plaintiff was injured in single vehicle accident while riding as passenger in insured vehicle which was being operated by insured, and plaintiff had received from insurer the full policy limit under the liability provisions of policy, plaintiff may not obtain further recovery under uninsured motorist endorsement and existing pleadings -- Insurer is not entitled to writ of certiorari quashing trial court order denying motion for judgment on pleadings because insurer has not established irreparable harm -- Prospect that insurer may be put to expense and inconvenience of a trial does not establish irreparable harm -- Order is not appealable as a judgment determining the existence or nonexistence of insurance coverage because claim was asserted only against the insurer

34 Fla. L. Weekly D1753a
16 So. 3d 979

NOT FINAL VERSION OF OPINION
Subsequent Changes at 34 Fla. L. Weekly D1799a

Insurance -- Breach of contract between insurance agency and insurance company -- Agency breached contract with insurance company when it had company issue a policy excluding uninsured motorist coverage although agency had no written waiver of UM coverage from applicant and purportedly knew that applicant wanted UM coverage, and failed to notify company that applicant had not waived UM coverage until after a claim for UM benefits had been made against policy -- Summary judgment on breach of contract claim is improper where issue remains as to whether insurance company sustained any injury as consequence of breach -- If the insured wanted UM coverage, then insurer suffered no harm flowing from agency's failure to either secure a UM waiver or to advise insurer that it had no UM waiver -- If insured did not want UM coverage or decided after learning of its cost not to take it, then insurer was injured because of agency's failure to secure a UM waiver from insured