2010

35 Fla. L. Weekly D732b
34 So. 3d 81

Insurance -- Uninsured motorist -- Insurer was not required to include information about UM coverage options in six-month policy renewal notice -- Trial court correctly interpreted plain language of statute as requiring only annual notice, even where, as in this case, the policy renews every six months -- Trial court correctly found insured was not entitled to UM benefits where insured initially rejected UM coverage and did not elect such coverage for renewal policy period

35 Fla. L. Weekly D2151a
46 So. 3d 94

Insurance -- Uninsured motorist -- New trial -- Trial court did not abuse discretion in granting insured plaintiff a new trial in action against insurer where court had entered summary judgment for plaintiff on liability, and jury awarded plaintiff zero damages upon finding that automobile accident was not a legal cause of any injuries to plaintiff -- Trial court did not abuse discretion by finding that jury verdict was contrary to manifest weight of evidence that plaintiff required some reasonable diagnostic testing where no evidence was presented that any of the diagnostic tests that were performed were not reasonable or necessary to determine whether the accident caused plaintiff's complained of injuries

35 Fla. L. Weekly D1973b
49 So. 3d 272

Insurance -- Uninsured motorist -- Torts -- Insured's action against insurer for injuries which insured alleged were sustained when uninsured motorist rear-ended her vehicle, but which insurer contended were pre-existing and not caused by accident -- Damages -- Future medical expenses -- Excessiveness -- Error to deny defendant's motions for new trial or remittitur, in which defendant contended amount of future medical expenses awarded was excessive in light of jury's finding of no permanent injury, on ground that defendant was actually arguing that verdict was inconsistent and that this issue had not been preserved by objection prior to discharge of jury -- Issue of excessive verdict was preserved where defense counsel raised excessiveness issue in motions for new trial and remittitur -- Remand for review of jury's damage award based on analysis of factors outlined in section 768.043(2) -- No abuse of discretion in denying insurer's motion for mistrial based on cross-examination of defense expert which attempted to show expert was “un-American” because expert outsourced transcription jobs to India and a sexual predator or pervert because he made examinees wear flimsy paper robes during examinations

35 Fla. L. Weekly D2840a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 36 Fla. L. Weekly D415b

Insurance -- Uninsured motorist -- Where insured filed declaratory judgment action seeking determination of where independent medical examination should take place, it was premature for court to enter summary judgment finding that there was no coverage under policy because insured had failed to undergo independent medical examination as requested by insurer -- Insured should be allowed to attend independent medical examination as ordered by court before any coverage issues are determined

35 Fla. L. Weekly D1893a
42 So. 3d 896

Insurance -- Uninsured motorist -- Policy did not provide coverage for separate vehicle owned by named insured's son although son was a joint owner of his father's insured vehicle -- Son's vehicle was not covered as a newly acquired auto where son did not notify insurer of purchase of vehicle or seek coverage for that vehicle within thirty-day notice period required by policy

35 Fla. L. Weekly D2626a
49 So. 3d 815

Insurance -- Uninsured motorist -- Policy provision requiring insured to sue owner or driver of uninsured motor vehicle was void against public policy -- Error to find that insured was not entitled to UM coverage for failure to comply with this provision -- Enforcement of policy provision at issue is fundamental error which must be corrected on appeal, although insured did not raise public policy argument in circuit court

35 Fla. L. Weekly D2873a
53 So. 3d 1084

Insurance -- Uninsured motorist -- Collateral source rule -- Trial court did not abuse discretion in permitting insured to introduce into evidence and to request from the jury the gross amount of her medical bills, rather than the lesser amount paid by insured's private health insurer in full settlement of the medical bills -- Claim that trial court erred in denying post-trial motion seeking a new trial or remittitur as to award of future medical expenses because jury's award of future medical expenses was excessive, given jury's finding that insured did not sustain a permanent injury -- Claim was not preserved for appellate review because verdict was a truly inconsistent verdict, and claim of inconsistent verdict was not raised before jury was discharged

35 Fla. L. Weekly D1751a
41 So. 3d 414

Title insurance -- Trial court properly determined that title insurance company was not liable for title insurance agency's misappropriation of plaintiffs' escrow deposits for the purchase of condominium units where escrow deposits were received by agency in its limited capacity as escrow agency for developer, and the escrow deposits were not received in connection with a transaction involving the issuance of title insurance binders, commitments, policies of title insurance, or guarantees of title -- Escrow deposits did not constitute funds held in trust pursuant to section 626.8473, Florida Statutes

35 Fla. L. Weekly D824d
36 So. 3d 713

Insurance -- Title insurance -- Action arising out of dispute regarding coverage pursuant to policy of title insurance issued by defendant -- Error to dismiss with prejudice a multi-count complaint alleging breach of contract, tort claims, and violations of Florida Deceptive and Unfair Trade Practices Act and federal racketeering act where plaintiffs could conceivably state viable causes of action with respect to three of the counts, including counts asserting claims for vicarious liability because of a breach of fiduciary duty by the title insurer's agent, breach of oral contract between plaintiff and title insurer's agent to procure specific coverage, and promissory estoppel

35 Fla. L. Weekly S201a
39 So. 3d 244

Insurance -- Uninsured motorist -- Stacking -- Where insurer issued policy to Florida residents covering vehicles registered and principally garaged in Florida and also issued and delivered to insureds in Florida a policy covering vehicle which was registered and principally garaged in Delaware, an anti-stacking provision in the Delaware policy is unenforceable under Florida law where the insurer did not obtain the insureds' informed consent to the provision

35 Fla. L. Weekly D2695a
50 So. 3d 681

Insurance -- Uninsured motorist -- Underinsured motorist -- Set-off -- Settlement -- Trial court erred in refusing to offset jury verdicts in favor of insured by amounts received in settlement with tortfeasor and tortfeasor's insurer where settlement represented a duplication of benefits -- Jury verdict was a “total damages” award where insured pled and tried issues of both economic and non-economic damages, although trial court resolved issue of non-economic damages by entering directed verdict in favor of UM insurer with regard to permanency threshold necessary to support award of non-economic damages -- Permanent injury -- Trial court did not err in entering directed verdict for insurer on permanency issue -- Insured's evidence that she might require surgery in the future which would leave a 1½-inch to 2-inch scar by her ear and possibly a 1-inch or smaller scar on abdomen was not sufficient evidence from which jury could find that insured had sustained injury resulting in significant and permanent scarring or disfigurement

35 Fla. L. Weekly D1762a
44 So. 3d 602

Title insurance -- Rescission of policy -- Where property owner purchased property at tax sale, subsequently learned that the United States claimed the property, and then applied for title insurance without disclosing this known defect in title to insurer, the owner is not entitled to recover under the title insurance policy -- Where a party does not rely on a title insurance company to advise it of encumbrances prior to acquiring title to property, it may not recover on a material title defect of which it had actual knowledge and which it failed to disclose to the insurer at the time it applied for the title policy -- Trial court properly entered judgment rescinding title insurance policy

35 Fla. L. Weekly D352a
27 So. 3d 747

Insurance -- Subrogation -- Rental dwelling policy -- Subrogation action against tenant by insurer which had paid insured landlord for fire damage to leased premises, alleging that tenant's negligence caused the fire -- Error to enter summary judgment for defendant tenant on ground that tenant was an implied co-insured under landlord's insurance policy and that insurer cannot seek subrogation against its own insured or co-insured -- In order to determine whether landlord's insurer may bring a subrogation action against a negligent tenant, the lease as a whole is to be examined in order to ascertain the intent of the parties as to who should bear the risk of loss for damage to the leased premises caused by the tenant's negligence -- Insurer should be allowed to proceed with its subrogation action against tenant because parties did not in unequivocal terms in the lease intend to limit tenant's liability for negligent acts

35 Fla. L. Weekly D1878b
45 So. 3d 833

Insurance -- Property damage -- Error to enter summary judgment for defendant insurer where there are genuine issues of material fact concerning coverage and alleged defenses, including but not limited to compliance with notice and proof of loss provisions of policy

35 Fla. L. Weekly D2866b
58 So. 3d 275

Insurance -- Personal injury protection -- Workers' compensation lien on insured's recovery from third-party tortfeasor -- Where insured entered into settlement with workers' compensation carrier whereby insured released employer and carrier from any claims related to workers' compensation benefits, and employer made a cash payment to insured and waived its statutory lien on insured's recovery from third-party tortfeasor, it was error to enter summary judgment for PIP insurer in insured's action to recover PIP benefits -- Insured was not required to directly satisfy workers' compensation lien by paying out-of-pocket in order to claim PIP benefits -- Insured effectively did pay from his pocket by giving up his right to seek future workers' compensation benefits in exchange for a negotiated cash payment and waiver of the lien when settling with the workers' compensation carrier

35 Fla. L. Weekly D1302a
37 So. 3d 379

Insurance -- Personal injury protection -- Summary judgment -- Affidavits in response to insured's motion for summary judgment -- Where insurer filed affidavit of physician which was an independent medical examination conducted by physical examination of insured without a review of treatment records, and filed a second affidavit which was a peer review of examination and treatment records performed one month later, it was error for county court to strike second affidavit -- Any discrepancy in second affidavit cannot be considered a bald repudiation of first affidavit -- Circuit court appellate division departed from essential requirements of law in affirming county court decision to strike affidavit and in affirming summary judgment in favor of insured

35 Fla. L. Weekly D1683b
39 So. 3d 563

Insurance -- Personal injury protection -- Insurer who had made unqualified assignment of PIP benefits to medical provider, and never obtained a re-assignment of benefits, had no standing to sue insurer for benefits -- Fact that insured remained liable for amounts billed by medical provider under terms of assignment did not make the assignment a qualified assignment

35 Fla. L. Weekly D1091a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 35 Fla. L. Weekly D1683b

Insurance -- Personal injury protection -- Insured did not have standing to sue insurer for PIP benefits where insured had made unqualified assignment of PIP benefits to medical provider and had never obtained a re-assignment of benefits or revocation of assignment from provider, notwithstanding language in assignment stating that insured remained liable for any medical bills not paid by insurer -- Fact that provider failed to bring claim for bills does not serve as revocation of the assignment -- Circuit court, acting in its appellate capacity, departed from essential requirements of law by affirming a final judgment in favor of insured

35 Fla. L. Weekly S222b
35 So. 3d 873

Insurance -- Personal injury protection -- Overdue benefits -- Statutory amendment which requires insured to provide presuit notice to insurer before filing an action for overdue benefits constitutes a substantive change to statute, and cannot be applied retroactively to policies issued before the effective date of the amendment

35 Fla. L. Weekly S81a
35 So. 3d 873

NOT FINAL VERSION OF OPINION
Subsequent Changes at 35 Fla. L. Weekly S222b

Insurance -- Personal injury protection -- Overdue benefits -- Statutory amendment which requires insured to provide presuit notice to insurer before filing an action for overdue benefits constitutes a substantive change to statute, and cannot be applied retroactively to policies issued before the effective date of the amendment

35 Fla. L. Weekly D613b
31 So. 3d 234

Insurance -- Personal injury protection -- Medical expenses -- Notice of loss -- An independent diagnostic corporate supplier of MRI services does not have to include the professional license number of either the interpreting radiologist or its medical director in block 31 of its CMS 1500 claim form to have furnished notice of the amount of covered loss or medical bills under section 627.736(5)(d) -- Statute requires that claim form be “properly completed,” and claim form submitted in this case complied with statute where it provided substantially accurate responses to all relevant information and material elements

35 Fla. L. Weekly D2448a
47 So. 3d 354

Insurance -- Personal injury protection -- 2008 amendment to statute which limits amount insurers reimburse providers for nonemergency, nonhospital services does not apply retroactively to policies that were in effect and that expired before statute's effective date of January 1, 2008

35 Fla. L. Weekly D1850a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 35 Fla. L. Weekly D2448a

Insurance -- Personal injury protection -- 2008 amendment to statute which limits amount insurers reimburse providers for nonemergency, nonhospital services does not apply retroactively to policies that were in effect and that expired before statute's effective date of January 1, 2008

35 Fla. L. Weekly D1934a
43 So. 3d 127

Insurance -- Personal injury protection -- Where insurer raised, as an affirmative defense in medical provider's action for PIP benefits, the insured's failure to attend a duly scheduled independent medical examination, plaintiff moved for summary judgment on the affirmative defense, and defendant filed, in opposition, the affidavit of the records custodian for the vendor responsible for scheduling IME appointments, attaching a notice letter which was sent by certified mail to the claimant, together with the signature confirmation receipt signed by claimant, and the fax transmittal cover page which contained the date, time, and location for the IME, together with the transmittal verification report and an indication that the fax was sent to the office of claimant's attorney, it was error for the trial court to strike the affidavit on the basis that it was hearsay because the person who sent the fax was the only person who had personal knowledge of whether the fax was sent -- In order to lay a foundation for business records exception to hearsay rule, it is not necessary to call the person who actually prepared the document -- To the extent the records custodian failed to lay a sufficient foundation for the admission of the fax as a business record in her affidavit, trial court was required to afford insurer at least one opportunity to amend the affidavit to correct this technical defect before entering summary judgment -- Circuit court appellate division departed from essential requirements of law in affirming trial court's denial of insurer's request to amend affidavit to correct technical deficiencies

35 Fla. L. Weekly D501a
28 So. 3d 246

Insurance -- Personal injury protection -- Portion of circuit court order affirming county court's directed verdict and final judgment in favor of provider on claim for breach of contract for failing to provide explanation of benefits quashed

35 Fla. L. Weekly D215b
29 So. 3d 329

Insurance -- Personal injury protection -- Disclosure and Acknowledgment Form to be completed and furnished to insurer upon initial treatment -- Submission of incomplete form is not the equivalent of no written notice of claim -- Failure to correctly complete and deliver initial form does not preclude further claims -- Complete form is not a condition precedent to payment of all medical bills -- There is no merit to insurer's contention that it does not waive its right to raise incomplete form as a defense, even if it pays the claim, because it can raise the incomplete form as a defense at any time -- Submission of flawless form is not a condition precedent to right of provider to access courts to recover a claim unpaid by the insurer

35 Fla. L. Weekly D334a
27 So. 3d 743

Insurance -- Personal injury protection -- Circuit court acting in its appellate capacity departed from essential requirements of law when it affirmed county court ruling that peer review report insurer furnished to defend summary judgment motion was not valid because it did not state that doctor either physically examined insured or that his opinion was based on an independent medical examination -- “Valid report” under section 627.736(7)(a) does not require an insurer to order an IME before denying claim for PIP benefits

35 Fla. L. Weekly D2280b
45 So. 3d 940

Insurance -- Personal injury protection -- Withdrawal of benefits -- Pursuant to section 627.736(7)(a), Florida Statutes (2009), a “valid report” may be based on a physical examination conducted by the treating physician and does not require a physical examination by the reporting physician or an examination conducted on the insurer's behalf

35 Fla. L. Weekly D2107a
44 So. 3d 1189

Insurance -- Personal injury protection -- Pursuant to section 627.736(7)(a), Florida Statutes (2009), a “valid report” may be based on a physical examination conducted by the treating physician and does not require a physical examination by the reporting physician or an examination conducted on the insurer's behalf

35 Fla. L. Weekly D51b
26 So. 3d 49

Insurance -- Personal injury protection -- Physician's report, whether used to support denial of a claim that a bill or claim is not reasonable, related, or necessary, or used to support withdrawal or termination of payments being made to a treating physician, is not required to be based on a physical examination conducted by either the reporting physician or by another physician on the insurance company's behalf

35 Fla. L. Weekly D34a
128 So. 3d 1

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Insurer's obligation to obtain “valid medical report” applies to withdrawal, not denial, of PIP benefits -- Portion of circuit court's appellate decision concluding that peer review report which was not obtained before denial of benefits was not a valid medical report quashed

35 Fla. L. Weekly D150b
28 So. 3d 105

Insurance -- Personal injury protection -- Action by insured against PIP insurer seeking reimbursement for health insurance lien asserted by insured's health insurance carrier on proceeds of settlement of insured's claim against tortfeasor -- Trial court erred in denying insurer's motion for summary judgment where none of medical bills claimed to be at issue were submitted to insurer by medical providers in accordance with section 627.736(5)(c)1 or on proper forms as required by section 627.736(5)(d) -- Insured cannot circumvent payment procedures outlined in section 627.736(5)(c)1 after her health insurer places a lien on her settlement proceeds by seeking reimbursement from her PIP insurer three years after the motor vehicle accident

35 Fla. L. Weekly D620a
32 So. 3d 159

Insurance -- Personal injury protection -- Where county court erroneously entered summary judgment in favor of provider on ground that affidavit of peer review physician submitted in opposition to motion was not valid because physician did not physically examine insured, and circuit court, sitting in its appellate capacity, applied “tipsy coachman” doctrine to affirm summary judgment on grounds that insurer's opposing affidavit was technically deficient, circuit court departed from essential requirements of law, resulting in miscarriage of justice, by failing to provide insurer an opportunity to amend, which insurer specifically requested

35 Fla. L. Weekly D2832a
52 So. 3d 48

Class actions -- Certification -- Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Radiological services associated with reading MRI -- Plaintiff seeking to represent class of all health care providers who had submitted claims to insurer for MRI services rendered between specified dates -- Provider was not required to send proper statutory notice of intent to litigate as condition precedent to suit against insurer where complaint was one for declaratory judgment which did not seek any damages, but sought declaration of correct calculation to be applied for reimbursement of the MRI services at issue -- No error in certifying class

35 Fla. L. Weekly D1240d
41 So. 3d 268

Insurance -- Personal injury protection -- County court erred in entering summary judgment for insurer in insured's action for breach of contract on ground that insured's failure to attend a chiropractic medical examination, although insured had not been treated by a chiropractor, was unreasonable as a matter of law -- Circuit court, sitting in its appellate capacity, did not depart from essential requirements of law by reversing summary judgment and remanding for county court to determine whether insured's refusal to attend chiropractic examination was reasonable

35 Fla. L. Weekly D1438a
41 So. 3d 293

Insurance -- Personal injury protection -- Attorney's fees -- Paralegal fees -- Multiplier -- Circuit court did not depart from essential requirements of law in affirming county court orders awarding attorney's fees and costs to parties prevailing in PIP cases -- There is no clearly established law prohibiting application of multiplier to paralegal fees that are included as part of attorney's fee award -- Section 57.104 clearly supports inclusion of paralegal fees as attorney's fees

35 Fla. L. Weekly D1020a
37 So. 3d 329

Insurance -- Personal injury protection -- Provider's action against insurer -- Conditions precedent -- Examination under oath -- Clause in policy providing 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,” is not binding on an assignee of the right to payment of no-fault benefits -- The assignment of a contract right does not entail the transfer of any duty to the assignee, unless the assignee assents to assume the duty -- The medical provider, as assignee of the right of the insured to payment under the insurance contract, had no duty to perform any covenant under the contract because the assignee never agreed to do so -- Provider did not undertake any duty of performance, and insurer cannot unilaterally impose an obligation on provider by putting it in the policy -- Question certified: Whether a health care provider who accepts an assignment of no-fault insurance proceeds in payment of services provided to an insured can be required by a provision in the policy to submit to an examination under oath as a condition to the right of payment?

35 Fla. L. Weekly D1481b
40 So. 3d 68

Insurance -- Personal injury protection

35 Fla. L. Weekly D1276a
38 So. 3d 200

Administrative law -- Office of Insurance Regulation -- Rules -- Administrative law judge properly found that documents, policies, and procedures used by Office of Insurance Regulation in its examination of Florida-licensed viatical settlement providers do not constitute unpromulgated rules -- Statute gives Office of Insurance Regulation authority to review books and records of viatical settlement providers licensed in state, and statute does not differentiate between in-state and out-of-state records of licensees -- Letters which OIR sends to licensees requesting production of records for examination, including records of out-of-state viatical settlement agreements, are not unpromulgated rules

35 Fla. L. Weekly D814b
31 So. 3d 953

Administrative law -- Office of Insurance Regulation -- Rules regulating viatical settlements -- Administrative law judge erred in finding to be invalid a portion of proposed rule which requires viatical settlement providers to document changes to the provider's method of operation in an annual report

35 Fla. L. Weekly D383a
30 So. 3d 552

Insurance -- Public records -- Viatical settlement provider's work papers and trade secrets submitted to Office of Insurance Regulation in course of regulatory investigation -- Where work papers were deemed confidential and exempt from disclosure under Public Records Law prior to statutory amendment which placed a time limitation on the confidential and exempt status of work papers, rights in confidentiality of work papers that arose before the statutory amendment cannot constitutionally be nullified by the amendment -- Trial court erred in retroactively applying amendment to work papers which had been submitted to OIR before the effective date of the amendment -- Although Legislature intended amendment to apply retroactively, retroactive application of amendment improperly deprives viatical settlement provider of vested property rights in confidentiality and exemption of its trade secrets and other work papers already submitted to OIR -- Trial court erred in determining that issue of improper disclosure of trade secrets was moot because the information had been essentially revealed in OIR's show cause order posted on public internet site -- Mootness will not foreclose an opportunity for review in circumstances where the issue is likely to recur but would evade review

35 Fla. L. Weekly D2231e
44 So. 3d 1273

Insurance -- Life -- No error in concluding that insured, as policy's owner, had, in compliance with policy's terms, substituted his younger daughter for his niece as beneficiary of life insurance policy some years before he died

35 Fla. L. Weekly D342a
30 So. 3d 549

Civil procedure -- Relief from judgment -- Insurance -- Where plaintiff's complaint alleged that bouncers at defendant's bar and club assaulted and battered him, defendant's liability insurer denied coverage on basis that complaint alleged an intentional tort, and trial court confirmed arbitration award which found that defendant was negligent and entered final judgment on the award, it was error to grant plaintiff's motion to vacate final judgment which asserted that due to inadvertence or error, the arbitration award should not have been entered because the liability insurance company should be made a party to the claim -- Although rule 1.540 authorizes trial court to vacate final judgment on basis of negligent mistake or error, rule is not intended to provide relief for judgmental mistakes or tactical errors of counsel

35 Fla. L. Weekly D1106b
36 So. 3d 789

Insurance -- Liability -- Coverage -- Duty to defend -- Liability policy issued to insured provided coverage under general personal liability provisions for defending underlying declaratory judgment action, arising from motor vehicle accident after insured disposed of vehicle and her policy had expired, where language of general liability provision did not require injury to occur at same time as covered “occurrence” or “event” causing the injury, and nothing in policy's general terms limits coverage to injuries inflicted during policy period -- Argument that personal injury protection section of policy limited coverage for automobile accidents to injuries “which occur during the policy period” fails because provision clearly only applies to PIP coverage section of policy, and not to general legal liability protection

35 Fla. L. Weekly D2066b
43 So. 3d 182

Insurance -- Liability -- Dispute between two general liability insurers, both of whom were primary insurers during different time periods, concerning duty to defend and duty to indemnify insured in underlying construction defect litigation -- Damages -- Plaintiff-insurer, which provided defense to insured subcontractor after contractor was sued by homeowners for damages caused by water intrusion through exterior doors and contractor filed third-party complaint against insured, was not entitled to reimbursement, from defendant-insurer, of attorney's fees and costs expended in defense, even though it was eventually determined that claim was not covered by plaintiff's policy -- Plaintiff had an independent contractual duty to defend where third-party complaint alleged covered losses that could have occurred during its policy period -- Trial court did not err in awarding plaintiff indemnity costs, as duty to indemnify is determined not by allegations of complaint, but by facts adduced at trial or during discovery -- Although there was conflicting evidence as to when water intrusion occurred, under plain language of both policies, coverage was triggered by resulting damage to property caused by water, and uncontroverted testimony established that physical damage occurred during defendant-insurer's policy period

35 Fla. L. Weekly D1257a
37 So. 3d 918

Insurance -- Property damaged by hurricane -- Judicial estoppel -- Trial court erred in entering summary judgment for defendant insurer in insured's action to recover for damage caused to real property by hurricane on ground of judicial estoppel -- Although insurer claimed that insurance claim was barred under doctrine of judicial estoppel because insured failed to properly disclose claim in insured's bankruptcy proceeding, insured's disclosure of his insurance claim as personal property in Schedule B of bankruptcy petition, and his inclusion of item described as house destroyed by hurricane in his statement of financial affairs, were sufficient to preclude application of judicial estoppel in state court case -- Standing -- Once insured filed bankruptcy petition, lawsuit against insurer became property of bankruptcy estate subject to trustee's exclusive control -- Remand for trial court to order that bankruptcy court be notified of lawsuit -- Trustee can abandon lawsuit or request to be substituted as proper party plaintiff -- If trustee abandons lawsuit, thereby removing it from bankruptcy estate, insured will be free to proceed with action

35 Fla. L. Weekly D1541a
40 So. 3d 829

Insurance -- Insolvent insurers -- Guaranty of payments -- Offsets -- Due process -- Trial court erred in finding that bank was entitled to offset balances owed on loans to insurance companies' affiliates and principals against funds held in certificates of deposit that were pledged as collateral for those loans without affording Department of Financial Services, as receiver for insolvent insurers, time to complete discovery and without holding evidentiary hearings to which DFS was entitled under section 631.154 -- To extent order in one case could be interpreted as granting offsets based on direct loans, determination was premature because bank's entitlement to offsets based on those loans was not developed in the record either legally or factually -- Moreover, in one case, trial court granted offsets where none were requested -- Remand for further proceedings

35 Fla. L. Weekly D868a
33 So. 3d 94

Insurance -- Homeowners -- Valued Policy Law -- Where insured residence was damaged by both windstorm and flooding, and jury found that wind damage amounted to a total loss or constructive total loss, it was not error to award insureds the policy limits of their homeowners policy without setting off the amount which had been paid to insureds under a separate flood insurance policy -- Insurer did not plead setoff as an affirmative defense, and even if pleading requirements had been met, there was no evidence of an actual duplication of benefits

35 Fla. L. Weekly D1516e
43 So. 3d 746

Insurance -- Windstorm -- Action against windstorm insurer by insureds whose mobile home was destroyed by hurricane -- Evidence -- Collateral source rule -- Where court allowed insurer to introduce evidence of the existence of insureds' flood insurance policy, insureds' submission of flood claim, and flood insurer's resulting adjustment of claim, it was not error to preclude insurer from introducing evidence of the dollar amount of flood insurance payments and estimates -- Jury instructions -- Trial court did not give constructive total loss instruction in error because substantial damage determination required demolition of insureds' home to allow for elevation in conformity with flood plain regulations -- Evidence of substantial damage determination was admissible as relevant to prove a constructive total loss -- Trial court did not err in declining insurer's proposed jury instruction on insureds' burden to prove damages caused solely by wind -- Court properly instructed jury that insureds had burden to prove losses sustained as a result of wind and that insurer would not be liable for loss caused by excluded perils such as water damage -- Trial court did not abuse discretion in failing to instruct jury to apply total loss recovery rule -- With regard to mobile home, it was not harmful error to instruct jury that damages should be the amount necessary to repair or replace damaged items -- Total loss of mobile home placed it under Valued Policy Law, and once jury found a total loss caused by wind, damages were fixed by statute -- With regard to other structures on property, they did not fall within purview of VPL, and jury should have been required to calculate damages to those other structures -- Interest -- With regard to mobile home, court did not err in awarding prejudgment interest from date of loss -- Court erred in awarding prejudgment interest on other structures from date of loss -- Because VPL does not apply to those other structures, interest should have been determined in accordance with policy, which allows insurer 60 days from date judgment is entered to make loss payments

35 Fla. L. Weekly D129a
25 So. 3d 652

Insurance -- Homeowners -- Insured homeowner who did not receive from insurer a statutorily-mandated premium discount for having a windstorm-mitigating hip roof was required to pursue administrative remedies under section 627.371 instead of pursuing court action against his insurer -- Premium discount is inextricably linked to rate charged and, accordingly, statute applies to action based on insurer's failure to provide discount

35 Fla. L. Weekly D2838a
54 So. 3d 999

Insurance -- Homeowners -- Liability coverage -- Trial court erred in entering summary judgment in favor of insurer in declaratory judgment action by insureds to establish liability coverage for an accident that occurred at insureds' residence -- Although the residence did not fall under the policy definition of “residence premises” where it was shown as the “residence premises” in the Declarations, the residence did fall under the policy definition of “insured location”

35 Fla. L. Weekly D1048a
36 So. 3d 136

Insurance -- Homeowners -- All risk policy -- Sinkhole claims -- Burden of proof -- Section 627.7073(1)(c), Florida Statutes, which provides that the findings, opinions, and recommendations of the engineer and professional geologist as to the verification or elimination of a sinkhole loss and the findings, opinions, and recommendations of the engineer as to land and building stabilization and foundation repair shall be presumed correct, is a vanishing or bursting bubble presumption that affects only insured's burden of producing evidence -- In insured's action to recover for loss allegedly caused by sinkhole, trial court erred in giving jury instruction on presumption that impermissibly shifted burden of proof to insured -- Question certified: Does the language of section 627.7073(1)(c) create a presumption affecting the burden of proof under section 90.304 or does the language create a presumption affecting the burden of producing evidence under section 90.303?

35 Fla. L. Weekly D438b
31 So. 3d 842

NOT FINAL VERSION OF OPINION
Subsequent Changes at 35 Fla. L. Weekly D633a

Hospitals -- Health maintenance organizations -- Reimbursement to hospitals providing emergency medical services to patients who subscribe to an HMO that does not have a contract with the hospital -- Trial court did not err in ruling that term “provider” in section 641.513(5) is not limited only to hospitals -- Usual and customary provider charges -- What is called for under statute is fair market value of services provided -- In determining fair market value of services, it is appropriate to consider amounts billed and amounts accepted by providers with exception of amounts accepted by providers for patients covered by Medicare and Medicaid

35 Fla. L. Weekly D257b
27 So. 3d 140

NOT FINAL VERSION OF OPINION
Subsequent Changes at 35 Fla. L. Weekly D387k

Insurance -- Health maintenance organizations -- A hospital-based, but non-contracted provider of health care services to the subscribers of a health maintenance organization plan may not balance bill subscribers for unpaid portion of its statements for medical services that have not been paid by the health maintenance organization

35 Fla. L. Weekly D155b
27 So. 3d 692

Insurance -- Health insurance -- Compromise verdict -- Jury verdict finding that defendant health insurer breached contract but awarding zero damages was not a compromise verdict requiring a new trial where jury could have reasonably concluded that plaintiff sustained zero damages

35 Fla. L. Weekly D2718a
53 So. 3d 1052

Insurance -- Health insurance -- Federal preemption -- Declaratory judgment action seeking to prohibit health insurer from seeking subrogation against settlement proceeds of personal injury action on ground that insurer had not met pre-subrogation notice requirements of collateral source statute -- Trial court erred in dismissing action on grounds that exclusive jurisdiction over cause of action was in federal court and on preemption provisions of Employment Retirement Income Security Act -- Declaratory action is an action in which plaintiff is seeking to enforce or clarify her rights or to recover benefits under her plan and falls under concurrent jurisdiction exception to ERISA -- Regulation at issue is directly related to insurance practices and procedures, and savings clause of ERISA exempts section 768.76, Florida Statutes, from express preemption -- Further proceedings are warranted to determine whether the plan is a self-insured employee benefit plan as opposed to an underwritten insurance plan -- Even where the state law is saved from preemption by ERISA savings clause, the ERISA deemer clause may exclude the law from the reach of the savings clause if the plan is a self-insured employee benefit plan

35 Fla. L. Weekly D2124b
46 So. 3d 1039

Insurance -- Property damage -- Insolvent insurers -- Florida Insurance Guaranty Association -- Claims for hurricane damages to condominium's seven buildings -- Statutory cap on covered claims -- Trial court properly found that there were seven separate covered claims involved in action within meaning of section 631.57(2) and properly ordered seven separate appraisals in accordance with terms of insurance policy and applicable law -- Because each building was separately listed on declarations page, with separate coverage amount and separate premiums listed for each building, each of the seven separate claims should have its own statutory cap of $300,000

35 Fla. L. Weekly D1712a
39 So. 3d 565

Insurance -- Directors, officers, and private company liability -- Exclusions -- Prior litigation exclusion -- Trial court properly entered summary judgment for insurer, finding that action against insured by creditors' trust was sufficiently related to prior turnover action against insured in bankruptcy court so that coverage in the creditors' trust action was excluded under the prior litigation exclusion in the policy -- Whether extrinsic evidence should be considered to determine the applicability of the prior litigation exclusion is to be decided on a case-by-case basis according to the general summary judgment standard of whether resolution of the legal issue depends on genuine issues of material fact -- Court need not decide if the determination of whether the prior litigation exclusion is applicable should be based on a comparison of the complaint in the underlying suit and the complaint in the prior suit or on a count-by-count basis because all of the counts asserted in the complaint arose out of the prior turnover suit

35 Fla. L. Weekly D967a
39 So. 3d 565

NOT FINAL VERSION OF OPINION
Subsequent Changes at 35 Fla. L. Weekly D1712a

Insurance -- Directors, officers, and private company liability -- Exclusions -- Prior litigation exclusion -- Trial court properly entered summary judgment for insurer, finding that action against insured by creditors' trust was sufficiently related to prior turnover action against insured in bankruptcy court so that coverage in the creditors' trust action was excluded under the prior litigation exclusion in the policy -- Whether extrinsic evidence should be considered to determine the applicability of the prior litigation exclusion is to be decided on a case-by-case basis according to the general summary judgment standard of whether resolution of the legal issue depends on genuine issues of material fact -- Under policy language, the determination of whether the prior litigation exclusion is applicable should be based on a comparison of the complaint in the underlying suit and the complaint in the prior suit rather than on a count-by-count comparison -- Insurer was entitled to deny coverage under the prior litigation exclusion where the underlying creditors' trust action arose out of the prior turnover suit

35 Fla. L. Weekly D2895a
51 So. 3d 1169

Insurance -- Homeowners -- Personal liability umbrella policy -- Coverage -- No error in finding that there was no coverage under homeowners policies for claims against insureds for defamation, tortious interference with contract, and civil assault and battery -- Error to determine that there was no duty to defend insured who had personal liability umbrella policy where policy limited coverage for personal liability to a “loss,” which was an accident resulting in personal injury or property damage, and policy specifically included defamation in definition of personal injury -- Although umbrella policy did not provide insurance for personal injury when insured acted with specific intent to cause harm or injury, complaint alleged that defamation was done “knowingly and/or negligently,” and factual allegations did not clearly exclude incident from coverage -- Whether insured acted intentionally or negligently was issue of fact for jury

35 Fla. L. Weekly D2592a
49 So. 3d 810

Insurance -- Excess coverage -- Commercial umbrella policy -- Uninsured motorist -- Where an excess insurer agrees to provide insured with excess UM/UIM coverage in the amount required by statute, upon the condition that the insured purchase UM/UIM coverage under its primary policy of limits equal to the amount offered in excess coverage, the excess insurer has complied with statutory requirement that it “make available” uninsured/underinsured motorist protection

35 Fla. L. Weekly D1945a
43 So. 3d 842

Insurance -- Failure to appear for examination under oath -- Notice to insured of scheduled examination -- Summary judgment in favor of insurer affirmed because no issues were preserved for review

35 Fla. L. Weekly D2534a
50 So. 3d 645

Insurance -- Windstorm -- Action against windstorm insurer by insured whose home was totally destroyed by hurricane -- In arriving at amount of damages, trial court erroneously based its ruling on the “other insurance” clause in the windstorm policy where the other insurance was flood insurance -- The other insurance clause was not applicable where the insured had a windstorm policy and a flood policy, each covering a different peril -- Trial court did not err in denying insurer's motion for summary judgment under the “total loss recovery rule” -- If insured is able to prove that wind alone caused a total loss before the storm surge arrived, despite his successful recovery of flood insurance payments, the valued policy law would require windstorm insurer to pay the policy proceeds -- Evidence -- Trial court erred in granting insured's motion in limine and excluding evidence that insured received flood insurance benefits -- Trial court erred by precluding insured from submitting to jury claim that wind caused a total loss to insured property under valued policy law

35 Fla. L. Weekly D1241a
36 So. 3d 172

Insurance -- Homeowners -- Examination under oath -- Where insured and his wife appeared for examination under oath, but left during a break after insured had been berated, yelled at, and subjected to one examination in English and another in Creole, and insured's counsel subsequently made offer to insurer for resumption of examination under oath, trial court properly rejected insurer's contention that insured breached policy obligations by failing to submit to complete examination under oath, and thus could not file suit under policy -- Trial court properly entered order compelling appraisal

35 Fla. L. Weekly D503a

Insurance -- Errors and omissions -- Exclusions -- Handling of Funds exclusion, which excluded “damages arising out of the commingling, conversion, misappropriation or defalcation of funds or other property,” and “Additional Exclusion Endorsement,” which excluded claims connected in any way to the dishonoring of any financial instrument, barred coverage for amounts the insured title insurance company had to pay to satisfy mortgage and clear title after an escrow agent in a real estate transaction misappropriated escrowed funds, leaving insufficient money to satisfy the mortgage

35 Fla. L. Weekly D1558b
41 So. 3d 313

Insurance -- Insured's action against insurer for breach of contract -- Discovery -- Privilege -- Insurer's claim, underwriting, and litigation files -- Circuit court departed from essential requirements of law when it denied insurer's motion for protective order and found that insurer had waived all objections by filing a motion for protective order, which did not specifically assert privilege objections, but generally stated that plaintiffs were not legally entitled to what was requested -- Insurer's work product and attorney-client privilege objections cannot be deemed waived under the circumstances presented -- Remand for evaluation of privilege objections and in camera inspection, if necessary

35 Fla. L. Weekly D2508a
49 So. 3d 807

Insurance -- Discovery -- Error to grant discovery of insurer's claim file while coverage issue was pending

35 Fla. L. Weekly D2343a
46 So. 3d 140

Insurance -- Personal injury protection -- Discovery -- Action against PIP insurer seeking declaratory relief regarding allowable amount for MRI services under fee schedule authorized by PIP statute -- Order compelling insurer to produce internal procedural memoranda, policies, procedures, claim manuals, guidelines, and standards relating to handling and adjustment of PIP claims for MRI services is not reviewable by certiorari where insurer has not demonstrated that order creates material harm that is irreparable by postjudgment appeal -- Discovery of irrelevant materials does not necessarily cause irreparable harm -- Order compelling production of privileged materials does not result in irreparable harm where order allows insurer to assert any reasonable, non-frivolous objections to requests, and provides that insurer can withhold any materials it considers privileged provided it files an appropriate privilege log

35 Fla. L. Weekly D539b
32 So. 3d 661

Deceptive and unfair trade practices -- Contracts -- Limitation of actions -- Tolling of running of statute of limitations by the payment of any part of the principal or interest of any obligation or liability founded on a written instrument -- Action against mortgagees raising counts of violation of Deceptive and Unfair Trade Practices Act, unjust enrichment, and breach of implied duties of good faith and fair dealing, and alleging that costs of single premium credit insurance purchased on mortgages were excessively inflated and that plaintiffs incurred higher monthly payments than they would have otherwise because the SPCI premiums were added to the amount financed under each mortgage -- Trial court properly found that action was barred by statute of limitations -- Running of statute of limitations on action was not tolled by section 95.051(1)(f), Florida Statutes, when plaintiffs made each mortgage payment -- Section 95.051(1)(f) tolls statute of limitations for claims founded on written instrument on which the payments are being made

35 Fla. L. Weekly D5a

Insurance -- Liability -- Commercial tractor-trailer -- Coverage -- Loss due to theft -- Estoppel or waiver -- Record evidence was sufficient to demonstrate that, as matter of law, insurer was estopped from denying claim for loss due to theft based on garaging warranty which required insured to “warranty” that vehicle would be kept in closed garage, in an enclosed 24-hour guarded lot, or parked adjacent to insured's residence, and provided for forfeiture of rights under policy if warranty were breached, where insured was not provided a copy of binder or policy until after the loss -- For purposes of application of doctrines of estoppel and waiver, Florida law draws distinction between provisions of forfeiture and provisions of coverage -- Payment for loss of tractor-trailer due to theft was clearly within bounds of policy, and application of doctrine of estoppel would not serve to impermissibly create or extend coverage -- Detrimental reliance -- Insurer offered no competent evidence to rebut insured's affidavit attesting that he was unaware of garaging warranty prior to loss and that he would have parked tractor-trailer in compliance with the warranty had he known of the same -- Neither amended response to interrogatories signed only by insurer's counsel, which included an assertion that broker that procured policy for insured was aware of garaging warranty and informed insured of the same prior to loss, nor set of interrogatory responses signed by investigator employed by insurer's third-party administrator was sufficient to create issue of fact as to whether insured had notice of warranty prior to loss where neither insurer's counsel nor investigator had personal knowledge of whether broker informed insured of warranty, and hearsay statements on the matter would not be admissible in evidence

35 Fla. L. Weekly S73a
29 So. 3d 1000

Insurance -- Commercial liability -- Coverage -- Advertising injury -- Advertising injury provision that provides coverage for an “oral or written publication of material that violates a person's right of privacy” provides coverage for faxing of an unsolicited advertisement in violation of the federal Telephone Consumer Protection Act when no private information is revealed in the fax

35 Fla. L. Weekly D481a
29 So. 3d 377

Insurance -- Commercial comprehensive general liability -- Professional liability -- Policy issued to corporation did not provide coverage for claims against directors alleging that they breached their fiduciary duty to plaintiffs by not discovering a Ponzi scheme perpetrated by the company president -- Defendants' negligence in failing to detect a fraudulent Ponzi scheme engineered by the company president does not fall with the definition of “professional services” -- Trial court did not err in dismissing complaint for failure to state a cause of action -- Plaintiffs are not entitled to entry of judgment on default if complaint fails to state cause of action -- Defense of failure to state cause of action may be raised by motion, even after default, and may be raised at trial on merits

35 Fla. L. Weekly D1459a
39 So. 3d 434

Insurance -- Commercial general liability policy issued to landscaping contractor who was hired by property owner to trim mangroves on waterfront property -- Exclusions -- Where policy excluded damage to that particular part of real property on which insured is performing operations, if the property damage arises out of those operations, policy did not provide coverage for damage caused when owner's mangrove trees were cut below the ten-foot level in violation of permit issued by Department of Environmental Protection -- Exclusion was not applicable to damage caused by trimming of mangroves on seaward side of mean high-water mark on land owned by state in violation of permit, and coverage was provided for those damages -- Although trial court correctly differentiated between areas which were incorrectly trimmed on owner's property and on property of non-party to landscaping contract, court improperly determined that insurer is responsible for all of each of the three components of loss in the event that it is not possible to apportion damages between those attributable to mangrove cutting on private owner's land and those attributable to cutting on state land

35 Fla. L. Weekly D1690b
41 So. 3d 375

Civil procedure -- Class actions -- Certification -- Insurance -- Class action by premium finance companies alleging insurance carrier failed to pay interest on late-returned unearned insurance premiums -- Proof of numerosity was insufficient to support certification of class

35 Fla. L. Weekly D2018a
43 So. 3d 168

Insurance -- Commercial general liability insurance -- Duty to defend -- Action against insured by tenant of insured's self-storage facility seeking to recover losses incurred as result of theft of tenant's trailer which was stored at facility -- Error to enter judgment on pleadings in favor of insurer and to dismiss complaint with prejudice based on policy provision excluding coverage for damage to personal property in “care, custody or control” of insured where applicability of exclusion was not apparent within four corners of complaint and was factual question requiring analysis of whether the property at issue was within possessory control of insured

35 Fla. L. Weekly D1268a
36 So. 3d 889

Torts -- Insurance brokers -- Action alleging that defendant insurance brokers negligently created a “gap” in professional liability insurance coverage for insured by failing to have in place coverage under new policy upon expiration of term of original policy which was not renewed -- Surplus Lines Law, which governs insurance policies at issue, requires that insurer give insured at least 45 days' advance notice if policy is not to be renewed, and provides that if insurer fails to provide the 45-day notice, coverage will remain in effect until 45 days after notice is given or until the effective date of replacement coverage obtained by the insured -- Because insurer failed to provide the required notice of nonrenewal to insured, coverage under policy continued until the effective date of replacement policy procured by defendant, and any negligence on part of defendant did not result in damages to insured -- Trial court erred in finding that defendant created a gap in coverage

35 Fla. L. Weekly D794a
36 So. 3d 889

NOT FINAL VERSION OF OPINION
Subsequent Changes at 35 Fla. L. Weekly D1268a

Torts -- Insurance brokers -- Action alleging that defendant insurance brokers negligently created a “gap” in professional liability insurance coverage for insured by failing to have in place coverage under new policy upon expiration of term of original policy which was not renewed -- Surplus Lines Law, which governs insurance policies at issue, requires that insurer give insured at least 45 days' advance notice if policy is not to be renewed, and provides that if insurer fails to provide the 45-day notice, coverage will remain in effect until 45 days after notice is given or until the effective date of replacement coverage obtained by the insured -- Because insurer failed to provide the required notice of nonrenewal to insured, coverage under policy continued until the effective date of replacement policy procured by defendant, and any negligence on part of defendant did not result in damages to insured -- Trial court erred in finding that defendant created a gap in coverage

35 Fla. L. Weekly D2430c
46 So. 3d 1129

Venue -- Insurance -- Bad faith -- Failure to settle -- Declaratory judgment action in which insurer sought declaration regarding whether it had acted in good faith in adjusting claims against its insureds arising out of automobile accident in which claimants' minor children were injured, one fatally -- No error in transferring action to county in which accident occurred, the estate had been opened, and any settlement would have ultimately been paid -- Although insured's county of residence may be significant factor in other cases where venue in bad faith actions is at issue, it is not significant factor under unique facts presented in this case

35 Fla. L. Weekly S235a
35 So. 3d 893

Insurance -- Indemnity -- Bad faith -- No cause of action for third-party bad faith against an indemnity insurer may be maintained when the insurer's actions were not a cause of the damages to the insured or when the insurer's actions never resulted in exposure to liability in excess of the policy limits of the insured's policies -- An excess judgment is not always a prerequisite before a bad faith case can be brought against the insurer, but the damages claimed by the insured or its assignee must be caused by the insurer's bad faith

35 Fla. L. Weekly D2590a
49 So. 3d 809

Insurance -- Uninsured motorist -- Bad faith failure to settle -- Error to deny motion to abate cause of action for bad faith failure to settle claim where causes of action for determination of liability and amount of damages were pending -- Discovery -- Error to compel insurer to respond to requests for admissions regarding its claims handling procedures and business practices where obligation to provide coverage and damages had not yet been determined

35 Fla. L. Weekly S149a
35 So. 3d 666

NOT FINAL VERSION OF OPINION
Subsequent Changes at 35 Fla. L. Weekly S425a

Standard jury instructions -- Civil -- Amendments -- Reorganization and modification -- Updating of wording -- Substantive amendments to various instructions -- Proposed amendment to instruction on greater weight of the evidence rejected and, instead, the substance of former standard civil jury instruction 3.9 is reauthorized

35 Fla. L. Weekly D750a
33 So. 3d 734

Insurance -- Liability -- Bad faith -- Error to dismiss excess insurer's complaint for bad faith against primary insurer because the injured party had released the insured and excess insurer did not receive an assignment from the insured of any bad faith claim -- Excess insurer could bring a bad faith claim against primary insurer based upon a settlement executed by the excess insurer and was not required to suffer an excess judgment in order to maintain bad faith claim -- Excess insurer had right, in absence of contract or assignment from insured, to maintain bad faith action against primary insurer for damages it sustained as result of primary insurer's bad faith refusal to settle

35 Fla. L. Weekly D2344a
46 So. 3d 147

Insurance -- Automobile liability -- Exclusions -- Named insured's negligent operation of non-owned vehicle which was available or furnished for regular use of insured -- Where insurer furnished commercial automobile policy to nursery and personal automobile policy to co-owner of nursery, personal policy did not provide coverage for accident occurring while co-owner was operating vehicle owned by nursery which co-owner regularly used for business and personal purposes

35 Fla. L. Weekly D1468a
37 So. 3d 988

Insurance -- Bad faith -- Sovereign immunity -- Citizens Property Insurance Corporation is immune from first-party bad faith claims

DISAPPROVED 37 Fla. Law Weekly S691a

35 Fla. L. Weekly D133a
24 So. 3d 809

Insurance -- Automobile liability -- Exclusions -- Household exclusion -- Injuries suffered by parents of named insured's granddaughter in accident occurring when parents were passengers in insured vehicle which was being driven by named insured's granddaughter -- Trial court properly determined that provision which excluded coverage for “any bodily injury to any insured or any member of an insured's family residing in the insured's household,” was ambiguous and did not exclude coverage for injuries to granddaughter's parents who did not live in same household as named insured

35 Fla. L. Weekly D2250b
45 So. 3d 924

Insurance -- Automobile liability -- Discovery -- Given unusual posture of case, insurer failed to establish that taking of deposition duces tecum of its adjuster “to flesh out whether this matter falls within the scope of coverage,” will result in irreparable harm -- Petition for writ of certiorari to prevent deposition duces tecum dismissed

35 Fla. L. Weekly D539a
34 So. 3d 42

Insurance -- Automobile liability -- Coverage -- Temporary substitute auto -- Rental car did not qualify as a temporary substitute auto where auto was not being used with rental company's permission because it was being driven by an unauthorized driver under rental agreement -- No coverage existed under policy

35 Fla. L. Weekly D1341a 38 So. 3d 807 Insurance -- Automobile liability -- No coverage was provided under policy where insured was required to disclose to insurer any drivers of vehicle as a condition to coverage, and insured failed to disclose that the driver who was involved in accident would be a driver of the insured vehicle

35 Fla. L. Weekly D454a
29 So. 3d 375

Insurance -- Automobile -- Commercial policy -- Exclusions -- Provision that coverage and duty to defend did not apply to bodily injury to employee of insured arising out of or within course of employment applied to employee's action against estate of co-employee for on-the-job injuries sustained when company truck, which was driven by a co-employee and in which plaintiff was passenger, was involved in an accident -- Remand for entry of judgment in favor of insurer establishing that there was no coverage under the policy for employee's lawsuit against co-employee's estate

35 Fla. L. Weekly D1171a
35 So. 3d 1001

Insurance -- Automobile liability -- Assignee's bad faith action against insurer -- Venue -- Where duties of good faith which insurer allegedly failed to perform included making settlement offer and/or tendering policy limits to estate of individual who died as result of accident involving insured, an estate which was opened in Palm Beach County; investigating and evaluating the claim, when the accident occurred in Palm Beach County; and advising and warning insured, who resided in Palm Beach County, of possible outcomes, risks, and consequences, venue was proper in Palm Beach County, although physical location of insurance adjuster was in a different county

35 Fla. L. Weekly D1894a
45 So. 3d 43

Insurance -- Automobile collision -- Market value of insured's antique jeep, which was damaged beyond repair in collision -- Evidence -- Expert -- Trial court erred in disregarding deposition testimony of one of insured's experts because he was not licensed or trained as a professional appraiser -- An expert is a person who is qualified in a subject matter by knowledge, skill, experience, training, or education, and witness qualified as an expert based on knowledge he obtained from occupation notwithstanding his lack of licensure or professional training -- Trial court erred in disregarding deposition testimony of insured's other expert, who was a professional appraiser, on ground that he relied upon hearsay in arriving at his opinion -- An expert may rely upon hearsay in arriving at an opinion, provided the hearsay is of the type reasonably relied upon by experts in the field

35 Fla. L. Weekly D419a
28 So. 3d 943

Insurance -- Automobile -- Coverage -- Payment of overdue premium before cancellation date of policy -- Coverage was provided under policy where insurer's bank received insured's electronic payment file before cancellation date, although there was a delay in deposit of payment into insurer's bank account due to processing delays by insurer's bank

35 Fla. L. Weekly D1690a
41 So. 3d 378

Insurance -- Automobile -- Coverage -- Cancellation of policy -- Error to find that insurer's post-accident deposit of plaintiff's past-due premium reinstated policy, even though insurer promptly refunded the premium to plaintiff -- Facts do not establish estoppel or waiver of right to cancel policy

35 Fla. L. Weekly D1866d
42 So. 3d 890

Attorney's fees -- Proposal for settlement -- Trial court properly found that proposal for settlement was ambiguous and could not support award of attorney's fees under offer of judgment statute -- Where plaintiff filed two-count action against insurance company containing a personal injury protection claim and a count seeking uninsured motorist benefits, company hired one law firm to defend the PIP claim and a different attorney to defend the UM claim, a proposal for settlement filed by the attorney defending the UM claim, which provided for plaintiff to dismiss defendant from all claims, causes of action, and damages arising from incident giving rise to lawsuit was ambiguous -- The proposal contained a latent ambiguity because it was ambiguous as to whether the offer covered just the UM claim or both the UM and PIP claims

35 Fla. L. Weekly D2869a
50 So. 3d 721

Attorney's fees -- Torts -- Civil theft -- Claim lacking substantial factual or legal support -- Voluntary dismissal -- Personal injury protection insurer's action against medical providers seeking damages under various tort theories, including civil theft -- Where, as in instant case, a plaintiff chooses to voluntarily dismiss suit at a point when no record evidence supports factual or legal basis for its civil theft claim, a defendant is entitled to recover attorney's fees and costs expended in challenging the action -- Error to deny defendants' motion for fees and costs pursuant to section 772.11 -- Insurance -- Personal injury protection -- No error in denying fees under chapter 627

35 Fla. L. Weekly D892a
35 So. 3d 944

Insurance -- Personal injury protection -- Trial court properly entered summary judgment for insurer in insured's action to recover benefits for medical expenses and lost wages on the ground that insured committed fraud -- Insured's fraud related to claim for lost wages voided all coverage, including claim for medical expenses -- Attorney's fees -- Trial court abused discretion in denying award of attorney's fees to insurer under offer of judgment statute where there was no evidence that offer was not made in good faith

35 Fla. L. Weekly D2149a
44 So. 3d 1191

Insurance -- Attorney's fees -- Insured prevailing in action against insurer -- Insolvent insurers -- Florida Insurance Guaranty Fund -- Attorney's fee award imposed pursuant to section 627.428 is not a “covered claim” under Florida Insurance Guaranty Association Act when such fees are not within the insurance policy's coverage provisions -- Fact that section 627.428 is an implicit part of an insurance policy does not mean that insured's claim against the insurer for fees and costs is part of policy's “coverage,” and parties did not point to any language in the insurance policy at issue that provided coverage for fees awarded under statute -- Accordingly, FIGA was not liable to insured for fees incurred in litigation with insolvent insurer -- Conflict certified

35 Fla. L. Weekly D364e
31 So. 3d 826

Insurance -- Homeowners -- Attorney's fees -- Error to enter summary judgment for insurer in insured's action against insurer alleging that insurer had breached insurance contract by failing to pay the full amount necessary to repair hurricane damage to insured's residence, where insurer paid appraisal award after suit had been filed, and there were disputed issues of material fact as to whether insured was forced to file suit to resolve dispute with insurer -- Where insurer is aware of dispute before suit is filed and pays additional policy proceeds after suit is filed, payment of claim is functional equivalent of a confession of judgment -- An insurer that is aware of a dispute with its insured cannot simply ignore the dispute, wait until the insured files suit to demand appraisal, pay any appraisal award, and then maintain that the payment does not constitute a confession of judgment -- If insurer was not on notice of dispute before suit was filed, subsequent post-suit payment by insurer may not constitute a confession of judgment

35 Fla. L. Weekly D1348a
39 So. 3d 368

Attorney's fees -- Insurance -- Consumer law -- Section 627.428(1) authorizes award of attorney's fees against a surety that has issued a motor vehicle dealer bond pursuant to section 320.27(1)

35 Fla. L. Weekly D2373b
50 So. 3d 628

Insurance -- Homeowners -- Hurricane damage to home -- Attorney's fees -- Insurer's post-suit payment of additional policy proceeds entitles insured to section 627.428 attorney's fees where the insurer wrongfully caused its insured to resort to litigation in order to resolve a conflict with its insurer when it was within the company's power to resolve it -- Error to enter summary judgment for insurer in insured's action against insurer where there were factual issues as to whether insured was forced to file suit to resolve claim under policy

35 Fla. L. Weekly D1041a
35 So. 3d 956

Insurance -- Homeowners -- Attorney's fees -- Breach of contract action where basic insurance claim was resolved by appraisal -- If insured filed suit in good faith in order to force insurer to adjust her claim, insured is entitled to attorney's fees -- If insured filed suit as an effort to seek attorney's fees for the normal process of adjusting the claim, she is not entitled to attorney's fees

35 Fla. L. Weekly D624b
32 So. 3d 163

Insurance -- Uninsured motorist -- Attorney's fees -- Order awarding insured attorney's fees in uninsured motorist coverage action, contingent upon court's finding insurer liable on amended claim of bad faith, was a non-final, non-appealable order -- Insured is not entitled to conditional award of appellate attorney's fees under offer of judgment statute where net judgment on coverage claim did not rise to level necessary to entitle insured to recover fees -- Trial court's decision to allow bad faith claim in supplemental proceeding, rather than as a separate action, cannot revive insured's claim for attorney's fees under his demand for settlement -- Insured is not entitled to conditional award of appellate attorney's fees under bad faith statute because appeal was from initial action, not from subsequent bad faith action

35 Fla. L. Weekly D2276b
47 So. 3d 868

Insurance -- Title -- Error to grant summary judgment of coverage forfeiture in favor of title insurer on ground that insureds breached their contractual duty to cooperate and assist in defense of complaint filed against insureds based on violation of duly recorded easement which was not mentioned in title insurance commitments provided to insureds -- Disputed issues of material fact existed as to whether insurer reconsidered or reversed its initial no-coverage position and, if so, whether insurer notified insureds of the change in its position prior to insureds' filing their third-party complaint against insurer; and whether counsel hired by insurer was hired on behalf of the insureds and whether insureds were aware that counsel had been hired to represent their interests

35 Fla. L. Weekly D2586a
48 So. 3d 188

Insurance -- Homeowners policy issued to condominium association -- Appraisal -- Demand for appraisal was premature where insured had failed to provide certain records requested by insurer and had failed to provide insurer's loss consultant reasonable rights of access to, and inspection of, property damage detailed in claim -- Error to grant insured's motion to compel appraisal

35 Fla. L. Weekly D2369a
46 So. 3d 177

Insurance -- Appraisal -- Error to grant insured's motion to compel appraisal before court resolved underlying coverage dispute -- Conflict certified -- Insurer did not waive right to deny coverage by failing to deny coverage before suit was filed

35 Fla. L. Weekly D802a
36 So. 3d 704

Insurance -- Appraisal -- Hail storm damage to insured apartment complex -- Trial court erred in denying portion of insurer's motion to compel appraisal on ground that demand was untimely, where policy did not set forth a time limit for demanding appraisal -- Trial court erred in granting appraisal of items that had not been adjusted

35 Fla. L. Weekly D289a
28 So. 3d 129

Insurance -- Homeowners -- Appraisal -- Finding that homeowners were entitled to an appraisal pursuant to a homeowners' insurance policy was premature where parties disputed whether the claimed losses were covered by the policy and whether insureds complied with policy or whether their compliance with policy terms was necessary or sufficient

35 Fla. L. Weekly D1117b
34 So. 3d 791

Insurance -- Property insurance -- Coverage -- Insolvent insurer -- Florida Insurance Guaranty Association -- Trial court erred by entering final judgment in favor of insured and awarding insured the amount set forth in appraisal, less deductibles, without first determining FIGA's liability as to the coverage claims contested in FIGA's affirmative defenses -- FIGA could contest part of liability without challenging coverage as a whole, and appraisal award itself indicated the amount could change, as the award was made without consideration of the policy's provisions of coverage

35 Fla. L. Weekly D2059a

Insurance -- Automobile -- Appraisal -- Attorney's fees -- Where insurer demanded appraisal of stolen vehicle, and insured failed to comply with appraisal clause but filed suit prematurely, insured was not entitled to award of attorney's fees for that phase of trial court proceedings -- Where insurer failed to pay appraisal award, insured filed motion to enter judgment in accordance with the award, and insurer paid amount of award before motion was ruled on, insured was entitled to award of attorney's fees for that phase of proceedings -- It was error to award a 2.5 multiplier where there was no question from the outset that insured would recover some amount -- Interest -- It was error to award prejudgment interest from date of theft of insured automobile -- Interest should have been awarded from date of appraisal award

35 Fla. L. Weekly D2394a
47 So. 3d 890

Insurance -- Homeowners -- Attorney's fees -- Appraisal -- No fees were awardable for portion of case where parties were unable to agree on an umpire, and insurer filed petition for selection of neutral umpire -- Insureds were entitled to award of attorney's fees for successfully defeating insurer's request that trial court direct umpire to provide an itemized appraisal

35 Fla. L. Weekly D888a
34 So. 3d 753

Insurance -- Appraisal -- Trial court did not abuse its discretion by allowing appraisal to go forward on a dual track basis, while preserving insurer's rights to contest coverage as a matter of law

35 Fla. L. Weekly D497a
31 So. 3d 852

Torts -- Insurance brokers -- Negligent or intentional misrepresentation of facts material to risks assumed by insurance company -- Insurance broker can be liable to an insurance company which suffers loss as a result of broker's own fraud or negligence in providing information in the application material to the issuance of a policy -- Error to dismiss legal malpractice insurer's action to recover from broker money paid in settlement of suit against insured on ground that broker, without insured's knowledge, failed to include in insurance application all professional liability claims, disciplinary proceedings, or suits involving law firm applicant and firm's members within last five years -- Fact that defendant, as a broker, was agent of the insured, does not preclude its liability for negligent or fraudulent conduct -- Section 552 of Restatement (Second) of Torts applies to insurance brokers -- Indemnity -- Complaint did not state causes of action for common law indemnity because plaintiff was obligated to pay based upon a contractual liability, not a vicarious liability for the acts of its broker

35 Fla. L. Weekly D2203b
46 So. 3d 1051

Insurance -- Citizens Property Insurance Corporation -- Sovereign immunity -- Appeals -- Trial court's denial of Citizens Property Insurance Corporation's motion to dismiss bad faith action on ground of sovereign immunity is not reviewable by writ of prohibition or certiorari -- Conflict certified -- Question certified: Whether, in light of the supreme court's ruling in Department of Education v. Roe, 679 So. 2d 756 (Fla. 1996), review of the denial of a motion to dismiss based on a claim of sovereign immunity should await the entry of a final judgment in the trial court?

35 Fla. L. Weekly S640a
62 So. 3d 1086

Insurance -- Personal injury protection -- Appeals -- Second-tier certiorari review -- Where county court entered directed verdict for insurer in medical provider's action for reimbursement of medical treatment expenses on ground that insured unreasonably failed to appear for medical examination, although insurer presented no evidence on affirmative defense of failure to appear for medical examination, and circuit court appellate division reversed the judgment and remanded for trial on merits, the district court of appeal improperly exercised certiorari jurisdiction to quash the circuit court decision -- District court did not consider or set forth a sufficient correct legal basis and analysis with regard to the manner in which the circuit court decision denied due process or departed from the essential requirements of law resulting in a miscarriage of justice, but instead merely disagreed with the result in the circuit court without supplying a proper and sufficient legal basis for second-tier certiorari review -- District court erroneously held that attendance at a medical examination and testimonial exam without counsel are conditions precedent to coverage not merely benefits -- Circuit court was correct that insurer had burden of pleading and proving its affirmative defense, and insurer was required to present evidence to the fact-finder that insured unreasonably failed to attend a medical examination without explanation after having received proper notice -- Insured's unreasonable failure to attend a medical examination would relieve the insurer of liability for subsequent benefits, not medical expenses already incurred

35 Fla. L. Weekly D870a
36 So. 3d 730

Insurance -- Automobile -- Rescission of policy -- Material misrepresentation in application -- Trial court erred in refusing to recognize insurer's rescission of policy based on material misrepresentation where, in answer to question whether the vehicle had been modified, the insured answered “no” although insured had installed larger, wider tires and a lift-kit on the vehicle -- Trial court erred in entering summary judgment for plaintiff in action against insurer seeking coverage under policy on ground that the term “modified” in application was ambiguous -- Remand for consideration of issue of whether broker who knew of modifications was insurer's agent whose knowledge should be imputed to insurer

35 Fla. L. Weekly D1269a
36 So. 3d 885

Attorney's fees -- Insurance -- Torts -- Action against insurance agent alleging negligent procurement of flood insurance coverage in reduced amount -- Trial court erred as matter of law by determining that defendant agent was an “insurer” liable for insured's attorney's fees under section 627.428 where it was undisputed that agent merely facilitated the contract to which insured and insurer were parties and that the insured had not claimed that the agent was actually a party to the insurance contract -- Offer of judgment -- Because defendant does not challenge award of attorney's fees under section 768.79, reversal does not affect that part of final judgment of attorney's fees

35 Fla. L. Weekly D805a
32 So. 3d 722

Administrative law -- Licensing -- Suspension of license as life and health insurance agent -- Hearing -- Department of Financial Services properly dismissed licensee's untimely petition for administrative hearing -- Excusable neglect standard is not available where party has failed to timely file petition for hearing

35 Fla. L. Weekly D1456a
39 So. 3d 440

Insurance -- Commercial property -- Change of coverage from replacement cost to actual cash value -- Broker was no longer insured's agent after binder had expired and policy had issued -- After policy had issued, broker had no authority to instruct insurer to eliminate replacement cost coverage -- There is no merit to insurer's contention that it had never issued a policy to insured because the condition precedent in the binder, requiring a replacement cost appraisal within thirty days, had not been met -- Condition stating that binder was subject to “receipt of current replacement cost appraisal within thirty (30) days of effective date,” was ambiguous because it was silent as to which party had the obligation to perform the appraisal -- Trial court erred in entering summary judgment for insurer in insured's breach of contract action after insurer had paid insured's claim for hurricane damage to insured's property at actual cash value rather than at replacement cost

35 Fla. L. Weekly D2168a
49 So. 3d 774

Insurance -- Windstorm -- Authority of agent to bind insurer -- Where insurance application clearly provided, on page two, actual notice of limitations on insurance agent's authority to bind the insurer; applicant did not receive page two of application, but a printed line directly above the signature line on page one of application stated, “I further understand and agree to the terms as set forth on page 2”; and applicant's principal admitted that when he signed the application, he understood page two was part of the entire application but never asked to review the page, applicant was placed on inquiry notice and therefore subject to limitations imposed on agent by insurer -- Trial court erred in finding there was no evidence that applicant was ever put on notice of any limitations on agent's authority to bind coverage -- Trial court did not err by failing to apply incorporation by reference doctrine as to page two of insurance application as a matter of law where language on page one of application neither made it subject to terms and conditions on page two nor expressly referred to or described the agency disclaimer on page two

35 Fla. L. Weekly D235b

NOT FINAL VERSION OF OPINION
Subsequent Changes at 35 Fla. L. Weekly D741a

Insurance -- Civil remedy for Insurance Code violations -- Final summary judgment in favor of insurer reversed -- Remand for entry of final judgment dismissing case without prejudice for failing to file sufficiently specific civil remedy notice, as required by statute

SUBSTITUTED OPINION at 35 Fla. L. Weekly D741a. 31 So. 3d 915

35 Fla. L. Weekly D741a
31 So. 3d 915

Insurance -- Bad faith -- Civil remedy for Insurance Code violations -- Final summary judgment in favor of insurer on bad faith claim reversed -- Remand for entry of final judgment dismissing bad faith claim without prejudice for failing to file sufficiently specific civil remedy notice, as required by statute

35 Fla. L. Weekly D2104a
46 So. 3d 1037

Insurance -- Homeowners -- Insured's misrepresentation of criminal history on application for policy -- Waiver -- Trial court erred in granting directed verdict for insurer on issue of whether insurer, acting through a claims or field adjuster, had waived the right to deny coverage on account of insured's misrepresentation where there was conflicting testimony as to whether adjuster, having knowledge of insured's misrepresentation, had apparent authority to waive insurer's right to deny coverage

35 Fla. L. Weekly D2686a
51 So. 3d 506

Insurance -- Personal injury protection -- Accord and satisfaction -- Cashing check containing language that it is in full payment of debtor's obligations creates accord and satisfaction with regard to claim for which payment was tendered -- Appeals -- Certiorari -- Although circuit court, acting in its appellate capacity, incorrectly applied law when it affirmed a county court's judgment finding that check which was cashed by provider and which contained notation that it was for full and final payment of PIP benefits was only a partial payment, this error was not a departure from essential requirements of law remediable in a second tier certiorari -- Petition for writ of certiorari denied