2011

36 Fla. L. Weekly D298a
54 So. 3d 578

Insurance -- Windstorm -- Appraisal -- Error to summarily compel appraisal over insurer's objection that insured failed to comply with post-loss provisions of policy -- Remand for evidentiary hearing on whether insured sufficiently complied with policy's post-loss requirements

36 Fla. L. Weekly D314c
53 So. 3d 1194

Attorney's fees -- Appellate -- Justiciable issues -- Insurance -- Circuit court sitting in its appellate capacity did not err in affirming county court's final judgment in favor of insurer in declaratory judgment action seeking declaration of insured's right to obtain a signed uninsured motorist rejection form -- Under unique facts of case, insurer's provision of form after suit was filed did not amount to confession of judgment -- However, appellate issue did not meet threshold for section 57.105 fees, either as to its factual or legal component -- Moreover, appellate court's award of section 57.105 fees should be based on lack of merit of appeal, not lack of merit at trial level -- Award of appellate attorney's fees vacated

36 Fla. L. Weekly D377b
54 So. 3d 1055

Insurance -- Uninsured motorist -- A policy provision requiring an insured to join the tortfeasor as a condition to bringing or maintaining a suit for uninsured/underinsured motorist benefits is against public policy and void

36 Fla. L. Weekly D1114a
61 So. 3d 1245

Torts -- Civil procedure -- Costs -- Prevailing party -- When an uninsured/underinsured motorist insurer is joined as a party defendant and the verdict does not exceed the tortfeasor's liability limits, the UM insurer is the prevailing party and entitled to its costs -- Trial court erred in entering cost judgment against insurer -- Attorney's fees -- Trial court erred in denying insurer's motions for attorney's fees under section 768.79(1) where insurer made good faith proposal for settlement in amount of $100, and verdict in favor of plaintiffs to whom proposal was made was less than liability limits of policy -- Record supports conclusion that offer was made in good faith

36 Fla. L. Weekly D415b
54 So. 3d 1065

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 there was no coverage under policy -- Trial court properly declared that insured had to attend IME with doctor selected by insurer

36 Fla. L. Weekly D1487e

NOT FINAL VERSION OF OPINION
Subsequent Changes at 37 Fla. L. Weekly D379a

Insurance -- Uninsured motorist -- Evidence -- Expert -- Trial court abused its discretion in excluding testimony of insurer's medical billing and coding expert where insurer argued that insured's medical providers fabricated or exaggerated medical care necessary for insured's alleged injuries and expert's testimony that bills did not correlate to treatment in medical records was relevant to prove this defense -- Expert's testimony regarded a technical matter of which jury did not have basic knowledge -- It was clear from expert's deposition that she had specialized knowledge and training to express opinion on whether bills were properly coded and whether they corresponded to medical records documenting the purported treatment -- New trial required

36 Fla. L. Weekly D2208b
78 So. 3d 7

Insurance -- Uninsured motorist -- Insured was not entitled to UM coverage for injuries he received when his own insured automobile was carjacked and he was forced by his assailants to ride in the trunk of the insured automobile -- Insured's automobile did not become an uninsured vehicle when assailants took possession of it, and insured's injuries thus did not arise out of the ownership, maintenance, or use of an uninsured vehicle -- Further, even if vehicle were an uninsured vehicle, it was no more than a contributor to the cause of the condition which produced the injuries

36 Fla. L. Weekly D1299a
65 So. 3d 558

Insurance -- Uninsured motorist -- Coverage -- Injuries suffered by employee while riding motorcycle rented by her employer -- Where policy issued to employer purported to limit UM coverage by defining “covered autos” more narrowly in the UM provisions than in the liability provisions, the policy's liability definition of “covered autos” determines UM coverage -- Trial court erred in relying on the narrower definition of “covered auto” in entering summary judgment finding that the business automobile policy issued to employer did not provide UM coverage to employee who was riding motorcycle rented by employer

36 Fla. L. Weekly D2718a
89 So. 3d 246

Insurance -- Uninsured motorist -- Evidence -- In insured's action to recover uninsured motorist benefits after insurer had refused to pay UM benefits on ground that medical treatment for which insured sought payment did not stem from injuries incurred in automobile accident, it was error to allow insured to present evidence that insurer had paid insured personal injury protection benefits and to make the payment of such benefits and the standard for the payment of such benefits a feature of trial -- Such evidence could only have been intended to convince jury that insurer's payment of PIP benefits constituted an admission that insured was entitled to recover UM benefits because insurer had already determined that services for which payment was sought were reasonable, necessary, and related to the automobile accident -- On remand, no testimony need be adduced regarding insurer's payment of MedPay benefits to insured

36 Fla. L. Weekly D2635c
83 So. 3d 793

Insurance -- Uninsured motorist -- Compulsory medical examination -- Failure to attend -- Although insured breached underinsured/uninsured motorist contract by failing to attend two scheduled compulsory medical examinations and by filing suit before complying with the CME provision in the contract, breach did not defeat coverage because insurer was not prejudiced by the breach -- Where policy did not contain language specifying the consequences of a breach of CME provision, prejudice analysis specified by supreme court in Bankers Insurance Co. v. Macias applies -- CME provision is a “condition subsequent,” the non-occurrence of which is an affirmative defense that the insurer has the burden to plead and prove -- Conflict certified -- Questions certified: When an insured breaches a CME provision in an uninsured motorist contract, (in the absence of contractual language specifying the consequences of the breach) does the insured forfeit benefits under the contract without regard to prejudice, or does the prejudice analysis described in Bankers Insurance Co. v. Macias, 475 So. 2d 1216, 1218 (Fla. 1985), apply? If prejudice must be considered, who bears the burden of pleading and proving that issue?

36 Fla. L. Weekly D195b

NOT FINAL VERSION OF OPINION
Subsequent Changes at 36 Fla. L. Weekly D2635c

Insurance -- Uninsured motorist -- Compulsory medical examination -- Insured who refused to attend compulsory medical examination was not entitled to recover uninsured motorist benefits -- Compliance with policy provision requiring insured who makes claim to attend CME is a condition precedent to suit and recovery of policy benefits

36 Fla. L. Weekly D2340a
72 So. 3d 314

Insurance -- Uninsured motorist -- Attorney's fees -- Conflict of law -- Under Florida law, the statutory right to attorney's fees is a substantive right -- Because insured's claim for attorney's fees was based solely on Nebraska statute, Nebraska law governs substantive right to attorney's fees -- Under Nebraska law, it was error to award attorney's fees unrelated to issue of coverage and to apply a multiplier

36 Fla. L. Weekly D1732a
83 So. 3d 755

Contracts -- Unjust enrichment -- Action by title insurance company against parties who engaged in fraudulent real estate closings in which the sellers would receive one HUD-1 settlement statement containing the amount for sale of property, lenders would receive a different settlement statement containing a fraudulently inflated amount for the sale of the property, and the difference between the fraudulently inflated amount provided by lenders and the lesser amount disbursed to sellers would be wired to defendants by title insurance company's agent -- Judgment was erroneously entered for plaintiff title insurance company on unjust enrichment claim where there was no evidence that plaintiff had paid any claim to any lender, agreed to pay any claim to any lender, or received an assignment of rights or claims from any lender -- Although plaintiff established that a benefit had been conferred on defendants and that it would be inequitable for defendants to retain the benefit without paying for it, plaintiff failed to establish that it was the party who conferred the benefit -- Funds disbursed to defendants did not belong to plaintiff, but rather belonged to lenders

36 Fla. L. Weekly D58a
53 So. 3d 331

Insurance -- Title insurance -- Title insurance companies were not liable for misappropriation of deposits made to licensed title insurance agent in its capacity as escrow agent -- Deposits were not trust funds because agent acted solely as an escrow agent, not as a closing or title issuing agent

36 Fla. L. Weekly D1126b 61 So. 3d 1262 Administrative law -- Licensing -- Title insurance agents -- Department of Financial Services properly denied application for licensure as a resident Florida title insurance agent based on applicant's prior criminal record, but improperly calculated waiting period for re-application -- Appeals -- In pipeline case that is still pending on appeal when there has been a change in the law as applied specifically to appellant, appellant is entitled to the benefit of that change

36 Fla. L. Weekly D287a
58 So. 3d 280

Insurance -- Title insurance -- Class actions -- Class action against licensed title insurance underwriters alleging that homeowners were not provided a discounted title insurance reissue rate for which they may have been eligible when they refinanced their homes -- Trial court did not err in certifying class upon finding that common question predominated over individualized issues -- If, as urged by plaintiffs, Florida law places duty to determine whether the reissue rate applies solely on title insurance companies, the individual practices of their agents and circumstances of each transaction become largely irrelevant, and class adjudication would be appropriate

36 Fla. L. Weekly D1642a
65 So. 3d 1207

Insurance -- Uninsured motorist -- Subrogation -- Summary judgment -- Damages -- Trial court correctly granted summary judgment in favor of UM insurer as to liability where insurer established defendant's negligence as rear driver in rear-end collision -- Trial court erred in entering summary judgment ordering defendant to pay to insurer the same amount insurer had paid to its insureds -- Genuine issues of material fact remained as to amount of damages attributable to accident where award was based only on affidavit listing the check paid to the insureds for the claim, but insurer did not establish what damages the check was intended to cover and whether such damages were related to the accident

36 Fla. L. Weekly D894a
60 So. 3d 514

Insurance -- Uninsured motorist -- Stacking -- Where insureds had purchased stacked UM coverage on the vehicle involved in accident but had expressly rejected UM coverage on another vehicle insured under separate policy and paid no premium for such coverage, insureds were not entitled to recover additional UM benefits from the policy on the vehicle not involved in the accident

36 Fla. L. Weekly D45a
54 So. 3d 1012

Insurance -- Public adjusters -- Section 626.854(6), Florida Statutes (2008), which bans solicitation by public adjusters for a period of 48 hours, unambiguously bans all solicitation for 48 hours, and this restriction on commercial speech violates Article I, section 4 of the Florida Constitution -- Statute is not narrowly tailored to meet state's objectives

36 Fla. L. Weekly D2785a
83 So. 3d 850

Insurance -- Condominiums -- Property damage -- Replacement cost value -- Error to award replacement cost value benefits where policy required insured to actually repair or replace damage as condition precedent to payment of replacement costs, and insured failed to do this -- Prevention of performance doctrine did not excuse insured from contractual obligation to complete repairs before receipt of payment

36 Fla. L. Weekly D888a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 36 Fla. L. Weekly D1467a

Insurance -- Property and casualty insurance -- Coverage -- Hurricane and windstorm -- Dispute over amount paid by insurer to purchaser of property to whom named insured had assigned its rights to insurance proceeds -- Civil procedure -- Where purchaser and insurer entered into joint pretrial stipulation that limited dispute to the amount to be paid to the purchaser for damages from hurricane and which included stipulation that named insured had assigned its right to insurance proceeds to the purchaser, trial court impermissibly abandoned the stipulation by instructing jury that it was required to determine whether purchaser held valid assignment and by providing a verdict form that questioned whether valid assignment existed -- Trial court abused its discretion by not correcting error on purchaser's motion for new trial, filed after jury found there was no assignment -- Purchaser was not required to read stipulation to the jury

36 Fla. L. Weekly D1467a
82 So. 3d 911

Insurance -- Property insurance -- Coverage -- Hurricane and windstorm -- Dispute over amount paid by insurer to purchaser of property to whom named insured had assigned its rights to insurance proceeds -- Civil procedure -- Where purchaser and insurer entered into joint pretrial stipulation that limited dispute to the amount to be paid to the purchaser for damages from hurricane and which included stipulation that named insured had assigned its right to insurance proceeds to the purchaser, trial court impermissibly abandoned the stipulation by instructing jury that it was required to determine whether purchaser held valid assignment and by providing a verdict form that questioned whether valid assignment existed -- Trial court abused its discretion by not correcting error on purchaser's motion for new trial, filed after jury found there was no assignment -- Purchaser was not required to read stipulation to the jury

36 Fla. L. Weekly D1555a
65 So. 3d 608

Insurance -- Trial court did not err in entering summary judgment for insurer on ground that insured had failed to comply with pre-suit requirements that she provide a satisfactory proof of loss and submit to examination under oath -- Court did not err or abuse discretion by denying insured's request to abate action, which was first made almost five years after the loss and only in the face of an imminent ruling against her at hearing on motion for summary judgment

36 Fla. L. Weekly S373a
73 So. 3d 91

Civil procedure -- Class actions -- Class action alleging that premium finance company violated sections 627.840(3)(b) and 627.835, Florida Statutes, by knowingly overcharging plaintiff an additional service charge of $20 twice in a twelve-month period -- In reversing trial court's order granting class certification, district court of appeal erred by not applying the abuse of discretion standard of review -- District court incorrectly held that plaintiff and putative class members failed to satisfy commonality and predominance requirements for class action -- District court erred in finding that trial court improperly granted motion for class certification on basis that plaintiff failed to demonstrate that defendant knowingly overcharged him in violation of statute -- Issue of whether defendant knowingly overcharged plaintiff is question of fact for jury -- Plaintiff satisfied all requirements for class action, and trial court properly granted class certification

36 Fla. L. Weekly D2442b
126 So. 3d 291

Insurance -- Personal injury protection -- Fee schedule -- Appeals -- Appellate court declines to answer certified question, “[m]ay the permissive fee schedule provisions of [section 627.736(5)(a)(2), Florida Statutes (2008)] be applied to claims brought for treatment rendered after January 1, 2008, pursuant to the personal injury protection policies of insurance purchased prior to January 1, 2008?” -- Appeal, together with filing fee, transferred to appellate division of circuit court

36 Fla. L. Weekly D54b
56 So. 3d 41

Insurance -- Personal injury protection -- Failure of insured to attend independent medical exam appointments -- Appellate division of circuit court did not depart from essential requirements of law in finding that insured's reason for failing to attend medical exam appointments, that her lawyer did not tell her about the appointments, was an unreasonable basis to excuse her non-appearance -- Expert witness fees -- Circuit court did not violate a clearly established principle of law resulting in a miscarriage of justice in finding that treating physicians were not entitled to expert witness fees for their depositions because they did not obtain their information for the purpose of litigation but rather in the course of treating the patient

36 Fla. L. Weekly D1823a
67 So. 3d 1174

Insurance -- Personal injury protection -- Appellate attorney's fees -- Where insured prevailed in county court in action on PIP policy, and appellate division of circuit court affirmed the county court judgment, it was a miscarriage of justice for circuit court to deny an award of appellate attorney's fees to insured

36 Fla. L. Weekly D2072a
69 So. 3d 1059

Insurance -- Personal injury protection -- Action against insurer by medical provider -- Appellate division of circuit court properly found that it was within trial court's discretion to strike insurer's affirmative defense of fraud on morning of trial -- Circuit court's finding that trial court did not limit reading of insured's deposition to jury in any way was a misstatement of facts in the record because trial court did prohibit insurer from reading that part of insured's deposition where he claimed that he was not treated by plaintiff medical provider for the automobile accident -- Decision finding that insurer was not prohibited from reading insured's complete deposition to jury constituted a miscarriage of justice -- Appellate attorney's fees -- Circuit court departed from essential requirements of law by applying incorrect law when it awarded appellate attorney's fees to plaintiff even though its brief had been stricken from consideration and it had been precluded from presenting oral argument due to the failure to timely file its answer brief or timely move for an extension of time to do so

36 Fla. L. Weekly D960b
61 So. 3d 462

Insurance -- Personal injury protection -- Circuit court sitting in its appellate capacity properly found that presuit demand letter was premature where payment was not overdue -- Payment was not overdue where amount demanded on health insurance claim form exceeded the total amount allowed under statute for MRIs, and claim form failed to specify the exact amount owed under the statute -- Circuit court applied correct law in ruling that peer review report could have been proper basis for denial of bill although insurer did not also conduct independent medical examination

36 Fla. L. Weekly D2597a
79 So. 3d 55

Insurance -- Personal injury protection -- Reimbursement of provider for MRI services -- Insurer may not limit provider reimbursement to provider of MRI services to 80 percent of 200 percent of allowable amount under physicians schedule of Medicare Part B where policy does not make specific election to do so, but states that insurer will pay 80 percent of all reasonable medical expenses

36 Fla. L. Weekly D1062a
63 So. 3d 63

Insurance -- Personal injury protection -- A PIP insurer may not elect to use Medicare Part B fee schedules set forth in section 627.736(5)(a)(2) when the subject policy specifies that the PIP insurer will pay 80% of medically necessary expenses -- Incorporation of PIP statute into policy did not give insurer the unilateral right to ignore the only payment methodology referenced in the policy

36 Fla. L. Weekly D1553b
99 So. 3d 525

Insurance -- Personal injury protection -- Appellate attorney's fees -- Where circuit court appellate division reversed summary judgment which county court had entered in favor of insured's assignee in action against insurer, but affirmed county court order requiring insurer to pay expert witness fee for assignee's expert, circuit court departed from essential requirements of law in denying award of attorney's fees to assignee for prevailing on expert witness fee issue

36 Fla. L. Weekly D2609a
75 So. 3d 798

Insurance -- Nonrenewal of policy -- Where insurer failed to give insured subcontractor notice of insurer's nonrenewal of policy which provided coverage for insured's additional insured, terms of policy remained in effect at time of underlying incident because insured had not obtained replacement coverage before underlying incident

36 Fla. L. Weekly D458a
57 So. 3d 228

Insurance -- Named-peril building and personal property policy -- Coverage -- Where policy provided coverage for damage caused to insured building as result of physical contact with a “vehicle,” it was error to find that there was no coverage for damage to the foundation of the insured building when it was struck by an excavator -- Excavator is a vehicle

36 Fla. L. Weekly D430a
59 So. 3d 153

Workers' compensation -- Cancellation or ab initio voidance of insurance policy -- Judge of compensation claims acted outside of his limited statutory authority in voiding ab initio employer's contract for workers' compensation insurance based on misrepresentations made by the employer, either during or shortly after the completion of an application for workers' compensation coverage -- Neither law nor competent substantial evidence supported JCC's alternative finding that claimant, who provided painting services to employer, was not employed by employer but, rather, by some separate legal entity -- Remand for additional proceedings to determine extent of workers' compensation benefits due claimant

36 Fla. L. Weekly D1022a
60 So. 3d 1148

Insurance -- Life insurance -- Insurable interest -- Where insurance agent procured life insurance policy on the life of his client, with a trust named as owner and beneficiary of the policy, trial court properly found that the trust did not have an insurable interest in the insured's life, and that the policy was void ab initio -- Trial court properly determined that the trust was not entitled to a refund of any premiums paid -- Where a party wrongfully procures a life insurance policy on an individual in whom it has no insurable interest, the party is not entitled to a return of premiums paid for the void policy

36 Fla. L. Weekly D743b 58 So. 3d 377 Venue -- Action against estate seeking declaratory judgment that plaintiffs were entitled to funds derived from value of surrendered life insurance certificates and against life insurance company alleging that life insurance company wrongfully paid funds belonging to plaintiffs to estate -- In suit involving more than one defendant, venue is proper for all defendants where it is proper for any one defendant -- Trial court erred in finding that estate met its initial burden of showing that plaintiffs' choice of venue was improper where personal representative's affidavit challenged venue as to estate, but did not challenge venue as to life insurance company -- Plaintiffs established that venue was proper as to life insurance company in county where life insurance payment was to be made and cause of action accrued

36 Fla. L. Weekly D2190a
73 So. 3d 798

Insurance -- Life insurance -- Interpleader -- Competing claims for proceeds of policy by decedent's former wife, who was former owner and beneficiary of policy, and persons named on combined change-of-owner and change-of-beneficiary form, which former wife alleged was fraudulently procured -- Case was not ripe for summary judgment in favor of either side where there were disputed issues of fact concerning former wife's knowledge that insurance proceeds had been paid to others, and that issue alone affected whether insurer's affirmative defenses of waiver, estoppel, and payment and discharge applied -- Florida's facility of payment statutory defense, which provides that payment to person then designated in policy fully discharges insurer absent written notice of competing claims, applies in situations in which change of beneficiary was allegedly procured through forgery -- However, policy in instant case requires that a change of owner or beneficiary must be by written request satisfactory to the insurer, and factual dispute exists as to whether insurer made changes to policy and paid policy proceeds in strict compliance with the policy's terms, pursuant to which only former wife, as owner of policy, had right to transfer ownership of policy -- While policy did not specify procedures for changing beneficiary, and insurer claimed that changing beneficiary was governed by unwritten business policies which allowed an insured to request a notice-of-change form and which did not require that notice-of-change forms be notarized, factual inconsistency existed between unwritten policy that notarization was not necessary and a written form sent out by insurer that included a notary certificate

36 Fla. L. Weekly D1783b
71 So. 3d 899

Insurance -- Pollution liability and environmental damage -- Trial court erred in finding insurer liable for claim for environmental clean-up costs made outside policy period on ground that insurer had failed to provide insured with a written notice of non-renewal as required by federal law incorporated into the policies at issue -- Trial court further erred in finding that even if issuance of subsequent policy by insurer's subsidiary, which was virtually identical to policy issued by insurer and contained same retroactive policy date as the first policy, could be construed as a notice of non-renewal, insurer was liable for claim made prior to expiration of 60-day time limit set forth in federal regulation -- Language in federal regulation providing that cancellation or other termination of insurance is effective only upon written notice and only after the expiration of 60 days after written notice is received by the insured does not apply to instant case in which insured allowed policy to expire by its own terms

36 Fla. L. Weekly D1173a
62 So. 3d 1173

Civil procedure -- Insurance -- Wrongful death -- Non-joinder of insurers statute -- Insurer's motion, denied by trial judge, to sever third-party insurance coverage action by equipment rental company from wrongful death action in which defendants included the insured and the equipment rental company, whose contract with insured required indemnification of equipment rental company from any liability, claim, loss or other damage arising from use of equipment -- Certiorari petition granted and trial court's denial of severance motion quashed because trying the tort action and the insurance action together would violate Florida's non-joinder of insurers statute -- Petition for certiorari review of trial court's denial of insurer's motion to dismiss denied

36 Fla. L. Weekly D1091b
61 So. 3d 1230

Insurance -- Liability -- Judgment for insured reversed where there was no competent evidence to support conclusion that coverage had been provided

36 Fla. L. Weekly D1630a
68 So. 3d 290

Torts -- Automobile accident -- Insurance -- Uninsured motorist -- Jurors -- Nondisclosure of litigation history during voir dire -- Motion for new trial by defendant uninsured motorist carrier on grounds that two jurors had failed to disclose involvement in prior litigation -- Trial court abused discretion in granting new trial where it is unclear either juror intended to conceal prior litigation in answering “no” to generic question about whether they had ever been “in court,” both jurors admitted some litigation history but defense counsel did not do due diligence of asking questions to develop information that may have caused defense counsel to challenge them, and for one of the juror's previous litigation involved cases dissimilar from the present case and remote in time, hence immaterial to jury service in present case

36 Fla. L. Weekly D1138a
65 So. 3d 52

Insurance -- Uninsured motorist -- Jurors -- Post-verdict interview -- Trial court abused its discretion by denying insurer's motion to interview three jurors based on their alleged failure to disclose their personal automobile insurance claims histories during voir dire -- Insurance Services Organization claims history reports on these jurors, although insufficient to require new trial, were sufficient to provide reasonable grounds to believe that the jurors may have concealed relevant and material information during voir dire and to justify juror interviews -- If on remand trial court determines after juror interviews that these jurors in fact concealed relevant and material information, trial court will be in a position to determine whether insurer is entitled to a new trial

36 Fla. L. Weekly D2298a
72 So. 3d 286

Insurance -- Property insurance -- Trial court erred in confirming appraisal award after it had already been paid -- Insured not entitled to award of attorney's fees and interest on appraisal award -- Trial court cannot confirm appraisal award that has already been paid and thereby create basis for award of attorney's fees -- Failure to comply with section 627.70131(5)(a), which sets forth time frames for payment of property claims, cannot form sole basis for private cause of action, and no independent cause of action exists to award statutory interest under section 627.70131(5)(a)

36 Fla. L. Weekly D449b
54 So. 3d 1081

Insurance -- Property damage -- Prejudgment interest -- No error in denying motion for prejudgment interest in insured's action against insurer where policy provisions allotted insurer thirty days within which to pay any appraisal award and insurer made payment within that time period

36 Fla. L. Weekly D23a
55 So. 3d 593

Insurance -- Personal injury protection -- Exhaustion of policy limits -- Where PIP benefits were exhausted after provider filed complaint against insurer, but before insurer was served, provider could not thereafter maintain suit for sole purpose of pursuing claim for penalties, interest, and attorney's fees on benefits that were reduced or denied prior to exhaustion of benefits -- No error in entering summary judgment in favor of insurer

36 Fla. L. Weekly D1935a
68 So. 3d 396

Torts -- Contracts -- Engineering services -- Negligence -- Release -- Action by homeowner against contractor hired to perform sinkhole investigation and prepare report and to act as homeowner's engineer of record for remediation work performed by another contractor -- Trial court erred in granting summary judgment in favor of defendant on homeowner's negligence and breach of contract claims where there were factual issues as to whether scope of release that homeowner gave to his property damage insurer, which released insurer's “contractors” and “privies,” was broad enough to include claim against defendant for negligent supervision of remediation work and whether defendant's engineering work on the investigation and report met the applicable standard of care -- There was substantial issue of fact concerning whether defendant ever had a contract with insurer or whether adjuster merely approved defendant's budget for the work as homeowner's insurer, not as an independent contracting party -- Further, release pertained to claims “arising in relation to the filing of insurance claims” relative to or associated with insurance coverage for home, and negligence claim against defendant was unrelated to homeowner's insurance coverage, his decision to make a claim under his policy, or the insurer's handling of the claim -- With respect to claim that defendant breached contract to render professional engineering services, defendant was obligated to perform services in accordance with standard of care used by similar professionals in the community under similar conditions, and expert's testimony raised substantial question of fact concerning whether defendant's performance met the applicable standard of care

36 Fla. L. Weekly D2309a
73 So. 3d 310

Insurance -- Homeowners -- Settlement -- Where insureds' claim was settled by insurer's payment to insureds to repair home, and insureds accepted insurer's payment without reserving any rights to other claims, it was error to enter summary judgment for insureds in their subsequent action against insurer for damages due to loss of use of the home

36 Fla. L. Weekly D1081a
99 So. 3d 502

Insurance -- Homeowners -- Overhead and profit -- Under terms of replacement cost policy, insured was not entitled to payment from insurer for overhead and profit where insured had not hired a contractor to repair fire damage to insured home

36 Fla. L. Weekly D1005a
59 So. 3d 1227

Insurance -- Homeowners -- Hurricane damage -- Underpayment of claim -- Interest -- Prejudgment -- Where insurer satisfied appraisal award within sixty days of filing of the award, as required by terms of insurance contract, insured was not entitled to prejudgment interest

36 Fla. L. Weekly D481c
56 So. 3d 94

Insurance -- Homeowners -- Prejudgment interest -- In absence of contract provision or statute to the contrary, none of which is apparent on record before appellate court, insured is not entitled to prejudgment interest on supplemental amount of appraisal award as computed from date of loss where dispute turned on quantifying the covered loss, not the existence of coverage

36 Fla. L. Weekly D1153a
61 So. 3d 502

Insurance -- Homeowners -- Coverage -- Trial court properly found that homeowners' policy did not cover golf cart accident that occurred within gated community on private road near, but not on, insured's residential property where, although private road was sole ingress and egress for homeowners in residential community and homeowners' association was responsible for common maintenance of the roadway, individual homeowners exercised no individual control over the roadway -- Private road was not used “in connection with” residence such that it fell within policy's definition of insured location

36 Fla. L. Weekly D1077a
62 So. 3d 678

Venue -- Contracts -- Action for breach of contract and declaratory relief filed against homeowners' insurer by contractor to whom homeowners had assigned their rights to receive insurance proceeds -- No abuse of discretion in granting insurer's motion to transfer venue to county in which work was performed, insurance policy was issued, and majority of witnesses were located -- With respect to contractor's claim that it had debtor-creditor relationship with insurer, thus making county where payment was allegedly due the proper venue, debtor-creditor rule does not apply when damages are unliquidated, and amount of contractor's recovery, if any, was required to be determined by presentation of evidence

36 Fla. L. Weekly D1269a
64 So. 3d 730

Insurance -- Homeowners -- Hurricane damage -- Trial court properly entered summary judgment for insurer in insured's breach of contract action where insured failed to comply with conditions precedent to payment that insured submit to examination under oath and submit documentation accurately reflecting amount of loss claimed

36 Fla. L. Weekly D1334a
63 So. 3d 914

Insurance -- Homeowners -- Hurricane damage -- Insolvent insurers -- Florida Insurance Guaranty Association -- Action by assignees who purchased home and later discovered leaky roof which was attributed to hurricane damage which was sustained before plaintiffs purchased home from assignors and not previously reported to insurer -- Trial court properly entered judgment in favor of FIGA on ground that, as matter of law, notice to insurer of a claim of loss more than two years and two months after loss occurred was not prompt notice, and that the untimely reporting of the loss violated insurance policy and was sufficient to bar the claim -- Plaintiffs did not receive any claims through previous owners' assignment because there were no claims timely made by the previous owners to assign -- Proposal for settlement -- Trial court did not err in denying plaintiffs' motion to compel enforcement of FIGA's proposal for settlement, which plaintiffs attempted to accept after entry of final summary judgment

36 Fla. L. Weekly D2391a
77 So. 3d 210

Insurance -- Homeowners -- Appraisal -- Trial court erred in granting insurer's motion to stay insured's lawsuit against insurer pending completion of appraisal process where insurer failed to comply with requirement of notifying insured of her right to participate in mediation when an insured files a first party claim for property damage

36 Fla. L. Weekly D1125a
61 So. 3d 1241

Insurance -- Homeowners -- Mediation -- Where an insurer fails to supply the statutorily required written notice of the right to mediate, the insured is not required to engage in a contractual loss appraisal process as a prerequisite to litigation -- There is no merit to insurer's contention that because insured was aware of mediation process in a contemporaneous, but separate claim, such knowledge obviated the need for statutory notice -- There is also no merit to insurer's contention that because insured voluntarily commenced appraisal process, insured must be bound to participate in the process through its conclusion

36 Fla. L. Weekly D2705d
81 So. 3d 482

Insurance -- Homeowners -- Appraisal -- Losses suffered in burglary -- Trial court did not err in confirming appraisal award without reducing award by applying policy limitations for loss of certain property -- Trial court cannot properly hold a hearing and consider extrinsic evidence to discern the value of each individual item to which limitations could be applied

36 Fla. L. Weekly D51b
51 So. 3d 591

Insurance -- Homeowners -- Appraisal -- Error to grant insured's motion to compel appraisal where insurer asserted that insured failed to comply with policy's post-loss conditions -- Remand for evidentiary hearing

36 Fla. L. Weekly D2692a
76 So. 3d 34

Insurance -- Homeowners -- Appraisal -- There is no rule or statute allowing for the filing of a petition to confirm an appraisal award -- Trial court erred in granting petition to confirm and entering final judgment pursuant to appraisal award -- Remand with instructions to allow insureds to file complaint alleging viable cause of action for insurer's failure to pay loss for ordinance and law coverage

36 Fla. L. Weekly D805a
66 So. 3d 952

Administrative law -- Health insurance -- Dispute resolution -- Statute which directs Agency for Health Care Administration to establish program to provide for resolution of disputes between health plans and health care providers, instructs AHCA to contract with a dispute resolution organization, and requires AHCA to adopt the recommendation of the dispute resolution organization, is constitutional because the dispute resolution procedure is not mandatory, and the statute includes a right to file suit

36 Fla. L. Weekly D1882a
69 So. 3d 304

Insurance -- Florida Insurance Guaranty Association -- Attorney's fees -- Denial of coverage

36 Fla. L. Weekly D939c
82 So. 3d 849

Insurance -- Homeowners -- Attorney's fees -- Insolvent insurer -- Florida Insurance Guaranty Association -- FIGA is excused from statute providing for an award of attorney's fees to insured who prevails in an action against an insurer, except when FIGA “denies by affirmative action, other than delay, a covered claim or portion thereof” -- Based on specific facts of instant case, FIGA's filing of an answer and affirmative defenses pursuant to a court order did not constitute a “denial” of insureds' claim by affirmative action other than delay, as FIGA was compelled to answer the complaint by the trial court and did not voluntarily deny claim, but simply asserted its legitimate defenses under the policy -- Error to award attorney's fees to insureds

36 Fla. L. Weekly D1217a
65 So. 3d 541

Insurance -- Attorney's fees -- Award of attorney's fees against the Florida Insurance Guaranty Association is reversed -- The FIGA is not responsible for the payment of an insured's attorney's fees and costs unless it denies a claim by affirmative action other than delay -- A dispute about the amount of damages does not constitute a denial of coverage by affirmative action other than delay exposing FIGA to attorney's fees where nothing in FIGA's payment transmittal letter indicated that it denied the claim and the insured never claimed more than the amount tendered

36 Fla. L. Weekly D2259a 71 So. 3d 241 Insurance -- Attorney's fees -- Florida Insurance Guaranty Association -- Circuit court erred in denying insureds' motion to recover attorney's fees from FIGA because FIGA denied insureds' covered claim by affirmative action when FIGA asserted seven affirmative defenses in its answer alleging that the insureds' damages were not caused by a covered loss -- FIGA's argument that it was compelled to allege affirmative defenses because a failure to do so would result in a waiver, is rejected -- If FIGA believed it had insufficient time to investigate the claim, it should have sought a motion for extension of time to respond, and if the motion was denied, then FIGA should have crafted its answer to avoid any allegation constituting a denial of the claim by affirmative action -- Because FIGA failed to do so, insureds are entitled to recover attorney's fees pursuant to sections 627.428(1) and 631.70

36 Fla. L. Weekly D1288a 63 So. 3d 892 Insurance -- Fire -- Subrogation -- Action by commercial landlord's insurer against commercial tenant -- Where commercial lease included general provisions requiring tenant to obtain general liability insurance and indemnify and hold landlord harmless for tenant's negligence, but lease expressly provided that landlord would purchase property and casualty insurance which covered fire damage on building, and that tenant's rent included its pro rata share of the premium, the parties intended tenant to be an intended beneficiary or co-insured under landlord's property and casualty policy -- Landlord's insurer could not maintain a subrogation action against tenant after paying landlord's claim for fire damage to building

36 Fla. L. Weekly D1218a
65 So. 3d 67

Insurance -- Property damage -- Exclusions -- Windstorm -- Ambiguity -- Where insured's building was damaged by a crane during a tropical storm, trial court erred in granting insured's motion for summary judgment after determining that the windstorm exclusion in the parties' contract of insurance was ambiguous and should be construed against the insurer -- The windstorm exclusion unambiguously provides that if loss or damage is caused by a windstorm the loss is not covered; and the plain language of the “ensuing loss” provision contained within the exclusion means that if a windstorm sets in motion another cause which is not excluded by the policy, and that intervening cause results in a covered loss, then the windstorm exception does not apply -- The record reflects that the parties did not stipulate to the cause of the crane falling, and determination of the cause is essential because the exclusion would only apply if the crane fell due to the force of the wind -- Case remanded for resolution of this factual issue

36 Fla. L. Weekly D2336b
83 So. 3d 777

Insurance -- Mobile homeowners -- Exclusions -- Error to find insurer liable for claims arising from named insured's sexual battery and molestation of minor where policy excluded claims “which are expected or intended by any of you or performed at any of your direction”

36 Fla. L. Weekly D411b
56 So. 3d 63

Insurance -- Management liability -- Duty to defend and indemnify -- Where policy contained intellectual property rights exclusion which provided that insurer would not be liable for loss in connection with a claim in any way involving any actual or alleged intellectual property rights, trial court properly entered judgment on the pleadings in favor of insurer in insured's action for declaratory relief seeking determination of insurer's duty to defend and indemnify insured against lawsuits arising out of patents acquired by insured and its subsidiary, allegedly without fair compensation to owner

36 Fla. L. Weekly D450a
59 So. 3d 1166

Insurance -- Homeowners -- Exclusions -- Sexual molestation -- No error in declaring that insurer had no obligation to provide defense or coverage on negligent supervision action arising out of sexual molestation where policy excluded bodily injury arising out of sexual molestation -- When read in context of other exclusions, which all expressly limited the scope of the exclusion based on some action taken by insured, sexual molestation exclusion, which contained no such express limitation, plainly applied to bodily injury arising out of sexual molestation “by any person”

36 Fla. L. Weekly D2240a 78 So. 3d 583 Insurance -- Property -- Exclusions -- Flood -- Error to enter summary judgment for insured finding that policy covered damage to insured's automobile dealership when heavy rainfall caused storm water drainage systems adjacent to dealership to overflow -- There was disputed issue of material fact as to whether property was damaged by flood waters, an excluded peril, or by storm drainage water backup

36 Fla. L. Weekly D265a
55 So. 3d 636

Insurance -- Uninsured motorist -- Umbrella policy -- Stacking -- Trial court properly determined that policy issued to insured who owned four automobiles was a non-stacking policy where a single premium was paid for coverage, and no separate premium paid for each automobile

36 Fla. L. Weekly D716a
59 So. 3d 256

Insurance -- Garage keepers -- Exclusions -- Promissory estoppel -- Where policies issued to insured for several years had no exclusion of coverage for vehicles with state-issued certificates of destruction, but endorsement was added which excluded coverage for vehicles with state-issued certificates of destruction before insured renewed policy over the phone, insurer was promissorily estopped from enforcing the exclusion because insurer failed to inform insured that renewal policy would include the exclusionary endorsement -- Silence, under circumstances in which there is a duty to speak, may constitute a misrepresentation, and insurer's failure to inform insured that the renewal policy would include the exclusionary endorsement constituted a misrepresentation of a material fact upon which insured reasonably relied to insured's detriment

36 Fla. L. Weekly D368a
56 So. 3d 55

Insurance -- Discovery -- Surveillance video -- Trial court violated clearly established principle of law by granting motion to compel production of a surveillance video prior to granting the opportunity to depose the subjects of the video

36 Fla. L. Weekly D1230a
66 So. 3d 315

Insurance -- Uninsured motorist -- Discovery -- Trial court departed from essential requirements of law in requiring insurer to produce results of the last twenty medical examinations of personal injury plaintiffs performed by insurer's medical expert who had examined insured without notice to the patients as required by statute -- It was a departure from essential requirements of law to order disclosure of the results of the medical examinations without notice even though the patients' identities were ordered to be redacted

36 Fla. L. Weekly D707a
57 So. 3d 982

Insurance -- Homeowners -- Discovery -- Trial court departed from essential requirements of law in compelling production of insurer's claims notes, activity logs, property loss information, and property loss notice forms in insured's breach of contract action against insurer -- Insured is not pursuing a bad faith claim, but rather seeks relief for breach of contract, and a trial court departs from the essential requirements of law in compelling disclosure of the contents of an insurer's claim file when the issue of coverage is in dispute and has not been resolved

36 Fla. L. Weekly D142b
54 So. 3d 543

Declaratory judgment -- Jurisdiction -- Circuit court had no jurisdiction of PIP insurer's action seeking declaration of whether statute requires medical providers to mediate a PIP claim prior to filing a breach of contract action for benefits where declaratory action was based on a PIP claim of less than the jurisdictional amount of $15,000 -- Unlike other matters in equity, there is no concurrent circuit and county court jurisdiction for claims for declaratory relief -- Circuit court has jurisdiction of a declaratory action only if the amount in controversy exceeds $15,000, and only county court has jurisdiction of any amount in controversy less that $15,000

36 Fla. L. Weekly D2751a 77 So. 3d 772 Insurance -- Credit life -- Denial of application -- No error in granting summary judgment to insurer finding that insurance application was not ambiguous and that there was no insurance contract between insurer and applicant where the language of the application made it unambiguously clear that it was not a contract, and disclosure signed by applicants clearly stated there would be no coverage until the application was approved, which it was not

36 Fla. L. Weekly D453a
55 So. 3d 690

Insurance -- Counsel -- Disqualification -- Trial court departed from essential requirements of law in disqualifying counsel from representing insurance company in company's action against defendant asserting claims related to payment made to defendant for damages sustained by defendant's vessel on ground that counsel had represented another insurance company in an action brought by defendant for damages sustained by the same vessel

36 Fla. L. Weekly S311a
67 So. 3d 187

Insurance -- Commercial residential -- Appraisal -- Statutory amendment which provides that a commercial residential insurer may not exercise its right of appraisal if the insurer does not give notice of the availability of mediation does not apply retroactively -- In determining that the amendment applied retroactively, the district court erroneously determined the retroactivity issue on the basis of whether retroactive application would unconstitutionally impair the obligations of contract, without first considering whether there was legislative intent that the amendment apply retroactively -- Because amendment was substantive, and there was no clear evidence of legislative intent to apply it retroactively, amendment does not apply retroactively

36 Fla. L. Weekly D1365a
62 So. 3d 1281

Insurance -- Comprehensive liability -- Exclusions -- Injuries to children of employees of named insured -- Provision that insurance does not apply to “ ‘Bodily Injury' sustained by the spouse, child, parent, brother or sister of any employee of any insured, or of a contractor, or of an employee of a contractor of any insured as a consequence of ‘bodily injury' to such employee, contractor, or employee of such contractor, arising out of and in the course of such employment or retention by or for any insured” was properly found by trial court to be ambiguous -- Trial court properly found that coverage was not excluded for injuries to the son of an employee of the named insured who was injured when he fell from a tractor being operated by the employee in the course and scope of his employment with the named insured

36 Fla. L. Weekly D515a
57 So. 3d 238

Insurance -- Commercial property -- Windstorm -- Discovery -- Trial court departed from essential requirements of law by entering orders compelling two senior officers of insurer to appear for deposition in windstorm insurance case where insurer filed affidavit establishing that these senior officers had no role in investigation or adjustment of insured's claims

36 Fla. L. Weekly D1786a
82 So. 3d 1001

Insurance -- Commercial property -- Coverage -- Theft -- Newly acquired property stored at newly acquired location -- Shipment of new inventory housed in insured's newly-leased warehouse was covered under section of policy providing coverage for business personal property located at a “newly acquired location” and business personal property which was “newly acquired” -- Although trial court correctly found that policy provided theft coverage for insured's loss of this inventory, trial court erred in applying off-premises clause of policy, which applied to temporary storage situations and which limited coverage to maximum of $10,000

36 Fla. L. Weekly D484a
59 So. 3d 177

Insurance -- Commercial property -- Appraisal -- Trial court erred in granting insureds' motion to compel appraisal where there was factual dispute as to whether insureds had complied with policy's post-loss provisions

36 Fla. L. Weekly D2669b
75 So. 3d 812

Insurance -- Commercial liability -- Coverage -- Reformation -- Mutual mistake -- Appeal of declaratory judgment determining that coverage existed for a claim filed against insured arising from injuries sustained while consumer was using exercise ball sold by insured -- Declaratory judgment is reversed because trial court's findings of undisputed fact support reformation of parties' insurance policy based on mutual mistake where, although original policy included an exclusion schedule that was inadvertently left blank and insured was unaware that new copies of policy mailed to insured's agent contained corrected exclusion endorsement, insurer and insured agreed that the exercise balls would be excluded from coverage prior to the policy being issued -- Trial court's focus on how insurer failed to notify insured and insured's agent of the clerical error was misplaced because the manner of notification did not change undisputed fact that the corrected exclusion endorsement did not alter the parties' agreement to exclude the exercise balls

36 Fla. L. Weekly D1818a
69 So. 3d 975

Insurance -- Coverage -- Commercial general liability -- Exclusions -- Appeal from declaratory judgment determining the existence of coverage -- Claim arising out of insured's painting work for plaintiff's apartments which resulted in spattered paint on glass windows and doors which were allegedly damaged when paint was removed -- Error to conclude coverage existed where policy included provisions excluding damage to real property on which operations were being performed if the property damage arose out of those operations or that particular part of any property that must be restored, repaired or replaced because insured's work was incorrectly performed on it -- Cleaning paint spatter from windows and doors was within natural and intended scope of work undertaken by insured and insured's operations were intended to include the apartments which were being painted, therefore, there is no genuine issue of fact that damage to property arose out of insured's operations and the underlying claim resulted from insured's incorrect work within the meaning of the exclusion

36 Fla. L. Weekly D2520a
76 So. 3d 20

Insurance -- Commercial general liability -- Duty to defend -- Error to enter summary judgment based on finding that insurer had no duty to defend insured in personal injury action that fell within automobile exclusion of commercial general liability policy where complaint alleged facts that fairly brought suit outside automobile exclusion

36 Fla. L. Weekly D352c
53 So. 3d 1220

Insurance -- Commercial general liability -- Duty to defend and indemnify -- Exclusions -- Assault and battery -- Where plaintiff, who was patron in flea market operated by insured, alleged that off-duty sheriff's officer employed by insured used excessive force while arresting him and that such force caused bodily injury to plaintiff, complaint clearly alleged a battery -- Error to find that insurer had duty to defend and indemnify insured where policy unambiguously excluded coverage for claims based on an assault or battery

36 Fla. L. Weekly D1710a
67 So. 3d 1156

Declaratory judgments -- Insurance -- Commercial general liability -- Trial court departed from essential requirements of law by failing to dismiss action to determine whether plaintiffs' claims against insured were covered by insurance policy issued by defendant-insurer where plaintiffs failed to obtain a settlement with or verdict against the insured prior to filing of declaratory judgment action -- Plaintiff could not avoid presuit requirements set forth in nonjoinder statute by instituting separate declaratory judgment action against insurer

36 Fla. L. Weekly D1463b
71 So. 3d 134

Insurance -- Personal injury protection -- Non-emergency, non-hospital services -- Fee schedule -- Providers' action against insurers -- Consolidated class action brought against PIP insurers by health care providers who performed MRI services for insureds for which they were allegedly underpaid -- Insurers could not rely on computations that capped payments due for MRI services based on Medicare's Hospital Outpatient Prospective Payment System, which required the use of an additional limiting schedule in determining allowable Medicare payments under Medicare Part B -- Sections 627.736(5)(a)(2)(f) and (5)(a)(3) of the Florida Motor Vehicle No-Fault law expressly designated the participating physicians schedule of Medicare Part B as the operative fee schedule to be utilized in computing the minimum amount insurers were allowed to remit for the types of services rendered by the providers -- The additional fee schedule under OPPS is a distinct and separate component of the Medicare Part B program and cannot be used to cap amount payable where statute unambiguously refers to the participating physicians schedule as the fee schedule on which to rely

36 Fla. L. Weekly D1436a
66 So. 3d 342

Insurance -- Appraisal -- Trial court erred in granting insured's motion to compel appraisal where factual dispute exists as to whether insured complied with policy's postloss obligations, and court did not hold evidentiary hearing on that issue -- Insured did not waive right to request appraisal by not pleading such relief and aggressively litigating case where insured made presuit demand for appraisal and included as part of complaint against insurer a declaratory action to determine whether it was entitled to appraisal -- Appeals -- Citizens Property Insurance Corporation was entitled to automatic stay of appraisal process pending appellate review because Citizens is a public body seeking to enforce a public right

36 Fla. L. Weekly D401a
54 So. 3d 1062

Insurance -- Automobile -- Comprehensive coverage -- Cancellation of policy -- Trial court erred in entering summary judgment for insurer in insured's action to recover benefits for losses sustained when his automobile was stolen on ground that policy had been cancelled for non-payment of premium prior to loss, where there was factual issue as to whether notice of cancellation had been mailed or delivered to insured by insurer as required by statute -- Fact that insured had received a letter from Florida Department of Motor Vehicles stating that policy had been cancelled did not satisfy statutory requirement for cancellation of policy

36 Fla. L. Weekly D581a
60 So. 3d 429

Insurance -- Automobile -- Cancellation of policy for failure to pay premium increase following change in insured's address -- Statute requiring insurer to comply with certain notification procedures in event an insurer charges an incorrect premium did not apply to increase in premium in this case -- “Incorrect premium” statute applies to situations when an insurer sets an incorrect premium at the time an insured applies for insurance coverage, and does not apply to policy amendments or renewals

36 Fla. L. Weekly D267b
53 So. 3d 388

Insurance -- Uninsured motorist -- Bad faith -- Error to lift abatement of bad faith claim while insurer's appeal of excess judgment was pending

36 Fla. L. Weekly D2482a
76 So. 3d 963

Insurance -- Commercial -- Breach of contract -- Bad faith -- Appeal of non-final order denying insurer's motion to dismiss breach of contract and bad faith claim, leaving claims to be tried simultaneously -- Trial court's order is reversed because insurer should not be required to defend against bad faith claim until insured has prevailed on merits -- Trial court can decide either to dismiss bad faith claim without prejudice or abate the claim until underlying breach of contract issue is resolved

36 Fla. L. Weekly D1558a
74 So. 3d 105

Insurance -- Hurricane damage to condominium -- Bad faith -- Certiorari -- Insurer's petition for writ of certiorari, seeking quashal of circuit court orders that allowed insured to amend complaint to add bad faith and punitive damages claims after appraisal award had been confirmed but before entry of final judgment on policy-phase issues -- Petition for writ of certiorari denied where insurer did not establish irreparable, material harm, a threshold requirement for issuance of writ of certiorari -- Order permitting amendment to add an allegedly premature bad faith claim does not satisfy irreparable harm requirement for certiorari -- Court recedes from decisions which have granted a petition for writ of certiorari when irreparable harm seems possible rather than imminent and which have broadly held that certiorari is available to challenge a premature bad faith claim or premature bad faith discovery

36 Fla. L. Weekly S97a
74 So. 3d 1064

NOT FINAL VERSION OF OPINION
Subsequent Changes at 36 Fla. L. Weekly S648bInsurance -- Bad faith -- Discovery -- Attorney-client privilege -- Attorney-client privileged communications are not discoverable in a first-party bad faith action -- When an insured brings a bad faith action against its insurer, the insured may not discover those privileged communications that occurred between the insurer and its counsel during the underlying action

36 Fla. L. Weekly D2545g
75 So. 3d 355

Insurance -- Bad faith -- Civil procedure -- Discovery -- Attorney-client privilege -- Waiver -- Trial court properly found that corporate defendant's representative's disclosure, during his deposition testimony, of confidential communications regarding certain issue created a limited waiver of attorney-client privilege as to that issue -- Trial court departed from essential requirements of law when it found waiver of attorney-client privilege on issue of decision to withdraw certain affirmative defense where corporate representative did not disclose any specific discussions with counsel as to this issue -- Admission that the issue was discussed with counsel was not sufficient to support waiver of privilege -- Moreover, defendant did not plead affirmative defense of advice of counsel in this bad faith action, and petitioner's attorney specifically stated on the record during corporate representative's deposition that petitioner was not relying on such a defense

36 Fla. L. Weekly D608c
62 So. 3d 23

Insurance -- Homeowners -- Bad faith -- Discovery -- In first-party bad faith action against insurer, trial court did not err in requiring insurer to produce work product material in claim file that was created before the resolution of the underlying litigation, but court departed from essential requirements of law in compelling production of work product material prepared after resolution of the underlying litigation -- Trial court departed from essential requirements of law in compelling production of material protected by attorney-client privilege -- Attorney-client privilege is available to insurers defending bad faith claims

36 Fla. L. Weekly D2257d 71 So. 3d 238 Insurance -- Automobile liability -- Nonjoinder of insurers -- Joinder of city's insurer, prior to entry of judgments, based on an accident involving a city vehicle -- Trial court erred in entering amended final judgments and adding insurer without first determining whether plaintiff met the condition precedent of 627.4136(1) by obtaining a verdict against a city who was an insured under the terms of the liability policy for a cause of action which was covered by such policy STATE NATIONAL INSURANCE COMPANY, Appellant, v. PAUL ROBERT, ELIZABETH ROBERT, CITY OF HOLLYWOOD, FLORIDA and HESS CORPORATION, Appellees. 4th District. Case No. 4D10-2382. October 12, 2011. Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Leroy H. Moe, Senior Judge, and John J. Murphy, III, Judge; L.T. Case No. 06-19856 CACE 21. Counsel: Robert T. Vorhoff and Scott P. Yount of Garrison, Yount, Forte & Mulcahy, L.L.C., Tampa, for appellant. Benjamin C. Hassebrock and Stephen A. Marino, Jr., of Ver Ploeg & Lumpkin, P.A., and Anania Bandklayder of Baumgarten Torricella & Stein, Miami, for appellees Paul Robert and Elizabeth Robert. (Hazouri, J.) Paul Robert and his wife Elizabeth (“the Roberts”) sued the City of Hollywood, Florida (“the City”), after Paul was injured in an accident involving a city vehicle. Following a jury trial, the Roberts obtained three separate judgments: (1) $1,095,008.83 for Paul, (2) $90,000 for Elizabeth, and (3) cost judgment of $67,500, for a total of $1,250,508.83. Prior to entry of the judgments, the Roberts timely filed a motion to join the City's liability insurer, State National Insurance Company (State National), as a defendant, pursuant to section 627.4136(1), (4), Florida Statutes (2006).1 The issue on appeal is whether the trial court erred in entering amended final judgments adding State National without first determining whether the Roberts met the condition precedent of 627.4136(1)of obtaining a verdict against a person, or in this case the City, “who is an insured under the terms of the liability policy for a cause of action which was covered by such policy.” For reasons discussed below we determine the trial court erred in the entry of the amended final judgment and reverse and remand for a determination as to whether the condition precedent has been met. State National's liability policy provided the City with $1,000,000 in liability coverage, with the City carrying a $400,000 self-insured retention. Pursuant to section 768.28(5), Florida Statutes (2006)2, the City's sovereign immunity is waived up to $200,000, with the remainder of the judgment subject to a claims bill in the Florida legislature. State National argues in this appeal that it cannot be liable to settle judgments against its insured, the City, for amounts in excess of the City's limited waiver of sovereign immunity under section 768.28(5), or the City's $400,000 self-insured retention. The Roberts and the City entered into a satisfaction of judgment: The undersigned, the owners and holders of certain final judgments rendered against the City of Hollywood, Florida in the above-captioned civil action, dated May 4, 2009, do hereby acknowledge receipt of the sum of $166,692.89 from defendant City of Hollywood, Florida and further acknowledge that the final judgments are hereby satisfied of record with respect to the City of Hollywood's $200,000.00 liability to Plaintiffs under Sec. 768.28(5) Florida Statutes only. The foregoing shall not in any way discharge Plaintiffs' right to report the unpaid amounts of said final judgments to the legislature and seek payment of same via an act of the legislature pursuant to Sec. 768.28(5) Florida Statutes or to recover from State National Insurance Company all amounts which Plaintiffs are or may be entitled to recover pursuant to the City of Hollywood's liability insurance policies. Plaintiffs specifically reserve all of the foregoing claims and rights. The jury trial and subsequent proceedings leading to the amended final judgments were presided over by a retired judge sitting as a senior judge in place of the assigned judge for civil division CACE(21). In a rather unusual ruling the trial judge ruled that he had jurisdiction to enter the amended final judgments but specifically ruled that he was not determining State National's liability and expressly reserved this issue for further proceedings before the division judge which has yet to occur. State National asserts that section 768.28(5) prohibits the City from being liable for any judgment in excess of $200,000 without the Roberts resorting to the claims bill process before the state legislature. State National further contends that its policy of insurance which is entitled “Public Entity Excess Liability Policy” requires it to pay all sums the City legally must pay as damages because of bodily injury caused by an accident and resulting from the ownership or maintenance of or use of a covered auto and therefore since the City cannot be legally liable in excess of $200,000 absent a successful claims bill there is no obligation for State National to pay. In addition, State National argues that since the policy calls for self-insured limit retention of $400,000, until the City pays $400,000, in essence exhausting the self-retention, it cannot be held responsible for any judgment or settlement. The Roberts contend that the case in its present posture is not ripe for appellate review because the trial court specifically refused to determine State National's liability. Roberts argues that if this court were to reach the issue of State National's liability, section 768.28(5) permits the City to negotiate a settlement within its policy limits without resorting to a claims bill and that there is nothing in the State National policy which requires the City to exhaust its $400,000 of self-retained limits. Therefore State National is responsible for $852,508.83 which is the total amount of the amended final judgments less the $400,000 self-retained limit and is within State National's policy limits of $1,000,000. We decline to decide the issue of whether there is liability on the part of State National by interplay of section 768.28(5) and the terms of its liability policy in the present posture of this case because the trial court failed to address the conditions precedent under section 627.4136(1). We reverse the entry of the amended final judgments as they apply to State National and remand to the lower court to make a determination of whether the Roberts can establish the condition precedent which would warrant the addition of State National to the amended final judgments. Reversed and Remanded for Further Proceedings. (Taylor and Levine, JJ., concur.) __________________ 1Section 627.4136(1), (4), Florida Statutes (2006), states: 627.4136. Nonjoinder of insurers (1) It shall be a condition precedent to the accrual or maintenance of a cause of action against a liability insurer by a person not an insured under the terms of the liability insurance contract that such person shall first obtain a settlement or verdict against a person who is an insured under the terms of such policy for a cause of action which is covered by such policy. . . . . (4) At the time a judgment is entered or a settlement is reached during the pendency of litigation, a liability insurer may be joined as a party defendant for the purposes of entering final judgment or enforcing the settlement by the motion of any party, unless the insurer denied coverage under the provisions of s. 627.426(2) or defended under a reservation of rights pursuant to s. 627.426(2). A copy of the motion to join the insurer shall be served on the insurer by certified mail. If a judgment is reversed or remanded on appeal, the insurer's presence shall not be disclosed to the jury in a subsequent trial. 2Section 768.28(5), Florida Statutes (2006), provides: The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability shall not include punitive damages or interest for the period before judgment. Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $100,000 or any claim or judgment, or portions thereof, which, when totaled with all other claims or judgments paid by the state or its agencies or subdivisions arising out of the same incident or occurrence, exceeds the sum of $200,000. However, a judgment or judgments may be claimed and rendered in excess of these amounts and may be settled and paid pursuant to this act up to $100,000 or $200,000, as the case may be; and that portion of the judgment that exceeds these amounts may be reported to the Legislature, but may be paid in part or in whole only by further act of the Legislature. Notwithstanding the limited waiver of sovereign immunity provided herein, the state or an agency or subdivision thereof may agree, within the limits of insurance coverage provided, to settle a claim made or a judgment rendered against it without further action by the Legislature, but the state or agency or subdivision thereof shall not be deemed to have waived any defense of sovereign immunity or to have increased the limits of its liability as a result of its obtaining insurance coverage for tortious acts in excess of the $100,000 or $200,000 waiver provided above. The limitations of liability set forth in this subsection shall apply to the state and its agencies and subdivisions whether or not the state or its agencies or subdivisions possessed sovereign immunity before July 1, 1974. * * *

36 Fla. L. Weekly D1067a
63 So. 3d 68

Torts -- Negligence -- Action against insurer, insurance broker, and insurance agent for lessee of vehicle which was owned by plaintiff-insurer's subrogee, seeking to recover amounts plaintiff paid in settlement of accident involving leased vehicle, alleging defendants breached duty owed to vehicle lessors and to general public to abide by standard insurance practices to issue automobile liability insurance coverage on leased vehicles as required by Florida vehicle leases and Florida statutes and that, by breaching this duty, defendants assisted the lessee-driver in breaching his lease, which required that lessee maintain certain levels of insurance -- Although preemptive effect of federal Graves Amendment did not preclude plaintiff from using equitable subrogation to assert a claim against defendants, negligence cause of action plaintiff sought to pursue against defendants failed as matter of law because, in providing insurance to the lessee, defendants owed no legal duty to lessor

36 Fla. L. Weekly S469a
70 So. 3d 566

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 being driven by named insured's granddaughter as permissive driver -- Household exclusion unambiguously applies to claims by members of household of permissive driver insured although they were not members of named insured's household -- Household exclusion barring coverage for “any bodily injury” to “any insured or member of an insured's family residing in the insured's household” eliminates coverage for bodily injuries suffered by members of the household of a permissive driver insured

36 Fla. L. Weekly D835a
63 So. 3d 27

Insurance -- Automobile liability -- Excess liability -- Umbrella policy issued to owner of freightliner truck which was leased to another company and being driven by that company's employee at time of accident did not provide coverage to the other company and its employee -- Policy unambiguously provided that any person to whom insured owner has leased or rented one of its automobiles is not an insured -- Term “automobile” in policy refers to commercial vehicles

36 Fla. L. Weekly S660a
78 So. 3d 1293

Insurance -- Automobile liability -- Duty to defend and indemnify -- Temporary substitute auto -- Where insured rented a vehicle when her insured vehicle became disabled under a rental agreement which stated that no additional operators are authorized or permitted, insured permitted the rental vehicle to be used by an unauthorized operator who in turn allowed the vehicle to be operated by another unauthorized operator who operated the vehicle in a negligent manner, resulting in serious injuries to some passengers and death of another passenger, insurer had a duty to defend and indemnify insured in negligence action against insured -- Under policy an “owned auto” included a “temporary substitute auto” -- Under Florida's dangerous instrumentality doctrine, an owner's consent to use the vehicle cannot be vitiated by invocation of third-party agreements attempting to limit the scope of who may operate the vehicle

36 Fla. L. Weekly D2212a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 37 Fla. L. Weekly D36a

Venue -- Insurance -- Commercial vehicle liability -- Forum selection clause -- Trial court improperly denied insurer's motion to dismiss on the basis of improper venue where clear and unambiguous forum selection clause found in policy stated that Georgia shall have jurisdiction and venue over any claims relating to the rights and obligations of the policy, insured freely bargained for and contracted with insurer with full knowledge of the forum selection clause, and insured failed to show that the clause was unreasonable or unjust -- While the compelling reasons exception applies to interstate commercial contracts, cases cited by insured are inapplicable to the instant case because they only address Florida's venue statutes, purely intra-state disputes not governed by forum selection clauses -- Insured's argument that by litigating in Florida and Georgia it would be forced to split its causes of action and that the forum selection clause does not govern all of insured's claims is rejected -- Validity of entire contract must be submitted to the forum chosen by the parties in the contract

36 Fla. L. Weekly D679b
87 So. 3d 782

Insurance -- Automobile liability -- Bad faith -- In bad faith action against insurer by estate of party who was killed in automobile accident caused by insured vehicle, trial court did not err in excluding evidence of insurer's prompt settlement of claims of other parties who were killed or injured in the accident -- Where insurer moved for directed verdict after estate closed its case on ground that estate had not proven the validity of the insured's assignment of claim to estate, trial court did not abuse discretion in allowing estate to reopen its case to present additional testimony regarding the assignment -- The assignment was not a required element of estate's bad faith claim against insurer -- Jury instruction regarding no realistic possibility of settlement within policy limit did not impermissibly shift burden of proof to insurer where instruction was expressly limited to the defense of the unwillingness of the plaintiff to settle -- Trial court did not err in denying insurer's motion for directed verdict

36 Fla. L. Weekly D2259a
71 So. 3d 241

Insurance -- Attorney's fees -- Florida Insurance Guaranty Association -- Circuit court erred in denying insureds' motion to recover attorney's fees from FIGA because FIGA denied insureds' covered claim by affirmative action when FIGA asserted seven affirmative defenses in its answer alleging that the insureds' damages were not caused by a covered loss -- FIGA's argument that it was compelled to allege affirmative defenses because a failure to do so would result in a waiver, is rejected -- If FIGA believed it had insufficient time to investigate the claim, it should have sought a motion for extension of time to respond, and if the motion was denied, then FIGA should have crafted its answer to avoid any allegation constituting a denial of the claim by affirmative action -- Because FIGA failed to do so, insureds are entitled to recover attorney's fees pursuant to sections 627.428(1) and 631.70

36 Fla. L. Weekly D2340a
72 So. 3d 314

Insurance -- Uninsured motorist -- Attorney's fees -- Conflict of law -- Under Florida law, the statutory right to attorney's fees is a substantive right -- Because insured's claim for attorney's fees was based solely on Nebraska statute, Nebraska law governs substantive right to attorney's fees -- Under Nebraska law, it was error to award attorney's fees unrelated to issue of coverage and to apply a multiplier

36 Fla. L. Weekly D1823a
67 So. 3d 1174

Insurance -- Personal injury protection -- Appellate attorney's fees -- Where insured prevailed in county court in action on PIP policy, and appellate division of circuit court affirmed the county court judgment, it was a miscarriage of justice for circuit court to deny an award of appellate attorney's fees to insured

36 Fla. L. Weekly D1553b
99 So. 3d 525

Insurance -- Personal injury protection -- Appellate attorney's fees -- Where circuit court appellate division reversed summary judgment which county court had entered in favor of insured's assignee in action against insurer, but affirmed county court order requiring insurer to pay expert witness fee for assignee's expert, circuit court departed from essential requirements of law in denying award of attorney's fees to assignee for prevailing on expert witness fee issue

36 Fla. L. Weekly D969a
68 So. 3d 267

Attorney's fees -- Appellate -- Contingent or conditional award -- Plaintiff who obtained favorable judgment against insurer on claim for underinsured motorist benefits not entitled to attorney's fees pursuant to section 768.79 where plaintiff made proposal for settlement in amount of $100,000, jury ultimately returned a verdict for over $1 million, but, because trial involved only a claim for underinsured motorist benefits, judgment was not for full amount of verdict but was instead based on $25,000 in insurance coverage -- Plaintiff not entitled to a conditional judgment of attorneys' fees for work in this case at appellate level -- Court recedes from portion of prior opinion that authorized procedure of entering conditional judgments -- If, in a subsequent bad faith action, the trial court determines that earlier appellate attorney's fees are an element of damages or are otherwise awardable in such a case, then that award does not require, as a condition precedent, any order from appellate court awarding fees on a contingent basis

36 Fla. L. Weekly D1082a
61 So. 3d 1215

Insurance -- Attorney's fees -- Insured prevailing in action against insurer -- Amount of fee -- Where contingent fee contract between insured and her attorney provided for an hourly rate of $300, it was error for court to award fees on the basis of an hourly rate of $350

36 Fla. L. Weekly D1082a
61 So. 3d 1215

Insurance -- Attorney's fees -- Insured prevailing in action against insurer -- Amount of fee -- Where contingent fee contract between insured and her attorney provided for an hourly rate of $300, it was error for court to award fees on the basis of an hourly rate of $350

36 Fla. L. Weekly D888a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 36 Fla. L. Weekly D1467a

Insurance -- Property and casualty insurance -- Coverage -- Hurricane and windstorm -- Dispute over amount paid by insurer to purchaser of property to whom named insured had assigned its rights to insurance proceeds -- Civil procedure -- Where purchaser and insurer entered into joint pretrial stipulation that limited dispute to the amount to be paid to the purchaser for damages from hurricane and which included stipulation that named insured had assigned its right to insurance proceeds to the purchaser, trial court impermissibly abandoned the stipulation by instructing jury that it was required to determine whether purchaser held valid assignment and by providing a verdict form that questioned whether valid assignment existed -- Trial court abused its discretion by not correcting error on purchaser's motion for new trial, filed after jury found there was no assignment -- Purchaser was not required to read stipulation to the jury

36 Fla. L. Weekly D2391a
77 So. 3d 210

Insurance -- Homeowners -- Appraisal -- Trial court erred in granting insurer's motion to stay insured's lawsuit against insurer pending completion of appraisal process where insurer failed to comply with requirement of notifying insured of her right to participate in mediation when an insured files a first party claim for property damage

36 Fla. L. Weekly S311a
67 So. 3d 187

Insurance -- Commercial residential -- Appraisal -- Statutory amendment which provides that a commercial residential insurer may not exercise its right of appraisal if the insurer does not give notice of the availability of mediation does not apply retroactively -- In determining that the amendment applied retroactively, the district court erroneously determined the retroactivity issue on the basis of whether retroactive application would unconstitutionally impair the obligations of contract, without first considering whether there was legislative intent that the amendment apply retroactively -- Because amendment was substantive, and there was no clear evidence of legislative intent to apply it retroactively, amendment does not apply retroactively

36 Fla. L. Weekly D1125a
61 So. 3d 1241

Insurance -- Homeowners -- Mediation -- Where an insurer fails to supply the statutorily required written notice of the right to mediate, the insured is not required to engage in a contractual loss appraisal process as a prerequisite to litigation -- There is no merit to insurer's contention that because insured was aware of mediation process in a contemporaneous, but separate claim, such knowledge obviated the need for statutory notice -- There is also no merit to insurer's contention that because insured voluntarily commenced appraisal process, insured must be bound to participate in the process through its conclusion

36 Fla. L. Weekly D1467a
82 So. 3d 911

Insurance -- Property insurance -- Coverage -- Hurricane and windstorm -- Dispute over amount paid by insurer to purchaser of property to whom named insured had assigned its rights to insurance proceeds -- Civil procedure -- Where purchaser and insurer entered into joint pretrial stipulation that limited dispute to the amount to be paid to the purchaser for damages from hurricane and which included stipulation that named insured had assigned its right to insurance proceeds to the purchaser, trial court impermissibly abandoned the stipulation by instructing jury that it was required to determine whether purchaser held valid assignment and by providing a verdict form that questioned whether valid assignment existed -- Trial court abused its discretion by not correcting error on purchaser's motion for new trial, filed after jury found there was no assignment -- Purchaser was not required to read stipulation to the jury

36 Fla. L. Weekly D2356b
88 So. 3d 249

Insurance -- Appraisal -- Order compelling appraisal reversed and remanded for evidentiary hearing to determine whether post-loss obligations were sufficiently met

36 Fla. L. Weekly D298a
54 So. 3d 578

Insurance -- Windstorm -- Appraisal -- Error to summarily compel appraisal over insurer's objection that insured failed to comply with post-loss provisions of policy -- Remand for evidentiary hearing on whether insured sufficiently complied with policy's post-loss requirements

36 Fla. L. Weekly D484a
59 So. 3d 177

Insurance -- Commercial property -- Appraisal -- Trial court erred in granting insureds' motion to compel appraisal where there was factual dispute as to whether insureds had complied with policy's post-loss provisions

36 Fla. L. Weekly D51b
51 So. 3d 591

Insurance -- Homeowners -- Appraisal -- Error to grant insured's motion to compel appraisal where insurer asserted that insured failed to comply with policy's post-loss conditions -- Remand for evidentiary hearing

36 Fla. L. Weekly D2298a
72 So. 3d 286

Insurance -- Property insurance -- Trial court erred in confirming appraisal award after it had already been paid -- Insured not entitled to award of attorney's fees and interest on appraisal award -- Trial court cannot confirm appraisal award that has already been paid and thereby create basis for award of attorney's fees -- Failure to comply with section 627.70131(5)(a), which sets forth time frames for payment of property claims, cannot form sole basis for private cause of action, and no independent cause of action exists to award statutory interest under section 627.70131(5)(a)

36 Fla. L. Weekly D2692a
76 So. 3d 34

Insurance -- Homeowners -- Appraisal -- There is no rule or statute allowing for the filing of a petition to confirm an appraisal award -- Trial court erred in granting petition to confirm and entering final judgment pursuant to appraisal award -- Remand with instructions to allow insureds to file complaint alleging viable cause of action for insurer's failure to pay loss for ordinance and law coverage

36 Fla. L. Weekly D1091d
60 So. 3d 592

Insurance -- Appraisal -- Compliance with post-loss requirements

36 Fla. L. Weekly D2705d
81 So. 3d 482

Insurance -- Homeowners -- Appraisal -- Losses suffered in burglary -- Trial court did not err in confirming appraisal award without reducing award by applying policy limitations for loss of certain property -- Trial court cannot properly hold a hearing and consider extrinsic evidence to discern the value of each individual item to which limitations could be applied

36 Fla. L. Weekly D1119a
82 So. 3d 855

Torts -- Limitation of actions -- Action against insurance agents alleging negligence and breach of fiduciary duty for failing to obtain liability coverage for plaintiffs' assignor -- Error to dismiss action on ground that statute of limitations period expired before plaintiffs sued agents -- Considering allegations appearing on face of amended complaint, damages to assignor occurred, at the earliest, when assignor and its employee, having no insurer to defend them, were forced to defend themselves against plaintiffs' claims, not on earlier date when assignor first discovered that it lacked coverage

36 Fla. L. Weekly D1558a
74 So. 3d 105

Insurance -- Hurricane damage to condominium -- Bad faith -- Certiorari -- Insurer's petition for writ of certiorari, seeking quashal of circuit court orders that allowed insured to amend complaint to add bad faith and punitive damages claims after appraisal award had been confirmed but before entry of final judgment on policy-phase issues -- Petition for writ of certiorari denied where insurer did not establish irreparable, material harm, a threshold requirement for issuance of writ of certiorari -- Order permitting amendment to add an allegedly premature bad faith claim does not satisfy irreparable harm requirement for certiorari -- Court recedes from decisions which have granted a petition for writ of certiorari when irreparable harm seems possible rather than imminent and which have broadly held that certiorari is available to challenge a premature bad faith claim or premature bad faith discovery

36 Fla. L. Weekly D2751a
77 So. 3d 772

Insurance -- Credit life -- Denial of application -- No error in granting summary judgment to insurer finding that insurance application was not ambiguous and that there was no insurance contract between insurer and applicant where the language of the application made it unambiguously clear that it was not a contract, and disclosure signed by applicants clearly stated there would be no coverage until the application was approved, which it was not

36 Fla. L. Weekly D346a
53 So. 3d 410

Torts -- Insurance agents -- No error in dismissing action against insurance agent and insurance agency claiming negligent misrepresentation, negligence, and vicarious liability based on failure to procure uninsured motorist coverage -- Execution of a form rejecting UM coverage absolves insurance agency and its agent of liability for negligently failing to procure UM coverage -- Under applicable statute, signed form created conclusive presumption that there was informed, knowing acceptance of policy's limitations, and this presumption applies not only in case against insurance company for coverage, but also against insurance agency and its agent

36 Fla. L. Weekly D1436a
66 So. 3d 342

Insurance -- Appraisal -- Trial court erred in granting insured's motion to compel appraisal where factual dispute exists as to whether insured complied with policy's postloss obligations, and court did not hold evidentiary hearing on that issue -- Insured did not waive right to request appraisal by not pleading such relief and aggressively litigating case where insured made presuit demand for appraisal and included as part of complaint against insurer a declaratory action to determine whether it was entitled to appraisal -- Appeals -- Citizens Property Insurance Corporation was entitled to automatic stay of appraisal process pending appellate review because Citizens is a public body seeking to enforce a public right

36 Fla. L. Weekly D1126b
61 So. 3d 1262

Administrative law -- Licensing -- Title insurance agents -- Department of Financial Services properly denied application for licensure as a resident Florida title insurance agent based on applicant's prior criminal record, but improperly calculated waiting period for re-application -- Appeals -- In pipeline case that is still pending on appeal when there has been a change in the law as applied specifically to appellant, appellant is entitled to the benefit of that change

36 Fla. L. Weekly D731a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 36 Fla. L. Weekly D1119a

Torts -- Limitation of actions -- Action against insurance agents alleging negligence and breach of fiduciary duty for failing to obtain liability coverage for plaintiffs' assignor -- Error to dismiss action on ground that statute of limitations period expired before plaintiffs sued agents -- Considering allegations appearing on face of amended complaint, damages to assignor occurred, at the earliest, when assignor and its employee, having no insurer to defend them, were forced to defend themselves against plaintiffs' claims, not on earlier date when assignor first discovered that it lacked coverage

36 Fla. L. Weekly D780b
60 So. 3d 469

Licensing -- Revocation of license to transact life and health insurance business -- Department of Financial services did not err in issuing summary order revoking insurance license where licensee did not submit timely petition for administrative hearing -- Failure to timely request hearing was not excused under equitable tolling doctrine where licensee claimed that untimely submission of petition was due to a mistake, and not because he was misled or lulled into inaction, or that he was in any way prevented from timely requesting hearing

36 Fla. L. Weekly D2717a
77 So. 3d 765

Torts -- Professional negligence -- Insurance agents -- Failure to procure adequate insurance -- Trial court properly entered summary judgment for defendant insurance agents in action alleging that agents failed to procure adequate insurance where settlement agreement between plaintiff and insurance company was broad enough to release agents from liability -- Although defendants were general lines agents who sold other lines of insurance, they were properly considered agents of insurance company where company had clearly designated them agents, providing them with the necessary authority to write lines of business