2012

37 Fla. L. Weekly D2259a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 38 Fla. L. Weekly D74d

Insurance -- Uninsured motorist -- Trial court erred in entering summary judgment finding that there was no uninsured motorist coverage because insured had failed to give written notice to insurer of the uninsured motorist claim -- Notice given by insured to insurance broker was notice to insurer because broker was both an agent of the insured and the insurer -- Although there was no written notice of claim as required by policy, the written notice requirement can be waived when the insurer has actual notice of the claim -- Summary judgment was improper because there was factual issue as to whether broker's employee told insured to cash settlement check which had been tendered by underinsured motorist's insurer but not to sign a release -- If insured was not advised to cash the settlement check, the question becomes whether the settlement with underinsured motorist's insurer prejudiced uninsured motorist insurer

37 Fla. L. Weekly D2715a
102 So. 3d 685

Insurance -- Uninsured motorist -- Damages -- Trial court erred in denying insurer's motion for remittitur or new trial where verdict's award of damages for future medical expenses was not supported by evidence -- Where damages are sought for future medical expenses, only medical expenses that are reasonably certain to be incurred in the future are recoverable

37 Fla. L. Weekly D1355a
95 So. 3d 897

Insurance -- Uninsured motorist -- Damages -- Trial court erred in refusing to instruct jury to reduce future economic damages to present value -- New trial required as to future economic damages -- Evidence -- Error to admit, and allow plaintiff to testify from, website pages maintained by the U.S. government which attempted to simplify and explain in lay terms how one can estimate amount of future potential military retirement benefits -- Printouts were not admissible under public records exception where there was no attempt to authenticate, and printouts did not simply set forth activities of a government agency or matters observed pursuant to a duty to report -- Trial court was not permitted to take judicial notice of facts contained in printouts simply because the trial court could readily verify it as an authoritative source -- Argument that plaintiff's testimony on the issue was based upon formulas easily gleaned from federal statutes, and that trial court properly took judicial notice of these statutes, is rejected where the information forming the basis for plaintiff's testimony cannot be found in any of the statutes cited by plaintiff -- Remand for new trial as to future economic damages

37 Fla. L. Weekly D492a
79 So. 3d 947

Insurance -- Uninsured motorist -- Single vehicle accident -- Plaintiff injured in single vehicle accident while riding in insured truck owned by a third party that was pulling an uninsured trailer owned by yet another person -- Trial court erred in entering summary judgment in favor of insurer where it incorrectly concluded that the trailer was part of an insured auto and thus not uninsured for purposes of UM coverage -- Trailer was uninsured for the purposes of UM coverage because plain language of policy treated a trailer as a separate auto where liability section defined “non-owned” and “owned auto” to include a trailer and UM section incorporated these definitions by reference, and trailer came within definition of “uninsured auto” since trailer did not meet definition of “insured auto”

37 Fla. L. Weekly D379a
81 So. 3d 538

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 on damages required

37 Fla. L. Weekly D2488a
99 So. 3d 625

Insurance -- Uninsured motorist -- Attorney's fees -- Contingent award -- Appeals -- Certiorari -- Order awarding contingent attorney's fees in action against insurer for uninsured motorist benefits, although a departure from essential requirements of current law, will not cause any irreparable damage to insurer -- Order is essentially preemptive determination of issues that may or may not arise in subsequent action for bad faith, and the relevance of the order in a subsequent lawsuit is a matter for resolution by judge in that proceeding

37 Fla. L. Weekly D1731a
93 So. 3d 476

Insurance -- Uninsured motorist -- Claim by uninsured motorist insurer that error impacted amount of damages determined by jury not addressed on appeal where jury verdict found wrongful death plaintiff's damages were in excess of $30 million, but judgment entered against insurer was based on applicable policy limit of $50,000

37 Fla. L. Weekly D2759a
107 So. 3d 1135

Insurance -- Condominiums -- Hurricane damage -- Subrogation rights -- Third party subrogation action filed by insurer against developer and contractor, who performed exterior repairs on condominiums prior to condominiums sustaining damage following hurricanes, alleging that the damage to condominiums was the result of defective construction by developer and contractor -- No error in granting developer's and contractor's motion for summary judgment where plain language of agreement under which developer and contractor undertook repairs released them from liability for any damage subsequent to their repairs, and release covered same matters that were subject to insurer's third party action

37 Fla. L. Weekly D475a
80 So. 3d 429

Insurance -- Aircraft -- Passenger liability insurance -- Personal accident reinsurance policy providing coverage for death or injury to passengers in specified amount “not exceeding 10x annual salary” -- Ambiguities -- Action against reinsurer which denied reimbursement for claims arising out of death of passengers in aircraft crash on ground that reinsurance policy covered only employed passengers -- Trial court correctly concluded that contract was ambiguous as to whether policy provided coverage only to employed passengers -- Because of unique and highly specialized nature of insurance provided, and because of factual dispute as to which party chose the language of the policy, case is one in which extrinsic evidence should be used to help resolve ambiguity in policy -- Remand to allow parties to submit extrinsic evidence on what, if any, coverage is provided to unemployed passengers -- Court notes that factual dispute exists regarding role of broker and whether his knowledge and understanding of policy can be imputed to plaintiff as its agent

37 Fla. L. Weekly D2825a
102 So. 3d 732

Insurance -- Property -- Notice of claim -- Untimely notice -- Trial court erred in finding that insured's untimely notice of claim, served twenty-nine months after alleged loss, barred claim as matter of law -- Proper inquiry is whether insurer was prejudiced by untimely notice -- Remand for reconsideration of insurer's motion for summary judgment and insured's response for purposes of prejudice analysis

37 Fla. L. Weekly D1777a
96 So. 3d 949

Insurance -- Property -- Hurricane damage -- Conditions precedent to suit -- Trial court properly found that policy provisions requiring insureds to give immediate notice of loss and submit sworn proof of loss within 60 days of the loss were conditions precedent to suit, and not cooperation clauses -- Insureds' untimely pre-suit notice of loss and untimely pre-suit submission of sworn proof of loss created presumption of prejudice to insurer, which insureds failed to rebut, thereby precluding insureds from recovery under policy -- Trial court properly entered summary judgment in favor of insurer

37 Fla. L. Weekly D1699a
95 So. 3d 303

Insurance -- Property -- Hurricane damage -- Conditions precedent to suit -- Trial court properly found that policy provisions requiring insureds to give immediate notice of loss and submit sworn proof of loss within 60 days of the loss were conditions precedent to suit, and not cooperation clauses -- Insureds' untimely pre-suit notice of loss and untimely pre-suit submission of sworn proof of loss created presumption of prejudice to insurer, which insureds failed to rebut, thereby precluding insureds from recovery under policy -- Trial court properly entered summary judgment in favor of insurer

37 Fla. L. Weekly S395a
94 So. 3d 541

NOT FINAL VERSION OF OPINION
Subsequent Changes at 37 Fla. L. Weekly S407a

Insurance -- Property -- Hurricane damage -- Florida law does not recognize a claim for breach of the implied warranty of good faith and fair dealing by an insured against its insurer based on the insurer's failure to investigate and assess the insured's claim within a reasonable period of time -- Such first-party claims are actually statutory bad-faith claims that must be brought under section 624.155, Florida Statutes -- An insured cannot bring a claim against an insurer for failure to comply with the language and type-size requirements of the hurricane deductible notice requirements established by section 627.701(4)(a), Florida Statutes -- Insurer's failure to comply with the language and type-size requirements of section 627.701(4)(a) does not render a noncompliant hurricane deductible provision in an insurance policy void and unenforceable -- Language in a policy mandating payment of benefits upon “entry of final judgment” does not waive the insurer's procedural right to post a bond and stay execution of a money judgment pending resolution of appeal

37 Fla. L. Weekly D1188a
90 So. 3d 841

Insurance -- Property -- Conditions precedent -- Examination under oath -- Error to enter summary judgment in favor of Florida Insurance Guaranty Association, as successor in interest for insurer, based on failure of insured and, subsequently, its assignee to submit to examination under oath where FIGA failed to plead and prove prejudice -- Moreover, record indicates that FIGA was not prejudiced

37 Fla. L. Weekly D2186a
103 So. 3d 866

Insurance -- Personal injury protection -- Relief from judgment -- Appeals -- Where insurer appealed to circuit court contending that county court abused its discretion in finding that provider's motion for attorney's fees was timely and in finding excusable neglect sufficient to support granting provider's rule 1.540(b) motion to vacate an order of dismissal, circuit court departed from essential requirements of law, resulting in denial of due process, when it reversed based on evidentiary deficiencies which were neither preserved in county court nor raised in insurer's appeal brief -- Court notes that circuit court could not have reversed based upon tipsy coachman doctrine, as that doctrine permits appellate court to affirm a trial court's decision on a ground other than that raised below, and argued on appeal, where there is support for the alternative theory or principle of law in record before trial court -- Tipsy coachman doctrine does not permit reviewing court to reverse on an unpreserved and unargued basis -- Remand for reinstatement of county court orders

37 Fla. L. Weekly D1027a
86 So. 3d 585

Insurance -- Personal injury protection -- Medical treatment provider's claim form submitted to insurer was substantially complete and properly put insurer on notice of covered claim although form did not contain provider's professional license number -- Circuit court applied correct law in reversing county court's summary judgment for insurer in action seeking payment of claims on ground that claims were noncompensable because of omission of professional license number

37 Fla. L. Weekly D170e
79 So. 3d 840

Insurance -- Personal injury protection -- When insurance policy provides greater coverage than the amount required by statute, terms of policy control -- Fact that amended statute would allow insurer to opt for another lesser amount does not permit insurer to do so when policy specifically provides for payment of 80% of reasonable expenses incurred -- Simply indicating that insurer would pay in accordance with the law “as amended” is insufficient to place insured on notice of insurer's intent to pay less than 80% of reasonable expenses as stated in policy

37 Fla. L. Weekly D985b
90 So. 3d 321

Insurance -- Personal injury protection -- Reimbursement for medically necessary services -- Insurer may not limit provider reimbursement to 80 percent of 200 percent allowable amount under Medicare Part B fee schedules where policy does not make specific election to do so -- Question certified to Florida Supreme Court as question of great public importance: With respect to PIP policies issued after January 1, 2008, may the insurer compute provider reimbursements based on the fee schedules identified in section 627.736(5)(a), Florida Statutes, even if the policy does not contain a provision specifically electing those schedules rather than “reasonable medical expenses” coverage based on section 627.736(1)(a)?

RESULT APPROVED. 38 Fla. L. Weekly S517a

37 Fla. L. Weekly D1663a
95 So. 3d 903

Insurance -- Personal injury protection -- Trial court erred in determining that PIP insurer was not required to pay for two different treatments by medical provider on the same day on ground that under the National Correct Coding Initiative (NCCI) edits Medicare Rules do not allow the billing of both treatments on the same day -- NCCI edits are not incorporated into Florida PIP statute, and medical provider was owed for both treatments, even though Medicare Rules would not allow payment for those services rendered on the same day

37 Fla. L. Weekly D1107a
93 So. 3d 345

Insurance -- Personal injury protection -- Attorney's fees -- Contingency fee multiplier -- In awarding attorney's fees to medical care provider in its action against insurer, trial court abused discretion in applying contingency fee multiplier where there was no competent, substantial evidence that market required a multiplier for provider to obtain competent counsel

37 Fla. L. Weekly D1739a
93 So. 3d 482

Estates -- Trusts -- Trial court properly found that life insurance proceeds payable to decedent's revocable trust were not exempt from claims of creditors of decedent's estate where trust provided for payment of estate's expenses and obligations from trust before distribution of residue to sub-trust for the benefit of decedent's daughters -- Statutory exemption rendering life insurance proceeds unavailable to satisfy estate obligations was waived -- Trial court did not err in denying trustee's petition for reformation of trust where trustee failed to prove by clear and convincing evidence that the trust, as written, did not reflect the settlor's intent at the time he executed the trust declaration

37 Fla. L. Weekly D1246a
93 So. 3d 352

NOT FINAL VERSION OF OPINION
Subsequent Changes at 37 Fla. L. Weekly D1314b

Insurance -- Liability -- Coverage -- Loss that has already occurred -- Where club, which conducted a fund raising festival at which plaintiff was injured in an accident on recreational gear, had no liability insurance, but company which supplied recreational gear did have liability insurance, certificate of insurance issued by insurance broker after the accident had occurred did not confer coverage for club as an additional insured under company's liability policy -- If the certificate of insurance is construed as an agreement to pay a loss already incurred, it would be contrary to public policy -- Florida's insurance laws embody the fortuity and known loss principles, precluding coverage for losses that have already taken place

37 Fla. L. Weekly D2012a
97 So. 3d 905

Insurance -- Homeowners -- Summary judgment -- Summary judgment was inappropriate due to genuine issues of material fact that remain where insurer raised unrefuted affirmative defenses, including that damages were the result of a pre-existing condition and not the burst pipe that precipitated the insurance claim, and that the insured did not allow the insurer an adequate opportunity to inspect the premises or concealed material facts

37 Fla. L. Weekly D46a
76 So. 3d 394

Insurance -- Homeowners -- Neutral evaluation of sinkhole claim -- Order denying insured's motion to lift stay of proceedings in lawsuit pending completion of neutral evaluation because neutral evaluation did not occur within forty-five days from receipt of request by Department of Financial Services -- Insureds are not entitled to certiorari review of order because they have not demonstrated irreparable harm -- Stay provision of statute does not constitute an unconstitutional infringement on Florida Supreme Court's exclusive rulemaking authority in violation of separation of powers doctrine -- Petition for writ of mandamus declaring statute unconstitutional denied

37 Fla. L. Weekly D1657b
100 So. 3d 90

Insurance -- Homeowners -- Sinkhole claim -- Neutral evaluation -- Trial court departed from essential requirements of law by finding section 627.7074, Florida Statutes, unconstitutional

37 Fla. L. Weekly D1575b
100 So. 3d 85

Insurance -- Homeowners -- Sinkhole claims -- Section 627.7074, Florida Statutes, providing for neutral evaluation of sinkhole claims, is not unconstitutional -- Trial court departed from essential requirements of law by finding that statute violates separation of powers by encroaching upon judiciary's powers and in denying motion to stay court proceedings so that neutral evaluation could be conducted

37 Fla. L. Weekly D2568b
100 So. 3d 239

Insurance -- Homeowners -- Settlement agreement -- There was not a valid agreement to settle insured's breach of contract action against insurer where insurer's response to insured's offer to settle claim did not meet the conditions of insured's offer -- Where insured's offer to settle claim demanded that two checks be issued, one payable to insured and the mortgagee and the other to the insured, insured's attorneys, and the public adjuster, but insurer issued only one check, there was no meeting of the minds -- Trial court erred in granting insurer's motion to enforce settlement agreement

37 Fla. L. Weekly D2748a
103 So. 3d 934

Insurance -- Homeowners -- Windstorm -- Breach of contract claim filed against insurer after insurer tendered a check for an amount below estimate prepared by public adjuster, but also notified insured in writing that check did not necessarily constitute a full and final settlement, and that insured could file supplemental claims -- No error in entering directed verdict in favor of insurer on insured's breach of contract claim where policy unambiguously limited insurer's liability for replacement or repair costs to the lesser of the policy limits, replacement costs for like construction and use, or necessary amounts actually spent to repair or replace -- Argument that policy provision violates section 627.7011, Florida Statutes, was not preserved below

37 Fla. L. Weekly D1726b
93 So. 3d 479

Insurance -- Homeowners -- Liability -- Occurrence -- Where minors were killed in an automobile accident after having been served alcoholic beverages at the insureds' residence, there was a single occurrence for coverage purposes, the automobile accident -- Trial court erred in finding that each drink provided to each deceased minor constituted a separate occurrence

37 Fla. L. Weekly D1822a
93 So. 3d 528

Insurance -- Homeowners -- Hurricane damage to roof -- Error to grant summary judgment in favor of insurer based on insureds' failure to provide timely notice of loss, as required by policy, where genuine issue of material fact existed as to whether insurer was prejudiced by any failure of insureds to comply with notice provisions -- Although insurer submitted affidavit attesting that it could not determine that damage was caused by hurricane, insureds submitted two reports from individuals who concluded that hurricane had caused the damage

37 Fla. L. Weekly D1446a
95 So. 3d 285

Insurance -- Homeowners -- Hurricane damage -- Notice to insurer -- Trial court erred in determining that there was no genuine issue of material fact as to whether insurer was prejudiced by notice given by insureds of property damage caused by hurricane three years earlier -- Affidavits of engineer and public adjuster indicating that recent inspection of roof revealed classic pattern of wind damage which, within reasonable engineering probability, resulted from hurricane, that this pattern of damage would have been evident upon inspection by insurer, and that insurer's investigator had stated that there appeared to be storm damage to the insureds' roof were sufficient to create issues of material fact as to whether insureds could overcome presumption of prejudice arising from late notice provided to insurer -- Insurance investigator's statement to public adjuster was not inadmissible hearsay, but was admissible as a vicarious admission of insurer -- Moreover, statement was not offered to prove truth of matter asserted, but to prove that insurer had opportunity to observe roof damage caused by hurricane, despite late notice

37 Fla. L. Weekly D2339a
99 So. 3d 973

Insurance -- Homeowners -- Hurricane damage -- Notice to insurer -- No error in entering summary judgment in favor of insurer finding that insureds' filing of a claim more that three and a half years after the purported date of loss prejudiced insurer and relieved it of its duty to provide coverage -- Affidavits of contractor and engineer, which named the hurricane as the cause of damage to insureds' home and stated that this was no prejudice to insureds, were inconsistent with contractor's and engineer's prior deposition testimony, and therefore, insureds were not entitled to rely upon the affidavits in opposing summary judgment -- Without the affidavits, insureds failed to meet burden of proving lack of prejudice

37 Fla. L. Weekly D104b
83 So. 3d 863

Insurance -- Homeowners -- Civil procedure -- Discovery -- Home inspection reports -- Discovery order requiring insurer to produce all home inspection reports that inspecting firm generated for insurer throughout the country for three-year period preceding firm's inspection of insured's home, was overly broad and unduly burdensome -- Certiorari granted

37 Fla. L. Weekly D1534a
95 So. 3d 290

Insurance -- Homeowners -- Water damage -- Trial court erred in awarding insured amount in excess of one million dollars for water damage sustained following a water pipe rupture where policy endorsement limited coverage for water damage to $25,000

37 Fla. L. Weekly D1550c
90 So. 3d 374

Insurance -- Homeowners -- Supplemental coverage -- “Law and ordinance” coverage

37 Fla. L. Weekly D1402a
91 So. 3d 187

Insurance -- Homeowners -- Wind damage -- Examination under oath -- Under plain language of insurance contract between parties, which allowed insurer to require insured to submit to examination under oath “while not in the presence of any other ‘insured,' ” insured was not prohibited from having his public adjuster present during the insured's examination under oath

37 Fla. L. Weekly D2544a 127 So. 3d 536 Insurance -- Homeowners -- Coverage -- Home furnishings -- Damage and loss occurring during policy period -- Error to grant summary judgment in favor of insurer on ground that insureds could not prove damage and loss occurred during policy term where disputed issues of fact existed as to whether damage to property occurred during process of returning goods from moving and storage company's warehouse to the insureds, which occurred during policy period -- Affidavits and testimony of manager of moving company showed unbroken chain of custody of property in an undamaged condition until it was delivered to insureds' home within the policy period, and this was sufficient to create inference in favor of insureds -- Affidavits of moving company's employees complied with requirements of rule where affiants participated in the moving of the furnishings and based their affidavits on their personal knowledge -- Moreover, where affidavits used term “belief,” they did so in manner that actually expressed personal knowledge -- Remand for further proceedings

37 Fla. L. Weekly D571a
82 So. 3d 159

Insurance -- Homeowners -- Attorney's fees -- Prevailing party -- Error to deny insureds' motion for attorney's fees pursuant to section 627.428 where insurer's payments made after suit was filed were tantamount to confessions of judgment entitling the insureds to attorney's fees, and lawsuit served a legitimate purpose because it motivated the insurer to pay not only the amount of the appraisal award, but additional living expenses incurred as well

37 Fla. L. Weekly D2631c
104 So. 3d 1115

Insurance -- Homeowners -- Hurricane damage -- Appraisal -- Where insured requested mediation, but parties could not reach an agreement, insurer was entitled to pursue appraisal -- Trial court erred in granting partial summary judgment in favor of insured and in denying insurer's motion to compel appraisal -- Reliance on administrative rule which states that if an insured chooses not to participate in mediation or if the mediation is unsuccessful, the insured may choose to proceed under appraisal process set forth in insurance policy, by litigation, or by any other dispute resolution procedure available under Florida law, was in error, as rule improperly modifies and expands statute by providing the insured with an option to resolve disputed property insurance claims not envisioned by statute

37 Fla. L. Weekly D712b
84 So. 3d 390

Insurance -- Homeowners -- Mediation -- Appraisal -- Appeals -- Mediation requested by insured -- Second-tier certiorari review of order denying insurer's motion to compel appraisal finding that insurer had waived the appraisal process by participating in unsuccessful mediation -- Error for lower courts to rely upon administrative rule implementing section 627.7017, Florida Statutes, because rule improperly expanded scope of the statute by stating that insured could choose to proceed by litigation when parties are unsuccessful at mediation -- Statute only contemplates waiver of appraisal by insurer if insurer failed to notify claimant of its right to participate in mediation program, or if insurer requests meditation which is unsuccessful, neither of which was present in this case

37 Fla. L. Weekly D1022a
95 So. 3d 891

Insurance -- Homeowners -- Sinkhole claim -- Trial court erred in entering summary judgment finding that insurer breached contract by denying insured's claim where insurer initially sent a letter to insured declining coverage based on engineer's report and later decided unilaterally to pay the full policy limits during neutral evaluation -- Under circumstances, insurer's payment of policy limits did not constitute a confession of judgment

37 Fla. L. Weekly D2297b
100 So. 3d 720

Insurance -- Homeowners -- Appraisal -- Insurer did not waive right to appraisal by failing to provide timely notice of mediation under section 627.7015, Florida Statutes, where insured had prematurely commenced litigation against insurer -- Trial court erred in granting insured's motion to enjoin appraisal proceedings and lift stay of litigation

37 Fla. L. Weekly D273a
77 So. 3d 1278

Insurance -- Homeowners -- Coverage -- Building ordinance or law endorsement, which provided additional amount of insurance to cover cost of bringing structure into compliance with applicable ordinances and laws -- Error to grant summary judgment in favor of insurer in suit filed by insured seeking declaratory judgment as to whether the appraisal demanded by insurer was required with respect to claims made under endorsement and further alleging breach of contract by insurer based on denial of claim -- Genuine issues of material fact existed as to whether parties disputed the amount of loss, which would require appraisal, or denial of coverage

37 Fla. L. Weekly D511a
83 So. 3d 908

Insurance -- Homeowners -- Appraisal -- Trial court erred in granting insured's motion to compel appraisal without conducting an evidentiary hearing where there was an issue of fact as to whether insured had complied with post-loss obligations

37 Fla. L. Weekly D884b
84 So. 3d 1238

Insurance -- Homeowners -- Appraisal -- Summary judgment in favor of insurer, holding that insured breached insurance policy by terminating an appraisal umpire and filing suit before completing the appraisal process, thereby rendering the insurance policy ineffective and relieving insurer of its contractual obligations, was improper because genuine issues of material fact remained -- Where there was a breakdown in the appraisal process relating to umpire's slow pace, insured's appraiser's unilateral action to remove the umpire without having authority to do so was improper but may not necessarily constitute a refusal by the insured to comply with the presuit condition to complete the appraisal process -- The issue of whether this constituted a material breach of the policy is a question remaining for resolution by the fact finder

37 Fla. L. Weekly D946a
88 So. 3d 965

Insurance -- Homeowners -- Sinkhole damage -- Dismissal -- Fraud on the court -- Trial court properly dismissed complaint against insurer seeking additional funds for repair of damages on ground of fraud on the court where plaintiffs filed false affidavits regarding entry into contract with a contractor to repair damages, a condition precedent to filing suit -- Trial court abused discretion by dismissing complaint with prejudice on the basis of a procedural irregularity where defendant insurer did not establish that there was either no breach or no damages -- It would have been appropriate for court to either abate cause until condition precedent was fulfilled or dismiss complaint with leave to amend -- On remand, trial court to consider evidence on amount of fees and costs necessarily expended by defendant from filing of premature complaint through dismissal for efforts in establishing plaintiffs' fraud and to enter judgment for lodestar amount

37 Fla. L. Weekly D2091a
97 So. 3d 918

Insurance -- Contracts -- Judicial estoppel -- Action by school board against insurance company which provided excess medical insurance coverage for school board students and employees and insurance agency which administered plan under which insurance was provided, alleging breach of contract in that claim for medical bills of school board employee was denied -- Where insurance company denied claim on the basis that information regarding employee's pre-existing condition had not been disclosed to company during application process, and record reflects that insurance agency had received the information regarding the pre-existing condition prior to close of the application process, claims against insurance company and insurance agency were mutually exclusive because either agency failed to submit the information to insurance company or, alternatively, company wrongfully denied coverage -- School board was not judicially estopped from continuing action against insurance agency after claim against insurance company had been settled for less than the full amount of damages claimed -- In order for judicial estoppel to apply, school board must have “successfully maintained” an inconsistent position in action against insurance company, and inconsistent position cannot be viewed as having been successfully asserted against insurance company where claim was resolved by settlement for less than the full amount of damages sought

37 Fla. L. Weekly D1565a
92 So. 3d 871

Insurance -- Personal injury protection -- Fraud -- False or misleading statement relating to claim or charges -- PIP insurer's action against provider seeking declaration that provider's pattern of misleading practices in its billings relieved insurer and the insured persons from liability for the charges -- Trial court properly held that neither insurer nor its insureds owed any PIP and medical payment benefits for any of the charges encompassed within provider's claims with respect to the insureds -- Statute relieves both insurer and insured from paying claims of “any person who knowingly submits a false or misleading statement relating to the claim or charges” -- Plain language of statute supports invalidation of not only specific individual charges that were the subject of false and misleading billing statements, but also the entire “claim,” the collective of all charges

37 Fla. L. Weekly D2772a
106 So. 3d 1

Insurance -- Florida Insurance Guaranty Association -- Covered claims -- Surplus lines policy -- Where homeowners liability policy was initially issued by a foreign surplus lines carrier which was not subject to FIGA Act, but the surplus lines carrier was acquired and merged into a Florida licensed company which was subject to FIGA Act, FIGA was liable for a claim against insured based on a personal injury that occurred on property after the acquisition and while the Florida licensed company was in viable existence

37 Fla. L. Weekly D707a
85 So. 3d 1143

Insurance -- Homeowners -- Attorney's fees -- Florida Insurance Guaranty Association -- Statute of limitations -- Where, shortly before statute of limitations expired, FIGA informed insured it would not be able to investigate and settle her claim before expiration date and advised her to seek legal counsel immediately, which advice insured followed resulting ultimately in the parties' proceeding through the appraisal process and trial court's award for hurricane damage, trial court properly denied insured's motion for attorney's fees which claimed FIGA had denied her claim by affirmative action -- In informing her it would not be able to investigate or settle claim before statute of limitations expired, FIGA never denied insured's claim -- Even if so informing insured constituted denial of claim, insured would still not be entitled to fees because such denial would be the result of delay, and the statute provides for attorney's fees when FIGA denies a claim “by affirmative action, other than delay”

37 Fla. L. Weekly D1614b
91 So. 3d 910

Insurance -- Insolvent insurers -- Florida Insurance Guaranty Association -- Refusal to reissue settlement check which had been issued by FIGA's predecessor pursuant to settlement agreement, but which had become stale -- Where it was undisputed that predecessor had entered into valid settlement agreement whereby it agreed to pay $125,000 to estate of child who was struck and killed by cab operated by insured, the estate's claim was a covered claim, and claim was within coverage and not in excess of policy limits, it was error to enter summary judgment in favor of FIGA in estate's action to require FIGA to honor or reissue settlement check -- Fact that FIGA's predecessor had also tendered separate check to child's parents to settle their individual claims, without requiring proof of physical injury, did not serve to defeat or offset the legitimate claim of the estate that remained unpaid

37 Fla. L. Weekly D1678b

NOT FINAL VERSION OF OPINION
Subsequent Changes at 37 Fla. L. Weekly D2772a

Insurance -- Florida Insurance Guaranty Association -- Covered claims -- Surplus lines policy -- Where policy was issued by surplus lines carrier which subsequently merged with a Florida licensed company, but the surplus lines policy was not renewed after the merger, FIGA had no duty to defend or indemnify the insured in a personal injury action -- Surplus lines policies are expressly outside the scope of FIGA provisions, and a claim made upon such a policy cannot be covered under FIGA -- Surplus lines carrier's merger with Florida licensed company and its corresponding change in status from an unauthorized insurer to a member insurer did not change the nature of the policy -- The nature of the policy rather than the status of the insurer is determinative of FIGA's duty to defend and indemnify

37 Fla. L. Weekly D1614b
91 So. 3d 910

Insurance -- Insolvent insurers -- Florida Insurance Guaranty Association -- Refusal to reissue settlement check which had been issued by FIGA's predecessor pursuant to settlement agreement, but which had become stale -- Where it was undisputed that predecessor had entered into valid settlement agreement whereby it agreed to pay $125,000 to estate of child who was struck and killed by cab operated by insured, the estate's claim was a covered claim, and claim was within coverage and not in excess of policy limits, it was error to enter summary judgment in favor of FIGA in estate's action to require FIGA to honor or reissue settlement check -- Fact that FIGA's predecessor had also tendered separate check to child's parents to settle their individual claims, without requiring proof of physical injury, did not serve to defeat or offset the legitimate claim of the estate that remained unpaid

37 Fla. L. Weekly S34a
80 So. 3d 313

Insurance -- Attorney's fees -- Florida Insurance Guaranty Association -- Action to recover attorney's fees and costs from FIGA pursuant to section 627.428(1), Florida Statutes (2008) -- Plain language of section 631.54(3), Florida Statutes (2008), indicates that in order for FIGA to be obligated to pay claims they must originate from an insurance policy, and must be within the coverage of, or be included within risks taken on and losses protected against in, an insurance policy -- Where insured's policy does not expressly provide coverage for a section 627.428(1) award, it is not a covered claim under section 631.54(3) that FIGA must pay -- Argument that FIGA should be obligated to pay because fee award is impliedly covered by policy where law subjects every Florida insurance policy to section 627.428(1), is rejected -- Fact that section 627.428(1) is implicit part of policy does not mean claim against insurer for fees and costs is part of policy's “coverage” as required by section 631.54(3)

37 Fla. L. Weekly D1140c
86 So. 3d 1274

Insurance -- Uninsured motorist -- Coverage -- Stacking -- Action against UM insurer by insured policyholder who was injured in single-car accident while riding as passenger in a vehicle which was owned by her father, also a policyholder, and driven by third party/permissive user and who claimed medical costs in excess of amount of combined payments from liability portion of policy and driver's liability insurance -- Exclusions -- Trial court properly found that policy provision excluding from definition of uninsured motor vehicle any vehicle available for regular use of any family member conflicted with mandatory UM requirements of section 627.727(3) and was therefore invalid basis for denying coverage when nonfamily member was a permissive user of insured family vehicle and permissive user's operation of vehicle caused injury to family member who was a Class I insured -- Trial court properly ruled that non-stacking election signed by passenger's mother, who purchased the policy at issue, did not apply to plaintiff because insurer did not obtain knowing acceptance of any such limitation by plaintiff -- Waiver of stackable coverage must be personally made by insured who claims stacked benefits -- Trial court properly granted summary judgment on coverage and stacking issues -- However, trial court erred in awarding the $300,000 claimed by plaintiff where insurer asserted other defenses which might impact amount of benefits due under the policy -- With regard to coverage issue, question certified whether the family vehicle exclusion for uninsured motorist benefits conflicts with section 627.727(3) when the exclusion is applied to a class I insured who seeks such benefits in connection with a single-vehicle accident where the vehicle was being driven by a class II permissive user, and where the driver is underinsured and liability payments from the driver's insurer, when combined with liability payments under the class I insured's policy, do not fully cover the class I insured's medical costs -- With respect to stacking issue, question certified whether uninsured motorist benefits are stackable under section 627.727(9) where such benefits are claimed by an insured policyholder, and where a non-stacking election was made by the purchaser of the policy, but where the insured claimant did not elect non-stacking benefits

37 Fla. L. Weekly D164a
77 So. 3d 254

Insurance -- Automobile -- Homeowners -- Circuit court properly found that homeowner's insurer, not issuer of automobile policy, was liable for indemnity and defense of claims against an insured who, while passenger in car driven by girlfriend and owned by girlfriend's parents, repeatedly reached over and grabbed steering wheel without altering direction of vehicle -- Accident which occurred when driver swerved as she was trying to push insured away was not covered by automobile policy -- Passenger's grabbing of steering wheel to annoy driver was not “use of . . . a non-owned auto” within meaning of automobile policy; and damages claimed did not fall within provision of homeowners policy excluding claims for bodily injury or property damage arising out of ownership, maintenance, or use of motor vehicle -- Further, because vehicle was non-owned auto within meaning of automobile policy, coverage was available only if insured was “driving” “with the permission, or reasonably believed to be with the permission of the owner,” and it was not reasonable to believe that insured's horseplay was in any way sanctioned by owners of vehicle

37 Fla. L. Weekly D1604b 98 So. 3d 74 Insurance -- All risk business owner's policy -- Coverage -- Collapse -- Ambiguity -- Appeal of summary judgment entered in favor of insurer in declaratory judgment action after trial court concluded that damaged clubhouse, in which the ceiling had dropped twelve inches due to rain water and overweight air conditioning units, was not in a state of “collapse” as that term was defined by the insurance policy -- Policy defining “collapse” as an abrupt falling down or caving in of a building, or any part of a building, with the result that the building cannot be occupied for its intended purpose, and covering collapse caused by the weight of people or property and rain water -- Argument that policy does not cover loss because the roof had not “fallen” and the building was still standing, is rejected -- Policy is not written in terms of how far a building must fall down or to what degree a building must cave in, and policy clearly does not require total destruction for “collapse” to occur -- When the trusses failed, the roof above the trusses and the drop ceiling below the trusses deflected downward twelve inches meeting not only the definition of “falling down,” but the definition of “caving in” as well -- In addition, all building parts fell inward suddenly and record establishes that building is structurally unsafe and cannot be occupied for its intended purpose -- Having found that damage to clubhouse meets definition of collapse under certain paragraph of policy, if appellate court were to accept insurer's argument that other paragraphs under the covered loss section of policy should be interpreted to avoid coverage, then the policy would be ambiguous and any ambiguity in policy must be resolved in favor of coverage -- Exclusions -- Exclusions which insurer cites as excluding coverage of damage to clubhouse directly contradict and conflict with the collapse coverage provided in the covered loss section, and is another ambiguity in the policy

37 Fla. L. Weekly D2540a
123 So. 3d 583

Insurance -- Liability -- Exclusions -- Bodily injury caused by transmission of communicable disease or virus -- Trial court correctly concluded that insurer did not owe duty of defense or indemnification to insured in action in which a plaintiff alleged she “was exposed to a high risk HSV virus and contracted the herpes virus” from insured where, although insurer agreed to defend and indemnify insured for claims brought against him “for damages because of bodily injury,” policy plainly excluded from the definition of “bodily injury” the transmission of a communicable disease to another by an insured -- Fact that policy did not use specific phrase “arising out of” to exclude coverage for these damages does not change result or support insured's argument that policy did not exclude coverage for resulting physical injuries caused by disease

37 Fla. L. Weekly D2688a
103 So. 3d 200

Insurance -- Uninsured motorist -- Discovery -- Non-parties -- Nature and extent of relationship between plaintiff's counsel's law firm and plaintiff's treating physician -- Where there is a preliminary showing that plaintiff was referred to doctor by lawyer, whether directly or through third party, or vice versa, defendant is entitled to discover information regarding the extent of the relationship between the law firm and the doctor -- Order compelling law firm to produce discovery pertaining to its relationship with treating physician was premature where record did not establish that physician and law firm had a financially beneficial relationship

37 Fla. L. Weekly D2737a
101 So. 3d 412

Insurance -- Property -- Roof damage caused by hurricane -- Discovery -- Work product -- Attorney-client privilege -- Where coverage issue was in dispute and had not been resolved, trial court departed from essential requirements of law, causing irreparable injury, by allowing discovery of activity log notes, emails, and photographs contained in insurer's claim file

37 Fla. L. Weekly D1701b

NOT FINAL VERSION OF OPINION
Subsequent Changes at 37 Fla. L. Weekly D2737a

Insurance -- Property -- Roof damage caused by hurricane -- Discovery -- Work product -- Attorney-client privilege -- Where coverage issue was in dispute and had not been resolved, trial court departed from essential requirements of law, causing irreparable injury, by allowing discovery of activity log notes, emails, and photographs contained in insurer's claim file

37 Fla. L. Weekly D2205a
114 So. 3d 190

Insurance -- Windstorm policy on residential property -- Policy covering residential property owned by husband and wife in which wife was the only named insured but which provided that the terms “you” and “your” referred to both the “named insured” and “the spouse if a resident of the same household” -- Where insurer filed declaratory judgment action against husband and wife regarding its coverage obligations, but wife had assigned all her rights and interests in property, including any insurance claims, to husband, trial court did not abuse discretion in dismissing wife as a party -- Wife's assignment of insurance claim to husband was valid, and insurer was not entitled to declaratory relief against her because she had no actual, present, adverse, and antagonistic interest in the subject matter of the complaint, which sought to define insurer's obligations with respect to the policy and claim for benefits -- Trial court erred in entering summary judgment for husband on issue of coverage where there was genuine issue of material fact as to whether husband was a resident spouse on date of loss, and because assignment did not relieve wife of her post-loss obligations as a named insured under policy -- Although wife assigned her right to benefits under policy, she did not assign to husband her obligations under policy -- Wife's refusal to submit to a requested examination under oath precludes recovery under policy, because the EUO stands as a condition precedent to coverage

37 Fla. L. Weekly D1051a
86 So. 3d 1198

Insurance -- Property -- Declaration of benefits -- Breach of contract -- Appeals -- Certiorari -- Petition as to order directing petitioner to create privilege log and provide documents under seal for in camera inspection is denied because it is premature -- Order compelling petitioner to produce its entire claim file is quashed where order departs from the essential requirements of law and will cause irreparable harm

37 Fla. L. Weekly D36a
76 So. 3d 1089

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 -- The hypothetical risk of inconsistent outcomes, based upon a case involving other defendants, does not support depriving insurer of the benefits of a valid forum selection clause -- Insured's argument that by litigating in both Florida and Georgia it would be forced to split its causes of action is rejected -- Validity of entire contract must be submitted to the forum chosen by the parties in the contract

37 Fla. L. Weekly D1763b
93 So. 3d 501

Insurance -- Commercial property -- Discovery -- Action against insurer alleging claims for breach of contract, declaratory judgment, and breach of implied covenant of good faith and fair dealing -- Trial court departed from essential requirements of law in overruling insurer's objections to discovery of its business practices and policies where there has been no determination of coverage and the extent of loss -- First-party claims for breach of implied warranty of good faith and fair dealing are actually statutory bad faith claims

37 Fla. L. Weekly D1884a
98 So. 3d 1180

Insurance -- Condominiums -- Assignment of claims -- Neither Declaration of Condominium nor Articles of Incorporation prohibited Association from assigning potential insurance claims for hurricane damage to former unit owners -- Trial court erred in dismissing former unit owners' claims against insurer -- Trial court did not abuse discretion in certifying unit owners as a class

37 Fla. L. Weekly D1817a
96 So. 3d 964

Insurance -- Citizens Property Insurance Corporation -- Venue -- Trial court properly transferred venue of action against Citizens Property Insurance Corporation from Miami-Dade County to Leon County based upon home venue privilege -- Citizens is a state entity protected by home venue privilege -- Citizens did not waive home venue privilege by litigating other cases outside its home venue

37 Fla. L. Weekly D1965a
94 So. 3d 698

Insurance -- Property -- Hurricane damage -- Bad faith -- Trial court properly dismissed bad faith complaint where insured's breach of contract suit against insurer was still pending and there had not yet been a final determination of liability on part of insurer

37 Fla. L. Weekly D757a
85 So. 3d 1156

Insurance -- Uninsured motorist -- First-party bad faith action -- Conflict of laws -- Action by Minnesota residents who were involved in automobile accident in Florida against Wisconsin insurer which issued policy in Minnesota, alleging that insurer failed to settle uninsured motorist claim in good faith -- Proper choice-of-law rule applicable to claim is lex loci contractus, or place where the contract was executed -- Trial court properly found that action was governed by Minnesota law -- Even if the law of the place of performance applies because the refusal to settle concerns a performance question, insurer's performance was due in Minnesota, not Florida -- Further, Minnesota's interest is more significant than that of Florida

37 Fla. L. Weekly D2139b
100 So. 3d 1155

Insurance -- Property -- Hurricane damage -- Bad faith -- Appraisal award pursuant to an insurance contract constitutes a “favorable resolution” of an underlying breach of contract dispute for purposes of filing a bad faith action -- Summary judgment in favor of insurer in underlying breach of contract action, based on insurer's compliance with terms of policy after resolution of appraisal process, did not preclude insured's ability to pursue bad faith claim

37 Fla. L. Weekly S691a
104 So. 3d 344

Insurance -- Citizens Property Insurance Corporation -- Bad faith -- Sovereign immunity -- Appeals -- Appellate review of a claim of immunity by Citizens Property Insurance Corporation, a state-created entity, from a bad faith cause of action arising out of the handling of a property damage claim, is not subject to appellate review before entry of final judgment -- Writ of prohibition is not available to review claim of immunity where state has partially waived sovereign immunity -- Writ of certiorari is not available to review merits of claim of immunity where there is no showing of a departure from the essential requirements of law and no showing of irreparable harm -- Continuation of defending lawsuit does not constitute irreparable harm -- Court declines to amend rules of appellate procedure to create new exception to allow for review of a non-final order denying a motion to dismiss based on a claim of immunity asserted by a state-created entity -- Circuit court's denial of Citizens Property Insurance Corporation's motion to dismiss bad faith claim on basis of sovereign immunity is not reviewable

37 Fla. L. Weekly D1701a
94 So. 3d 646

Insurance -- Bad faith -- Insured's action against insurer -- Circuit court improperly denied insurer's motion to dismiss count in which insured asserted claims for breach of common law implied covenant of good faith and fair dealing -- Trial court did not have benefit of supreme court decision holding that there is no common law first-party bad-faith action in Florida and concluding that “such first-party claims are actually statutory bad faith claims that must be brought under section 624.155”

37 Fla. L. Weekly D2452c
109 So. 3d 226

Insurance -- Automobile liability -- Leased vehicles -- Trial court erred in entering summary judgment finding that lessee of truck and its employee were not named insureds under policy issued to lessor of truck where policy designated as named insureds the lessor and “anyone else while using with your permission a covered ‘auto' you own, hire or borrow” -- Although lessee obtained liability coverage as required by lease agreement, and lease agreement provided that such insurance shall be primary, lessor did not effectively shift responsibility of carrying primary coverage to lessee where lease provision shifting responsibility was not in at least 10-point type as required by section 627.7263(1), Florida Statutes (2004) -- Federal Graves Amendment, which precludes liability being established against the owner of a rental vehicle on the basis of the common law principle of vicarious liability, does not preempt statute where lessor had settled claim against it, and claims at issue are against lessee and its employee

37 Fla. L. Weekly D1388a
126 So. 3d 1136

NOT FINAL VERSION OF OPINION
Subsequent Changes at 37 Fla. L. Weekly D2774a

Insurance -- Automobile liability -- Bad faith failure to settle -- Common law bad faith action against insurer by plaintiff who was assignee of insured and personal representative of estate of individual who died as result of injuries sustained in accident in which insured rear-ended decedent's vehicle -- Undisputed facts demonstrated no basis from which reasonable jury could conclude that insurer acted solely in its own interest, but instead showed that insurer acted properly and promptly in continually contacting plaintiff in order to discover name of attorney retained by her so that insurer could then contact the attorney -- Insurer was not required to tender check for its policy limits to plaintiff, despite fact that insurer knew plaintiff had retained an attorney -- Trial court properly granted summary judgment on behalf of insurer based on unrefuted evidence that insurer acted in good faith in attempting to settle case

37 Fla. L. Weekly D2774a 107 So. 3d 433 Insurance -- Automobile liability -- Bad faith failure to settle -- Common law bad faith action against insurer by plaintiff who was assignee of insured and personal representative of estate of individual who lapsed into coma and ultimately died as result of catastrophic injuries sustained in accident in which insured, who was traveling at a high rate of speed with a blood alcohol level of .19, rear-ended decedent's vehicle -- Trial court erred in granting summary judgment in favor of insurer based on its assumption that there could be no bad faith because decedent was in a coma and therefore there was no one to whom to make an offer -- Disputed issues of fact and issues of credibility remain which could not be resolved by summary judgment

37 Fla. L. Weekly D1115a 86 So. 3d 1259 Insurance -- Automobile liability -- Declaratory action by insurer seeking declaration that policy issued to insured corporation was void ab initio due to a fraudulent, material misrepresentation by insured when it failed to include on driver's list submitted with application the name of the driver who was involved in accident -- Trial court erred in entering summary judgment for defendant on ground that the term “driver” was ambiguous because the term was not defined in application -- Issue of ambiguity involves material questions of fact as to whether driver of vehicle was an employee of insured corporation, how often driver drove for insured when application was completed, what effects prior dealings between parties had on insured's understanding of terms in application, and whether insurer's failure to use its Non-Specified Operators form impacted insured's ability to properly complete application

37 Fla. L. Weekly D2789a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 38 Fla. L. Weekly D749a

Insurance -- Automobile dealership inventory -- Coverage -- Titled vehicle held for sale at location scheduled on Declarations -- Accident occurring when owner of dealership was en route to have car inspected by another dealer with a planned pick-up by buyer following the inspection -- Appeals -- Effective review of final judgment entered in favor of insurer is not possible where grounds upon which court found for insurer do not appear and it is possible that trial court may have found for the insurer based upon erroneous conclusion that the vehicle was not a “titled” vehicle -- Remand for entry of amended final judgment

37 Fla. L. Weekly D201a
79 So. 3d 843

Insurance -- Automobile -- Attorney's fees -- Insured prevailing in action against insurer -- Nine-month delay in payment of benefits due under policy was not justified by insurer's suspicions that accident was staged -- Error to deny attorney's fees to insured, who was forced to secure counsel both to respond to initial denial of coverage and to subsequently litigate over insurer's delay in payment -- Insurer entitled to fees for reasonable and necessary hours spent in pursuing those claims -- Counsel may also recover reasonable fees incurred in establishing entitlement to fees

37 Fla. L. Weekly D344a
80 So. 3d 394

Insurance -- Automobile -- Coverage -- Automobile accident occurring during interim between lapse of coverage under expired policy and reinstatement of policy -- Trial court erred in ruling that insurer's unconditional acceptance of premium waived its right to claim that there had been a lapse in coverage -- Where a policy expires without the insured making a renewal payment, and a loss occurs after the expiration of the policy period, the insurer may subsequently accept premium payments and reinstate the policy prospectively without waiving the right to deny coverage for the loss -- Estoppel -- Genuine issue of material fact remains as to whether a potentially misleading bill that insurer sent to named insured, which incorrectly listed the renewal policy period, supports affirmative defense of estoppel -- Civil procedure -- Summary judgment -- Trial court erred in rejecting, as self-serving, affidavit of insurer's underwriting specialist which simply asserted that insurer mailed renewal bills and reminders, insured failed to timely pay renewal premium, and when insured made premium payment following accident, insurer reinstated policy commencing the next day

37 Fla. L. Weekly D571a
82 So. 3d 159

Insurance -- Homeowners -- Attorney's fees -- Prevailing party -- Error to deny insureds' motion for attorney's fees pursuant to section 627.428 where insurer's payments made after suit was filed were tantamount to confessions of judgment entitling the insureds to attorney's fees, and lawsuit served a legitimate purpose because it motivated the insurer to pay not only the amount of the appraisal award, but additional living expenses incurred as well

37 Fla. L. Weekly D201a
79 So. 3d 843

Insurance -- Automobile -- Attorney's fees -- Insured prevailing in action against insurer -- Nine-month delay in payment of benefits due under policy was not justified by insurer's suspicions that accident was staged -- Error to deny attorney's fees to insured, who was forced to secure counsel both to respond to initial denial of coverage and to subsequently litigate over insurer's delay in payment -- Insurer entitled to fees for reasonable and necessary hours spent in pursuing those claims -- Counsel may also recover reasonable fees incurred in establishing entitlement to fees

37 Fla. L. Weekly S34a 80 So. 3d 313 Insurance -- Attorney's fees -- Florida Insurance Guaranty Association -- Action to recover attorney's fees and costs from FIGA pursuant to section 627.428(1), Florida Statutes (2008) -- Plain language of section 631.54(3), Florida Statutes (2008), indicates that in order for FIGA to be obligated to pay claims they must originate from an insurance policy, and must be within the coverage of, or be included within risks taken on and losses protected against in, an insurance policy -- Where insured's policy does not expressly provide coverage for a section 627.428(1) award, it is not a covered claim under section 631.54(3) that FIGA must pay -- Argument that FIGA should be obligated to pay because fee award is impliedly covered by policy where law subjects every Florida insurance policy to section 627.428(1), is rejected -- Fact that section 627.428(1) is implicit part of policy does not mean claim against insurer for fees and costs is part of policy's “coverage” as required by section 631.54(3)

37 Fla. L. Weekly D707a
85 So. 3d 1143

Insurance -- Homeowners -- Attorney's fees -- Florida Insurance Guaranty Association -- Statute of limitations -- Where, shortly before statute of limitations expired, FIGA informed insured it would not be able to investigate and settle her claim before expiration date and advised her to seek legal counsel immediately, which advice insured followed resulting ultimately in the parties' proceeding through the appraisal process and trial court's award for hurricane damage, trial court properly denied insured's motion for attorney's fees which claimed FIGA had denied her claim by affirmative action -- In informing her it would not be able to investigate or settle claim before statute of limitations expired, FIGA never denied insured's claim -- Even if so informing insured constituted denial of claim, insured would still not be entitled to fees because such denial would be the result of delay, and the statute provides for attorney's fees when FIGA denies a claim “by affirmative action, other than delay”

37 Fla. L. Weekly D1107a
93 So. 3d 345

Insurance -- Personal injury protection -- Attorney's fees -- Contingency fee multiplier -- In awarding attorney's fees to medical care provider in its action against insurer, trial court abused discretion in applying contingency fee multiplier where there was no competent, substantial evidence that market required a multiplier for provider to obtain competent counsel

37 Fla. L. Weekly D285a
79 So. 3d 868

Attorney's fees -- Appellate -- Insurance -- Dispute between provider and insurer -- Pursuant to section 627.428(1), provider is entitled to appellate attorney's fees contingent upon it prevailing in underlying action on remand -- Order of circuit court, acting in its appellate capacity, denying motion for appellate fees quashed

37 Fla. L. Weekly D421a
89 So. 3d 261

Insurance -- Appellate attorney's fees -- Award of appellate attorney's fees to insured pursuant to section 627.428(1), Florida Statutes, should have been conditioned upon insured ultimately prevailing in underlying proceeding

37 Fla. L. Weekly D1884a
98 So. 3d 1180

Insurance -- Condominiums -- Assignment of claims -- Neither Declaration of Condominium nor Articles of Incorporation prohibited Association from assigning potential insurance claims for hurricane damage to former unit owners -- Trial court erred in dismissing former unit owners' claims against insurer -- Trial court did not abuse discretion in certifying unit owners as a class

37 Fla. L. Weekly D2297b
100 So. 3d 720

Insurance -- Homeowners -- Appraisal -- Insurer did not waive right to appraisal by failing to provide timely notice of mediation under section 627.7015, Florida Statutes, where insured had prematurely commenced litigation against insurer -- Trial court erred in granting insured's motion to enjoin appraisal proceedings and lift stay of litigation

37 Fla. L. Weekly D273a
77 So. 3d 1278

Insurance -- Homeowners -- Coverage -- Building ordinance or law endorsement, which provided additional amount of insurance to cover cost of bringing structure into compliance with applicable ordinances and laws -- Error to grant summary judgment in favor of insurer in suit filed by insured seeking declaratory judgment as to whether the appraisal demanded by insurer was required with respect to claims made under endorsement and further alleging breach of contract by insurer based on denial of claim -- Genuine issues of material fact existed as to whether parties disputed the amount of loss, which would require appraisal, or denial of coverage

37 Fla. L. Weekly D2631c
104 So. 3d 1115

Insurance -- Homeowners -- Hurricane damage -- Appraisal -- Where insured requested mediation, but parties could not reach an agreement, insurer was entitled to pursue appraisal -- Trial court erred in granting partial summary judgment in favor of insured and in denying insurer's motion to compel appraisal -- Reliance on administrative rule which states that if an insured chooses not to participate in mediation or if the mediation is unsuccessful, the insured may choose to proceed under appraisal process set forth in insurance policy, by litigation, or by any other dispute resolution procedure available under Florida law, was in error, as rule improperly modifies and expands statute by providing the insured with an option to resolve disputed property insurance claims not envisioned by statute

37 Fla. L. Weekly D712b
84 So. 3d 390

Insurance -- Homeowners -- Mediation -- Appraisal -- Appeals -- Mediation requested by insured -- Second-tier certiorari review of order denying insurer's motion to compel appraisal finding that insurer had waived the appraisal process by participating in unsuccessful mediation -- Error for lower courts to rely upon administrative rule implementing section 627.7017, Florida Statutes, because rule improperly expanded scope of the statute by stating that insured could choose to proceed by litigation when parties are unsuccessful at mediation -- Statute only contemplates waiver of appraisal by insurer if insurer failed to notify claimant of its right to participate in mediation program, or if insurer requests meditation which is unsuccessful, neither of which was present in this case

37 Fla. L. Weekly D2205a 114 So. 3d 190 Insurance -- Windstorm policy on residential property -- Policy covering residential property owned by husband and wife in which wife was the only named insured but which provided that the terms “you” and “your” referred to both the “named insured” and “the spouse if a resident of the same household” -- Where insurer filed declaratory judgment action against husband and wife regarding its coverage obligations, but wife had assigned all her rights and interests in property, including any insurance claims, to husband, trial court did not abuse discretion in dismissing wife as a party -- Wife's assignment of insurance claim to husband was valid, and insurer was not entitled to declaratory relief against her because she had no actual, present, adverse, and antagonistic interest in the subject matter of the complaint, which sought to define insurer's obligations with respect to the policy and claim for benefits -- Trial court erred in entering summary judgment for husband on issue of coverage where there was genuine issue of material fact as to whether husband was a resident spouse on date of loss, and because assignment did not relieve wife of her post-loss obligations as a named insured under policy -- Although wife assigned her right to benefits under policy, she did not assign to husband her obligations under policy -- Wife's refusal to submit to a requested examination under oath precludes recovery under policy, because the EUO stands as a condition precedent to coverage

37 Fla. L. Weekly D511a
83 So. 3d 908

Insurance -- Homeowners -- Appraisal -- Trial court erred in granting insured's motion to compel appraisal without conducting an evidentiary hearing where there was an issue of fact as to whether insured had complied with post-loss obligations

37 Fla. L. Weekly D1115a
86 So. 3d 1259

Insurance -- Automobile liability -- Declaratory action by insurer seeking declaration that policy issued to insured corporation was void ab initio due to a fraudulent, material misrepresentation by insured when it failed to include on driver's list submitted with application the name of the driver who was involved in accident -- Trial court erred in entering summary judgment for defendant on ground that the term “driver” was ambiguous because the term was not defined in application -- Issue of ambiguity involves material questions of fact as to whether driver of vehicle was an employee of insured corporation, how often driver drove for insured when application was completed, what effects prior dealings between parties had on insured's understanding of terms in application, and whether insurer's failure to use its Non-Specified Operators form impacted insured's ability to properly complete application

37 Fla. L. Weekly D884b
84 So. 3d 1238

Insurance -- Homeowners -- Appraisal -- Summary judgment in favor of insurer, holding that insured breached insurance policy by terminating an appraisal umpire and filing suit before completing the appraisal process, thereby rendering the insurance policy ineffective and relieving insurer of its contractual obligations, was improper because genuine issues of material fact remained -- Where there was a breakdown in the appraisal process relating to umpire's slow pace, insured's appraiser's unilateral action to remove the umpire without having authority to do so was improper but may not necessarily constitute a refusal by the insured to comply with the presuit condition to complete the appraisal process -- The issue of whether this constituted a material breach of the policy is a question remaining for resolution by the fact finder

37 Fla. L. Weekly S395a
94 So. 3d 541

NOT FINAL VERSION OF OPINION
Subsequent Changes at 37 Fla. L. Weekly S407a

Insurance -- Property -- Hurricane damage -- Florida law does not recognize a claim for breach of the implied warranty of good faith and fair dealing by an insured against its insurer based on the insurer's failure to investigate and assess the insured's claim within a reasonable period of time -- Such first-party claims are actually statutory bad-faith claims that must be brought under section 624.155, Florida Statutes -- An insured cannot bring a claim against an insurer for failure to comply with the language and type-size requirements of the hurricane deductible notice requirements established by section 627.701(4)(a), Florida Statutes -- Insurer's failure to comply with the language and type-size requirements of section 627.701(4)(a) does not render a noncompliant hurricane deductible provision in an insurance policy void and unenforceable -- Language in a policy mandating payment of benefits upon “entry of final judgment” does not waive the insurer's procedural right to post a bond and stay execution of a money judgment pending resolution of appeal

37 Fla. L. Weekly D1051a
86 So. 3d 1198

Insurance -- Property -- Declaration of benefits -- Breach of contract -- Appeals -- Certiorari -- Petition as to order directing petitioner to create privilege log and provide documents under seal for in camera inspection is denied because it is premature -- Order compelling petitioner to produce its entire claim file is quashed where order departs from the essential requirements of law and will cause irreparable harm

37 Fla. L. Weekly S691a
104 So. 3d 344

Insurance -- Citizens Property Insurance Corporation -- Bad faith -- Sovereign immunity -- Appeals -- Appellate review of a claim of immunity by Citizens Property Insurance Corporation, a state-created entity, from a bad faith cause of action arising out of the handling of a property damage claim, is not subject to appellate review before entry of final judgment -- Writ of prohibition is not available to review claim of immunity where state has partially waived sovereign immunity -- Writ of certiorari is not available to review merits of claim of immunity where there is no showing of a departure from the essential requirements of law and no showing of irreparable harm -- Continuation of defending lawsuit does not constitute irreparable harm -- Court declines to amend rules of appellate procedure to create new exception to allow for review of a non-final order denying a motion to dismiss based on a claim of immunity asserted by a state-created entity -- Circuit court's denial of Citizens Property Insurance Corporation's motion to dismiss bad faith claim on basis of sovereign immunity is not reviewable

37 Fla. L. Weekly D475a 80 So. 3d 429 Insurance -- Aircraft -- Passenger liability insurance -- Personal accident reinsurance policy providing coverage for death or injury to passengers in specified amount “not exceeding 10x annual salary” -- Ambiguities -- Action against reinsurer which denied reimbursement for claims arising out of death of passengers in aircraft crash on ground that reinsurance policy covered only employed passengers -- Trial court correctly concluded that contract was ambiguous as to whether policy provided coverage only to employed passengers -- Because of unique and highly specialized nature of insurance provided, and because of factual dispute as to which party chose the language of the policy, case is one in which extrinsic evidence should be used to help resolve ambiguity in policy -- Remand to allow parties to submit extrinsic evidence on what, if any, coverage is provided to unemployed passengers -- Court notes that factual dispute exists regarding role of broker and whether his knowledge and understanding of policy can be imputed to plaintiff as its agent

37 Fla. L. Weekly D2488a
99 So. 3d 625

Insurance -- Uninsured motorist -- Attorney's fees -- Contingent award -- Appeals -- Certiorari -- Order awarding contingent attorney's fees in action against insurer for uninsured motorist benefits, although a departure from essential requirements of current law, will not cause any irreparable damage to insurer -- Order is essentially preemptive determination of issues that may or may not arise in subsequent action for bad faith, and the relevance of the order in a subsequent lawsuit is a matter for resolution by judge in that proceeding

37 Fla. L. Weekly D1604b
98 So. 3d 74

Insurance -- All risk business owner's policy -- Coverage -- Collapse -- Ambiguity -- Appeal of summary judgment entered in favor of insurer in declaratory judgment action after trial court concluded that damaged clubhouse, in which the ceiling had dropped twelve inches due to rain water and overweight air conditioning units, was not in a state of “collapse” as that term was defined by the insurance policy -- Policy defining “collapse” as an abrupt falling down or caving in of a building, or any part of a building, with the result that the building cannot be occupied for its intended purpose, and covering collapse caused by the weight of people or property and rain water -- Argument that policy does not cover loss because the roof had not “fallen” and the building was still standing, is rejected -- Policy is not written in terms of how far a building must fall down or to what degree a building must cave in, and policy clearly does not require total destruction for “collapse” to occur -- When the trusses failed, the roof above the trusses and the drop ceiling below the trusses deflected downward twelve inches meeting not only the definition of “falling down,” but the definition of “caving in” as well -- In addition, all building parts fell inward suddenly and record establishes that building is structurally unsafe and cannot be occupied for its intended purpose -- Having found that damage to clubhouse meets definition of collapse under certain paragraph of policy, if appellate court were to accept insurer's argument that other paragraphs under the covered loss section of policy should be interpreted to avoid coverage, then the policy would be ambiguous and any ambiguity in policy must be resolved in favor of coverage -- Exclusions -- Exclusions which insurer cites as excluding coverage of damage to clubhouse directly contradict and conflict with the collapse coverage provided in the covered loss section, and is another ambiguity in the policy

37 Fla. L. Weekly D2091a
97 So. 3d 918

Insurance -- Contracts -- Judicial estoppel -- Action by school board against insurance company which provided excess medical insurance coverage for school board students and employees and insurance agency which administered plan under which insurance was provided, alleging breach of contract in that claim for medical bills of school board employee was denied -- Where insurance company denied claim on the basis that information regarding employee's pre-existing condition had not been disclosed to company during application process, and record reflects that insurance agency had received the information regarding the pre-existing condition prior to close of the application process, claims against insurance company and insurance agency were mutually exclusive because either agency failed to submit the information to insurance company or, alternatively, company wrongfully denied coverage -- School board was not judicially estopped from continuing action against insurance agency after claim against insurance company had been settled for less than the full amount of damages claimed -- In order for judicial estoppel to apply, school board must have “successfully maintained” an inconsistent position in action against insurance company, and inconsistent position cannot be viewed as having been successfully asserted against insurance company where claim was resolved by settlement for less than the full amount of damages sought