2013

38 Fla. L. Weekly D74d
103 So. 3d 1028

Insurance -- Uninsured motorist -- Trial court erred in entering summary judgment finding that there was no UM coverage because insured had failed to give written notice to insurer of the underinsured motorist claim where there were material issues of fact regarding whether insurance broker with whom insured communicated was agent or apparent agent for insurer, whether broker's employee told insured to cash check which had been tendered by tortfeasor's insurer, but not to sign release, and whether insurer was prejudiced by insured's settlement with tortfeasor's insurer

38 Fla. L. Weekly D1261a
120 So. 3d 6

Torts -- Automobile accident -- Insurance -- In action against owners of automobile involved in accident and plaintiff's uninsured motorist insurer, where only causation and damages were contested, trial court abused discretion in failing to grant motion for new trial when plaintiff testified, in violation of order on motion in limine, regarding uninsured motorists insurer's failure to take responsibility, and plaintiff's counsel argued that insurer was shirking its responsibilities and acting in bad faith

38 Fla. L. Weekly D2477a
127 So. 3d 808

Insurance -- Uninsured motorist -- Evidence -- Where insured was injured while a passenger on a public bus that was involved in an accident with another vehicle, it was not an abuse of discretion to admit time lapse videos taken by surveillance cameras located within the bus -- Trial court did not abuse discretion in determining that the videos were a fair and accurate representation of what occurred on the bus -- Letters of protection sent by insured's counsel to insured's treating physicians, under the terms of which physicians would reduce their bills if insured failed to receive full value of claims against insurer, were not evidence of a collateral source, and trial court did not abuse discretion by admitting letters into evidence and allowing insurer to question physicians about their reduction-of-fee agreements

38 Fla. L. Weekly D1873b
119 So. 3d 1284

Insurance -- Uninsured motorist -- Damages -- Verdict finding that uninsured driver's negligence was legal cause of any damage to plaintiff, but awarding zero damages for past or future medical expenses was against manifest weight of evidence and inadequate -- Plaintiff was at least entitled to recover cost of diagnostic testing where jury had no reasonable basis to conclude that plaintiff suffered no injury as result of accident -- Evidence -- No error in allowing defense to introduce letter of protection between plaintiff and treating physician who testified as expert witness on severity of plaintiff's neck injury, as letter of protection was relevant to show potential bias

38 Fla. L. Weekly D1378a
188 So. 3d 852

Insurance -- Uninsured motorist -- Damages -- Future medical expenses -- Collateral source benefits -- Medicare benefits of developmentally disabled adult plaintiff -- Trial court erred in excluding from jury evidence of plaintiff's receipt of medical services under Medicare program for purpose of determining future medical expenses -- Because there is no evidence that plaintiff contributed to the financing of the Medicare program, the program's benefits are unearned and not subject to exclusion under the collateral source rule

38 Fla. L. Weekly D1329a
116 So. 3d 523

Insurance -- Uninsured motorist -- Credits -- Where insured sued county sheriff's department and UM motorist insurer after being injured in crash with motorcycle operated by employee of sheriff's department, and insured, with permission of UM carrier, eventually reached an agreement with sheriff to settle claim for $50,000, which was less than the $100,000 in self-insured liability funds available from the sheriff, insurer was only entitled to credit for the actual settlement amount against damages awarded by jury -- Sheriff's certificate of self-insurance does not constitute a liability policy -- UM insurer is also entitled to credit for medical expenses and past lost wages paid by workers' compensation and personal injury insurance benefits

38 Fla. L. Weekly D2455c
133 So. 3d 530

Insurance -- Uninsured motorist -- Trial court properly entered summary judgment in favor of insurer, because the damages incurred by plaintiff insured, injured by tortfeasor who was insured under a bodily injury liability policy, did not exceed the amount of the benefits available to her under the tortfeasor's policy -- An injured insured may bring a direct action against her own uninsured motorist carrier without having first resolved a claim against the tortfeasor, but the insured must first demonstrate that she is entitled to UM benefits on the basis that the tortfeasor is uninsured or underinsured -- Here, tortfeasor was not underinsured, as tortfeasor's $50,000 in liability coverage exceeds the amount of damages

38 Fla. L. Weekly D566a
110 So. 3d 66

Torts -- Automobile accident -- Insurance -- Uninsured motorist -- Action by plaintiff who was involved in two separate rear-end collisions in 2004 and 2006 against defendants involved in 2004 accident and against defendant and underinsured motorist carrier for damages resulting from 2006 accident, with plaintiff entering into high-low agreement with defendants involved in 2004 accident -- Evidence -- Trial court abused discretion in disallowing testimony by insurer's expert that plaintiff's shoulder surgeries and knee surgery were unrelated to 2006 accident -- Although expert was first disclosed on amended witness list after date court had ordered that witness lists be served, amended witness list was filed sixty-nine days before trial, and late filing did not cause prejudice to plaintiff -- Trial court erred in precluding insurer's biomedical engineer from testifying that in his opinion plaintiff was not wearing seatbelt at time of accident -- Biomechanics is not new or novel science, and Frye v. United States does not apply to testimony of a causal link between trauma and injury -- Trial court erred in refusing to allow disclosure to jury of high-low agreement entered into between plaintiff and defendants involved in 2004 accident, by the terms of which defendants would remain in case and would pay plaintiff a minimum amount and a maximum amount regardless of the amount jury determined they were liable -- Argument -- Trial court erred in permitting plaintiff's counsel to make argument regarding defendants' failure to present expert testimony where plaintiff's counsel had successfully excluded such evidence -- Error to permit plaintiff's counsel to argue that defendants were attempting to avoid responsibility and exhibited shameful conduct

38 Fla. L. Weekly D2121a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 38 Fla. L. Weekly D2542a

Contracts -- Torts -- Carriers -- Federal preemption -- Action against carrier by shipper whose valuable oil paintings she had created were not delivered to destination by carrier, but were sold by carrier to its lost goods contractor and eventually auctioned -- Trial court properly found that claims against carrier were preempted by federal Carmack Amendment -- Claims are excepted from Carmack Amendment only if the claims are based on conduct separate and distinct from the delivery, loss of, or damage to goods -- Claim against carrier for conversion is preempted because it is predicated on failure to deliver goods -- Claim of unauthorized use of plaintiff's name and likeness in resale of paintings is preempted because it is directly related to carrier's course of conduct in failing to deliver the paintings -- Claims of fraud and deceptive and unfair trade practices are so closely related to the performance of the shipping contract that they are preempted

38 Fla. L. Weekly D1231a
117 So. 3d 1163

Insurance -- Title -- Class action alleging insurer uniformly overcharged for title insurance in mortgage refinance transactions -- Trial court correctly interpreted Florida regulation which provides conditions under which a homeowner may qualify for lower premium on title insurance in a refinance transaction -- In order for lower premium rate to apply, a previous owner's policy must have been issued insuring seller or mortgagor in the current transaction and both reissuing agent and the reissuing underwriter must retain for their files copies of the prior owner's policy -- Only upon satisfaction of both these requirements does the regulation not only permit, but require, the insurer to charge the lower premium -- Regulation does not require insurer to conduct a “reasonable search” for prior policies to protect eligible homeowners from being overcharged

38 Fla. L. Weekly D2078a
128 So. 3d 107

Insurance -- Title -- Coverage -- No error in dismissing with prejudice an action seeking recovery under owner's policy of title insurance for losses associated with demolition and redesign of portion of affordable housing project on which was unearthed an abandoned cemetery and human remains during course of construction -- Florida Marketable Record Title to Real Property Act relieved insurer of any legal obligation to search chain of title pertaining to the insured property back to time cemetery was created by deed recorded in the public records where recordation of deed occurred more than thirty years before the effective date of root of title -- Owner's attempt to charge insurer with “implied notice” of existence of cemetery based on 1908 deed is excluded by MRTA's codified limitation on title insurer's obligations -- Insurer did not have obligation to list as an exception from coverage the statutory easement for ingress and egress to relatives and descendants of any person buried in a cemetery in Florida for purpose of visiting the cemetery -- Statute does not create interest in real property, but simply a personal privilege, exercisable in the future if a relative or descendant of a person buried in the cemetery comes forward and seeks to visit the cemetery

38 Fla. L. Weekly D1745a
121 So. 3d 607

Torts -- Negligence -- Breach of bailment -- Insurance company's subrogation action for reimbursement of amounts it paid for loss of engagement ring, filed against former fiancee who broke off engagement and claimed she did not know whereabouts of ring when insured demanded its return -- Error to dismiss claims as barred by section 771.01 -- Statute does not affect rights of parties relative to gifts passing between them

38 Fla. L. Weekly D1990a
134 So. 3d 477

Torts -- Security company -- Action by insurer, as subrogee, against security company, alleging company was negligent in failing to advise client, who was plaintiff's insured, that analog-based security system that company installed would become obsolete once Federal Communications Commission transitioned from analog-based system to digital system, by failing to replace analog-based system with digital system, after transition, and by failing to advise client/insured that system stopped transmitting signals to security company's monitoring service once transition occurred -- Error to enter judgment on pleadings in favor of security company based on contract between parties where plaintiff alleged tort claims independent of contract

38 Fla. L. Weekly D1746c
120 So. 3d 114

Insurance -- Residential tenant -- Coverage -- Denial -- Where insurance company presented undisputed evidence that there was no water leak on premises, as insured claimed, and that mold damage was result of defects in construction process, which were not covered by policy, summary judgment was appropriately entered for insurer, albeit trial court entered summary judgment for wrong reason

38 Fla. L. Weekly D49c103 So. 3d 261 BERNARD DANIEL DUFFY, Petitioner, v. STATE OF FLORIDA, Respondent. 5th District. Case No. 5D12-3834. Opinion filed December 21, 2012. Petition for Belated…

38 Fla. L. Weekly D2159a
124 So. 3d 332

Administrative law -- Office of Insurance Regulation -- Rules -- Windstorm and hurricane losses -- Credits or other rate differentials -- Rule challenge -- Standing -- Administrative law judge erred in finding that manufacturer of residential garage door bracing system had standing to challenge rules of accompanying forms relating to insurance credits for homeowners who perform certain upgrades -- Manufacturer, who was claiming economic harm based on the absence of an insurance credit that Florida homeowners have never been provided, had no protected economic right that was impaired by the rules and forms at issue -- Further, manufacturer failed to show that rules and forms at issue resulted in real or immediate injury in fact sufficient to satisfy substantially affected test -- ALJ also erred in finding that manufacturer's interest fell within zone of interest to be protected or regulated by underlying statute or pertinent rules -- Statute was clearly designed to protect consumers who choose to strengthen their homes against storm damage and to protect insurers by lessening their financial exposure, and nothing in language of statute indicates that purpose was to increase manufacturers' sales -- Final order invalidating in part certain rules and forms on ground that the rules and forms constituted invalid exercises of delegated legislative authority is reversed

38 Fla. L. Weekly S517a
141 So. 3d 147

Insurance -- Personal injury protection -- Under 2008 amendments to PIP statute, a PIP insurer cannot take advantage of Medicare fee schedules to limit reimbursements without notifying its insured by electing those fee schedules in its policy -- Because policy in instant case did not reference permissive method of calculation based on Medicare fee schedules, insurer could not limit its reimbursement based on those fee schedules

38 Fla. L. Weekly D915a
111 So. 3d 960

Insurance -- Personal injury protection -- When a particular CPT billing code is no longer recognized by Medicare Part B but the service represented in that billing code remains covered under Medicare Part B, the service is reimbursable under Medicare Part B for purposes of section 627.736(5)(a)(2)(f), Florida Statutes -- Where services provided by medical provider were reimbursable under Medicare Part B, insurer was not permitted to utilize the workers' compensation fee schedule, but was required to reimburse provider under Medicare Part B fee schedule

38 Fla. L. Weekly D2235a
125 So. 3d 333

Insurance -- Personal injury protection -- Constitutionality of statute -- Acupuncture physician, chiropractic physician, and licensed massage therapists lack standing to challenge PIP Act as an unconstitutional denial of right to access to courts -- Trial court erred in entering injunction enjoining Commissioner of Florida Office of Insurance Regulation from enforcing portions of PIP Act

38 Fla. L. Weekly S440a
117 So. 3d 388

Insurance -- Personal injury protection -- Under section 627.736, Florida Statutes (2008), an insurer cannot require an insured to attend an examination under oath as a condition precedent to recovery of personal injury protection benefits -- 2012 amendment to statute to include requirement that insureds seeking personal injury protection benefits comply with terms of policy, including submitting to examination under oath, substantively changed statute, and does not inform or control disposition of case which arose prior to amendment

38 Fla. L. Weekly D1928a
121 So. 3d 1136

Insurance -- Personal injury protection -- Examination under oath not valid condition precedent to payment of PIP benefits where cause of action accrued prior to statutory amendment allowing EUOs -- Moreover, issue of fact remained as to whether insured's refusal to attend EUO under conditions required by insurer was unreasonable -- Although insurer suggests action was about uninsured motorist benefits, not PIP benefits, initial complaint was timely amended to seek declaratory judgment on PIP claim, summary judgment included explicit ruling on claim that EUO was condition precedent to payment of PIP benefits under policy, and insurer never sought rehearing or clarification of order granting summary judgment

38 Fla. L. Weekly D2241b
136 So. 3d 622

Dissolution of marriage -- Life insurance -- Change of beneficiary -- Federal preemption -- It is unclear from record whether court had jurisdiction to order husband to change beneficiary on military group life insurance policy -- If beneficiary designation is protected by federal Servicemembers' Group Life Insurance Act, court is without jurisdiction to order change of beneficiary

38 Fla. L. Weekly D2548b
127 So. 3d 852

Insurance -- Limitation of actions -- Dismissal of insured's complaint against insurer on ground of statute of limitations

38 Fla. L. Weekly D363a
111 So. 3d 909

Insurance -- Life -- Trial court properly entered summary judgment for insurer in action alleging breach of life insurance contract where insured did not sign application for insurance or consent in writing to the insurance contract and its terms -- Insured's alleged oral authorization of another to sign insurance application on his behalf did not constitute “applying for” the insurance policy -- Insured's signature on consent form for physical exam did not constitute consent in writing to the insurance contract and its terms

38 Fla. L. Weekly D1537a
118 So. 3d 250

Insurance -- Liability -- Trial court should have dismissed third-party complaint for declaratory judgment brought against liability insurer where there had been no settlement or verdict against insured -- Party who was allegedly injured as result of insured's negligence, but who has not obtained a settlement of verdict against insured, has no beneficial interest in insured's policy with insurer and no cause of action against insurer has accrued -- When an insurer demonstrates that the pre-suit requirements of section 627.4136, Florida Statutes, have not been met, certiorari review of an order denying a motion to dismiss is appropriate

38 Fla. L. Weekly D2116b
123 So. 3d 1184

Torts -- Insurance -- Professional liability -- Nonjoinder of insurer -- Trial court departed from essential requirements of law by granting plaintiff leave to add liability insurer as party defendant on a declaratory judgment claim where plaintiff had not yet obtained settlement or verdict against insured -- Exception to rule allowing joinder of insurer after a judgment is entered or settlement reached occurs where insurer denied coverage under provisions of section 627.426(2) or defended under reservation of rights pursuant to section 627.426(2) -- Separate action must be commenced against insurer to litigate issue of coverage -- Error to deny insurer's motion to dismiss

38 Fla. L. Weekly D2514a
127 So. 3d 822

Insurance -- Homeowners -- Venue -- Trial court erred in denying domestic insurance company's motion to transfer venue of action to recover under homeowners insurance policy from Miami-Dade County to Palm Beach County where insured property is located, where insurer's only office for the transaction of business is in Duval County -- Fact that insurer, a domestic corporation, is issuing policies to Miami-Dade homeowners does not make venue proper in Miami-Dade County -- Domestic corporation may be sued only in place where it has an office for the transaction of customary business, place where cause of action accrued, or place where property at issue is located

38 Fla. L. Weekly S507a
121 So. 3d 433

Insurance -- Homeowners -- Replacement cost insurance -- Replacement cost insurance includes overhead and profit where the insured is reasonably likely to need a general contractor for repairs -- Under applicable statute and policy provisions, insurer was not permitted to withhold payment of overhead and profit until insured actually incurred these costs

38 Fla. L. Weekly D1909c
120 So. 3d 651

Insurance -- Homeowners -- Roof damage -- Where policy provided for replacement cost coverage for any direct physical loss, unless caused by an enumerated exception not at issue in present case, insurer could not withhold payment on ground that insured had not actually incurred expenses to repair or replace roof or contracted to do so -- Error to grant summary judgment in favor of insurer on basis that insured did not incur expenses or enter into contract to repair or replace damaged property

38 Fla. L. Weekly D67a
103 So. 3d 1032

Insurance -- Homeowners -- Proof of loss -- Trial court erred in entering summary judgment in favor of insurer in action by insured on ground that insured failed to provide timely proof of loss, where there was factual issue as to whether insurer waived its right to rely on policy condition requiring submission of proof of loss within sixty days of insurer's request by instructing insured to submit the proof of loss prior to or at examination under oath -- There was also a factual issue as to whether insured's cooperation by giving insurer a sworn proof of loss before summary judgment was entered was sufficient to avoid policy condition that no action can be brought against insurer unless there has been compliance with policy provisions

38 Fla. L. Weekly D75a
104 So. 3d 1242

Insurance -- Homeowners -- Proof of loss -- In insureds' breach of contract action against insurer, in which insurer claimed that insureds were not entitled to recover under policy because they failed to comply with condition precedent that they submit sworn proof of loss to insurer, trial court did not err in allowing insureds to prove that insurer was not prejudiced by their failure to substantially comply with proof of loss condition -- Trial court properly denied insurer's motion for judgment in accordance with motion for directed verdict after jury returned verdict for insureds, finding that insureds failed to substantially comply with duty to provide insurer with sworn proof of loss, but that insurer was not prejudiced by the noncompliance

38 Fla. L. Weekly D1846a
121 So. 3d 1125

Insurance -- Homeowners -- Notice of loss -- Trial court erred in granting summary judgment for insurer in insured's breach of contract action on ground that insurer was prejudiced by insured's late notice of loss resulting from hurricane -- Material question of fact existed regarding timeliness of notice of loss -- Although insured stated in deposition that she gave timely notice to insurance company, but stated in affidavit in opposition to insurer's motion for summary judgment that she gave timely notice to the agent who sold her the policy, insured's affidavit did not necessarily contradict her deposition testimony because insured considered the insurance company and the insurance agent to be the same entity

38 Fla. L. Weekly D1946a
121 So. 3d 652

NOT FINAL VERSION OF OPINION
Subsequent Changes at 39 Fla. L. Weekly D162a

Homeowners insurance -- Liability -- Dog bite -- Trial court erred in determining that only one “occurrence” under homeowner's policy took place when dog bit child and, after releasing child from her mouth, bit mother, who had run into room in response to child's screams

38 Fla. L. Weekly D1230a
114 So. 3d 457

Insurance -- Homeowners -- Hurricane damage -- Notice of loss -- Where homeowner failed to give timely notice of loss as required by policy, there was presumption that insurer had been prejudiced -- Homeowner did not provide sufficient evidence to rebut presumption of prejudice resulting from delayed notice of loss -- Trial court properly granted summary judgment in favor of insurer, although its reasoning, that nearly four-year delay was, alone, sufficient to bar the claim, was wrong

38 Fla. L. Weekly D597b
109 So. 3d 860

Insurance -- Homeowners -- Sinkholes -- Office of Insurance Regulation's construction of statute requiring property insurers to provide coverage for catastrophic ground cover collapse in residential property policies and to offer optional coverage for sinkhole losses is not erroneous in holding that the section requires insurers to offer sinkhole loss coverage in an amount equal to the dwelling coverage limit -- Office properly disapproved insurer's amended endorsement limiting sinkhole loss coverage to 25 percent of overall coverage for insured dwelling -- Defining the “form to which the coverage attaches” as the base policy rather than as policy endorsement setting out the limit of such coverage is within the permissible range of interpretations of statutory language

38 Fla. L. Weekly D2211a
124 So. 3d 976

Insurance -- Homeowners -- Hurricane damage -- Coverage -- General contractor overhead and profit expenses -- Trial court erred in finding insurer could refuse to pay GC overhead as part of homeowners' claims for hurricane damage to their homes until homeowners actually incurred the expenses -- Because homeowners alleged entitlement to GC overhead that is “reasonably likely” to be incurred, case remanded for determination whether homeowners were reasonably likely to incur GC overhead as part of their damages

38 Fla. L. Weekly D1982a
141 So. 3d 195

Insurance -- Homeowners -- All risk policy -- Coverage -- Damage caused by multiple perils -- In the case of a first-party insurance policy, where damage is caused by multiple perils, some of which are covered and some of which are excluded, the efficient proximate cause doctrine rather than the concurrent causation doctrine is applicable to determine whether coverage is provided -- Where damage to insured home was caused by rain and wind, which were covered perils, and by defective construction, which was an excluded peril, issue of coverage should have been determined under efficient proximate cause doctrine, and finder of fact should have determined which peril was the most substantial or responsible factor in the loss

38 Fla. L. Weekly D301a
197 So. 3d 63

NOT FINAL VERSION OF OPINION
Subsequent Changes at 39 Fla. L. Weekly D298a

Insurance -- Claim against insurance company for damage to insured home caused by burglary -- Trial court erred in dismissing complaint for failure of plaintiff to file a petition in probate to determine her own capacity -- Appellate attorney's fees -- Persistence of insurer and its counsel in arguing that insured was required to seek a guardian for herself as condition of continuing action was frivolous where insured had executed a durable power of attorney in favor of her son -- Insurer and its counsel should be equally responsible for insured's attorney's fees in prosecuting appeal

38 Fla. L. Weekly D694a
114 So. 3d 257

Insurance -- Homeowners -- All risk policy -- Exclusions -- Water damage -- Damage caused to residence when, due to age and deterioration, a pipe located on the residence premises collapsed, with result that debris entered the pipe, forming a blockage which ultimately caused waste water and material to back up through the blocked pipe and into the residence premises through drains -- Exclusion for damage caused by water or water-borne material which backs up through sewers or drains is not applicable where the damage results from water or material backing up through blocked pipe within the plumbing system -- Water damage exclusion relates to damage caused by water originating from somewhere other than the residence premises' plumbing system -- Because the claimed loss was caused by the deterioration of a pipe within the plumbing system, which caused water or water-borne material emanating from the residence premises' plumbing system to back up into the residence premises, the loss is a covered loss

38 Fla. L. Weekly D2064a
121 So. 3d 1191

Insurance -- Uninsured motorist -- Action against UM insurer by policyholder individually and as personal representative of estate of named insured seeking coverage for injuries sustained when underinsured motorist collided with two motorcycles owned and operated by policyholder and named insured -- Where named insured originally purchased insurance policy at issue and at time of purchase rejected UM coverage equal to bodily injury liability limits, that rejection was binding on subsequent policyholder where the policy was renewed, extended, changed, superseded, or replaced by the subsequent policy without any change in policy limits -- Stacking -- The insured's selection of unstacked coverage at time policy was acquired was binding on his estate and personal representative -- However, UM stacking waiver did not apply to individual claims of subsequent policyholder who did not personally sign UM stacking waiver as an insured -- Exclusions -- Bodily injury to insured while occupying vehicle owned by insured but not insured under policy -- Under circumstances, owned-but-not-insured exclusion selected at time original policy was acquired was binding on subsequent policyholder individually and as personal representative of original policyholder/named insured's estate

38 Fla. L. Weekly D2221a
125 So. 3d 330

Insurance -- Homeowners and personal liability -- Exclusions -- Policy exclusion of coverage for “bodily injury or property damage arising out of the care or custody of animals not owned by an insured,” was applicable, under Alabama law, to exclude coverage for injury to claimant who drove a motor scooter between insured and insured's neighbor's dog which insured was walking on a retractable leash which claimant ran into and fell from scooter

38 Fla. L. Weekly D900a
114 So. 3d 286

Insurance -- Homeowners -- Exclusions -- Trial court properly entered summary judgment for insurance company which denied coverage for damage to tile floor caused by insured's having dropped hammer causing floor to chip, claiming the damage constituted “marring” which was excluded from coverage -- Damage to the tile floor did constitute marring by plain language interpretation

38 Fla. L. Weekly D2313a
128 So. 3d 820

Insurance -- Environmental policy -- Storage tank liability insurance policy on gas station -- Action against surplus lines insurance carrier which denied coverage of storage tank incident based on conclusion that incident took place prior to retroactive date of policy -- Jurisdiction -- Foreign forum selection clause -- Insured failed to show that mandatory foreign forum selection clause at issue in this case violated any of the factors set forth by Florida Supreme Court in Manrique v. Fabbri -- Trial court erred in denying motion to dismiss based upon improper forum

38 Fla. L. Weekly D2077a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 39 Fla. L. Weekly D91a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- MRI -- Discovery action filed by insurer pursuant to section 627.736(6)(c) seeking written documentation of MRI equipment used and proof of accreditation, as well as various other documents -- Petition for writ of prohibition seeking to quash circuit court's discovery order denied, as prohibition may not be used to revoke order already entered -- Jurisdiction -- Insurer's discovery action was equitable action which fell within jurisdiction of circuit court although amount in controversy did not exceed county court's jurisdictional amount -- Petitioner failed to allege or prove material injury or irreparable harm, elements necessary to obtain writ of certiorari

38 Fla. L. Weekly D1685a
123 So. 3d 599

Insurance -- Discovery -- Conclusion and/or resulting impression from last twenty independent medical examination or compulsory medical examination reports prepared by insurer's expert witness for insurer and insurer's law firm -- Redaction of patient record information and medical information does not sufficiently protect privacy rights of non-parties

38 Fla. L. Weekly D85b
106 So. 3d 5

Insurance -- Homeowners -- Discovery -- Claims files and claims handling materials -- Trial court improperly entered discovery order requiring insurer to produce claim manuals and/or guidelines relating to certain policy language, and to provide a representative to testify as to claims manual, guidelines, and insurance policy, where there has been no determination of coverage for loss

38 Fla. L. Weekly D1745b
121 So. 3d 606

Declaratory judgment -- Insurance -- Duty to defend -- Discovery -- Insurer's claims file -- Premature discovery -- Coverage still in dispute

38 Fla. L. Weekly D2226a
124 So. 3d 379

Insurance -- Discovery -- Trial court departed from essential requirements of law in ordering production of insurer's claims file in breach of contract action by insureds when issue of coverage had not been determined

38 Fla. L. Weekly D619a
123 So. 3d 1162

Insurance -- Personal injury protection -- Discovery -- Attorney-client and work product privileges -- Action by insurers against medical providers seeking monetary damages -- Trial court did not depart from essential requirements of law in granting defendant medical providers' motion to take depositions of plaintiffs' attorneys who prepared master summary chart consisting of combination of PIP files generated by plaintiffs and medical and billing charts generated by defendants which was to be used as a trial exhibit

38 Fla. L. Weekly D1630a
118 So. 3d 919

Insurance -- Coverage -- Declaratory judgment -- Jurisdiction -- No merit to claim that circuit court lacked subject matter jurisdiction to determine whether personal injury liability policy excluded plaintiff from coverage because the amount in controversy, excluding the insurer's cost of providing its insured with a defense, did not meet the jurisdictional threshold -- Pecuniary value of insurer's obligation to tender a defense to its insured in the underlying suit is properly considered in determining existence of jurisdictional amount in an action to determine coverage

38 Fla. L. Weekly D302a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 38 Fla. L. Weekly D731b

Insurance -- Commercial-residential property insurance -- Notice of loss -- Trial court properly entered summary judgment finding that insured condominium association which gave notice to insurer five years after hurricane that property had sustained damage in hurricane failed to give timely notice of loss -- When an insurance contract contains a provision requiring prompt notice of loss, insured must give notice of loss that implicates a potential claim without waiting for the full extent of damages to become apparent -- Trial court erred in entering summary judgment finding that insurer was prejudiced by late notice, as issue of prejudice is question of fact for jury

38 Fla. L. Weekly D731b
112 So. 3d 541

Insurance -- Commercial-residential property insurance -- Notice of loss -- Trial court properly entered summary judgment finding that insured condominium association which gave notice to insurer five years after hurricane that property had sustained damage in hurricane failed to give timely notice of loss -- Trial court correctly found that insurer was presumed to be prejudiced by insured's late notice, and insured failed to overcome the presumption of prejudice -- Although the issue of whether an insured has overcome the presumption of prejudice caused by late notice is generally reserved for the trier of fact, it is appropriately raised on summary judgment where the insured fails to present evidence sufficient to rebut the presumption

38 Fla. L. Weekly D2093e
124 So. 3d 947

Insurance -- Commercial general liability -- Exclusions -- Surplus lines carriers -- Trial court erred in entering summary judgment in declaratory action, finding that exclusions from coverage contained in combination general endorsement of policy issued by surplus lines carrier were unenforceable because insurer had failed to file and obtain preapproval of the combination general endorsement as required by section 627.410, Florida Statutes (2008) -- Under the provisions of section 626.913, Florida Statutes, insurer, as a surplus lines carrier, was exempt from the filing and approval requirements of section 627.410 -- 2009 amendment to section 626.913 applies retroactively -- Retroactive application of statute does not constitute an unconstitutional impairment of insureds' vested rights -- Even if insurer had been required to present the exclusions for review by Office of Insurance Regulation, failure to do so would not be cause for voiding them

38 Fla. L. Weekly D1185c
116 So. 3d 508

Insurance -- Commercial general liability -- Exclusions -- Damage to property leased by insured -- Trial court properly entered final summary judgment declaring insurance company has no duty to defend contractor in tort suit involving damage to leased equipment due to negligent operation, where plain and unambiguous policy language excluded coverage for the damaged equipment -- Coverage defense -- Claim that insurer waived right to claim no coverage by failing to give statutorily required notice of reservation of rights to assert a coverage defense is without merit because there was no coverage

38 Fla. L. Weekly D1890a
131 So. 3d 15

Insurance -- Commercial general liability -- Defective products -- Exclusions -- Trial court erred in finding that insurer's liability for amounts its insured paid to settle several lawsuits arising out of defective doors manufactured by insured was not limited by policy's “your product” exclusion because some of the defective sliding-glass doors at issue were modified when third party manufactured and installed transoms running atop the doors -- Defective sliding glass doors were not fundamentally transformed by the addition of transoms and, therefore, remained insured's product -- Accordingly, “your product” exclusion precluded any damages awarded to replace them

38 Fla. L. Weekly D2256a
126 So. 3d 385

Insurance -- Commercial general liability -- Trial court did not err in entering summary judgment for defendant insurer, finding that insurer had no duty to defend insured air conditioning contractor against claims of breach of contract and faulty workmanship in the installation of a compressor -- Summary judgment was proper where pleadings did not set forth claims within policy coverage -- Policy covered bodily injury or property damage resulting from an occurrence, and pleadings did not allege bodily injury or property damage -- Property damage refers to damage to property other than the property being repaired, and a complaint seeking recovery for costs of repair and removal of defective work does not involve a property damage claim

38 Fla. L. Weekly D524a
126 So. 3d 297

Insurance -- Marine -- Action by lien claimant against marine insurer alleging that insurer breached insurance contract by failing to adjust claim for damage to vessel which had been hijacked within ninety days of submission of claim -- Where named insureds were corporation which owned vessel and corporation's sole officer, director, and shareholder who was killed in hijacking, lien claimant who was not a named insured or a loss payee under policy, and who was a stranger to policy lacked authority to file claims under policy before lien claimant was assigned policy rights by named insured's personal representative -- Further, statutory ninety-day period for insurer to pay or deny a claim is inapplicable because the statute applies only to residential property insurers, and because the policy contained a choice of law provision stating that the agreement is subject to the laws of New York -- New York time limitations cited by plaintiff are also inapplicable -- Because plaintiff had no authority to submit claims, insurer did not breach contract by refusing to adjust claims -- Trial court erred in denying defendant insurer's motion for directed verdict

38 Fla. L. Weekly D1159c
117 So. 3d 16

Insurance -- Underinsured motorist -- Bad faith -- Where insurer refused to pay on uninsured/underinsured motorist (UM) claim to its insured, insured filed Civil Remedy Notice alleging bad faith, then filed one-count complaint seeking damages under insurance policy, and shortly before trial insurer tendered a check to insured for the policy limits and filed confession of judgment and motion for entry of confession of judgment, which trial court denied, resulting in jury trial with determination of $1 million in damages, entry of judgment in favor of plaintiff for policy limits, and reservation of jurisdiction to determine insured's right to seek and litigate bad faith damages, trial court was in error to require the parties to proceed to trial and should instead have merely entered the confessed judgment in favor of insured, reserving jurisdiction to award only costs, interest and reasonable attorney's fees -- When insurer agreed to entry of judgment against it in the amount of policy limits, the issues between the parties as framed by the pleadings became moot -- No merit to insured's claim that entry of confessed judgment renders remedies for insurer's failure to act in good faith “impotent and obsolete” -- There is no legal impediment to insured's pursuing bad faith action against insurer -- An insured is not required to obtain a jury verdict in excess of the applicable UM coverage as condition precedent to bringing first party bad faith action

38 Fla. L. Weekly D774a
112 So. 3d 547

Insurance -- Homeowners -- Bad faith -- After insured, having sustained sinkhole damage to his home, filed civil remedy notice of insurer violation over the issue of the damages estimate, insurer moved for and was granted dismissal of lawsuit and appraisal, appraisal award was entered in insured's favor, insurer paid award, and insured filed bad-faith lawsuit for delay damages, trial court erred in entering summary judgment in favor of insurer on grounds that insured could not maintain a bad-faith claim without a breach-of-contract judgment against insurer -- An appraisal award is a sufficient resolution in insured's favor to satisfy the condition precedent required to bring a bad-faith action -- No merit to insurer's claim that civil remedy notice is invalid because it specifies no definite “cure” amount -- There is no statutory requirement that the CRN must provide a specific cure amount

38 Fla. L. Weekly D1721a
123 So. 3d 600

Torts -- Insurance -- Automobile liability -- Duty to defend -- Excluded claims -- Trial court properly entered summary judgment in favor of insurer in action seeking declaration that insurer did not owe duty to defend and indemnify its insureds in negligence action brought against insureds by permissive user of vehicle -- Plaintiff was insured, as defined by policy, where he was operating vehicle with insureds' consent, and policy excluded coverage for bodily injury sustained by insured or any member of insured's family residing in insured's household -- Exclusions -- Provision excluding from coverage insured or members of insured's family or household is valid

38 Fla. L. Weekly D286a 125 So. 3d 201 Insurance -- Automobile liability -- Duty to defend -- Action by one insurer against another insurer alleging that defendant breached its duty to defend plaintiff's insureds in a personal injury action, and seeking indemnification for attorney's fees and costs expended in defending its insureds -- Anti-subrogation rule -- Trial court did not err in granting summary judgment in favor of plaintiff insurer on claim that defendant breached its duty to defend plaintiff's insureds in personal injury action against plaintiff's insureds and defendant's insured, who contracted with plaintiff's insureds for provision of trucking services and who, as part of the subcontract, agreed to maintain policy of automobile liability insurance which would be primary and further agreed to defend, indemnify, and hold plaintiff's insureds harmless for claims, damages, and losses arising out of negligent acts or omissions -- Anti-subrogation rule did not apply where there was a specific and contractual obligation of indemnification in favor of plaintiff's insureds that shifted exposure from plaintiff, leaving defendant with the primary obligation to defend actions arising out of its insured's negligence

38 Fla. L. Weekly D2244a
124 So. 3d 402

Insurance -- Automobile liability -- Bad faith failure to settle -- Jurisdiction -- Foreign state insurer -- Third-party bad faith action against foreign insurer which issues policies only to Michigan drivers alleging bad faith failure to settle claim against insured, a Michigan resident, arising out of accident which occurred in Florida -- Trial court properly found that it did not have jurisdiction under subsection of long-arm statute which refers to “contracting to insure any person, property, or risk located within this state at the time of contracting” -- Trial court erred in finding that it did not have jurisdiction under subsection of statute which allows for jurisdiction over a defendant who has breached a contract in state by failing to perform acts required by contract to be performed in state -- Allegation that insurer never procured affidavits from insured regarding other insurance, resulting in settlement offer not being accepted, sufficiently alleged a failure to perform an act required to be performed in state because, without procuring the affidavits, the affidavits could not be delivered to attorney in Florida -- Minimum contacts -- Because policy obligated insurer to exercise good faith in defending insured in any state, it should have foreseen that a breach of that duty in Florida would subject it to being haled into a Florida court -- Trial court erred in dismissing action for lack of personal jurisdiction

38 Fla. L. Weekly D178a
109 So. 3d 236

Insurance -- Automobile liability -- Bad faith -- Trial court departed from essential requirements of law in denying insurer's motion to dismiss insured's post-verdict bad faith cross-claim against insurer in wrongful death action against insured -- Bad faith claim must be raised in separate cause of action and cannot be brought in an underlying tort action -- Denial of motion to dismiss cross-claim has practical effect of preventing insurer from removing action to federal court based on diversity jurisdiction

38 Fla. L. Weekly D2057a
122 So. 3d 484

Insurance -- Automobile liability -- Appeals -- Orders in declaratory action finding to be reasonable and made in good faith a consent judgment entered into by insured after insured had refused insurer's representation because insurer issued reservation of rights, and striking insurer's defenses regarding the consent judgment, are non-final, non-appealable orders where related claims remain pending between parties

38 Fla. L. Weekly D749a
111 So. 3d 208

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 -- Vehicle was a “titled” vehicle within meaning of policy although dealer had not filed for certificate of title and filed dealer reassignment form -- 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

38 Fla. L. Weekly D814a
125 So. 3d 864

Insurance -- Automobile -- Theft -- Non-renewal of policy -- No error in denying coverage for theft of automobile which occurred after non-renewal of policy -- U.S. postal proof of mailing of notice of intention not to renew addressed to insured at address shown in policy was sufficient proof of notice as matter of law, and mere denial of receipt by insured was not sufficient to establish lack of notice -- Trial court correctly concluded that insurer did not act arbitrarily or capriciously in refusing to renew policy after insurer discovered that insured's husband's driver's license was suspended, given unrebutted evidence that insurer had internal policy prohibiting driver exclusions on a spouse of an insured -- Promissory estoppel -- Driver Exclusion Agreement, which excluded certain coverages while insured's spouse was operating a vehicle, did not constitute a promise that policy would provide coverage that would extend beyond its expiration -- Moreover, insured failed to raise genuine issue of material fact regarding reasonableness of her reliance on Driver Exclusion Agreement as a promise that policy would extend beyond the policy's stated expiration date, especially after insurer sent non-renewal notices for policies on two different vehicles

38 Fla. L. Weekly D562a
125 So. 3d 263

Attorney's fees -- Insurance -- Insurer is not precluded as matter of law from seeking attorney's fees under section 627.428 -- Liability carrier, which settled claims against insured and obtained assignment of insured's right to pursue claims against another liability insurer for failing to fulfill duty to defend and indemnify, was entitled to award of attorney's fees pursuant to section 627.428 when trial court determined that property damage which gave rise to claims against the insured occurred during defendant-carrier's policy period

38 Fla. L. Weekly D1654a
118 So. 3d 314

Insurance -- Attorney's fees -- Offer of settlement -- Nominal offer -- Error to deny insurer award of attorney's fees on basis that insurer's nominal offer of settlement to insured was made in bad faith -- Where insured failed to comply with conditions precedent to filing lawsuit against insurer, insurer had reasonable basis to believe that its exposure was nominal

38 Fla. L. Weekly D392a
112 So. 3d 504

Insurance -- Commercial general liability -- Attorney's fees -- Where university was an additional named insured on policy issued to company which ran a summer swim camp for children using the pool on the university's campus, university was entitled to be indemnified for attorney's fees and costs incurred in hiring its own attorney to defend action alleging that both company which ran camp and university were directly negligent in causing injuries to a camper, after insurer retained one law firm to represent both defendants -- There was a conflict of interest in providing single counsel to represent both named insured and additional insured -- Where both named insured and additional insured have been sued, and the allegations claim that each is directly negligent for the injuries sustained, a conflict between the named insured and the additional insured exists that would require the insurer to provide separate and independent counsel for each

38 Fla. L. Weekly D1576b
116 So. 3d 1288

Insurance -- Attorney's fees -- Circuit court departed from essential requirements of law in denying insurer appellate attorney's fees under proposal for settlement statute on ground that motion for appellate attorney's fees was insufficient because it did not reference a provision of the insurance policy providing for an award of attorney's fees

38 Fla. L. Weekly D817a
111 So. 3d 240

Insurance -- Automobile liability -- Plaintiff's motion to add defendant's liability insurer as party to final judgment for purposes of attorney's fees and taxable costs was timely -- Where final judgment reserved jurisdiction to consider any motions regarding attorney's fees, motion to add insurer as party, which was filed before entry of judgment on issue of attorney's fees, was timely -- Date of final judgment in main dispute is not proper date for determining timeliness of motion -- Arguments raised by insurer in motion for rehearing in trial court were abandoned where insurer filed notice of appeal prior to motion for rehearing being disposed of by signed, written order

38 Fla. L. Weekly D391a
117 So. 3d 1142

Insurance -- Homeowners -- Attorney's fees -- Insured's action against insurer for breach of contract and bad faith, and to confirm appraisal award after insurer had sent check to insured for appraisal award but improperly deducted from the appraisal award the amount it unilaterally concluded would be the amount of depreciation -- Trial court properly granted insured's motions for entitlement to attorney's fees and costs for having recovered depreciation payment -- Trial court did not abuse discretion in awarding attorney's fees for 150 hours, which court reduced from requested 225 hours based on expert testimony, at hourly rate of $450, plus a multiplier of 2.0 -- Trial court did not award fees for time spent on unresolved bad faith claim

38 Fla. L. Weekly D1224d
125 So. 3d 956

Insurance -- Uninsured motorist -- Argument -- Expert witnesses -- Impeachment -- Error to deny insurer's motion for new trial based on improper closing argument by plaintiff's counsel and improper cross-examination of insurer's expert witness -- Numerous improper comments urging jury to punish insurer for defending against insured's claim in court exceeded scope of permissible argument -- Questioning of defense expert who conducted compulsory medical examination of plaintiff was improper as to the absence of detailed records showing the number of and payment for compulsory medical examinations performed by expert for insurer, and as to expert's failure to physically bring requested items with him to court -- Costs -- Although insured's cross-appeal of order denying insured's motion for costs is moot, court notes that provision in UM policy that costs are to be paid by party incurring them is unenforceable

38 Fla. L. Weekly D2386a
126 So. 3d 1255

Insurance -- Homeowners -- Assignment of benefits -- Breach of contract action against insurer by remediation company which had been assigned right to benefits under policy by insured homeowner -- Trial court erred in dismissing action on ground that assignee remediation company lacked standing because assignment was invalid where that ground was not raised in motion to dismiss -- Although not ruling on issue, court notes that provision of policy that prohibits assignment of policy does not appear to prevent assignment of benefits owing by virtue of a claim arising under policy -- Appeals -- An order that dismisses a complaint without leave to amend is a final appealable order even if the order is not “with prejudice”

38 Fla. L. Weekly D619b
121 So. 3d 50

Insurance -- Bad faith -- Arbitration -- Trial court erred in denying insurer's motion to compel arbitration where policy provided for arbitration of disputes or differences of opinion “arising with respect to interpretation of this Policy or in the event of disagreement as to whether or not a particular settlement should be made,” and the issues raised in the bad faith claims at issue are inextricably intertwined with arbitrable issues -- Arbitration proceeding will determine issues which underlie bad faith claims

38 Fla. L. Weekly D396a
106 So. 3d 997

Insurance -- Administrative law -- Homeowners insurer did not waive right to enforce policy appraisal provision by failing to notify insured within five days of receiving claim of right to participate in state-sponsored mediation program where insurer did give insured notice of right to participate in mediation, but not within the five-day period prescribed by administrative rule -- By adopting five-day rule, Florida Department of Financial Services exceeded its rulemaking authority

38 Fla. L. Weekly D820a
125 So. 3d 846

Insurance -- Property -- Condominiums -- Hurricane damage -- Appraisal -- Reduction -- Exclusions -- Provisions of policies excluding from coverage “other structures on the demised locations, set apart from the building by clear space” did not conflict with statute requiring insurers that issue condominium policies to provide coverage for all portions of condominium property located outside the units and all portions of condominium property for which declaration of condominium requires coverage by the association -- Statute, read as a whole, reflects purpose of regulating insurance obligation of condominium associations and was not intended to impose mandatory insurance obligation upon carriers -- Accordingly, trial court erred in failing to reduce appraisal award by amounts related to damages excluded from coverage -- Trial court erred in entering summary judgment confirming appraisal award without considering insurer's contention that parties reached pre-appraisal agreement that settled amount due for roof repairs and water extraction for two of the insured buildings -- This defense, which was in the nature of accord and satisfaction, should have been adjudicated by court, as it raised claim not encompassed by appraisal clauses in the policies as well as one that appraisers are ill-equipped to decide -- Trial court did not err in refusing to address insurer's defense that certain items awarded were duplicative, as this issue was solely within province of appraisers -- If appraisers improperly duplicated itemized losses, it was incumbent upon insurer to seek clarification and/or modification of appraisal -- Trial court did not err in refusing to entertain insurer's claim that it properly removed amounts from the appraisal award that represented losses to property the unit owners were responsible for insuring pursuant to section 718.111(11) where insurer did not contend that policies did not actually cover these losses -- Appraisal should be further reduced by amounts previously paid by insurer

38 Fla. L. Weekly D649a
110 So. 3d 110

Insurance -- Property -- Coverage -- Hurricane damage -- Appraisal -- Ordinance and law coverage -- Error to enter final summary judgment in favor of insurer in declaratory judgment action in which property owner contended he was entitled to ordinance and law coverage based on roof damage caused by hurricane -- Ordinance and law claim was not encompassed by original appraisal, as evidenced by fact that appraisal award stated that “Ordinance and Law” was not appraised -- Further, ordinance and law is not recoverable until it is incurred and thus could not have been appraised at time of original appraisal -- Insurer's contention that ordinance and law coverage is not implicated because appraisers allowed for only two square feet of tile replacement, which was considerably less than the 25% of the total area which would trigger city's requirement that the entire roof be replaced to current ordinance standards -- This was not a ground argued by insurer in its motion for summary judgment; and, in any event, property owner offered affidavit from general contractor stating that city would require replacement because original roof tiles were no longer made and could not be replaced -- Property owner was not required to follow formal procedures of Arbitration Code in order to challenge appraisal award

38 Fla. L. Weekly D1507c
117 So. 3d 1226

Insurance -- Windstorm -- Appraisal -- Trial court erred in applying Florida Arbitration Code to “confirm” appraisal award -- It was error for court to accept insured's argument that insurer's defenses were subsumed in the appraisal process or waived by insurer's agreement to appraisal -- Proper procedure required that insurer's defenses be addressed, not by motion to confirm appraisal award under Florida Arbitration Code, but rather by motion for summary judgment or trial

38 Fla. L. Weekly D976a
126 So. 3d 355

Insurance -- Homeowners -- Appraisal -- Error to grant motion to compel appraisal where parties had not entered a written agreement setting forth the terms of the appraisal as required by appraisal clause in policy

38 Fla. L. Weekly D950a
114 So. 3d 1031

Insurance -- Homeowners -- Misrepresentation on application -- Where insured falsely answered “no” to question of whether insured had been convicted of a felony in the last ten years, and policy provided that policy would be void if insured has made a false statement, trial court erroneously required that insurer prove that misrepresentation was an intentional misrepresentation before the insureds' claim could be denied and the policy voided -- Where jury found that the policy would not have been issued if the truth regarding insured's criminal history had been known to insurer, the policy is void

38 Fla. L. Weekly D85a
104 So. 3d 384

Insurance -- Homeowners -- Appraisal -- Error to enter order compelling appraisal where there was no agreement between parties to appraise loss as required by appraisal provision in policy

38 Fla. L. Weekly D2401a
134 So. 3d 1071

Insurance -- Homeowners -- Coverage -- Denial -- Misrepresentations on application -- Evidence -- Where insurer denied coverage for fire on ground that insured made material misrepresentation when he stated to insurer's telephone representative that his home had a burglar alarm, and insured denied making this statement, trial court did not err in admitting into evidence a consent order entered into by insurer with the Florida Department of Financial Services and allowing a witness from the Department to testify that the conduct that led to the consent order included fact that unlicensed agents were giving quotes “based on every available discount” and that insurer's software auto-populated discounts whether or not an applicant claimed to have a device that would warrant a discount -- Evidence was relevant and not unduly prejudicial -- Jury instructions -- Error in instructing jury about an adverse inference that could be drawn from a failure to produce evidence was harmless where instruction let jury decide whether there was evidence within insurer's control that it could have preserved, but did not suggest to jury that insurer failed to produce evidence within its control

38 Fla. L. Weekly D424a
113 So. 3d 957

Insurance -- Automobile liability -- Appeals -- Order determining insurance coverage -- Court does not have jurisdiction of appeal of partial final judgment that resolves declaratory count of three-count complaint against insurer for declaratory relief, breach of contract, and bad faith for failure to defend and indemnify driver of vehicle in wrongful death action -- Because complaint reflects that the three counts are based on the same facts and are intertwined, allowing an appeal of the partial judgment on the declaratory count would foster impermissible piecemeal review -- Appeal dismissed -- Conflict certified

38 Fla. L. Weekly D49d
103 So. 3d 1011

Insurance -- Rescission -- Misrepresentations on application -- Error to enter final summary judgment allowing insurer to rescind policy for material misrepresentations on policy renewal application where there were genuine issues of material fact as to whether waiver or estoppel barred rescission, given evidence from which jury could conclude that shortly after insured law firm was sued for malpractice in early 2006, the insurer was made aware of the facts it now claims justify rescission, but insurer did not assert rescission until late 2007, and during interim, insurer defended firm, settled another claim on the policy, and took other actions that were inconsistent with rescission upon which the insured firm relied to its detriment

38 Fla. L. Weekly D1834a
120 So. 3d 217

Insurance -- Appeals -- Certiorari -- Petition by insurer for writ of certiorari from trial court orders denying motion to abate insurance bad faith action and denying motion for protective order from bad faith discovery -- Certiorari jurisdiction is lacking because insurer is not materially harmed and has adequate remedy on appeal from a final order -- A nonfinal order denying a motion to dismiss an insurance bad faith action is not subject to certiorari review -- Alleged deficiency in civil remedy notice served by insureds is not reviewable by certiorari -- Petition dismissed

38 Fla. L. Weekly D1376a
115 So. 3d 441

Administrative law -- Department of Financial Services -- Licensing -- Insurance agents -- Suspension -- Lack of fitness or trustworthiness to engage in business of insurance -- Sale of unregistered securities -- Error to suspend insurance agent's license for sale of unregistered securities in the form of viatical settlements where the viatical settlements were not securities under the law in effect at time of sale

38 Fla. L. Weekly S511a
117 So. 3d 943

NOT FINAL VERSION OF OPINION
Subsequent Changes at 38 Fla. L. Weekly S616b

Insurance -- Home health care -- Limited home health care policy is ambiguous -- Under reasonable interpretation of policy, the automatic benefit increase percentage provision of policy applies to per occurrence maximum benefit and lifetime maximum benefit amount as well as daily benefit amount -- Under Florida law, where the policy is ambiguous it must be construed against the insurer and in favor of coverage without resort to extrinsic evidence

38 Fla. L. Weekly D1558c
117 So. 3d 476

Administrative law -- Licensing -- Insurance adjusters -- Licensee failed to establish any statutory ground upon which court might set aside Department of Financial Services order denying application for reinstatement of insurance adjuster's license which had been suspended when licensee entered plea of nolo contendere to felony involving moral turpitude -- Department was not bound by its suspension order to reinstate license after expiration of suspension period upon licensee's application -- Amendment to statute establishing 15-year disqualification period was not applied retroactively where application was submitted and pending after effective date of amendment