2014

39 Fla. L. Weekly D1727a
147 So. 3d 109

Insurance -- Uninsured motorist -- Jurisdiction -- Once insurer confessed judgment for its policy limits, trial court lacked jurisdiction to take any action other than to enter judgment in amount of UM policy limits in favor of insured -- Trial court departed from essential requirements of law by allowing insured to amend complaint to add count for declaratory judgment to determine apportionment of liability and total amount of damages suffered by insured -- Insured not precluded from litigating damages issue on bad-faith claim, which is separate and distinct from the judgment entered in this case based on insurer's contractual obligations under policy

39 Fla. L. Weekly D2553b
152 So. 3d 803

Insurance -- Automobile accident -- Uninsured motorist -- Trial court did not err in granting directed verdict for insurer and in denying plaintiff's motion for new trial where plaintiff had stated on the record that she did not want the uninsured motorist claim against unidentified third vehicle to go to the jury, and her counsel accepted both jury instructions and verdict form, thus essentially dismissing the claim

39 Fla. L. Weekly D624a
137 So. 3d 503

Insurance -- Uninsured motorist -- Damages -- Additur -- Denial -- Appeals -- Jurisdiction -- Motion for additur was not timely served under rule 1.530(b) where it was not filed with trial court until 19 days after return of jury verdict -- Untimely motion for additur did not suspend rendition of final judgment -- Appeal dismissed as untimely

39 Fla. L. Weekly D1575b
158 So. 3d 640

Insurance -- Uninsured motorist -- Compulsory medical examination -- Failure to attend -- Error to enter summary judgment in favor of insurer after insured failed to appear for medical examination without finding of material breach by insured or finding of prejudice to insurer because of insured's noncompliance with a policy provision

39 Fla. L. Weekly S122a
135 So. 3d 1071; 135 So. 3d 280

Insurance -- Uninsured motorist -- Compulsory medical examination -- An insured's breach of a compulsory medical examination provision in an uninsured motorist policy of insurance does not result in forfeiture of benefits unless the insurer pleads and proves it was prejudiced as part of its affirmative defense -- CME provision in UM context is a post-loss obligation of insured, not a condition precedent to coverage -- Undisputed facts in instant case demonstrate that insurer was not prejudiced by insured's refusal to submit to CME prior to initiation of litigation

39 Fla. L. Weekly D1965e
150 So. 3d 252

Torts -- Negligent misrepresentation -- Insurance -- Uninsured motorist -- Error to dismiss with prejudice complaint alleging that insurer's agent made false statement about extent of insured's stacked UM coverage, that agent knew or should have known that statement was false, that statement was made to induce insured to keep coverage and pay higher premium, and that insured was injured due to reliance on misrepresentation

39 Fla. L. Weekly D140a
134 So. 3d 1073

Attorney's fees -- Insurance -- Title -- Action by insured against insurer alleging that title insurer had breached insurance contract and had acted in bad faith when it denied coverage and refused to finance appeal in earlier property-dispute litigation in which insurer had asserted insured's claim to way of necessity to landlocked property and which resulted in judgment finding that insured had created its own lack of access -- Counterclaim by insurer for attorney's fees incurred in property-dispute litigation and for section 57.105 fees as sanction against insured -- No error in awarding insurer fees incurred in prosecuting property-dispute litigation in which it asserted insured's claim to way of necessity for access to landlocked property where insurer reserved right to seek reimbursement if action was later determined not to be covered under policy -- No error in awarding fees pursuant to section 57.105 as sanction for insured's frivolous complaint

39 Fla. L. Weekly D1159a
147 So. 3d 1019

Insurance -- Sinkhole claims -- Neutral evaluation -- Error to deny stay of action pending neutral evaluation of sinkhole claim -- Insurer's participation in litigation did not constitute waiver of right to stay

39 Fla. L. Weekly D2182a
148 So. 3d 547

Insurance -- Sinkhole claims -- Neutral evaluation -- Trial court improperly sustained insureds' objection to Citizens Property Insurance Corporation's notice of automatic stay on basis that Citizens waived its right to neutral evaluation -- Trial court directed to stay proceedings pending completion of neutral evaluation process

39 Fla. L. Weekly D1257a
161 So. 3d 463

Insurance -- Sinkhole claims -- Neutral evaluation -- Trial court improperly sustained insured's objection to insurer's notice of stay of breach of contract litigation pending neutral evaluation of sinkhole claim -- Insurer did not waive right to neutral evaluation by participating in litigation

39 Fla. L. Weekly D2581a
152 So. 3d 835

Insurance -- Sinkhole claims -- Error to enter summary judgment for insurer in insureds' action alleging that insurer breached contract in denying claim for sinkhole damage on basis that insureds concealed a material fact in violation of policy by not disclosing report of insureds' investigator who concluded that damage to property was caused by sinkhole activity

39 Fla. L. Weekly D245a
136 So. 3d 670

Insurance -- Sinkhole claims -- Neutral evaluation -- Stay of court proceedings pending completion of neutral evaluation of claim -- Insurer did not waive right to demand participation in neutral evaluation by participating in litigation -- Statutory amendment providing for stay of court proceedings “regardless of when noticed” applies retroactively to policy issued prior to amendment -- To extent trial court's order denying stay pending neutral evaluation finds that insurer waived its right to neutral evaluation process by participating in litigation, the order meets jurisdictional prongs of certiorari review -- Order constituted a departure from essential requirements of law -- Because language of statute is mandatory, requiring that court proceedings “shall be stayed pending completion of the neutral evaluation,” portion of certiorari petition addressing trial court's denial of stay is converted to petition for writ of mandamus, and writ is granted

39 Fla. L. Weekly D1299a
143 So. 3d 949

Insurance -- Personal injury protection -- Extended PIP provision of policy was ambiguous as to whether insurer's liability for extended PIP benefits was limited to $10,000 or whether insurer was required to pay all insured's medical expenses without limitation -- Because ambiguity must be construed against insurer as drafter of policy, trial court erred in entering summary judgment for insurer in insured's declaratory judgment action, finding that extended PIP coverage only allows for recovery of medical expenses until $10,000 limit is reached

39 Fla. L. Weekly D2178a
162 So. 3d 98

Insurance -- Civil procedure -- Relief from technical admissions -- Circuit court, in affirming county court's final summary judgment against insurer who had inadvertently filed a response to chiropractic facility's request for admissions but promptly moved for relief, violated a clearly established principle of law, resulting in a miscarriage of justice -- Circuit court correctly recognized that county court had abused its discretion in denying insurer's motion for relief from technical admissions, where such denial is contrary to the true facts of the case and where the opposing party has not shown prejudice, but the circuit court erroneously affirmed on grounds insurer had not yet filed its affidavit opposing summary judgment -- A party seeking relief from admissions is not required to file affidavits before the court hears the request -- Circuit court also applied incorrect law to uphold trial court's striking of insurer's affidavit opposing summary judgment as repudiating previous depositions, but such case law does not apply to technical admissions

39 Fla. L. Weekly D491a
137 So. 3d 1049

Insurance -- Personal injury protection -- Exhaustion of benefits -- Where reasonableness of a medical provider's claim is still in dispute, post-suit exhaustion of benefits extinguishes provider's right to further payments, so long as exhaustion is prior to the establishment of the amount to which the medical provider is entitled under PIP -- Once PIP benefits are exhausted through payment of valid claims, insurer has no further liability on unresolved pending claims absent bad faith in the handling of the claim by the insurance company -- Appeals -- Certified questions from county court -- Court discharges jurisdiction of one of the two cases before it in which county court certified three questions, as district courts have already ruled on one issue and have answered the question uniformly, and county court expressly did not rule or make any judicial determination on issues raised in the other two certified questions -- Appeal in that case transferred to circuit court

39 Fla. L. Weekly D2561a
159 So. 3d 151

Insurance -- Personal injury protection -- Circuit court appellate division departed from essential requirements of law in finding that insurer was required to pay additional PIP benefits after $10,000 policy limits had been exhausted -- Showing of bad faith is required before insurer can be held liable for benefits above the statutory limit

39 Fla. L. Weekly D1023a
139 So. 3d 380

Consumer law -- Action by Department of Legal Affairs against automobile dealership alleging violations of Florida Deceptive and Unfair Trade Practices Act and Florida Consumer Collection Practices Act -- Trial court erred in dismissing complaint on basis that Department was not the enforcing authority under FDUTPA where state attorney had deferred litigation against defendants -- Error to dismiss complaint on basis of statute of limitations where only two allegations within complaint referred to time periods outside four-year statute of limitations -- Trial court did not err in dismissing claim that defendants violated FDUTPA by adding credit life, credit disability, and GAP insurance to customers' monthly payments without disclosing the items -- This activity deals with insurance and is subject to regulatory authority of Office of Insurance Regulation -- Error to dismiss claim that defendants installed GPS tracking devices on cars they sold without customers' knowledge or authorization -- Error to dismiss claim that defendants added a pre-delivery inspection fee to the price of their vehicles without proper disclosure -- Dismissal could not properly be based on doctrine of res judicata because a defense of res judicata cannot be raised for first time in motion to dismiss -- Error to dismiss claim that defendants kept customers' deposits or binders without adequate disclosure -- Trial court properly dismissed claim that defendants violated Florida Consumer Collection Practices Act on basis that Department did not establish its authority to bring a FCCPA claim -- Error to dismiss claim that defendants violated FDUTPA by willfully using threats or threatened force or violence in their debt collection or willfully claimed or threatened to enforce illegitimate debts -- Trial court properly dismissed claim that defendants engaged in business of a motor vehicle retail installment seller without a license where Department failed to sufficiently plead how the alleged violation caused actual damages to consumers -- Error to dismiss claim that defendants wrongfully repossessed vehicles -- Error to dismiss claim that defendants reported false sales and financing

39 Fla. L. Weekly D1636a
145 So. 3d 178

Unclaimed property -- Life insurance funds -- Statutory requirement that insurers remit to Department of Financial Services any life insurance funds that remain unclaimed for certain period of time after the funds become “due and payable” -- Department's declaratory statement interpreting statute to mean that life insurance funds become “due and payable” at time of insured's death is clearly erroneous -- Life insurance funds become due and payable at time insurer receives proof of death and surrender of policy, when insurer knows that insured has died, or when insured attained or would have attained limiting age -- There is no requirement that insurers search death records in order to ascertain whether an insured had died

39 Fla. L. Weekly D361b 134 So. 3d 505 Insurance -- Homeowners -- Sinkhole loss -- Under sinkhole loss settlement provision of policy, it was error for trial court to require insurer to pay replacement costs for subsurface sinkhole repairs before insureds contracted for the necessary repairs

39 Fla. L. Weekly D1756a
151 So. 3d 2

Insurance -- Homeowners -- Property damage -- Sinkhole -- Subsurface repairs -- Error to order insurer to pay for subsurface repairs before homeowner entered into contract for these repairs where insurance policy contained loss settlement provision which authorized withholding of payment until homeowners entered into contract for repairs

39 Fla. L. Weekly D580b
146 So. 3d 502

Insurance -- Homeowners -- Sinkhole claim -- Appeals -- Certiorari -- Insured is not entitled to certiorari review of trial court order finding that insurer is not obligated to tender payment for subsurface repairs to residence under an appraisal award until insured enters into a contract for the subsurface repairs, because insured has not demonstrated that order causes material harm that cannot be remedied on appeal

39 Fla. L. Weekly D1273c
152 So. 3d 595

Insurance -- Homeowners -- Sinkhole -- Error to grant summary judgment in favor of insurer on homeowners' sinkhole claim where there was material issue of fact concerning whether insureds timely reported their loss to insurer -- In considering insurer's defense of untimely notice of claim, circuit court must follow two-step analysis, which requires determining whether notice was timely given and, if untimely, whether insurer was prejudiced by untimely notice -- Question whether insureds timely reported claim to insurer remains to be determined by jury in instant case -- If jury determines that notice was untimely, insureds must overcome presumption of prejudice in order to prevail on insurer's defense of untimely notice

39 Fla. L. Weekly D577a
161 So. 3d 424

Insurance -- Homeowners -- Sinkhole damage -- Trial court improperly denied stay of breach of contract action pending completion of neutral evaluation process

39 Fla. L. Weekly D2257a
161 So. 3d 565

Insurance -- Homeowners -- Sinkhole claim -- Breach of contract action against insurer which denied sinkhole claim after its expert determined that sinkhole was not the cause of damage to insureds' home -- Trial court erred in entering summary judgment for insurer in insureds' breach of contract action on ground that insureds breached concealment provision of policy by withholding report of insureds' expert, which determined that sinkhole activity caused damage to home, until after insureds filed suit -- Policy did not require insureds to give report to insurer unless they had the report at the time of the claim but before insurer denied it -- “Duties After Loss” provision of policy did not obligate insureds to produce documents to insurer unsolicited

39 Fla. L. Weekly D2198a
153 So. 3d 298

Insurance -- Homeowners -- Sinkhole claim -- Appraisal -- Insureds waived right to appraisal by engaging in litigation activities for almost a year after insurer acknowledged that loss was covered before demanding appraisal

39 Fla. L. Weekly D2196b
153 So. 3d 301

Insurance -- Homeowners -- Sinkhole claim -- Appraisal -- Insureds waived right to appraisal by filing breach of contract action against insurer after insurer acknowledged that a covered loss had occurred, and engaging in litigation activities for three years before demanding appraisal -- Insureds acted inconsistently with their right to appraisal

39 Fla. L. Weekly D2195a
148 So. 3d 840

Insurance -- Homeowners -- Sinkhole claim -- Appraisal -- Insureds waived right to appraisal by engaging in significant litigation activities for over a year after insurer had admitted coverage before moving to compel appraisal

39 Fla. L. Weekly D2575a
154 So. 3d 422

Insurance -- Homeowners -- Sinkhole claim -- Appraisal -- There is no merit to insurer's contention that trial court should not have ordered appraisal because the only dispute between parties was about the method of repair rather than the amount of loss -- Insureds did not waive appraisal by engaging in litigation where coverage had initially been denied, and insureds demanded appraisal less than a month after insurer acknowledged that insureds had suffered a covered sinkhole loss -- Trial court did not err in compelling appraisal without an evidentiary hearing where underlying facts were undisputed

39 Fla. L. Weekly D2197a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 39 Fla. L. Weekly D2575a

Insurance -- Homeowners -- Sinkhole claim -- Appraisal -- There is no merit to insurer's contention that trial court should not have ordered appraisal because the only dispute between parties was about the method of repair rather than the amount of loss -- Insureds did not waive appraisal by engaging in litigation where coverage had initially been denied, and insureds demanded appraisal less than a month after insurer acknowledged that insureds had suffered a covered sinkhole loss -- Trial court did not err in compelling appraisal without an evidentiary hearing where underlying facts were undisputed

39 Fla. L. Weekly D1762b
145 So. 3d 210

Insurance -- Homeowners -- Trial court did not err in entering summary judgment for insurer in insured's action against insurer on ground that insureds breached a condition precedent to coverage by failing to submit a timely proof of loss -- Insureds failed to present any evidence to rebut presumption that insurer was prejudiced by delay of almost five years in submitting sworn proof of loss

39 Fla. L. Weekly D1394a
141 So. 3d 719

Insurance -- Homeowners -- Limitation of actions -- Trial court erred in entering summary judgment for homeowners insurer in insureds' action for breach of contract on ground that action was barred by statute of limitations -- Statute of limitations did not begin to run at time insurer sent letter to insureds stating that damages fell below policy's deductible where letter did not clearly deny claim and invited insureds to submit any additional damages discovered to insurer

39 Fla. L. Weekly D1421a
147 So. 3d 566

Insurance -- Homeowners -- Property damage from hurricane -- Limitation of actions -- Error to dismiss with prejudice homeowner's complaint against insurer alleging breach of property insurance contract on ground that claim was barred by statute of limitations and on ground that insured failed to comply with notice of loss provision of contract -- Statute providing that limitations period in action for breach of property insurance contract begins running from date of loss does not apply retroactively -- Whether insured failed to comply with notice of loss provision in contract was matter outside four corners of complaint and, accordingly, was not proper basis for dismissal

39 Fla. L. Weekly D162a
129 So. 3d 1179

Insurance -- Homeowners -- Liability -- Dog bite -- Trial court erred in concluding 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 -- Ambiguous occurrence language in policy construed as meaning each separate dog bite that resulted in a separate injury to a separate victim was a separate occurrence

39 Fla. L. Weekly D297a
133 So. 3d 1114

Insurance -- Homeowners -- Limitation of actions -- Trial court erred in entering summary judgment finding that insured's breach of contract action was barred by statute of limitations -- Breach of contract claim did not accrue at time insurer made payments on initial claim without noting that payment was full and final payment, but rather at later date when insured's additional claim was submitted to insurer, but not adjusted or paid

39 Fla. L. Weekly D629a
137 So. 3d 500

Insurance -- Homeowners -- Water damage as result of roof leak -- Appraisal -- Error to grant insureds' motion to compel appraisal without first resolving underlying coverage disputes in procedurally proper manner -- To extent trial court's order found coverage for loss, that ruling was not supported by competent evidence

39 Fla. L. Weekly D780a
135 So. 3d 578

Insurance -- Homeowners -- Action by homeowners insurer against contractor who performed renovations to home after a fire, alleging that defendant negligently installed a built-in coffee maker in the home, which resulted in severe water damage -- Error to enter summary judgment for defendant where there were disputed issues of fact

39 Fla. L. Weekly S75a
133 So. 3d 494

Insurance -- General liability -- Self-insured retention -- Under terms of policy, insured could properly apply indemnification payments received from a third party toward satisfaction of its self-insured retention -- Subrogation -- Transfer of rights provision in policy did not abrogate made whole doctrine -- Insured has priority to receive any indemnification before insurer

39 Fla. L. Weekly D1819a
146 So. 3d 1207

Insurance -- Homeowners -- Insolvent insurer -- Miami-Dade County Circuit Court erred in vacating order substituting Florida Insurance Guaranty Association for insolvent insurer and staying case to allow insured to proceed with any actions with Circuit Court of Leon County which had entered consent order appointing Florida Department of Financial Services as receiver for purpose of liquidating insurer -- When an insurer becomes insolvent, FIGA is deemed the insurer to the extent of covered claims and is amenable to suit in connection with any unpaid claims

39 Fla. L. Weekly D2134a
153 So. 3d 936

Insurance -- Homeowners -- Sinkhole claim -- Florida Insurance Guaranty Association -- Limitation of actions -- Trial court properly entered summary judgment for FIGA in insureds' breach of contract and declaratory judgment action on ground that action was barred by one-year statute of limitations

39 Fla. L. Weekly D1002a
140 So. 3d 1023

Insurance -- Homeowners -- Florida Insurance Guaranty Association -- Covered claims -- Scope of FIGA's liability is properly determined by statutory definition of “covered claim” in effect at time insurer is adjudicated insolvent, rather than time when policy was executed or when loss occurred -- Under more restrictive statutory definition of “covered claim” when insurer was declared insolvent, FIGA was required to pay for sinkhole damage only to the contractor who performed repairs, and not directly to policyholder

39 Fla. L. Weekly D1350c
164 So. 3d 684

Insurance -- Fire -- Ordinance or law coverage endorsement -- Provision of ordinance or law endorsement which provided that insurer would not pay for increased cost of construction due to enforcement of ordinance or law unless repairs or replacement are made within two years after loss was a forfeiture provision, and was waived by insurer -- Insurer waived the provision by failing to bring the provision to insured's attention despite knowing that insured expected the entire claim to be paid and by continuing to adjust the entire claim after the two-year period expired

39 Fla. L. Weekly S647a
154 So. 3d 1106

Insurance -- Uninsured motorist -- Coverage -- Insured injured while riding as passenger in insured vehicle being driven by permissive user -- Family vehicle exclusion for uninsured motorist benefits does not conflict with section 627.727(3), Florida Statutes, 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 -- Uninsured motorist benefits are not stackable under section 627.727(9), Florida Statutes, 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 -- Family vehicle exclusion in an automobile policy, which excludes a family vehicle from the definition of an uninsured motor vehicle, does not conflict with section 627.727(3), Florida Statutes -- Uninsured motorist benefits are not stackable under section 627.727(9) if the named insured or purchaser of the policy made a non-stacking election, as this waiver applies on behalf of all insureds under the policy

39 Fla. L. Weekly D2338a
151 So. 3d 55

Insurance -- Liability -- Exclusions -- Claims arising from assault and battery -- Coverage was excluded under assault and battery exclusion for claim against insured by plaintiff who was stabbed on insured's premises by a patron -- Error to find that insurer had a duty to defend action against insured

39 Fla. L. Weekly D1864e
152 So. 3d 2

Insurance -- Homeowners -- Coverage -- Ambiguities -- Property loss caused by large amount of water flowing from pipe going to home's upstairs toilet for period of over 30 days while owners were out of town -- Latent ambiguities existed which precluded entry of summary judgment where policy covered sudden and accidental direct physical loss to property, but excluded coverage for seepage of water from within or around plumbing fixtures, and relevant facts regarding whether water escaped as an escalating leak or as a burst that continued at a constant rate remain unresolved

39 Fla. L. Weekly D2383a
152 So. 3d 60

Insurance -- Homeowners -- Liability -- Exclusions -- Sexual molestation -- Trial court properly found that policy did not cover insureds for their negligent supervision of child who was allegedly sexually battered by insureds' child while in the care of insureds -- Policy exclusion is clear and unambiguous

39 Fla. L. Weekly D2016c
147 So. 3d 659

Insurance -- Homeowners -- Liability -- Trial court erred in finding that homeowners policy did not provide personal liability coverage for claim of negligent supervision for underlying intentional tort of battery committed by insureds' son -- Intentional act exclusion and severability clause, which stated that the insurance applied separately to each insured, created a policy ambiguity which is resolved in insureds' favor

39 Fla. L. Weekly D2068a
155 So. 3d 367

Insurance -- Homeowners -- Conditions precedent to suit -- Examination under oath

39 Fla. L. Weekly D993b
155 So. 3d 367

NOT FINAL VERSION OF OPINION
Subsequent Changes at 39 Fla. L. Weekly D2068a

Insurance -- Homeowners -- Conditions precedent to suit -- Examination under oath -- Error to enter summary judgment for defendant insurer in insureds' action for breach of insurance contract on ground that insureds failed to appear for examination under oath where insureds complied to some extent with requirements of policy -- Summary judgment was precluded by factual question as to whether there was sufficient breach of cooperation provisions of policy to deny insureds any recovery under policy

39 Fla. L. Weekly D2471a
161 So. 3d 576

Insurance -- Homeowners -- Sinkhole claim -- Claim for breach of contract against insurer that refused to pay claim after its expert engineer determined that there was no sinkhole activity and no structural damage to property -- Trial court erred in allocating the burden of proof by finding that insured had burden of proof to show that damage to home was caused by sinkhole activity during policy period -- In the case of all risks policy with sinkhole endorsement, insured had burden of proving that insured property suffered a loss while policy was in effect, and burden then shifted to insurer to prove that the loss was excluded from coverage -- Evidence -- Impeachment -- Error to exclude impeachment evidence of the amount insurer had paid to firm that employed insurer's engineer expert during previous three years

39 Fla. L. Weekly S721a
152 So. 3d 557

Insurance -- Employer liability -- Action by estate of deceased employee against employer's employer liability insurer to collect judgment against employer in wrongful death action -- Standing -- Estate has standing to bring breach of contract action against employer liability insurer -- Workers' compensation exclusion in employer liability policy excludes coverage of estate's wrongful death judgment against employer -- Release in workers' compensation settlement agreement precludes estate from collecting judgment from employer liability insurer

39 Fla. L. Weekly D279a
132 So. 3d 864

Insurance -- Duty to defend and indemnify -- Declaratory judgment -- Stay -- Trial court departed from essential requirements of law by staying declaratory judgment action in which insurer sought to resolve its duty to defend and indemnify its insureds pending resolution of underlying arbitration action and liability action between insureds and third party -- Order caused irreparable harm to insurer by forcing it to defend insureds without resolution of coverage dispute

39 Fla. L. Weekly D91a
129 So. 3d 1086

Insurance -- Personal injury protection -- Discovery -- Discovery action by PIP insurer against provider of MRI services to insured -- Provider of services is not entitled to writ of prohibition to quash circuit court's discovery order -- Prohibition may not be used to revoke an order already entered -- Circuit court had jurisdiction over discovery action although circuit court's monetary jurisdictional threshold was not satisfied -- Action for discovery was an equitable action that fell within circuit court's jurisdiction -- Provider of services is not entitled to writ of certiorari to quash circuit court discovery order where petition for certiorari relief asserts neither a material injury nor an irreparable harm

39 Fla. L. Weekly D1401e
161 So. 3d 493

Insurance -- Homeowners -- Discovery -- Claim file -- Work product privilege -- Trial court erred by concluding that insurer's claim file lost the qualified work product privilege when claim was closed with no litigation having materialized -- Where insurer paid initial sinkhole claim, including an amount for compaction grouting to address sinkhole activity on property, but denied coverage for a subsequent claim on the ground that the damage was not covered under policy because the damage was caused by the improper remediation of the initial sinkhole by the insureds, it was a departure from the essential requirements of law for the trial court to order production of the claim file for the initial claim without an in camera inspection to determine whether there are any relevant documents that would meet the standard for production of otherwise privileged documents or information

39 Fla. L. Weekly D334b
136 So. 3d 711

Insurance -- Bad faith -- Discovery -- Circuit court did not depart from essential requirements of law by failing to conduct in-camera review to address insurer's objections to discovery requests based on scope of discovery requested and on attorney-client privilege and work product doctrine -- General denial of insurer's motion for protective order was equivalent to a determination that all of the documents were “otherwise discoverable,” and at that point, insurer's claims of privilege and protection under work product doctrine became mature -- Insurer now has ability to file privilege log pointing to specific documents which it claims are privileged

39 Fla. L. Weekly D801a
136 So. 3d 1235

Insurance -- Disability -- Where insured filed action against insurer alleging counts for declaratory judgment, breach of contract, promissory estoppel, and reformation after insurer denied insured's claim under disability insurance policy, and complaint also alleged count for negligent misrepresentation against insurance agent, it was a departure from essential requirements of law for trial court to deny motion to dismiss or stay/abate claim for negligent misrepresentation -- Negligent misrepresentation claim is premature where there has been no determination of coverage under policy -- Proper remedy is dismissal of negligent misrepresentation claim without prejudice

39 Fla. L. Weekly D442b
138 So. 3d 474

Insurance -- Disability -- Collateral estoppel -- Policy providing that insured was entitled to receive lifetime benefits if he became totally disabled prior to his sixtieth birthday but would be entitled to benefits only until age sixty-five if he became totally disabled on or after his sixtieth birthday -- Where jury found, by special interrogatory verdict in trial to determine whether insured was totally disabled, that onset of insured's total disability occurred after his sixtieth birthday, insured was collaterally estopped from relitigating the onset date of his total disability in subsequent action against insurer for breach of contract after insurer ceased paying benefits at insured's sixty-fifth birthday

39 Fla. L. Weekly D838a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 39 Fla. L. Weekly D1760a

Insurance -- Property -- Condominium and contents -- Coverage -- Conditions precedent -- Sworn proof of loss -- Where insured failed to submit sworn proof of loss, insurer did not owe payment under policy's terms unless insured rebutted presumption that failure to submit sworn proof of loss prejudiced insurer -- Because owner failed to rebut presumption, trial court properly entered judgment in insurer's favor -- Trial court correctly found that insurer did not waive sworn proof of loss requirement by tendering payment -- Personal property -- Where policy provided personal property coverage for named perils, which included an “explosion,” and that term was not defined under policy, trial court correctly gave the term its plain and unambiguous meaning -- Insured had burden of proving her contention that “explosion” included explosive expansion of a decomposing body, which was the circumstance that caused her loss -- Trial court correctly entered summary judgment in favor of insurer

39 Fla. L. Weekly D559b
151 So. 3d 1

Insurance -- Insured's breach of policy provisions -- Prejudice to insurer

39 Fla. L. Weekly D1760a
144 So. 3d 690

Insurance -- Property -- Condominium and contents -- Coverage -- Conditions precedent -- Sworn proof of loss -- Insurer was not obligated to pay where insured failed to file sworn proof of loss, thereby materially breaching condition precedent -- Insurer need not show prejudice when insured breaches condition precedent to suit -- Trial court correctly found that insurer did not waive sworn proof of loss requirement by tendering payment -- Personal property -- Where policy provided personal property coverage for named perils, which included an “explosion,” and that term was not defined under policy, trial court correctly gave the term its plain and unambiguous meaning -- Insured had burden of proving her contention that “explosion” included explosive expansion of a decomposing body, which was the circumstance that caused her loss -- Trial court correctly entered summary judgment in favor of insurer

39 Fla. L. Weekly D61b
133 So. 3d 1007

Insurance -- Commercial vehicle -- Coverage -- Trial court properly entered summary judgment finding no coverage for bodily injury claims arising out of accident pursuant to named driver exclusion provision of policy where commercial vehicle was being driven by a person who had not been added as a driver after the policy was obtained -- Trial court erred in finding no personal injury protection or property damage coverage, because those coverages are statutorily mandated

39 Fla. L. Weekly D2190e

NOT FINAL VERSION OF OPINION
Subsequent Changes at 40 Fla. L. Weekly D78a

Insurance -- Commercial property -- Sinkhole claim -- Appraisal -- Trial court erred in determining that appraisal clause in policy was unenforceable because policy provided that insurer retained right to deny claim following appraisal -- Dispute over method of repair required to return property to its original state is subject to appraisal

39 Fla. L. Weekly D1491c
143 So. 3d 439

Insurance -- Liability -- Duty to defend and indemnify -- Declaratory judgment -- Error to enter summary judgment finding that insurer which issued commercial general liability policy and umbrella policy to residential community association had duty to defend and indemnify individual association member in wrongful death action alleging member negligently supervised child while using community swimming pool and, as a result, child drowned -- Policies included endorsement that extended coverage to each individual member of association, “but only with respect to liability arising out of the ownership, maintenance or repair” of common elements, and factual issue existed as to whether member had an ownership interest in the community pool

39 Fla. L. Weekly D741a
140 So. 3d 609

Insurance -- Professional liability -- Claims-made policy -- There was coverage under claims-made policy for a class action claim that was filed outside the policy period where the class action claim was based on the same or similar facts, circumstances, and transactions as a claim brought before the policy terminated -- Under the multiple claims provision of the policy, the class action claim related back to the claim brought during the policy period -- In entering summary judgment finding no coverage under policy, trial court erroneously analyzed coverage issue under reported wrongful act provision of policy rather than multiple claims provision

39 Fla. L. Weekly D2534e
153 So. 3d 943

Insurance -- Commercial general liability -- Duty to defend or indemnify -- Officers and directors of insured professional service organization -- Insurer owed officers and directors duty of defense on third-party complaint filed by former officer alleging defamation based on statements made by third-party defendants during their systematic plan to take control of organization and oust third-party plaintiff from power -- Provision of policy providing coverage for personal injury caused by an offense arising out of insured's business, including oral or written publication of material that slanders or libels a person, does not conflict with provision excluding coverage for employment-related practices such as defamation, as a defamatory utterance might arise out of a company's business while not being employment-related -- Coverage -- Trial court's determination that insurer did not have duty to indemnify third-party defendants was premature

39 Fla. L. Weekly D2164c
162 So. 3d 96

Civil procedure -- Dismissal -- Insurance -- Insured's action against insurer -- Error to grant motion to dismiss for failure to state cause of action on basis of matters outside four corners of complaint, including allegations contained in the defendant's motion to dismiss, defendant's counterclaim for declaratory judgment, and exhibit attached to the counterclaim -- Remand for entry of order denying motion to dismiss and for order granting plaintiff's motion for defense cost determination under section 627.426(2)(b)3., with the circuit court left only to set the amount of such fee -- Order granting motion for defense cost determination shall be without prejudice to the ultimate determination of the merits of the plaintiff's causes of action and the defendant's counterclaim

39 Fla. L. Weekly D1038a
139 So. 3d 394

Torts -- Insurance brokers -- Negligent failure to procure appropriate insurance coverage -- Limitation of actions -- Trial court erred in entering summary judgment for defendant insurance broker in action alleging failure to procure liability coverage for debt collection activities on ground that statute of limitations had run -- Cause of action for negligent failure to procure coverage did not accrue until underlying claims for violation of Fair Debt Collection Practices Act were settled

39 Fla. L. Weekly D1988a
150 So. 3d 804

Insurance -- Uninsured motorist -- Bad faith -- Jury's determination of damages in first trial, which also established liability of tortfeasor, was binding on insurance company in bad faith trial -- Circuit court did not err by treating excess verdict from UM trial as conclusive evidence of plaintiff's damages in the bad faith trial

39 Fla. L. Weekly D425c
132 So. 3d 941

Insurance -- Uninsured motorist -- Bad faith -- Insurer is not entitled to writ of certiorari with regard to trial court's order denying insurer's motion requesting court to enter final judgment in accordance with insurer's confession of judgment and granting insured's motion to amend complaint seeking underinsured motorist benefits to add claim for bad faith after insurer had tendered to insured the policy limits under the UM policy -- Insurer is not entitled to obtain writ of certiorari where there is no showing of irreparable harm -- Order, which, at most, might cause a delay in insurer's ability to remove matter to federal court, does not result in irreparable harm -- Because, in the event trial court's order is reversed on appeal, insured will have to file a new, separate action for bad faith if he wishes to continue pursuing his bad faith claim, insurer would then be able to remove the action, so that there is no threat of permanent deprivation of removal right -- Order allowing insured to amend complaint to add a bad faith claim did not rise to level of a departure from essential requirements of law -- Although court declined to enter final judgment on UM claim, there is no indication that any further litigation on that claim is contemplated -- Court simply declined to enter final judgment until the bad faith claim was resolved, at which point it would add amount of verdict on that claim, if any, to the partial judgment for UM policy limits -- Order did not require insurer to simultaneously defend both UM claim and bad faith claim

39 Fla. L. Weekly D1880a
152 So. 3d 606

Insurance -- Homeowners -- Bad faith failure to settle claim -- Trial court erred in entering summary judgment for insurer in insureds' bad faith action on ground that bad faith action was not ripe because insurer's liability for breach of contract had not been determined -- Bad faith action was ripe where insurer's liability for coverage and extent of insureds' damages had been determined by appraisal award, although there had been no determination of insurer's liability for breach of contract -- Court recedes from decision which held that insurer's liability for breach of contract must be determined before bad faith action becomes ripe

39 Fla. L. Weekly D1987d
152 So. 3d 614

Insurance -- Uninsured motorist -- Bad faith refusal to settle -- Abatement -- Appeals -- Certiorari -- Trial court did not depart from essential requirements of law by abating, rather than dismissing, plaintiff's claim against UM insurer for bad faith refusal to settle, even though abatement may preclude insurer from removing the case to federal court -- Although inability to remove action to federal court constitutes irreparable harm, case law supports trial court's abatement of bad faith action in lieu of dismissal

39 Fla. L. Weekly D2215b
148 So. 3d 1284

Insurance -- Bad faith -- Discovery -- Attorney-client privilege -- Documents from insurer's attorney's litigation file in underlying coverage case -- Trial court departed from essential requirements of law in requiring production of attorney-client privileged material on grounds that the privileged information did not pertain to bad faith aspects of case

39 Fla. L. Weekly D213a
129 So. 3d 1210

Insurance -- Bad faith failure to settle claim -- Citizens Property Insurance Corporation -- Trial court erred in dismissing complaint against Citizens Property Insurance Corporation, alleging failure to attempt in good faith to settle claim, on ground that Citizens is immune from suit -- Citizens' immunity does not extend to the willful tort of failing to attempt to settle claims in good faith -- Conflict certified -- Question certified: Whether the immunity of Citizens Property Insurance Corporation, as provided in section 627.351(6)(s), Florida Statutes, shields the corporation from suit under the cause of action created by section 624.155(1)(b), Florida Statutes for not attempting in good faith to settle claims?

39 Fla. L. Weekly D1181c
139 So. 3d 949

Insurance -- Automobile liability -- Nonjoinder of insurers -- Joinder of city's insurer, prior to entry of judgments, based on an accident involving a city vehicle -- Where trial court had previously erred in entering amended final judgments and adding insurer without first determining whether plaintiff met the condition precedent of 627.4136(1) by obtaining a verdict against a city who was an insured under the terms of the liability policy for a cause of action which was covered by such policy, trial court's order on remand which again granted motion to join insurer, with no findings, statements or comments regarding the satisfaction of the condition precedent, fails to comport with the clear instructions on remand -- Final amended judgment is reversed and remanded with instructions to strike insurer as a defendant

39 Fla. L. Weekly D1337e
141 So. 3d 690

Wrongful death -- Insurance -- Nonjoinder of insurer in action against insured -- Trial court departed from essential requirements of law by denying excess liability insurer's motion to dismiss count in which personal representative sought declaratory judgment to determine nature and extent of coverage under policy issued by insurer to defendant county, which owned and operated tractor-trailer rig involved in accident in which decedent was killed -- Conditions precedent had not been met where plaintiff had not obtained judgment or settlement on wrongful death claim against county

39 Fla. L. Weekly D2301a
152 So. 3d 654

Insurance -- Automobile accident -- Excess liability -- Coverage -- Trial court erred in entering summary judgment, determining permissive user of automobile was covered under automobile owner's umbrella policy, where an issue of material fact remains regarding whether the insured satisfies umbrella policy's requirement that he could be “legally obligated” to pay damages -- Trial court never determined the legal obligation of insured, who was not named as a defendant

39 Fla. L. Weekly D962b
161 So. 3d 438

Insurance -- Automobile -- Liability -- Policy issued to Boy Scouts of America which covered its registered volunteers, but only when volunteers were “participating in an Official Scout Activity and in the scope of their duties as such” -- Volunteer whose responsibility was to encourage scouts to advance by completing requirements for whatever badge level they were working toward was acting within scope of his duties at time of collision where he had been assisting scout in completing Eagle Scout project at cemetery, had driven home for sole purpose of retrieving camera to photograph completed project, and was involved in collision as he was returning home after having made photographs -- Excess endorsement to policy did not exclude coverage because vehicle was not in “actual use of a Scouting Unit” when the accident occurred -- When vehicle is used by registered volunteer while volunteer is participating in official scout activity and acting within the scope of his duties, it is in the “actual use of the Scouting Unit,” as that phrase is intended in policy

39 Fla. L. Weekly D909b
138 So. 3d 520

Insurance -- Automobile liability -- Trial court properly found that there was no coverage under policy where policy had expired -- Insurer complied with requirement that it provide notice of payment due in advance of due date, advising insured that renewal premium was due in order to maintain policy in force, by sending notice to address provided by insured in application, which is the same address contained in the policy and on the declarations page

39 Fla. L. Weekly D1907b
146 So. 3d 139

Insurance -- Automobile liability -- Bad faith -- Discovery -- Attorney-client privilege is applicable to discovery sought by injured party in third-party bad faith action against liability insurer where there was been no assignment from insured to injured party -- Trial court departed from essential requirements of law in ordering attorney for insured and insurer to submit to deposition and produce documents without adequate consideration of insured's attorney-client privilege -- Question certified: Do the decisions in Allstate Indemnity Co. v. Ruiz, 899 So. 2d 1121 (Fla. 2005), and Genovese v. Provident Life & Accident Insurance Co., 74 So. 3d 1064 (Fla. 2011), shield attorney-client privileged communications from discovery in third-party bad faith litigation?

39 Fla. L. Weekly D2407a
152 So. 3d 673

Insurance -- Automobile dealer's open lot policy -- Policy provided coverage for damage to automobile from an accident that occurred when dealership's owner was driving vehicle to another dealership for inspection and possible servicing -- For purpose of policy provision which provided coverage for an automobile during a test drive, accident occurred during a test drive -- It is not necessary for potential purchaser of vehicle to be driving vehicle in order for the drive to be a test drive -- Insured properly proved damages

39 Fla. L. Weekly D627a
134 So. 3d 968

Attorney's fees -- Insurance -- Uninsured motorist -- No error in denying plaintiff's request for attorney's fees after insurer voluntarily paid remainder of plaintiff's UM claim where plaintiff's prayer for relief included demand for reasonable attorney's fees pursuant to sections 627.428 and 627.727(8) -- Statutes at issue do not apply in action against UM insurer unless there is dispute over whether policy provides coverage for an uninsured motorist proven to be liable, and instant case did not involve such a dispute

39 Fla. L. Weekly D139a
132 So. 3d 858

Attorney's fees -- Offer of judgment -- Insurance -- Title -- Proposal for settlement of title insurer's counterclaim against its insured clearly delineated which claims it intended to extinguish -- Trial court correctly awarded fees and costs to insurer where insured did not accept within time frame and insurer subsequently recovered judgment in amount at least 25 percent greater than offer -- No error in awarding fees for travel time, as award of fees under section 768.79 is intended as sanction against party who unreasonably rejects settlement offer -- Error to award fees incurred in litigating amount of fees

39 Fla. L. Weekly D1271c
164 So. 3d 1

Attorney's fees -- Insurance -- Homeowners -- Proposal for settlement -- Trial court used incorrect standard in determining whether insurer's nominal proposal for settlement of insured's claim for hurricane damage was made in good faith -- Rule is that minimal offer can be made in good faith if evidence demonstrates that, at time it was made, the offeror had reasonable basis to conclude that its exposure was nominal -- Record contains enough evidence to conclude that insurer only faced nominal exposure, as insured did not first report alleged damage to home for nearly four years after fact -- Remand with instructions to enter order granting fees to insurer and determining amount to be awarded

39 Fla. L. Weekly D731a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 39 Fla. L. Weekly D1271c

Attorney's fees -- Insurance -- Homeowners -- Proposal for settlement -- Trial court used incorrect standard in determining whether insurer's nominal proposal for settlement of insured's claim for hurricane damage was made in good faith -- Rule is that minimal offer can be made in good faith if evidence demonstrates that, at time it was made, the offeror had reasonable basis to conclude that its exposure was nominal -- Record contains enough evidence to conclude that insurer only faced nominal exposure, as insured did not first report alleged damage to home for nearly four years after fact -- Remand with instructions to enter order granting fees to insurer and determining amount to be awarded

39 Fla. L. Weekly D1441a
141 So. 3d 1256

Insurance -- Personal injury protection -- Attorney's fees -- Confession of judgment -- Where insurer stated that it would not pay medical provider's claims until provider complied with insurer's requests for documents, insurer instituted declaratory judgment action, provider filed counterclaim seeking declaration that insurer's document requests were outside scope of statute, insurer requested declaration that its document requests were proper, and both parties filed motions for summary judgment, it was error for trial court to enter summary judgment for insurer on basis that court no longer had jurisdiction because insurer paid the disputed claims -- In light of insurer's position that it would not pay claims until provider produced the requested documents, provider was forced to file declaratory judgment suit -- If insurer paid claims after provider filed its counterclaim, this constituted a confession of judgment, entitling provider to attorney's fees -- Court should award attorney's fees to provider for claims paid after provider filed its counterclaim

39 Fla. L. Weekly D487a
138 So. 3d 479

Insurance -- Attorney's fees -- Trial court properly denied attorney's fees and costs where insurer did not wrongfully cause insureds to resort to litigation

39 Fla. L. Weekly D455b
137 So. 3d 1039

Insurance -- Automobile -- Attorney's fees -- Where, after insured had filed breach of contract complaint against insurer for failure to pay automobile theft claim, insurer made payment to lienholder of automobile, insurer's payment to lienholder was the functional equivalent of a confession of judgment, and trial court erred in denying insured's motion for attorney's fees for prosecuting his case against insurer -- Trial court properly denied insured's motion for fees for defending insurer's counterclaims which were dismissed for lack of prosecution because order granting motion to dismiss for lack of prosecution was not a judgment or the functional equivalent of a judgment in insured's favor

39 Fla. L. Weekly D1058a
139 So. 3d 402

Insurance -- Automobile -- Attorney's fees -- Insured prevailing in action against insurer -- Policy issued in foreign state -- Where insurer which issued policy to insured in Texas accepted insured's proposal for settlement of claim for repairs to insured automobile, insured was not entitled to award of attorney's fees under Florida law -- Trial court erred in declining to consider application of Texas law to issue of entitlement to attorney's fees -- Insured could properly raise issue of entitlement to attorney's fees under Texas law in motion for reconsideration of order denying award of attorney's fees under Florida law

39 Fla. L. Weekly D1937a
155 So. 3d 1163

Insurance -- Automobile liability -- Trial court properly found that insurer was responsible for a sanctions judgment entered against insured for misrepresentations during discovery -- Sanctions judgment constituted a cost charged to insured in a covered lawsuit -- Insured's misrepresentations during deposition were not the type of misrepresentations contemplated by policy's “fraud and misrepresentation” provision which would authorize insurer to void coverage under policy -- Duty to cooperate -- Insured's conditioning its acceptance of replacement legal counsel upon insurer's withdrawal of insurer's reservation of rights did not constitute a violation of insured's duty to cooperate -- Once insurer issued its reservation of rights, insured no longer owed insurer a duty of cooperation

39 Fla. L. Weekly D1911a
207 So. 3d 245

Insurance -- Homeowners -- Sinkhole claim -- Attorney's fees -- Insured prevailing in action against insurer -- Confession of judgment -- Where insured filed claim for damage to home caused by sinkhole activity; insurer commissioned professional engineer whose presumptively correct report found that damage was not caused by sinkhole activity; insured commissioned her own engineer's report which disagreed with insurer's report; insured filed breach of contract action against insurer without disclosing her engineer's report; insurer opted to pursue neutral evaluation procedure; and insurer paid claim after neutral evaluator rendered report concluding that damage was caused by sinkhole activity, it was error to award attorney's fees to insured on the basis that insurer confessed judgment by paying claim -- Insurer's actions in investigating and handling claim pursuant to pertinent statutory provisions, and in relying on the presumptively correct report it commissioned to deny the claim, did not establish a wrongful or unreasonable denial of benefits that forced insured to file suit to obtain policy benefits

39 Fla. L. Weekly D266a
130 So. 3d 783

Insurance -- General liability -- Insured's breach of policy condition by failing to notify insurer that suit had been filed against insured, with result that default was entered against insured and plaintiff in underlying suit moved for writ of garnishment against insurer -- Although insured breached its obligations under its contract of insurance, insurer had burden to show that it was insured's breach that resulted in the existence of the judgment debt, not only when the default judgment was entered but also when plaintiff in underlying suit sought to collect -- Insured's allowing entry of judgment against it without notifying insurer of a defensible suit would materially prejudice insurer, and preclude recovery against insurer, unless insurer unjustifiably refused to file and pursue a viable motion to set the judgment against insured aside -- Insurer had an obligation to file a motion to set aside the judgment, if the original lawsuit was defensible and grounds to set aside the judgment existed -- Evidentiary hearing is required to determine whether insurer was under an obligation to file and pursue a motion to set aside the default judgment

39 Fla. L. Weekly D2440c
150 So. 3d 1272

Insurance -- Sinkhole claim -- Right to appraisal was not waived by active litigation of suit -- Appraisable issues exist -- Error to permit property owners to select their own attorney as disinterested appraiser

39 Fla. L. Weekly D2482a
155 So. 3d 384

Insurance -- Contracts -- Where insured retained public adjuster to pursue supplemental claims for losses suffered in hurricane under a retainer agreement whereby insured agreed to pay public adjuster 20% of the gross amount of the collectible loss or damage recovered “regardless of whether the loss is settled or paid by [insurer] as a result of adjustment, mediation, appraisal, arbitration, lawsuit or otherwise”; insured subsequently entered into appraisal agreement whereby appraiser agreed to act as insured's appraiser in exchange for 20% of monies collected from insurer on supplemental claims, with insured's combined obligations to public adjuster and appraiser capped at 20% of amount recovered and appraiser's rights being inferior to public adjuster's rights; and supplemental claims were settled as result of appraisal process, it was error to award 20% of settlement to appraiser -- Public adjuster is entitled to 20% contingency fee under terms of public adjuster's agreement, and appraiser is entitled to nothing under appraisal agreement

39 Fla. L. Weekly D2020a
148 So. 3d 488

Insurance -- Homeowners -- Sinkhole claim -- Appraisal -- Trial court did not err in ordering appraisal of dispute over method of repair -- Method or extent of necessary repairs is within scope of “amount of loss” appraisal provision -- Insureds did not waive right to demand appraisal by participating in litigation -- Where policy required the selection of disinterested appraisers, it was error to allow insureds to select a partner in the law firm representing them as their appraiser

39 Fla. L. Weekly D2196a
148 So. 3d 837

Insurance -- Homeowners -- Sinkhole claim -- Appraisal -- There is no merit to insurer's contention that trial court erred in ordering appraisal because the only dispute between parties was about method of repair rather than amount of loss -- Where coverage had initially been denied, and insureds demanded appraisal three months after insurer acknowledged that insureds had suffered a covered loss, insureds did not waive right to appraisal by filing a single discovery request in the interim which did not go to the amount of loss or method of repair

39 Fla. L. Weekly D2529a
152 So. 3d 759

Insurance -- Homeowners -- Sinkhole claim -- Appraisal -- Waiver of right to appraisal -- Insureds did not waive right to appraisal by failing to demand appraisal until five months after insurer admitted coverage where insureds did not aggressively litigate case after insurer admitted coverage -- Filing of amended complaint to substitute Florida Insurance Guaranty Association for insolvent insurer soon after FIGA admitted coverage did not constitute waiver

39 Fla. L. Weekly D2197a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 39 Fla. L. Weekly D2575a

Insurance -- Homeowners -- Sinkhole claim -- Appraisal -- There is no merit to insurer's contention that trial court should not have ordered appraisal because the only dispute between parties was about the method of repair rather than the amount of loss -- Insureds did not waive appraisal by engaging in litigation where coverage had initially been denied, and insureds demanded appraisal less than a month after insurer acknowledged that insureds had suffered a covered sinkhole loss -- Trial court did not err in compelling appraisal without an evidentiary hearing where underlying facts were undisputed

39 Fla. L. Weekly D2196a
148 So. 3d 837

Insurance -- Homeowners -- Sinkhole claim -- Appraisal -- There is no merit to insurer's contention that trial court erred in ordering appraisal because the only dispute between parties was about method of repair rather than amount of loss -- Where coverage had initially been denied, and insureds demanded appraisal three months after insurer acknowledged that insureds had suffered a covered loss, insureds did not waive right to appraisal by filing a single discovery request in the interim which did not go to the amount of loss or method of repair

39 Fla. L. Weekly D2440c
150 So. 3d 1272

Insurance -- Sinkhole claim -- Right to appraisal was not waived by active litigation of suit -- Appraisable issues exist -- Error to permit property owners to select their own attorney as disinterested appraiser

39 Fla. L. Weekly D2020a
148 So. 3d 488

Insurance -- Homeowners -- Sinkhole claim -- Appraisal -- Trial court did not err in ordering appraisal of dispute over method of repair -- Method or extent of necessary repairs is within scope of “amount of loss” appraisal provision -- Insureds did not waive right to demand appraisal by participating in litigation -- Where policy required the selection of disinterested appraisers, it was error to allow insureds to select a partner in the law firm representing them as their appraiser

39 Fla. L. Weekly D801a
136 So. 3d 1235

Insurance -- Disability -- Where insured filed action against insurer alleging counts for declaratory judgment, breach of contract, promissory estoppel, and reformation after insurer denied insured's claim under disability insurance policy, and complaint also alleged count for negligent misrepresentation against insurance agent, it was a departure from essential requirements of law for trial court to deny motion to dismiss or stay/abate claim for negligent misrepresentation -- Negligent misrepresentation claim is premature where there has been no determination of coverage under policy -- Proper remedy is dismissal of negligent misrepresentation claim without prejudice

39 Fla. L. Weekly D84a
131 So. 3d 805

Licensing -- Department of Financial Services -- Resident life insurance agent -- Permanent bar to licensure -- Department erred in applying statute imposing per se bar against licensure of any applicant who commits felony involving fraud to applicant based on prior convictions for which applicant's civil rights had been restored -- Alternative analysis provided by Department as justification for denying license application, which hinged on applicant's prior crimes and, perhaps, general notions of moral fitness and trustworthiness to engage in business of insurance, was inconsistent with Department's adoption of hearing officer's findings that applicant was a completely rehabilitated model citizen with good character who was morally fit to hold license