40 Fla. L. Weekly S553a
176 So. 3d 1247
Insurance -- Uninsured motorist -- Evidence -- Collateral source benefits -- Evidence of future Medicare benefits is not admissible -- Court recedes from decision in Physician's Insurance Reciprocal v. Stanley to the extent that it supported the admission of social legislation benefits as an exception to the evidentiary collateral source rule
40 Fla. L. Weekly S97b
158 So. 3d 514
Insurance -- Uninsured motorist -- Where the sole named insured's name was removed from an auto policy, and his daughter was listed as named insured on the policy for the first time, a new policy was created -- Insurer was required to advise the daughter of her right to uninsured motorist benefits equal to her liability limits and to obtain a written waiver of those benefits before reducing them under section 627.727, Florida Statutes (2008) -- The original named insured's waiver of uninsured motorist benefits equal to liability limits did not apply to the daughter as the sole named insured on her policy or as the personal representative of her father's estate under her policy
40 Fla. L. Weekly D1289a
164 So. 3d 790
Insurance -- Uninsured motorist -- Rejection of coverage -- Evidence supported insurer's contention that wife, who was listed as additional driver under policy, was acting as agent of husband, who was named insured, when she modified policy to reject UM coverage
40 Fla. L. Weekly D2153a
174 So. 3d 1082
Insurance -- Uninsured motorist -- Torts -- Automobile accident -- Damages -- Noneconomic -- Past and future pain and suffering -- Remittitur -- Trial court abused its discretion when it reduced jury awards for past and future pain and suffering against UM insurer by nearly $1 million without explaining what in the record demonstrated the need for remittitur and the reason for the amount chosen -- Comparison of pain and suffering awards in other cases does not show basis for affirming trial court in instant case -- Remand for entry of order which contains necessary findings and conclusions to support remittitur
40 Fla. L. Weekly D436a
157 So. 3d 521
Insurance -- Uninsured motorist -- Action by plaintiff, who was involved in work-related automobile accident while driving vehicle owned and insured by his employer, challenging limits of employer's uninsured and underinsured motorist insurance coverage, which were up to $500,000 for executives and their families, but only up to $30,000 for all other insureds, including employees like plaintiff -- Trial court correctly construed statute as allowing for different coverage limits among insureds
40 Fla. L. Weekly D617a
165 So. 3d 674
Insurance -- Uninsured motorist -- Attorney's fees -- Proposal for settlement -- Trial court improperly awarded attorney's fees and costs, pursuant to rejected proposal for settlement, where the proposal was patently ambiguous, spelling out “one hundred thousand dollars” in words but referring to $50,000 in numerals
40 Fla. L. Weekly D976a
163 So. 3d 635
Torts -- Contracts -- Limitation of actions -- Action by party who purchased parcels in an undeveloped condominium project where the party allegedly thought that it was buying vacant, unencumbered raw land against title insurance company, attorney that represented the party and was title insurance company's title agent, and attorney's law firm that was the closing agent -- Claims against title insurance company for breach of fiduciary duty and constructive fraud as closing agent and breach of contract for title commitments, against attorney for legal malpractice, fraud, and constructive fraud in his capacity as party's attorney, and against attorney's law firm for constructive fraud and breach of fiduciary duty in its role as closing agent are all barred under statutes of limitations -- Statutes of limitations were not tolled by attorney's fraudulent concealment where there was no evidence of fraudulent concealment after closing on the purchase
40 Fla. L. Weekly D917b
162 So. 3d 1079
Insurance -- Rescission of policy -- Unclean hands -- Civil procedure -- Avoidance of affirmative defenses -- Trial court erred in entering summary judgment for insurer in action to rescind policy, ruling that unclean hands precluded insureds from asserting affirmative defenses of waiver and estoppel, where insurer failed to plead doctrine of unclean hands prior to second motion for summary judgment -- Issue of unclean hands, asserted as an avoidance to affirmative defenses, should have been pleaded in a reply to answer
40 Fla. L. Weekly D2352a
178 So. 3d 448
Insurance -- Personal injury protection -- Trial court erred in awarding PIP benefits to insured where insurer did not receive notice of PIP claim because statement for medical services did not comply with section 627.736(5)(d), Florida Statutes
40 Fla. L. Weekly D2364a
182 So. 3d 661
Insurance -- Personal injury protection -- Deductible -- Circuit court, sitting in its appellate capacity, departed from essential requirements of law in affirming county court judgment holding that a provider of emergency services which submits bills in accordance with section 627.736(4)(c), Florida Statutes, is entitled to have the bills paid, regardless of a deductible in the insured's policy -- Where an emergency service provider submits its claims within the statutory 30-day reserve period, those claims will be prioritized for payment, but any such payment will be subject to any deductibles that exist in the insurance contract between the insured and the insurer
40 Fla. L. Weekly D1879a
171 So. 3d 814
Insurance -- Personal injury protection -- Circuit court sitting in its appellate capacity did not violate clearly established principle of law resulting in miscarriage of justice that could be addressed on second-tier certiorari review by district court by affirming, in a per curiam opinion without discussion, a summary judgment in favor of medical provider entered by county court after it rejected affidavit of insurer's actuary because it was not shown to be based on personal knowledge or sufficient data and reliable principles
40 Fla. L. Weekly D693b
188 So. 3d 1
Insurance -- Personal injury protection -- Coverage -- Policy language, which stated that reimbursements “shall” be subject to the limitations in section 627.736, including “all fee schedules,” was sufficient to give notice of insurer's election to limit reimbursements by use of Medicare fee schedules
40 Fla. L. Weekly D2497b
178 So. 3d 927
Insurance -- Personal injury protection -- Coverage -- Emergency services -- Deductible -- Circuit court sitting in its appellate capacity departed from essential requirements of law by affirming county court's ruling that timely-submitted emergency service provider's bill was not subject to deductible
40 Fla. L. Weekly D1918a
177 So. 3d 19
Insurance -- Personal injury protection -- Medical expenses -- Coverage -- Statutory fee schedules -- Clear and unambiguous election by insurer -- Policy language providing that any amounts payable “shall be subject to any and all limitations authorized by section 627.736 . . . or any other provisions of the Florida Motor Vehicle No-Fault Law, including, but not limited to, all fee schedules” did not make it clear whether insurer was actually and in fact electing to limit its reimbursements to providers under Medicare fee schedules or was simply announcing that it was reserving its right to elect to do so -- Language is ambiguous and must be construed in favor of providers -- Conflict certified
40 Fla. L. Weekly D2144a
174 So. 3d 622
Insurance -- Automobile liability -- Uninsured motorist -- Excess coverage -- Priority of coverage -- Accident involving permissive driver of car owned by another, following which owner's liability insurer tendered its $100,000 policy limits to injured party and injured party sought coverage from its UM carrier after injured party had unsuccessfully sought payment from owner's excess liability carrier, which required that owner maintain underlying limits of $250,000 per person -- Trial court erred in granting summary judgment in favor of UM carrier on its third-party claim against excess carrier where UM carrier asserted throughout litigation that excess carrier's umbrella policy came first after owner's liability policy, and that UM policy was last in priority, but trial court actually held that UM carrier was responsible for $150,000 gap between limit of owner's automobile liability policy and the $250,000 threshold at which excess coverage was triggered -- UM carrier could not claim victory on ground that it requested a generic priority of coverage determination and received what it requested where the priority determination was, in fact, the opposite of what UM carrier sought
40 Fla. L. Weekly D1186a
167 So. 3d 470
Insurance -- Policy insuring personal property from hurricane or other weather condition -- Notice of claim -- Timeliness -- Trial court erred in entering summary judgment finding that insured's notice of claim for damage to furniture in her condominium unit due to mold growth caused by flooding of neighboring unit during hurricane was not “prompt” as a matter of law where notice was given three years after hurricane -- Because damage did not become apparent until years after hurricane, issue of whether insured gave “prompt” notice was a jury question, given policy language
40 Fla. L. Weekly D1951a
172 So. 3d 973
Attorney's fees -- Administrative proceedings -- Equal Access to Justice Act -- Prevailing small business party -- Administrative law judge erred in denying attorney's fees award pursuant to section 57.111 to sole proprietor of general insurance agency whose insurance license was suspended based on administrative complaint in which Department of Financial Services alleged he sold unregistered securities in form of viatical settlement agreements -- DFS's licensing enforcement action was not substantially justified at the time it was filed where viaticals were not regulated as securities in Florida at the time licensee made the sales at issue -- Case law decided after licensee sold viaticals at issue cannot form reasonable basis in law for filing administrative complaint
40 Fla. L. Weekly D147c
155 So. 3d 429
Torts -- Insurance -- Nonjoinder of insurer in tort action against insured -- Trial court did not err in denying motion to dismiss with prejudice plaintiff's breach of policy claim against insurer, but court departed from essential requirements of law in denying motion to sever plaintiff's breach of policy claim against insurer from negligence claim against insured
40 Fla. L. Weekly D26a
153 So. 3d 384
Insurance -- Judges -- Disqualification -- Statements of trial judge indicating that he had prejudged coverage issue, injecting personal opinions into case, and indicating a bias in favor of insured required disqualification -- Petition for writ of prohibition granted
40 Fla. L. Weekly D638d
159 So. 3d 945
Civil procedure -- Discovery -- Depositions -- Head of state agency -- Action by Department of Financial Services, acting as receiver for insolvent insurers, against accounting firm, alleging firm negligently prepared inaccurate financial statements for insurance companies that were filed with Office of Insurance Regulation in 2005, and that had accounting firm prepared accurate financial statements, OIR would have recommended that DFS take insurance companies into receivership in 2005, rather than 2006 -- Trial court departed from essential requirements of law by requiring Florida Insurance Commissioner, who is agency head of the Office of Insurance Regulation, to appear for a deposition where information sought from Insurance Commissioner was neither necessary to cause of action nor unavailable from other sources -- Further, compelling agency head to testify at deposition during which respondents intended to ask him hypothetical questions regarding how he would have carried out his statutory duties in a hypothetical situation violates the separation of powers doctrine
40 Fla. L. Weekly D2756a
180 So. 3d 1203
Insurance -- Homeowners -- Valued Policy Law -- Claim by insured that Valued Policy Law applied to their claim, entitling them to recover full policy limits for total loss of their mobile home due to burglary and vandalism -- Policy's appraisal provision and appraisal panel's award did not preclude applicability of Valued Policy Law -- Trial court erred in entering summary judgment for insurer where there was issue of fact as to whether insured mobile home was an actual total loss
40 Fla. L. Weekly D857a
162 So. 3d 1049
Insurance -- Homeowners -- Sinkhole claims -- Florida Insurance Guaranty Association -- Trial court departed from essential requirements of law by granting partial summary judgment in favor of insureds as to liability and damages associated with subsurface repair costs and including in the order language that authorized execution, while also specifically noting in order that the cost of cosmetic repairs remained in dispute -- Appeals -- Certiorari is available to review order which permits execution prior to rendition of final appealable order
40 Fla. L. Weekly D310a
173 So. 3d 986
Insurance -- Homeowners -- Sinkhole claim -- Neutral evaluation is not a presuit requirement -- Statute does not preclude filing of lawsuit during pendency of neutral evaluation process -- Trial court erred in finding that insured was required to participate in and complete neutral evaluation process before filing suit and in entering summary judgment for insurer on basis that insured breached “Suits Against Us” provision of policy by prematurely filing suit against insurer
40 Fla. L. Weekly D2205b
179 So. 3d 348
Insurance -- Homeowners -- Coverage -- Sinkhole loss -- Error to grant summary judgment in favor of insurer where material issue of fact remained as to method of subsurface repair
40 Fla. L. Weekly D1387a
166 So. 3d 212
Insurance -- Homeowners -- Sinkhole claims -- Subsurface repairs -- Error to grant summary judgment in favor of insurer where there was genuine issue of material fact as to proper method of subsurface repair -- Neither Florida law nor insurance contract required insured to enter into contract for subsurface repairs in accordance with insurance company's engineer's recommendation before benefits were payable
40 Fla. L. Weekly D764b
164 So. 3d 690
Insurance -- Homeowners -- Sinkhole claims -- Subsurface repairs -- Error to grant summary judgment in favor of insurer where there was genuine issue of material fact as to proper method of subsurface repair -- Three qualified engineers conducted testing in compliance with Florida sinkhole statutes and arrived at different opinions as to proper method of repair, and question of which recommended method of subsurface repair was sufficient to repair insured's home was question for jury -- Neither Florida law nor insurance contract required insured to enter into contract for subsurface repairs in accordance with insurance company's engineer's recommendation before benefits were payable
40 Fla. L. Weekly D64a
158 So. 3d 671
Insurance -- Homeowners -- Sinkhole claim -- Where insurer's engineer's report found that damage to insured home was not caused by a sinkhole, but insureds' engineer's report found that damage was caused by a sinkhole, insureds were under no obligation to provide their report to insurer before filing suit for breach of contract after insurer denied coverage -- Sinkhole endorsement did not change nature of underlying all risks policy -- Under all risks policy, insureds had burden to prove that a loss occurred to the insured property during the policy period, and then burden shifted to insurer to show that the loss resulted from an excluded cause
40 Fla. L. Weekly D2748a
181 So. 3d 1211
Insurance -- Homeowners -- Sinkhole loss -- Action alleging that insurer breached contract of insurance by failing to pay actual cash value of above-ground damages resulting from sinkhole -- Trial court erred in instructing jury that insurer could be held liable for breach of contract only if it failed to pay actual cash value of above-ground damages “at the time of the sinkhole loss” -- Instruction wrongfully suggested to jury that insurer's obligation was limited to paying for only those damages that had manifested themselves on or about the date insured made his claim -- Additionally, trial court erred by excluding evidence of post-suit payments tendered by insurer where payments represented payment of additional amounts for actual cash value of above-ground damages, and not as an offer to compromise insured's claim
40 Fla. L. Weekly D610a
159 So. 3d 327
Insurance -- Homeowners -- Windstorm damage mitigation -- Class action declaratory judgment action alleging that insured plaintiffs had submitted uniform mitigation verification forms to insurer, that insurer accepted forms without conducting separate inspections of properties and routinely provided premium credits based on loss mitigation features, and that insurer began reinspecting properties within 5 years although mitigation forms set forth that the forms were valid for 5 years provided no material changes have been made to structure, and seeking declaration that mitigation forms and terms were incorporated into insurance policies, that insurer must honor mitigation form and inspection results on insured property for 5 years unless there has been a material change to property, and that trial court was proper forum for issuing declaratory relief -- Trial court properly dismissed action for failure to exhaust administrative remedies provided for in section 627.371, Florida Statutes
40 Fla. L. Weekly D299a
156 So. 3d 1108
Insurance -- Homeowners -- Limitation of actions -- Breach of contract action against insurer alleging failure to pay claim for roof replacement and interior damage caused by hurricane -- Commencement of limitations period -- Trial court erred in finding that limitations period commenced when insurer issued a check as net settlement for skylight replacement, where no correspondence indicated that there was a complete settlement of all hurricane claims -- Alleged breach did not occur until insurer denied claim for roof replacement
40 Fla. L. Weekly D862a
186 So. 3d 1
Insurance -- Homeowners -- Insurable interest -- Trial court erred in dismissing breach of contract action against insurer by insured's assignee on ground that assignee did not have an insurable interest in the insured home at the time of loss -- A post-loss assignee is not required to have an insurable interest at the time of loss where the assignor policy holder had an insurable interest at the time of loss
40 Fla. L. Weekly D1811a
171 So. 3d 194
Insurance -- Third-party action by homeowners insurer that had been sued by insureds after it had denied claim for water damage to home against plumber who allegedly negligently caused the damage, alleging negligence on part of plumber, common law indemnity, and equitable subrogation -- Trial court erred in dismissing claim for common law indemnity on basis that there was not a special relationship between the parties -- Trial court erred in dismissing equitable subrogation claim on basis that insurer had not yet paid the debt to insureds -- A third-party action for equitable subrogation may be filed before the underlying debt has been paid -- Trial court also erred in dismissing negligence claim -- Because defendant had not yet filed a responsive pleading to the third-party action, there was an automatic right to amend the third-party complaint, and court had no discretion to deny request for leave to amend
40 Fla. L. Weekly D2678a
180 So. 3d 195
Insurance -- Medicare Advantage organization -- Trial court did not have jurisdiction of insureds' declaratory action to determine Medicare Advantage organization's right to reimbursement of conditional payments from proceeds of insured's settlement with tortfeasor who caused insured's injuries -- Court lacked subject matter jurisdiction because insureds failed to exhaust mandatory administrative remedies and, even if exhaustion had occurred, claim is subject to exclusive federal jurisdiction -- Disputes concerning reimbursement of conditional payments are claims for benefits that arise under the Medicare Act, and must be exhausted through administrative appeals process before invocation of judicial review in federal court -- Florida's collateral sources of indemnity statute is inapplicable to Medicare Advantage organization's reimbursement rights -- Florida subrogation law is expressly preempted by Medicare Act
NOT FINAL VERSION OF OPINION
Subsequent Changes at 40 Fla. L. Weekly D1420b
Insurance -- Sinkhole claims -- Trial court erred in compelling Florida Insurance Guaranty Association to participate in appraisal of sinkhole claim
40 Fla. L. Weekly D368a
162 So. 3d 183
Insurance -- Exclusions -- Exclusion of coverage on single-family home for losses caused by vandalism and malicious mischief, theft or attempted theft if dwelling had been vacant or unoccupied for more than thirty consecutive days excluded coverage for arson which destroyed insured home
40 Fla. L. Weekly D2428c
198 So. 3d 45
Insurance -- Homeowners -- Sinkhole claim -- There is no merit to insurer's contention that it was entitled to directed verdict due to statutory presumption of correctness afforded to certain findings and recommendations of engineering or geological professionals, or insurer's contention that it should not have had burden of proof concerning the exclusion of coverage for sinkhole claim -- Interest -- Insureds were not entitled to prejudgment interest from a point prior to verdict where there was no factual determination establishing an earlier fixed date of loss from which to calculate prejudgment interest
40 Fla. L. Weekly D67a
156 So. 3d 511
Insurance -- Professional liability -- Exclusions -- Policy provision which excluded “claims arising out of the inability or failure to pay, collect, administer or safeguard funds held or to be held for others,” unambiguously excluded coverage for insured's negligent disbursement of funds being held in her trust account while acting as escrow agent in real estate transaction
40 Fla. L. Weekly D433a
157 So. 3d 486
Insurance -- Homeowners -- Exclusions -- Water damage -- Water damage exclusion in policy excluded coverage for damage caused when subsurface water accumulated underneath swimming pool which had been partially emptied by insured during tropical storm, exerting hydrostatic pressure which caused pool shell to lift out of the ground
40 Fla. L. Weekly D1910a
174 So. 3d 479
Insurance -- Homeowners -- Declaratory judgment -- Duty to defend and indemnify -- Exclusions -- Damages arising out of sexual molestation, corporal punishment or physical or mental abuse -- Intentional shooting -- Plain meaning of words “physical abuse” includes an instance such as one at issue in which insured lent gun to his sister who then used gun to shoot plaintiff, her son-in-law, outside of her home -- Trial court properly entered summary judgment in favor of insurer based on determination that insurer had no duty to indemnify or defend its insured in a separate personal injury action arising from the shooting
40 Fla. L. Weekly D2199c
181 So. 3d 508
Insurance -- All-risk -- Coverage -- Chinese drywall -- Exclusions -- Efficient proximate cause -- Homeowners' action against all-risk insurer which denied their claim for loss and damage to their home after Chinese drywall used in its construction released sulfur gases causing them to vacate the home and causing corrosion and deterioration of copper coils in air conditioning system and other electrical components in house -- Trial court did not err in entering directed verdict in favor of insurer based on finding that Chinese drywall was efficient proximate cause of insureds' loss and that there were no ensuing losses because all of the losses occurred as a direct and continuous result of corrosive drywall -- Whether Chinese drywall or humidity was efficient proximate cause of loss was not question that should have been determined by jury where uncontroverted evidence demonstrated that humidity was not a peril that caused the insureds' loss -- Insurer also met burden of proving that Chinese drywall was latent defect, which was an excluded peril, and that the elemental sulfur and concomitant gases met the statutory definitions of pollution and contaminant and fell within policy's exclusion for gaseous pollutants and contaminants, including vapors and fumes -- Although appellate court has held that finder of fact usually determines which peril was most substantial or responsible factor in loss, in instant case the insureds affirmatively requested that the trial court address insurer's motion for directed verdict, maintaining that they had proven their case under either measure of causation; and de novo review of record reveals no conflict in the evidence as to efficient proximate cause of loss -- Insureds' argument that loss of use of home and subsequent damage to metals and electronics were “ensuing losses” for which they were entitled to coverage is without merit -- Not only were losses the result of single discrete injury, the emanation of gas from defective drywall, but the losses stemmed directly from an excluded risk and fell within additional exclusions for pollution and corrosion
40 Fla. L. Weekly D2550b
179 So. 3d 425
Insurance -- Conditions precedent/subsequent to coverage -- Examination under oath
40 Fla. L. Weekly D988b
166 So. 3d 847
Insurance -- Employee dishonesty -- Trial court erred in finding that managing partner was entitled to share of proceeds partnership received from an employee dishonesty policy pursuant to a settlement agreement entered in bankruptcy court which provided for managing partner's IRA to share in any restitution payments made to the partnership -- Proceeds from employee dishonesty policy did not constitute a “restitution payment” -- Plaintiff not entitled to portion of proceeds of policy, which were paid into partnership's profit-sharing trust, under alternative theory based on plaintiff's status as trust beneficiary where that theory of recovery was first raised by counsel during opening argument
40 Fla. L. Weekly D209a
154 So. 3d 1193
Insurance -- Homeowners -- Sinkhole claim -- Breach of contract action by insureds against insurer for failure to pay claim for sinkhole loss -- Trial court erred in entering summary judgment for insurer on ground that no payment was due under “loss payment” provision of policy, and that insureds cannot maintain breach of contract suit until time for payment under loss payment provision has come and gone without payment -- Loss payment provision of policy did not render suit premature -- Trial court erred in entering summary judgment for insurer on ground that by filing suit just after insurer initiated neutral evaluation, insureds violated stay imposed by neutral evaluation statute and breached “suit against us” provision of policy -- Filing of suit did not violate stay provision of statute -- Trial court properly denied insurer's motion for summary judgment which alleged that insureds failed to comply with duty after loss provision of policy by failing to cooperate with contractor retained by insurer to estimate cosmetic damage to home where there was no showing that insurer was prejudiced by insureds' lack of cooperation, and insureds partially complied with provision by cooperating with investigation by insurer's engineer on more significant aspect of damages
40 Fla. L. Weekly D2467a
178 So. 3d 511
Insurance -- Personal injury protection -- Discovery -- Reasonableness of charges -- Trial court did not err in denying insurer's amended petition to discovery requests under section 627.736(6)(b) about reasonableness of charges, including discovery regarding amount others paid to provider for the same services and treatments -- Discovery under section 627.736(6)(b) is limited to facts of treatment and to related billing of injured person -- Section 627.736(5), which mandates that medical providers may charge only a reasonable amount for services rendered, is inapplicable to discovery sought under section 627.736(6)(b)
40 Fla. L. Weekly D2101a
174 So. 3d 606
Torts -- Civil procedure -- Discovery -- Expert witness -- Financial and business records -- Inconsistencies between deposition responses of defense expert witness and interrogatory answers provided by defense counsel with respect to percentage of income the expert derived from working as an expert witness and the number of times expert had testified for plaintiffs and defendants in personal injury litigation did not constitute “unusual or compelling circumstances” to warrant the extensive financial discovery permitted by trial court -- Discovery exceeded that allowed by rule
40 Fla. L. Weekly D1447a
213 So. 3d 372
Insurance -- Personal injury protection -- Discovery -- Trial court abused discretion in ordering health care provider to produce confidential contracts between health care providers and health insurance entities which PIP insurer sought because they contain information regarding negotiated reimbursement rates that health care provider agreed to accept for services rendered on behalf of each entity's insureds -- Order exceeds scope of discovery provided by statute -- Trial court also abused discretion by ordering health care provider to make a designated corporate representative available for deposition -- Conflict certified
40 Fla. L. Weekly D1014b
163 So. 3d 704
Insurance -- Uninsured motorist -- Discovery -- Financial information -- Non-party medical expert retained by insurer to conduct compulsory medical examination -- Trial court departed from essential requirements of law by allowing discovery of financial information that exceeded scope of discovery permitted by procedural rule without finding unusual or compelling circumstances -- Discussion of parameters of discovery directed to a non-party expert retained by litigant
40 Fla. L. Weekly D2064d
172 So. 3d 1013
Insurance -- Discovery -- Claim file -- Order overruling objections based upon claims of work product and attorney-client privilege quashed
40 Fla. L. Weekly D2562a
179 So. 3d 437
Insurance -- Civil procedure -- Amended default final judgment -- Insurer which was not party to cross-claim against its insured had standing to move to vacate amended default judgment against insured which was entered 18 months after court entered default final judgment where amended judgment added substantive findings to the initial judgment, including findings outside the allegations contained in the cross-claim that should have required the introduction of evidence, and the amended judgment would adversely affect insurer's rights -- Trial court lacked jurisdiction to amend judgment to include substantive changes
40 Fla. L. Weekly D2547b
178 So. 3d 947
Insurance -- Homeowners -- Insured's action against insurer alleging insurer breached contract by failing to pay for covered loss and also seeking declaratory judgment as to whether insurer properly exercised its option to repair, whether the insured was required to allow the insurer's contractor to repair his home without agreeing to proposed repairs, and whether insurer was entitled to deny coverage when insured disputed scope of proposed repairs -- Abatement of action -- Trial court departed from essential requirements of law when it abated action pending insured's compliance with insurer's right to exercise its option to repair the insured's damages, an action which effectively amounted to dismissal of insured's complaint
40 Fla. L. Weekly D1404a
166 So. 3d 937
Declaratory judgments -- Insurance -- Limitation of actions -- Error to enter summary judgment in favor of defendant on ground that suit seeking declaratory judgment regarding insurance contract was time-barred under Texas statute of limitations, which was made applicable under choice of law provision in endorsement, where there was factual dispute as to whether endorsement was actually part of policy
40 Fla. L. Weekly D153b
154 So. 3d 509
Insurance -- Declaratory judgment -- Discovery depositions -- Non-residents -- Trial court departed from essential requirements of law by denying plaintiff's motion for protective order and requiring non-party who resided and worked in Pennsylvania to be deposed in Broward County -- Defendant failed to demonstrate that individual was an officer, director, or managing agent of corporate plaintiff such that non-resident could be deposed in Broward County where plaintiff instituted its action for declaratory judgment
40 Fla. L. Weekly D1887a
171 So. 3d 230
Insurance -- Homeowners -- Trial court departed from essential requirements of law by staying insurer's declaratory action on coverage pending resolution of underlying tort action against insured -- The two actions are mutually exclusive -- A determination of whether insurer has a duty to defend insured and indemnify her will likely promote settlement of tort claims against insured -- Decision on coverage will avoid potential for collusion between insured and plaintiff in tort case to create coverage where none exists
40 Fla. L. Weekly D2725a
180 So. 3d 1165
Insurance -- Condominiums -- Coverage -- Hurricane loss -- Additional living expenses -- Actions alleging insurer breached policy by providing additional living expenses coverage under hurricane coverage endorsement rather than under general policy provisions because insureds' loss of use was caused by tornado that developed during hurricane, not by hurricane itself -- Trial courts erred in granting summary judgment in favor of insureds and in finding policy's definition of hurricane did not include tornadoes spawned during a named hurricane storm system where plain, unambiguous language of policy defined hurricane as a “storm system that has been declared to be a hurricane by the National Hurricane Center of the National Weather Service”
40 Fla. L. Weekly D1371c
169 So. 3d 174
Insurance -- Commercial general liability -- Exclusions -- Bodily injury or property damage insured was obligated to pay by reason of assumption of liability in contract or agreement -- Exceptions to exclusion -- Insured contract -- After crane lessor settled with party injured on construction site, moved for summary judgment against crane lessee based on indemnity clause in crane rental agreement, and then entered into Coblentz agreement with crane lessee in which crane lessee assigned to lessor its claims against lessee's insurer, trial court improperly granted crane lessor's motion for partial summary judgment in lessor's third party action against lessee's insurer, ruling insurer had duty to defend claim -- Because crane lessor's third party complaint against lessee's insurer did not demonstrate that injury was caused either by lessee or those working on lessee's “behalf,” the rental agreement was not brought within the definition of an “insured contract,” and hence was not an exception to the exclusion from coverage -- Insurer had no duty of indemnification -- Remand for entry of final judgment in favor of insurer
40 Fla. L. Weekly D1359a
173 So. 3d 1004
Insurance -- Personal injury protection -- Class actions -- Denial of certification -- Provider's challenge to insurer's practice of conditioning payment of PIP claims on the submission of separate disclosure and acknowledgment form every time insured patient received health care services -- Trial court did not err in ruling that plaintiff could not proceed on a class action basis for claims adjudicated in a prior class action on behalf of providers who opted out of that prior class action settlement -- Trial court did not bar plaintiff from seeking class certification of claims arising after the prior class action or from pursuing plaintiff's monetary claims against insurer individually -- Declaratory judgment -- Appellate court lacks jurisdiction to review nonfinal order dismissing declaratory judgment claims -- Injunctive relief -- Trial court did not err in finding that count seeking injunctive relief could not proceed as class action based on its characterization of claim as predominantly one for monetary relief or in concluding that plaintiff failed to state cause of action for injunctive relief
40 Fla. L. Weekly D191a
155 So. 3d 432
Insurance -- Commercial property -- Excess insurance -- Hurricane damage -- Code upgrade damages -- When primary policy is read as a whole, giving every provision its full meaning and operative effect, policy unambiguously provides blanket limit of $2,500,000 per occurrence with no sublimit for business income damages -- Trial court did not err in interpreting primary policy as a blanket policy rather than a scheduled policy -- Evidence -- Hearsay -- Exceptions -- Business records -- Trial court erred in admitting, as a business record, insured's exhibit which consisted of hurricane damage/code upgrade insurance claim which insured submitted to primary and excess insurers in support of its claim for code upgrade damages resulting from hurricanes -- Insured failed to show that all records in the exhibit were made by or from information transmitted by a person with knowledge -- Error was not harmless where jury was allowed to consider the exhibit in determining amount of code upgrade damages -- Remand for new trial as to these damages only -- Where insured filed separate actions for each of two hurricanes, separate judgment should be entered for each action even though actions were consolidated for purposes of trial
40 Fla. L. Weekly D1218a
163 So. 3d 1266
Insurance -- Uninsured motorist -- Collateral estoppel -- Where wife who was a named insured under policy obtained a favorable judgment in her declaratory action against insurer which claimed that insurer waived its right to cancel policy for non-payment of premium and that it was estopped to deny coverage, and husband who was also a named insured under policy then filed a declaratory action against insurer and obtained judgment on the basis of collateral estoppel, judgment for husband must be reversed because judgment for wife has been reversed on appeal -- There is no longer a final decision regarding any issue in wife's case because her final judgment has been reversed and case remanded for new trial, so that the foundation for husband's judgment has been eliminated
40 Fla. L. Weekly D802b
160 So. 3d 549
Insurance -- Personal injury protection -- Cancellation of policy for non-payment of premium -- Declaratory action alleging that insurer waived its right to deny coverage and was estopped from denying coverage due to cancellation of policy for insured's non-payment of premium -- Evidence -- Trial court erred in allowing insured to introduce evidence regarding the long number of years insureds had been insured by insurer -- Such evidence was not relevant and appealed to sympathy of jurors -- Because of erroneous admission of evidence, insurer was denied a fair trial -- Remand for new trial
40 Fla. L. Weekly D1716a
172 So. 3d 888
Insurance -- Business owners's policy -- Breach by insured of policy condition requiring insured to maintain burglary alarm system monitored by a security company and to notify insurer if it became aware of any suspension or impairment of the system -- In entering summary judgment finding that insured was entitled to recover for loss resulting from burglary even though insured had not maintained burglary alarm system monitored by security company because insurer was not prejudiced by the breach, trial court improperly focused solely on the fact that the burglary would not have been detected even if the alarm monitoring system had been maintained -- Because insured breached condition subsequent of notifying insurer of any suspension or impairment of monitored alarm system, issue to be determined by court is whether insurer was prejudiced by the lack of an opportunity to decide whether it would cancel the policy, keep the policy in place with an increase in premium, or waive the obligation to maintain the alarm monitoring contract
40 Fla. L. Weekly D119a
154 So. 3d 467
Insurance -- Coverage by estoppel -- Cause of action exists for coverage by estoppel where insurer made statements and undertook actions which led insured business owner to believe she had coverage for underlying action -- It was for trier of fact to determine ultimate weight to give insurer's conduct versus reasonableness of insured's reliance
40 Fla. L. Weekly D574a
159 So. 3d 285
Insurance -- Bad faith -- Discovery -- Premature action -- Appeals -- Certiorari -- Nonfinal order denying motion to dismiss premature bad faith action is not subject to interlocutory review -- Petition for certiorari review dismissed without prejudice to defendants' moving to abate bad faith action -- Discovery -- Petition granted with respect to claim that trial court erred in overruling objection to plaintiff's premature bad faith discovery requests
40 Fla. L. Weekly D2656e
180 So. 3d 190
Insurance -- Medical malpractice liability -- Bad faith -- Insurer's timely tender of its policy limits barred an action against insurer for bad faith failure to pay its policy limits, but did not bar action alleging that insurer acted in bad faith in making an offer to arbitrate which entailed admitting liability without making the offer contingent upon a limit of general damages -- Trial court erred in entering summary judgment for insurer where there was factual issue as to whether insurer participated in deciding to offer to arbitrate
40 Fla. L. Weekly S221b
Insurance -- Bad faith -- Discovery -- Attorney-client privilege
40 Fla. L. Weekly S265a
164 So. 3d 663
Insurance -- Bad faith failure to settle claim -- Citizens Property Insurance Corporation -- Immunity -- A statutory first-party bad faith cause of action is not an exception to the immunity granted to Citizens Property Insurance Corporation by the Florida Legislature -- Legislature never listed such claims as one of the exceptions to Citizens' immunity, and instead chose to immunize Citizens for any action taken by it in the performances of its duties under the statute, which necessarily includes a breach of the duty of good faith -- No merit to District Court's conclusion that the statutory cause of action for first-party bad faith is a tort or, specifically, a “willful tort,” thereby placing it in the list of statutory exceptions to immunity
40 Fla. L. Weekly D1836a
173 So. 3d 1058
Insurance -- Automobile liability -- Exclusions -- There was no coverage under insured's personal auto policy for the death of an infant who was left for seven hours in a parked van driven by insured for a daycare center -- Coverage was excluded under exclusion for “Any vehicle, other than ‘your covered auto', which is furnished or available for your regular use” -- Coverage was also excluded under exclusion for “any vehicle while it is being used for or in the course of ‘your' employment or occupation” -- There was a direct causal connection between the use of the van and the infant's death
40 Fla. L. Weekly D308a
157 So. 3d 365
Insurance -- Automobile liability -- Coverage -- Attorney's fees -- Under “Additional Payments” provisions of policy, which provided that insurer would pay all court costs charged to an insured in a covered lawsuit, insurer was obligated to pay attorney's fees assessed against its insured pursuant to offer of judgment statute
40 Fla. L. Weekly D2276a
177 So. 3d 56
Insurance -- Automobile liability -- Costs -- Trial court did not err in adjudicating insurer jointly and severally liable with its insured for plaintiff's taxable litigation costs -- Insurer's claim that cost judgment was defective because it did not contain sufficient findings to support court's joinder of insurer was not preserved for appellate review where insurer did not file motion for rehearing to alert court to alleged defect -- Even if preserved, the claim is without merit -- There is no merit to claim that insurer was improperly joined in the judgment because plaintiff failed to comply with statutory notice provision -- Because insurer chose to litigate, policy afforded coverage for taxable litigation costs under supplemental payments section, which provided that insurer would pay other reasonable expenses incurred at insurer's request -- Conflict certified
40 Fla. L. Weekly D2090a
173 So. 3d 1142
Torts -- Automobile accident -- Insurance -- Nonjoinder of insurer in action against insured -- Trial court departed from essential requirements of law by refusing to dismiss count against tortfeasor's insurer alleging breach of contract based on insurer's alleged presuit agreement with plaintiff to pay policy limits to settle lawsuit -- Plaintiff could not join insurer as party defendant until she obtained either judgment against or settlement with insured
40 Fla. L. Weekly D21a
152 So. 3d 855
Insurance -- Automobile -- Excess coverage -- Uninsured motorist -- Trial court properly entered declaratory judgment determining that Florida Municipal Insurance Trust agreement with city-member provided excess insurance and not primary insurance for automobile accidents -- Self-retention endorsement providing that Trust member would not only cover claims within self-retained limit but would provide for its own defense of such matters was not a deductible provision, but provided primary layer of exposure, with FMIT policy providing excess coverage over self-retained limit -- Accordingly, Trust's only obligation under statute was to offer UM coverage at time trust was initially created, which it did
40 Fla. L. Weekly D1417a
166 So. 3d 933
Attorney's fees -- Proposal for settlement -- Insurance -- No error in awarding attorney's fees to insurer which prevailed in litigation regarding coverage for property damage to plaintiff's condominium where plaintiff rejected insurer's proposal for settlement and trial court ultimately entered judgment in favor of insurer -- Costs -- Error to award costs to insurer without making findings of fact as to whether specific costs awarded were taxable and, if not, why they were being awarded
40 Fla. L. Weekly D2500a
178 So. 3d 923
Attorney's fees -- Insurance -- Prevailing party -- Trial court properly awarded attorney's fees to insured pursuant to section 627.428 following insurer's voluntary dismissal of declaratory judgment action in which insurer asserted that insured was not entitled to defense of underlying tort action under policy where insurer had continued to provide insured with defense while litigating declaratory judgment action -- Passenger was not entitled to recover statutory attorney's fees and costs where passenger did not receive recovery or any other benefit from insurer
40 Fla. L. Weekly D2606a
179 So. 3d 492
Insurance -- Attorney's fees -- Award of fees to insureds following settlement of coverage dispute with insurer -- Trial court abused discretion by awarding a multiplier where case was not a complicated case, and there was no evidence that insureds had any difficulty obtaining counsel
40 Fla. L. Weekly D2342b
178 So. 3d 902
Insurance -- Attorney's fees -- Prevailing party -- Insureds were entitled to attorney's fees under express and non-discretionary language of Section 627.428(1) for the successful defense of, and favorable judgment on, insurer's counterclaim for unjust enrichment, given jury's determination that insureds had not been unjustly enriched and that insurer was not entitled to recoup monies it had already paid to insureds on their claim, and notwithstanding its determination on insured's breach of contract claim that insureds had intentionally concealed or misrepresented a material fact or made a false statement when reporting their loss -- Modification of Section 627.428 to create an exemption to address cases where false statements are made by an insured must be effectuated legislatively, not judicially -- Costs -- Trial court erred in denying costs to insurer under Section 57.041 because insurer prevailed on breach of contract claim
40 Fla. L. Weekly D801a
160 So. 3d 555
Insurance -- Attorney's fees -- Insured was entitled to recover statutory attorney's fees in connection with declaratory judgment action he filed regarding uninsured motorist coverage -- Where insurer initially disputed insured's entitlement to “stacking” of UM benefits, its later concession on that issue was tantamount to a confession of judgment
40 Fla. L. Weekly D2155b
175 So. 3d 352
Insurance -- Homeowners -- Attorney's fees -- Award to insureds who prevailed in action against insurer which had denied request for appraisal -- Trial court did not abuse discretion in finding that $400 was a reasonable blended hourly rate for various attorneys who were involved in case -- 200 hours was an excessive number of hours billed, and trial court abused discretion in finding that 200 hours was reasonable -- Trial court abused discretion in awarding a multiplier where there was no showing that insureds had difficulty in obtaining competent counsel, the result obtained was not remarkable, and there were no novel or difficult factual or legal issues in case
40 Fla. L. Weekly D1517b
175 So. 3d 308
Attorney's fee -- Appellate -- Prevailing party on appeal -- Award of appellate attorney's fees conditioned upon party prevailing in underlying action by obtaining judgment for PIP benefits
40 Fla. L. Weekly D1839a
173 So. 3d 1061
Insurance -- Personal injury protection -- Failure of insured to attend independent medical examination -- Where appellate division of circuit court had earlier determined that insured's failure to attend IME was unreasonable, and district court of appeal denied petition for writ of certiorari seeking to quash appellate division's decision, appellate division failed to apply law of the case when it subsequently remanded for the trial court to determine the reasonableness of insured's failure to attend IME -- Appellate division's failure to apply the correct law constituted a departure from essential requirements of law -- Intervening decision of Florida Supreme Court, holding that insurer asserting defense of insured's failure to attend IME is required to present evidence to fact-finder that insured unreasonably failed to attend IME, did not constitute an intervening decision that required appellate division to disregard law of the case -- Appellate division court also departed from essential requirements of law in denying motion for appellate attorney's fees under offer of judgment statute
40 Fla. L. Weekly D2406a
177 So. 3d 627
Insurance -- Assignment of post-loss rights -- An insured has the right to assign post-loss rights without the insurer's consent
40 Fla. L. Weekly D1449a
177 So. 3d 627
NOT FINAL VERSION OF OPINION
Subsequent Changes at 40 Fla. L. Weekly D2406a
Insurance -- Homeowners -- Assignment of post-loss rights -- Policyholders have the right to assign post-loss rights without consent of insurer -- Office of Insurance Regulation properly denied insurance company's requests to amend its homeowners policies to restrict the ability of policyholders to assign post-loss rights without the company's consent
40 Fla. L. Weekly D1201a
165 So. 3d 736
Insurance -- Homeowners -- Assignment -- Trial court erred in dismissing complaint filed by insured's assignee based on finding that anti-assignment clause and loss payment provision precluded the assignment
40 Fla. L. Weekly D1193a
165 So. 3d 756
Insurance -- Homeowners -- Trial court erred in entering final judgment in favor of insurer in action brought by assignee based on finding that anti-assignment clause and loss payment provision precluded assignment
40 Fla. L. Weekly D1569a
173 So. 3d 1025
Insurance -- Homeowners -- Water damage -- Dismissal of assignee's action against insurer -- Appeals -- Circuit court acting in its appellate capacity applied incorrect law in per curiam affirming county court's dismissal of assignee's action against insurer for amounts due under remediation contract with insured -- County court failed to afford assignee due process when it granted motion to dismiss based on coverage defense asserted by insurer because this affirmative defense was outside four corners of complaint -- Further, dismissal on ground that only the policy holder could sue to determine the coverage issue violated clearly established principles of law, which permit assignee of post-loss insurance benefits to seek recovery under policy and, if necessary, seek a coverage determination
40 Fla. L. Weekly D1196a
165 So. 3d 749
Insurance -- Homeowners -- Assignment -- Trial court erred in dismissing assignee's complaint against insurer based on anti-assignment and loss payment provisions of insurance policy -- Insured may assign a post-loss claim even when insurance policy contains provision barring assignment of policy -- Standard loss payment provision in insurance policy does not preclude an assignment of a post-loss claim, even when payment is not yet due -- Assignable right to benefits accrues on date of loss, even though payment is not yet due under loss payment clause -- Assignment cannot be invalidated based on insurer's theory that it attempts to assign a contractual “duty to adjust” from insured to a third party -- So long as insured complies with all policy conditions, third-party assignee may recover benefits on a covered loss -- Civil procedure -- Trial court did not err in considering contents of insurance policy filed in connection with insurer's motion to dismiss where complaint referred to policy and plaintiff's standing to bring suit was premised on an assignment on that policy
40 Fla. L. Weekly D1070a
169 So. 3d 138
Arbitration -- Insurance -- Liability -- Arbitrable issues -- Trial court erred in denying insurer's motion to compel arbitration, filed when plaintiffs moved for joinder of insurer as party defendant to plaintiffs' negligence action against insured, where insurance policy expressly delegated the issue of arbitrability to the arbitrator and plaintiffs, although challenging arbitration provision as a whole, did not challenge this delegation provision -- Non-signatories -- Estoppel -- Plaintiffs who claim they are entitled to benefit of policy's coverage provision are estopped from attempting to avoid burden of policy's arbitration provision on ground that they were non-signatories to policy -- Remand for entry of order compelling arbitration
40 Fla. L. Weekly D2595b
NOT FINAL VERSION OF OPINION
Subsequent Changes at 41 Fla. L. Weekly D730a
Insurance -- Trial court erred in entering summary judgment in favor of insured in insured's breach of contract action against insurer where there was a question as to whether insurer knew that insured disputed the amount of loss, and therefore a genuine issue of material fact as to whether insured was forced to file suit -- Insurer's voluntary payment of appraisal award did not constitute an automatic confession of judgment -- Insurer's payment of appraisal award is a confession of judgment only if the insured was forced to file the lawsuit to resolve the claim -- Discovery -- Trial court also erred by granting insured's motion for protective order against insurer's request for production of documents
40 Fla. L. Weekly D791b
163 So. 3d 559
Insurance -- Hurricane damage -- Appraisal -- Trial court erred in ordering appraisal where insureds failed to comply with all post-loss obligations -- All post-loss obligations must be satisfied before a trial court can exercise its discretion to compel appraisal
40 Fla. L. Weekly D341a
157 So. 3d 431
Insurance -- Homeowners -- Windstorm damage -- Appraisal -- No error in granting summary judgment in favor of Citizens Property Insurance Corporation in action to compel it to engage in appraisal process for windstorm damage -- Because insurer participated in appraisal process after lawsuit was filed when it received detailed estimates from insureds, but not because of the lawsuit, nothing remained to be done in relation to the relief requested -- In granting summary judgment in favor of insurer, trial court implicitly found that insured failed to provide insurer with sufficient detailed estimates of claimed loss prior to filing suit to compel arbitration -- Court notes that amount of loss for ordinance and law damage was not determined during initial building damage appraisal -- Affirmance is without prejudice for insured to seek recompense for any incurred ordinance or law damage
40 Fla. L. Weekly D661a
173 So. 3d 988
Insurance -- Homeowners -- Sinkhole claim -- Appraisal -- Florida Insurance Guaranty Association -- Trial court erred in entering order compelling appraisal -- Method of repair is appropriate for resolution under policy's appraisal process -- Homeowners waived right to appraisal by engaging in litigation activities for an extended period before requesting appraisal -- Questions certified: 1. Does the definition of “covered claim” in section 631.54(3), Florida Statutes, effective May 17, 2011, apply to a sinkhole loss under a homeowners' policy that was issued by an insurer before the effective date of the new definition when the insurer was adjudicated to be insolvent after the effective date of the new definition? 2. Does the statutory provision limiting FIGA's monetary obligation to the amount of actual repairs for a sinkhole loss preclude an insured from obtaining an appraisal award determining the “amount of loss” in accordance with the terms of the homeowners' policy of insurance?
40 Fla. L. Weekly D488b
158 So. 3d 745
Insurance -- Homeowners -- Sinkhole claims -- Appraisal -- Florida Insurance Guaranty Association -- Questions certified: I. Does the definition of “covered claim” in section 631.54(3), Florida Statutes, effective May 17, 2011, apply to a sinkhole loss under a homeowners' policy that was issued by an insurer before the effective date of the new definition when the insurer was adjudicated to be insolvent after the effective date of the new definition? II. Does the statutory provision limiting FIGA's monetary obligation to the amount of actual repairs for a sinkhole loss preclude an insured from obtaining an appraisal award determining the “amount of loss” in accordance with the terms of the homeowners' policy of insurance?
40 Fla. L. Weekly D432a
157 So. 3d 506
Insurance -- Sinkhole claims -- Florida Insurance Guaranty Association -- Covered claims -- Question certified: Does the 2011 amendment to the definition of “covered claim” in section 631.54(3), Florida Statutes (2011), apply to a sinkhole claim, where the claim was filed with the insurer prior to the date of the amendment, but after the insurer became insolvent, triggering FIGA's obligation to pay the claim
40 Fla. L. Weekly D354c
157 So. 3d 437
Insurance -- Homeowners -- Sinkhole claims -- Appraisal -- Florida Insurance Guaranty Association -- Trial court erred in requiring FIGA to participate in appraisal process -- Scope of FIGA's liability for sinkhole loss is determined by statutory definition of “covered claim” at time insurer was adjudicated insolvent rather than definition in effect when insurer issued policy -- Requiring FIGA to participate in appraisal process is at odds with FIGA's statutory mandate to pay only for the actual cost of repair for a covered sinkhole claim -- Even if insured had right to an appraisal, she waived any right she had by actively litigating case for over two years
40 Fla. L. Weekly D123a
158 So. 3d 675
Insurance -- Homeowners -- Sinkhole claim -- Florida Insurance Guaranty Association -- Trial court erred in applying the statutory definition of “covered claim” in effect when insurance policy was issued to determine scope of FIGA's liability instead of the more restrictive definition in effect when the insurer was adjudicated insolvent, and confirming appraisal reward and entering judgment in favor of the insureds -- New definition governs scope of FIGA's liability and prohibits any direct payment to the insureds -- Appraisal award as provided for in homeowner's policy is not the functional equivalent of the “actual repair of the loss” which FIGA pays; hence trial court's erroneous requirement that FIGA participate in appraisal process is at odds with its statutory mandate -- Questions certified: Does the definition of “covered claim” in section 631.54(3), Florida Statutes, effective May 17, 2011, apply to a sinkhole loss under a homeowners' policy that was issued by an insurer before the effective date of the new definition when the insurer was adjudicated to be insolvent after the effective date of the new definition? -- Does the statutory provision limiting FIGA's monetary obligation to the amount of actual repairs for a sinkhole loss preclude an insured from obtaining an appraisal award determining the “amount of loss” in accordance with the terms of the homeowners' policy of insurance?
40 Fla. L. Weekly D764a
159 So. 3d 1030
Insurance -- Homeowners -- Sinkhole claims -- Insolvent insurer -- Florida Insurance Guaranty Association -- Appraisal was not available under amended statute applicable to this case -- Further, insureds waived right to appraisal by actively litigating case for more than two years prior to seeking appraisal -- Questions certified: 1) Does the definition of “covered claim” in section 631.54(3), Florida Statutes, effective May 17, 2011, apply to a sinkhole loss under a homeowners' policy that was issued by an insurer before the effective date of the new definition when the insurer was adjudicated to be insolvent after the effective date of the new definition? 2) Does the statutory provision limiting FIGA's monetary obligation to the amount of the actual repairs for a sinkhole loss preclude an insured from obtaining an appraisal award determining the “amount of loss” in accordance with the terms of the homeowners' policy of insurance?
40 Fla. L. Weekly D941a
162 So. 3d 1118
Insurance -- Homeowners -- Sinkhole claim -- Appraisal -- Florida Insurance Guaranty Association -- Although insureds did not waive appraisal by their litigation activities regarding cosmetic damages to home, trial court erred in requiring FIGA to participate in appraisal process -- Questions certified: 1. Does the definition of “covered claim” in section 631.54(3), Florida Statutes, effective May 17, 2011, apply to a sinkhole loss under a homeowners' policy that was issued by an insurer before the effective date of the new definition when the insurer was adjudicated to be insolvent after the effective date of the new definition? 2. Does the statutory provision limiting FIGA's monetary obligation to the amount of actual repairs for a sinkhole loss preclude an insured from obtaining an appraisal award determining the “amount of loss” in accordance with the terms of the homeowners' policy of insurance?
40 Fla. L. Weekly D968a
163 So. 3d 624
Insurance -- Homeowners -- Sinkhole claim -- Florida Insurance Guaranty Association -- It was error to determine that insureds were entitled to appraisal of sinkhole claim against FIGA -- Insureds' litigation activities waived appraisal -- Determination of method of repair is appropriate for resolution under policy's appraisal process -- Questions certified: 1. Does the definition of “covered claim” in section 631.54(3), Florida Statutes, effective May 17, 2011, apply to a sinkhole loss under a homeowners' policy that was issued by an insurer before the effective date of the new definition when the insurer was adjudicated to be insolvent after the date of the new definition? 2. Does the statutory provision limiting FIGA's monetary obligation to the amount of actual repairs for a sinkhole loss preclude an insured from obtaining an appraisal award determining the “amount of loss” in accordance with the terms of the homeowners' policy of insurance?
40 Fla. L. Weekly D1508b
167 So. 3d 511
Insurance -- Homeowners -- Sinkhole claims -- Appraisal -- Dispute involving method of repair is subject to appraisal -- Waiver -- Insureds acted inconsistently with their right to appraisal where they engaged in significant litigation during approximately one-year period between concession of coverage and claim for appraisal -- FIGA's admission in its answer to complaint that it had agreed to pay plaintiffs' “covered claim” for sinkhole loss as defined by statute was an admission of coverage, and appraisal became appropriate on the date of FIGA's answer -- Trial court erred in ruling that insureds had not waived appraisal right
40 Fla. L. Weekly D1420b
170 So. 3d 89
Insurance -- Homeowners -- Sinkhole claims -- Florida Insurance Guaranty Association -- Questions certified: 1) Does the definition of “covered claim” in section 631.54(3), effective May 17, 2011, apply to a sinkhole loss under a homeowners' policy that was issued by an insurer before the effective date of the new definition when the insurer was adjudicated to be insolvent after the effective date of the new definition? 2) Does the statutory provision limiting FIGA's monetary obligation to the amount of actual repairs for a sinkhole loss preclude an insured from obtaining an appraisal award determining the “amount of loss” in accordance with the terms of the homeowners' policy of insurance?
40 Fla. L. Weekly D1433a
172 So. 3d 473
Insurance -- Homeowners -- Appraisal -- Trial court erred in compelling appraisal of insured's supplemental hurricane damage claim where insured failed to comply with contractual post-loss obligations -- Court erred in finding that it could compel appraisal because insured had “sufficiently” complied with post-loss obligations
40 Fla. L. Weekly D504a
159 So. 3d 239
Insurance -- Homeowners -- Supplemental claim to hurricane damages -- Appraisal -- Trial court did not abuse discretion in finding that insureds had complied with their post-loss obligations under policy, and ordering appraisal of claim
40 Fla. L. Weekly D78a
162 So. 3d 140
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
40 Fla. L. Weekly D1810a
174 So. 3d 1028
Insurance -- Excess liability -- Misrepresentations on application -- Error to enter judgment in declaratory judgment action finding that there was coverage under policy for an accident in which insureds' son was involved where insureds failed to disclose in application that their son was a licensed operator living in the insureds' home
40 Fla. L. Weekly D262c
155 So. 3d 1224
Insurance -- Homeowners -- Sinkhole claim -- Rescission of policy -- Misrepresentation of condition of home on applications for coverage -- Error to enter summary judgment in favor of insurer based on insureds' negative answer to question whether they had knowledge of any prior repairs made to any structures on insured location for cracking damage where insurer failed to establish beyond factual dispute that the answer to the question in the application was incorrect or a misrepresentation and further failed to establish that the representation was material to the acceptance of insurer's risk or that true facts would have caused it not to issue policies
40 Fla. L. Weekly D442a
157 So. 3d 507
Insurance -- Automobile -- Rescission -- Material misrepresentations on application -- Identity of owner of vehicle -- Trial court properly found that claimant made material mispresentations in insurance application, warranting rescission of policy, by misrepresenting that she was registered owner of vehicle -- Trial court erred in failing to consider claimant's argument that insurer waived its misrepresentation or confessed judgment when it made PIP payments to claimant's medical care providers after claimant filed suit -- Statute does not provide that contract is void ab initio because of insured's misrepresentation, but instead gives insurer the right to rescind insurance contract if statutory criteria are met; and case law establishes the principle that an insurer can forfeit its right of rescission -- Trial court erred in finding that claimant lacked standing to assert her waiver and confession of judgment arguments because she assigned her rights to PIP benefits to her medical care providers -- Remand for trial court to resolve waiver issue on the merits or, alternatively, submit matter to a jury -- Confession of judgment -- Whether insurer made payments to providers as result of claimant's lawsuit and, thus, whether this constituted a confession of judgment is question for trial court to resolve -- Evidence -- PIP payout ledger -- Statute providing that evidence of furnishing, or offering or promising to pay, medical or hospital expenses or other damages occasioned by an injury or accident is inadmissible to prove liablity for injury or accident does not make such evidence inadmissible to prove insurer's obligation to make payments for or on behalf of its insured based on contract of insurance
40 Fla. L. Weekly D1724a
186 So. 3d 6
Insurance -- Commercial general liability -- Coverage -- Declaratory judgment -- Appeals -- Partial final judgment in declaratory judgment action which determined insurer's duty to defend insured, but did not determine its duty of indemnification, is not a final appealable order or an appealable nonfinal order
40 Fla. L. Weekly D1849b
173 So. 3d 1075
Insurance -- Liability -- Bad faith -- Appeals -- Insurer's claim that circuit court erred in allowing plaintiffs to bring third-party bad faith claim against insurer in underlying tort action against insureds is not within scope of review in instant appeal, filed after final judgment determining coverage issue -- Rulings on bad faith claim were not necessary interlocutory steps leading to judgment on coverage -- Court rejects suggestion that instant proceeding should be treated as petition for writ of certiorari to review circuit court's rulings on bad faith issue, as insurer did not seek timely certiorari review of orders entered on bad faith issue
40 Fla. L. Weekly D2224d
175 So. 3d 921
Limitation of actions -- Contracts -- Insurance agents -- Commissions -- Where defendant agreed to pay commissions on various insurance policies each time it received a commission from an insurance company, contract was divisible, so that statute of limitations for each commission due plaintiff began to run when a commission was received by the defendant -- Remand with instructions to award damages only for commission claims that accrued within four years of date complaint was filed
40 Fla. L. Weekly D2328b
175 So. 3d 946
Administrative law -- Licensing -- Insurance agents -- Revocation -- Appeal of final order revoking agency's license after an informal proceeding -- Reversal of order on appeal and remand to conduct formal hearing are required where it became apparent during course of informal hearing that material facts were in dispute
40 Fla. L. Weekly D250a
159 So. 3d 160
Insurance -- Accidental death -- Exclusions -- Alcohol -- Coverage was excluded under alcohol exclusion for death of insured who was killed while operating a jet ski while having a blood alcohol level in excess of the legal limit where the alcohol contributed to the accident -- In order for alcohol exclusion to bar recovery under policy, it is necessary to show that there was some causal relationship between insured's intoxication and his death, but it is not necessary to show that insured's intoxication was the sole cause of the accident
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