2016

41 Fla. L. Weekly D257a
186 So. 3d 1061

Insurance -- Uninsured motorist -- Argument -- Insurer entitled to new trial based on cumulative effect of statements by plaintiff's counsel pointing out that plaintiff had done the right thing all along and that insurer had refused to pay the debt it owed to plaintiff, counsel's use of PowerPoint slide visible to jury that emphasized the insurer's responsibility, and an instruction by the trial court which also focused on insurer's liability rather than on the issue of actual damages attributable to the accident

41 Fla. L. Weekly D1870a
196 So. 3d 1284

Insurance -- Uninsured motorist -- Damages -- Trial court abused discretion in denying insurer's motion for remittitur of damages for lost past earnings and lost future earning capacity where awards were primarily based on insured's speculative testimony about his potential earnings if he had been able to continue to operate his new business

41 Fla. L. Weekly D2603b
204 So. 3d 561

Insurance -- Uninsured motorist -- Damages -- Trial court erred by denying insurer's motion for directed verdict on issue of future medical expenses for low back surgery where evidence failed to establish that future surgery was reasonably certain to occur -- Trial court also erred by denying insurer's motion for directed verdict on issues of past lost wages and loss of future earning capacity where evidence was insufficient to establish a diminished earning capacity

41 Fla. L. Weekly D2715a
206 So. 3d 62

Insurance -- Uninsured motorist -- Damages -- Award of damages for future medical expenses was excessive, and court should have granted motion for remittitur -- Because treating physician testified as to insured's yearly cost of future medical expenses, but there was no testimony regarding insured's life expectancy, case is remanded for new trial solely on issue of insured's life expectancy

41 Fla. L. Weekly D2493b
203 So. 3d 995

Insurance -- Uninsured motorist -- Plaintiff who had been driving a crane truck during the course and scope of his employment with the named insured, and who was struck by an uninsured motorist after he had exited the truck and was standing ten to twenty feet away from truck, was not entitled to uninsured motorist coverage under business named insured endorsement of policy because he was not occupying the insured vehicle

41 Fla. L. Weekly D995a
189 So. 3d 335

Insurance -- Uninsured motorist -- Damages -- Future medical expenses -- Evidence -- Expert -- Trial court erred in allowing orthopedic surgeon's physician assistant to give his opinion on insured's need for future surgery and the costs associated with such surgery

41 Fla. L. Weekly D1338a
198 So. 3d 852

Insurance -- Uninsured motorist -- Coverage -- Claim for uninsured motorist benefits by insured who was injured while driving another person's vehicle with the owner's permission, allegedly due to the owner's negligent failure to maintain the brakes on the vehicle -- Under unambiguous provisions of policy, the non-owned vehicle defendant was driving was not an uninsured vehicle because the vehicle, when driven by insured, was insured under the liability portion of insured's policy -- Policy did not extend uninsured motorist coverage to insured, and failure to extend coverage did not impermissibly limit uninsured motorist coverage insurer was required to provide under section 627.727, Florida Statutes -- Failure of policy to provide uninsured motorist coverage to insured does not run afoul of statute because non-owned vehicle insured was driving was an insured vehicle under insured's policy while being driven by insured

41 Fla. L. Weekly D726a
188 So. 3d 906

Insurance -- Equitable subrogation -- Where three insurers settled underlying litigation through a jointly-funded settlement under an agreement that provided that the insurers could litigate among themselves regarding reallocation of the settlement funds, insurer which was determined to be liable to another insurer after trial was not entitled to recover from third insurer the money it had recovered in settlement before trial from insurer which prevailed at trial -- Insurer which did not pay the entire settlement in underlying tort litigation was not entitled to equitable subrogation

41 Fla. L. Weekly D1182a
192 So. 3d 562

Torts -- Insurance -- Subrogation -- Default -- Subrogation action by insurance company against defendant and his wife to recover amounts paid to company's insured under uninsured motorist coverage for personal injury and for damage to insured's vehicle resulting from wife's negligent operation of vehicle owned by defendant and his wife -- It was error to award default judgment against defendant for damages without evidentiary hearing where damages were unliquidated -- Claims for personal injury, disability, discomfort, pain and suffering, mental anguish, loss of capacity for enjoyment of life, loss of wages, loss of earning capacity, and property damage, although pled as an exact amount in subrogation action, were unliquidated -- Conflict certified -- It was error to enter default against defendant husband without an adjudication of liability as to non-defaulting wife who had filed a pro se answer to complaint on her own behalf

41 Fla. L. Weekly D687a
199 So. 3d 292

Insurance -- Personal injury protection -- Discovery -- Petition for writ of certiorari, seeking to quash circuit court appellate division's order compelling discovery as to the reasonableness of fees charged by provider for medical services rendered to insured -- Petition dismissed for lack of jurisdiction where petitioner has failed to meet threshold showing that order creates irreparable harm -- Because an insurer is allowed to dispute the reasonableness of charges at any time, including after payment of the claim, the fact that insurer issued payments for PIP benefits does not dispose of the issue of the reasonableness of the charges

41 Fla. L. Weekly D2208a
208 So. 3d 741

NOT FINAL VERSION OF OPINION
Subsequent Changes at 42 Fla. L. Weekly D893a

Insurance -- Personal injury protection -- Sufficiency of language in PIP policy to put insureds on notice that reimbursement of medical bills will be limited by statutory schedule -- Appeals -- Certiorari -- Jurisdiction -- Petitioner is not entitled to second-tier certiorari review of decision of circuit court appellate division regarding sufficiency of PIP policy language where there was no violation of a clearly established principle of law resulting in a miscarriage of justice by circuit court -- There was no clearly established principle of law where there are conflicting decisions of district courts of appeal on issue, and Florida Supreme Court has accepted jurisdiction to resolve the conflicting decisions

41 Fla. L. Weekly D2145a
202 So. 3d 437

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Circuit court sitting in its appellate capacity departed from clearly established principles of law resulting in miscarriage of justice when it held that PIP insurer that had initially used fee schedule in paying billed amounts, although policy did not clearly and unambiguously elect statutory fee schedule limitation, was thereafter precluded from engaging in discovery and contesting reasonableness of billed amounts

41 Fla. L. Weekly D793b
226 So. 3d 262

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous notice to insured of insurer's intent to determine reasonableness by reference to Medicare fee schedules -- Language of policy endorsement stating that 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, as enacted, amended or otherwise contained in the law, including but not limited to, all fee schedules” gave insureds and their respective medical care providers legally sufficient notice of insured's election to use Medicare fee schedules

41 Fla. L. Weekly D805b
189 So. 3d 970

Civil procedure -- Summary judgment -- Notice of summary judgment evidence on which adverse party intends to rely -- Trial court properly interpreted rule 1.510 as requiring adverse party to file notice in response to a motion for summary judgment even if the evidence upon which it seeks to rely is already in the record -- Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary treatment -- Trial court did not err in finding that insurer did not satisfy rule 1.510(c) by filing, during discovery, a doctor's affidavit stating affiant's conclusion that portions of treatment were not reasonable, related, or medically necessary, which was accompanied by notice stating insurer's intent to rely upon the affidavit “for any purpose permitted pursuant to the Florida Rules of Civil Procedure and Florida Evidence Code” -- Circuit court acting in its appellate capacity did not depart from essential requirements of law by affirming county court ruling

41 Fla. L. Weekly D1619c
201 So. 3d 169

Insurance -- Personal injury protection -- Sufficiency of policy language to give notice of insurer's election to limit reimbursements to health care providers to 80% of 200% of Medicare Part B schedules -- An insurance policy which contains a limits of liability provision that states, “Any amounts payable under this coverage 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, as enacted, amended or otherwise continued in the law, including but not limited to, all fee schedules,” clearly and unambiguously elects the section 627.736(5)(a)(2), Florida Statutes (2008), methodology of reimbursement as required by the Florida Supreme Court in GEICO v. Virtual Imaging Servs., Inc., 141 So. 3d 147 (Fla. 2013) -- Conflict certified

41 Fla. L. Weekly D888b
187 So. 3d 1278

Insurance -- Personal injury protection -- Deductible -- All claims, including emergency service provider's priority claim, are properly applied to personal injury protection deductible in order that they are received -- Trial court erred in holding that benefits to be paid from $5000 reserve imposed by statute for emergency services were not subject to an otherwise applicable deductible

41 Fla. L. Weekly D335b
183 So. 3d 489

Insurance -- Personal injury protection -- Deductible -- Emergency services provider -- Circuit court erroneously found that emergency services provider that submitted its bill within thirty-day window contemplated by statute was entitled to have its bill paid regardless of existence of deductible in insured's insurance contract

41 Fla. L. Weekly D564a
187 So. 3d 898

Insurance -- Personal injury protection -- Deductible -- Claim of emergency services provider should be applied to PIP deductible

41 Fla. L. Weekly D435e
186 So. 3d 588

Insurance -- Personal injury protection -- Deductible -- Emergency service provider claims

41 Fla. L. Weekly D2018b
202 So. 3d 88

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Emergency medical condition -- Statute requires that qualified medical provider determine that an emergency medical condition exists for benefits under Florida's PIP statute to exceed $2500 -- If there is no determination of whether insured has emergency medical condition or there has been a determination that insured does not have emergency medical condition, benefits would be limited to $2500 -- Trial court properly limited recovery to $2500, although plaintiff eventually submitted a determination that insured had emergency medical condition after suit was filed, where insurer had requested written report of insured's medical condition to determine whether insured was entitled to payment exceeding $2500, but plaintiff initially failed to respond to request and instead submitted demand letter for payment of benefits

41 Fla. L. Weekly S403a
200 So. 3d 1202

Insurance -- Life insurance -- STOLI schemes -- Incontestability -- A policy that has the statutorily required insurable interest at its inception, even where that interest is created as the result of a stranger-originated life insurance (STOLI) scheme, set up for the insured to work with an investor to create the insurable interest necessary, hold the policy until the two-year contestability period expires, and then transfer the policy to an investor who would not have had the insurable interest to procure the policy in the first place, is nonetheless incontestable after two years, under the plain language of the incontestability statute -- A party cannot challenge the validity of a life insurance policy after the two-year contestability period based on its creation through a STOLI scheme

41 Fla. L. Weekly D2693c
204 So. 3d 597

Administrative law -- Department of Financial Services -- Licensing -- General insurance lines insurance agent -- Revocation -- Disputed issues of material fact -- Licensee entitled to hearing under section 120.57(1) under unique facts and circumstances of case

41 Fla. L. Weekly D1869c
199 So. 3d 350

Insurance -- Homeowners -- Sinkhole claim -- Where, in insureds' claim for sinkhole damage, insurer raised as affirmative defense that insurance contract was void because insureds failed to disclose unrepaired damage from a prior sinkhole, it was an abuse of discretion to refuse to admit evidence of the amount insureds received to repair home from a prior insurance company after a previous sinkhole claim on the property -- Because insureds used only a small portion of the settlement paid by the prior insurance company to repair damage to the property, evidence of the amount of the settlement was relevant to the issue of whether there was unrepaired damage

41 Fla. L. Weekly S415a
200 So. 3d 1207

Insurance -- Homeowners -- Sinkhole claims -- The statutory presumption of correctness afforded to an insurer's internal report during the investigation process in the sinkhole statutes does not extend to later trial proceedings -- Attorney's fees -- Insured prevailing in action against insurer -- A prevailing insured's recovery of attorney's fees under section 627.428, Florida Statutes, requires only an incorrect denial of benefits, not a showing of bad faith on the part of the insurer -- Insurer's payment of policy proceeds after suit has been filed constitutes the functional equivalent of a confession of judgment, thereby entitling insured to an award of attorney's fees

41 Fla. L. Weekly D1997c
200 So. 3d 215

Insurance -- Homeowners -- Coverage -- Sinkhole claim -- Error to enter judgment for damages payable directly to insureds without regard to policy's loss settlement provision, under which insurer had obligation to pay for repairs only as work was performed under subsurface repair contract -- Homeowners are entitled to enforceable money judgment for damages other than subsurface repairs and judgment reflecting that insurer is obligated to pay for subsurface repairs as the work is performed pursuant to subsurface repair contract

41 Fla. L. Weekly D1561a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 41 Fla. L. Weekly D1997c

Insurance -- Homeowners -- Coverage -- Sinkhole claim -- Error to enter judgment for damages payable directly to insureds without regard to policy's loss settlement provision, under which insurer had obligation to pay for repairs only as work was performed under subsurface repair contract

41 Fla. L. Weekly D1118a
191 So. 3d 526

Insurance -- Homeowners -- Sinkhole loss -- Subsurface repairs -- Trial court erred in entering final summary judgment in favor of insurer in insureds' action seeking determination of proper method of subsurface repair where there was material issue of fact regarding how to stabilize the subsurface properly

41 Fla. L. Weekly D1479b
194 So. 3d 1064

Insurance -- Homeowners -- Sinkhole loss -- Subsurface repair -- Insureds were not required to provide acceptable repair contract as condition precedent to filing suit against insurer -- Insurer had no obligation to pay damages awarded by jury for subsurface repairs until insureds contracted to make those repairs -- Damages -- Verdict awarding $100,000 for subsurface repairs was not against manifest weight of evidence -- Prejudgment interest -- Error to award prejudgment interest where insurer had no obligation to pay absent contract for subsurface repairs

41 Fla. L. Weekly D1436e
193 So. 3d 1084

Insurance -- Homeowners -- Sinkhole claim -- Error to award money damages for subsurface repairs without requiring insured to enter into contract for those repairs consistent with jury verdict

41 Fla. L. Weekly D1388b
192 So. 3d 1268

Insurance -- Homeowners -- Sinkhole claims -- Error, under policy at issue, to require insurer to pay for subsurface repairs before insureds entered into contract for those repairs

41 Fla. L. Weekly D1047e
197 So. 3d 72

Insurance -- Homeowners -- Sinkhole loss -- Trial court erred in denying insurer's motion to require insureds to enter into contract for subsurface repairs before entering money judgment -- Interest -- Trial court erred in awarding insureds prejudgment interest where there was no indication in the record that the jury was determining the amount of loss for a date other than the date of the verdict

41 Fla. L. Weekly D509a
190 So. 3d 1092

Insurance -- Homeowners -- Sinkhole claim -- All-risk policy with sinkhole loss coverage endorsement -- Action by insureds against insurer for breach of contract by denying coverage for sinkhole claim -- Causation of loss -- Jury instructions -- Trial court erred in instructing jury that insurer was required to prove that no portion of insureds' loss was sinkhole related -- In first-party claims involving multiple perils, factfinder must apply the efficient proximate cause doctrine to determine the cause of loss -- Jury must determine which peril was the most substantial or responsible factor in the loss -- If the efficient proximate cause of the loss is a covered peril, the loss is covered; if it is an excluded peril, the loss is not covered

41 Fla. L. Weekly D918d
197 So. 3d 70

Insurance -- Sinkhole loss -- Trial court erred in denying insurer's motion to require insureds to enter into contract for subsurface repairs before entering money judgment

41 Fla. L. Weekly D448a
198 So. 3d 730

Insurance -- Homeowners -- Sinkhole claims -- Trial court erred in awarding money damages payable to homeowners without recognizing insurer's right under policy to withhold payment for cost of subsurface repairs until homeowners entered into contract for those repairs -- Insurer's initial denial of coverage for the claim after determining that it was not a covered loss did not amount to total breach of contract such that insurer could no longer rely on policy restrictions on insurer's obligations to pay for cost of repair for subsurface damages -- Trial court erred in awarding prejudgment interest where request for prejudgment interest was first raised after jury returned its verdict, and there was no indication that the jury was determining amount of loss for any date other than the date of the verdict

41 Fla. L. Weekly D2384a
201 So. 3d 1243

Insurance -- Homeowners -- Sinkhole claim -- Breach of contract -- Initial denial of sinkhole claim and subsequent extension of coverage after insureds filed suit and neutral evaluator confirmed sinkhole damage

41 Fla. L. Weekly D885b
194 So. 3d 411

Insurance -- Homeowners -- Sinkhole claim -- Trial court did not err in denying insurer's motion for directed verdict on insureds' breach of contract claim where parties had a bona fide dispute about the method and means necessary to perform subsurface repairs -- Trial court erred in entering summary judgment in favor of insureds for full amount of subsurface repairs without first requiring insureds to enter into a contract for the repairs -- Notwithstanding any breach by insurer, the policy provisions regarding withholding payment for subsurface repairs remained in effect -- Prejudgment interest -- Trial court erred in awarding insureds prejudgment interest from the date of their claim rather than from the date the proceeds would have been due under the policy -- Trial court erred in awarding insureds prejudgment interest on cosmetic damage award where record reflects that when insureds filed suit, the only credible estimate insurer had for cosmetic damage was the amount of the estimate prepared by its adjuster, which insurer had tendered to insureds

41 Fla. L. Weekly D2350c
202 So. 3d 115

Insurance -- Homeowners -- Sinkhole loss -- Appeals -- Where appellate court concluded in prior appeal that policy unambiguously excluded sinkhole damage, held that it was error for trial court to deny insurer's motion for summary judgment, and directed trial court to enter judgment in favor of insurer, trial court failed to comply with mandate when it refused to enter judgment in favor of insurer on remand -- Motion to enforce mandate granted

41 Fla. L. Weekly D2033b
199 So. 3d 495

Insurance -- Homeowners -- Res judicata -- Insured's action against insurer to recover damages for plumbing leak is barred by res judicata where court had entered summary judgment for insurer in a prior suit for the same damages on the basis that insured lacked standing based on insured's assignment of her insurance benefits to a remediation company

41 Fla. L. Weekly D2322a
209 So. 3d 14

Insurance -- Homeowners -- Property damage -- Replacement cost policy -- Trial court erred in finding as matter of law that replacement cost policy required insurer to replace damaged kitchen cabinets as matter of law -- Under both governing statute and insurance policy at issue, insurer may limit its liability to reasonable and necessary cost to repair damaged, destroyed, or stolen covered property -- Trial court erred in ruling that payment for general contractor's overhead and profit was required as matter of law where there remained disputed issues of fact as to whether a general contractor would be necessary to repair damage -- Trial court abused its discretion when it struck all insurer's witnesses because they were not general contractors where there were disputed issues of fact as to whether damaged kitchen cabinets could be repaired and whether contractor was reasonably necessary -- Trial court abused its discretion by prohibiting inquiry into a second leak that occurred after initial water damage to kitchen cabinets, notwithstanding claim by insured's expert that the second leak did not impact his opinion regarding amount of loss -- Remand for new trial

41 Fla. L. Weekly D1289a
204 So. 3d 460

Insurance -- Homeowners -- Trial court departed from essential requirements of law when it abated insured's action against insurer for breach of contract and declaratory judgment, filed after public adjuster hired by insured disputed scope of repairs proposed by insurer's contractor and insurer denied coverage because insured failed to sign insurer's contractor's work authorization -- Abatement order precluded insured from obtaining determination as to whether insurer properly exercised policy's right to repair clause and, if so, what parties' rights and obligations are under that clause -- Moreover, homeowner is entitled to dispute scope of repairs before the repairs are completed

41 Fla. L. Weekly S582a
208 So. 3d 694

Insurance -- Homeowners -- All risk policy -- Coverage -- Loss caused by multiple perils -- Where loss is caused by multiple perils and at least one of the perils is excluded from coverage, the proper theory of recovery is the concurring cause doctrine -- Under the concurrent cause doctrine, coverage may exist where an insured risk constitutes a concurrent cause of the loss even when it is not the prime or efficient cause -- Insureds were entitled to coverage for loss caused by defective construction, which was an excluded peril, and rainwater and hurricane winds, which were covered perils -- Trial court may properly consider settlements received from third parties as a post-judgment offset to judgment against insurer

41 Fla. L. Weekly D553a
193 So. 3d 16

Insurance -- Health -- Action against health insurer by assignee of physician who provided services to insured under policy, seeking payment for services rendered by physician -- Trial court properly dismissed complaint where health plan clearly provides that insurer will not reimburse third parties that have been assigned benefits by a provider -- Further, plaintiff's state-law claims, which relate to a health plan governed by ERISA, are defensively preempted by ERISA

41 Fla. L. Weekly D2372a
202 So. 3d 148

Insurance -- Uninsured motorist -- Jurisdiction -- Foreign insurer -- Action to recover uninsured motorist benefits by Florida resident who was injured in an automobile accident in Florida while driving an insured vehicle with permission of an insured against a Pennsylvania insurer which issued policy in Wisconsin that provided uninsured motorist coverage for accidents occurring anywhere in the United States and Canada -- Because insurer's refusal to pay first-party benefits to plaintiff would be a breach of contract in Florida, insurer is subject to jurisdiction in Florida under Florida's long-arm statute -- Insurer is entitled to dismissal of action, however, because insurer did not have sufficient minimum contacts with Florida to satisfy constitutional due process -- Insurer did not act to purposely avail itself of conducting any business in Florida -- Mere provision of coverage for accidents nationwide is not enough to establish jurisdiction over nonresident insurer

41 Fla. L. Weekly S473a
202 So. 3d 396

Insurance -- Homeowners -- Sinkhole claim -- Florida Insurance Guaranty Association liability -- The statutory definition of “covered claim” effective on the date of an insurer's adjudication of insolvency determines the scope of FIGA's liability to insureds for sinkhole loss -- Statutory provision limiting FIGA's monetary obligation to the amount of actual repairs for a sinkhole loss precludes an insured from obtaining an appraisal award determining the amount of loss in accordance with the terms of the homeowners policy

41 Fla. L. Weekly D927a
193 So. 3d 940

Insurance -- Homeowners -- Florida Insurance Guaranty Association -- Trial court properly entered order that substituted FIGA for insolvent insurer in first-party lawsuit that was pending at time insurer was declared insolvent -- There is no merit to FIGA's contention that trial court had no jurisdiction over FIGA because insured's attempt to name FIGA as the defendant in the lawsuit occurred after the statute of limitations governing claims against FIGA had expired -- It is not necessary for the plaintiff in a first-party lawsuit to bring a new action against FIGA, or separately serve FIGA in the pending action, in order for the trial court to obtain jurisdiction over FIGA

41 Fla. L. Weekly D916b
189 So. 3d 293

Insurance -- General liability -- Duty to defend and indemnify -- Damages arising from automated solicitation calls placed by insured to plaintiffs in underlying litigation -- Trial court did not err in finding that calls placed by insured constituted an “occurrence” under the policy where, although calls were intentionally placed, evidence demonstrated that insured was not aware that it was acting in violation of law or that it had intent to injure -- Exclusions -- “Expected or intended injury” exclusion did not apply, although calls were placed intentionally, where there was no evidence that insured expected or intended to cause harm by placing phone calls

41 Fla. L. Weekly D387b
187 So. 3d 258

Insurance -- General liability -- Coverage -- Injury to insured's employee who was attending an event at an attraction owned by county which was hosted by the insured employer -- Trial court properly found that the county and the county-owned attraction were additional insureds under the policy -- Trial court erred in finding that coverage was excluded under the absolute employer's liability provision of the policy -- Although there would have been no coverage for a claim brought against the insured by its own employee, there was coverage for claims against the additional insureds under the severability or separation of insureds provision -- Separation of insureds provision operated to permit coverage for plaintiff's claim against additional insureds, even if she was at the attraction because of her employment with the insured employer -- Error to enter summary judgment for defendant insurer on claims of breach of contract and bad faith

41 Fla. L. Weekly D2413a
208 So. 3d 184

Insurance -- Uninsured motorist -- Venue -- Forum selection clause -- Trial court erred in denying defendant insurer's motion to dismiss claim for uninsured motorist benefits based on improper venue where endorsement to policy contained mandatory forum selection clause providing that any lawsuits related to coverage shall be brought, heard, and decided in county of insured address shown on policy declarations, which was an address in Pennsylvania -- Forum selection clause contained in endorsement prevailed over general venue provisions in policy -- To the extent an endorsement is inconsistent with the body of the policy, the endorsement controls

41 Fla. L. Weekly D1389b

Insurance -- Homeowners -- Sinkhole claim -- Discovery -- Trial court departed from essential requirements of law in requiring insureds to disclose to defendant/prior insurer financial information from a confidential settlement agreement insureds had reached with subsequent homeowners insurer where defendant insurer's liability has not yet been established

41 Fla. L. Weekly D352b
189 So. 3d 196

Insurance -- Discovery -- Trial court departed from essential requirements of law in ordering disclosure of insurer's claims file and related materials prior to any coverage determination

41 Fla. L. Weekly D278a
185 So. 3d 575

Insurance -- Discovery -- Trial court departed from essential requirements of law in ordering insurer to produce portions of its adjusters' claims files to medical provider in first-party non-bad-faith cases

41 Fla. L. Weekly D837b
189 So. 3d 993

Insurance -- Directors and Officers Liability -- Exclusions -- Trial court properly entered declaratory judgment finding that insurer was not liable for payment of judgment against president and CEO of insured corporation in favor of former director and shareholder of corporation due to the exclusion for “insured versus insured” claims

41 Fla. L. Weekly D60c
186 So. 3d 11

Insurance -- Commercial general liability -- Coverage -- Garnishment proceeding against insurer seeking recovery of damages awarded to judgment creditors in construction defect action against insured contractor -- Trial court properly found the damages awarded for cost to access and repair water damage were covered by insured contractor's CGL policy -- Trial court erred in finding that attorney's fees awarded against contractor were not covered by policy where policy contained supplementary payment provision that provided insurer would pay all costs taxed against insured in “ ‘suit' against an insured [it] defend[s]”

41 Fla. L. Weekly D2696a
208 So. 3d 230

Insurance -- Commercial automobile policy -- Pretrial stipulation -- Where insured brought declaratory judgment action seeking declaration that there was a theft of insured's truck under terms of policy, and parties' joint pretrial stipulation established that the only issue for determination by jury was whether insured's truck had been lost due to theft, trial court erred in exceeding the scope of the pretrial stipulation by making separate finding that insured failed to establish damages after declaratory judgment had been entered in favor of insured -- Insurer's motion for summary judgment alleging that policy was cancelled prior to theft of insured's truck was properly denied where documents in support of motion for summary judgment were neither verified nor authenticated -- Although documents offered to prove cancellation were also attached to sworn deposition of insurer's representative, the documents could not be used as proper summary judgment evidence where the documents were not sufficiently authenticated under the business records exception to the hearsay rule

41 Fla. L. Weekly D2098a
202 So. 3d 877

Insurance -- Commercial -- Exclusions -- Entrustment -- Provision excluding coverage for loss or damage resulting from any dishonest or criminal act by anyone to whom insured entrusts property is applicable to exclude coverage for damage caused to real property and theft of business personal property by tenant to which insured had leased the property -- Lease of property to tenant was an entrustment

41 Fla. L. Weekly D1288c
199 So. 3d 970

Insurance -- Homeowners -- Class action -- Trial court departed from essential requirements of law by denying motion to dismiss, for failure to exhaust administrative remedies, a class action suit against insurer and its managing general agent alleging insurer improperly collected a managing general agent fee on all of its insurance policies, in violation of Florida law, because insurer's MGA did not place insurance policy and was not acting as a legitimate MGA -- Challenge to MGA fee was administrative matter related to rate and premium which should have been initially addressed with Office of Insurance Regulation -- Whether MGA fee can be charged for each policy, regardless of whether insurer's MGA actually placed the policy with the insurer, is regulatory issue that agency should resolve

41 Fla. L. Weekly D2660a
215 So. 3d 90

Appeals -- Non-final orders -- Order denying Citizens Property Insurance Corporation's motion to dismiss and/or strike two counts of complaint and abating those counts until coverage or extent of liability are determined is non-final, non-appealable order -- Record does not support contention that trial court's order was one determining as matter of law that sovereign immunity was not available -- Appeal dismissed

41 Fla. L. Weekly D381a
185 So. 3d 675

Insurance -- Trial court erred in dismissing insureds' breach of contract action against insurer on basis of counsel's failure to appear at case management conference without findings that counsel's failure to appear was flagrant, willful, persistent, or aggravated

41 Fla. L. Weekly D2539a
203 So. 3d 1013

Insurance -- Venue -- Actions against insurance company for bad faith failure to settle and against company's attorney for legal malpractice -- Order denying motion to sever or bifurcate counts is not an appealable non-final order -- Venue was proper in county where one of defendants resided -- Trial court did not abuse discretion in denying motion to transfer venue for forum non conveniens

41 Fla. L. Weekly D156a
190 So. 3d 136

Insurance -- Uninsured motorist -- Bad faith -- Circuit court did not, at time of its actions, depart from essential requirements of law when, after entering partial final judgment for insured on UM claim after insurer tendered its policy limits, it simultaneously granted insured's motion to amend complaint to add first-party bad faith claim -- At time of orders at issue, there was no binding authority from district court on underlying issue of whether, under these circumstances, insured was required to file new bad-faith action, and there was split of authority between sister district courts on this issue -- Petition for writ of certiorari denied

41 Fla. L. Weekly S62a
185 So. 3d 1214

Insurance -- Uninsured motorist -- Bad faith -- Insured is entitled to a determination of liability and full extent of damages in UM action before filing a first-party bad faith action -- Determination of damages in UM action is binding, as an element of damages, in a subsequent first-party bad faith action against the same insurer so long as parties have the right to appeal any properly preserved errors in the verdict -- Trial court did not err in retaining jurisdiction to allow filing of bad faith cause of action -- District courts have jurisdiction to review claims of error in the determination of damages obtained in the UM action -- Amount of damages in UM case does not become moot by virtue of insurer's confession of judgment and tendering of policy limits

41 Fla. L. Weekly D2736b
208 So. 3d 239

Insurance -- Homeowners -- Sinkhole loss -- Bad faith -- Trial court erred when it entered summary judgment in favor of insurer on first-party bad-faith complaint on ground that, by accepting insurer's proposal for settlement on underlying breach of contract claim for amount less than policy limits, insureds had failed to obtain a determination of liability or the extent of their damages -- Insurer's payment of settlement amount constituted a favorable resolution for insureds and further served as a determination of liability and extent of insureds' damages, and fact that settlement was in amount less than policy limits or amount initially demanded by insureds does not change result

41 Fla. L. Weekly D1357a
193 So. 3d 1026

Attorney's fees -- Proposal for settlement -- Validity of proposal -- Insurance -- Action by insured against insurer -- Trial court properly denied defendant insurer's motion for attorney's fees based on proposal for settlement where proposal purported to impose liability for an indeterminate category of other claims of third parties on plaintiff's counsel, a non-party

41 Fla. L. Weekly D1438a
200 So. 3d 153

Insurance -- Personal injury protection -- Attorney's fees -- Confession of judgment by insurer -- Circuit court, acting in its appellate capacity, did not violate clearly established principles of law resulting in miscarriage of justice by finding that confession of judgment occurred, entitling health care provider to award of attorney's fees, when insurer mailed overdue PIP payments the day before suit was filed, which were not received by health care provider after suit was filed -- Insurer waived claim that payment was made before suit was filed by its initial stipulation that payment was made after suit was filed where stipulation was never withdrawn -- Insurer's argument that PIP payments are deemed made when mailed was not raised in county court, and is rejected

41 Fla. L. Weekly D2609a 204 So. 3d 154 Insurance -- Personal injury protection -- Attorney's fees -- Multiplier -- County court properly denied the request of insured who prevailed in action against insurer for a contingent fee multiplier upon finding that the relevant market did not require a multiplier for insured to obtain competent counsel because many attorneys took his case without a discussion of a multiplier -- Circuit court departed from essential requirements of law by reversing county court's decision

41 Fla. L. Weekly D30d
183 So. 3d 1134

Insurance -- Attorney's fees -- Action against homeowners insurer which initially failed to pay insured for the loss of her home and eventually paid the policy limit after suit was filed -- In awarding attorney's fees to insured, trial court properly applied a multiplier of 1.5 where there was no other counsel in the relevant market who would agree to represent insured under the contingency fee arrangement she needed in light of her financial situation, time involved by counsel was substantial, and the results obtained were the maximum sought -- It was improper to award fees for counsel's travel time and to award costs for counsel's travel expenses -- It was improper to award costs in the form of back-up expert fees where insured did not establish the necessity of the fees

41 Fla. L. Weekly D2044a
201 So. 3d 182

Insurance -- Homeowners -- Attorney's fees -- Insureds prevailing in action against insurer to recover for sinkhole damage to home -- Trial court abused discretion in applying multiplier to attorney's fee award where case was not one involving rare and exceptional circumstances -- Evidence did not support award of court costs for expert witnesses

41 Fla. L. Weekly D1279a
196 So. 3d 419

Insurance -- Homeowners -- Attorney's fees -- Insureds prevailing in action against insurer -- Trial court abused discretion in applying multiplier to fees awarded to insureds where there was no showing that insureds would have had difficulty finding competent counsel to represent them -- Finding that attorneys went all the way through trial to completion was not a valid basis for award of fee multiplier

41 Fla. L. Weekly D696a
189 So. 3d 905

Insurance -- Attorney's fees -- Prevailing insured -- In determining commercial general liability insurer's liability for fees incurred by insured, who prevailed in coverage dispute with insurer, trial court erred in limiting recovery of attorney's fees under contingency fee agreement between insured and insured's attorney to those fees incurred in litigating coverage action against insurer, thereby allowing no recovery for attorney's fees incurred in defending the insured in underlying personal injury action for which insured had sought coverage and a defense -- Insurer had no standing to advance a construction of fee agreement to which it was neither a party nor a third-party beneficiary and, accordingly, could not impose an interpretation of the agreement that ran counter to the intent of the parties to the contract, who agreed that they contemplated recovery of attorney's fees incurred in defending underlying tort action -- Inclusion of these fees is consistent with subject matter and object and purpose of contract between insured and attorney, which contemplated a lawsuit against insurer for breach of its duty to defend insured in tort action

41 Fla. L. Weekly S115a
190 So. 3d 1047

Attorney's fees -- Insurance -- Discovery -- Billing records of opposing counsel -- Hours expended by counsel for defendant insurance company in a contested claim for attorney's fees filed pursuant to sections 624.155 and 627.428, Florida Statutes, is relevant to issue of reasonableness of time expended by counsel for the plaintiff, and discovery of such information, where disputed, falls within sound discretion of trial court -- Clarification of relevance of time expended by opposing counsel to issue of reasonable hours for party who is entitled to payment of attorney's fees when fees are contested -- Entirety of the billing records are not privileged, and where the trial court specifically states that any privileged information may be redacted, plaintiff should not be required to make an additional special showing to obtain the remaining relevant, non-privileged information -- District court improperly infringed on sound discretion of trial court and required plaintiff to meet unnecessarily high standard when it required plaintiff to make additional special showing prior to discovery of billing records -- Appeals -- Certiorari -- District court improperly employed certiorari jurisdiction when it granted petition on an issue that did not depart from essential requirements of law and would not cause irreparable harm to opposing party

41 Fla. L. Weekly D1114b
190 So. 3d 1155

Insurance -- Automobile liability -- Attorney's fees and costs -- Trial court properly awarded attorney's fees and costs against insurer jointly and severally with insured pursuant to plaintiff's proposal for settlement -- Policy provision stating that insurer would cover “other expenses incurred at our request” included costs associated with choosing to litigate a case instead of settling it -- Conflict certified

41 Fla. L. Weekly D1649a
200 So. 3d 200

Attorney's fees -- Insurance -- Sinkhole claims -- Florida Insurance Guaranty Association -- Homeowner who filed suit to enforce sinkhole policy was not entitled to recover attorney's fees from FIGA where undisputed facts showed that FIGA did not deny claim by affirmative action -- Discussion of interplay between section 631.70 which allows insured to seek attorney's fees from FIGA related to enforcement of policy under certain circumstances and section 631.54(3)(c) that excludes attorney's fees from “covered claims” in relation to a sinkhole loss

41 Fla. L. Weekly D788b
190 So. 3d 1110

Insurance -- Sinkhole claims -- Multi-building condominium property -- Insured prevailing in action against insurer -- Costs -- Trial court abused its discretion in including reimbursement for public adjuster and property management fees in taxable costs, as property management fees and public adjuster fees were not litigation costs -- Trial court erred in awarding as taxable cost various expenses and fees incurred in appraisal process where policy required insured to pay its own appraiser and bear equal share of umpire and other appraisal expenses -- Attorney's fees -- Multiplier -- Error to apply contingency risk multiplier where fee agreement guaranteed payment at a lesser hourly rate, which mitigated the risk of nonpayment, and evidence showed that attorney had been paid under the contract -- Trial court erred by limiting recovery of attorney's fees and prejudgment interest to only one building where suit encompassed other buildings in condominium complex

41 Fla. L. Weekly D1902a
209 So. 3d 11

Attorney's fees -- Appellate -- Insurance -- Insured prevailing in action against insurer -- Attorney's fees may be awarded under section 627.428 for services in appellate court, whether proceeding is direct appeal or petition for writ of certiorari -- Insureds' amended motion for attorney's fees incurred in certiorari proceedings granted, conditioned upon their ultimately prevailing in trial court

41 Fla. L. Weekly D685b
190 So. 3d 154

Insurance -- Health insurance -- Forum selection clause -- Arbitration -- Trial court properly determined that there was a valid and enforceable forum selection clause in certificate of insurance which provided for mandatory and exclusive jurisdiction of action by insured against insurer in Delaware -- Having determined that Delaware is the proper forum, court erred in contemporaneously compelling arbitration, as any order compelling arbitration must be rendered in Delaware as well

41 Fla. L. Weekly D998c
189 So. 3d 340

Insurance -- Assignment of benefits -- Where assignment of benefits from insured to plaintiff was clear and unambiguous, it was error to allow introduction of extrinsic evidence to determine meaning of agreement -- Assignment of insurance benefits transferred to assignee standing to litigate coverage issue raised by insurer when it denied claim

41 Fla. L. Weekly D1385a
192 So. 3d 1275

Insurance -- Homeowners -- Post-loss claims are assignable without consent of insurer -- Error to enter summary judgment in favor of insurer in assignee's action against insurer

41 Fla. L. Weekly D349a
185 So. 3d 638

Insurance -- Homeowners -- Post-loss assignment of benefits -- Trial court erred in finding that insured was precluded from assigning benefits of homeowners policy to emergency water mitigation company without consent of insurer -- Language of policy merely prohibited insured's unilateral assignment of the entire policy, not a financial benefit derived from the policy -- Florida law prohibits an insurer from restricting an insured's unilateral post-loss assignment of a benefit derived from policy

41 Fla. L. Weekly D730a
187 So. 3d 932

Insurance -- Windstorm damage to roofs of condominium buildings -- Trial court erred in entering summary judgment and attorney's fees award in favor of insured based on finding that insurer's voluntary payment of appraisal award after suit was filed amounted to confession of judgment -- Voluntary payment of appraisal award after suit was filed did not amount to confession of judgment as matter of law where there was disputed issue as to whether insured was forced to litigate in order to get insurer to pay claim, whether insured breached contract by failing to participate in appraisal process, and whether insurer timely provided notice of mediation as required by statute -- Discovery -- Documents requested by insurer, including copy of communication between insured and any public adjuster or contractor hired by insured, were relevant to issue of whether insured continued to dispute insurer's estimate and was forced to file suit to resolve claim

41 Fla. L. Weekly D1133a
191 So. 3d 961

Insurance -- Homeowners -- Appraisal -- Claim by assignee that trial court erred by compelling appraisal “with the named insured” not considered on appeal where order simply granted motion to compel appraisal and, in hearing on the motion, trial court simply told parties to “work it out” when asked whether it was requiring insured himself to comply with appraisal terms -- Selecting an appraiser was not a non-assignable duty under the policy at issue

NOT FINAL VERSION OF OPINION
Subsequent Changes at 41 Fla. L. Weekly D1133a

Insurance -- Homeowners -- Appraisal -- Claim by assignee that trial court erred by compelling appraisal “with the named insured” not considered on appeal where order simply granted motion to compel appraisal and, in hearing on the motion, trial court simply told parties to “work it out” when asked whether it was requiring insured himself to comply with appraisal terms

41 Fla. L. Weekly D2064a
201 So. 3d 710

Insurance -- Homeowners -- Rescission of policy -- Material misrepresentations in application -- Loss history -- Determination that insured's misrepresentations on application were material and affected insurer's decision to issue or renew policy was supported by sufficient evidence, including insured's admissions during examination under oath and unrebutted testimony of assistant vice president in insurer's underwriting department -- Because policy specifically disclaimed coverage if one or more insureds intentionally concealed or misrepresented any material fact or circumstance, applicant's material misrepresentations were properly imputed to co-owner -- No error in ruling that rescission of homeowners policy was proper

41 Fla. L. Weekly D1909a
199 So. 3d 380

Insurance -- Uninsured motorist -- Appeals -- Appeal of order which adjudicated only claim that policy provided stacked uninsured/underinsured motorist coverage is premature where intertwined counts remain pending -- Rule of Appellate Procedure 9.110(m) provides for interlocutory appeals for third-party claims, and not for first-party claims seeking UM/UIM benefits

41 Fla. L. Weekly D1431a
197 So. 3d 597

Insurance -- Homeowners -- Rescission of policy -- Misrepresentations on application -- Insurer was entitled to rescission of policy due to insureds' misrepresentation on application that home had a central station alarm monitoring for smoke, temperature, and burglary, where misrepresentation was material to the issuance of the policy, and misrepresentation was relied upon by insurer in issuing the policy

41 Fla. L. Weekly D1865a
195 So. 3d 1202

Appeals -- Insurance -- Appeal from judgment finding entitlement to coverage dismissed for lack of jurisdiction in view of pendency of separate trial on liability and damages against driver, with possible recovery against insurer under policy