2017

42 Fla. L. Weekly D101b
209 So. 3d 77

Insurance -- Uninsured motorist -- Where, in action against uninsured motorist insurer and uninsured motorist, defendants admitted liability and court bifurcated compensatory and punitive damages claims, it was an abuse of discretion to admit evidence and argument regarding the uninsured motorist's intoxication at the time of the accident in the compensatory phase of trial -- Evidence was insufficient to support award of damages for future medical expenses and future loss of earning capacity

42 Fla. L. Weekly D1048b
219 So. 3d 172

Workers' compensation insurance -- Rates -- Increase -- Public records -- Public meetings -- Trial court erred when it determined that rate increase approved by Insurance Commissioner was void because Office of Insurance Regulation and licensed insurance rating organization violated Sunshine Law under three separate statutory provisions and because rating organization violated state statutes when it denied individual's request to access organization's records -- Remand for reinstatement of OIR's final order approving 14.5% increase in workers' compensation insurance rates -- Sunshine Law violations -- Section 627.091(6), which extended Sunshine Law to instances when a rate-determination committee of a rating organization meets to determine workers' compensation insurance rates, did not apply to actuary employed by rating organization, acting in his individual capacity, to meetings between actuary and his own staff, to rating organization's internal meetings, or to meetings between rating organization and OIR that occurred after rating organization made a rate determination and filed its proposal with OIR -- Trial court erred in finding that section 286.011 applied to rating organization, a private organization that was not created by a public entity -- Record did not support argument that rating organization was subject to Sunshine Law because OIR delegated its authority over rate filings to the organization -- Trial court erred in concluding that organization was subject to Sunshine Law pursuant to section 627.093, which provides that section 286.011 is applicable to every rate filing, approval or disapproval of filing, rating deviation from filing, or appeal from any of these regarding workers' compensation insurance -- Access to records -- Rating organization was not required to provide individual with access to its records under either section 627.291 or section 119.07

42 Fla. L. Weekly D2198a
232 So. 3d 1063

Insurance -- Windstorm -- Denial of coverage letter -- Insured's action against insurer -- Trial court erred in entering summary judgment for insurer on basis that insured failed to comply with post-loss condition of submitting to examination under oath where there was factual issue as to whether insurer's letter to insured was a denial of coverage letter -- If letter was a denial of coverage letter, insurer waived any right it had to enforce post-loss conditions

42 Fla. L. Weekly D1780a
224 So. 3d 882

Torts -- Automobile accident -- Insurance -- Uninsured motorist -- Trial court departed from essential requirements of law by granting uninsured motorist insurer's motion to sever claims against it from claims against alleged tortfeasor where claims were inextricably interwoven -- Appeals -- Certiorari is appropriate remedy where order severing UM claims from claims against tortfeasor may risk inconsistent outcomes and result in material injury that cannot be corrected on postjudgment appeal

42 Fla. L. Weekly D2182a
235 So. 3d 953

Insurance -- Uninsured motorist -- Conditions precedent to insured's action against insurer to collect UM benefits -- Waiver -- Insurer waived defense that insured failed to comply with condition precedent of exhausting remedies against primary insurer before proceeding against it as excess insurer where defendant failed to plead the defense with sufficient particularity

42 Fla. L. Weekly D2652a
233 So. 3d 1258

Insurance -- Uninsured motorist -- Collector or antique vehicle policy that restricts coverage requires insurer to provide uninsured motorist coverage for accidents not involving the collector vehicle unless insurer has obtained insured's written consent on an approved form selecting limitations on uninsured motorist coverage -- Conflict certified

42 Fla. L. Weekly D476b
211 So. 3d 1119

Insurance -- Business auto -- Uninsured motorist -- Trial court erred in finding that an employee of the company which was the named insured in a business auto policy was entitled to underinsured motorist benefits for injuries suffered when he was struck by an automobile being driven by an underinsured motorist while he was walking in front of his employer's offices on his way into the building -- No covered autos were involved in the accident, and employee was not a named insured under the policy -- Because policy was an excess liability policy, there was no requirement that insured execute a written waiver or rejection of UM coverage -- Because employee was neither a named insured nor a resident family member of an insured, he was, at best, a class II insured who could recover UM benefits only if he was occupying or driving a covered automobile

42 Fla. L. Weekly D238a
208 So. 3d 1239

Insurance -- Contractual subrogation -- Assignment of convenience by insurance company of subrogation rights

42 Fla. L. Weekly D655a
213 So. 3d 1104

Public records -- Exemptions -- Trade secrets -- Trial court properly determined that QUASR report submitted to Office of Insurance Regulation by insurance company contained data that was exempt from disclosure under public records law as trade secret -- Evidence supported finding that data possessed independent economic value to others

42 Fla. L. Weekly D1585a
231 So. 3d 528

Insurance -- Personal injury protection -- Civil procedure -- Relief from judgment -- Trial court erred in vacating stipulated judgment entered in settlement of action to recover PIP benefits on basis that there was no meeting of the minds as to whether the stipulated judgment would bar subsequent litigation involving insurer's obligation to cover medical expenses incurred by insured subsequent to the stipulated judgment -- Even if settlement agreement was void, judgment entered pursuant to the agreement was merely voidable, not void -- As there was no record evidence to support trial court's finding that there was no meeting of the minds, trial court's vacation of stipulated judgment on that basis was an abuse of discretion

42 Fla. L. Weekly D2455c
229 So. 3d 901

NOT FINAL VERSION OF OPINION
Subsequent Changes at 43 Fla. L. Weekly D318a

Insurance -- Personal injury protection -- Deductible -- When calculating the amount of PIP benefits due, the deductible is to be subtracted from the total medical charges before applying the statutory reimbursement limitations provided in section 627.736(5)(a)1.b., Florida Statutes (2014)

42 Fla. L. Weekly D1732b
227 So. 3d 672

Insurance -- Personal injury protection -- Judgment for insurer in action alleging that insurer breached contract by refusing to pay for medical treatment of named insured's son who had not been disclosed as member of household at time policy was applied for, and who sustained injuries in accident while driving insured vehicle -- Petition for second tier certiorari review of circuit court appellate division order affirming judgment for insurer is denied where circuit court provided due process and applied correct law

42 Fla. L. Weekly D893a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 42 Fla. L. Weekly D2503a

Appeals -- Certiorari -- Second-tier certiorari review of decision of circuit court appellate division regarding sufficiency of personal injury protection policy language to limit reimbursements to providers to Medicare fee schedules -- Where Florida Supreme Court has now resolved conflicting decisions and determined the issue, second-tier certiorari review of circuit court decision which pre-dated supreme court decision is appropriate -- Petition for writ of certiorari granted

42 Fla. L. Weekly D2503a
253 So. 3d 36

Appeals -- Certiorari -- Second-tier certiorari review of decision of circuit court appellate division regarding sufficiency of personal injury protection policy language to limit reimbursements to providers to Medicare fee schedules -- District court has no jurisdiction to review decision of circuit court appellate division where there was no binding decision from district court in which circuit court sits and there were conflicting non-binding decisions from other district courts -- Subsequent Florida Supreme Court decision cannot be applied retroactively to circuit court appellate division decision which has become final -- Question certified: Does a district court of appeal have jurisdiction to grant a petition for second-tier certiorari in a case in which there is direct conflict on a determinative issue as between (a) the circuit court appellate division case which is the subject of the second-tier petition, and (b) a decision by a different circuit court appellate division panel within the same district, when each of the conflicting decisions was rendered in the absence of a controlling decision by the district court for that district?

42 Fla. L. Weekly S38a
212 So. 3d 973

Insurance -- Personal injury protection -- Limitation of reimbursements to providers to permissive Medicare fee schedules -- Policy endorsement stating that “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,” is legally sufficient notice of the insurer's election to use the permissive Medicare fee schedules to limit reimbursements for medical expenses

42 Fla. L. Weekly D408a
211 So. 3d 1086

Insurance -- Personal injury protection -- Constitutionality of statute -- County court erred in finding that statute which limits PIP benefits to $2,500 if a provider determines that the injured person did not have an emergency medical condition, and excludes chiropractors from the list of professionals that are authorized to diagnose a patient with an emergency medical condition, is unconstitutional as applied to chiropractors on equal protection and due process grounds -- Rational basis -- Statute bears a rational relationship to objective of reducing fraud -- Chiropractors are not similarly situated to other medical providers to make an emergency medical condition diagnosis -- Where there has been no emergency medical condition diagnosis or no-emergency medical condition diagnosis, available PIP medical benefits are limited to $2,500

42 Fla. L. Weekly D465b
211 So. 3d 1115

Insurance -- Long-term care -- Coverage -- Trial court properly determined that policy was not ambiguous, and that insured was not entitled to receive home health care benefits after she transferred from an independent living facility to an assisted living facility -- When insured transferred to assisted living facility, she was no longer covered by the long-term care provisions of the policy and was no longer entitled to premium waiver -- Summary judgment was properly entered for insurer in insured's breach of contract action

42 Fla. L. Weekly D1164a

Creditors' rights -- Proceedings supplementary -- Impleader of third parties -- Homestead exemption -- Exceptions -- Alimony creditors -- Trial court erred in denying former wife's motion to implead former husband's new wife in proceedings supplementary based on its conclusion that former husband's transfer of real property and insurance policy to his new wife could not be fraudulent as a matter of law due to constitutional and statutory exemptions -- Exception to constitutional and statutory homestead protections for alimony creditors has long been recognized in Florida where former spouse claiming homestead protection acted egregiously, reprehensibly, or fraudulently -- Similarly, statutory protection for cash surrender values of life insurance policies is removed if exemption results from a fraudulent transfer or conveyance -- Remand for appropriate proceedings to determine if former husband acted either egregiously, reprehensibly, or fraudulently so as to justify forced sale of protected property

42 Fla. L. Weekly D192a
211 So. 3d 240

Estates -- Insurance -- Estate's settlement of negligence suit by entering into Coblentz agreement in which plaintiff and estate agreed to entry of consent judgment, with plaintiff agreeing not to execute on judgment against estate, and estate assigning to plaintiff any rights it had against its insurer which had declined to defend claim -- Trial court erred in permitting insurer to intervene in probate proceedings to challenge the personal representative's authority to settle negligence action by entering into Coblentz agreement -- It was error to allow insurer to intervene in non-adversarial probate proceedings where insurer's interest was not already at issue in proceedings -- After insurer refused to defend insured, and insured later settled suit by entering into Coblentz agreement, insurer was precluded from relitigating issue of insured's liability in subsequent proceedings, so that insurer was prohibited from raising any defenses on behalf of insured in probate court's proceedings that it could have raised had it chosen to defend insured in negligence lawsuit -- Trial court erred in entering summary judgment for insurer in bad faith suit brought against insurer

42 Fla. L. Weekly D1781a
224 So. 3d 870

Torts -- Automobile accident -- Joinder of insurer in final judgment against insured -- Trial court departed from essential requirements of law, resulting in irreparable harm, when it granted motion to join insurer in judgment against insured where motion was filed more than 15 days after judgment became final

42 Fla. L. Weekly D464c
212 So. 3d 477

Insurance -- Joinder of insurer in judgment against insured -- Judgment creditor's motion to join judgment debtor's commercial general liability insurer as party to judgment was untimely where motion was not filed at time of final judgment or within the following fifteen days allowed for a motion for rehearing -- Trial court departed from essential requirements of law by joining insurer to judgment that was already rendered -- Insurer was irreparably harmed because it was made responsible for coverage without having been given opportunity to raise defenses to entitlement to or amount of coverage -- Court's holding is without prejudice to filing separate action against insurer seeking declaratory judgment for determination as to coverage

42 Fla. L. Weekly D1085b
218 So. 3d 989

Insurance -- Subrogation -- Limitation of actions -- In subrogation action by insurer against defendant alleging that defendant negligently repaired insured's roof, resulting in water damage, limitations period commenced at time of the water damage, rather than at the time of the negligent repair -- Subrogation action filed within 4 years of date water damage occurred was timely -- Trial court erred in dismissing action as barred by statute of limitations

42 Fla. L. Weekly D1786a
224 So. 3d 864

Insurance -- Homeowners -- Sinkhole loss -- Trial court erred in entering directed verdict against insurer awarding homeowners damages for subsurface remediation in sinkhole action after refusing to consider testimony of insurer's expert engineers and neutral evaluator regarding proper method of subsurface repair -- Proper method of repair was jury question given conflicting evidence on this issue

42 Fla. L. Weekly D1931a
228 So. 3d 602

Insurance -- Homeowners -- Sinkhole claim -- Where trial court entered judgment for insured in breach of contract action against insurer after mitigating amount of verdict to policy limits, court did not err by staying execution on judgment until insured provides insurer with a signed contract for completion of necessary subsurface repairs to home although repairs cannot be made for the policy limit amount -- In light of counsel's representations during oral argument, insurer has waived its option to tender policy limits in lieu of paying in excess of those limits to complete repairs -- Remand with instructions to enter corrected order reflecting that, when insured provides insurer with a signed contract to complete necessary repairs, insurer will pay that amount instead of tendering policy limits

42 Fla. L. Weekly D1842a
228 So. 3d 596

Insurance -- Homeowners -- Sinkhole claims -- Insurer waived compliance with conditions precedent to suit when it unequivocally denied coverage -- An insurer that investigates a claim of loss and denies coverage because it concludes that a covered loss has not incurred cannot assert an insured's failure to comply with policy's conditions precedent to filing suit as basis for summary judgment -- Insureds' submission of engineer's report that reached conclusion that sinkhole activity caused damage to their home and their request that insurer reconsider claim did not constitute a reopening of the claim that nullified insurer's previous denial of coverage -- Trial court erred in granting summary judgment in favor of insurer on ground that insureds were barred from bringing breach of contract action

42 Fla. L. Weekly D339a
218 So. 3d 886

Insurance -- Homeowners -- In insured's action against insurer to recover for damage to roof, trial court did not err in denying insurer's motions for summary judgment and directed verdict alleging that insured failed to comply with post-loss obligations by submitting timely sworn proof of loss and protecting property from further damage by making reasonable and necessary repairs -- Issue of whether insured substantially complied with post-loss obligations involved questions of fact properly resolved by jury -- New trial required because of the admission of irrelevant evidence regarding insured's health

42 Fla. L. Weekly D230a
208 So. 3d 835

Insurance -- Homeowners -- Appeals -- Certiorari -- Insured is not entitled to writ of certiorari seeking to quash trial court order abating insured's declaratory judgment action against insurer and enforcing the option to repair provision contained in the policy where insured has not shown that trial court order creates irreparable harm -- Because insurer agrees that insured is not precluded from maintaining her suit after insurer completes its repairs to property, trial court order does not result in irreparable harm

42 Fla. L. Weekly D469a
211 So. 3d 1126

Insurance -- Homeowners -- Appeals -- Certiorari -- Insureds are not entitled to certiorari review of trial court's order abating their declaratory judgment and breach of contract claims against insurer until insurer has had an opportunity to repair water damage to insured home under option to repair provision of policy -- Because insurer has acknowledged that insureds may properly seek to lift abatement order and maintain suit after repairs have been completed, insureds have failed to show irreparable injury resulting from trial court order

42 Fla. L. Weekly D1891c
225 So. 3d 974

Insurance -- Homeowners -- Replacement cost policy -- Trial court erred in entering summary judgment for insurer in insureds' breach of contract action against insurer on basis that insurer complied with its initial payment obligation by paying its independent adjuster's estimate -- There is factual issue as to whether insurer paid at least the actual cash value of the costs of repairs in compliance with the policy and statute -- Trial court also erred in entering summary judgment on basis that insureds failed to comply with post-loss obligation of allowing inspection of property before filing suit where there was factual issue as to whether insurer requested plumbing inspection before suit was filed

42 Fla. L. Weekly D2029a
227 So. 3d 724

Insurance -- Homeowners -- Trial court erred in entering summary judgment for insurer on insured's breach of contract action claiming that insurer's payments for water damage to home were less than the actual cash value of the damage where widely divergent estimates of covered repair costs created a genuine issue of material fact -- Although insurer argued that it did not breach policy because it paid the amount its own adjuster computed to be due on the claim, less the deductible, and allowed for “supplemental” claim submission, insureds' claim and the adjusted loss amount prepared by the insureds' independent adjuster was not a supplemental claim or one for damages discovered in the covered reconstruction and repair, but instead addressed original casualty event and the amounts contended to be necessary to repair and restore the direct physical loss to the covered property

42 Fla. L. Weekly D203a
211 So. 3d 1067

Insurance -- Homeowners -- Ensuing loss provision -- Trial court erred by entering summary judgment against insurer for cost of a repair and replacement of slab necessary to reach a broken pipe, because the insurance contract's ensuing loss provision provided coverage for such repairs where water damage had occurred, and as the slab had not yet been opened at the time of summary judgment, it was unknown whether water damage had occurred -- No prejudice to homeowners' filing another claim of loss at a later date

42 Fla. L. Weekly D2174b
230 So. 3d 1242

Insurance -- Homeowners -- Error to enter summary judgment for insurer in insureds' breach of contract action where there is factual issue as to whether insurer paid actual cash value of loss -- Statute requires payment of actual case value, not merely insurer's estimate of actual cash value

42 Fla. L. Weekly D2117b
226 So. 3d 1085

Insurance -- Error to enter summary judgment for insurer where there is genuine issue of material fact as to amount of actual cash value of insured loss

42 Fla. L. Weekly D2115a
226 So. 3d 1084

Insurance -- Error to enter summary judgment for insurer where there is genuine issue of material fact as to amount of actual cash value of insured loss

42 Fla. L. Weekly D2006a
225 So. 3d 1012

Insurance -- Health insurance -- Coverage -- Dependent children -- Where language of Specified Health Event Insurance Policy provided coverage for insured's “natural children who are unmarried, who are under age 25, and who qualify as legal dependents for tax exemption purposes under the United States Internal Revenue Tax Code,” it was error to find that no coverage was provided for insured's 23-year-old daughter who was unmarried, and financially dependent upon and living with her parents, although she was not a dependent for tax exemption purposes -- Specific age limit stated in policy prevails over more restrictive age limit in generally referenced tax code -- Further, any ambiguity in policy definition of “dependent children” must be resolved against insurer

42 Fla. L. Weekly D365a
209 So. 3d 682

Insurance -- Homeowners -- Florida Insurance Guaranty Association -- Limitation of actions -- Insured who has filed first-party action to recover policy benefits against insurer prior to it becoming insolvent is not required to file suit against FIGA within limitations period in order to recover under FIGA Act -- Trial court erred in applying limitations period to insured's suit against FIGA and dismissing suit -- Insured's motions to amend complaint and substitute parties should have been granted, and her suit should have been allowed to proceed against FIGA

42 Fla. L. Weekly D2283a
231 So. 3d 1

Civil procedure -- Venue -- Transfer -- Multiple foreign corporation defendants -- Where plaintiff brought action against two uninsured-motorist insurers in county where neither plaintiff nor uninsured motorist reside and in which car accident did not occur, trial court erred in granting motion to transfer venue based on Rule of Civil Procedure 1.060 filed by one of the defendants where the non-moving insurer had an office in the county of the trial and answered the complaint -- Trial court's order denying separate motion to transfer for forum non conveniens as moot, given the order granting the transfer motion on civil procedure grounds, is reversed because the motion is no longer moot

42 Fla. L. Weekly D405a
210 So. 3d 260

NOT FINAL VERSION OF OPINION
Subsequent Changes at 42 Fla. L. Weekly D505b

Insurance -- Homeowners -- Insolvent insurers -- Florida Insurance Guaranty Association -- Insured who has already instituted an action against his or her homeowner's insurance carrier prior to carrier being declared insolvent is not statutorily required to file a new action against FIGA or separately serve FIGA in the pending action -- Trial court erred in granting FIGA's motion to dismiss based on its interpretation of section 631.68 as requiring that when FIGA assumes the defense of a covered claim, an insured who has already filed a timely lawsuit against its homeowner's insurance carrier must file a new lawsuit against FIGA within section 631.68's one-year filing period or be forever barred

42 Fla. L. Weekly D1096b
218 So. 3d 999

Insurance -- Homeowners -- Sinkhole claim -- Florida Insurance Guaranty Association liability -- Final judgment to be corrected to reflect that insured is required to enter into repair contracts within jury verdict amounts and that FIGA is required to pay actual repair costs to contractors up to the combined statutory cap

42 Fla. L. Weekly D1565a
224 So. 3d 259

Insurance -- Homeowners -- Trial court erred in entering summary judgment for insurer on insured's breach of contract action claiming that insurer's payments for rainwater damage to home's interior caused by roof leaks were less than the actual cash value of the damage where widely divergent estimates of covered repair costs created a genuine issue of material fact -- Exclusions -- Trial court also erred in entering summary judgment for insurer on insured's claim for damages to the roof itself on the ground that the roof damage was excluded by the “wear and tear” exclusion in the policy where insured has not yet presented a proper claim to insurer for processing, so that questions regarding both coverage and extent of loss have not yet crystallized for assertion as a cause of action for breach

42 Fla. L. Weekly D158b
208 So. 3d 1195

Insurance -- Homeowners -- Exclusions -- Marring -- Trial court properly found that coverage for cracking of floor tile in home when a vase fell was excluded by marring exclusion -- Insurer did not waive its right to rely upon marring exclusion by its pre-suit conduct in initially acknowledging coverage and paying a portion of the claim -- Even if insurer's actions amounted to a waiver, insured failed to preserve issue where insurer asserted the exclusion as an affirmative defense and insured failed to reply to, or avoid, the affirmative defense, instead raising the issue for the first time in opposition to insurer's motion for summary judgment

42 Fla. L. Weekly D1168a
219 So. 3d 862

Insurance -- Evidence -- No error in entering store receipts and photocopies of cancelled checks -- Store receipts which have distinctive logos and are identified by the purchaser as the receipts for the actual items purchased at the store by the purchaser are sufficiently authenticated and admissible to corroborate testimony of the purchaser regarding the purchase -- Photocopies of cancelled checks are admissible as duplicate of the original -- Moreover, any error in admitting documentary evidence was harmless where evidence was cumulative to precise facts of purchases to which purchasers testified

42 Fla. L. Weekly D1287b
231 So. 3d 508

Appeals -- Certiorari -- Insurance -- Partial summary judgment holding automobile liability insurer liable, under supplemental payments provision of policy, for attorney's fees judgment entered against its insureds in underlying personal injury litigation as result of rejection of injured party's proposals for settlement by attorney assigned by insurer to defend its insureds is non-final, nonappealable order where interrelated count was still pending in trial court -- Bad faith claim against insurer which was still pending in trial court was interrelated, as both it and insureds' claims for coverage of attorney's fees judgment sounded in contract -- However, partial summary judgment amounted to departure from essential requirements of law because it impermissibly authorized execution before entry of final appealable judgment

42 Fla. L. Weekly D2591a 233 So. 3d 1224 Torts -- Legal malpractice -- Discovery -- Attorney-client privilege -- Malpractice exception -- Insurance -- Malpractice action by insurance company against its former lawyer -- Malpractice exception to attorney-client privilege applies only to communications between client and lawyer being sued -- Malpractice exception does not compel a lawyer's former client to disclose confidential information with that client's other lawyers simply because such information may be relevant to the former lawyer's defense of the client's malpractice case against the lawyer -- While the insured is the attorney's client when an attorney is hired by an insurance company to represent an insured in a liability case, the communications between the insurer and the lawyer hired to protect the insured's interests are protected by attorney-client privilege because the insurer and insured share a common interest in the outcome of the case -- Insurer's fiduciary obligation to its insured, and the common interests of the insured and insurer, continue even after the insured notifies the insurer of a potential bad faith claim -- Insurer's communications with both its own lawyers and with the lawyer insurer hired to represent its insured are protected by attorney-client privilege, and the malpractice exception is inapplicable

42 Fla. L. Weekly S176a
210 So. 3d 1224

Insurance -- Personal injury protection -- Medical expenses -- Reasonable and necessary treatment -- Discovery -- Facts about injured person -- Scope of permissible discovery under section 627.736(6)(c) is limited to the production of documents described in subsection (6)(b) -- Accordingly, discovery is limited to production of “a written report of the history, condition, treatment, dates, and costs of such treatment of the injured person and why items identified by insurer were reasonable in amount and medically necessary, together with a sworn statement,” as well as production, inspection and copying of “records regarding such history, condition, treatment, dates, and costs of treatment” -- Subsection (6) provides limited pre-litigation discovery into specified information about treatment and charges for treatment provided to injured party, and discovery tools found in rules of civil procedure are not triggered until litigation over reasonableness of those charges has ensued -- Nothing in subsections (6)(b) or (c) contemplates requiring PIP provider to submit any of its representatives to deposition -- Trial court erred by ordering provider to make a designated corporate representative available for deposition

42 Fla. L. Weekly D1119a
225 So. 3d 229

Insurance -- Personal injury protection -- Declaratory judgment -- Error to dismiss, for failure to state cause of action, a declaratory judgment complaint seeking declaration that PIP insurer had improperly relied exclusively on Medicare fee schedules when determining reasonable amount to reimburse providers -- Proper methodology for calculating reimbursements under section 627.736(5)(a)(1) and whether Medicare fee schedules could be solely relied on has not been addressed by prior cases -- Remand for reinstatement of claim -- Court notes that relief requested, which was that class members be reimbursed for amounts they were billed by providers, was inappropriate because plaintiff agreed to balance billing in her policy -- On remand, if plaintiff prevails on claim for declaratory relief, court will need to address class action issue as it applies to question of appropriate relief, consider applicability of any notice requirement under PIP statute, and consider whether class action is untenable because individual issues would predominate or precluded because of manageability issues

42 Fla. L. Weekly D446b
214 So. 3d 679

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Trial court abused its discretion by dismissing complaint for class action declaratory judgment regarding insurer's calculation of PIP policy medical reimbursements based solely on Medicare fee schedules where the policy did not provide notice of insurer's election to apply statutory fee schedules pursuant to section 627.736(5)(a)2., but instead provided that insurer would pay 80% of all reasonable expenses for medically necessary services and treatments -- Trial court erred in finding that supreme court's decision in Geico General Insurance Co. v. Virtual Imaging Services answered issues in present controversy -- Remand for reinstatement of complaint -- Court declines to address insurer's alternate argument for dismissal, that complaint failed to state a proper class claim, because trial court did not rule on this issue

42 Fla. L. Weekly D1797a
227 So. 3d 621

Insurance -- Commercial property -- Excess policy covering four hotels having a specific per-occurrence limit, with payout not to exceed the listed value of each of the four insured hotels, was not ambiguous because “statement of values,” which included listed insured value of each of the hotels, was not attached to the excess policy and was not titled “Statement of Values” -- Excess policy was not “illusory” because it valued one of the insured hotels at an amount which equaled the total value covered and payable under primary policy -- Statement of values was incorporated by reference in the excess policy and sufficiently authenticated -- Trial court did not err in using extrinsic evidence to resolve factual question as to whether document titled “Property Spreadsheet” was the latest statement of values on file with insurer -- Excess policy was not illusory, despite significant limitations on coverage, where the limitations did not render policy absurd or completely contradict insuring provisions

42 Fla. L. Weekly S960b
232 So. 3d 273

Insurance -- Commercial general liability -- Construction defects -- Invocation of insurer's duty to defend insured general contractor in action alleging construction defects -- For purpose of policy provision that insurer has duty to defend insured against any “suit” seeking damages, the notice and repair process set forth in chapter 558, Florida Statutes (Construction Defects) is a suit because the chapter 558 presuit process is an “alternative dispute resolution proceeding” as included in the policy's definition of a “suit”

42 Fla. L. Weekly D968c
219 So. 3d 138

Declaratory judgment -- Insurance -- Non-joinder of insurer in action against insured -- Trial court erred in denying motions to dismiss, for failure to comply with statutory condition precedent, a complaint in which an injured party sought declaration that liability policy issued by insurers covered the plaintiff's bodily injury claim against the insured and the plaintiff's separate negligence suit against the insured -- Although trial court properly rejected plaintiff's argument that non-joinder statute did not apply because insurers were surplus lines insurers, it erred in abating/staying the action pending plaintiff's compliance with statutory presuit requirements rather than granting insurers' motions to dismiss

42 Fla. L. Weekly D596e
207 So. 3d 288

Torts -- Insurance brokers -- Error to enter directed verdict in favor of broker on claim that broker negligently failed to procure international liability, auto, and workers' compensation insurance to cover Bahamian corporation and its employees working in the Bahamas -- Verdict finding broker was 35% negligent in procuring policy listing Florida corporation rather than Bahamian company as named insured was supported by evidence that broker breached standard of care and that plaintiff sustained damages when he was injured in the Bahamas in a work-related automobile accident for which there was no coverage -- Remand for reinstatement of jury verdict

42 Fla. L. Weekly D2226a
230 So. 3d 1

Insurance -- Bad faith -- Insured's action against insurer -- Condition precedent -- Civil remedies notice -- Trial court erred by entering final summary judgment in favor of insurer on ground that insured did not timely send CRN as required by statute and therefore could not maintain its bad faith cause of action where record undisputedly established that insurer received insured's CRN nearly four years before bad faith suit was filed and responded to the CRN without challenging its service

NOT FINAL VERSION OF OPINION
Subsequent Changes at 43 Fla. L. Weekly D200a

Insurance -- Homeowners -- Sinkhole claim -- Bad faith -- An insured is not required to wait until the appraisal process is completed before filing a civil remedy notice -- The filing of a civil remedy notice before the appraisal process is complete and damages are determined does not render the CRN a legal nullity, thereby precluding a bad faith claim

42 Fla. L. Weekly D351c
208 So. 3d 1289

Insurance -- Automobile liability -- Coverage -- Trial court erred in determining that there was coverage by operation of estoppel where insured failed to prove prejudice

42 Fla. L. Weekly D1833a
230 So. 3d 62

Insurance -- Automobile liability -- Coverage -- Insurer which undertook defense of insured in wrongful death action could not subsequently decline coverage based on coverage defense of breach of duty to cooperate where insurer failed to comply with Claims Administration Statute, section 627.426, Florida Statutes -- Where insurer did not refuse to defend insured within sixty days of its reservation of rights, and could not obtain either a non-waiver agreement from insured or insured's agreement for the appointment of independent counsel to represent insured because insured had absconded, insurer waived its coverage defense by continuing to defend insured

42 Fla. L. Weekly D110a
208 So. 3d 810

Insurance -- Automobile liability -- Bad faith failure to settle -- Trial court erred in denying insurer's motion for directed verdict on insured's bad faith claim where evidence, taken in light most favorable to insured, showed that insurer unconditionally tendered policy limits to decedent's estate nine days after accident, insurer notified insured that the estate wanted a statement 17 days after the request was received by claims adjuster, and insured subsequently failed to provide a statement to the estate despite having opportunity to do so before suit was filed -- Moreover, even if insurer's conduct were deficient, its actions did not cause excess wrongful death judgment rendered against insured

42 Fla. L. Weekly D178a
211 So. 3d 73

Insurance -- Automobile -- Exclusions -- Damage to property being transported by insured -- Trial court properly found that exclusion for damage to property being transported by insured was applicable to exclude coverage for damage to insured's friend's motorcycle which was in a trailer being hauled by insured vehicle being driven by insured in which the friend was a passenger when the trailer overturned

42 Fla. L. Weekly D2463a
229 So. 3d 911

Attorney's fees -- Justiciable issues -- Claim or defense not supported by material facts or applicable law -- Trial court improperly awarded attorney's fees in favor of insurance company as a sanction for insured's filing of frivolous complaint without making requisite findings of fact in order -- Court also erred in imposing joint and several liability on law firm and insured -- Under circumstances, each could be responsible for only fifty percent of attorney's fee sanction

42 Fla. L. Weekly D852a
216 So. 3d 723

Attorney's fees -- Purchaser's action against motor vehicle dealer and surety on motor vehicle dealer bond, which included deceptive and unfair trade practices claims on which purchaser prevailed -- Trial court erred in holding surety jointly and severally liable for attorney's fees and costs pursuant to Florida Deceptive and Unfair Trade Practices Act -- Fees against surety should have been awarded pursuant to section 627.428 and should have been limited to face amount of surety bond where purchaser did not allege that surety unreasonably delayed payment of underlying claim

42 Fla. L. Weekly D2086a
232 So. 3d 478

Attorney's fees -- Insurance -- Insured prevailing in declaratory judgment action brought by insurer -- In awarding attorney's fees to insured, trial court erred in applying a contingency risk multiplier where fee agreement between insured and his attorney was not a contingent fee agreement -- Agreement which provided for attorney to be paid normal hourly rate whether the case was won or lost, and a higher amount in the event of higher award by the court was not a partial contingency fee contract

42 Fla. L. Weekly D2597a
238 So. 3d 372

Attorney's fees -- Insurance -- Offer of judgment -- Trial court properly denied insureds' motion for attorney's fees pursuant to section 627.428, Florida Statutes, where insureds did not recover a judgment in their favor in their action against insurer for breach of contract and declaratory judgment -- Trial court erred in denying insurer's motion for attorney's fees pursuant to offer of judgment statute on basis that insureds' action sought both equitable relief and money damages where true relief sought by insureds was money damages for breach of contract, and not equitable relief

42 Fla. L. Weekly S852a
228 So. 3d 1122

Attorney's fees -- Contingency fee multiplier -- The application of a contingency fee multiplier to an award of attorney's fees to a prevailing party is not limited to “rare” and “exceptional” circumstances -- Trial court properly applied 2.0 contingency fee multiplier to award of attorney's fees to insureds that prevailed in action against insurer upon finding that relevant market required contingency fee multiplier for insureds to obtain competent counsel, that insureds' attorney could not have mitigated the risk of nonpayment, that case was a complex commercial case, and that likelihood of success at the outset was even at best

42 Fla. L. Weekly S731a
228 So. 3d 1111

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 -- Where policy index indicated that insurer would make additional payments under liability coverages for legal expenses and court costs, subsection of Additional Payments provision stated that insurer would cover all investigative and legal costs, and another subsection of the same provision provided that insurer would pay all reasonable costs incurred by an insured at the insurer's request, policy was ambiguous regarding whether attorneys' fees were included or excluded from coverage -- Ambiguity must be construed in favor of coverage -- Insurer's argument that “reasonable expenses incurred by insured at insurer's request” did not cover attorney's fees and costs under offer of judgment statute is without merit, as insurer had control over settling case

42 Fla. L. Weekly D2459b
229 So. 3d 896

Insurance -- Attorney's fees -- Insured prevailing in action against insurer -- Where attorney representing insured had worked at law firm that originated insured's claim, and continued to represent insured after leaving that firm, it was error for trial court to refuse to consider hours expended by attorney while working at prior firm in calculating attorney's fee award -- Trial court should have considered all of hours reasonably expended by all of insured's attorneys in its calculation of fee to be awarded to insured -- Prejudgment interest -- Trial court also erred in limiting prejudgment interest calculation by only including interest accruing through evidentiary fee hearing rather than date judgment was entered

42 Fla. L. Weekly D2543a
232 So. 3d 1157

Insurance -- Homeowners -- Post-loss assignment of benefits -- Office of Insurance Regulation properly disapproved insurer's request to amend policy language to restrict ability of policyholders to assign post-loss benefits absent the consent of all insureds, all additional insureds, and all mortgagees named in policies

42 Fla. L. Weekly D2038a
227 So. 3d 735

Insurance -- Homeowners -- Trial court properly entered judgment for insurer in insured's breach of contract action where jury found that insurer paid insured the reasonable costs to repair direct physical loss caused by water leak, and declined to award insured any money for additional damages she was claiming -- Order finding entitlement to attorney's fees but not fixing the amount is not appealable

42 Fla. L. Weekly D2345a
233 So. 3d 1159

Insurance -- Equine mortality -- Arbitration -- Waiver -- Where insured horse was owned by individual, but suit was filed against insurer after death of horse by individual's wholly owned corporation which had no ownership rights in horse, insurer did not waive right to arbitrate the issue of the actual cash value of the horse after individual owner was made a plaintiff by initially defending the action on the basis that corporate plaintiff was not the owner of the horse

42 Fla. L. Weekly D1649a
225 So. 3d 336

Insurance -- Commercial general liability -- Duty to defend -- Appeals -- Order granting motion for summary judgment declaring that insurer has duty to defend claims against insured is a non-final, non-appealable order where order merely grants summary judgment but does not enter judgment

42 Fla. L. Weekly D1648d
225 So. 3d 906

Insurance -- Appeals -- Order granting judgment for insured in insured's breach of contract claim against insurer is not an appealable partial final judgment where insured's negligence per se claim remains pending in trial court and is interdependent with facts giving rise to breach of contract claim

42 Fla. L. Weekly D682a
215 So. 3d 141

Insurance -- Homeowners -- Appraisal -- Ordinance and law -- Where initial appraisal found that roof tiles damaged by hurricane comprised 3 percent of roof and stated that it did not appraise any allowance for the effects of law and ordinances, insured was not entitled to a second appraisal after a roofing contractor submitted a permit application to repair 30 percent of the roof which was rejected by building and zoning authority, as building code requires that not more than 25 percent of total roof can be repaired, and insured entered into contract with roofing contractor for a full roof -- Notation on appraisal award that law and ordinance was not appraised indicated that appraisal panel concluded that building code requirements did not require replacement of entire roof, and that appraisal could not be circumvented by a later finding by a roofing contractor that 30 percent of the roof needed to be replaced, necessitating replacement of the entire roof

42 Fla. L. Weekly D1563a224 So. 3d 262 Insurance -- Homeowners -- Appraisal -- Declaratory judgment -- Insurer's petition for declaratory judgment validly invoked trial court's jurisdiction to determine fact…

42 Fla. L. Weekly D407b
211 So. 3d 1094

Insurance -- Homeowners -- Appraisal -- Trial court erred in entering order compelling appraisal where insureds failed to comply with post-loss obligations -- Insureds failed to comply with post-loss obligations by failing to give immediate notice of alleged additional damage to property, failing to protect property from further damage, failing to keep an accurate record of expenditures, failing to provide insurer with any requested records and documents to support supplemental claims, and failing to submit sworn proof of loss within 60 days after loss

42 Fla. L. Weekly D1071a
219 So. 3d 185

Insurance -- Agents and brokers -- Negligent procurement of commercial property insurance policy -- Plaintiff's allegation that it requested defendant to procure policy with $100,000 coverage, but that defendant procured policy that provided less coverage than requested because of coinsurance provision in policy, stated cause of action for negligent procurement of insurance policy -- Trial court erred in dismissing action for failure to state cause of action