2019

44 Fla. L. Weekly D67c
263 So. 3d 154

Insurance -- Uninsured motorist -- Evidence -- Trial court erred by allowing insured to present MRI exhibit to jury with the opinions of insured's expert superimposed on the MRI images -- Although images themselves were admissible, expert's annotations represented his opinions and were not “factual findings,” as insured contended -- Trial court erred by precluding insurer from using the admitted MRI exhibit to obtain the opinion of its own expert on the same images -- Errors were harmless

44 Fla. L. Weekly S300a
286 So. 3d 157

Insurance -- Uninsured motorist -- Collector vehicle policy -- An insurer that issues a reduced premium collector vehicle policy may not limit uninsured motorist coverage under that specialty policy to accidents involving the occupancy or use of the collector vehicle

44 Fla. L. Weekly D2639a
284 So. 3d 1074

Insurance -- Uninsured motorist -- Coverage -- Plaintiff seeking coverage from her automobile insurer for injuries plaintiff suffered while training in the back of a truck that operated a mobile gym -- No error in granting summary judgment in favor of insurer because mobile gym was not an uninsured auto within the meaning of plaintiff's policy -- Policy clearly and unequivocally provided that a vehicle located for use as a premises is not an uninsured auto, and truck was being used as a premises when negligence occurred where clients worked out in mobile gym only when it was stationary, parked, and connected to a power source, and never worked out when gym was being driven as a vehicle

44 Fla. L. Weekly D2581a
283 So. 3d 398

Insurance -- Uninsured/underinsured motorist -- Knowing, written rejection of UM coverage -- Issue of adequacy of insurer's online click-through process was not reached in prior appeal in which court affirmed trial court's legal determination that insurer was not entitled to conclusive statutory presumption that insured had rejected UM coverage, but remanded for new trial on issue of whether insurer made knowing, written rejection of UM coverage -- Adequacy of click-through process had no bearing on insurer's ability to proceed to trial -- Petition for writ of mandamus and/or certiorari denied

44 Fla. L. Weekly D1279a
276 So. 3d 349

Insurance -- Uninsured motorist -- Passenger in rental car who was injured in an accident involving an uninsured/underinsured motor vehicle was not an “insured person” entitled to UM coverage under driver's insurance policy where rental car did not meet policy's definition of “covered auto” -- Rental car was not a permanent replacement for vehicle insured under driver's policy, and insured driver was not a beneficial owner of the rental vehicle such that rental vehicle fit into policy's definition of an “additional auto”

44 Fla. L. Weekly D543b
271 So. 3d 1108

Torts -- Title insurer -- Action arising out of buyer's allegations that, although title company confirmed seller's title and the absence of legal challenges to seller's title, title company's title examination negligently missed post-judgment, duly-docketed motion to vacate foreclosure judgment and challenge seller's title -- Error to dismiss complaint with prejudice based on broad language contained in release where sweeping exculpatory language in release was facially inconsistent with the more specific title insurance obligations contained in a later contract for sale and purchase and the title commitment delivered to buyer in accordance with that contract -- Trial court's interpretation of the documents nullified contract provisions requiring seller to provide title insurance and to complete review of the foreclosure docket

44 Fla. L. Weekly D2449b
279 So. 3d 1279

Civil procedure -- Summary judgment -- Insurance -- Homeowners -- Trial court abused its discretion by entering summary judgment in favor of insurer after denying insured's motion for continuance to allow insured to depose insurer's corporate representative where representative was first identified when insurer filed representative's 45-page summary judgment affidavit about 20 days before hearing on motion for summary judgment and insured responded promptly by requesting representative's deposition and moving for continuance

44 Fla. L. Weekly D1352b
276 So. 3d 352

Insurance -- Personal injury protection -- School buses -- Reimbursement -- Sovereign immunity -- Insurer seeking reimbursement from school board and school board's insurer for PIP benefits insurer paid to its insureds who were injured while passengers on a school bus owned by the school board -- No error in concluding that insurer's action was not barred by sovereign immunity where Motor Vehicle No-Fault Law specifically includes public school buses in the definition of “commercial motor vehicle” and thereby subjects owners of public school buses to the reimbursement provision of section 627.7405(1) -- By expressly including vehicles owned by an entity that ordinarily enjoys the protection of sovereign immunity in the definition of vehicles subject to a statutory action for reimbursement, while at the same time expressly excluding other vehicles “used in mass transit” and “owned by a municipality, a transit authority, or a political subdivision of the state,” the legislature has clearly and unequivocally waived sovereign immunity for owners of vehicles used for public school transportation in actions brought under section 627.7405(1) -- School board is not exempt from reimbursement due to the fact that the legislature, under section 627.733(1)(a), expressly exempted motor vehicles used as school buses from statutory requirement to maintain no-fault insurance coverage -- Express exemption of school buses from requirement to maintain no-fault insurance does not conflict with express inclusion of school buses in definition of “commercial motor vehicle,” and plain language of section 627.7405(1) expressly provides that the right of reimbursement against the owner of a commercial motor vehicle exists notwithstanding section 627.733(1)(a) -- School board's insurer is an “insurer” as contemplated by section 627.7405(1) where, although insurer did not provide no-fault PIP insurance for school buses, the school board's policy provided insurance coverage for the school bus at issue -- Fact that the injured parties were not “insureds” under school board's policy, and were in fact specifically excluded, is of no consequence as the school board's insurer is not liable to reimburse the injured parties' insurer pursuant to the specific terms of the school board's policy, but rather pursuant to the plain language of section 627.7407(1)

44 Fla. L. Weekly D3045b
290 So. 3d 980

Insurance -- Personal injury protection -- Language of PIP statute does not preclude an insurer from limiting its reimbursement to 80% of the total billed amount when the amount billed is less than the statutory fee schedule -- Circuit court in its appellate capacity departed from essential requirements of law by holding that statute mandates that an insurer must reimburse the full amount billed where the amount billed is less than the maximum allowed under the statutory fee schedule

44 Fla. L. Weekly D2017b
276 So. 3d 523

Appeals -- Certiorari -- Insurance -- Personal injury protection -- Second-tier review of circuit court appellate decision concluding that insurer has right to raise “unlawfulness” affirmative defense to provider's ability to seek PIP benefits denied, as there was no showing that circuit court, sitting in its appellate capacity, failed to afford petitioner procedural due process in the appeal or failed to apply correct law resulting in miscarriage of justice

44 Fla. L. Weekly D62a
264 So. 3d 222

Insurance -- Automobile liability -- Nonjoinder of insurer in action against insured -- Plaintiff could not properly maintain a direct action against defendant's liability insurance company on claims that were not independent of the insurance contract where plaintiff had not obtained a verdict or settlement against defendant -- Claims of civil conspiracy and aiding and abetting breach of fiduciary duties were not independent of the insurance contract -- Trial court departed from essential requirements of law by denying motion to dismiss based on improper joinder

44 Fla. L. Weekly D2422a
282 So. 3d 933

Insurance -- Homeowners -- Trial court did not abuse discretion in entering summary judgment for insurer -- Absence of transcript prevents meaningful review of whether trial court abused discretion by striking insureds' counter-affidavit at summary judgment hearing as untimely -- Trial court did not abuse discretion by denying motion for rehearing premised upon new evidence

44 Fla. L. Weekly D68a
277 So. 3d 624

Insurance -- Homeowners -- Sinkhole claim -- No error in entering final judgment in favor of homeowners for breach of policy -- Remand for corrected order reflecting that when insureds provide insurer with signed contract to complete necessary repairs, insurer shall pay that amount

44 Fla. L. Weekly D1517a
273 So. 3d 1172

Insurance -- Sinkhole claims -- Trial court did not abuse its discretion by allowing certain unexpected testimony from insured or by denying insurer's motion for new trial

44 Fla. L. Weekly D2019b
278 So. 3d 231

Insurance -- Homeowners -- Res judicata -- Where court granted summary judgment for insurer in insured's initial breach of contract action, and appellate court affirmed, insured's second action which was identical to first action, except that it alleged a greater amount of damages, was barred by res judicata -- Intervening change in the law exception to res judicata was not applicable -- Insured's second lawsuit was not a supplemental claim where insured had undertaken no repairs to home

44 Fla. L. Weekly D1898b
276 So. 3d 990

Insurance -- Homeowners -- Collateral estoppel -- Res judicata -- Where insureds had made a partial assignment of benefits from insurance policy to a mold testing company prior to filing suit against insurer for damages to home from leaking roof, it was error for trial court to find that insureds' action against insurer was barred by collateral estoppel and res judicata because jury rendered verdict for insurer in mold testing company's separate small claims action against insurer -- Mold testing company and insureds were not “privies” for purpose of res judicata “identity of parties” requirement

44 Fla. L. Weekly D521b
264 So. 3d 997

Civil procedure -- Dismissal -- Involuntary -- Trial court's involuntary dismissal of insured's complaint against homeowner's insurer as sanction for insured's disregard of court orders was supported by court's findings on Kozel factors and evidence underlying those findings

44 Fla. L. Weekly D994b

Insurance -- Homeowners -- Misrepresentation -- Jury's finding that insureds made material misrepresentations to insurer voided coverage for claimed loss even though jury also awarded damages to insureds

44 Fla. L. Weekly D1726a
278 So. 3d 108

Insurance -- Homeowners -- Coverage -- Trial court properly entered summary judgment finding that policy did not provide coverage for damage caused by plumbing leak in condominium unit where policy required insured to reside in the unit at the time of loss as a condition of coverage, but insured did not reside in the unit at the time of loss -- Court's interpretation of policy did not render the policy illusory where residency provision did not affect other coverages, including personal liability -- Insurer did not waive and was not estopped from relying upon the residence provision in denying coverage where insurer was not aware that insured was no longer a resident of unit until it conducted post-loss investigation

44 Fla. L. Weekly D2025a
276 So. 3d 849

Insurance -- Condominiums -- Subrogation -- Vicarious liability -- Action seeking to hold condominium owners vicariously liable under section 718.111(11)(j) for their tenants' alleged negligence in causing water damage to a downstairs unit owned by insureds -- No error in granting summary judgment in favor of unit owners -- Section 718.111(11)(j) was not intended to create a statutory right of action whereby unit owners or their insurers may hold other unit owners vicariously liable for property damage caused by the tortious acts of the latter's tenants or occupants -- Nothing in section 718.111(11)(j) compromises an insurer's right to bring a common law subrogation action alleging that a tortfeasor is directly liable for the full amount of damages to an insured unit owner's property caused by tortfeasor's own negligence or intentional conduct

44 Fla. L. Weekly D2588a

Insurance -- Homeowners -- Assignee's claim against insurer -- No abuse of discretion in transferring case from Miami-Dade County to Bay County where property was located in Bay County, assignee performed services for which payment was sought in Bay County, and there was no allegation in the record that insured/assignor had any connection to Miami-Dade County

44 Fla. L. Weekly D2858a
285 So. 3d 334

Insurance -- Homeowners -- Appraisal -- Trial court applied incorrect standard in determining whether insurer waived its right to appraisal by mistakenly concluding that an insurer could not invoke appraisal until coverage was determined -- While an insured cannot seek appraisal until coverage is determined, an insurer may invoke appraisal and still retain a coverage defense -- Remand for reconsideration of whether insurer's actions amount to a waiver of right to appraisal

44 Fla. L. Weekly D994a
275 So. 3d 684

Insurance -- Homeowners -- Hurricane damage -- Trial court erred in granting insured's motion to compel appraisal where insured failed to comply with post-loss conditions of policy -- Insured's generalized description of loss at her examination under oath did not constitute “sworn proof of loss” required by policy, and insured offered no reason for failure to submit public adjuster's itemized claim report before, rather than after, EUO and lawsuit

44 Fla. L. Weekly D1639a
276 So. 3d 905

Insurance -- Homeowners -- Affirmative defenses -- Post-loss obligations -- In insured's breach of contract action against insurer, trial court abused discretion by striking insurer's affirmative defense of insurance fraud where insured's ore tenus motion was not properly noticed for hearing -- After striking affirmative defense, court should have allowed insurer leave to amend defense to allege insurance fraud with requisite specificity -- For insurer to successfully establish a coverage defense based upon insured's failure to comply with post-loss obligations, insurer must plead and prove that insured has materially breached a post-loss policy provision -- If insurer establishes such a material breach by insured, burden then shifts to insured to prove that any breach did not prejudice insurer -- Insurer must be prejudiced by insured's non-compliance with post-loss obligation in order for insured to forfeit coverage -- Conflict certified -- When insurer has alleged and established, as an affirmative defense to coverage, that insured has failed to substantially comply with a post-loss obligation, prejudice to insurer is presumed, and burden shifts to insured to show absence of prejudice

44 Fla. L. Weekly D2243a
278 So. 3d 325

Insurance -- Health -- Claim that insurer breached home health care limited benefit policy by denying benefits for services provided by assisted living facility -- No error in granting summary judgment in favor of insurer where policy unambiguously and expressly excluded assisted living facility services

44 Fla. L. Weekly D2061a
277 So. 3d 760

Insurance -- Contracts -- Florida Deceptive and Unfair Trade Practices Act -- Res judicata -- No error in dismissing claim alleging that insurer breached contract by failing to pay for plaintiff's medical procedure where claim had already been adjudicated on the merits before an administrative law judge -- Trial court erred in dismissing plaintiff's FDUTPA claim under doctrines of collateral estoppel and res judicata where issues before trial court were different than the issues adjudicated by the ALJ -- FDUTPA claim was properly dismissed based on conclusion that FDUTPA did not apply to insurer because all of insurer's alleged activities were regulated by the Office of Insurance Regulation

44 Fla. L. Weekly D2618a

Insurance -- Automobile -- Uninsured motorist -- Coverage -- Resident relative -- Trial court erred in granting summary judgment determining that automobile insurer was required to provide UM coverage to insured's resident relative where insured's policy only covered resident relatives who did not own an automobile, and relative at issue owned an automobile at time of accident -- If a policy does not provide liability coverage to certain resident relatives, there is no mandate requiring UM coverage for those resident relatives

44 Fla. L. Weekly D686a
273 So. 3d 1031

Insurance -- Homeowners -- Water damage -- Trial court did not err in entering final summary judgment in favor of insurer in action filed by insureds after coverage was denied on ground that damage from leak in roof was created by normal wear and tear, an uncovered risk, rather than by a windstorm event -- Affidavits submitted by insurer in support of its motion for summary judgment were sufficient to meet its burden, and opposing affidavit by expert who conducted inspection a year after the damaged roof was repaired failed to identify admissible evidence that created genuine issue of material fact

44 Fla. L. Weekly D700a
271 So. 3d 115

Insurance -- Homeowners -- Water damage -- Trial court erred in entering summary judgment in favor of insurer where there were genuine issues of material fact regarding whether interior rain damage exclusion in policy precluded coverage for water-damage repairs involved in case

44 Fla. L. Weekly D2756b
299 So. 3d 1087

Insurance -- Homeowners -- Dismissal of insured's action against insurer for fraud on the court -- Dismissal of action was too severe a sanction for insured's statements in affidavit in opposition to insurer's motion for summary judgment where insured had limited powers of recollection and fluency in English and affidavit was crafted by insured's attorneys

44 Fla. L. Weekly D2125b
284 So. 3d 582

Insurance -- Homeowners -- Discovery -- Requests for discovery of insurer's underwriting and claims files were facially improper in their entirety where issues of insurer's liability and amount of policy owners' damages had not been finally determined -- Order allowing discovery was departure from essential requirements of law which would result in irreparable harm

44 Fla. L. Weekly D3056a
285 So. 3d 411

Jurisdiction -- Service of process -- Out-of-state service by mail -- Trial court departed from essential requirements of law by denying motion to quash subpoena duces tecum without deposition purportedly served by mail on nonparty located outside the state of Florida where service did not comply with foreign state's law authorizing such service

44 Fla. L. Weekly D785a

Insurance -- Discovery -- Experts -- Financial relationships -- Trial court did not depart from essential requirements of the law in compelling defendant to disclose documents concerning financial arrangements between defendant's attorney, insurance company, and retained expert witness -- Question certified: Whether the analysis and decision in Worley v. Central Florida Young Men's Christian Ass'n, 228 So. 3d 18 (Fla. 2017), should also apply to preclude a defense firm that is not a party to the litigation from having to disclose its financial relationship with experts that it retains for purposes of litigation including those that perform comprehensive medical examinations under Florida Rule of Civil Procedure 1.360?

44 Fla. L. Weekly D1072b
269 So. 3d 623

Insurance -- Property -- Coverage -- Water damage -- Insured's action against law firm retained to report and settle property loss claim -- Discovery -- Trial court departed from essential requirements of law by ordering production of documents responsive to requests that appear on their face to potentially invade the attorney-client or work-product privileges without first conducting an in camera inspection -- Trial court erred by ordering disclosure of documents relating to communications between retained law firm and homeowners regarding the loss without first conducting in camera review of documents to determine whether the attorney-client privilege applied -- Trial court erred by ordering production of documents generated or created by firm before reviewing the documents responsive to that request to determine whether they were the firm's work product -- Trial court departed from essential requirements of law by finding that homeowners waived their attorney-client privilege when firm's legal assistant contacted their insurer to report the property loss

44 Fla. L. Weekly D1951b
278 So. 3d 212

Appeals -- Certiorari -- Discovery orders -- Insurer failed to demonstrate that trial court departed from essential requirements of law by allowing insured to take deposition of insurer's representative after insurer had filed a confession of judgment acknowledging that insured was entitled to coverage for personal injury protection benefits and coverage for any property damage claims against him -- Confession of judgment did not end case, as issue of damages remained to be adjudicated -- Fact that deposition of insurer's agent could potentially lack relevancy on outstanding damages issue is not basis for certiorari relief

44 Fla. L. Weekly D119a
259 So. 3d 1013

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. -- Conflict certified -- Question certified: When calculating the amount of PIP benefits due an insured, does section 627.739(2), Florida Statutes, require that the deductible be subtracted from the total amount of medical charges before applying the reimbursement limitation under section 627.736(5)(a)1.b., or must the reimbursement limitation be applied first and the deductible subtracted from the remaining amount?

44 Fla. L. Weekly S59a
260 So. 3d 219

Insurance -- Personal injury protection -- Deductible -- Section 627.739(2) requires the deductible to be applied to the total medical charges prior to reduction under the reimbursement limitation in section 627.736(5)(a)1.b.

44 Fla. L. Weekly D383a
271 So. 3d 1079

Insurance -- Subrogation -- Landlord-tenant -- Implied co-insured -- Subrogation action arising from landlord insurer's attempt to recover money from tenant that insurer paid to landlord for fire damage sustained to landlord's building -- Trial court erred in concluding that tenant was an implied co-insured with landlord and dismissing insurer's subrogation action -- Review of the lease as a whole makes it clear that the parties did not intend to shift the risk of loss caused by tenant's negligence to the insurer where the lease explicitly holds tenant liable for damages caused by its negligence or the negligence of its agents; there are provisions holding landlord harmless for damage caused by tenant; the lease required tenant to procure and maintain fire insurance for damage arising out of accidents occurring in or around premises; and tenant agreed to name landlord as an additional insured -- Although lease required tenant to pay a percentage of landlord's insurance premiums, nothing in that provision explicitly required landlord to purchase fire insurance or name tenant as an insured under the policy

44 Fla. L. Weekly D1486a
274 So. 3d 398

Insurance -- Discovery -- Depositions -- Failure to produce witness -- Sanctions -- Trial court abused its discretion in striking plaintiffs' pleadings and imposing sanctions on plaintiffs' law firm based on law firm's alleged failure to produce non-party witness for deposition where plaintiffs and their law firm cannot be held accountable for the failure of a non-party to appear for deposition, and trial court failed to identify any rule or court order that plaintiffs or law firm failed to obey -- Trial court's finding that law firm's waiver of appearance at deposition indicated law firm was aware that deposition would not proceed, and thus engaged in misconduct, was not supported by record -- Law firm's election not to appear at deposition does not equate to misconduct because it was not unreasonable for law firm to waive its appearance where witness had exhibited a pattern of not appearing at depositions -- Trial court erred in basing sanction on failure of law firm or plaintiffs to engage in meaningful discovery without identifying any discovery orders which plaintiff violated -- Record reveals no evidence supporting finding that law firm failed to obey court's order and inform witness that he was required to be available for subpoena -- Trial court erred in basing a finding of noncompliance on determination that witness was an agent of the law firm where evidence and record were insufficient to establish that witness's failure to appear for deposition fell within the scope of alleged agency relationship -- Because trial court erred in striking pleadings based on law firm's failure to produce witness for deposition, it also erred in imposing attorney's fees based on the same theory -- Trial court erred in entering order requiring plaintiffs to provide a better address for witness where plaintiffs had already provided an address at which witness was served

44 Fla. L. Weekly D2527a
281 So. 3d 510

Insurance -- Homeowners -- Coverage -- Intentional torts -- Estoppel -- Complaint for declaratory judgment, filed by insurer more than a year after it began providing insureds with a defense in civil action, seeking determination that insurer had no duty to defend and indemnify insureds against intentional tort litigation because policy only covered bodily injury and property damage -- Error to grant summary judgment in favor of insurer where insurer's motion failed to address any of insureds' affirmative defenses -- Where a movant merely denies an affirmative defense and the affidavit in support of summary judgment only supports the allegations of the complaint and does not address the affirmative defense, the burden of disproving the affirmative defense has not been met -- Insureds' equitable estoppel defense was legally sufficient -- An insurer may be estopped from denying coverage, even where the policy does not cover the claim, where the insured has been prejudiced by insurer's assumption of the insured's defense

44 Fla. L. Weekly D445a
267 So. 3d 411

Insurance -- Stipulations -- Trial court erred by permitting insured to withdraw from its pretrial factual stipulation that it was seeking a specific amount in code upgrade costs where insured's purported mistake in law regarding its interpretation of the policy was not good cause for withdrawal from its factual stipulation -- Where neither party withdrew from stipulation regarding amounts insurer had already paid, court was bound by the agreed-upon amount

44 Fla. L. Weekly D996b
272 So. 3d 523

Insurance -- Commercial general liability -- Duty to defend -- Trial court improperly relied on extrinsic evidence in entering summary judgment finding that insurer had no duty to defend action against insured which installed failed fire suppressant system in aircraft hangar -- Where insurer claimed that it did not have a duty to defend or indemnify because coverage was barred by policy's total pollution exclusion, it was error for trial court, in granting summary judgment for insurer, to rely on insurer's claims specialist's Material Safety Data Sheet to determine that fire suppressant foam from system was a pollutant and excluded from coverage -- Exception to general rule that insurer's duty to defend is determined by allegations of complaint where claim that there is no duty to defend is based on factual issues that would not normally be alleged in complaint is inapplicable where extrinsic evidence was not uncontroverted or manifestly obvious so as to preclude coverage

44 Fla. L. Weekly D1355a
273 So. 3d 251

Insurance -- Commercial general liability -- Fictitious names -- Off-premises injuries -- Plaintiff injured drilling well on residential customer's property -- Insured operating two businesses under similar but different fictitious names, only one of which was a named insured on policy -- No error in finding that policy did not provide coverage for plaintiff's injuries where “d/b/a” designation on policy limited liability to insured's feed store business, and plaintiff was working as an independent contractor for the insured's well drilling business -- Trial court correctly found that policies did not provide coverage for well drilling operations because well drilling was not necessary or incidental to the feed store business conducted on the premises

44 Fla. L. Weekly D2370a
279 So. 3d 821

Insurance -- Class actions -- Jurisdiction -- Trial court should have dismissed, for failure to exhaust administrative remedies, second amended complaint against insurer's agent seeking declaratory judgment and damages based on contention that inclusion of managing general agent fee on policy violated the law because agent did not place the policy and was not acting as a legitimate managing general agent -- 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

44 Fla. L. Weekly D1513b
275 So. 3d 744

Insurance -- Claim for breach of duty to adjust against Citizens Property Insurance Corporation is barred by Citizens' statutory sovereign immunity

44 Fla. L. Weekly D2578b

NOT FINAL VERSION OF OPINION
Subsequent Changes at 45 Fla. L. Weekly D642a

Insurance -- Homeowners -- Actual cash value -- Evidence -- Matching costs -- Action for breach of insurance contract alleging that insurer failed to pay actual cash value for loss -- No abuse of discretion in granting motion in limine precluding insured from introducing evidence of matching costs where plain language of insurance policy and relevant statutes limit the initial payment of actual cash value to the direct physical loss to the property, and matching is not a direct physical loss -- Entry of judgment as to breach of contract reversed where trial court committed procedural error by summarily concluding that insured could not recover for breach of contract despite neither party moving for summary judgment -- Declaratory judgment -- Directed verdict -- Trial court erred in entering directed verdict in declaratory action -- Declaration requested was moot where question of law had been previously settled -- Moreover, trial court exceeded its procedural authority in directing verdict prior to commencement of trial

44 Fla. L. Weekly D1232a
271 So. 3d 1013

Insurance -- Homeowners -- Water damage -- Coverage -- Bad faith -- Insurer's post-suit payment of appraisal award constituted a confession that it breached policy by denying coverage above policy's $1000 leakage sublimit in its formal response to insureds' claim -- Incorrect partial denial of benefits suffices to give rise to a confession of judgment -- Conditions precedent to suit -- Sworn proof of loss -- Waiver -- Insurer waived proof-of-loss requirement by denying coverage above policy sublimits based upon grounds other than insureds' failure to furnish a notice or proof of loss -- Bad faith -- Trial court erred in entering summary judgment in favor of insurer on insureds' bad faith claim -- Claim is ripe where insurer's liability for coverage and extent of damages have been established, and genuine issues of material fact remain as to whether insurer exercised good faith and fair dealing when it incorrectly invoked $1000 leakage sublimit in its formal response to claim

44 Fla. L. Weekly D2961a
285 So. 3d 1036

Insurance -- Homeowners -- Bad faith -- Unfair or deceptive acts or practices -- Jury instructions -- Trial court erred in refusing to give insured's requested bad faith jury instruction which included acts identified in section 626.9541(1)(i)3. -- Although trial court's standard jury instruction for bad faith was a correct statement of the law, it failed to encompass the pleadings and proof elicited at trial and resulted in a miscarriage of justice -- A party's ability to make an argument to the jury does not substitute the need for a complementary instruction not covered in the standard instruction -- Reversed for new trial where insurer cannot show that trial court's failure to instruct jury as requested did not contribute to verdict

44 Fla. L. Weekly D618c
272 So. 3d 448

Insurance -- Bad faith -- Cure period -- Error to enter summary judgment in favor of insurer on bad faith claim based on conclusion that insurer had timely paid claim because claim was paid within sixty days of when insurer actually received insured's civil remedy notice pursuant to section 624.155 -- The sixty-day cure period under section 624.155 begins to run when the CRN is electronically filed with the Department of Financial Services, and to avoid a bad faith action the insurer must pay the claim or take corrective action within sixty days from the date of electronic filing -- Nothing in the plain language of the statute requires an insurer to actually receive the CRN before cure period begins -- Because insurer did not mail settlement payment to insured's counsel within sixty days of electronic filing date, insured was entitled to pursue bad faith action against insurer

44 Fla. L. Weekly D2962b
285 So. 3d 383

Insurance -- Automobile liability -- Coverage -- Bodily injury -- Limits of liability -- Per person/per occurrence limits -- Trial court erred in holding that loss of consortium claims by parents of individual who was killed while insured was operating his vehicle were separate “bodily injury” claims such that their claims were not subject to policy's single per-person limit -- “Bodily injury” was plainly and unambiguously defined by policy's definitions section to mean “bodily harm, sickness or disease, including death therefrom,” and based on that definition, limits of liability provision is properly read to mean that bodily injury limit stated on the declarations page was the most insurer would pay when there was a bodily injury to one person and that the damages subject to that limit included damages for the care of the injured person and loss of consortium or loss of services sustained as a result of the same injuries by any other person

44 Fla. L. Weekly D269a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 44 Fla. L. Weekly D766a

Torts -- Legal malpractice -- Insurance carrier -- Privity -- Law firm hired by insurer to defend insured against liability claims -- Insurer lacked standing to sue law firm where nothing in evidence indicates that law firm was in privity with insurer or that insurer was an intended third-party beneficiary -- Public policy does not dictate that an insurer should be able to pursue legal malpractice claims against defense counsel it retains to represent its insureds and the court is unwilling to expand field of privity exceptions

44 Fla. L. Weekly D766a
266 So. 3d 1210

Torts -- Legal malpractice -- Standing -- Insurance carrier -- Question certified: Whether an insurer has standing to maintain a malpractice action against counsel hired to represent the insured where the insurer has a duty to defend

44 Fla. L. Weekly D1223b
275 So. 3d 688

Insurance -- Attorney's fees -- Proposal for settlement -- Court properly awarded insurer attorney's fees as prevailing insurer pursuant to proposal for settlement -- Insured's separate count for declaratory relief was not a claim for purely equitable relief that invalidated insurer's proposal for settlement because the real issue in the case was claim for breach of contract and money damages -- Insurer is entitled to attorney's fees incurred and actually paid or payable to its attorneys from service of the proposal for settlement through date of order granting entitlement to fees

44 Fla. L. Weekly D1102a
269 So. 3d 653

Attorney's fees -- Proposal for settlement -- Service no earlier than 90 days after commencement of action -- Insurance -- Homeowners -- Sinkhole claims -- Alternative dispute resolution -- Stay of court proceedings against insurer under section 627.7074(10) pending neutral evaluation of claim did not stay 90-day waiting period for serving of proposal for settlement -- Because insurer served insureds with its proposal more than 90 days after insureds filed suit against it, trial court erred in striking proposal as premature

44 Fla. L. Weekly D2749a
284 So. 3d 1081

Attorney's fees -- Proposal for settlement -- No error in awarding fees to plaintiff who obtained judgment in excess of 25% of offer of settlement rejected by defendant after finding that offer was not ambiguous -- Defendant's claim that offer was illusory was essentially a claim that offer was not made in good faith that should have been raised in trial court, and there was no showing that issue was one of fundamental error -- No error in joining defendant's insurer in attorney's fees and cost judgment

44 Fla. L. Weekly D15a
264 So. 3d 217

Insurance -- Attorney's fees -- Circuit court acting in its appellate capacity correctly denied motion for attorney's fees where plaintiff did not prevail on appeal and is therefore not entitled to fees under section 627.428 as a matter of law

44 Fla. L. Weekly D2516b

NOT FINAL VERSION OF OPINION
Subsequent Changes at 43 Fla. L. Weekly D2563a

Attorney's fees -- Insurance -- Insolvent insurers -- Florida Insurance Guaranty Association -- Sinkhole claims -- Affirmative denial of covered claim -- Trial court erred in concluding that FIGA's denial of claim did not constitute an affirmative denial of a “covered claim” because there was no scientific evidence of sinkhole activity at time of denial -- Trial court misconstrued holding in Miller v. Florida Insurance Guaranty Assn. when it ruled that fees insured spent on testing for sinkhole loss were excluded under definition of “covered claim” in section 631.54(3)(c) -- Based on clear language in Miller, insured was entitled to attorney's fees related to enforcement of policy itself, regardless of fact that intermittent testing occurred during litigation and insured's effort to enforce the policy -- Costs -- Party recovering judgment -- Confession of judgment -- Where FIGA ultimately admitted coverage and paid claim, insured was entitled to recovery of costs under section 57.041, even though insured did not obtain a judgment against FIGA

44 Fla. L. Weekly D1656d 275 So. 3d 775 Insurance -- Attorney's fees -- Charging lien -- Action arising out of insurer's disbursement of settlement check prior to the resolution of a charging lien perfected by claimant's former law firm -- No error in finding insurer negligent and liable for failing to protect former law firm's charging lien -- Insurer, as the paying party, had an affirmative duty to protect former law firm's lien interest in the settlement proceeds by notifying former law firm of the settlement, including former law firm on the settlement check or obtaining a waiver of the lien in writing, or obtaining a hold harmless agreement from claimant's current law firm to which the settlement check was sent

44 Fla. L. Weekly D730b
266 So. 3d 278

Insurance -- Appeals -- Attorney's fees -- Order on appeal is not a final, appealable order, and appellee's motion for attorney's fees based on section 627.428 is provisionally granted -- In event appellee prevails before trial court, entitlement and amount of fees assessed shall be determined pursuant to the statute

44 Fla. L. Weekly D1969a
276 So. 3d 822

Insurance -- Property -- Insured's action against insurer seeking declaration of rights under policy -- Standing -- Assignment to company that performed emergency water mitigation services -- Scope of assignment -- Considering language of assignment as a whole, it was unambiguous intent of parties to limit scope of assignment to the work performed, rather than all of the rights under the insurance policy -- Summary judgment in favor of insurer was based on erroneous construction of assignment contract

44 Fla. L. Weekly D659a
265 So. 3d 730

Insurance -- Appraisal -- Trial court did not err by compelling appraisal prior to determining if insurer was wholly denying coverage where insurer admitted there was a covered loss by tendering check for its estimation of damage and choosing appraisal as appropriate resolution forum

44 Fla. L. Weekly D2304a
278 So. 3d 930

Insurance -- Homeowners -- Appraisal -- Insurer agreeing that a portion of claim was covered while also asserting that amount of loss did not exceed the deductible and that balance of claimed loss constituted pre-existing damage -- Trial court erred in denying insurer's motion to compel appraisal because insurer did not wholly deny coverage

44 Fla. L. Weekly D1810a
276 So. 3d 456

Insurance -- Homeowners -- Appraisal -- Trial court erred in denying insurer's motion to compel appraisal where insurer did not “wholly deny” coverage for insureds' loss, but timely paid on claim for interior damage to home while declining to pay for certain damages to exterior of home

44 Fla. L. Weekly D1115a
268 So. 3d 1006

Insurance -- Appraisal -- Error to deny insurer's motion to compel appraisal where insurer acknowledged that some portion of the total loss was covered

44 Fla. L. Weekly D2035a
277 So. 3d 135

Insurance -- Homeowners -- Appraisal -- Dismissal -- Appeals -- Non-final orders -- Trial court erred in dismissing with prejudice insurer's counterclaim for specific performance, in which insurer sought to enforce provisions of policy for appraisal and repair after loss, based on a failure to state a cause of action -- While it may be more traditional for an insurer to move to compel appraisal to seek enforcement of policy provisions, this does not preclude an insurer from filing a counterclaim alleging that insurer is entitled to enforce provisions of insurance policy through specific performance -- No error in dismissing portion of counterclaim seeking temporary injunction as counterclaim on its face did not allege irreparable harm

44 Fla. L. Weekly D312a
260 So. 3d 1200

Insurance -- Property -- Trial court erred in entering order compelling appraisal before conducting evidentiary hearing

44 Fla. L. Weekly D2953a
285 So. 3d 958

Insurance -- Homeowners -- Appraisal -- Disinterested appraiser -- Insured's public adjuster did not qualify as “disinterested appraiser” where insured signed contract with public adjuster entitling adjuster to portion of any recovery from the insurer and assigning a portion of the claim to the public adjuster; and public adjuster inspected property, submitted claim to insurance company, and later sent letter appointing himself as the appraiser -- On remand, circuit court should enter judgment for insurer on issue of this specific public adjuster's ability to serve as disinterested appraiser for this insured

NOT FINAL VERSION OF OPINION
Subsequent Changes at 45 Fla. L. Weekly D870d

Insurance -- Homeowners -- Appraisal -- Trial court departed from essential requirements of law by allowing insureds' agent/public adjuster to act as their disinterested appraiser -- Fiduciary, such as a public adjuster who is in a contractual agent-principal relationship with insureds, cannot be a disinterested appraiser -- Allowing public adjuster to act as insureds' disinterested appraiser is a harm that cannot be remedied on appeal

44 Fla. L. Weekly D2126a
278 So. 3d 87

Insurance -- Homeowners -- Appraisal -- Where factual dispute existed as to whether homeowner's public adjuster sent letter to insurance company demanding an appraisal, trial court was required to hold evidentiary hearing to determine issue

44 Fla. L. Weekly D1403b
277 So. 3d 658

NOT FINAL VERSION OF OPINION
Subsequent Changes at 44 Fla. L. Weekly D2001b

Insurance -- Property -- Consequential damages -- Lost rental income caused by insurer's delay in adjusting and paying claim -- Appraisal -- Fraud -- No error in requiring insured to pay for its own appraiser and half the cost of umpire's fees where policy specifically required each party to pay such costs -- Error to grant summary judgment in favor of insured on breach of contract claim regarding lost rental income on ground that the policy did not provide coverage for lost rent -- An insured is entitled to recover more than the pecuniary loss involved in the balance of the payments due under the policy in consequential damages, provided the damages were contemplated by the parties at the inception of the contract -- Insurer is not statutorily immune from consequential damages aspect of insurer's claim where damages were based squarely on breach of contract claim and required no allegation or proof that insurer acted in bad faith -- Trial court's granting of motion for judgment on the pleadings regarding fraud claim based on the independent tort doctrine is affirmed based on tipsy coachman doctrine -- Although fraud claim contained additional allegations not contained in breach of contract claim, the allegations attempted to assert bad faith liability from which insurer was immune

44 Fla. L. Weekly D2001b
277 So. 3d 658

Insurance -- Property -- Consequential damages -- Question certified whether, in a first-party breach of insurance contract action brought by an insured against its insurer, not involving suit under section 624.155, does Florida law allow the insured to recover extra-contractual, consequential damages

44 Fla. L. Weekly D239b
263 So. 3d 222

Insurance -- Homeowners -- Appraisal of loss -- By invoking appraisal pursuant to terms of policy, insurer waived compliance with post-loss obligations as condition to appraisal -- Trial court properly ordered parties to complete presuit appraisal which had already begun when insurer demanded that insured comply with post-loss obligations

44 Fla. L. Weekly D649a
271 So. 3d 106

Insurance -- Property damage -- Appraisal -- Trial court erred in compelling appraisal of insured's claim where dispute had already arisen and insurer demanded appraisal before insurer provided written statutory notice to insureds of their right to mediate as mandated by section 627.7015

44 Fla. L. Weekly D279a
263 So. 3d 231

Insurance -- Homeowners -- Appraisal -- Where insurer has not wholly denied coverage, the issue of causation is an amount-of-loss question subject to appraisal -- It is permissible for an appraisal panel to decide causation issues when causation is not a coverage question, but rather an amount-of-loss question -- Trial court erred in denying insurer's motion to compel appraisal