2020

45 Fla. L. Weekly D1359d
299 So. 3d 1152

Insurance -- Life insurance -- Unclaimed property -- Death Master File -- Facial constitutional challenge to sections 717.107(1), (8), and (9) brought by insurance companies alleging that retroactive application of the three amendments was a denial of insurance companies' right to due process -- Discussion of insurers' use of DMF to search and contact deceased policy holders for payment of benefits, and statutory amendments at issue -- Overall, the three amendments are consistent with the remedial purpose of Florida's unclaimed property laws and are in fact remedial in nature such that their retroactive application is generally permissible -- Although trial court found that amendments were substantive, a “substantive” label does not necessarily preclude retroactive application if the statute itself expresses intent to apply retroactively and retroactive application is not unconstitutional -- Legislature expressly intended amendments to apply retroactively -- Amendments do not impair insurance companies' vested rights, as insurance companies have no vested rights in unclaimed property -- Given the broad existing statutory duties of insurers, it cannot be concluded that the three amendments are a facially unconstitutional imposition of new obligations as to all insurers in all situations -- There is no general impediment or burden on all insurers as to justify facially invalidating the amendments in toto

45 Fla. L. Weekly D2710a

Insurance -- Life -- No designated beneficiary -- Termination of parental rights -- Adoption -- Trial court erred in awarding decedent's life insurance policy proceeds to decedent's parents over decedent's biological son based on determination that the minor was not the child of decedent pursuant to joint stipulation and consent to adoption decedent had executed shortly before his death -- Section 63.172 makes it clear that parental rights are not terminated until the adoption is final -- Because adoption of minor was not finalized by the time of decedent's death, minor was legally the child of decedent -- Language of insurance policy was clear and unambiguous, and there was no need to resort to parol evidence as the trial court did in this case -- As decedent's child, and with no surviving spouse, default beneficiary provision in policy provides that proceeds would go to child -- While life insurance proceeds can be fixed by a settlement agreement and can override beneficiary designations within the policy, the settlement agreement must directly reference the life insurance proceeds to change beneficiary designation -- Where neither the joint stipulation nor consent referenced life insurance proceeds, plain language of the policy controls

45 Fla. L. Weekly D2108b

Insurance -- Liability -- Medical payments benefits -- Dismissal -- Trial court erred in dismissing complaint alleging that plaintiff was entitled to benefits under medical payments provision of policy as a third-party beneficiary on basis that plaintiff was already compensated for medical expenses by settlement with insured -- Trial court erroneously considered the settlement, which was a matter outside the four corners of the complaint -- Court also erroneously considered insurer's affirmative defenses, thereby essentially transforming motion to dismiss into an unarticulated motion for summary judgment -- Further, final judgment prematurely addressed the merits on a motion to dismiss

45 Fla. L. Weekly D1572a

Prohibition -- Jurisdiction -- Petition seeking to prohibit circuit court from attempting to exercise further jurisdiction over certain matters in residential insurance case against Citizens Property Insurance Corporation dismissed as legally insufficient -- There is no indication trial court agreed to exercise jurisdiction over a non-party's claims following notice of voluntary dismissal of case, much less that trial court intended to exercise such jurisdiction prospectively

45 Fla. L. Weekly D385a
290 So. 3d 926

Insurance -- Jurisdiction -- Amount in controversy -- Transfer -- Appeals -- Certiorari -- Case transferred to county court based on circuit court's determination that amount in controversy was less than $15,000 because of insurer's contention that, despite complaint alleging entitlement to estimated damages in excess of threshold amount, insureds' loss was subject to water limitation in policy which capped damages at $10,000 -- Circuit court departed from essential requirements of the law where insurer failed to prove that loss was exclusively attributable to water, and insureds dispute that water limitation applies -- Furthermore, circuit court failed to apply proper test for determining jurisdiction -- Proper test in determining threshold matter of jurisdiction is whether damages were pled in good faith, and there is no evidence in the record to suggest insureds have not pleaded their damage amount in good faith

45 Fla. L. Weekly D686a
293 So. 3d 572

Torts -- Automobile accident -- Proposal for settlement -- Attorney's fees -- Insurance -- Subrogation -- Case involving plaintiffs' purchase of defendant's earlier-served, and subsequently rejected, proposals for settlement from defendant's bankruptcy estate in an attempt to withdraw those proposals and avoid paying attorney's fees and costs under section 768.79 -- Jurisdiction -- Court rejects argument that trial court lacked subject matter jurisdiction to determine, and invaded province of bankruptcy court by determining, that bankruptcy trustee's sale of proposals for settlement was invalid -- Trial court unquestionably had subject matter jurisdiction to rule on statutory and rule-based motion for attorney's fees and costs -- Discussion of differences between subject matter and “case jurisdiction” -- Trial court possessed case jurisdiction to consider the validity of plaintiffs' withdrawal of the proposals for settlement -- Trial court properly declared plaintiffs' notice of withdrawal of proposals for settlement to be a nullity and of no force and effect -- Bankruptcy trustee could only sell whatever title and rights defendant had in the proposals for settlement, which is determined by Florida law -- Because defendant's insurer assumed defense of the tort action, insurer was subrogated to any right defendant had to recover litigation costs and attorney's fees incurred and was the real party in interest as to the proposals for settlement -- Having failed to possess the equitable interest in the proposals for settlement, plaintiffs did not have the power to withdraw them -- Additionally, because the proposals were open for over thirty days without acceptance or written withdrawal of the offer by defendant, any purported withdrawal of the proposals after the expiration of the thirty-day period was a legal nullity and an event not contemplated by rule or statute -- Moreover, the most reasonable interpretation of withdrawal provision of section 768.79 is that the withdrawal of an offer must be made by the offeror

45 Fla. L. Weekly D612a
299 So. 3d 519

Insurance -- Property -- Citizens Property Insurance Corporation -- Error to enter final summary judgment in favor of Citizens where, to significant extent, Citizens' supporting materials were improperly authenticated

45 Fla. L. Weekly D128b
290 So. 3d 560

Insurance -- Homeowners -- Summary judgment -- Supporting affidavits -- Trial court erred in entering summary judgment in favor of insurer on insurer's breach of contract and fraud claims -- Affidavit of corporate representative filed in support of insurer's motions was insufficient basis for summary judgment where affidavit lacked sufficient information establishing that affiant possessed personal knowledge and competency to testify to the matters set forth in the affidavit, which included statements ranging from contract interpretation to trade specialties of plumbing and contracting

45 Fla. L. Weekly D641d

Insurance -- Property -- Replacement cost policy -- When insurer issues replacement cost policy, insurer is required initially to pay insured at least the actual cash value of the covered loss, less the deductible, and is thereafter required to pay its insured for repairs as the insured incurs repair costs -- Trial court properly instructed jury on how to value insured's relevant damages, and verdict in favor of insured was supported by competent substantial evidence

45 Fla. L. Weekly D2044a

Insurance -- Homeowners -- Post-loss obligations -- Sworn proof of loss -- Trial court correctly found that insureds materially breached post-loss condition precedent to commencement of lawsuit by failing to provide insurer a sworn proof of loss -- Insureds did not substantially comply with obligation by providing mold report and condominium leak report through their public adjuster -- Remand for trial court to analyze issue of whether insurer was prejudiced by insureds' failure to comply

45 Fla. L. Weekly D2391a

Insurance -- Homeowners -- Post-loss obligations -- Proof of loss -- Trial court erred in granting summary judgment in favor of insurer on ground that insureds failed to submit compliant sworn proof of loss where disputed issue of fact existed as to whether insureds substantially complied with their post-loss obligations once insurer acknowledged coverage or whether they totally failed to comply

45 Fla. L. Weekly D966a
294 So. 3d 406

Insurance -- Homeowners -- Agents and representatives -- Repairmen -- No error in finding that handyman and water restoration employees who performed home repairs for which the insureds sought coverage were not required to be produced for examinations under oath -- Handyman and water restoration employees were not the insureds' “agents” or “representatives” as those terms were used in the policy -- Furthermore, to extent policy is considered uncertain, court is compelled to construe interpretation against insurer

45 Fla. L. Weekly D394a
300 So. 3d 314

Insurance -- Homeowners -- Order granting motion to compel insurer to make repairs to extent of insurer's own estimate meets definition of an injunction, as it compels insurer to take affirmative action -- Treating order as a temporary injunction, it is reversed as required formalities were not followed

45 Fla. L. Weekly D2118b
302 So. 3d 919

Insurance -- Homeowners -- Hurricane or windstorm loss -- Coverage -- Post-loss obligations -- Supplemental claim -- Breach of contract action alleging that insurer underpaid claim for hurricane-caused loss to dwelling and personal property -- Trial court did not err in entering summary judgment in favor of insurer as to coverage on the dwelling because insured failed to comply with policy requirement that he submit a supplemental claim prior to filing suit -- Based on policy language drawn from section 627.70132, insured was required to file a supplemental claim setting forth damages insured sought in excess of what insurer had already paid where record shows that insurer had previously adjusted insured's initial claim and promptly paid on that claim -- A competing estimate by an insured's independent adjuster, or by a prospective contractor, which is submitted to the insurer would fall within definition of a “supplemental claim” -- Court rejects argument that insured was excused from requirement that he submit a supplemental claim due to insurer's alleged breach of insurance policy by failing to pay the actual cash value of the loss to the dwelling -- While an insurer's unilateral determination of the cash value of a loss does not entitle it to summary judgment in the face of a competing estimate of damages, the insurer should not be deemed to have breached the contract where insurer accepted coverage and paid the only estimate it received of the actual cash value of the loss -- Trial court erred in granting summary judgment in favor of insurer on insured's personal property claim on sole ground that insured did not submit a supplemental claim for personal property loss -- By failing to pay any amount for personal property loss, insurer effectively denied coverage -- Such a denial waives insurer's right to insist on insured's compliance with policy conditions

45 Fla. L. Weekly D2732a

Insurance -- Homeowners -- Water damage -- Post-loss obligations -- Prompt notice -- Trial court erred in granting summary judgment in favor of insurer based on finding that insureds waiting several days to report the loss, while at the same time engaging contractors to repair and remediate the water loss, did not amount to providing “prompt notice” of the loss as required by the policy -- Under facts of the case, the question of whether the insureds' notice to insurer was untimely and caused prejudice to insurer is a question of fact for a jury to resolve

45 Fla. L. Weekly D2124a
302 So. 3d 926

Insurance -- Homeowners -- Coverage -- Post-loss obligations -- Examination under oath -- Notice of EUO sent to insured's initially retained counsel prior to counsel's withdrawal, and then again to insured personally while insured was allegedly out of the country -- Trial court erred in entering summary judgment in favor of insurer based on insured's failure to attend EUO as required by the policy where issue of fact existed regarding the insured's willful noncompliance -- Insured presented evidence that he cooperated to some degree and provided an explanation for his nonattendance at EUO, which in turn created a question of fact as to whether there was a willful or material breach of EUO provision of policy and precluded entry of summary judgment -- Imputation of counsel's knowledge to insured is inappropriate -- Central to a finding of “willfulness” is the insured's actual knowledge of the time and place of the EUO

45 Fla. L. Weekly D2750a

Insurance -- Homeowners -- Cause of loss -- Damage from rainwater that came in through roof after thunderstorm -- Trial court erred in entering summary judgment for insurer in insured's breach of contract action where there were disputed issues of material fact as to whether damage was caused by a covered peril

45 Fla. L. Weekly D1091b

Insurance -- Homeowners -- Summary judgment -- Breach of contract claim by insured against insurer -- Trial court erred in denying insurer's motion for summary judgment where insured presented no evidence of insurer's breach of insurance contract, insurer met its initial burden of demonstrating the nonexistence of any genuine issue of material fact, and insured failed to come forward with admissible counter-evidence sufficient to reveal a genuine issue of material fact

45 Fla. L. Weekly D1091a

Insurance -- Homeowners -- Claim for water damage -- Summary judgment -- Where insurer moved for summary judgment in insureds' action to recover for water damage to home based on affidavits and reports of experts who gave opinion that water damage was due to wear and tear and not covered by policy, and insureds responded by filing only part of an affidavit prepared by their expert, trial court properly entered summary judgment for defendant insurer -- Insurer met its preliminary burden of showing that no issue of material fact existed, and insureds failed to meet their burden to come forward with counter-evidence sufficient to reveal a genuine issue, as their expert's affidavit in truncated form contains only conclusions

45 Fla. L. Weekly D2110a

Insurance -- Homeowners -- Trial court properly dismissed insurer's claim that insured breached contract by failing to provide sworn proof of loss where insurer failed to identify any actual damages as result of alleged breach -- Trial court erred in dismissing count for declaratory relief alleging that insured's failure to provide sworn proof of loss constitutes breach of the policy justifying forfeiture of coverage, as allegations establish the existence of a justiciable controversy cognizable under Declaratory Judgment Act -- Complaint presents a bona fide disagreement as to whether policy language negates requirement for insured to submit sworn proof of loss upon insurer's invocation of right to repair

45 Fla. L. Weekly D1439f

Attorney's fees -- Insurance -- Homeowners -- Sinkhole claims -- Florida Insurance Guaranty Association is not liable for attorney's fees and costs incurred in connection with sinkhole claim -- Question certified: Does the language in section 631.54(3)(c) regarding attorney's fees in connection with a sinkhole loss operate to prevent a sinkhole claimant from receiving fees from FIGA under section 631.70?

45 Fla. L. Weekly D1475a

Insurance -- Automobile -- Uninsured motorist -- Resident relative -- Trial court did not err in granting summary judgment determining that automobile insurer was required to provide UM coverage to insured's resident relative where, although provision of insured's policy excluded resident relatives who owned an automobile at time of accident from UM coverage such as the relative at issue, a separate provision in policy provided basic liability coverage to relative -- If a motor vehicle liability insurance policy provides bodily injury liability coverage, then it must also provide UM coverage to those insured under the policy -- While a policy may include specific provisions that exclude certain insureds from UM coverage if named insured knowingly accepts such a limitation and insurer offers a reduced premium, insurer in case at issue neither obtained informed acceptance nor provided reduced rates

45 Fla. L. Weekly D1209a

Insurance -- Homeowners -- Damage to house consisting of cracks in walls and flooring as result of vibrations caused by off-site blasting operations is excluded by earth-movement/settlement exclusion in policy -- Trial court properly concluded that policy excluded from coverage indirect damage to property as result of earth movement that may have been triggered by off-site fire or explosion

45 Fla. L. Weekly D2390b

Evidence -- No error in trial court's exclusion of insurance adjuster's report -- Report was protected work product, and plaintiff failed to establish applicable exception to prohibition against use of such materials at trial -- No error in determination that work product privilege was not waived -- No abuse of discretion in denying plaintiff's request to be recalled to witness stand as a rebuttal witness -- Damages -- Setoff -- Collateral source -- Error to include in amount of collateral source set-off a bill paid by plaintiff

45 Fla. L. Weekly D1351a
297 So. 3d 592

Insurance -- Dismissal -- Sanctions -- Due process -- No error in dismissing case as a sanction for plaintiff's counsel's bad faith conduct -- Error to impose monetary sanction against plaintiff's counsel because such relief was not sought and was imposed without notice and, accordingly, did not comply with due process -- Additionally, trial court improperly prejudged the merits of the underlying lawsuit by entering monetary sanction in the amount sought by plaintiffs in their lawsuit against insurer

45 Fla. L. Weekly D483a
291 So. 3d 137

Insurance -- Homeowners -- Water damage -- Dismissal -- Fraud upon the court -- Trial court abused its discretion in dismissing case for fraud upon the court based on finding that evidence provided completely contradicted insureds' position that garbage disposal under the sink caused the water damage where record does not demonstrate that insureds knowingly entered a scheme to defraud the insurer and the court -- Collective inconsistencies between the insureds' statements regarding the cause of loss and repair were not significant enough to warrant dismissal and could have been managed through impeachment and other less severe sanctions

45 Fla. L. Weekly D2634a

Insurance -- Homeowners -- Coverage -- Discovery -- Protective order -- Appeals -- Certiorari -- First-party declaratory action concerning coverage under homeowners' insurance policy -- Trial court departed from essential requirements of the law by denying insurer's motion for protective order seeking to prevent production of insurer's “protocol, policy and guidelines” for complying with section 627.70131(5)(a) -- Although insureds have not pled a bad faith claim, requested discovery with respect to section 627.70131(5)(a) is nevertheless impermissible

45 Fla. L. Weekly D588a
291 So. 3d 663

Insurance -- Homeowners -- Discovery -- Work product privilege -- Trial court departed from essential requirements of law in compelling production of photographs taken by insurer's investigator during home inspection related to insureds' claim for water damage on the basis that insurer had not filed a privilege log -- Obligation to file a privilege log does not arise until after court has ruled on party's non-privilege discovery objections

45 Fla. L. Weekly D135a

Torts -- Automobile accident -- Discovery -- Experts -- Financial relationships -- Appeals -- Certiorari -- Trial court did not depart from essential requirements of the law in ordering defendants in personal injury case to provide information regarding the financial relationship between medical experts retained by defendant and defendant's liability insurer and counsel -- Question certified: Whether the analysis and decision in Worley should also apply to preclude a defendant's liability insurer who is providing a defense to its insured or the retained defense law firm, neither of whom is a party to the litigation, from having to disclose their financial relationship with physicians that provide evaluations of petitioner's medical condition including those that perform compulsory medical examinations under Florida Rule of Civil Procedure 1.360?

45 Fla. L. Weekly D1429a
298 So. 3d 1252

Insurance -- Homeowners -- Discovery -- Work product privilege -- Appeals -- Certiorari -- Trial court did not depart from essential requirements of the law by requiring insurer to produce photographs within its claim file, and photographs and reports within its underwriting file, pertaining to the condition of the subject property when the insurance policy was issued -- Although insurer's objection to request at issue was work product privilege, insurer never attempted to demonstrate that photographs at issue were prepared in anticipation of litigation -- Furthermore, insurer did not attempt to establish the basis for its objection with documentary evidence, such as a supporting affidavit, but instead only asserted a categorical claims file or underwriting file privilege -- There is no claims file privilege

45 Fla. L. Weekly D2003c

Torts -- Automobile accident -- Discovery -- Non-parties -- Financial relationships -- Appeals -- Certiorari -- Trial court did not depart from essential requirements of the law in denying defendant's motion for a protective order arguing that plaintiff's request for information concerning the financial relationship between defendant's attorney, liability insurer, and medical experts was not permissible because insurer and attorneys were not parties to the lawsuit -- Question certified: Whether the analysis and decision in Worley should also apply to preclude a defendant's liability insurer or defendant's retained counsel, neither of whom is a party to the litigation, from having to disclose their financial relationship with defendant's physician experts?

45 Fla. L. Weekly D292a
290 So. 3d 153

Insurance -- Property -- Discovery -- Trial court departed from essential requirements of law in finding that the claim file from a prior claim involving the same insured boat could not be protected from discovery as work product because the prior claim had been settled without litigation

45 Fla. L. Weekly D2271a

Insurance -- Homeowners -- Discovery -- Appeals -- Certiorari -- Trial court departed from essential requirements of law by compelling insurer to disclose privileged claim file materials in insured's breach of contract suit against insurer before making a coverage determination

45 Fla. L. Weekly D510a
299 So. 3d 501

Insurance -- Discovery -- Trial court improperly required insurer to produce all documents in field adjuster's claim file created prior to date coverage was denied

45 Fla. L. Weekly D879b

Insurance -- Homeowners -- Declaratory judgment -- Trial court erred in dismissing insurer's complaint seeking declaration of rights and remedies under election to repair provision of policy and breach of contract claim that policy terms were anticipatorily repudiated by insureds, excusing further performance by insurer and allowing insurer to recover as damages its reasonable costs incurred in prosecuting lawsuit

45 Fla. L. Weekly D571a
292 So. 3d 840

Insurance -- Personal injury protection -- Hospitals -- Medical services -- Reasonableness of charges -- Declaratory judgment -- No error in dismissing with prejudice putative class action complaint for declaratory judgment and supplemental relief against hospital which sought declaration as to whether hospital charged plaintiff and other similarly situated patients unreasonable rates for medical services in violation of section 627.736(5)(a) -- To state a cause of action for declaratory judgment, there must be some immunity, power, privilege, or right of the complaining party dependent upon the issue to be resolved by the declaration -- Any declaration on whether hospital charged unreasonable amounts under PIP statute would constitute an improper advisory opinion where PIP statute does not contain a private right of action for an insured to challenge the reasonableness of a health care provider's charges -- Plaintiff is not entitled to declaration on the matter because of the existence of unspecified, potentially available civil remedies for hospital's violation of the statute where plaintiff asserted no other cause of action below that would show that a justiciable controversy exists on which to predicate a declaratory judgment -- Absent a showing of at least a colorable right which would be affected by the requested declaration, dismissal is required

45 Fla. L. Weekly D1426b

Insurance -- Homeowners -- Declaratory judgment -- Insurer seeking declaratory relief against insured based on dispute over whether policy barred recovery because damage claimed occurred prior to policy's inception -- Error to dismiss complaint where a bona fide controversy existed -- Because policy would permit insurer to deny coverage if damage happened before inception of the policy, there was a genuine dispute between the parties, and insurer presented a justiciable question as to the existence of its right to deny coverage under the policy -- Trial court had the power to determine factual issues under declaratory judgment act

45 Fla. L. Weekly D754b

Insurance -- Homeowners -- Post-loss obligations -- Action by insurer against insured after insured property suffered water damage from water leak and insured failed to comply with requests to complete sworn proof of loss or appoint an appraiser -- Trial court properly dismissed breach of contract claim where complaint did not allege element of damages -- Court erred in dismissing claim for specific performance of policy's provisions -- Court also erred in dismissing claim for declaratory relief seeking declaration of insurer's coverage obligations and whether it is entitled to void policy

45 Fla. L. Weekly D2750b

Insurance -- Declaratory judgment -- Dismissal -- Action by assignee who contracted to provide water mitigation services seeking declaration that its invoices for work performed were not subject to appraisal since they should not be interpreted as part of amount of loss, as provided by policy -- Trial court erred in failing to render final declaratory judgment in lieu of dismissal -- Motion to dismiss a complaint for declaratory judgment is only to determine whether plaintiff is entitled to a declaration of rights, not to determine whether it is entitled to a declaration in its favor -- Assignee's complaint stated a cause of action for declaratory relief as to whether charge for its services fell under category of “amount of loss” and was subject to appraisal

45 Fla. L. Weekly D1152a

Insurance -- Contractors -- Insurer had no duty to defend construction company in action alleging that company's employee or agent caused damage to condominium building where the damage occurred above the third story of the condominium building, and the policy contained an exclusion for construction damage to a building more than three stories in height

45 Fla. L. Weekly D2105a

Insurance -- Coverage -- Post-loss obligations -- Notice of claims -- Discovery -- Privileged information -- Waiver -- Trial court did not depart form essential requirements of the law by allowing insurer to depose claims adjuster and insurer's counsel on topics relevant to notice where trial court appropriately limited discovery to topics not precluded by law -- Trial court departed from essential requirements of the law in allowing insured to depose certain corporate representatives on topics insurer's counsel had agreed to in letter to insured's counsel where topics extended beyond notice and discovery issues and into areas of claims handling and matters otherwise prohibited by law -- Privilege was not waived by insurer's counsel's letter as an attorney cannot waive a privilege objection for a client even if counsel indicates an intent to produce certain discovery but later raises a privilege objection to production of that discovery

45 Fla. L. Weekly D2518a

Insurance -- Automobile -- Uninsured motorist -- Coverage -- Waiver -- Declaratory judgment -- Class actions -- Certification -- Lower courts did not err in denying class certification motions filed by plaintiffs seeking a declaration that defendant insurance company's online signature process for rejecting UM coverage fails to comply with the law and does not properly advise policyholders regarding UM coverage options -- Because the validity of defendant's process has already been decided by appellate court, neither plaintiff has standing to seek declaratory relief on behalf of the proposed class -- Once a prior appellate decision settles a question of law as to which declaratory relief is sought, the relief requested is rendered moot -- Moreover, plaintiffs cannot establish commonality and typicality of claims -- Proposed class encompasses customers who purchased policies during period of time in which defendant's challenged procedure was changed twice, making the relevant facts as to the proposed class members different depending on when they purchased the policy

45 Fla. L. Weekly D2172a
302 So. 3d 930

Insurance -- Claims-made policy -- Indemnification -- Cost of defense -- Criminal trial -- Trial court did not err in entering summary judgment in favor of insurer in action brought by insured seeking to recover defense costs he incurred in a criminal trial in which insured was acquitted -- Plain language of policy did not allow for the recovery of insured's defense costs for his criminal prosecution where policy only allowed for the indemnification of defense costs if those costs were incurred with respect to a claim and no claim, as defined by the policy, was made within the policy period

45 Fla. L. Weekly D1759a

Insurance -- Claims-made policy -- Municipal corporations -- Intergovernmental collective risk management program -- Coverage -- Errors and omissions -- City seeking coverage for investor claims arising out of letters signed by city official misrepresenting that in the event the developer of a residential community development project defaulted, the city would purchase the property, satisfy any existing liens, and complete the project; and, further, seeking declaratory relief against risk management program's excess carrier -- District court correctly determined that claims against city that predated the city's membership in risk management program were not subject to errors and omissions coverage, and evidence established that city was subject to notice of a monetary demand premised upon official's fraudulent misrepresentation long before city acquired membership in the program, but failed to take any action -- City's contention that claims did not flow from a wrongful act, and therefore were not excluded from coverage, lacks merit -- Trial court did not err in finding that, because of lack of privity, city lacked standing to maintain suit against program's reinsurer

45 Fla. L. Weekly D2593a

Insurance -- Summary judgment -- Hearing -- Notice -- Due process -- Trial court violated insured's due process rights when the trial court granted insurer's motion for reconsideration and motion for summary judgment during a hearing on insurer's motion to strike trial witness because neither motion was noticed for hearing, and trial court never gave any advance notice it was going to reconsider its previous summary judgment order

45 Fla. L. Weekly D642a

Insurance -- Homeowners -- Property damage -- Actual cash value -- Evidence -- Matching costs -- Action for breach of insurance contract alleging that insurer failed to pay actual cash value for loss -- Predecessor judge adhered to plain language of policy and Florida law in granting insurer's motion in limine to preclude insured from introducing evidence of matching costs before insured began making repairs -- 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

45 Fla. L. Weekly D907a

Insurance -- Breach of contract -- Summary judgment -- Error to grant final summary judgment in favor of insurer on grounds that suit was premature where insurer admitted coverage under the policy

45 Fla. L. Weekly D2089b
302 So. 3d 478

Insurance -- Third-party beneficiaries -- Language of the policy of insurance clearly reflects that plaintiff was not intended to primarily and directly benefit from the policy where policy expressly stated that it was only between the named insured and the insurer, and that there was no contract of insurance between insurer and plaintiff

45 Fla. L. Weekly D1887a
302 So. 3d 966

Insurance -- Professional liability -- Bad faith -- Legal malpractice -- Bad faith action against liability insurer consolidated with legal malpractice action against counsel retained by insurer in underlying medical malpractice case, alleging that but for counsel's offer to arbitrate, the case against the insured would have settled for policy limits -- Trial court did not err in submitting the issue of causation to the jury in bad faith action against insurer where insured claimed that excess judgment resulted from insurer's alleged bad faith in offering arbitration which precluded settlement from happening, and insurer contended that it was insured's refusal to turn over his financial records which prevented settlement and led to offer of arbitration -- Because issue of what caused insurer's damages was in dispute, whether insurer's bad faith caused the excess judgment was a question for the jury -- No error in submitting the issue of damages to the jury where, although the damages insured sought in bad faith action was the excess judgment that resulted from arbitration, the jury had to decide what portion of any damages insurer was responsible for after trial court granted insured's request to consolidate the bad faith and legal malpractice actions -- Even if it was error to submit issue of damages to jury, error was harmless where jury never reached the issue of damages given its determination that insurer did not act in bad faith and that counsel was not negligent -- Evidence -- Routine practice -- Trial court did not err in refusing to admit testimony that the standard practice of plaintiff's counsel's firm in underlying medical malpractice action was to accept policy limit settlement offers in medical malpractice cases when a defendant refuses to provide financial information -- Proposed testimony did not fall within section 90.406 -- Even if exclusion of testimony was in error, any error was harmless -- No abuse of discretion in admitting plaintiff's counsel's fee agreement which contained a waiver of plaintiff's rights because it was relevant to plaintiff's counsel's financial interest and because it did not constitute a needless waste of time -- Furthermore, because the argument raised on appeal with respect to the admission of the fee agreement was not contemporaneously raised when insured's objection was made, it was not preserved -- No abuse of discretion in admitting testimony about Board of Medicine proceedings related to complaint filed against insured as a result of the incident which was the subject of medical malpractice action against insured and doctor's testimony about how egregious she found insured's actions or inactions to be given that the strength of plaintiff's case against insured had to be evaluated by jury in determining the issues of bad faith and legal malpractice -- Even if admission of evidence concerning Board's proceeding was erroneous, any error was harmless as insured's negligence in medical malpractice case was undisputed -- No error in admitting evidence regarding a separate medical malpractice case involving insured's counsel in which punitive damages were awarded where the potential for punitive damages was a disputed issue and factor that led to the offer of arbitration, and case was the basis for counsel's assessment of the case and the advice given to insured -- Trial court did not err in directing verdict for insurer and instructing jury that insurer had no duty to investigate prior to the filing of plaintiff's notice of intent to initiate a medical malpractice action where nothing in liability insurance agreement created a duty to investigate a potential claim -- Moreover, insured failed to prove that insurer violated its fiduciary obligation to protect insured from judgment exceeding the limits of the policy by failing to investigate notice of the incident -- No merit to argument that cumulative effect of trial court's errors warrants a new trial -- Attorney's fees -- Proposal for settlement -- No error in awarding attorney's fees to counsel and firm pursuant to section 768.79 despite fact that settlement offer failed to apportion the amount of the settlement offer attributable to each offeror -- Because complaint only pled a theory of vicarious liability against the firm, the proposal fell within rule 1.442(c)(4) which does not require the offer to differentiate between tortfeasors where one is alleged to be vicariously liable

45 Fla. L. Weekly D2130a
302 So. 3d 1081

Insurance -- Bad faith -- Punitive damages -- Amendment of complaint -- Appeals -- Certiorari -- Petition for certiorari review of order allowing insured to file amended complaint to assert claims for punitive damages and proceed with premature bad faith claims is moot where trial court subsequently set aside the order and denied insured's motion to amend after petition for writ of certiorari was filed -- Absent a stay, filing of a petition has no effect on trial court's ability to proceed to adjudicate a case

45 Fla. L. Weekly D2128a
302 So. 3d 500

Insurance -- Bad faith -- Appeals -- Certiorari -- No irreparable harm occurred as a result of trial court's order barring insured's bad faith claims as premature -- Insured may bring forth bad faith claims once she establishes she is entitled to recover her insurance benefits

45 Fla. L. Weekly D2121b

Insurance -- Uninsured motorist -- Bad faith -- Evidence -- Settlement offers -- Mediation communications -- New trial -- Loss of consortium -- No error in dismissing insured wife's loss of consortium claim where wife failed to file a civil remedy notice -- Trial court erred in admitting insurer's activity log which memorialized the insureds' settlement offer at mediation -- Activity log note containing insureds' mediation offer was irrelevant where it had nothing to do with whether insurer acted in bad faith when it failed to tender policy limits until after insured husband's CRN had expired -- Note was inadmissible pursuant to section 90.408 where note reflected settlement negotiations between the same parties involved in the bad faith trial -- Additionally, activity log note was inadmissible because it was a privileged mediation communication -- Although insureds and the insurer were parties to the mediation, activity log note was published to a party outside the ambit of those privileged to see it under section 44.405 when it was introduced into evidence and published to the jury -- Remand for new trial

45 Fla. L. Weekly D1714a

Insurance -- Bad faith -- Discovery -- Privileged information -- Appeals -- Insurer seeking certiorari review of trial court order requiring insurer to produce documents, which insurer claims are privileged and/or work product documents, after in camera inspections by a special master and the trial court -- Petition is denied where insurer failed to preserve the documents at issue for appellate review -- In the absence of a record reflecting the material reviewed by the trial court, appellate court cannot review trial court's findings -- Insurer may not cure incomplete appendix under rule 9.220(a) where nothing indicates that insurer followed proper procedure for filing documents at issue under seal with the trial court -- Because documents are not in trial court's record, they cannot be transmitted to appellate court for review under the rule

45 Fla. L. Weekly D2092a
302 So. 3d 485

Insurance -- Homeowners -- Bad faith -- Failure to attempt in good faith to settle claim -- Trial court erred in entering summary judgment for insurer in insureds' bad faith action on ground that insurer cured a Civil Remedy Notice of Insurer's Violations by invoking the appraisal process before the CRN was filed and paying the appraisal award more than sixty days after the CRN was filed -- CRN is not required to contain a specific amount sought to cure alleged bad faith

45 Fla. L. Weekly D2380a

Insurance -- Bad faith -- Conditions precedent -- Civil remedy notice -- Notice filed against incorrect entity -- Waiver -- Trial court erred in dismissing insured's complaint for bad faith with prejudice based on finding that insured's civil remedy notice was ineffective as a matter of law because insurer was misidentified -- Although trial court was correct in finding that the misidentification failed to strictly comply with section 624.155(3), insurer had waived the argument by not raising the misidentification in its response to the civil remedy notice

45 Fla. L. Weekly D696a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 45 Fla. L. Weekly D1349b

Wrongful death -- Automobile accident -- Vicarious liability -- Damages -- Insurance -- Liability limitations -- Action against vehicle owner arising from fatal accident caused by permissive driver -- No error in entering summary judgment in favor of vehicle owner based on determination that owner's liability was statutorily limited to $100,000, and that vehicle owner's insurance coverage of $250,000, which was paid by owner's insurer toward plaintiff's claim against driver, satisfied owner's maximum liability -- Plaintiff's argument that a vehicle owner's policy cannot be used to both satisfy vehicle owner's maximum liability and count towards driver's combined policy limits is unsupported by statute's unambiguous language -- Section 324.021(9)(b)3 limits a vehicle owner's liability to $100,000 per person if the permissive user's combined limits are $500,000 or more, and nothing within the statute indicates that a vehicle owner's liability cap and permissive driver's combined limits are mutually exclusive -- There is no language excluding insurance payments under a vehicle owner's policy from the calculation of a permissive driver's combined policy limits -- Driver had combined coverage of over $500,000 when vehicle owner's policy under which driver was a permissive user was added to driver's three other policies

45 Fla. L. Weekly D2199a

Insurance -- Bad faith -- Civil remedy notice -- Deficient notice -- No error in dismissing complaint against insurer based on finding that insured's civil remedy notice, which cited thirty-five statutory provisions and listed nearly every provision in insurance policy, failed to satisfy statutory requirement that an insured state with specificity the policy language and statutory provisions at issue -- Court rejects argument that notice was sufficient because the Department of Financial Services has statutory authority to return deficient notices but failed to do so -- Department's discretionary grant of authority did not determine the legality of the notice, nor is there evidence that the department even considered the issue -- Even if department made specific determination about notice's legality, the courts must independently review the notice

45 Fla. L. Weekly D1349b
295 So. 3d 829

Wrongful death -- Automobile accident -- Vicarious liability -- Damages -- Insurance -- Liability limitations -- Action against vehicle owner arising from fatal accident caused by permissive driver -- No error in entering summary judgment in favor of vehicle owner based on determination that owner's liability was statutorily limited to $100,000, and that vehicle owner's insurance coverage of $250,000, which was paid by owner's insurer toward plaintiffs' claim against driver, satisfied owner's maximum liability -- Plaintiffs' argument that a vehicle owner's policy cannot be used to both satisfy vehicle owner's maximum liability and count towards driver's combined policy limits is unsupported by statute's unambiguous language -- Section 324.021(9)(b)3 limits a vehicle owner's liability to $100,000 per person if the permissive user's combined limits are $500,000 or more, and nothing within the statute indicates that a vehicle owner's liability cap and permissive driver's combined limits are mutually exclusive -- There is no language excluding insurance payments under a vehicle owner's policy from the calculation of a permissive driver's combined policy limits -- Driver had combined coverage of over $500,000 when vehicle owner's policy under which driver was a permissive user was added to driver's three other policies

45 Fla. L. Weekly D120d
300 So. 3d 1220

Insurance -- Automobile -- Loss payable clause -- Insurer breached its duty to vehicle's lienholder when it issued settlement check for damage to vehicle to named insured without including lienholder -- Trial court erred in finding that policy required insurer to protect interest of lienholder only if the insured vehicle was a total loss

45 Fla. L. Weekly D1409c
298 So. 3d 53

Insurance -- Uninsured/underinsured motorist -- Damages -- Medical expenses -- Remittitur -- Set-off -- Collateral source -- Trial court did not abuse its discretion in reducing jury's award of past medical expenses to the amount of bills in evidence or in granting setoff of personal injury protection benefits paid by insurer -- Trial court erred in failing to credit plaintiff for past PIP premium payments without further explanation -- Trial court erred in reducing verdict based on Medicare reductions -- Attorney's fees -- Proposal for settlement -- Insurer's proposal for settlement was legally sufficient, and terms were sufficiently clear and definite to allow insured to make decision without needing clarification -- Under circumstances, proposal was not ambiguous because it required insured to “satisfy all relevant liens” and stated that acceptance would “resolve all claims” against insurer -- Amount of judgment -- Trial court did not err in considering judgment obtained against UM insurer rather than judgment obtained through negotiation with negligent driver when evaluating whether insurer met threshold amount for award of attorney's fees -- No abuse of discretion in finding that nominal proposal was made in good faith -- On remand, trial court to address issues of setoff and remittitur and to determine whether insurer's proposal met threshold amount to trigger entitlement to attorney's fees after net judgment is recalculated considering all legally authorized reductions

45 Fla. L. Weekly D219a
297 So. 3d 635

Insurance -- Florida Insurance Guaranty Association -- Attorney's fees -- Circuit court improperly found that insured was entitled to prevailing party attorney's fees under section 631.70 because FIGA never denied insurer's claim by affirmative action before suit was filed where FIGA was not notified of insured's claim until after he filed suit with circuit court

45 Fla. L. Weekly D523a

Attorney's fees -- Insurance -- Sinkhole claims -- Florida Insurance Guaranty Association -- Language of statute prevents FIGA from paying “[a]ny amount payable for a sinkhole loss other than testing deemed appropriate by the association or payable for the actual repair of the loss” and specifically prevents FIGA from paying attorney's fees in connection with a sinkhole loss -- Section 631.70, which generally applies to attorney's fees payable by FIGA when FIGA has denied a covered claim by affirmative action, does not specifically address sinkhole claims -- Question certified: Does the language in section 631.54(3)(c) regarding attorney's fees in connection with a sinkhole loss operate to prevent a sinkhole claimant from receiving fees from FIGA under section 631.70? -- Costs -- Prevailing party -- Limiting language in section 631.54(3)(c) prevents award of costs to be paid by FIGA -- Discussion of correct interpretation of Miller v. Florida Insurance Guaranty Association

45 Fla. L. Weekly D730a

Insurance -- Attorney's fees -- Sinkhole claims -- Statute precludes award of attorney's fees in connection with claim for sinkhole damage involving Florida Insurance Guaranty Association -- Question certified: Does the language in section 631.54(3)(c) regarding attorney's fees in connection with a sinkhole loss operate to prevent a sinkhole claimant from receiving fees from FIGA under section 631.70?

45 Fla. L. Weekly D485b
294 So. 3d 324

Insurance -- Attorney's fees -- Section 57.105 sanction -- Award of attorney's fees to insured for litigating insurer's declaratory judgment action -- Although court properly awarded insured her reasonable attorney's fees, it was error to award her an additional punitive amount equivalent to insurer's attorney's reasonable fees -- No authority exists under section 57.105 for court to award movant not only movant's reasonable attorney's fees, but an additional punitive amount, such as an amount equivalent to the non-movant's attorney's hours expended

45 Fla. L. Weekly D1217c
296 So. 3d 572

Insurance -- Homeowners -- Attorney's fees -- Prevailing party -- Contingency fee multiplier -- In determining whether relevant market required contingency fee multiplier to obtain competent counsel, trial court erred in considering plaintiff's actual difficulty in locating counsel rather than looking at the relevant market itself -- Trial court erred in analyzing whether counsel was able to mitigate risk of nonpayment where instead of relying on undisputed evidence that plaintiff could not afford an hourly fee, the trial court relied on the likelihood of success -- Likelihood of success is to be considered in determining range of multiplier rather than whether risk of non-payment is mitigated

45 Fla. L. Weekly D2550a

Insurance -- Uninsured motorist -- Bad faith -- Damages -- Attorney's fees -- Prevailing party -- Fees-for-fees -- Trial court erred in granting insurer's motion for summary judgment asserting that fees incurred in furtherance of underlying UM suit are not recoverable in a bad-faith suit -- Contrary to trial court's conclusion, section 627.727(8) does not preclude, categorically, the recovery of UM attorney's fees -- Although trial court was correct that insured was not entitled to recover prevailing party attorney's fees incurred in underlying UM case that would otherwise be available under section 627.428 because UM coverage was not contested, the insured was seeking attorney's fees as compensatory damages resulting from insurer's bad faith failure to settle pursuant to section 624.155(8) -- Section 624.155(8) permits recovery for reasonably foreseeable damages resulting from insurer's bad-faith conduct, which may include reasonable attorney's fees incurred in underlying action -- Trial court erred in precluding award of fees to firm that litigated entitlement to damages under section 624.155(8) on the basis that they constituted attorney's fees incurred in establishing the amount of attorney's fees to be awarded for underlying UM case -- Litigation of the existence and the amount of damages, including whether and how much of the fees incurred litigating the UM action were the natural, proximate, probable, or direct consequence of the insurer's bad faith actions, was a part of the prosecution of the bad faith suit and, as such, attorney's fees incurred for such litigation should be awardable as prevailing-party fees in bad faith case -- No error in denying insured's motion for summary judgment claiming entitlement to all fees in underlying UM action as damages because insured failed to prove that she actually suffered damages in the form of attorney's fees where, pursuant to her fee agreement with her UM attorney, she was not liable to her UM attorney for an hourly rate beyond forty percent

45 Fla. L. Weekly D2811a

Insurance -- Homeowners -- Assignment -- Anti-assignment clause in insurance contract was ineffective to restrict or prevent insured from making post-loss assignment of right to payment of claim under policy without insurer's consent -- Fact that anti-assignment clause was placed in application rather than policy itself is immaterial

45 Fla. L. Weekly D2511a

Insurance -- Attorney's fees -- Multiple attorneys -- Excessive award -- Lodestar -- Trial court's findings as to reasonable hourly rates of all five of plaintiff's attorneys and paralegal approved -- Finding that 469 hours were reasonably expended in first-party property insurance case that settled after minimal discovery and in which no significant motions were litigated was not supported by competent substantial evidence -- Competent, substantial evidence supported defendant's fee expert's determination that 101 hours were reasonably expended, and trial court directed to reduce number of hours billed to 101 -- Multiplier -- Contingency risk -- Trial court improperly applied multiplier where record was devoid of any evidence that relevant market required contingency fee multiplier to obtain competent counsel -- Expert fees -- Trial court abused its discretion by awarding costs to plaintiff's experts who never testified at trial and who were never deposed without making factual findings regarding which expenses would have been reasonably necessary for an actual trial

45 Fla. L. Weekly D2086c

Real property -- Homestead -- Insurance -- Assignment of post-loss benefits -- Question certified: Does Article X, section 4(c) of the Florida Constitution allow the owner of homestead property, joined by the spouse if married, to assign post-loss insurance benefits to a third-party contractor contracted to make repairs to the homestead property?

45 Fla. L. Weekly D1999a
302 So. 3d 463

Real property -- Homestead -- Alienation -- Insurance -- Assignment of post-loss insurance benefits -- Trial court erred in granting summary judgment in favor of insurer based on conclusion that insurance proceeds resulting from a loss to homestead property are constitutionally protected to the same extent as the homestead property itself and cannot be assigned pursuant to an assignment of benefits -- Article X, section 4(c) of the constitution does not prohibit assignment of post-loss insurance benefits due as a result of damage to homestead property -- Assignment of post-loss insurance benefits does not constitute alienation of homestead property because the assignment of benefits conveys no title or interest in the property -- Question certified: Does article X, section 4(c) of the Florida Constitution allow the owner of homestead real property, joined by the spouse, if married, to assign post-loss insurance benefits to a third party contractor contracted to make repairs to the homestead property?

45 Fla. L. Weekly D2274a

Insurance -- Property -- Hurricane damage -- Appraisal -- Insurer did not waive right to appraisal by choosing to cover only part of loss claimed by insured or by abating original appraisal after being served with insured's lawsuit -- Insurer did not actively participate in lawsuit by moving to compel appraisal after suit was filed -- Insurer did not engage in conduct inconsistent with right to appraisal by ordering appraiser to stop working on the appraisal when it was already a month into the process -- Trial court erred in denying motion to compel appraisal

45 Fla. L. Weekly D756b
300 So. 3d 1240

Insurance -- Appraisal -- Video and audio recording -- Appeals -- Certiorari -- Trial court did not depart from essential requirements of the law in allowing insured to make a video and audio recording of insurer's appraiser's inspection of the insured property -- Allowing insured to record appraisal does not violate appraiser's constitutional right to privacy, as constitutional right to privacy protects persons from governmental, not private, intrusion -- Possibility that making of the recording might be unfairly used to harass or intimidate the appraiser does not rise to the level of irreparable harm

45 Fla. L. Weekly D1149a

Insurance -- Homeowners -- Appraisal pursuant to appraisal provision in Preferred Contractor Endorsement -- Waiver -- Insurer did not waive right to compel appraisal by not invoking its appraisal right as an affirmative defense to insured's breach of contract action where insurer, in the same pleading containing affirmative defenses, asserted counterclaims seeking insureds' compliance with appraisal provision -- Insurer did not waive right to compel appraisal because its counterclaim sought to void policy because of insureds' refusal to participate in appraisal -- Party will not be deemed to have waived appraisal unless party's litigation position is inconsistent with party's assertion of right to appraisal -- Demand for appraisal was not untimely where insurer sent insureds letter demanding appraisal before it had notice of insureds' lawsuit -- Remand for trial court to reconsider insurer's motion to compel appraisal and to determine order in which coverage issues and appraisal are determined

45 Fla. L. Weekly D2463a

Insurance -- Appraisal -- Dispute over coverage and amount of loss -- Action involving insurer that initially ceded coverage before subsequently arguing that policy was void due to insured's allegedly fraudulent estimate -- Trial court acted within its discretion by compelling appraisal where it is clear that coverage dispute is intertwined with the amount of loss and appraisal would likely assist the trial court when it later determines whether insured fraudulently inflated its claim -- Court adopts dual-track approach to determining the order in which the trial courts should resolve damages and coverage issues -- Trial court has discretion to determine the order in which the issues of damages and coverage are to be determined, and may compel appraisal on dual-track basis while preserving all of the insurer's rights to contest coverage as a matter of law -- Conflict certified

45 Fla. L. Weekly D1521b

Insurance -- Homeowners -- Appraisal -- Trial court erred in determining that Preferred Contractor Endorsement subjecting scope of work disputes to appraisal is invalid because of insurer's alleged failure to provide a statutory notice of change in policy terms -- Notice of Change in Policy Terms included in policy renewal package was sufficient to provide statutory notice of change -- Trial court erred in determining that insurer waived its right to appraisal because of its failure to provide statutory notice of insureds' right to participate in mediation at the time insureds first filed a claim of loss -- When attorneys for insureds signified that the means and costs of repair estimated by parties had ripened into a dispute, insurer gave timely and compliant notice to insureds of their right to participate in mediation under Department of Financial Services program

45 Fla. L. Weekly D259a
299 So. 3d 1148

Insurance -- Homeowners -- Appraisal -- Trial court properly ordered parties to submit to appraisal where insurer elected to repair covered loss and parties failed to agree on amount of loss, including scope of repairs -- Appeals -- Non-final orders -- Court lacks jurisdiction to review portions of non-final order other than that ordering parties to submit to appraisal

45 Fla. L. Weekly D787a
292 So. 3d 1260

Insurance -- Homeowners -- Storm damage -- Appraisal -- Insurer was entitled to enforce insurance policy's appraisal provision where it did not wholly deny coverage for insureds' claim -- Insurer did not wholly deny coverage when it took stance that policy permitted it to replace damaged or missing shingles with shingles that did not match other shingles on roof

45 Fla. L. Weekly D1923a

Insurance -- Appraisal -- Disinterested appraiser -- Question certified: Can a fiduciary, such as a public adjuster or appraiser who is in a contractual agent-principal relationship with the insureds and who receives a contingency fee from the appraisal award, be a disinterested appraiser as a matter of law? -- Conflict certified

45 Fla. L. Weekly D870d

Insurance -- Homeowners -- Appraisal -- Insureds' agent/public adjuster acting as disinterested appraiser -- Insurer's petition for writ of certiorari seeking to quash trial court order allowing insureds' agent/public adjuster to act as insureds' disinterested appraiser -- Trial court did not depart from essential requirements of law because its order followed district court's existing precedent -- Petition for writ of certiorari denied -- Conflict certified -- Question certified: Can a fiduciary, such as a public adjuster or appraiser who is in a contractual agent-principal relationship with the insureds and who receives a contingency fee from the appraisal award, be a disinterested appraiser as a matter of law?

45 Fla. L. Weekly D515b
291 So. 3d 203

Insurance -- Appraisal -- Disinterested appraiser -- Insured's public adjuster who is entitled to contingency fee from recovered insurance proceeds may not serve as a disinterested appraiser

45 Fla. L. Weekly D288a
290 So. 3d 150

Insurance -- Homeowners -- Appraisal -- Insured's public adjuster who is entitled to a contingency fee of insurance proceeds recovered may not serve as a “disinterested appraiser”

45 Fla. L. Weekly D411b
290 So. 3d 1090

Insurance -- Appraisal -- Disinterested appraiser -- Insured's public adjuster, who is entitled to contingency fee from recovered insurance proceeds, is not authorized to serve as insured's disinterested appraiser

45 Fla. L. Weekly D424b
294 So. 3d 921

Insurance -- Appraisal -- Post-loss obligations -- Hearing -- Error to grant insured's motion to compel appraisal without conducting evidentiary hearing where there was factual dispute as to whether insured complied with its post-loss obligations

45 Fla. L. Weekly D2442a

Insurance -- Homeowners -- Coverage -- Appraisal -- Waiver -- Trial court erred in compelling appraisal of residential home under policy where there were disputes over coverage and policy specifically precluded appraisal for coverage issues -- Moreover, any right of appraisal was waived where suit was filed and litigated for a year prior to appraisal request

45 Fla. L. Weekly D1523a

Insurance -- Homeowners -- Appraisal -- Trial court erred by granting insureds' motion to compel arbitration without holding evidentiary hearing to determine whether insureds had complied with post-loss obligation to submit sworn proof of loss that is compliant with policy requirements

45 Fla. L. Weekly D2754a

Insurance -- Appraisal -- Confirmation of award -- Petition is improper vehicle to seek confirmation of arbitration award -- There is no rule or statute allowing for the filing of a petition to enforce an appraisal award -- Trial court erred in granting petition to confirm arbitration award -- Remand with directions that insured be given opportunity to amend its petition and file a complaint alleging a viable cause of action against insurer, which will relate back to the filing of petition to confirm

45 Fla. L. Weekly D1194a
297 So. 3d 570

Insurance -- Homeowners -- All risk policy -- Water damage -- Breach of contract claim filed against insurer alleging that pool's leaking drain pipe caused damages covered under policy -- Trial court erred in granting summary judgment in favor of insurer based on finding that policy's water damage exclusion barred insureds' claim -- Language of water damage exclusion provisions in policy plainly referred to naturally-flowing water or waterborne material existing outside of the plumbing system -- Because trial court did not rule on policy's “wear and tear” exclusion, insureds' argument that exclusion did not apply is not ripe for appellate review

45 Fla. L. Weekly D544a
297 So. 3d 558

NOT FINAL VERSION OF OPINION
Subsequent Changes at 45 Fla. L. Weekly D1194a

Insurance -- Homeowners -- All risks policy -- Water damage -- Breach of contract claim filed against insurer alleging that pool's leaking drain pipe caused damages covered under policy -- Trial court erred in granting summary judgment in favor of insurer based on finding that policy's water damage exclusion barred insureds' claim -- Language of water damage exclusion provisions in policy plainly referred to naturally-flowing water or liquids existing outside of the plumbing system -- Because trial court did not rule on policy's “wear and tear” exclusion, insureds' argument that exclusion did not apply is not ripe for appellate review

45 Fla. L. Weekly D1210a

Insurance -- Homeowners -- All risk policy -- Exclusions -- Claim for water damage -- Trial court properly entered summary for insurer on basis that claim for water damage was excluded by constant and repeated seepage or leakage exclusion in policy -- Insurer proffered evidence that damage likely occurred by slow leakage or seepage of water over period of weeks or months, and insureds failed to introduce sufficient evidence to show that the damage was instead caused by a one-time accidental release of water

45 Fla. L. Weekly D2118a

Insurance -- Appraisal -- Dispute whether title and registration transfer fees must be included in “actual cash value” paid for a vehicle declared a total loss is question of policy interpretation for court, not disputed issue of fact concerning “amount of loss” subject to appraisal -- Further, insurer failed to show that disagreement about precise amount of fees is appraisable factual issue, rather than pure legal question based upon statutory interpretation -- Trial court erred in entering an order compelling appraisal and dismissing insured's putative class action

45 Fla. L. Weekly D2237e

Insurance -- Homeowners -- All-risks policy -- Attorney's fees -- Sinkhole claims -- Florida Insurance Guaranty Association -- Trial court erred in awarding insured attorney's fees and costs in her sinkhole lawsuit under the confession of judgment doctrine based on FIGA's agreement to pay for aboveground, non-sinkhole damages pursuant to settlement agreement -- FIGA did not affirmatively deny a covered claim and was not responsible for attorney's fees where, although settlement agreement obligated FIGA to pay something to resolve lawsuit, FIGA never acknowledged that claim was covered under policy and it was undisputed, by virtue of settlement agreement, that there was no sinkhole activity

45 Fla. L. Weekly D1151b

Insurance -- Homeowners -- All risk policy -- Concurrent cause doctrine -- Where water damage to insured home was caused by water entering home through walls and windows, an excluded cause, and by water entering through door, a cause which was not excluded, trial court erred in granting directed verdict in favor of insured on basis of concurrent cause doctrine because policy contained an anti-concurrent cause provision -- Because evidence of water entering through the walls and windows was undisputed and expressly excluded by policy, entire loss is excluded from coverage due to anti-concurrent cause provision

32 Fla. L. Weekly D2212c

Insurance -- Homeowners -- Coverage -- Windstorm damage -- Error to enter summary judgment in favor of insurer in action brought by insured after insurer denied coverage for hurricane damage based on insurer's assertion that insured made material misrepresentation in her application for insurance when she indicated that her home was three miles from the “gulf,” although independent inspector reported that home was one and one-quarter miles from gulf -- Genuine issues of material fact existed as to actual distance to shoreline from insured's home; whether average person in insured's position should know that distance to shoreline must be measured “as the crow flies” or how insured should accomplish such a measurement, as opposed to relying on her experience traveling the shortest route or estimating the distance; whether independent insurance agent was insured's agent for purpose of insurer's notice of its intent to cancel wind damage coverage of homeowner's policy or if, in fact, insurer actually notified agent of the problem; and whether insurer waived defense to wind damage coverage by failing to give notice for over sixty days and waiting until after hurricane had passed to issue policy change endorsement -- Moreover, application was ambiguous in asking only “distance to gulf” without explaining meaning or purpose of question or specifying means by which applicant was to determine or estimate distance