Volume 5

5 Fla. L. Weekly Supp. 796a

Attorney's fees -- Interpleader -- Justiciable issues -- Attorney who prevailed in action against former client and against client's uninsured motorist insurer in which attorney sought to recover fees after insurer, who had been notified of attorney's charging lien, mailed to client a check payable to attorney and client; client wrongfully negotiated the joint check without paying attorney; and insurer recovered amount of check from bank, but failed to ensure that attorney received funds -- Interpleader -- Trial court erred in holding that insurer was not liable for prevailing party attorney's fees because insurer was innocent stakeholder -- Insurer did not stand in position of indifference as required for successful interpleader claim -- Attorney not entitled to recover fees from insurer pursuant to section 57.105 where there was not a complete absence of justiciable issues of law or fact -- Trial court erred in refusing to tax costs against insurer because its actions made suit necessary -- Client's intervening criminal act was not sufficient to relieve insurer of its duty to pay costs to prevailing party

5 Fla. L. Weekly Supp. 616a

Insurance -- Uninsured motorist -- Torts -- Automobile accident -- Plaintiff/insured injured in automobile accident with uninsured tortfeasor will not be required at trial to establish statutory thresholds in order to recover non-economic damages -- Although statute requires plaintiff to establish certain threshold requirements in order to obtain non-economic damages, these ``threshold defenses'' may not be raised because defendant tortfeasor had not obtained statutorily-mandated minimum insurance coverage -- Uninsured motorist carrier stands in shoes of tortfeasor when claim for UM coverage is being made and cannot avoid or modify application of threshold laws such that threshold defenses are applicable even though tortfeasor is not entitled to raise those defenses -- UM carrier's motion for partial summary judgment denied -- Plaintiff/insured who prevailed on coverage issue entitled to attorney's fees

5 Fla. L. Weekly Supp. 668b

Insurance -- Uninsured motorist -- Policy limits

5 Fla. L. Weekly Supp. 58a

Insurance -- Subrogation -- Evidence -- Expert witnesses -- Abuse of discretion to deny insurance company's request to qualify doctor as expert, or to use deposition at trial, where expert was only witness through which party could prove its request for damages resulting from injuries suffered by insured, and testimony was essential to case

5 Fla. L. Weekly Supp. 595c

Civil procedure -- Offer of judgment -- Insurance -- Insured's proposal for settlement, filed pursuant to rule 1.442 and section 768.79, is improper on its face -- Section 768.79, governing offers of judgment, does not apply to no-fault benefits claims -- Insured's motion to strike proposal for settlement granted

5 Fla. L. Weekly Supp. 134a

Insurance -- Personal injury protection -- Medical provider's action against insurer which refused to pay for medical diagnostic testing ordered by insured's treating physician on ground that testing was unnecessary, unreasonable, and not related to subject automobile accident -- Jury instructions -- No error in instructing jury that it had to determine whether diagnostic testing performed by plaintiff was medically necessary and related to accident and that plaintiff had burden of proof by greater weight of the evidence -- Evidence -- Expert -- No error in admitting testimony of expert who completed paper review of insured's medical treatment file but did not perform physical examination -- No error in admitting testimony of physician who performed physical exam six months after subject testing took place -- Whether or not doctors' testimony comported with requirements of statute relating to physical examination whenever mental or physical condition of insured is material to claim is not relevant where issue is admissibility of testimony at a trial in which medical necessity and relation of treatment to subject accident are at issue -- Any error that may have resulted from admitting testimony of expert who performed paper review would be harmless since examining physician concurred in conclusion that diagnostic testing ordered by treating physician was neither medically necessary nor reasonable -- No abuse of discretion in refusing to permit insurer to cross-examine insured's treating physician concerning financial motivations and potential bias -- Court could have reasonably found that prejudicial effect outweighed any probative value in that issue of medical necessity could have been obscured if physician's financial motives in ordering tests were addressed

5 Fla. L. Weekly Supp. 170a

Insurance -- Personal injury protection -- Insurer who has not obtained consent of insured must obtain report from independent medical examiner licensed under same chapter as insured's treating physician before refusing to pay treating physician on ground that bills were not necessary, related, or reasonable -- Report by neurologist not sufficient to support withdrawal of benefits for treatment by chiropractor -- Insurer who fails to comply with statute cannot raise common law defenses -- Insured's motion for directed verdict and/or motion for judgment notwithstanding verdict and/or motion for new trial is granted, and judgment will be entered in favor of insured for entire sum shown to be owing treating chiropractor, less statutory percentage, without regard to insuror's defenses of reasonableness or necessity of the amount

5 Fla. L. Weekly Supp. 660d

Insurance -- Personal injury protection -- Record, including a report of attending physician showing that insured was disabled by fractured femur for period of about five months after accident, is sufficient to raise genuine issue of material fact on entitlement to PIP benefits for loss of future earning capacity -- Error to enter summary judgment in favor of insurer

5 Fla. L. Weekly Supp. 656a

Insurance -- Personal injury protection -- Insurer acted improperly when it selectively applied medical bills to deductible in a manner which minimized insured's benefits -- Remanded for recalculation of deductible -- Amount of reduced bill negotiated by insurer should be used in recalculating deductible, not amount of original bill

5 Fla. L. Weekly Supp. 100a

Insurance -- Personal injury protection -- Coverage -- Loss of income as a result of time spent by PIP claimant seeking medical care is compensable under PIP coverage of insurance policy issued by insurer -- Motion for attorney's fees granted

5 Fla. L. Weekly Supp. 700b

Criminal law -- Search and seizure -- Warrantless entry -- Entry into private apartment was unlawful where officers, responding to a ``loud party'' call, failed to knock and announce their purpose, were responding to, at best, a misdemeanor complaint, and did not obtain proper consent prior to entering -- Officers responding to misdemeanor complaint may not lawfully enter private premises without a warrant even if the crime was committed in their presence -- Woman who motioned officer into apartment did not have common authority over the premises -- Officer's failure to make any inquiry as to woman's ability to consent to his entry rendered belief that she had such authority, unreasonable -- Where entry was unlawful, defendant's act in turning over contraband is deemed the result of the unlawful entry -- Defendant, when he turned over contraband to officer, was responding to show of authority, so that any consensual encounter ceased to exist -- All evidence seized as a result suppressed

5 Fla. L. Weekly Supp. 663a

Insurance -- Personal injury protection -- Small claims action against insurer by assignee of PIP benefits, claiming that insurer, who made payments on subsequently submitted bills until limits of PIP coverage had been exhausted, failed to timely pay assignee's PIP claim -- Summary judgment improper where material issues of fact remain as to whether assignee was formally notified that its claim for PIP benefits was denied, whether assignee was notified of reason for denial, whether insurer had reasonable proof of its nonresponsibility for bill, and whether the way assignee's bill was handled is standard procedure used by insurer and insurance industry

5 Fla. L. Weekly Supp. 845a

Declaratory judgments -- Insurance -- Personal injury protection -- Declaratory action is appropriate for resolving questions of law even if arbitration will try disputed facts -- Because issue raised by plaintiff concerning whether insurer can withdraw payment of PIP benefits based solely on paper review of medical records has already been settled in circuit, there is no disputed question of law and action for declaratory relief is inappropriate

5 Fla. L. Weekly Supp. 45a

Insurance -- Personal injury protection -- Error to find insured failed to comply with statute requiring that medical records be furnished to PIP insurer -- Requirement applies to health care providers, not to insureds receiving medical attention -- Insured fulfilled his duties under policy when he submitted proof of loss and authorized insurer to obtain medical reports and other pertinent records relating to incident giving rise to claim -- Insurer may not require insured to provide it with all supporting medical records before receiving PIP benefits -- Insurer must pay PIP benefits to claimant within thirty days of receiving notice of loss and amount of loss -- Insurer has burden of authenticating claim within thirty-day statutory time period -- Error to enter summary judgment in favor of insurer

5 Fla. L. Weekly Supp. 90a

Conflict of laws -- Insurance -- Lex loci contractus -- Personal injury protection -- Where insured was New York resident and insured vehicle was garaged in New York; insurer was New York corporation with its principal place of business in that state; application for insurance was submitted to insurer, the contract entered into, and the policy issued in New York; and the policy specifically referred to application of New York law, New York law applied to Florida assignee's claim against insurer for costs of treating injuries sustained by insured in Florida accident

5 Fla. L. Weekly Supp. 512a

Insurance -- Personal injury protection -- Where medical provider agreed to accept from insurer an amount less than 80% of the original bill in full satisfaction of insurerşs portion of bill, insured could be held responsible to medical provider for only 20% of the adjusted bill

5 Fla. L. Weekly Supp. 28a

Insurance -- Personal injury protection -- Liens -- Hospitals -- For purposes of law authorizing hospital liens for entities operating public hospitals in Palm Beach County, public hospital is an institution owned by public and devoted chiefly to public uses and purposes -- Insurer erred by insisting that hospital had lien and that lien should be protected by tendering check for remaining PIP benefits payable to both insured and hospital -- Question certified: Does a hospital operating in Palm Beach County need to be a ``public hospital'' in order to claim under or be entitled to a lien under Chapter 57-1688, Laws of Florida, 1957; and if so, what is a ``public hospital'' under the law? -- Court retains jurisdiction to determine what effect insured's assignment to hospital has on insurer's obligation to pay lost wage benefits to plaintiff

5 Fla. L. Weekly Supp. 126a

Insurance -- Personal injury protection -- Assignment -- Plaintiff's claim for wage loss for two days preceding her admission to hospital not barred by plaintiff's assignment of PIP benefits to hospital -- Entitlement to wage loss benefits accrued on the dates loss was sustained, which was prior to assignment of benefits, and insurer should have prioritized wage loss claim before payment of assignee's bill

5 Fla. L. Weekly Supp. 841a

Insurance -- Authorization to pay without an assignment of benefits executed by insured and insured's providers does not constitute a valid assignment -- Insured retains standing to sue insurer

5 Fla. L. Weekly Supp. 484a

Insurance -- Personal injury protection -- Insured's action against insurer to recover unpaid PIP benefits -- Insured lacks standing to sue with respect to those benefits which were assigned to medical providers, and insurer's motion to dismiss those claims is granted -- Insured has standing to bring action related to claims which arose subsequent to date assignment was revoked -- Insurer's motion to dismiss claims relating to certain medical provider denied because court cannot determine if document titled ``Authorization to Pay Physician'' is in fact an assignment of benefits -- Insurer may conduct limited discovery relating to authorization to pay without waiving right to compel arbitration

5 Fla. L. Weekly Supp. 173b

Insurance -- Personal injury protection -- Insurer complied with statutory requirements related to obtaining report from similar physician before withdrawing payment of treating physician -- Insured not precluded from bringing suit against insurer by assignment of benefits where insured remained contractually obligated to medical providers by way of acceptance of financial responsibility and guarantee of payment -- Arbitration -- Insurer waived right to arbitrate by actively participating in litigation

5 Fla. L. Weekly Supp. 425b

Insurance -- Personal injury protection -- No error in granting summary judgment entitling insured to PIP benefits from insurer

5 Fla. L. Weekly Supp. 208b

Insurance -- Personal injury protection -- Order on rehearing affirming summary judgment in favor of insurer but dismissing lawsuit "without prejudice so as to permit insured to comply with his obligations" unclear -- Summary judgment reversed with instructions that complaint be reinstated and insured be ordered to submit to sworn statement pursuant to PIP contract -- Case to be abated for 30 days so that parties may comply with mandate

5 Fla. L. Weekly Supp. 489a

Insurance -- Personal injury protection -- Miscalculation of wage loss claim -- Failure to pay medical bills within thirty days -- Interest -- Insured correctly contended that wage benefit calculation should have included amount earned for overtime or extra work -- Insured clearly made claim for regular gross income as well as other earning capacity composed of overtime and extra hours by submitting wage and salary verification form with those figures provided, and insurer had affirmative duty to act if it had any question as to validity of overtime and extra hours -- Failure to include overtime and extra hours in wage benefit calculations amounted to denial of that part of claim -- Insurer liable for difference between wage benefit calculated at higher amount and wage benefit it paid insured, as well as interest on that amount after it became overdue -- Medical service benefits -- Mail properly addressed, stamped and mailed is presumed to have been received by addressee, and proof of general office practice satisfies requirement of showing due mailing -- Insured established prima facie case that insurer received by mail each of disputed medical bills based on general office practices and various cross checks via office procedures, and insurer failed to present sufficient evidence to rebut presumption that it received bills -- Attending physician's report constituted reasonable notice of loss within meaning of statute -- Insured entitled to interest on late paid claims

5 Fla. L. Weekly Supp. 632a

Insurance -- Personal injury protection -- Interest -- Insurer, who did not make payment within 30 days from receipt of bill for treatment and offered no evidence of properly addressed post-paid envelope reflecting payment within 30 days, failed to properly pay interest on overdue benefits -- Interest on overdue payments must be calculated from date insurer received notice of bill through date doctor received payment -- Statute does not allow thirty day grace period such that interest would not commence until 31st day after receipt of bill

5 Fla. L. Weekly Supp. 337a

Insurance -- Personal injury protection -- Independent medical examination -- Insurer may refuse to pay PIP benefits for claims that it had received but not yet paid if an insured unreasonably fails to attend IME scheduled within 30 days after claim is submitted -- Insurer cannot extend statutory period by scheduling IME after thirty day period has expired -- Where insurer failed to schedule IME until after respective 30-day period expired for first three bills submitted by insured, summary judgment granted as to these claims, as it was impossible for insured to unreasonably refuse to attend scheduled IME -- Insurer acted within parameters of statute by refusing to pay those bills received after scheduled IME -- Summary judgment denied as to remaining claims where insurer requested IME within 30 days of receipt of each of claims

5 Fla. L. Weekly Supp. 805b

Insurance -- Error to grant summary judgment in favor of insurer who denied benefits because of insured's failure to attend independent medical examination where there existed genuine issues of material fact

5 Fla. L. Weekly Supp. 335a

Insurance -- Personal injury protection -- Independent medical examination -- Motion for summary judgment based on insured's failure to attend scheduled IMEs granted -- Where no undue inconvenience was raised by facts of record, insurer is entitled to judgment as matter of law, because unreasonable refusal to submit to IME relieves insurer from liability for subsequent PIP benefits -- Insurer was not limited to having IME conducted within municipality where insured was receiving treatment -- Affidavit, listing reasons why it would have been inconvenient for insured to have attended IME in location selected by insurer, fails to raise factual dispute that decision not to attend was made because location created hardship -- Insured's earlier deposition testimony that had he known insurer was seeking to have him submit to IME, he would have attended, with correspondence communicating refusal to attend second IME, show without dispute that insured's decision not to attend was not made because location created undue inconvenience -- Because insured's refusal to attend was not predicated on location of scheduled IME, and no other reason was advanced by insured, insured failed to assert any material issues of fact precluding summary judgment

5 Fla. L. Weekly Supp. 374a

Contracts -- Insurance -- Workers' compensation -- Professional athletes -- Insurer's action against employer who failed or refused to tender payment of premiums due and corporation which is allegedly continuation of and successor to employer and liable for employer's debts -- Allegations that employer agreed to pay premiums when due, but failed to do so, sufficient to state cause of action for breach of contract -- Employer's claim that breach of contract claims should be dismissed because insurer failed to timely conduct audits and adjust premiums due or, alternatively that insurer is estopped from seeking increased premiums under rules and regulations of National Council on Compensation Insurance not properly resolved on motion to dismiss -- Allegations that insurer was entitled to audit employer's records to calculate and adjust amount of earned premiums due, that insurer did conduct such an audit and calculated earned premiums due to be significantly in excess of estimated annual premium paid by employer were sufficient to state cause of action for breach of contract -- Motion to dismiss breach of contract claims denied -- Count alleging that insurer was entitled to indemnification because it provided coverage and paid claims on behalf of players who were not reported on quarterly earnings reports filed by employer with Division of Unemployment Compensation does not state cause of action -- Professional athletes not entitled to workers' compensation coverage unless injury occurred in activity which was imposed upon athlete by employer and was of substantial benefit to employer, but was not associated with playing professional sport -- Because under facts alleged, players were not entitled to workers' compensation as matter of law, plaintiff was not legally entitled to indemnification for benefits obtained -- Motion to dismiss count seeking indemnification granted without prejudice to plaintiff's amending complaint to allege facts that would establish that exclusion was not applicable -- Corporations -- Allegations regarding successor corporation's liability as continuation and successor to administratively dissolved employer corporation sufficient to withstand motion to dismiss -- Provisions of asset purchase agreement are outside four corners of complaint and cannot be considered in ruling on motion to dismiss -- Successor corporation's motion to strike amended complaint as sham denied without prejudice to corporation's renewing motion if it can demonstrate that allegations are patently false -- Attorney's fees -- Lawsuit not so completely devoid of justiciable issue of fact or law as to warrant award of attorney's fees to defendants -- Successor corporation's motion for summary judgment is premature where discovery is still in progress and pleadings raise genuine issues of material fact -- Default -- Motion for entry of default against employer corporation on ground that corporation is dissolved and therefore not legally permitted to defend action against it denied in view of corporation's submission of Certificate of Active Status from Department of State -- Amended complaint -- Plaintiff was not required to obtain leave of court before filing second amended complaint where no responsive pleadings had been filed -- Motions to dismiss, for summary judgment, and for attorney's fees do not constitute responsive pleadings -- Motion to dismiss second amended complaint on ground that plaintiff failed to obtain leave of court prior to filing amendment is denied

5 Fla. L. Weekly Supp. 248a

Insurance -- Third-party actions -- Indemnity -- Insured/third-party plaintiff's complaint alleging that insurer/third-party defendant issued policy of insurance to insured insuring property, that insured was covered for damages caused by sinkhole for insured property, that plaintiffs filed action against insured alleging a defect in property sold to plaintiffs by insured causing damages as a result of sinkhole, that prior to transferring property to plaintiffs insured filed claim against insurer for sinkhole damage, that insurer denied claim, and that in event plaintiffs prevail in action for damages as result of sinkhole insurer is liable to insured for amount of damages awarded to plaintiffs as result of sinkhole -- Complaint states cause of action for indemnity -- Even if third-party complaint is vague or ambiguous with regard to theory under which third-party defendant may be held liable, such defects are not grounds for dismissal for failure to state a cause of action -- Motion to dismiss third-party complaint denied where third-party complaint contains sufficient allegation of ultimate fact to state a cause of action affording relief, if ultimately proved

5 Fla. L. Weekly Supp. 391a

Insurance -- Uninsured motorist -- Exclusions -- Plaintiff, who was struck by vehicle separately owned by her husband and separately insured, seeking recovery for personal injury resulting from accident under UM coverage of her policy, because she cannot recover damages under her husband's policy due to family exclusion contained therein -- Genuine issue of material fact exists as to applicability of policy provision excluding from the definition of uninsured motor vehicle a vehicle ``furnished for regular use of you, your spouse, or any relative'' where it was unclear whether vehicle was ``furnished'' to husband, solely owned by husband, or furnished to plaintiff and/or other family members on occasion -- Because provision merely excludes vehicles ``furnished'' for regular use of insured or members of her family from uninsured motorist coverage, and not vehicles ``owned'' by such persons, questions of whether vehicle driven by husband was owned solely by him and whether vehicle was perhaps also ``furnished'' to plaintiff and/or other members of her family on occasion, thereby precluding coverage, become relevant and material -- Plaintiff's theory that husband was uninsured or underinsured by having policy of insurance with family exclusion to coverage for personal and/or bodily injury has merit -- Although husband's vehicle cannot be considered both insured and uninsured in context of his policy, because two separate policies are involved, husband's vehicle can be considered insured vehicle under his policy and uninsured vehicle under plaintiff's policy -- Statutory requirements -- Genuine issues of fact exist regarding whether insurer complied with requirements of section 627.727(9)(d), which requires insurance carriers to provide named insured with notice of limitations imposed by exclusionary provision and to obtain knowing acceptance of limited coverage -- Motion for summary judgment denied

5 Fla. L. Weekly Supp. 311a

Insurance -- Title -- Exclusions -- Motion for summary judgment in action alleging insurer breached title insurance policy by failing to indemnify insureds for losses and damages sustained as result of encroachment of brick wall bordering certain realty purchased by insureds granted -- No genuine issues of material fact preclude entry of summary judgment in favor of insurer where encumbrance forming basis of insureds' action was expressly excluded from coverage under policy -- Policy expressly excepted from coverage Declaration of Covenants and easements created thereby -- Because brick wall was built on easement created pursuant to Declaration of Covenants, brick wall is expressly excluded and not covered by insurance policy

5 Fla. L. Weekly Supp. 173c

Insurance -- Personal injury protection -- Failure to pay benefits within thirty days based on late notice, intentional act, and lack of cooperation -- Before payment may be withheld, insurer must obtain opinion from independent medical examiner that treatment was not reasonable, related to covered event, or necessary -- Affidavit of independent medical examiner submitted by insurer cannot be used in instant case to support failure to pay past benefits where IME did not find that past treatment was unreasonable, unrelated, or unnecessary -- Opinion of IME who was licensed chiropractor cannot be used to deny payment of medical doctors who were licensed under different chapter -- IME's opinion not basis for denying payment for treatment provided after date of independent medical examination where court could not infer that it was IME's opinion that insured would never need treatment in the future under any circumstances, there was no evidence that IME was even aware of facts relating to any future treatment, and court would have to infer that no change had taken place that would have affected IME's opinion -- Policy of insurance at issue was in record -- Exclusions -- Intentional injury or injury while committing felony -- Record contains no evidence to support insurer's contention that insured was injured while committing a felony or that insured intentionally caused another vehicle to rear-end her vehicle in order to cause injury to herself -- Notice -- In view of uncontroverted facts sworn to by insured that she gave oral notice of accident to agent within two or three days of accident and undisputed evidence that agent received written notice no later than twenty-five days after accident, insurer's claim that it was materially prejudiced by late notice is rejected -- Assistance and cooperation -- Nothing in record refutes insured's statements that she fully cooperated with insurer in its investigation of claim -- Insured's motion for summary judgment granted

5 Fla. L. Weekly Supp. 746a

Insurance -- Commercial liability -- Garage operations -- Exclusions -- Accident in which automobile struck stationary tractor-trailer rig, the tractor of which was owned by insured and leased to third party -- Policy expressly excluded coverage for autos leased to third parties unless the auto was leased to one of insured's customers while the customer's auto was left with insured for service or repair, a circumstance not present in instant case -- Policy also excluded from definition of covered auto any auto used to carry property or persons for hire and any auto furnished to someone for regular use who was not specifically described in garage coverage form as required by terms of policy -- Notice to insurer -- Insured failed to comply with conditions precedent to coverage where insured failed to provide prompt notice of accident, claim, suit or loss -- Insured did not present competent proof which would rebut presumption of prejudice arising from fact that insurer did not receive notice until more than two years after accident

5 Fla. L. Weekly Supp. 822a

Injunctions -- Insurance -- Health maintenance organizations -- Coverage -- Exclusions -- Experimental treatment -- Hyperbaric oxygen therapy for condition described as hemorrhagic cystitis or radiation enteritis -- Under one reasonable interpretation of contract at issue, Hayes Medical Technology Directory cannot be source of reliable evidence with respect to whether medical treatment sought should be considered experimental, and reliance on the Directory does not amount to a justifiable basis for claiming exclusion to coverage -- Hayes Directory is not a published report by U.S. Department of Health and Human Services, U.S. Public Health Sources, National Institute of Health or U.S. Office of Technology Assessment -- Insurer enjoined from denying coverage for treatment -- Bond set at $1000

5 Fla. L. Weekly Supp. 57a

Insurance -- Personal injury protection -- Discovery -- Opposing medical expert -- Request for computer printouts relating to amounts paid over four-year period to physician who assisted in evaluation of PIP claim was unduly burdensome -- Request for 1099 forms for three years not unduly burdensome

5 Fla. L. Weekly Supp. 783a

Insurance -- Personal injury protection -- Discovery -- Action for nonpayment of insurance benefits filed by insured prior to end of insurer's 30-day review period -- Documents requested by insured appear to be calculated to lead to discovery of admissible evidence on issue of whether insurer ever intended to pay benefits to insured and are relevant to theory of anticipatory repudiation -- Evidence of routine practice would be admissible to bolster claim of anticipatory repudiation, if plaintiff were able to show that insurer routinely denied payment of insurance benefits within statutory 30-day review period, and that insurer routinely refused to reconsider its position during same 30-day period -- Defendant not required to produce requested documents because request is unduly burdensome, plaintiff failed to make showing of necessity sufficient to overcome claim of work product privilege, and plaintiff would not be entitled to production of requested documents if he had properly waited until end of 30-day review period to file this action

5 Fla. L. Weekly Supp. 407b

Insurance -- Personal injury protection -- Discovery -- Attorney-client privilege -- Work product -- Trade secrets -- Plaintiffs seeking discovery of portions of PIP file not yet produced by defendants and information about computer system known as Medical Bill Review System which is used to review claims submitted by policy holders and contains information and historical data regarding charges for treatment -- Work product -- Blanket statement that all portions of PIP file not previously produced are work product not sufficient -- Court will conduct in camera inspection of file to determine if all or part of it is work product -- With respect to training and course materials for MBRS, MBRS manual, MBRS Desk Reference Guide, and copies of MBRS screens, defendant failed to meet burden of establishing that materials were prepared in anticipation of litigation and thus encompassed by work product privilege -- Attorney-client privilege -- Defendant did not meet burden of showing entitlement to attorney-client privilege with respect to PIP file where defendant made only general objection without specifically identifying privileged portions of file and explaining why privilege applies -- Trade secrets -- MBRS software appears to fit definition of trade secret or confidential commercial information with exception that defendant made no allegation that company has taken steps to maintain its secrecy -- Even if court determined that some or all of material constituted trade secrets, court may order disclosure if party seeking disclosure shows reasonable necessity for material -- Relevancy -- Defendant's request that discovery be limited to information regarding specific reason upon which denial of benefit was based is reasonable -- If defendant does not plan on relying on MBRS, its compilation of data or their claims process procedures as part of its proof that denial of plaintiffs' PIP claims was reasonable, requested information would not lead to relevant evidence -- If defendant plans on using data from computer system as proof, it must be presented independently from the system itself -- If defendant plans on relying on computer system in any manner to prove that payment denial was reasonable, plaintiffs' discovery requests would become very relevant -- Defendants' objections based on relevancy to disclosure of computer system and programs known as Medical Bill Review System are sustained without prejudice to plaintiffs' rights to obtain information in the event defendant seeks to rely on it or utilize it in any way to sustain its position at trial

5 Fla. L. Weekly Supp. 337b Insurance -- Contracts -- Shipping -- Limitation of liability -- Motion for summary judgment by express air carrier in action by insurer, as subrogee of company that shipped package allegedly containing jewelry valued at $29,000, where shipping contract contained $100 liability limit if no value was declared -- Liability of federally certificated air carriers for loss attendant to goods in transit is controlled by federal law -- Where insured company did not declare value on shipment, and contract gave insured a fair opportunity to chose between higher or lower liability by paying a greater or lesser shipping charge, it cannot recover more than $100 -- Plaintiff, as subrogee of insured's contractual rights, cannot recover more than $100 -- No merit to claim that action is governed by Carmack Amendment to Interstate Commerce Act, where unambiguous language of statute and legislative history make clear that Interstate Commerce Commission does not have jurisdiction over transportation by motor vehicle where that transportation is preceded or followed by transportation by an air carrier -- Motion for summary judgment granted

5 Fla. L. Weekly Supp. 164a

Insurance -- Insured's action against insurer alleging bad faith in connection with settlement negotiations -- Requirement that underlying contractual claims against insurer be resolved prior to proceeding with bad faith action was satisfied when partial settlement of those claims was reached as result of mediation -- Motion to abate on ground that contractual claims had not been resolved denied -- Complaint dismissed without prejudice where insured failed to allege that there had been a determination of damages

5 Fla. L. Weekly Supp. 313a

Insurance -- Automobile liability -- Coverage -- Rental car company contending that automobile accident involving car rented by insured and driven by authorized party at time of accident triggered liability coverage of insured's policy, and that therefore insurer owes duty to indemnify rental car company -- Because liability coverage provisions of insurance policy, which extend coverage to use by insured of newly acquired vehicle, temporary substitute vehicle or non-owned car, were not triggered, duty to indemnify rental car company was not triggered -- Facts in record preclude characterization of rental car as newly acquired vehicle, temporary substituted vehicle, or non-owned car -- Where policy defines non-owned car as car not leased in name of insured or member of household, argument that there is difference between leased vehicle and rented vehicle is rejected -- Court will not accord varying definitions to leased vehicle and rented vehicle in absence of legal authority to contrary -- Because rental vehicle was leased by named insured, rental car is not covered by policy -- Rented vehicle does not fall within policy definitions of what constitutes non-owned car

5 Fla. L. Weekly Supp. 551a

Insurance -- Automobile -- Coverage -- Where insured purchased vehicle, obtained coverage under policy of insurance, traded that vehicle for second vehicle, was involved in accident in second vehicle, and filed claim form within 30 days of becoming owner of vehicle, filing of claim for benefits relating to second vehicle served as constructive notice and a request to insure second vehicle, even though there was never direct request by insured that second vehicle be substituted for traded vehicle

5 Fla. L. Weekly Supp. 50b

Insurance -- Automobile -- Coverage -- Claim for rental car cost reimbursement -- Summary judgment improper where plaintiff's affidavit filed in opposition to motion raised disputed issues of material fact, and plaintiffs alleged certain paperwork provided to them by insurer and the policy itself suggested or could be interpreted to provide coverage for rental car cost reimbursement

5 Fla. L. Weekly Supp. 212b

Insurance -- Automobile -- Personal injury protection -- Error to grant summary judgment in favor of insurer on ground that vehicle involved in accident was not covered under terms of policy in effect at time of accident -- Plaintiff's affidavit that, prior to accident, he informed authorized agent of insurer of purchase of automobile and was assured that insurance coverage on separate vehicle would be transferred immediately and that no further action need be taken, raised material issue of fact as to whether there was contract of insurance covering vehicle at time of accident

5 Fla. L. Weekly Supp. 253a

Declaratory judgments -- Insurance -- Plaintiff seeking determination of whether insurer's violation of certain administrative rules also constitutes a violation of section 627.7282 relating to notice of additional premiums and cancellation for nonpayment; and further seeking determination as to whether statute provides any remedy to insured for wrongful acts of insurer -- Declaratory judgment is available when bona fide doubt exists as to right of parties under statute or instrument -- Plaintiff properly pleaded ambiguity in statute -- Defendant's argument that statute does not provide plaintiff with civil remedy itself reveals existence of bona fide dispute and existence of doubt as to plaintiff's rights under statute -- Money had and received -- Plaintiff's allegation that defendant charged plaintiff unlawful additional premiums which defendant has retained sufficient to state claim for equitable relief -- Contracts -- Breach -- While mere legal conclusions are not sufficient unless substantiated by allegations of ultimate fact, allegation that insurance contract incorporated Florida statutes was necessary to make plaintiff's complaint intelligible -- Whether contract does incorporate statute and administrative rules not properly determined at this stage of proceedings -- Motion to dismiss denied

5 Fla. L. Weekly Supp. 208c

Insurance -- Automobile -- Collision -- Cancellation of policy -- Failure to pay increased premium imposed because of misrepresentation on application -- Insurer's proof of mailing of notice of cancellation to insured prevails as matter of law over insured's denial as to its receipt -- Summary judgment properly entered in favor of insurer in insured's action to recover for damage to vehicle

5 Fla. L. Weekly Supp. 155a

Insurance -- Automobile -- Cancellation of policy -- Unjust enrichment -- Action against insurer by insured whose policy was cancelled after he failed to respond to notice of additional premium due -- Counts seeking declaratory relief dismissed on ground that there are no future rights to be determined between the parties -- Claim for unjust enrichment not available where there is adequate remedy at law -- Contract between parties, as well as applicable statutory and administrative code provisions give plaintiff an adequate legal remedy -- Underwriting delays -- Insurer was in compliance with time requirements of administrative code where it completed underwriting and made final determination of correct premium within 60 days after effectuation of coverage -- Notice of correction sent to insured the day following final determination of correct premium satisfies ``immediately'' notice requirement of statute -- Excessive cancellation intervals -- Letter sent to insured did not comply with requirements of statute where letter stated that if insured elected not to respond, notice of cancellation would be sent to policyholder at later date, rather than specifying cancellation date -- Statute clearly requires that cancellation date be specified in option letter -- Absence of prejudice is not defense to strict compliance with statutory notice requirement -- Motion to dismiss claim alleging excessive cancellation interval denied

5 Fla. L. Weekly Supp. 522b

Attorney's fees -- Insurance -- Insured prevailing in action against insurer -- Error to include in award the time spent litigating applicability of contingency risk multiplier after entitlement to reasonable fee had already been determined

5 Fla. L. Weekly Supp. 514c

Insurance -- Personal injury protection -- Attorney's fees -- Insured/passenger who filed suit against insurer for failure to pay claim within 30 days was entitled to attorney's fees where insurer paid claim after suit was filed -- Fact that complaint inadvertently listed driver's policy number rather than insured's policy number does not require different result where there was no confusion between the parties as to which policy was subject of suit

5 Fla. L. Weekly Supp. 778a

Attorney's fees -- Insurance -- Personal injury protection -- Attorney's fees and costs awarded to insured who prevailed in action against insurer for interest and wage loss benefits

5 Fla. L. Weekly Supp. 733a

Insurance -- Personal injury protection -- No error in excluding from evidence insured's refusal to submit to independent medical examination where claim against insurer was for medical bills submitted prior to IME request, and policy did not make IME a condition precedent to coverage, but provided only that refusal of insured to submit to IME would eliminate insurer's liability for subsequent PIP benefits -- No error in denying insurer's motion for directed verdict -- Insured's failure to attend IME scheduled well after he had submitted his application for PIP benefits and after his treatments had terminated was not, as matter of law, so unreasonable as to absolve insurer of all liability for PIP benefits -- Attorney's fees award supported by sufficient competent evidence

5 Fla. L. Weekly Supp. 619a

Insurance -- Personal injury protection -- Workers' compensation -- Third party actions -- Attorney's fees -- Insured who was injured in automobile accident during course and scope of her employment and who settled bodily injury claim against tortfeasor is entitled to reimbursement from PIP carrier for amounts expended to resolve workers' compensation lien -- Pro rata share of attorney's fees and costs is calculated by reference to total amount of attorney's fees and costs expended by insured, not by reference to total amount of benefits paid by workers' compensation carrier

5 Fla. L. Weekly Supp. 846a

Attorney's fees -- Offer of judgment -- Insurance -- Personal injury protection -- Insurer can make offer of judgment and recover attorney's fees against an insured in a first-party PIP suit -- Question certified

5 Fla. L. Weekly Supp. 557a

Insurance -- Personal injury protection -- Collateral source rule -- Attorney's fees -- Offers of judgment -- Action concerning personal injury protection benefits, where PIP insurer claims that bills of doctors were paid by health insurance and that plaintiff is not entitled to double recovery -- Statutory collateral source rule has never applied to PIP actions, and no statute allows PIP carrier to avoid obligation to provide primary coverage by relying upon payment from a collateral source -- Defendant's motion for partial summary judgment denied -- Issues of fact remain as to necessity of medical bills at issue, and insurer's failure to pay medical bills within thirty days of receipt does not automatically waive insurer's right to raise defenses in action for PIP benefits -- Plaintiff's motion for partial summary judgment denied -- Despite public policy of discouraging insurers from contesting valid claims, and to reimburse successful policy holders forced to sue to enforce policies, legislature did not carve out exception to offer of judgment statute to exclude cases between insured and insurer -- Motion to strike defendant's offer of judgment denied

5 Fla. L. Weekly Supp. 303a

Attorney's fees -- Offer of judgment -- Insurance -- Motion to strike insurer's offer of judgment granted -- Section 768.79 is in direct conflict with section 672.428, which offers attorney's fees only to successful insured or beneficiary

5 Fla. L. Weekly Supp. 825b

Attorney's fees -- Insurance -- Liability -- Insured entitled to recover reasonable attorney's fees incurred in defense of litigation arising from its installation of pipeline and for amounts it paid in settlement of claims arising out of pipeline installation -- Insured entitled to prejudgment interest from actual dates of payment rather than from date predecessor judge entered partial summary judgment with respect to insured's entitlement to fees and costs -- Insured entitled to recover policy limits for personal injury liability and property damage, with credit for amount already paid -- Insured not entitled to completed operations coverage in view of predecessor judge's ruling that insured failed to present evidence sufficient to prove an ``occurrence'' within completed operations policy period as that term is defined within policy

5 Fla. L. Weekly Supp. 523a

Insurance -- Personal injury protection -- Failure to timely notify insurer of accident -- Presumption of prejudice -- No error in allowing jury to decide whether insurer was prejudiced by insured's late notice of accident -- New trial -- Where reasonable minds could have differed as to whether insured's delay in notifying insurer of accident visited prejudice upon insurer, new trial not warranted -- Jury instructions -- Contention that combination of standard and nonstandard jury instructions on damages was improper must fail -- Where nonstandard jury instructions merely explained how PIP benefits were to be calculated, and complaint alleged that damages were at least $2500 but not more than $5000, award of $3000 does not demonstrate either prejudicial error, or that such instructions were confusing, inconsistent, or repetitive -- Attorney's fees -- In PIP case that did not break new ground, $45,348.00 in attorney's fees does not bear reasonable relationship to recovery of $3000 -- New trial on award of attorney's fees required

5 Fla. L. Weekly Supp. 142b

Attorney's fees -- Insurance -- Personal injury protection -- Insured who prevailed in action against insurer not entitled to attorney's fees where insured failed to properly plead entitlement to fees -- Pleading which failed to state specific authority for fees not sufficient -- Even if insured's references to Motor Vehicle No-Fault Law satisfied requirement that party from whom fees are sought have some form of notice, record does not reveal any evidence that insurer undertook any affirmative conduct or committed any specific act which could have led insured to believe that there was no disputed issue as to her entitlement to attorney's fees -- Insurer's failure to file motion for more definite statement in response to general prayer for fees or its failure to file motion to strike fee claim did not amount to acquiescence or recognition of claim

5 Fla. L. Weekly Supp. 735b

Attorney's fees -- Insurance -- Health maintenance organizations -- Insured not entitled to recover attorney's fees under statute entitling prevailing party to fees and costs in action to enforce terms and conditions of health maintenance contract where pathologist whose bill was not immediately paid did not submit a proper claim until after suit was filed, and HMO promptly paid claim when it learned that preparer of original claim form had misdesignated pathologist's bill as ``private pay'' rather than ``HMO''

5 Fla. L. Weekly Supp. 576a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 6 Fla. L. Weekly Supp. 399a

Insurance -- Prejudgment interest -- Error to award prejudgment interest on attorney's fee awards against Florida Insurance Guaranty Association

5 Fla. L. Weekly Supp. 691b

Attorney's fees -- Insurance -- Personal injury protection -- Civil procedure -- Discovery -- Motion to compel answers to plaintiff's attorney's fees interrogatories, response to request for admissions, and production of documents granted -- Motion to compel production of defendant's attorney for deposition granted -- Motion to strike defendant's proposal for settlement of attorney's fees and costs granted -- Motion to strike plaintiff's proposal for settlement of attorney's fees and costs denied

5 Fla. L. Weekly Supp. 645a

Insurance -- Attorney's fees -- Appellate -- Plaintiff not entitled to award of attorney's fees pursuant to § 627.428, Florida Statutes, where there has been no determination that she is entitled to payment of disputed medical expenses, judgment has not been entered, and there has been no recovery -- Plaintiff's request for costs is premature

5 Fla. L. Weekly Supp. 551b

Attorney's fees -- Insurance -- Arbitration -- Assignment of benefits to medical care provider was irrevocable once arbitration was demanded -- Insurer owed provider payment at time provider demanded arbitration, and insured could not defeat provider's request for payment by apportioning benefits -- Demand for arbitration followed by payment is equivalent of filing lawsuit and being paid prior to judgment -- Arbitration statute awarding attorney's fees to prevailing party supports decision to award attorney's fees in this case -- Counsel for plaintiff/medical care provider entitled to fees and costs

5 Fla. L. Weekly Supp. 843a

Insurance -- Personal injury protection -- Assignment -- Waiver -- Medical provider, through its conduct, allowed insured to believe that provider intended to collect bill directly from insured and that insured could sue insurer directly, and, accordingly, waived its right to enforce assignment of benefits signed by insured -- Finding of waiver further supported by fact that provider accepted tender of payment from insured as full payment of all amounts due without objection, knowing that funds had come from insurer -- Provider prohibited from suing insurer separately for same debt -- As separate ground for court's ruling, actions of provider constituted consent to assignor to institute suit against insurer

5 Fla. L. Weekly Supp. 564a

Insurance -- Personal injury protection -- Arbitration -- Assignment of benefits to medical provider -- Motion to dismiss and/or compel arbitration arising out of insured's action against insurer to enforce terms of PIP policy after insurer refused to pay certain amounts to health care provider -- Section 627.736(5), which provides that upon accepting assignment of insured's right to have benefits paid directly to insured, medical providers must resolve claims disputes with insurance company through binding arbitration, requires only assignment of benefits, not all contractual rights -- Benefits, in context of statute, clearly refers to payments due insured from insurer pursuant to policy -- Claims dispute, as contemplated by statute, refers to situation where insurance company has agreed that treatment given by medical provider is covered under policy, but insurer disputes dollar amount of charges as being unreasonable -- If insured executes an assignment of benefits so that medical provider is paid directly for treatment for bodily injury covered by PIP insurance, and insurer disputes reasonableness of amount that medical provider has charged, this would constitute "claims dispute," and pursuant to section 627.736(5) must be decided by binding arbitration between insurance company and medical provider -- Where insurer refuses to pay any of medical expenses incurred, based upon belief that treatment is not covered under policy, insured must be allowed to assert any contractual rights insured may have pursuant to policy -- Insurer's motion to dismiss and/or compel arbitration denied

5 Fla. L. Weekly Supp. 696a

Insurance -- Personal injury protection -- Attorney's fees -- Assignment -- Where medical provider had valid assignment of benefits from insured, informed insurer that assignment had been accepted at time claim was submitted, and provided its name and address, payment attempted by mail addressed to insured's counsel is ineffective until that payment is actually delivered to medical provider -- Because such delivery actually occurred long after suit commenced, medical provider entitled to recover reasonable attorney's fees and costs -- Section 627.736(5) that permits payment directly to provider if insured endorses claim form does not negate common law of assignments, which provides that once assignee notifies debtor that assignment has occurred, payment thereafter to assignor will not relieve debtor of liability -- There is no common law or statutory law that assignment documents be provided to debtor for examination before liability attaches

5 Fla. L. Weekly Supp. 831a

Insurance -- Personal injury protection -- Insured's action against insurer for unpaid PIP benefits -- Assignment -- Assignment which was clear and unconditional and assignment under which insured remained responsible to provider only if he provides misinformation were valid assignments of benefits -- Authorization to pay, form whereby provider merely agreed to wait for payment, and assignment permitting provider to sue insured in the event provider does not collect from insurance company but foreclosing insured from filing action if insurer failed to pay all outstanding bills are not valid assignments of benefits -- Insurer's motion for partial summary judgment is granted as it relates to those benefits which were assigned by insured to medical providers

5 Fla. L. Weekly Supp. 506b

Insurance -- Insured's action against insurer -- Trial court properly denied motion for summary judgment in which insurer contended that insured had assigned right to receive benefits to medical provider where document assigning benefits did not indicate insurance company or policy from which benefits were assigned

5 Fla. L. Weekly Supp. 201b

Insurance -- Personal injury protection -- Error to overrule objection to closing argument in which insurer's attorney told jury it was their task to decide whether action involved medical claim or claim manufactured by a lawyer -- Evidence -- Routine practice -- Error to permit insurer's claims specialist to testify over objection that it was insurer's philosophy generally to pay medical bills in PIP cases and that, in fact, the company paid 99% of all such claims -- Evidence was irrelevant to issue of whether medical bills in instant case should have been paid -- Prejudicial value was great when coupled with accusation that counsel manufactured the case -- New trial required

5 Fla. L. Weekly Supp. 483a

Attorney's fees -- Insurance -- Personal injury protection -- Arbitration -- Defendant was prevailing party and was entitled to attorney's fees where plaintiff withdrew from court-ordered arbitration

5 Fla. L. Weekly Supp. 413a

Arbitration -- Insurance -- Personal injury protection -- Insurer waived right to compel arbitration by actively litigating claim for benefits allegedly due under policy, by answering complaint, asserting affirmative defenses, and engaging in discovery

5 Fla. L. Weekly Supp. 284b

Insurance -- Personal injury protection -- Error to abate insured's action against insurer pending arbitration -- Statute requiring arbitration of dispute between insurer and health care provider who has accepted assignment of PIP benefits does not apply to dispute between insured and insurer -- Neither ``Authorization to Pay Provider'' executed by insured nor health insurance claim form constituted assignment -- Fact that health care provider filled out claim form and sent it to insurance company not sufficient to establish assignment

5 Fla. L. Weekly Supp. 207b

Insurance -- Arbitration -- Personal injury protection -- Arbitration of dispute between insurer and medical provider to whom insured had assigned PIP benefits was required under terms of policy -- Insured's revocation of assignment was untimely where insurer did not receive revocation until after insured and his attorneys became aware that insurer intended to pursue arbitration rights

5 Fla. L. Weekly Supp. 520b

Insurance -- Personal injury protection -- Arbitration -- Once insured assigned benefits to medical provider, and insurer made payments directly to medical provider which provider accepted, all parties were committed to the arbitration process, and arbitration could not be waived without consent of insured, insurer, and medical provider -- Right to sue not revived in instant case by insured's revocation of assignment after insurer had begun making payments directly to provider -- Trial court properly dismissed insured's suit against insurer for lack of subject matter jurisdiction

5 Fla. L. Weekly Supp. 25a

Insurance -- Contracts -- Arbitration -- Action by health care provider as assignee of benefits from insured involved in motor vehicle accident -- Statute mandating that insurers include in policy for PIP benefits a provision for binding arbitration not unconstitutional -- Health care provider, as assignee of insured, may be compelled to submit to binding arbitration, as lack of privity of contract is insignificant where provider voluntarily accepted assignment of benefits -- Statute requires mandatory binding arbitration -- Questions certified: Whether F.S. 627.736(5), which provides for arbitration of claim disputes between an insurer and a health care provider, is an unconstitutional infringement on a litigant's right of access to the courts as guaranteed under Article I, Section 21 of the Florida Constitution? -- Whether the arbitration provision of F.S. 627.736(5) mandates arbitration in the absence of a voluntary agreement between the parties? -- Whether the arbitration provision of F.S. 627.736(5) requires an insurer and a health care provider to submit to mandatory binding arbitration if a dispute arises?

5 Fla. L. Weekly Supp. 556b

Arbitration -- Insurance -- Section of personal injury protection statute requiring binding arbitration where there is valid assignment between medical provider and insured is constitutional and enforceable against medical provider -- Defendant's several filings in case, including requests for discovery, were inconsistent with subsequent demand to arbitrate and amounted to waiver of right -- Court retains subject matter jurisdiction

5 Fla. L. Weekly Supp. 564a

Insurance -- Personal injury protection -- Arbitration -- Assignment of benefits to medical provider -- Motion to dismiss and/or compel arbitration arising out of insured's action against insurer to enforce terms of PIP policy after insurer refused to pay certain amounts to health care provider -- Section 627.736(5), which provides that upon accepting assignment of insured's right to have benefits paid directly to insured, medical providers must resolve claims disputes with insurance company through binding arbitration, requires only assignment of benefits, not all contractual rights -- Benefits, in context of statute, clearly refers to payments due insured from insurer pursuant to policy -- Claims dispute, as contemplated by statute, refers to situation where insurance company has agreed that treatment given by medical provider is covered under policy, but insurer disputes dollar amount of charges as being unreasonable -- If insured executes an assignment of benefits so that medical provider is paid directly for treatment for bodily injury covered by PIP insurance, and insurer disputes reasonableness of amount that medical provider has charged, this would constitute "claims dispute," and pursuant to section 627.736(5) must be decided by binding arbitration between insurance company and medical provider -- Where insurer refuses to pay any of medical expenses incurred, based upon belief that treatment is not covered under policy, insured must be allowed to assert any contractual rights insured may have pursuant to policy -- Insurer's motion to dismiss and/or compel arbitration denied

5 Fla. L. Weekly Supp. 580a

Insurance -- Arbitration

5 Fla. L. Weekly Supp. 506c

Appeals -- Court has jurisdiction to hear appeal from order granting summary judgment where order also determined party's entitlement to arbitration -- Insurance -- Arbitration -- Remand for further proceedings in light of intervening decision not available to trial court

5 Fla. L. Weekly Supp. 63a

Insurance -- Loss payable clause -- Where insured purchased automobile from plaintiff and obtained comprehensive coverage on vehicle naming plaintiff as loss payee; hybrid type of loss payee clause in policy provided that insurer waived its defenses as to loss payee unless loss resulted from principal insured's conversion, secretion or embezzlement of collateral; and insurer did not allege any such defenses, hybrid clause will be given same effect as standard clause -- Loss payee under standard clause is entitled to be paid, even if policy is void ab initio as to first party insured because of misrepresentations made by first party insured in procuring policy -- Section 627.409 cannot be construed to mean that misrepresentations in application void entire contract in loss payee situations, because it would render standard clauses worthless in the industry -- Error to grant summary judgment in favor of insurer on plaintiff/loss payee's claim which arose when vehicle was destroyed by fire of accidental origin

5 Fla. L. Weekly Supp. 427b

Insurance -- Indemnity -- Insurer's appeal of judgment entered in favor of insurance agency in agency's third party action seeking contribution and indemnification for judgment entered against it in an action by insureds to recover deposit paid to procure vehicle insurance which was subsequently cancelled because of premium dispute -- Because insurer provided insurance coverage to insureds until actual cancellation of policy, insureds received a benefit, and insurer is entitled to be compensated to the extent of that benefit -- Error to enter judgment in favor of agency in full amount of insureds' deposit, plus costs -- On remand, court should make determination regarding length of time insureds were provided with coverage as well as value/cost of such coverage

5 Fla. L. Weekly Supp. 76a

Torts -- Fraud -- Insurance agent -- Punitive damages -- Reasonable basis for punitive damages exists where plaintiff alleged that defendant, acting as its agent, caused a lapsed commercial automobile insurance policy to be reinstated by falsely assuring plaintiff that insured had incurred no losses during period insurance had lapsed -- Plaintiff sufficiently alleged that defendant fraudulently concealed loss with purpose of realizing a profit by receiving a commission upon reinstatement of policy -- Plaintiff alleged defendant was acting in fiduciary capacity at time of alleged concealment -- Information allegedly concealed by defendant was material where plaintiff would not have reinstated policy had it known of accident -- Allegations of complaint provide circumstantial evidence of intent or purpose, so that reasonable basis exists for award of punitive damages