Here is an extensive list of all of the most important insurance coverage cases in Florida that came out in 2011. I’ve taken the time to summarize the important portions of the holdings. The dates are the dates they were published in Florida Law Weekly. I wish I had time to organize them other than by date but, alas, I do not.
January 28, 2011
United Auto. Ins. Co. v. Kendall S. Med. Ctr. & Dailyn Med. Ctr., (Fla. 3rd DCA 2011) – In reviewing a trial court’s dismissal of a second amended complaint for declaratory relief, the Third DCA held that the circuit court had no jurisdiction where PIP insurer’s action was less than the jurisdictional amount of $15,000. The court reasoned that there is no concurrent circuit and county court jurisdiction for claims for declaratory relief and, therefore, the circuit court has jurisdiction only if the matter exceeds $15,000.
February 4, 2011
State Farm Mut. Auto. Ins. Co. v. Curran (Fla. 5th DCA 2011) – The 5th DCA reversed a judgment awarding an insured the limits of the underinsured/uninsured benefits (UM) in the insurance policy issued to her by State Farm. The policy required “any person making claim…under the…uninsured motor vehicle and death, dismemberment and loss of sight coverages shall…be examined by physicians chosen and paid by us as often as we reasonably may require….” Curran refused to attend a scheduled compulsory medical examination and filed suit to recover the UM benefits under the policy without compliance with this condition precedent. The 5th DCA held that her refusal constituted a breach of the policy that prohibits her recovery.
February 11, 2011
Commonwealth Land Title Ins. Co. v. Higgins (Fla. 1st DCA 2011) – Florida licensed title insurance underwriters appeal the trial courts issuance of class certification to homeowners allegedly overcharged for title insurance in connection with refinancing of real property transactions. To support certification they argued that the common and predominate issue was whether the appellant had a non-delegable duty to price title insurance premiums in accordance with Florida law. Underwriters opposed certification and argued that the trial court would be overwhelmed by the individualized nature of the issues. The 1st DCA stated that in considering the propriety of class certification, the trial court’s focus should be whether the requirements of rule 1.220 are met, not whether the moving party will prevail on the merits. Because the trial court did not err in allowing the action to proceed on behalf of the defined classes, the decision of the trial court was affirmed.
Illinois Nat’l Ins. Co. v. Bolen ((Fla. 5th DCA 2011) – Insurer seeks certiorari review of a post judgment order of the trial court lifting the abatement of a bad faith claim of Respondent while the insurer’s appeal of excess judgment was pending. The 5th DCA granted the petition for writ of certiorari stating that the bad faith claim may not proceed until the UM carrier’s appeal has been determined because the same concerns that “impel abatement of the bad faith claim in the first instance remain until the insurer’s claims of error resulting in an excess verdict are resolved against them on appeal.”
Simmons v. State Farm Florida Ins. Co. (Fla. 5th DCA 2011) – Grant of summary judgment in favor of an insurer was properly entered where the trial court determined that an umbrella policy issued to an insured who owned four automobiles was a non-stacking policy where a single premium was paid for coverage, and no separate premium was paid for each automobile.
State Farm Mut. Auto. Ins. Co. v. Swindoll (Fla. 3d DCA 2011) – Insurer appeals an order assessing attorney’s fees against it as a sanction for a mistrial caused by its expert witness. The 3d DCA held that where there was no evidence, and no finding, of bad faith on the part of the insurance company itself, it was error to assess attorney’s fees against it as a sanction for a mistrial caused by the improper conduct of its expert witness.
February 18, 2011
Citizens Prop. Ins. Corp. v. Mango Hill (Fla. 3rd DCA 2011) – Insurer appeals an order summarily compelling appraisal over its objection that the insured, failed to comply with the post-loss provisions of the insurance policy. The 3rd DCA revered and remand for and evidentiary hearing stating that until the policy’s post-loss conditions are met and the insurer has a reasonable opportunity to investigate and adjust the claim, there is no “disagreement” for purposes of the appraisal provision of the policy regarding the value of the property or the amount of the loss. Once the trial court determines that a demand for appraisal is ripe, the court has the discretion to control the order in which the appraisal and coverage determinations proceed.
Contreras v. Century Ins. Co. (Fla. 5th DCA 2011) – Petitioner, Contreras, seeks certiorari review of a decision and opinion of the Seminole County Circuit Court, sitting in its appellate capacity, affirming the county court’s final judgment in favor of an insurer in the declaratory judgment action filed by Petitioner and a decision to award appellate attorney’s fees to Respondent. The 5th DCA held that the circuit court did not err in affirming the county court’s final judgment in favor of the insurer’s right to obtain a signed uninsured motorist rejection form because turning over the form after suit was filed did not constitute a confession of judgment as a matter of law. As to the award of fees, the court stated that the appellate issue did not meet the threshold for section 57.105 and vacated the order.
March 11, 2011
Citizens Prop. Ins. Corp. v. Gutierrez (Fla. 3rd DCA 2011) – Citizens Property Insurance Corporation appeals from an order granting the insureds’ motions to compel appraisal of a claim under a commercial property insurance policy. The 3rd DCA held that the trial court erred in both granting the motion to compel appraisal and in failing to conduct the requested evidentiary hearing concerning the insureds’ compliance with post-loss conditions because a genuine factual dispute existed as to whether the insured had in fact complied with the post-loss conditions.
The Continental Cas. Co. v. Przewoznik (Fla. 3rd DCA 2011) – The Continental Casualty Company seeks certiorari review of an order disqualifying counsel from participating in the instant action. The 3rd DCA granted the petition for certiorari and quashed the order granting disqualification of counsel. They held that despite the fact that counsel had represented another insurance company in a prior action involving the same sunken vessel involved in the instant lawsuit, this case did not involve circumstances where the law firm either disclosed confidences learned from representing Respondents or switched sides in violation of the Rules of Professional Conduct.
Valero v. Florida Ins. Guar. Ass’n Inc. (Fla. 4th DCA 2011) – Florida Insurance Guaranty Association, Inc. filed a declaratory judgment action alleging that it had no obligation to provide coverage for its insureds on a negligent supervision action arising out of sexual molestation. The insurer argued that because the negligent supervision action arose out of sexual molestation, the sexual molestation exclusion should exclude coverage regardless of the legal theory by which the alleged victim was pursuing the underlying action. The alleged victim and the insureds argued that the sexual molestation exclusion was inapplicable because the underlying action was based on a theory of negligent supervision of the alleged perpetration, and not on sexual molestation by the insureds. The circuit court granted the motion for summary judgment and the 4th DCA affirmed stating that the plain meaning of exclusion k. is that the exclusion applies to bodily injury arising out of sexual molestation “by any person.”
Jugo v. Am. Sec. Ins. Co. (Fla. 3rd DCA 2011) – Homeowner, Alberto F. Lugo, appeals the circuit court’s denial of his motion for prejudgment interest on an appraisal award compensating him for an insured loss. The 3rd DCA affirmed stating that in the absence of a contract provision or statute to the contrary the insured is not entitled to pre-judgment interest on the supplemental amount of the appraisal award as computed from the date of the insured loss.
Ellie’s 50’s Diner v. Citizens Prop. Ins. Corp. (Fla. 4th DCA 2011) – Ellie’s 50’s Diner appeals the denial of a motion for prejudgment interest in its action against Citizens Property Insurance Corporation. The 4th DCA affirmed the denial stating that because Citizens paid the claim within the time allotted by the policy, Ellie’s was not entitled to receive prejudgment interest.
March 18, 2011
Genovese v. Provident Life & Accident Ins. Co. (Fla. 2011) – In this case, Genovese brought a first-party bad faith action against Provident after it terminated its monthly payments under his disability policy. Following commencement of the bad faith suit, Genovese requested Provident’s litigation file, including all correspondence and communications made between attorneys representing Provident and their agents. The trial court issued an order compelling production and Provident filed a petition for writ of certiorari, to the Fourth District to arguing that these documents are protected under the holding in Allstate Indemnity Co. v. Ruiz. The certified question to the Florida Supreme Court was whether the holding in Ruiz permitting the discovery of work product in first-party bad faith actions brought pursuant to section 624.155, Florida Statutes (2010) also applies to attorney-client privileged communications. The Supreme Court held that when an insured party brings a bad faith claim against its insurer, the insured may not discover those privileged communications that occurred between the insurer and its counsel during the pendency of the action. However an exception exists where an insurer hires an attorney to both investigate the underlying claim and render legal advice. In such a case the materials requested by the opposing party may implicate both the work product doctrine and the attorney-client privilege and the trial court should conduct an in camera inspection to determine whether the requested materials are truly protected by the attorney-client privilege. If the trial court determines that the investigation performed by the attorney resulted in the preparation of materials that are required to be disclosed pursuant to Ruiz and did not involve the rendering of legal advice, then that material is discoverable.
March 25, 2011
Smith v. N.H. Indem. Co., et al. (Fla. 1st DCA 2011) – Insurer was entitled to summary judgment for no coverage under an automobile policy that was cancelled by the insurer for non-payment two days before the insured was involved in an auto accident. The insured argued that, under Fla. Stat. § 627.7282, the cancellation was void because he was charged the incorrect premium when he renewed his policy and, because he failed to read his mail, did not learn about the premium increase until after the accident. The court held that although Fla. Stat. § 627.7282 provides an insured with certain options when an insurer charges an incorrect premium, the statute only applies to the initial application and not when a policy is renewed.
April 1, 2011
State Farm Fla. Ins. Co. v. Puig (Fla. 3d DCA 2011) – In a first party bad faith action against an insurer, the trial court did not err in requiring the insurer to produce claim file documents that were prepared before the resolution of the underlying action. The trial court did, however, depart from the essential requirements of law by compelling the production of work product materials prepared after the conclusion of the underlying litigation, absent a showing of good cause, special relevance or need. Further, the trial court also departed from the essential requirements of law by stating that Ruiz, 890 So. 2d 1121 (Fla. 2005) entirely eliminated an insurer’s ability to assert its attorney-client privilege in a first-party bad faith action, as the attorney-client privilege is available to insurers defending bad faith claims.
April 8, 2011
United Auto. Ins. Co. v. Estate of Levine (Fla. 3d DCA 2011) – A $5.2 million bad-faith judgment against an insurer for failure to properly settle a wrongful death claim under a personal injury protection policy was affirmed by the Third DCA. On appeal, the insurer argued that the trial court improperly excluded evidence of settlements it entered with two other claimants that were involved in the accident. Evidence of the other settlements, however, were properly excluded by the trial court as facts that might distract the jury from the issue at hand: namely, whether the insurer acted fairly and honestly toward its insured with regard to the claims by the estate. The trial court properly recognized that the fact that one independent claimant negotiated separate settlement terms with the insurer did not tend to prove whether the insurer acted properly toward another claimant.
It is also of note that the bad faith claim here arose even though the insurer promptly tendered the $10,000 policy limits to the estate. The difference here, however, was that the tender was accompanied by a release, hold harmless agreement, disclosure of liens form, and other documents that the estate deemed “unacceptable requirements,” even though it failed to articulate any reasons why. The court held that under the current statutory scheme, this “strategy” of setting up a bad faith claim is permissible.
April 15, 2011
JN Auto Collection, Corp. v. U.S. Sec. Ins. Co. (Fla. 3rd DCA 2011) – JN Auto, a used car dealer in the business of buying and selling repaired vehicles, some of which have certificates of destruction, renewed its garage keepers insurance policy with US Security over the telephone. Unbeknownst to JN, the carrier had added an endorsement to its policy that excluded coverage for vehicles with certificates of destruction. None of the previous polices issued to JN included this exclusion. The following day, an automobile with a certificate of destruction was stolen from JN’s lot and JN submitted a claim for theft. US denied coverage based upon the new exclusion and JN sued for declaratory relief and breach of contract. The trial court granted US’ motion and JN appealed. The Third DCA reversed the trial court’s ruling stating that although insurance coverage cannot be extended by estoppel, an exception to this general rule is promissory estoppel, which should be applied where a refusal to enforce the promise “would be virtually to sanction the perpetration of fraud or would result in other injustice.”
April 22, 2011
Gonzalez v. Fla. Dept. of Fin. Serv. (Fla. 3d DCA 2011) – Gonzalez appeals from a final order of the Florida Department of Financial Services revoking his license to transact life and health insurance business. After receiving an administrative complaint, Gonzalez submitted a petition for an administrative hearing. The petition was not received until after the deadline and the Department issued a summary order revoking his license. In response, Gonzalez submitted an amended petition, contending that his untimely request should be excused pursuant to the equitable tolling doctrine because the delay was due to mistake caused by hypertension, sleep deprivation, sleep apnea, anxiety, and an overwhelming workload. The Department declined to consider the amended petition. The Third DCA affirmed, stating that the tolling doctrine applies where a plaintiff has been misled or lulled into inaction, and not where he merely alleges that he mistakenly failed to do something.
May 6, 2011
Swan v. State Farm Mut. Auto. Ins. Co. (Fla. 3d DCA 2011) – The Third DCA upheld entry of summary judgment in favor of an insurer who denied stacked uninsured motorist (“UM”) benefits under two automobile policies. The court held that although UM benefits may sometimes be “stacked,” or added in aggregate, an insured must have UM coverage on more than one policy for the stacking to apply. The insureds, who were injured by an uninsured motorist in an auto accident, had insurance policies on two vehicles, but only elected UM coverage for one of those vehicles and thus received $200,000 in benefits instead of their claimed $400,000. Even though the insureds paid a higher premium for “stacked” UM coverage on one of its policies, they declined UM coverage on their other policy, leaving no possibility of stacking. The court rejected the insureds argument that, with only one UM election, the additional premium for stacked UM coverage did not provide them any additional benefits, because the non-stacked coverage is subject to numerous coverage limitation that are not applicable to stacked coverage. Collins v. Gov’t Empl. Ins. Co., 922 So. 2d 353, 354 (Fla. 3d DCA 2006). Further, there is no presupposition that purchasing stacked coverage means that there are automatically other UM benefits to stack. See Coleman v. Fla. Ins. Guar. Ass’n, 517 So. 2d 686, 689-91 (Fla. 1988).
May 20, 2011
Green v. Citizens Prop. Ins. Corp., (Fla. 4th DCA 2011) – A homeowner filed a claim after his home was damaged by Hurricane Frances in 2004. The insurer paid the estimated damages, however the homeowner, believing that the estimate was insufficient, compelled mediation. At mediation, the insurer agreed to pay additional damages. Because the additional damages did not total the damages sought by the homeowner, suit was filed against the insurer for the remaining sum. Ultimately, an appraisal award was entered and pursuant to the policy’s loss payment provision, the insurer was required to make payment within sixty days after the filing of the appraisal award. The insurer paid the homeowner within the sixty day period and yet the homeowner filed a motion for prejudgment interest arguing that because the insurer had underpaid the claim on two other occasions, it waived the policy provision allowing for deferred payment. The Fourth DCA held that because the appraisal award was paid within sixty days of the filing of the award, as required by the terms of the policy, the homeowner was not entitled to prejudgment interest.
May 27, 2011
W. & S. Life Ins. Co. v. Beebe, (Fla. 3d DCA 2011) – After entry of summary judgment in a coverage action in favor of an insured, the insurer appealed a Fla. Stat. § 627.428 fee award with based on an hourly rate of $350 because the insured and her attorney contracted for a rate of $300. Since the standard for the trial court was to make an award of “a reasonable sum,” the appellate court found that the $300 set forth in the contract was “a cap on that award” and any amount above that was unreasonable. It is of note that the insured’s attorney took the coverage action on a contingent basis (even though an hourly rate was also set forth in the contract) and the amount in the contract was not determinative of the fee award, but merely one factor. Otherwise, insureds could agree to a $1,000 an hour fee with attorney’s willing to take their coverage action on a contingent basis.
Guarantee Ins. Co. v. Worker’s Temp. Staffing, Inc., (Fla. 5th DCA 2011) – The Fifth DCA held that an insured was not entitled to fees under Fla. Stat. § 627.428 where an insurer voluntarily dismissed its coverage action after an order of dismissal was entered. The order of dismissal was entered after the insurer failed to attach pertinent policy renewals to the complaint, but the order also afforded the insurer twenty days to file an amended complaint. In that time frame, the insurer voluntarily dismissed the action. In an action for fees under § 627.428, the trial court awarded fees to the insured. The appellate court reversed, holding that O.A.G. Corp. v. Britamco Underwriters, Inc., 707 So.2d 785 (Fla. 3d DCA 1998) controls and the voluntary dismissal was without prejudice, did not constitute an adjudication on the merits, and was not the equivalent of a confession of judgment since the case could be re-filed.
RJG Envtl., Inc. v. State Farm Fla. Ins. Co., (Fla. 2d DCA 2011) – In a declaratory coverage action against an insurer by a an assignee of the insured, venue was proper in Palm Beach County even though the insured’s contract with the assignee/claimant specified Manatee County as the forum for any dispute. The court held that the insurer was not a party to the agreement between the insured and the claimant and, therefore, under Fla. Stat. § 47.122, the court did not abuse its discretion by holding venue was properly in Palm Beach County for the convenience of the parties or witnesses.
Trinidad v. Fla. Peninsula Ins. Co., (Fla. 3d DCA 2011) – In a dispute of whether “overhead and profit” should have been included in damage to an insured’s home under a homeowner’s policy, summary judgment was properly entered in favor of the insurer. After fire damaged the insured’s home and the insurer promptly paid, the insured filed suit alleging failure to pay for overhead and profit. The appellate court upheld the trial court’s holding that the policy is a replacement cost policy and since no contractor was hired and there was no contract for contemplated repairs to the home, the insurer did not owe these costs.
Kingsway Amigo Ins. Co. v. Ocean Health, Inc., (Fla. 4th DCA 2011) – After an insured was in a auto accident, the PIP insurer agreed to pay 80% of the Medicare Part B fee schedule in Fla. Stat. § 627.736(5)(a)(2) instead of–and which was less than–80% of the total billed amount as provided in the policy. On appeal by the insurer, the appellate court held that the PIP insurer may not elect to use the Medicare Part B of fee schedules of § 627.736(5)(a)(2) when the PIP policy specifies that the insurer will pay 80% of the medically necessary expenses because the policy did not include a reference to the statute and was not in conflict with the statute. Accordingly, the court affirmed holding that when a policy provides greater coverage than the amount required by statute, the terms of the policy control.
Garden-Aire Village S. Condo. Ass’n Inc. v. QBE Ins. Corp., Case No. 10-61985-CIV-DIMITROULEAS (S.D. Fla. Mar. 31, 2011) – An insurer’s motion to dismiss and stay a complaint by an insured for a declaratory judgment was granted where the insured failed to allege a justiciable controversy and made a premature demand for an appraisal. After the windows and doors of its condo was damaged by Hurricane Wilma, the insured made a claim and the insurer responded that the damages were below the windstorm deductible. The district court held that there was no actual controversy since the insurer did not state the damages were not covered under the policy, but merely below the deductible. Without notice and an adversarial response from the insurer that there was no coverage for the damage, no case or controversy can exist. The demand for appraisal was also dismissed as premature because the insured failed to meet the policy’s post-loss obligations before compelling appraisal. The court stayed the issue of whether the hurricane deductible in the policies is void under Fla. Stat. § 627.701(4), pending the Florida Supreme Court’s decision in QBE Ins. Corp. v. Chalfonte Condo. Apt. Ass’n, Inc., No. SC09-441 (Fla. 2011).
June 3, 2011
Universal Prop. & Cas. Ins. Co. v. Colosimo (Fla. 3d DCA 2011) – Where an insurer fails to provide the insured claimant written notice of the right to mediate pursuant to Fla. Stat. § 627.7015, the insured is not required to engaged in a contractual loss appraisal process as a prerequisite to litigation. The insured suffered water damage to their kitchen, reported their claim to insurer and submitted a sown proof of loss. The insurer initially denied the claim but later that advised that the claim would be covered. The insured eventually formally invoked the formal appraisal process. Disputes arose between the parties’ respective appraisers and the parties failed to select a neutral umpire. The insured then filed suit against the insurer for breach of contract and breach of implied covenant of good faith and fair dealing. The insurer filed a motion for appointment of a neutral umpire and to stay the suit. The insurer’s motion was properly denied due to its failure to comply with Fla. Stat. § 627.7015. The fact that the insured was aware of the right to mediate due to a separate, contemporaneous claim, did not relieve insurer of the responsibility to advise insured of the right to mediate. Furthermore, the fact that insured voluntarily commenced the appraisal process does not bind the insured to continue the process through to conclusion.
Allstate Ins. Co. v. Staszower (Fla. 4th DCA 2011) – When an uninsured/underinsured motorist insurer is joined as a party defendant and the verdict does not exceed the tortfeasor’s liability limits, the UM insurer is the prevailing party and is entitled to its costs. Staszower and Conn filed a complaint for negligence against Dunn, claiming personal injuries arising from an automobile accident. Staszower and Conn also joined their UM carrier, Allstate, alleging that the injuries they sustained exceeded Dunn’s liability limits. Prior to trial, Allstate offered two separate proposals for settlement to both Staszower and Conn in the amount of $100.00 each, which were rejected. At trial, the jury returned a verdict for Staszower only, awarding $1,670.00 in damages. Allstate was entitled to final judgment in its favor, attorney’s fees and costs. Allstate’s UIM coverage was not triggered and the plaintiff’s zero recovery from Allstate exceed the $100.00 settlement offer, which the court found was made in good faith because Allstate had reason to believe it had no exposure.
June 10, 2011
Elliott v. State Farm Ins. Agency (Fla. 4th DCA 2011) – Appellees filed declaratory judgment action seeking a determination of coverage under the insured’s homeowner’s policy for a golf cart accident on a private road in their community that resulted in injuries to their minor daughter.
The policy excluded from coverage any “bodily injury or property damage arising out of ownership, maintenance, use, loading or unloading” of any “motor vehicle owned or operated by or rented or loaned to any insured.” It also defined a golf cart as a “recreational vehicle” but stated that a “recreational vehicle” was a motor vehicle while off an insured location. The policy further described an insured location as (a) the residence premises (b) the party of any other premises, other structures and grounds used by you as a residence; and, (c) any premises used by you in connection with the premises included in (a) or (b).
The insured argued that the private street constituted an “insured location” under the policy and therefore the “motor vehicle” exception did not apply. The trial court concluded that the accident was not covered under the policy because it took place on land owned by the homeowners’ association, which is not an “insured location,” that the road where the accident took place was not a “premises” under the policy, and that the location was not a “premises used” in “connection with the premises.” The Fourth DCA held the trial court properly determined that the accident was not covered because it did not occur on the insured premises.
Mid-Continent Cas. Co. v. United Rentals (Fla. 4th DCA 2011) – Petitioner appealed an Order denying its motion to dismiss or sever United Rentals third party claim against it for declaratory relief. The insurer moved to dismiss or sever the coverage action from the wrongful death action arguing that allowing the two claims to proceed in one suit would violate Florida’s non-joinder statute. The trial court offered to sever on the condition that the insurer be bound by the jury’s findings on liability in the wrongful death action. The Fourth DCA granted the petition for writ of certiorari and quashed the trial court’s ruling denying the motion sever stating that the legislative intent behind the non-joinder statute is to “ensure that the availability of insurance has no influence on the jury’s determination of the insured’s liability and damages” and there is no reason for the two claims to be tried together.
June 17, 2011
Florida Ins. Guar. Ass’n v. Smothers (Fla. 4th DCA June 8, 2011) –The Florida Insurance Guaranty Association (“FIGA”) appealed an award of attorney’s fees against it, pursuant to section 631.70, Florida Statutes, arguing that the trial court erred in finding that it denied coverage by affirmative action other than delay. Under the FIGA Act, the FIGA is not responsible for the payment of an insured’s attorney’s fees and costs unless it denies the claim by affirmative action other than delay. In this case, the insured submitted a claim and FIGA assumed limited responsibility. FIGA hired an independent adjuster to inspect the claim and tendered payment. Nothing in FIGA’s payment transmittal letter indicated that it denied the claim, and the insured never claimed more than the amount tendered. Furthermore, within twenty-three days of the insured filing the complaint, FIGA requested an appraisal. Based on these facts, the court found that FIGA never denied coverage. It specifically held that a dispute about the amount of damages does not constitute a denial of coverage by affirmative action, other than delay. FIGA was accordingly not liable for attorney’s fees under section 631.70.
USAA Cas. Ins. Co. v. Callery (Fla. 2d DCA June 10, 2011) – USAA Casualty Insurance Company appealed a nonfinal order granting Christopher Callery’s motion to compel production of medical records in his suit for UM benefits. USAA hired a physician to examine Mr. Callery and opine as to whether Mr. Callery was permanently injured as a result of the automobile accident underlying the lawsuit. Mr. Callery requested that USAA disclose the results of the physician’s last twenty medical examinations of personal injury plaintiffs. Mr. Callery hoped to impeach the physician by showing that his reports routinely and uniformly supported insurers. USAA objected to the request and Mr. Callery moved to compel discovery. The trial court ordered production with all patient-identifying information redacted. More specifically, the trial court directed that only the physician’s conclusions/impressions, the physician’s signature, the date of report, and the name and address of the receiving attorney be provided. Under Section 456.057(7)(a), Florida Statutes, a health care practitioner may not discuss a patient’s medical records without the patient’s written authorization. The only applicable exception is “[i]n any civil or criminal action … upon the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or the patient’s legal representative by the party seeking such records.” § 456.057(7)(a)(3). Although Section 456.057 allows a court to override that language by providing adequate alternative means to protect other patients’ privacy rights when a party has made a showing that the court cannot comply with the statute under circumstances that justify disobeying the statute,” the court held that in this instance, Mr. Callery made no such showing and therefore the trial court departed from the essential requirements of the law in ordering disclosure, even with the redactions.
Certain Interested Underwriters at Lloyd’s v. Chabad Lubavitch of Greater Ft. Lauderdale, Inc., (Fla. 4th DCA June 8, 2011) – Insured brought action against insurer for breach of an all risk insurance policy, arising out of insurer’s denial of coverage under the policy for loss that occurred when crane landed on insured’s property during a tropical storm. The trial court awarded summary judgment to insured on the ground that policy’s windstorm exclusion was ambiguous and this appeal ensued. At the heart of the dispute was the meaning of the “Ensuing Loss” provision which is an exception to the windstorm exclusion. The windstorm exclusion unambiguously provides that if a loss or damage is caused by a windstorm, the loss is not covered, regardless of any other cause or event that contributes to the loss. Contained within the exclusion is the “Ensuing Loss” provision which provides that if a windstorm “results in a cause of loss other than rain, snow sand or dust, and that resulting cause of loss is a Covered Cause of Loss,” the loss will be covered. Lloyd’s argued, and the court agreed, that the plain language of the “Ensuing Loss” provision means that if a windstorm sets in motion another cause, which is not excluded by the policy, and that intervening cause results in a covered loss, the windstorm exception does not apply and the loss would be covered by the policy. Lloyd’s additionally argued that the trial court erred in finding that the wind was not a direct cause of the damage. On appeal, the court noted that the parties did not stipulate to the cause of the crane falling and that this factual determination was essential because the exclusion would only apply if the crane fell from its perch because of the force of the wind, aided only by gravity and not some other intervening cause. For this reason, the case was remanded for resolution of this factual issue.
July 1, 2011
Fontainebleau Condo Ass’n, Inc. v. Pacific Ins. Co. (S.D. Fla. April 27, 2011) – The Fontainebleau condominium filed suit against its homeowners insurer in state court for breach of contract for failure to pay for windstorm damage caused by Hurricane Wilma. After the insurer removed to federal court on the basis of diversity jurisdiction, Fontainebleau moved to add non-diverse defendants and remand to state court. The U.S. District Court for the S.D. Fla. denied the motion for fraudulent joinder because the claims, which included a negligence action against an independent insurance adjuster, were not valid and, if they were considered valid, were claims that were proper for a separate state-court action.
Sommerville v. Allstate Ins. Co. (Fla. 2d DCA June 17, 2011) – The 2nd DCA reversed summary judgment in favor of an insurer under a business auto policy. The trial court originally held that the policy did not provide UM coverage to an employee of the named insured who was injured on a rented motorcycle. Under the policy, however, the employee could qualify as a “Class II insured” if she was driving a “covered auto” with the consent of the named insured. The trial court held that she was. Further, even though the business selected UM limits lower than its liability limits, it did not reject UM coverage entirely, and the employee fit the definition of an insured under some portions of the policy—just not the UM portion. Accordingly, since the business did not explicitly reject UM coverage for the covered motorcycle, the employee could not be denied coverage under the UM provision where “insured” was more narrowly interpreted than its definitions in other policy parts.
Edwards v. State Farm Fla. Ins. Co. (Fla. 3d DCA June 15, 2011) – An insured who sustained damages to his home from Hurricane Frances was held to violate the terms of a homeowner’s insurance policy by not providing documentation of his claimed loss and not submitting to an examination under oath after several requests. The insurer was granted summary judgment for failure to comply with conditions precedent under the policy.
Underwriters of Lloyds of London v. Cape Publ’ns, Inc. (Fla. 5th DCA June 17, 2011) – A building tenant was considered a co-insured on the building owner’s property and casualty policy even though it was not named in the policy, because its commercial lease evidenced an intent to be considered a co-insured. Accordingly, when the insurer sought subrogation from the tenant after a fire (pursuant to an indemnity and hold harmless agreement), the insurer’s claim was barred since it could not maintain a subrogation action against its own insured.
July 8, 2011
North Pointe Cas. Ins. Co. v. M&S Tractor Serv., Inc. (Fla. 2d DCA June 24, 2011) – An insurer appeals a declaratory judgment determining coverage for an accident involving the child of an employee. The president of the insured corporation allowed his seven year old son to ride on a John Deere tractor while he was operating it in the course and scope of his employment. The boy sustained serious injuries after falling from the tractor and his mother, as parent and natural guardian, filed a lawsuit against the insured company alleging that her husband had been negligent in operating the machinery. In a separate coverage lawsuit, the trial court declared that the insurer provided coverage for this occurrence. They reasoned that it is undisputed that the policy issued provided coverage and a duty of defense for claims involving bodily injury and property damage of the sort sustained by the child and therefore the insurer had the burden to establish that a specific exclusion removed this particular risk from coverage. The appellate court ultimately found the exclusion at issue ambiguous and held that the trial court properly concluded that the special endorsement did not exclude the claim.
Jennings Constr. Serv. Corp. v. Ace Am. Ins. Co., (M.D. Fla. May 10, 2011) – Plaintiff entered into a Consent Judgment with insureds to settle an underlying contractual and professional negligence dispute that arose in June 2005. Ace issued an “errors and omissions policy that provided coverage for the relevant time period. Plaintiff sought to enforce the judgment and Ace moved to dismiss on the grounds that the insureds failed to report the claim during the policy period as specifically required by the policy. Plaintiff argued that the failure would only release the defendant from its obligations if the failure caused them to be substantially prejudiced. Conversely, the defendant asserts that “prejudice to the insurer is irrelevant where the insured is late in reporting a claim under a claims made and reported policy” and that failure to report the underlying claim within the policy period precludes coverage altogether. The Court granted the defendant’s motion to dismiss holding that written notice to the insurer of a claim within the policy period is a condition precedent to the insureds’ rights under the policy and the duty to defend does not arise unless and until it receives such notice during the policy period.
July 15, 2011
Central Square Tarragon, LLC v. Great Divide Ins. Co., (Fla. 4th DCA July 6, 2011) – The named insured sold a 22-acre site to the purchaser and assigned its rights to an insurance contract that provided property and casualty insurance, including hurricane and windstorm coverage. The property was subsequently destroyed by Hurricane Wilma. The insurer issued a check to the purchaser but because the claim exceeded the amount paid, the purchaser filed suit against the insurer. In their Joint Pretrial Statement, the purchaser and insurer stipulated that the seller had assigned its rights to the purchaser and that the only disputed issues were whether either party was in breach of the contract and whether the payment made was sufficient. At trial, the insurer moved for a directed verdict following the close of both the purchaser’s and insurer’s cases, arguing that the purchaser had failed to prove the existence of the assignment. The trial court denied the motions but ultimately found the existence of a valid assignment was a jury question and specifically instructed the jury to determine whether the purchaser held a valid assignment of the insurance proceeds. The jury found there was no assignment and the purchaser moved for a new trial. The trial court denied the motion and entered final judgment for the insurer. The appellate court found that the pretrial stipulation eliminated any need for the purchaser to prove the assignment and that the jury instruction regarding the assignment impermissibly abandoned the parties’ pretrial stipulation. The trial court was reversed and the case remanded for a new trial.
August 4, 2011
Oceania I Condo. Ass’n v. QBE Ins. Corp., (S.D. Fla. May 20, 2011) – Insured filed a motion to compel appraisal after insurer denied claim based upon failure to comply with the post-lost provisions. Insurer claimed that the insured (1) failed to provide prompt notice; (2) failed to allow an investigation of the claim; (3) refused to produce a corporate representative for an examination under oath; (4) breached the insurance contract by impairing the insurer’s subrogation rights against other responsible parties; and, (5) committed fraud by submitting grossly exaggerated and inflated claims. The insurer declined coverage under the policy void based upon concealment, misrepresentation and fraud. The insured argued that appraisal was appropriate because the insurer had investigated the claim and assigned a claim number. The Court held that appraisal is not an appropriate remedy when a claim has been denied in its entirety based on a lack of coverage.
August 12, 2011
Southern Owners Ins. Co. v. Mathieu, (Fla. 2d DCA August 5, 2011) – Homeowners filed a negligence lawsuit against a flooring contractor after they learned of water intrusion into their home. Before entering into a settlement or obtaining a verdict against the contractor, the homeowners filed a declaratory judgment action against the contractor’s CGL insurer. The insurer moved to dismiss and alleged that the homeowners failed to comply with the conditions precedent of the nonjoinder statute. The trial court denied the motion and the insurer appealed. The Second DCA reversed and held that, under Fla. Stat. § 627.4136(1), a claimant must either: 1) enter a settlement with the insured, or 2) obtain a verdict against the insured before it can bring a declaratory coverage action against the insurer. The court noted that it was irrelevant that the homeowners brought the coverage action in a proceeding separate from the negligence action; the nonjoinder statute still applied.
September 2, 2011
State Farm Mut. Auto. Ins. Co. v. Duckworth, (11th Cir. 2011) – An automobile insurer brought an action against decedent’s wife as personal representative of estate of the husband, killed in an accident in Florida while riding a motorcycle covered under a Maryland policy. Insurer sought declaratory judgment that it satisfied its contractual obligations when it paid uninsured motorist benefits under the motorcycle policy and denied benefits under the insured’s two automobile policies based upon the anti-stacking provisions. The public policy exception to Florida’s choice of law rules demands that Florida law control whenever the state has a paramount public policy interest in application of its own law and has a citizen in need of protection. Additionally, whenever an insurance contract is at issue, the insured party seeking to benefit from the exception must provide the insurer with reasonable notice of a permanent change of residence such that insurance risk would thereafter be centered in Florida. Here, the insurer did not receive reasonable notice that insured was permanently residing in Florida and absent reasonable notice, the public policy exception is inapplicable and, as the district court concluded, the insurer is entitled to declaratory to relief, and judgment as matter of law to insurer was proper.
October 21, 2011
Intrepid Ins. Co. v. Prestige Imports, Inc. (Fla. 3d DCA 2011) – An insurer denied coverage to a car dealership for water damage to the dealership’s inventory based on a “Flood” exclusion in an insurance policy. The damage to the cars was allegedly caused by a backed-up storm drain that overflowed after a heavy rain. The trial court originally granted summary judgment for the insured dealership because a backed-up storm drain was not included in the definition of “flood.” On appeal, however, the Third DCA held that an undefined term does not create an ambiguity and whether the water pooled because it flowed from an adjacent property or, on the other hand, whether it pooled directly from the storm drain, were material issues of fact. Accordingly, summary judgment was reversed as improper.
Rahabi v. Fla. Ins. Guaranty Ass’n, Inc. (Fla. 4th DCA 2011) – After settling a complaint for declaratory relief and breach of contract filed by its insured, FIGA, the insurer, was deemed to owe attorney’s fees to the insured under Fla. Stat. § 627.428(1). The appellate court noted that even though Fla. Stat. § 631.70 excludes FIGA from the provisions of § 627.428, an exception to this exclusion applies if FIGA denies a covered claim by “affirmative action.” In so noting, the court held that FIGA’s statements in its affirmative defenses that the insured’s damages “were not caused by a covered loss” were, in fact, a denial of the claim by “affirmative action.” Accordingly, FIGA was required to pay the insured’s fees under § 627.428. The appellate went on to note the actions that FIGA could employ in order to avoid fees in similar circumstances.
State Nat’l Ins. Co. v. Robert (Fla. 4th DCA 2011) – On appeal from a case where a claimant sued the city of Hollywood, Florida for personal injuries, the Fourth DCA held that the claimant prematurely joined the city’s insurer under Fla. Stat. § 627.4136(1). Under § 627.4136(1), it is a prerequisite that the city be an “insured under the terms of the liability policy for a cause of action which was covered by such policy.” Accordingly, the trial court’s allowance to join the insurer before the entry of final judgment, and without a determination as to whether the insured was covered under the policy, was in error.
Florida Insurance Coverage Law 