I. THE STATE OF FLORIDA
A. SIGNIFICANT FLORIDA COURT DECISIONS
1. Supreme Court Decisions
a. Insurance Coverage Decisions
Geico Gen. Ins. Co. v. Virtual Imaging Servs., 2013 Fla. LEXIS 1387 (Fla. July 3, 2013) www.floridasupremecourt.org/decisions/2013/sc12-905.pdf
Insurers Must Provide Notice of use of Fee Schedules to Calculate Reimbursements
Following a motor vehicle accident that resulted in injuries and required medical services for the insured, a service provider billed the insurer, and the provider was reimbursed based on the Medicare fee schedule formula set forth in Fla. Stat. § 627.736(5)(a). The provider filed suit as assignee of the insured’s personal injury protection benefits, alleging the provider was not paid the full amount of benefits due. The Supreme Court held that with respect to PIP policies issued after January 1, 2008, an insurer cannot limit reimbursements based on the fee schedules contained in Fla. Stat. § 627.736(5)(a), without providing notice in its policies that the fee schedule will be used to calculate reimbursements.
Trinidad v. Fla. Peninsula Ins. Co., 2013 Fla. LEXIS 1379 (Fla. July 3, 2013) www.floridasupremecourt.org/decisions/2013/sc11-1643.pdf
Replacement Cost Policies
Insured filed a claim with his homeowner’s insurance company for fire damage that occurred to his home. The insurer admitted coverage, based on the insured’s replacement cost policy. The insured did not make the repairs to his home or hire a general contractor to make the repairs. The insurer’s payment included other costs necessary to make the repairs, but did not include an amount for the general contractor’s overhead and profit. The insurer argued that it could withhold payment until the insured actually incurred the expenses in making the repairs/contracting to have the repairs made. The claim arose under the 2008 version of Fla. Stat. § 627.7011, which did not require an insured to repair property as a condition precedent to the insurer’s obligation to pay replacement costs for a loss. [Fla. Stat. § 627.7011 was amended in 2011 to specifically allow the insurer to hold back the difference between the actual cash value and the replacement cost value until the “work is performed and expenses are incurred.”]
Under the 2008 version of Fla. Stat. § 627.7011, the Supreme Court held that an insurer’s required payment under a replacement cost policy includes a general contractor’s overhead and profits, where it is reasonably likely the insured would need a general contractor to make the repairs. Here, because the policy did not require the insured to actually repair the property as a condition precedent to the insurer’s obligation to pay, the insurer was not authorized to withhold replacement costs pending actual repair. Replacement costs are measured by what it would cost the insured to repair or replace the damages structure on the premises if the insured were to do so.
2. Other Significant Decisions
Laizure v. Avante at Leesburg, Inc., 109 So. 3d 752 (Fla. 2013) http://www.floridasupremecourt.org/decisions/2013/sc10-2132.pdf
Heirs are Bound to Valid Arbitration Agreement Between Deceased and Nursing Home
Decedent signed a valid arbitration agreement with a nursing home when he was admitted for care requiring negligence claims to be settled by binding arbitration. The estate of the decedent claimed that their wrongful death claim survived the arbitration agreement. The Supreme Court held that the arbitration agreement was valid. An estate’s entitlement to bring a wrongful death action is predicated on whether the decedent had a right to bring a cause of action had he survived. The decedent agreed to arbitrate any negligence claims and his estate cannot claim any right greater than he would have had, had he survived.
Nunez v. Geico Gen. Ins. Co., 117 So. 3d 388 (Fla. 2013) http://www.floridasupremecourt.org/decisions/2013/sc12-650.pdf
Conditioning PIP Benefit Recovery on Attending an EUO is Invalid
Insured’s policy contained a provision requiring the insured to submit to an examination under oath (EUO). The insured denied the insured’s claim after she was injured in a car accident and failed to submit to an EUO. The insured alleged that the insurer had violated Florida’s personal injury protection (PIP) statute (Fla. Stat. § 627.736). The Supreme Court was asked to determine whether, under Fla. Stat. § 627.736, an insurer could require an insured to attend and EUO as a condition precedent to recovering PIP benefits. The Supreme Court determined that EUO conditions are invalid, and are contrary to Florida’s PIP statute.
Tiara Condominium Association Inc., etc. Marsh & McLennan Companies, Inc., et., et al., 2013 WL 828003
Economic Loss Rule
An insurance agent negligently represented to the insured that the insured had $100 million in coverage to cover hurricane losses, where the insurer later determined they had only $50 million. The insured undertook over $100 million in repairs and the insurer later settled for $80 million. The insured brought a claim for the unpaid $11 million. The federal court could not determine whether the non-contractual claims for tort (negligence and breach of fiduciary duty) were appropriate for a motion for summary judgment as being precluded by the economic loss rule, because the insurance agent was potentially a “professional” under insurance malpractice provisions, which do not follow the economic loss rule.
The Supreme Court held that the economic loss rule applied only in product liability situations, and the insured could sue the broker based on tort law solely on economic damages claims.
2. Appellate Court Decisions
a. Insurance Coverage Decisions
1500 Coral Towers Condo. Ass’n, Inc. v. Citizens Prop. Ins. Corp., 112 So. 3d 541, (Fla. Dist. Ct. App. 2013),
Coverage (Late Notice to Insurer)
In 2005, Plaintiff was insured under a commercial-residential property insurance policy with the Defendant. Plaintiff alleges damage sustained to property in October 2005’s Hurricane Wilma, but did not send notice to Defendant-insurer until June 29, 2010. Though Defendant-insurer admitted knowing of the damage as early as November 2005, the court found that Plaintiff- insured failed to uphold their contract, specifically the provision stating that the insured must, “[g]ive prompt notice to [the insurer],” of the loss. Because the Plaintiff failed to give prompt notice, the appeals court found that Defendant-insurer suffered prejudice and upheld summary judgment in favor of the Defendant.
Allstate Floridian Ins. Co. v. Farmer, 104 So.3d 1242 (Fla. Ct. App. 5th 2012) http://www.5dca.org/Opinions/Opin2012/122412/5D12-1254.op.pdf
Failing to Provide Proof of Loss Notice
After an insured suffered lightning damage to his home, the insurer failed to provide benefits under a homeowner’s policy. The insurer claimed that the insured had not submitted a proof of loss form, and pursuant to the policy, the insured did not comply with the policy’s terms and conditions. The court held that there was no indication that the insurer’s investigation was prejudiced without the proof of loss form, and there was no material breach of the policy.
Cheetham v. Southern Oak Ins. Co., 114 So. 3d 257 (Fla. Dist. Ct. App. 3d Dist. 2013) http://www.3dca.flcourts.org/opinions/3D11-3277.pdf
Water Damage Exclusion does not Relate to Damages Originating from the Residence
Insured filed a claim with their insurer after their home sustained water damage. The water damage was caused by deteriorating of a pipe within the residence’s plumbing system that caused water to back up into the premises. The insurer denied the claim, asserting that the loss was excluded based on the water damage exclusion contained in the policy. Insureds claimed the water damage was covered by their all-risk policy. The court held that based on the policy provision, the policy excluded water damage originating from somewhere other than the residence premises’ plumbing system. Because the water damage was sustained due to the premises’ plumbing system, the loss was covered under the policy.
Citizens Prop. Ins. Cor. v. Casar, 104 So. 3d 384 (Fla. Dist. Ct. App. 2013) http://www.3dca.flcourts.org/opinions/3D11-2843.pdf
Interpretation of Appraisal Clause
Defendant-insureds sustained water damage they alleged stemmed from a refrigerator line leak, but Plaintiff-insurer’s inspection determined that only some of the damage was caused by the leak and, therefore, only some of the damage was covered by the homeowners’ policy. The policy contained an appraisal clause that, in the case of disagreement, allowed for one party to request an appraisal, but required written assent from the other party. Though the Defendant- insureds requested an appraisal, because Plaintiff-insurer refused, the court found that the Plaintiff was not required to participate in an appraisal.
Citizens Prop. Ins. Corp. v. River Manor Condominium Ass’n, Inc., Fla. App. No. 4D12-901, 2013 WL 1441294 (Apr. 10, 2013) http://www.4dca.org/opinions/April%202013/04-10-13/4D12-901%20op.pdf
FL § 718.111(11)(b) does not Require Insurers to Cover “Condominium Property Located Outside the Units”
A condo association’s insured property was damaged by a hurricane, resulting in an appraisal to determine the total damage. While the policy excluded coverage for property set apart from the building, FL § 718.111(11)(b) provides that insurance policies shall provide coverage for “condominium property located outside the units.” The court held that the statute does not require insurers to cover such property. Instead, the statute specifies what items the insurers and unit owners are responsible for covering, and requires associations to use their “best efforts” when obtaining coverage.
The insurer also disputed paying the full appraisal award, arguing that some items were duplicative, others were not owed due to a prior agreement with the association and others were the responsibility of the unit owners. The court found that the trial court should have adjudicated whether a prior agreement existed, but not whether some items were duplicative or were the responsibility of the unit owners.
Ergas v. Universal Prop. & Cas. Ins. Co., 114 So. 3d 286 (Fla. Ct. App. 4th Dist. 2013) http://www.4dca.org/opinions/April%202013/04-24-13/4D11-3803.op.pdf
Definition of Marring
In an action against a Florida insurer to determine whether a homeowner’s policy provides coverage for damage to their tile floor by the dropping of a hammer, the court considered different definitions of the word “marring” for potential ambiguity. The homeowner’s policy excludes cover for “wear and tear, marring, deterioration.” The Defendant relied on the definition of the term “mar” to mean “detract from the perfection or wholeness of,” which could mean any “damage at any time that made the property less than perfect.” The Plaintiff argued that the term “marring” should be read in context meaning it refers to damage occurring over time. The court found three specific and distinct causes listed in the exclusion, “wear and tear, marring, and deterioration,” and interpretation upon another cause is not necessary. Therefore, the ambiguity in the policy was found in favor of the insurer, the damage was excluded from the policy coverage.
Geico General Ins. v. Harvey, No. No. 4D12-1525, 2013 Fla. App. LEXIS 935 (Fla. Ct. App. 4th Dist. Jan. 23, 2013)
Insured Cannot Maintain a Post-Verdict Bad Faith Claim
After a jury verdict against insured in excess of his policy limit was awarded, the insured brought a post-verdict crossclaim against the insurer for bad faith. Florida Rule of Civil Procedure 1.170(g) requires that a crossclaim must arise out of the transaction or occurrence that is the subject matter of either the original action or a counterclaim therein. The appellate court concluded that an insurance bad faith action does not accrue until the issue of coverage under the policy has been determined; therefore, a bad faith claim against the insurer is distinct from the Plaintiff’s tort claim against the insured and must be brought in a separate cause of action.
Hunt v. State Farm Florida Ins. Co., No. 2D11–6484, 112 So. 3d 547 (Fla. Dist. Ct. App. 2013) http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2013/April/April%2005,%202013 /2D11-6484.pdf
Effect of an Appraisal Award and Pleading a Civil Remedy Notice
Plaintiff filed a civil remedy notice (CRN) against his insurer after he disagreed with the insurer’s estimate of damages for his sinkhole damaged home. Pursuant to the CRN, an appraisal award was entered in Plaintiff’s favor, which the insurer fully paid. Plaintiff voluntarily dismissed his lawsuit against the insurer, but later brought a bad faith action against the insurer.
The appellate court reversed the dismissal of the Plaintiff’s second bad faith action on two grounds. First, an appraisal award in favor of the insured meets the favorable resolution requirement for bringing a bad faith claim under Fla. Stat. Ann. § 624.155 (West). Second, the insured is not required to plead a specific cure amount in a CRN since a CRN may be filed before the damages are fully determined.
Jossfolk v. United Property & Cas. Ins. Co., 110 So.3d 110, 111 (Fla. App. 2013) http://www.4dca.org/opinions/Mar%202013/03-20-13/4D12-443.op.pdf
Ordinance and Law Coverage is not Recoverable Through Appraisal until Incurred
An insured submitted a claim for wind damage, which the insurer denied, and was adjudicated by an appraisal. After one appraiser objected because the Ordinance and Law coverage was not analyzed, the award was increased to include some roof damage. When insured’s contractor applied for a permit to repair the roof, the permit was denied since the entire roof had to be repaired. The insurer refused to pay for the whole roof, and a lawsuit commenced.
The court found that Ordinance and Law coverage is not recoverable until incurred, which was not until the insured applied for the roof repair. At that point, the insured gained the right to appraisal under that coverage. Also, the court rejected the insurer’s argument that the arbitration code applies to appraisal awards.
Makryllos v. Citizens Prop. Ins. Corp., 103 So. 3d 1032 (Fla. 2d DCA 2012) http://www.2dca.org/opinions/Opinion_Pages/Opinion_Page_2012/December/December%2028, %202012/2D11-2842.pdf
Waiver of Policy Provision
Homeowners filed a claim with their insurer for roof damage and damage from rain that entered the interior of the home. The insurer denied the claim for roof damage, but paid for damages to the interior. The insureds later filed a supplemental claim asserting additional roof damages and damages to the interior. The insurer requested the named insured appear for an examination under oath (EUO) and demanded the insured submit a proof of loss “prior to or at the Examination under Oath.” The policy required a sworn proof of loss within 60 days after the insurer’s request. The insurer rescheduled the EUO several times. When the EUO finally took place, the insured submitted his proof of loss. The insured filed suit against the insurer. The trial court granted summary judgment to the insurer because the insured failed to timely submit a proof of loss within 60 days of the first request. The appellate court reversed noting that a jury must decide whether the insurer waived its right to rely on the policy condition requiring the proof of loss within 60 days.
Universal Prop. and Cas. Ins. Co. v. Johnson, 1D12-0891, 2013 WL 1809639 (Fla. Dist. Ct. App. 2013)
Insured’s Misrepresentations Concerning Criminal History Voided Policy
After an accidental fire occurred, Defendant filed a claim with Universal. Defendant had falsely answered a question on the insurance application pertaining to prior convictions. Defendant answered she had not been convicted of a felony in the last ten years, but she had actually been convicted of five felonies. Universal denied insurance coverage since the Defendant had made a misrepresentation. The appellate court found that under Fla. Stat. § 627.409, it does not need to be proven that misrepresentation was intentionally made for the contract to be voided. The Court found there does not need to be a more stringent standard for denial on the ground of misrepresentation than the statute provides. Therefore, the court determined the contract of insurance is void.
b. UM/UIM Decisions
Horace Mann Ins. Co. v. Chase, No. 1D12-2132 (Fla. Dist. Ct. App. 1st Dist. Sept. 26, 2013) http://opinions.1dca.org/written/opinions2010/11-30-2010/09-5572.pdf
UM Coverage Waivers and Policy Transfers
In 2001, an insured purchased an automobile insurance policy and elected to reduce the uninsured motorist (UM) limits included with the policy to $25,000/50,000. The insured signed a form acknowledging the reduced UM limits. On the same form, the insured selected non-stacked UM coverage. The insured’s daughter was listed as a driver, but not a named insured on the original policy. In 2004, the insured’s daughter became the sole named insured on the policy. In 2007, the father (the original insured) was listed as a driver on the daughter’s policy. In 2008, an uninsured motorist collided with two motorcycles operated by the original insured and his daughter. The original insured was killed. The daughter sought to recover UM coverage for herself and on behalf of her father’s estate.
With regard to the father’s estate, the court held that the UM coverage waiver and stacked coverage waiver were binding. With respect to the daughter individually, the daughter was entitled to stacked coverage, but the UM waiver was binding.
Pack v. Geico Gen. Ins. Co., 119 So. 3d 1284 (Fla. Dist. Ct. App. 4th Dist. 2013) http://www.4dca.org/opinions/September%202013/09-04-13/4D12-3146.op.pdf
Plaintiff Entitled to Diagnostic Medical Costs Despite a Jury’s Zero Damages Award
Insured brought an action to recover uninsured motorist benefits. It was undisputed that the insured suffered at least a sprain as a result of the accident and had medical expenses related to the diagnosis of the sprain. The jury returned a verdict that the uninsured driver’s negligence was the cause of the insured’s damage. However, the jury awarded the insured zero damages for past or future medical expenses and declared the insured’s injury non-permanent. Because the parties’ experts agreed that the insured suffered a neck sprain, the appellate court reversed the jury verdict, holding that the insured was entitled to the medical costs for reasonable diagnostic testing. The insured was granted a new trial on damages to determine the insured’s undisputed non-permanent neck sprain.
State Farm Mut. Auto. Ins. Co. v. Siergiej, 116 So. 3d 523 (Fla. Dist. Ct. App. 2d Dist. 2013) http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2013/June/June%2014,%202013/ 2D11-3321.pdf
Uninsured Motorist Coverage Applied in Collision with Sheriff’s Department Employee
After being involved in a crash with a motorcycle operated by a sheriff’s department employee, the insured sued the Sheriff’s Department and his uninsured motorist (UM) insurer asserting negligence claims against the Sheriff’s Department and seeking UM coverage from his insurer. The jury awarded the insured $211,000 for injuries sustained. The insurer asked the court to determine which amounts should be credited against the verdict. The court held Fla. Sta. § 627.727(6) was inapplicable, because the Sheriff’s Department was not an uninsured motorist and the Sherriff’s Department’s self-insurance did not constitute a liability policy.
Because the insurer did not invoke its right under the policy to receive credit for the full amount of the limits of the Sheriff’s department’s self-insurance, the insurer was only entitled to a credit for $50,000 the insured received from the sheriff’s department, and not the full limits of the Sheriff’s department’s self-insurance, which was $100,000. After subtracting the total benefits available from the total damages award, $109,000 remained. Accordingly, under Fla. Sta. § 627.727(1), the insured was entitled to recover $100,000 from his UM policy.
Steinger Iscoe & Greene, P.A. v. GEICO Gen. Ins. Co., 103 So. 3d 200 (Fla. Dist. Ct. App. 4th Dist. 2012)
Discovery and Privilege Issue
A law firm represented a client in a claim against the client’s insurance company. Because some of the client’s treating physicians were to render opinions on matters such as causation, permanency and future damages, the insurance company sought to depose the law firm’s office manager to obtain information and documentation related to financial dealings between the law firm and the Plaintiff’s physicians. The law firm moved for protective order, arguing the requests invaded the privacy of non-party patients and violated the attorney-client privilege of the firm’s former clients. The treating physicians were required to provide financial bias discovery and any history of referrals between the physician and the law firm. Additionally, if the insurance company was able to establish that the physician and the law firm referred clients to each other, more extensive bias discovery would have been appropriate.
The appellate court recalled that discovery would normally be sought from the physician instead of the party’s legal counsel. However, the court reasoned that legal counsel may be required to produce discovery regarding a referral relationship between a lawyer and a doctor to determine the extent of the vested financial relationship in situations where the doctor “has no records or produces nebulous testimony.” Since there was no such evidentiary finding, the appellate court concluded the trial court erred in requiring the law firm to produce discovery, quashed the trial court’s order and remanded for further proceedings.
c. No-Fault (PIP) Decision
McCarty v. Myers, No. 1D13-1355, 2013 Fla. App. LEXIS 16980 (Fla. 1st DCA Oct. 23, 2013) http://www.floir.com/siteDocuments/OPINIONReversingInjunction.pdf
Appellate Court Reinstates Amendments to New Florida No-Fault Law
A group of health care providers, including chiropractors, acupuncturists and massage therapists, representing themselves and “Jane Doe,” a fictional representative of Florida citizens alleged that the 2012 Personal Injury Protection (PIP) Act (Chapter 2012-197, Laws of Florida) violated the their constitutional rights of “access to courts.” The 2012 PIP Act amended various provisions of the Florida Motor Vehicle No-Fault law, specifically Fla. Sat. 627.736(1), capping PIP coverage at $2,500 for non-emergency care and required patients to seek care within 14 days of an accident. The $10,000 total cap on PIP coverage remained in place, but the law prohibited massage therapists and acupuncturists from receiving PIP claims. The court held the alleged economic harm to the providers was an insufficient basis to assert others’ potential access to courts claims. The court also stated that the real parties in interests, injured motorists whose ability to sue had been limited by the Act, were absent from the case. Accordingly, the appellate court overturned a lower court’s grant of a temporary injunction against the law.
d. Premises Liability Decisions
Metsker v. Carefree, 90 So. 3d 973 (Fla. Dist. Ct. App. 2d Dist. 2012) www.2dca.org/opinions/Opinion_Pages/Opinion…/2D10-5867.pdf
Liability at Trade Show Booth
A patron was injured during a visit to a recreational vehicles show held at the state fairgrounds. A manufacturer arranged for a sales representative entity to set up and staff its booth at the show and the booth was also staffed by at least two other representatives that were not affiliated with the sales representative entity. A metal pole fell from the manufacturer’s booth exhibit and struck the patron while she was seated in a booth next to the manufacturer’s booth. As a result of the blow, the patron sustained serious injuries. The lower court granted summary judgment in favor of the manufacturer on the grounds that an independent contractor (the sales representative) operated the premises. The appellate court reversed, because the manufacturer and sales representative entity at the very least shared joint control of the booth. Therefore, the manufacturer’s exclusive or joint control would have given rise to a duty to keep the booth in a reasonably safe condition.
Reffaie v. Wal-Mart Stores, Inc., 96 So. 3d 1073 (4th DCA 2012) http://www.4dca.org/opinions/Sept%202012/09-05-12/4D10-2494.op.pdf
Defense Attorney’s Insinuations about Physicians and Personal Injury Firms Warranted New Trial
Plaintiff customer appealed the trial court’s denial of a new trial after a jury found the customer 80% comparatively negligent for her slip and fall at a retail store. During cross examination, defense counsel asked the customer’s expert witness and treating physician questions about his relationship with personal injury law firms. In closing argument, defense counsel insinuated the physician-expert had admitted he had a relationship with such law firms. However, the appellate court found there was no evidence to support the fact the physician had any relationships with personal injury law firms. Because these insinuations may have affected the jury’s perception of the physician’s credibility, the appellate court held the trial court improperly denied the customer’s motion for a new trial.
e. Other Significant Decisions
Betzoldt v. Auto Club Group Ins. Co., No. 2D23-5368, 2013 Fla. App. LEXIS 17055 (Fla. 2d DCA Oct. 25, 2013) http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2013/October/October%2025,%2 02013/2D12-5368.pdf
Court Finds Florida had Personal Jurisdiction over Out-of-State Insurer
Insured, a Michigan resident, was involved in an auto accident in Tampa that injured another woman. The insurer only issues policies to Michigan drivers. The injured woman made a claim against the insured. The insured’s insurance provider attempted to accept an offer to settle for the policy limits. However, the insurance provider never procured affidavits from the insured regarding other insurance and did not advise the insured of the settlement offer. Because of the failures, the injured woman sued the insured, resulting in a judgment of $459,381; the insured’s policy limits were only $100,000. The insured died, and her personal representative sued the insurer. The insurer sought dismissal due to lack of personal jurisdiction. The court held the trial court had jurisdiction over the insurer under Fla. Sta. § 48.193 (Florida’s long arm statute), because the policy covered accidents in all states and there was a breach based on failure to perform acts required by the contract in Florida. Additionally, the insurer had sufficient minimum contacts with Florida that it could reasonably anticipate being hauled into court because the insurer agreed to defend claims against the insured throughout the U.S.
Fish Tale Sales & Serv., Inc. v. Nice, 106 So. 3d 57 (Fla. Ct. App. 2d Dist. 2013) http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2013/February/February%2001,% 202013/2D12-2694.pdf
Defendant Retailer may File Third-Party Complaint Against Manufacturer
Customers filed suit against retail boat dealer, manufacturer of the boat, manufacturer of the engine, and manufacturer of the fuel pump after the customers were injured by an explosion on the boat. To streamline their action, the customers dropped the manufacturers from their suit; the retailer moved to file a third-party complaint against the parties dropped from the original suit. The appellate court held that the retailer could join the third parties to avoid exposure to inconsistent outcomes from independent action against those parties. Common law indemnity under General Maritime Law is quite limited, but a non-negligent tortfeasor is entitled to seek indemnity against the manufacturer of a defective product that injures a Plaintiff to whom the non-negligent tortfeasor may be held liable.
Gira v. Wolfe, 115 So. 3d 414 (Fla. 2d DCA 2013) http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2013/May/May%2008,%202013/ 2D11-6465.pdf
No Enforceable Settlement when Insurer Fails to Comply with Statutory Disclosures
Plaintiff was injured after being struck by a vehicle driven by the Defendant. Defendant’s insurance policy included bodily injury coverage. Plaintiff’s attorney requested information pursuant to Fla. Sta. § 627.4137(1). The insurer responded by sending a check for policy limits and a proposed release as well as information regarding policy limits. Plaintiff’s attorney eventually sent a letter to the insurer offering the resolve the claim for policy limits. In the same letter, Plaintiff’s attorney again requested the disclosures, including additional coverage. When the insurer again did not disclose any information other than policy limits, Plaintiff’s attorney returned the check, rejecting the settlement due to the insurer’s failure to comply. After suit was filed, the trial court granted Defendant’s motion to enforce the settlement. The appellate court reversed, stating the Plaintiff’s settlement offer was conditioned on the disclosure, and Defendant did not comply because he failed to disclose additional insurance.
Gulfcoast Surgery Ctr., Inc. v. Fisher, 107 So. 3d 493 (Fla. Dist. Ct. App. 2d Dist. 2013) http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2013/February/February%2013,% 202013/2D12-3313.pdf
Hospital’s Internal Cost Structure is Relevant to Defendant’s Claim of Unreasonable Charges
Litigant requested records from the hospital for treatment it provided to a motorist who was injured in an accident with the insured. Because the litigant claimed that the hospital’s charges were unreasonable, he requested records of the internal cost structure of the hospital. The appellate court held that such records were relevant and must be provided, but the trial court may be required to impose protective measures to guard against revelation of trade secrets.
Progressive Express Ins. Co. v. Fla. Dep’t of Fin. Servs., No. 4D10-22, 2013 Fla. App. LEXIS 1847 (Fla. 4th DCA. Feb. 6, 2013) http://www.4dca.org/opinions/Feb%202013/02-06-13/4D10-22.op.pdf
Indemnification Agreement Requires a Subcontractor’s Insurer to Defend General Contractor
Subcontractor, owner of a commercial truck, entered into a contract with a trucking company, which contained a provision requiring the subcontractor to maintain his own insurance and name the trucking company as an additional insured. The contract also contained a provision requiring the subcontractor to indemnify the trucking company from all claims arising out of the work and the subcontractor’s negligence. The subcontractor was involved in an auto accident that led to a tort claim against the trucking company. The trucking company argued it was not required to indemnify the subcontractor based on the anti-subrogation rule established in Argonaut Ins. v. Maryland Casualty Co. (contribution is not allowed between insurers for expenses incurred in the defense of a mutual insured).
The court agreed the general rule was still valid, but the indemnification agreement between the parties altered the general rule, “shifting exposure” to the subcontractor’s insurer, leaving his insurer with the obligation to defend a suit against the trucking company arising out of the subcontractor’s negligence. Therefore, the subcontractor’s insurer’s failure to defend the trucking company entitled the trucking company and its insurer to fees and costs in defending the injured driver’s claim against the trucking company.
Weber v. Marino Parking Sys., 100 So. 3d 729 (Fla. Dist. Ct. App. 2d Dist. 2012) http://www.2dca.org/opinions/Opinion_Pages/Opinion_Page_2012/November/November%2002, %202012/2D11-3745.pdf
Valet Service not Liable for “Negligently Entrusting” a Car to its Owner
Passenger went to a lounge with the driver who left his car with a valet service. The driver consumed a large quantity of alcohol while at the lounge and became visibly intoxicated. When the driver departed from the lounge, the valet service gave the driver his car, despite his apparent intoxication. After driving away, the driver was involved in an accident that caused the passenger’s death. The deceased passenger’s estate filed a cause of action against the valet service, alleging the service had a duty to refrain from returning the car keys to the driver.
The court agreed that cars are dangerous instrumentalities. However, the valet service was not liable for negligently “entrusting” the car to its rightful owner, because the valet service did not have a superior right to the driver’s car. Further, the valet service could have been found liable for conversion had it failed to return the car. Accordingly, the valet service was not legally entitled to refuse the driver’s demand for his car.
3. Federal Decision
United Fire and Casualty Co. v. Whirlpool Corporation, 704 F.3d 1338 (11th Cir. 2013) http://www.ca11.uscourts.gov/opinions/ops/201115011.pdf
After an insured suffered a fire loss in their home, expert testimony was excluded from consideration as to the origin of the fire. The testimony was precluded because it was not grounded in reliable methodology. The court held that part of the testimony was based on widely accepted methodology, and it was an error to exclude all of the expert’s testimony. Furthermore, the court held that it would be appropriate to apply the Cassi inference, when a product malfunctions during normal operation, a legal inference arises that the injured Plaintiff establishes a prima facie case for jury consideration.
B. SIGNIFICANT CASES PENDING BEFORE THE FLORIDA SUPREME COURT
Branam v. Great Lakes Reinsurance (UK), Case No. SC13-1056
Filing Coverage Action Without Proof of Status as Insured
The Court is considering the appellate court determination that a family member of a deceased insured is not permitted to file a claim under the deceased family member’s policy on behalf of the deceased without the policy rights and a trial court order authorizing the family member to file a claim unilaterally. The appellate court held that without authorization, the family member was a stranger to the policy and did not have the authority to file a claim under the policy.
Fridman v. Safeco Insurance Company of Illinois, Case No. SC 13-1607
Insurer’s Confession of Judgment
The Court is considering the appellate court’s determination that an insurance company does not have to go forward with a trial on a claim for uninsured motorist (UM) benefits where the insurer is willing to concede that the insured is entitled to and pays the full UM policy limits. Shortly before trial, the insurer filed a motion to confess judgment in which it agreed to a judgment in favor of the insured for the full UM limits. The trial court refused to enter judgment and the case proceeded to trial. The appellate court held the demand for the full UM benefits was rendered moot by the insurer’s confession of judgment.
Ifergane v. Citizens Property Insurance Corp, Case No. SC13-62
Effect of Assignment of Claim upon Policy Obligations
The Court is considering the appellate court determination that an ex-spouse’s assignment of the entire interest in a once-jointly held property requires the former spouse, a named insured on the policy, to comply with policy requirements, including submitting to an Examination Under Oath (EUO), when the assigning spouse has no further interest in the property. The assigning wife was the sole named insured on the couple’s jointly owned beachfront property that was damaged by Hurricane Wilma. Once the wife assigned her interest, she refused to comply with the insurer’s request to take her EUO.
Laughlin-Alfonso v. State Farm Insurance Company, Case No. SC 13-1769
Good Faith Settlement Proposal
The Court is considering the appellate court determination that an insurer’s nominal settlement proposal was made in good faith, entitling the insurer to attorneys’ fees. The insurer made a nominal settlement proposal after the insured did not submit a proof of loss and failed to respond to discovery requests after the insured sued the insurer. The appellate court held that based on the insured’s failure to cooperate and support her claim, the insurer had reasonable grounds to believe its exposure was limited.
Security National Insurance v. Angelotta, Case No. SC13-1519
Golf Cart Considered an “Auto” Under Insurance Policy
Insurance company sought review of the appellate court’s determination that a leased, modified golf cart operated in a retirement community was considered an “auto” under the insured’s policy. The golf cart in question was capable of speeds greater than 20 mph and had certain safety modifications designed to allow it to operate on roadways.