THE STATE OF FLORIDA...
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- Bertram Briggs
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1 TABLE OF CONTENTS I. THE STATE OF FLORIDA... 1 A. FREQUENTLY CITED FLORIDA STATUTES General Considerations in Insurance Claim Management Insurance Fraud Automobile Insurance Negligence, Other Torts and Contribution Miscellaneous Statutes... 7 B. FLORIDA STATUTES OF LIMITATIONS... 8 C. SIGNIFICANT FLORIDA COURT DECISIONS Supreme Court Decisions a. Insurance Coverage Decision b. Other Significant Decisions Appellate Court Decisions a. Insurance Coverage Decisions b. UM/UIM Decisions c. Other Significant Decisions D. SIGNIFICANT CASES PENDING BEFORE THE FLORIDA SUPREME COURT i
2 I. THE STATE OF FLORIDA A. FREQUENTLY CITED FLORIDA STATUTES Fla. Stat (2011) Declaratory Judgments 1. General Considerations in Insurance Claim Management This statute gives the circuit and county courts of Florida the authority to declare rights, status, and other equitable or legal relations whether or not further relief is or could be claimed. Fla. Stat (2011) Contract Provision Shortening Limitations Period This statute prohibits contract provisions which mandate an action based on the contract be brought in a shorter time period than prescribed in Florida s statute of limitations. Fla. Stat (2011) Cause of Action Arising in another State This statute prohibits a cause of action being brought in Florida if the cause of action arose in another state and the applicable statute of limitations of that state has lapsed. Fla. Stat (2011) Public Adjuster Prohibitions Statute enacted to regulate public insurance adjusters and to prevent the unauthorized practice of law. The statute prohibits public adjusters from soliciting or entering into a contract with an insured or claimant within forty-eight (48) hours of a potential claim. The statute allows an insured to cancel a contract with a public adjuster within three (3) days of its signing or three (3) days following notification of the claim to an insurer without penalty to the claimant. The statute also contains provisions restricting the activities and fees allowable by public adjusters. *See Significant Cases Pending Before the Supreme Court Fla. Stat (2011) Unfair Claims Practices; Penalties The statute pertains to penalties imposed for an unfair or deceptive practice in the insurance business. The statute includes punitive fines for persons and insurers who commit an unfair claim practice. Fla. Stat (2011) Settlement Practices Relating to Property Insurance When a homeowner s insurance policy provides for the adjustment and settlement of first-party losses based on repair or replacement cost, physical damage incurred in making a repair or replacement which is covered shall be included in the loss. When a loss requires replacement of items and the replaced items do not match in quality, color, or size, the insurer shall make 1
3 reasonable repairs or replacement of items in adjoining areas, subject to consideration of relevant factors. Fla. Stat (2011) Insurable Interest Requirement for Property No insurance contract of property shall be enforceable except for the benefit of persons having an insurable interest in the things insured at the time of the loss. The statute defines insurable interest as any actual, lawful, and substantial economic interest in the safety or preservation of the subject of the insurance free from loss, destruction, or pecuniary damage or impairment. Fla. Stat (2011) Nonjoinder of Insurers The statute requires for a person who is not an insured to obtain a settlement or verdict against a person who is an insured before a cause of action against a liability insurer can be maintained. An insurer has the right to insert a contractual provision into a liability insurance policy which precludes persons not designated as an insured from joining a liability insurer as a defendant. Fla. Stat (2011) Outline of Coverage No private passenger automobile or basic homeowner s policy shall be delivered or issued for delivery unless an outline has been delivered prior to issuance or accompanies the policy. The statute lists what an effective outline of coverage for a private passenger motor vehicle insurance policy contains. The statute also requires that a basic homeowner s policy may not be delivered or issued unless a comprehensive checklist of coverage is delivered prior to issuance. The statute lists what the comprehensive checklist of coverage must include. Fla. Stat (2011) Liability of Insureds, Coinsurance, and Deductibles If an insurance policy or contract contains provisions requiring the insured to be liable as a coinsurer with the insurer issuing the policy, the statute lists the requirements the policy must meet to do so. The statute also contains restrictions on insurers and disclosure requirements for insurers for hurricane damage deductibles. Fla. Stat (2011) Payment of Claims for Dual Interest Property Effective for policies issued or renewed on or after Oct. 1, 2006, a property insurer shall transmit claims payments directly to the primary policyholder, payable to the primary policyholder only, without requiring a dual endorsement from any mortgage holder or lienholder, for amounts payable for personal property and contents, additional living expenses, and other covered items that are not subject to a recorded security interest. Fla. Stat (2011) Insurer s Duty to Acknowledge Communications Regarding Claims; Investigation An insurer shall review and acknowledge receipt of a communication with respect to a claim within fourteen (14) calendar days, unless payment is made within that time period or the failure to respond is caused by factors beyond the insurer s control. The acknowledgement requirement 2
4 shall not apply to claimants represented by counsel beyond communications necessary to provide forms and instructions. Within ten (10) working days after an insurer receives proof of loss, the insurer shall begin an investigation as is reasonably necessary. Within ninety (90) days after an insurer receives notice of a property insurance claim, the insurer shall pay or deny such claim or a portion of the claim unless failure to pay is caused by factors outside the insurer s control. Fla. Stat (2011) Alternative Procedure for Resolution of Disputed Property Insurance Claims This statute sets forth a nonadversarial procedure for a mediated claim resolution conference as an effective, fair, and timely alternative to the traditional adversarial appraisal process. Fla. Stat (2011) Insurer Contracts with Building Contractors An insurer who offers residential coverage may contract with a building contractor skilled in techniques that mitigate hurricane damage. The insurer must guarantee the building contractor s work if the insurer offers policyholders the option to select the services of such building contractors. The insurance company is not liable for the actions of the building contractor. Fla. Stat (2011) Residential Windstorm Coverage Required This statute requires an insurer issuing a residential property insurance policy to provide windstorm coverage. An insurer must make an exclusion of windstorm coverage and an exclusion of coverage of contents, available at the option of the policyholder. The statute lists criteria which must be met for such exclusions. Fla. Stat (2011) Settlement of Minor s Claims A settlement agreement of a minor s claim reached after an action has been commenced must be approved by the court having jurisdiction over the action. If a settlement agreement is reached before an action is commenced, the court may authorize the settlement if it will be for the best interest of the minor. If the net settlement exceeds $15,000.00, the court shall appoint a guardian on the minor s behalf. 2. Insurance Fraud Fla. Stat (2011) Representations in Applications and Warranties Any statement or description made by an insured in an application for insurance is a representation. A misrepresentation, omission, or concealment of fact may prevent recovery if it is material to either acceptance of the risk or to the hazard assumed by the insurer or if the insurer, in good faith, would not have issued the policy, the same coverage, the same premium rate, or insured in as large an amount had the true facts been known. 3
5 Fla. Stat (2011) Forms for Proof of Loss Furnished On request of any person claiming to have a loss under an insurance contract, an insurer shall furnish forms of proof of loss. This statutory requirement does not include a responsibility for the completion of such proof by the insurer. Fla. Stat (2011) Claims Administration Acknowledgement of the receipt of notice of loss or claim under a policy, furnishing forms for reporting a loss or claim, for giving information relative to a loss or claim, for making proof of loss, or investigating any loss or claim under any policy or engaging in settlement negotiations does not constitute a waiver of any provision of a policy or any defense. A liability insurer shall not be permitted to deny coverage based on a particular coverage defense unless: (a) written notice of reservation of rights to assert a coverage defense is given to the insured within thirty (30) days after the insurer knew of the coverage defense, and (b) at least thirty (30) days before trial, the insurer gives notice of its refusal to defend the insured, obtains from the insured a nonwaiver agreement setting out the specific facts and policy provisions upon which the coverage defense is asserted, and retains independent counsel. Fla. Stat (2011) Investigation of Fire; Reports The state fire marshal shall investigate the cause, origin, and circumstances of every fire occurring in Florida where property has been damaged or destroyed where there is probable cause to believe that the fire was the result of carelessness or design. Fla. Stat (2011) False Statements to Insurers This statute deems false statements or representations by a firefighter employer to an insurer of workers compensation insurance a second degree misdemeanor. Fla. Stat (2011) Minimum Insurance Required 3. Automobile Insurance This statute requires motor vehicle insurance in the amounts of: 1. $10, in case of bodily injury to, or death of, one person in any one crash; 2. $20, in case of bodily injury to, or death of, two or more persons in any one crash; 3. $10, in case of injury to, or destruction of, property of others in any one crash. Fla. Stat (2011) Settlement Practices Relating to Motor Vehicle Insurance The statute specifies prohibited conduct in settling motor vehicle insurance claims and applies to both personal and commercial claims. When liability and damages owed are reasonably clear, an insurer may not recommend that a third-party claimant make a claim on his or her own policy solely to avoid paying the claim under the policy issued by that insurer. Methods for adjustment 4
6 and settlement of a motor vehicle total loss are provided and include a cash settlement, a replacement motor vehicle, or another method agreed to by the claimant. Fla. Stat (2011) Stacking of Coverages The statute prohibits stacking of insurance policies when an insured is protected by any type of motor vehicle insurance policy. The insured is only covered to the extent provided on the vehicle involved in the accident. The stacking prohibition does not apply to uninsured motorist coverage. Fla. Stat (2011) Rental and Leasing Driver s Insurance to be Primary The valid insurance providing coverage for the lessor of a motor vehicle for rent or lease is primary unless otherwise stated. If the lessee s coverage is to be primary, the statute sets out the specific language which the lease agreement must contain in order for such coverage to be effective. Fla. Stat (2011) Uninsured and Underinsured Motor Vehicle Coverage No motor vehicle liability insurance policy shall be issued unless uninsured motor vehicle (UMV) coverage is provided therein. An insured may make a written rejection of the coverage on behalf of all insureds under the policy. If the motor vehicle is leased, the lessee has the sole privilege to reject uninsured motorist coverage. The insurer shall notify the insured at least annually of the insured s options as to UMV coverage. The term uninsured motor vehicle includes an insured motor vehicle when the liability insurer thereof: (a) is unable to make payment with respect to the liability of its insured due to its insolvency, (b) has provided limits of bodily injury liability for its insured which are less than the total damages sustained by the person entitled to recover damages, or (c) excludes liability to a nonfamily member whose operation of an insured vehicle results in injury to the named insured. Fla. Stat (2011) Motor Vehicle Liability A motor vehicle insurance policy providing personal injury protection must also provide coverage for property damage liability. Insurers shall make coverage available for bodily injury, death, and property damage arising out of ownership, use, or maintenance of a motor vehicle in an amount not less than $10, for injury or death of one person in any one crash, $20, for injury or death of two or more persons in any one crash, and coverage available for property damage in an amount not less than $10, for the injury or destruction of another s property. Fla. Stat (2011) Florida Motor Vehicle No-Fault Law Florida statutes within the range of section to section may be cited and known as the Florida Motor Vehicle No-Fault Law. 5
7 Fla. Stat (2011) Required Personal Injury Protection Benefits, Exclusions, Priority, and Claims This statute provides required insurance policy benefits, including, to a limit of $10,000.00, eighty (80) percent of all reasonable expenses for necessary medical services, sixty (60) percent of any loss of gross income and loss of earning capacity per individual from inability to work, and death benefits equal to the lesser of $5, or the remainder of unused personal injury protection benefits per individual. This statute also authorizes exclusions of benefits for injuries sustained while occupying another motor vehicle owned by the insured and not insured under the policy, for injury sustained by any person operating the insured motor vehicle without consent, for injury caused to one s self intentionally or for injury sustained while committing a felony. Fla. Stat (2011) Tort Exemptions; Limitation on Right to Damages; Punitive Damages This statute exempts owners and operators of motor vehicles from tort liability to the extent that the benefits required for personal injury protection under Fla. Stat are applicable. In any tort action brought against the owner or operator of a motor vehicle, a plaintiff may recover damages in tort for pain, suffering, mental anguish, and inconvenience because of bodily injury or disease only in the event that the injury or disease consists in whole or in part of: (a) Significant and permanent loss of an important bodily function. (b) Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement. (c) Significant and permanent scarring or disfigurement. (d) Death. Fla. Stat (2011) Application of the Florida Motor Vehicle No-Fault Law This statute revives the Florida Motor Vehicle No-Fault Law, effective January 1, 2008, after the law was repealed on October 1, This statute requires personal injury protection coverage for motor vehicle owners. The statute recognizes that vehicle owners were not required to maintain personal injury protection coverage from October 1, 2007 to January 1, Fla. Stat (2011) Bad Faith 4. Negligence, Other Torts and Contribution This statute provides a civil remedy in the event an insurer does not attempt, in good faith, to settle claims toward its insured. 6
8 Fla. Stat (2011) Valued Policy Law This statute fixes the measure of damages payable to the insured in the amount of a total loss as the amount of money specified in the policy for which premiums were charged and paid. This statute does not deprive an insurer of any proper defense, and the insurer is never liable for more than the amount necessary to repair, rebuild, or replace the structure. An insurer is not prohibited from repairing or replacing damaged property at its own expense, without contribution on the part of the insured, except when an insured has elected to purchase stated value coverage. Any insurer may provide insurance indemnifying the insured for the difference between the value of the insured property at the time of loss and the amount expended to repair, rebuild, or replace it. 5. Miscellaneous Statutes Fla. Stat (2011) Readable Language in Insurance Policies Effective for policies written on or after Oct. 1, 1983, this statute requires that every insurance policy written in Florida pass a readability test and lists the criteria a policy must meet to be deemed readable. The statute also lists types of policies to which the readability requirement does not apply. Fla. Stat (2011) Payment of Settlement In a case in which a settlement between a person and insurer has been reached, the insurer shall tender payment no later than twenty (20) days after such settlement is reached. If the payment is not tendered within twenty (20) days or another date agreed to by the parties, it shall bear interest at the rate of twelve (12) percent per year from the date of the settlement agreement. 7
9 B. FLORIDA STATUTES OF LIMITATIONS Claim Type/Section Specific Performance of a Contract Fla. Stat (5)(a) Statute Period One year for an action for specific performance of a contract. O N E Y E A R Claim Type/Section Medical Malpractice Fla. Stat 95.11(4)(b) Wrongful Death Fla. Stat (4)(d) Statute Period Two years from the time the incident giving rise to the action occurred, or two years from the time the incident should have been discovered with due diligence. In no event shall the action be commenced later than four years from the date of the incident or occurrence out of which the cause of action occurred. Two years for an action for wrongful death. T W O Y E A R S Libel or Slander Fla. Stat (4)(g) Two years for an action for libel or slander. 8
10 Claim Type/Section Bodily Injury due to Negligence Fla. Stat (3)(a) Personal Property damage due to Negligence Fla. Stat (3)(a) Trespass to Property Fla. Stat (3)(g) Statute Period Four years for an action founded on negligence. Four years for an action founded on negligence. Four years for an action for trespass on real property. F O U R Y E A R S Fraud Fla. Stat (2)(a) For an action founded on fraud, four years, with the period running from the time the facts giving rise to the cause of action were discovered or should have been discovered with the exercise of due diligence. In any event, an action for fraud must be begun within twelve years after the date of the commission of the alleged fraud. Breach of Contract not in Writing Fla. Stat (3)(k) Four years for an action on a contract not founded on a written instrument. Assault and Battery Fla. Stat (3)(o) Four years for an action for assault and battery. Malicious Prosecution Fla. Stat (3)(o) Statutorily Created Liability Fla. Stat (3)(f) Rights not Otherwise Provided for Fla. Stat (3)(p) Four years for an action for malicious prosecution. Four years for an action founded on a statutory liability. Four years for any action not specifically provided for. 9
11 Products Liability Fla. Stat (3)(e), Fla. Stat (2)(b) Four years for an action founded on the design, manufacture, distribution or sale of personal property not permanently incorporated into real property. Under no circumstances may a claimant commence an action for products liability to recover for harm allegedly caused by a product with an expected useful life of ten years or less, if the harm was caused by exposure to or use of the product more than twelve years after delivery of the product to its first purchaser or lessee who was not engaged in the business of selling or leasing the product or of using the product as a component in the manufacture of another product. Claim Type/Section Contract in Writing Fla. Stat (2)(b) Foreclosure of Mortgage Fla. Stat (2)(c) Statute Period Five years for an action on a contract founded on a written instrument. Five years for an action to foreclose a mortgage. F I V E Y E A R S 10
12 Claim Type/Section Bad Faith Fla. Stat Minor s Claims Fla. Stat (1)(h) Statute Period As a condition precedent to bringing an action of bad faith, an insurer must have been given sixty (60) days written notice of the violation. No action shall lie if, within sixty (60) days after filing notice, the damages are paid or the circumstances giving rise to the violation are corrected. Except as to claims of medical malpractice, the statute of limitations does not begin to run until the minor reaches the age of majority. In any case, the action must be begun within seven years after the act or event giving rise to the cause of action. O T H E R 11
13 C. SIGNIFICANT FLORIDA COURT DECISIONS 1. Supreme Court Decisions a. Insurance Coverage Decision Rafael Vargas v. Enterprise Leasing Company, etc., et al., 60 So.3d 1037 (Fla. 2011) Eliminating Vicarious Liability for some Lessors through Federal Statute Preemption The lessee of a car from a rental car company rear-ended Vargas s vehicle. Vargas filed suit against the rental car company under the theory of vicarious liability pursuant to Florida statute (9)(b)(2). According to the statute, the lessor of a vehicle is deemed the owner for purposes of liability determination as long as the term of the lease is less than one year. The issue presented to the Supreme Court of Florida was whether the federal Graves Amendment, which seeks to eliminate vicarious liability for a specific category of owner/lessors, preempted (9)(b)2. The Court held that section (9)(b)2 does not require insurance or its equivalent as a condition of licensing or registration, and was thus preempted by the Graves Amendment. b. Other Significant Decisions Fla. Ins. Guar. Ass'n v. Devon Neighborhood Ass'n, 36 Fla. L. Weekly S311 (Fla. June 30, 2011) Effect of Statutory Amendments on Insurance Policy Appraisal Rights This case involved certain hurricane damage claims against Southern Family Insurance under a 2004 insurance policy. Southern Family could not pay out the claim due to insolvency, so Devon filed claims with the Florida Insurance Guaranty Association (FIGA), created by statute to provide a mechanism for payment of covered claims under certain classes of insurance policies issued by insurers which have become insolvent. When the appraisal provision of the policy was invoked, the court had to decide the issue of whether a 2005 amendment to insurance statutes, which barred an insurer from exercising its appraisal rights if it had not given notice of mediation, applied retroactively to Devon s 2004 insurance policy. The Florida Supreme Court overturned the appellate court s finding that it applied retroactively. The appellate court misapplied precedent when it omitted the first inquiry into whether the legislature clearly expressed an intent that the statute be applied retroactively and moved directly to the second inquiry: whether retroactive application would be constitutional. For this reason, and because there is no clear evidence of legislative intent for retroactivity, the Supreme Court quashed the appellate decision, thus allowing FIGA to assert its appraisal rights. Genovese vs. Provident Life and Accident Ins. Co., Fla. L. Weekly S97 (Fla. Mar. 17, 2011) Upholding Attorney-Client Privilege in Bad Faith Claims This case involved a statutory first-party bad faith action. Plaintiff brought suit against his insurer, Provident, after Provident terminated the monthly payments under Genovese s disability income policy. During discovery, Plaintiff requested production of Provident s entire litigation file, including both attorney work product and communications falling under the attorney-client privilege. Genovese cited Allstate Indemnity Co. v. Ruiz, 899 So.2d 1113 (Fla. 4th DCA 2006), which held that work product was discoverable in first-party bad faith claims, and asserted that 12
14 Ruiz also applied to attorney-client privileged communications. The issue was sent to the Florida Supreme Court as a certified question. The Court held that, while the Ruiz decision did supply an exception to the work product doctrine, it did not extend to attorney-client privileged communications. The Court noted that production of some work product was necessary for a plaintiff to bring sufficient evidence of a bad faith claim, but that requiring production of privileged communications would subvert the purpose of the privilege: to encourage full and frank communications between the client and attorney. 2. Appellate Court Decisions a. Insurance Coverage Decisions Kingsway Amigo Ins. Co. v. Ocean Health, Inc., 63 So.3d 63 (Fla. 4th DCA 2011) Calculation of Claims Payment Amounts An insured was injured in a motor vehicle accident and sought medical services from a chiropractor. The insured assigned his PIP benefits to the chiropractor who then billed the insurer, Kingsway Amigo Insurance Co., directly. The insurer paid the bills at eighty (80) percent of two-hundred (200) percent of the Medicare Part B fee schedule, which was less than eighty (80) percent of the billed amount. In doing so, the insurer relied on (5)(a)(2), Florida s Motor Vehicle No Fault Act. The insured s policy stated the insurer would pay eighty (80) percent of medical expenses which was defined as those that it was required to pay that were reasonable expenses for medically necessary services. The trial court certified a question to the appeals court asking whether a PIP insurer may elect to use the Medicare Part B fee schedules set forth in (5)(a)(2) when the policy specified that the insurer would pay eighty (80) percent of medically necessary expenses. The appellate court found that the policy's language did not say it would pay eighty (80) percent of two-hundred (200) percent of Medicare Part B Schedule as provided in (5)(a)(2) and that the insurer must abide by the payment plan contained in the policy. The court stated the statutes allowed an insurer to choose between two different payment calculation options, but the method contained in the policy was dispositive. MRI Assocs. of Am., LLC v. State Farm Fire & Cas. Co., 61 So.3d 462 (Fla. 4th DCA 2011) Requisites for Approval of Coverage Plaintiff s chiropractor referred her to MRI Associates of America for diagnostic testing. She assigned her PIP benefits to MRI Associates who subsequently made a claim to State Farm seeking payment for two MRI scans. State Farm denied payment, relying on an expert opinion deeming the scans not reasonable and for failure to correctly calculate the charges. MRI Associates then sent State Farm a pre-suit demand letter pursuant to Fla. Stat (11). Again, State Farm declined to pay. MRI Associates filed suit and was granted summary judgment. The appellate court reversed, finding that State Farm could rely on its expert s report to deny payment and that MRI Associates pre-suit demand letter was premature. Valero v. Fla. Ins. Guar. Ass'n, 59 So.3d 1166 (Fla. 4th DCA 2011) Denial of Coverage due to Sexual Molestation Exclusion An insurer filed a declaratory judgment action seeking a judgment that it was not obligated to provide a defense or coverage for a negligent supervision action against its insured stemming from sexual molestation. The insurer argued that the action met an exclusion under the insured s policy. The insureds argued that the sexual molestation exclusion was inapplicable because the 13
15 alleged victim's underlying action was based on the insureds' negligent supervision of the alleged perpetrator, and not on sexual molestation by the insureds. However, the appellate court affirmed the trial court s summary judgment, holding that the language excluding coverage for sexual molestation was clear and unambiguous. b. UM/UIM Decisions Mitleider v. Brier Grieves Agency, Inc., 53 So.3d 410 (Fla. 4th DCA 2011) Rejection of UM Coverage This case involved a claim from an insurance agency against its insurer alleging negligence, negligent misrepresentation, and vicarious liability. The insured s claim was based on the allegation that the insurer had failed to notify the insured of the availability of UM coverage. The insurance agency moved for dismissal on the theory that the insured had signed a form expressly rejecting UM coverage. The trial court denied the motion to dismiss, but the appellate court reversed, holding that section (9), Florida Statutes (2007), creates a conclusive presumption that an informed and knowing rejection of uninsured motorist coverage was made. Simmons v. State Farm Fla. Ins. Co., 55 So.3d 636 (Fla. 5th DCA 2011) Stacking of UM Coverage Limits Simmons was injured in an auto accident. At the time, Simmons was insured under a State Farm umbrella policy issued to his father, with a $5,000, liability limit and a $1,000, uninsured motorist (UM) limit. In an action for uninsured motorist benefits, Simmons argued that the UM benefits were stackable and that, since there were four vehicles insured under the policy, he was owed $4,000, The appellate court upheld the trial court s ruling that the policy limit was not stackable. The court reasoned that if separate premiums were paid per vehicle for UM coverage, then Simmons would be entitled to stack those policies by law, but that was not the case here due to the fact that there was a single premium paid for the coverage. Sommerville v. Allstate Ins. Co., 36 Fla. L. Weekly D1299 (Fla. 2d DCA June 17, 2011) Employee UM Coverage, Policy Definitions Sommerville sued her employer s insurer for UM benefits for injuries that she suffered while riding a motorcycle rented by her employer. The trial court granted summary judgment for the insurer based on the reasoning that the uninsured motorist (UM) provision of Sommerville s employer s policy did not cover Sommerville s accident. On appeal, the court reversed, holding that although Sommerville s employer chose lower UM liability limits, the trial court erred in holding that the policy excluded UM benefits to an employee. The trial court had relied on a narrow definition of covered autos in the UM provision of the insurance policy. The appellate court relied on precedent in holding that an insurer cannot define covered autos more narrowly for UM purposes than for liability purposes. In such a case, the covered autos definition for liability purposes will be used for UM purposes as well. State Farm Mut. Auto. Ins. Co. v. Curran, 36 Fla. L. Weekly D195 (Fla. 5th DCA Jan. 28, 2011) Fulfillment of Policy Conditions for UM Benefits Curran was insured by State Farm and filed for UM benefits after being in an automobile accident with an underinsured driver. Judgment was entered for Curran at trial and State Farm appealed. State Farm argued that attendance at a compulsory medical examination pursuant to an express provision of Curran s insurance policy was a condition precedent to tendering UM 14
16 benefits and Curran had failed to participate. The appellate court agreed and reversed the trial court s finding for the insured. Swan v. State Farm Mut. Auto. Ins. Co., 60 So.3d 514 (Fla. 3d DCA 2011) Stacking of UM Coverage Limits This case involved a dispute over uninsured motorist benefits stemming from an automobile accident where a vehicle driven by an uninsured motorist struck a vehicle driven by the insured. When the plaintiff brought suit for UM benefits, he sought coverage under two policies the plaintiff had with the insurer, one policy for a Honda and one for an Acura. Plaintiff had expressly rejected UM coverage on the Acura policy but paid a premium for stacked UM coverage on the Honda policy. The insurer paid the limits on the Honda policy where UM coverage had been paid for, but denied payment on the Acura policy. The trial court granted summary judgment for the insurer. Summary judgment was upheld on appeal because, under Florida law, an insured may only stack UM coverage if a premium was paid for that coverage on more than one policy. c. Other Significant Decisions Brown v. City of Vero Beach, 36 Fla. L. Weekly D1380 (Fla. 4th DCA June 29, 2011) Governmental Immunity for Claims Involving Beach Conditions Plaintiff s decedent drowned while attempting to save his friend who was caught in an ocean rip current. Brown s parents, as representatives of his estate, brought a wrongful death action against the city of Vero Beach. The city brought a motion to dismiss, arguing that the suit could not be brought because of Fla. Stat (6), exempting local government entities from liability for any injury or loss of life caused by changing surf and other naturally occurring conditions along coastal areas. The court of appeal affirmed the trial court s dismissal of the action based on The statute clearly and unambiguously precludes such a claim. Fossett v. Southeast Toyota Distribs., LLC, 60 So.3d 1155 (Fla. 1st DCA 2011) Workers Compensation Immunity Fossett was employed by a help supply services company which sent her to work at Southeast Toyota Distributors, LLC (the distributor) in accord with a contract between the distributor and the worker's employer. After three months working at the distributor s car wash, Fossett was seriously injured when a car was left in gear and ran her over. Fossett brought a negligence claim against the distributor. The distributor moved for summary judgment, arguing that it was immune from suit under Fla. Stat (2) because it had contracted for Fossett s work as a temporary employee. The trial court and appellate court agreed, reasoning that the contract between the distributor and the employer stated that services to be performed by employees provided by the employer were to be performed under the distributor's direction, supervision, and control. The contract gave the distributor the right to control Fossett s work, bringing the employment agreement within the scope of the immunity statute. Gov't Employees Ins. Co. v. King, 36 Fla. L. Weekly D969 (Fla. 2d DCA May 6, 2011) Eliminating Conditional Judgments of Attorney s Fees The insured who had succeeded on an uninsured motorist claim against his insurer argued that he was entitled to a judgment of attorneys' fees, conditioned on success, for appellate level work in this case, citing precedent where a conditional judgment of attorneys' fees for work at the trial court level was awarded. The appellate court found that, although the concept of a conditional 15
17 judgment may have seemed like a good idea, it presented unforeseen difficulties as it was not an appealable judgment. In addition, the conditional judgment practice had not gained acceptance and had been criticized in part. The insured was not entitled to an award of attorneys' fees in this appeal at this time, and there was no legal basis for the appellate court to order the trial court to determine a contingent award of appellate attorneys' fees for use in any subsequent lawsuit. Ill. Nat'l Ins. Co. v. Bolen, 53 So.3d 388 (Fla. 5th DCA 2011) Timing for Bad Faith Claims Bolen was injured in an automobile accident and filed two claims against her insurer, one for uninsured motorist (UM) benefits and one for bad faith. The trial court entered an order abating the bad faith claim until liability of the tortfeasors had been determined. After Bolen succeeded on the UM claim, but before her insurer s appeal was final, she moved for the abatement to be lifted. The court ruled that a bad faith claim against an insurer may not ripen until proceedings for a determination of liability and damages against tortfeasors has been followed through in its entirety. Peak v. Outward Bound, Inc., 57 So.3d 997 (Fla. 2d DCA 2011) Governmental Immunity The decedent s estate brought a wrongful death action against Outward Bound, Inc. The trial court granted defendant s motion to dismiss based on Florida sovereign immunity statute due to the fact that Outward Bound, Inc. was operating as an agent to Florida s Department of Juvenile Justice via a contractual relationship. The court of appeals reversed because the complaint failed to conclusively demonstrate that, at the time of the alleged negligence, Outward Bound was "acting within the scope of and pursuant to guidelines established in the contract or by rule. State Farm Mut. Auto. Ins. Co. v. Swindoll, 54 So.3d 548 (Fla. 3d DCA 2011) Court Sanctions for Expert Witness Behavior At trial, State Farm s medical expert witness became hostile and refused to give straight answers. After disregarding instructions from the trial court judge and giving speculative opinion, the court granted a mistrial and imposed Swindoll s attorney s fees against State Farm as a sanction. On appeal, the court held that the sanction was improperly imposed. The court held that, in general, the party designating an expert witness in a civil trial becomes responsible for that expert s conduct as a witness. However, imputation of sanctions imposed in this case for the expert s behavior is improper without a finding of some bad faith or egregious misconduct. The case was remanded to decide on that issue. Underwriters of Lloyds of London v. Cape Publ'ns., Inc., 63 So.3d 892 ( Fla. 5th DCA 2011) Subrogation against Insured Cape Publications, Inc. (Cape) leased commercial space in a building from the Brandons with a portion of its rent going to its pro rata share of an insurance premium for the building. A fire damaged the part of the building occupied by Cape. The insurer paid the Brandons claim and then subrogated against Cape. Cape argued it was not liable because its pro rata payments of the insurance premium made Cape a co-insured. The trial court agreed and granted summary judgment for Cape. The appellate court adopted the case-by-case approach in determining whether an insurer can bring a subrogation action against its insured and determined that the insurer could not bring a subrogation action against Cape. According to the court, it was clear 16
18 parties intended for Cape to be a beneficiary or coinsured under the insureds' property and casualty insurance policy. United Auto. Ins. Co. v. Estate of Levine, 36 Fla. L. Weekly D679 (Fla. 3rd DCA Mar. 30, 2011) Evidence in Bad Faith Claims The estate of Levine, a motorist killed in a traffic accident, sued the other involved motorist, Hernandez. Hernandez s insurer tendered the $10, bodily injury limit under Hernandez s policy to Levine s estate, but the insurer also included a Release of All Claims and an indemnification agreement, leaving it unclear whether disbursement of the funds was conditioned on acceptance of the additional documents. Levine s estate then brought a bad faith claim against the insurer under Fla. Stat The insurer argued at trial that it was entitled to show that it settled two other independent claims stemming from the accident quickly as evidence that it acted in good faith. The trial court rejected this argument and excluded the evidence. The appellate court affirmed, finding that the trial court had properly determined that the fact that one claimant negotiated separate settlement terms with the insurer did not tend to prove whether the insurer acted properly regarding the estate's claim. D. SIGNIFICANT CASES PENDING BEFORE THE FLORIDA SUPREME COURT Atwater v. Kortum, So.3d (Fl. App. 1 Dist. 2011) Constitutional Challenge to Fla. Stat (2011) The Supreme Court will determine whether the statute barring contact between a public adjuster and an insured until at least forty-eight (48) hours after a loss is constitutional. Chalfonte Condo Apt. Ass n. v. QBE Ins. Corp., No. SC Whether Bad Faith Claim may be Asserted for Untimely Investigation The Supreme Court will decide: (1) Does Florida law recognize a claim for breach of the implied warranty of good faith and fair dealing by an insured based on the insurer s failure to investigate and assess the insured s claim within a reasonable period of time? (2) If Florida law does recognize such a claim, whether the claim is subject to the same bifurcation requirement applicable to a bad faith claim under Fla. Stat. Sec ? Chandler v. Geico Indemity Co., No. SC ; Steele v. Geico Indem. Co., No. SC Whether Rental Car Agreement affects Temporary Substitute Vehicle Status under Renter s Policy Rehearing on Supreme Court s decision holding that a rental vehicle driven by an unauthorized driver qualifies as a temporary substitute vehicle under the renter s automobile policy, and that the automobile insurer was required to indemnify and defend the insured under the terms of the policy where the insured gave consent to another to drive the vehicle, despite the fact that the rental agreement specified that no additional operators were permitted to drive the vehicle. Citizens Property Ins. Corp. v. San Perdido Assoc., Inc., 46 So.3d 1051 (Fl. App. 1 Dist. 2010) Whether Appeal Regarding Statutory Immunity for Bad Faith must Await Final Judgment The Supreme Court will determine whether Citizens is immune from liability on a bad faith claim since it is a governmental entity. 17
19 Lakeview Reserve Homeowners Ass n., Inc. v. Moranda Homes, Inc., Nos. SC & SC Standing to Pursue Certain Claims The Supreme Court is to decide if a homeowners association can bring a claim for breach of common law implied warranties of fitness and merchantability also referred to as a warranty of habitability against a builder/developer for defects in roadways, drainage systems, retention ponds, and underground pipes in a residential subdivision, or whether such claims must be brought by individual homeowners. Rippy v. Shepard, No. SC Farm Tractor Liability The Supreme Court will decide whether a farm tractor is a dangerous instrumentality making its owner strictly liable for injury for another person s negligent operation. Tiara Condo. Ass n. v. Marsh & McLennan Cos., No. SC Insurance Broker Liability The Supreme Court is to decide whether an insurance broker provides a professional service such that the insurance broker is unable to successfully assert the economic loss rule as a bar to tort claims seeking economic damages that arise from the contractual relationship between the insurance broker and the insured. These cases were pending at the time this summary was printed. To confirm whether the Supreme Court has issued a decision in any of these cases, we invite you to visit our website at 18
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