Volume 12

12 Fla. L. Weekly Supp. 489b

Insurance — Personal injury protection — Application — Misrepresentations — Failure to list household members — Partial summary judgment is granted on issue of whether insureds made material representation and whether misrepresentation was vitiated by agent’s knowledge of true facts — Affidavit stating that “person” at insurance agency was informed and aware of “individuals” residing in home fails to create disputed issue of material fact because it does not suggest who person was, if person was agent of insurer, and identity of individuals insured disclosed — There remains disputed issue of material fact as to whether insurer canceled policy and returned premium within reasonable time period where insurer’s sworn statement merely sets forth period of time during which insurer discovered misrepresentation, not period of time between discovery of misrepresentation and cancellation of policy and refund of premium

12 Fla. L. Weekly Supp. 656a

Insurance — Personal injury protection — Fraud — Motion to dismiss counterclaims and strike affirmative defenses in fraud action by PIP insurers against medical providers — Affirmative defenses — Where providers improperly re-pled in form of affirmative defenses same issues raised and denied in motion to dismiss, affirmative defenses are stricken — Counterclaims — Breach of contract — Where insurers seek return of payments made under PIP coverage, it is permissible for providers to file counterclaim alleging insurers breached insurance contracts — Where it appears that providers were assigned rights to receive insureds’ PIP benefits, providers have standing to maintain breach of contract counterclaim — Defamation — Counterclaim for defamation is dismissed and related claim for punitive damages is stricken where statements published in newspaper from press release issued by insurers pertaining to filing of action are pure opinion as well as fair reporting of official judicial proceeding and, as such, are not defamatory — Tortious interference with business relationships — Tortious interference counterclaim is dismissed where providers failed to plead identifiable person with whom they had relationships that were interfered with and only stated in general that certain attorneys would not work with them after insurers’ public remarks — Bad faith — Counterclaim for bad faith is dismissed as premature where providers fail to allege that they have obtained an excess judgment or assignment from insured who has obtained excess judgment — Unjust enrichment — Counterclaim for unjust enrichment is dismissed where providers fail to identify benefit allegedly conferred on insurers — Counterclaims for quantum meruit and promissory estoppel are dismissed where providers allege existence of valid written contract of insurance

12 Fla. L. Weekly Supp. 1057a

Insurance — Disability — Wrongful termination of disability benefits and waiver of premium benefits — Motion to file second amended complaint to add count for repudiation of disability insurance contracts and violation of implied covenant of good faith and fair dealing is denied — Record refutes plaintiff’s assertions that amendment is necessitated by defendant’s having changed its position immediately prior to court-ordered nonbinding arbitration to assert that plaintiff’s cause of action was solely for “breach of contract” — Not only does record reveal that defendant asserted from the onset of litigation that action was one for breach of insurance contract, plaintiff’s own documents filed in this matter state that this is breach of contract again against disability insurer as result of insurer’s unjustified termination of benefits — Plaintiff offered no other grounds for seeking leave to amend, and permitting such an amendment would severely prejudice defendant — Moreover, amendment would be futile, as proposed second amended complaint fails to state cause of action — Insurer’s refusal to pay benefits on grounds that an insured is not totally disabled under the policy is not a repudiation of the insurance contract — Claim that defendant violated implied covenant of good faith and fair dealing is nothing more than bad faith claim against defendant, and bad faith claim is premature — Under Florida law, first-party bad faith claim can only be brought after an insured prevails on first-party coverage claim

12 Fla. L. Weekly Supp. 1155a

Insurance — Automobile — Excess insurance — Coverage — Insurer seeking declaration that insured was responsible for gap between bodily injury coverage limits in underlying policy and the limits required by terms of umbrella policy in order to trigger excess coverage — Counterclaim by insured’s son who was initially a defendant to suit but subsequently dismissed from suit — Son’s motion for summary judgment on counterclaim is denied because court cannot find that there is no genuine issue of material fact — It is not clear what relief son is seeking — Further, record is incomplete and insurer’s defenses have not been addressed

12 Fla. L. Weekly Supp. 51e

Insurance — Automobile — Cancellation — Notice — Trial court erred in entering summary judgment in favor of finance company/lienholder of vehicle in action for breach of contract against insurer that refused coverage for collision damage because it had cancelled coverage on vehicle due to nonpayment of financed premium although no pre-cancellation notice was sent to lienholder — Requirements of sections 627.848(1)(c) and (d), that in event that cancellation of motor vehicle insurance policy is based on default in payment of financed premium ten days written notice of intent to cancel must be mailed to each insured named in finance agreement and to any mortgagee, required that notice be sent only to insured not to lienholder that was not part of premium finance agreement and not mortgagee — Where insurer cancelled insurance effective the date it received notice to cancel from the premium finance company, there was no coverage for loss in accident occurring six days later — Insurer complied with requirement of section 627.728(12) to send notice of termination of coverage to all known lienholders within 10 business days after termination, and there is no merit to lienholder’s argument that pre-cancellation notice was required

12 Fla. L. Weekly Supp. 518a

Insurance — Automobile — Cancellation of policy — Absence of insurable interest — Appeal from judgment in favor of plaintiff who added vehicle titled only in adult daughter’s name to plaintiff’s existing automobile insurance coverage in action against insurer who cancelled policy and denied claim for vandalism damage to vehicle after allegedly learning post-loss that daughter was sole titleholder — Error to enter partial summary judgment on issue of plaintiff’s insurable interest in vehicle where plaintiff’s statements that she loaned daughter down payment for vehicle purchase, would “have” to assume vehicle payments if daughter failed to make them, and loaned daughter vehicle while vandalized vehicle was being repaired fail to remove all doubt as to whether plaintiff possessed insurable interest — Doubt exists as to whether outlay of down payment gives rise to insurable interest, especially in absence of documentation, record is silent as to whether plaintiff was legally obligated to assume payments or loan vehicle, and record showing plaintiff owned several vehicles at time of repair raises doubt as to whether plaintiff suffered any detriment from temporary loss of one vehicle — Because grant of summary judgment on issue of insurable interest was erroneous, trial court also erred in instructing jury in trial regarding material misrepresentation on application that insurable interest had already been established — Instruction on insurable interest constituted prejudicial error because it misstated important fact to jury and created impression that insurer acted improperly — Remand for new trial

12 Fla. L. Weekly Supp. 1072b

Attorney’s fees — Insurance — Personal injury protection — Where case was settled six months or more before medical provider moved for attorney’s fees, fees were not sought within reasonable time

12 Fla. L. Weekly Supp. 802a

Attorney’s fees — Insurance — Personal injury protection — Proposal for settlement — Validity — Language in proposal for settlement stating payment of proposed sum is intended to resolve any and all claims insured has or could have asserted in action arising out of or relating to services rendered to insured is valid condition in nature of general release and does not include claims arising in future — It is not inappropriate to include amount for attorney’s fees as inclusive within offered amount — Motion to tax fees and costs granted

12 Fla. L. Weekly Supp. 431b Attorney’s fees — Where underlying judgment was reversed, award of fees must also be reversed UNITED AUTOMOBILE INSURANCE COMPANY,

12 Fla. L. Weekly Supp. 632b

NOT FINAL VERSION OF OPINION
Subsequent Changes at 12 Fla. L. Weekly Supp. 918a

Insurance — Personal injury protection — Fraud — Summary judgment — Factual issues — Error to enter summary judgment in favor of medical provider where insurer alleges fraudulent billing, affidavit of insurer’s representative states that insured confirmed during examination under oath that she did not receive same treatments on consecutive days, and billing records show instances of billing for same services on consecutive days — Error to enter summary judgment in favor of provider on issue of usual and customary charges — Illegible medical fees chart filed by provider without any explanation as to how provider used chart to arrive at his fees was not sufficient to shift burden to insurer to come forward with countering evidence — Attorney’s fees — Prevailing party — Where insurer did not appeal all issues addressed in summary judgment order, matter is remanded to trial court to determine which party prevailed below consistent with appellate proceedings