Volume 19

19 Fla. L. Weekly Supp. 489a

Online Reference: FLWSUPP 1906MGONInsurance — Personal injury protection — Examination under oath — Failure to attend EUO is condition subsequent to payment of PIP benefits that may be raised as affirmative defense — Insurer waived ability to assert EUO no-show defense where EUOs requested were outside thirty-day period during which attendance is mandatory

19 Fla. L. Weekly Supp. 613a

Online Reference: FLWSUPP 1908AUGUInsurance — Personal injury protection — Affirmative defenses — Amendment — Where insurer knew that insured lived with family member covered under another insurance policy four years before filing answer and five years before filing motion to amend affirmative defenses to assert coverage defense based on that fact, and insurer’s failure to assert defense resulted in insured being barred from initiating claim against other insurance carrier, prejudice to insured outweighs what may have otherwise have been deemed abuse of discretion in denying motion to amend

19 Fla. L. Weekly Supp. 1063a

Online Reference: FLWSUPP 1913PEARInsurance — Appeals — Nonfinal orders — Certiorari review of nonfinal order denying or striking demand for jury trial is inappropriate — Petition denied

19 Fla. L. Weekly Supp. 1098b

Online Reference: FLWSUPP 1913MCKIInsurance — Personal injury protection — Action by medical provider against PIP insurer alleging underpayment of PIP benefits is dismissed for lack of jurisdiction where provider was included in settlement class of class action involving same claims that resulted in final order and judgment in which insurer is among released parties and which established class action court’s exclusive and continuing jurisdiction of all matters relating to class action

19 Fla. L. Weekly Supp. 819a

Online Reference: FLWSUPP 1910EVERInsurance — Homeowners — Breach of contract claim alleging that insurer failed to pay under “Ordinance or Law” provision of policy and related claim for declaratory action are dismissed with prejudice where second amended complaint did not plead that homeowner has become liable for, or had actually incurred, any additional costs due to enforcement of ordinance or law

19 Fla. L. Weekly Supp. 543a

Online Reference: FLWSUPP 1907SCHIInsurance — Homeowners — Class action — Certification — Motion for certification of class in action against property insurer that failed to pay general contractor’s overhead and profit as part of actual cash value claims is denied — Plaintiff has failed to prove numerosity where evidence of class size is speculative and over-inclusive, plaintiff has provided no proof that joinder of each class member is impracticable, and ascertaining putative class members would require protracted individual inquiries — Plaintiff has failed to satisfy commonality requirement where putative common questions would depend on individual facts of each policy and claim — Typicality is lacking where record lacks evidence that plaintiff made ACV claim, proof of plaintiff’s claim would not necessarily prove any other putative class member’s claim, and insurer has unique defenses to plaintiff’s claim — Adequacy requirement is not met where record demonstrates that plaintiff lacks knowledge of status and factual basis for his claim or claims of putative class members and is incapable of prosecuting or controlling litigation, and that counsel demonstrated extreme lack of diligence and unprecedented lack of communication with putative class members — Failure to seek class certification until more than five years after case commenced further renders plaintiff and counsel inadequate — Predominance requirement of rule 1.220(b)(3) is not met where plaintiff has not demonstrated existence of industry-wide “three trades rule” that would be applicable to all members of putative class — Multitude of individual issues and inquiries required demonstrates that class action would be unmanageable

19 Fla. L. Weekly Supp. 877b

Online Reference: FLWSUPP 1910PEREInsurance — Personal injury protection — Exclusions — Insured injured while occupying vehicle owned by named insured and not covered by policy — Where policy unambiguously provided that benefits would be excluded “to the named insured or any relative while occupying a motor vehicle of which the named insured is the owner and which is not insured under this insurance,” insured was not entitled to coverage for injuries sustained while she was occupying vehicle owned by her husband and her mother, who was a named insured under the policy at issue, where that vehicle was not covered under the policy — Fact that insured was temporarily separated from her husband at time of accident does not change result — Moreover, policy of insurance unambiguously defines “owner” as one who holds “legal title,” and plaintiff has never disputed that mother fell within that definition

19 Fla. L. Weekly Supp. 297b

Online Reference: FLWSUPP 1904VARGInsurance — Personal injury protection — Coverage — Insured occupying vehicle owned by named insured and not covered by policy

19 Fla. L. Weekly Supp. 629a

Online Reference: FLWSUPP 1908PRIVInsurance — Homeowners — Excess liability — Coverage — Exclusions — Business pursuits exception in homeowners and excess liability policies applies to action against insured for alleged conduct of advertising psychic services on internet which, while allegedly intentional and criminal, fell squarely within natural range and scope of his business pursuits for company that provides psychic hotlines — Allegations of intentional and criminal acts also fall within policy provisions excluding coverage for intentional acts — Provision of insurance for intentional torts or criminal acts would be contrary to Florida common law and public policy — Summary judgment granted in favor of insurer

19 Fla. L. Weekly Supp. 587a

Online Reference: FLWSUPP 1907WALDInsurance — Discovery — Privilege — Work product — After in camera inspection, trial court determines that insurer’s internal emails, computer report, and majority of activity log and correspondence were prepared in contemplation of litigation and are protected by work product privilege — Other pages of activity log and correspondence are not privileged, and mere placement in claims file does not make them so — Where it is not clear if photographs of vehicle were taken in anticipation of litigation or in ordinary course of business, evidentiary hearing will be required to resolve issue — Documents allegedly related to another lawsuit are not privileged where some documents related to instant suit and others related to other suits involving same accident