Volume 5

5 Fla. L. Weekly Supp. 391a

Insurance — Uninsured motorist — Exclusions — Plaintiff, who was struck by vehicle separately owned by her husband and separately insured, seeking recovery for personal injury resulting from accident under UM coverage of her policy, because she cannot recover damages under her husband’s policy due to family exclusion contained therein — Genuine issue of material fact exists as to applicability of policy provision excluding from the definition of uninsured motor vehicle a vehicle “furnished for regular use of you, your spouse, or any relative” where it was unclear whether vehicle was “furnished” to husband, solely owned by husband, or furnished to plaintiff and/or other family members on occasion — Because provision merely excludes vehicles “furnished” for regular use of insured or members of her family from uninsured motorist coverage, and not vehicles “owned” by such persons, questions of whether vehicle driven by husband was owned solely by him and whether vehicle was perhaps also “furnished” to plaintiff and/or other members of her family on occasion, thereby precluding coverage, become relevant and material — Plaintiff’s theory that husband was uninsured or underinsured by having policy of insurance with family exclusion to coverage for personal and/or bodily injury has merit — Although husband’s vehicle cannot be considered both insured and uninsured in context of his policy, because two separate policies are involved, husband’s vehicle can be considered insured vehicle under his policy and uninsured vehicle under plaintiff’s policy — Statutory requirements — Genuine issues of fact exist regarding whether insurer complied with requirements of section 627.727(9)(d), which requires insurance carriers to provide named insured with notice of limitations imposed by exclusionary provision and to obtain knowing acceptance of limited coverage — Motion for summary judgment denied

5 Fla. L. Weekly Supp. 311a

Insurance — Title — Exclusions — Motion for summary judgment in action alleging insurer breached title insurance policy by failing to indemnify insureds for losses and damages sustained as result of encroachment of brick wall bordering certain realty purchased by insureds granted — No genuine issues of material fact preclude entry of summary judgment in favor of insurer where encumbrance forming basis of insureds’ action was expressly excluded from coverage under policy — Policy expressly excepted from coverage Declaration of Covenants and easements created thereby — Because brick wall was built on easement created pursuant to Declaration of Covenants, brick wall is expressly excluded and not covered by insurance policy

5 Fla. L. Weekly Supp. 173c

Insurance — Personal injury protection — Failure to pay benefits within thirty days based on late notice, intentional act, and lack of cooperation — Before payment may be withheld, insurer must obtain opinion from independent medical examiner that treatment was not reasonable, related to covered event, or necessary — Affidavit of independent medical examiner submitted by insurer cannot be used in instant case to support failure to pay past benefits where IME did not find that past treatment was unreasonable, unrelated, or unnecessary — Opinion of IME who was licensed chiropractor cannot be used to deny payment of medical doctors who were licensed under different chapter — IME’s opinion not basis for denying payment for treatment provided after date of independent medical examination where court could not infer that it was IME’s opinion that insured would never need treatment in the future under any circumstances, there was no evidence that IME was even aware of facts relating to any future treatment, and court would have to infer that no change had taken place that would have affected IME’s opinion — Policy of insurance at issue was in record — Exclusions — Intentional injury or injury while committing felony — Record contains no evidence to support insurer’s contention that insured was injured while committing a felony or that insured intentionally caused another vehicle to rear-end her vehicle in order to cause injury to herself — Notice — In view of uncontroverted facts sworn to by insured that she gave oral notice of accident to agent within two or three days of accident and undisputed evidence that agent received written notice no later than twenty-five days after accident, insurer’s claim that it was materially prejudiced by late notice is rejected — Assistance and cooperation — Nothing in record refutes insured’s statements that she fully cooperated with insurer in its investigation of claim — Insured’s motion for summary judgment granted

5 Fla. L. Weekly Supp. 746a

Insurance — Commercial liability — Garage operations — Exclusions — Accident in which automobile struck stationary tractor-trailer rig, the tractor of which was owned by insured and leased to third party — Policy expressly excluded coverage for autos leased to third parties unless the auto was leased to one of insured’s customers while the customer’s auto was left with insured for service or repair, a circumstance not present in instant case — Policy also excluded from definition of covered auto any auto used to carry property or persons for hire and any auto furnished to someone for regular use who was not specifically described in garage coverage form as required by terms of policy — Notice to insurer — Insured failed to comply with conditions precedent to coverage where insured failed to provide prompt notice of accident, claim, suit or loss — Insured did not present competent proof which would rebut presumption of prejudice arising from fact that insurer did not receive notice until more than two years after accident

5 Fla. L. Weekly Supp. 822a

Injunctions — Insurance — Health maintenance organizations — Coverage — Exclusions — Experimental treatment — Hyperbaric oxygen therapy for condition described as hemorrhagic cystitis or radiation enteritis — Under one reasonable interpretation of contract at issue, Hayes Medical Technology Directory cannot be source of reliable evidence with respect to whether medical treatment sought should be considered experimental, and reliance on the Directory does not amount to a justifiable basis for claiming exclusion to coverage — Hayes Directory is not a published report by U.S. Department of Health and Human Services, U.S. Public Health Sources, National Institute of Health or U.S. Office of Technology Assessment — Insurer enjoined from denying coverage for treatment — Bond set at $1000

5 Fla. L. Weekly Supp. 57a

Insurance — Personal injury protection — Discovery — Opposing medical expert — Request for computer printouts relating to amounts paid over four-year period to physician who assisted in evaluation of PIP claim was unduly burdensome — Request for 1099 forms for three years not unduly burdensome

5 Fla. L. Weekly Supp. 783a

Insurance — Personal injury protection — Discovery — Action for nonpayment of insurance benefits filed by insured prior to end of insurer’s 30-day review period — Documents requested by insured appear to be calculated to lead to discovery of admissible evidence on issue of whether insurer ever intended to pay benefits to insured and are relevant to theory of anticipatory repudiation — Evidence of routine practice would be admissible to bolster claim of anticipatory repudiation, if plaintiff were able to show that insurer routinely denied payment of insurance benefits within statutory 30-day review period, and that insurer routinely refused to reconsider its position during same 30-day period — Defendant not required to produce requested documents because request is unduly burdensome, plaintiff failed to make showing of necessity sufficient to overcome claim of work product privilege, and plaintiff would not be entitled to production of requested documents if he had properly waited until end of 30-day review period to file this action

5 Fla. L. Weekly Supp. 407b

Insurance — Personal injury protection — Discovery — Attorney-client privilege — Work product — Trade secrets — Plaintiffs seeking discovery of portions of PIP file not yet produced by defendants and information about computer system known as Medical Bill Review System which is used to review claims submitted by policy holders and contains information and historical data regarding charges for treatment — Work product — Blanket statement that all portions of PIP file not previously produced are work product not sufficient — Court will conduct in camera inspection of file to determine if all or part of it is work product — With respect to training and course materials for MBRS, MBRS manual, MBRS Desk Reference Guide, and copies of MBRS screens, defendant failed to meet burden of establishing that materials were prepared in anticipation of litigation and thus encompassed by work product privilege — Attorney-client privilege — Defendant did not meet burden of showing entitlement to attorney-client privilege with respect to PIP file where defendant made only general objection without specifically identifying privileged portions of file and explaining why privilege applies — Trade secrets — MBRS software appears to fit definition of trade secret or confidential commercial information with exception that defendant made no allegation that company has taken steps to maintain its secrecy — Even if court determined that some or all of material constituted trade secrets, court may order disclosure if party seeking disclosure shows reasonable necessity for material — Relevancy — Defendant’s request that discovery be limited to information regarding specific reason upon which denial of benefit was based is reasonable — If defendant does not plan on relying on MBRS, its compilation of data or their claims process procedures as part of its proof that denial of plaintiffs’ PIP claims was reasonable, requested information would not lead to relevant evidence — If defendant plans on using data from computer system as proof, it must be presented independently from the system itself — If defendant plans on relying on computer system in any manner to prove that payment denial was reasonable, plaintiffs’ discovery requests would become very relevant — Defendants’ objections based on relevancy to disclosure of computer system and programs known as Medical Bill Review System are sustained without prejudice to plaintiffs’ rights to obtain information in the event defendant seeks to rely on it or utilize it in any way to sustain its position at trial

5 Fla. L. Weekly Supp. 337b
Insurance — Contracts — Shipping — Limitation of liability — Motion for summary judgment by express air carrier in action by insurer, as subrogee of company that shipped package allegedly containing jewelry valued at $29,000, where shipping contract contained $100 liability limit if no value was declared — Liability of federally certificated air carriers for loss attendant to goods in transit is controlled by federal law — Where insured company did not declare value on shipment, and contract gave insured a fair opportunity to chose between higher or lower liability by paying a greater or lesser shipping charge, it cannot recover more than $100 — Plaintiff, as subrogee of insured’s contractual rights, cannot recover more than $100 — No merit to claim that action is governed by Carmack Amendment to Interstate Commerce Act, where unambiguous language of statute and legislative history make clear that Interstate Commerce Commission does not have jurisdiction over transportation by motor vehicle where that transportation is preceded or followed by transportation by an air carrier — Motion for summary judgment granted

5 Fla. L. Weekly Supp. 164a

Insurance — Insured’s action against insurer alleging bad faith in connection with settlement negotiations — Requirement that underlying contractual claims against insurer be resolved prior to proceeding with bad faith action was satisfied when partial settlement of those claims was reached as result of mediation — Motion to abate on ground that contractual claims had not been resolved denied — Complaint dismissed without prejudice where insured failed to allege that there had been a determination of damages