Volume 6

6 Fla. L. Weekly Supp. 6a

Insurance — Personal injury protection — Discovery — Depositions — Appeals — Certiorari review is proper where injury caused by discovery order on review would be irreparable on plenary review — Insured may depose representative of medical billing review agency and obtain through discovery copies of non-privileged documents in agency’s possession based upon insurer’s indication that it may call representative of agency as lay or rebuttal witness to testify regarding agency’s transmission of documents and based upon fact that agency was entity responsible for selecting, retaining, and compensating the two doctors who reviewed insured’s records and/or examined insured, and whose recommendations ultimately resulted in insurer’s denial of insured’s PIP benefits — Insurer may not shield agency from discovery regarding lay witness matters simply because it no longer intends to call agency to testify at trial as expert witness — Trial court departed from essential requirements of law by not considering agency in its capacity as lay witness, by precluding insured from deposing agency representative regarding lay witness matters, and by precluding insured from obtaining through discovery non-privileged documents from agency

6 Fla. L. Weekly Supp. 606b

Insurance — Error to enter summary judgment in favor of insurer where there was question of material fact as to whether insured was, under terms of policy, totally disabled during periods for which he made claim

6 Fla. L. Weekly Supp. 160a

Insurance — Personal injury protection — Declaratory judgment action in which insured sought determination whether her recovery of PIP benefits was subject to $2000 deductible that had been elected by her husband — Error to grant summary judgment in favor of insurer where there existed factual issue as to whether agency relationship existed between wife and husband — Spouses are not necessarily agents for one another for purposes of procuring insurance

6 Fla. L. Weekly Supp. 675a

Insurance — Coordination of benefits between primary personal injury protection insurer and secondary HMO provider, with insured contending PIP benefits should have been used to pay her lost earnings and HMO, as secondary provider, should pay all of her medical expenses — Statutes do not require PIP carriers to coordinate PIP benefits with HMO coverage — Insurer complied with PIP statutes and indisputably sent insured a notice approved by Department of Insurance — Caselaw requiring insurer to apportion benefits between PIP and medical payments coverage of an insured’s automobile policy, so that insured could derive maximum benefits from the policy, not applicable to instant case involving policy which did not contain medical payments coverage — Even if insured had completed an application for lost wages benefits or specifically requested that PIP insurer apportion her benefits between lost wages and medical payments, insurer was obligated by law to utilize PIP funds first for insured’s hospital bills — Trial court erred in granting summary judgment in favor of insured

6 Fla. L. Weekly Supp. 554a

Insurance — Action alleging breach of insurance contract; seeking determination regarding coverage for investigation expenses incurred by insureds and determination whether plaintiffs are additional insureds under policy; and seeking civil remedies as to unfair claim settlement practices, illegal dealings in premiums, false statements and entries, and unlawful cancellation — Motion to dismiss count seeking civil remedy as to false statements and entries is granted — Count for declaratory relief on coverage issue not premature, although no formal complaint had been filed against plaintiffs arising out of incident in question, where plaintiffs alleged in their complaint that they received a demand letter threatening litigation from counsel of allegedly injured person — Breach of contract claim can be heard at same time as declaratory relief claims — Civil remedy claims under section 624.155(1)(a) are not bad faith claims and are not dependent on a prior determination of coverage — Private right of action exists under section 627.4133 for unlawful cancellation — Insurer’s contention that count seeking coverage for investigation costs should be dismissed because insurer’s duty to investigate was discretionary and because plaintiffs voluntarily incurred the investigation expenses without insurer’s consent is rejected — Insurer’s discretion is subject to concepts of good faith and fair dealing which are implicit in all insurance contracts — Where complaint alleges that attorney representing the estate, widow, and five children of one of the individuals killed in incident at issue formally demanded that he and his experts be allowed to investigate scene and gather evidence, insurer was on notice that possible lawsuit was imminent, and factual issue exists as to whether insurer failed to exercise its discretion to investigate in good faith — With regard to policy provision prohibiting insureds from voluntarily making a payment, assuming an obligation, or incurring expenses without insurer’s consent, term “voluntarily” is ambiguous and should be interpreted liberally in plaintiffs’ favor — Factual issues exist as to whether plaintiffs voluntarily incurred investigation expenses in view of possibility that they may have been subject to sanctions, including default, if they did not preserve evidence — Motion to dismiss or abate counts other than count seeking remedy as to false statements and entries is denied

6 Fla. L. Weekly Supp. 467a

Insurance — Cancellation of policy — Action against insurer which refused to pay claim for stolen vehicle on ground that policy had been canceled — Evidence presented by insured was sufficient to create jury issue as to whether or not insured actually received notice of cancellation which insurer contended it had mailed

6 Fla. L. Weekly Supp. 394a

Insurance — Subrogation — Leased vehicles — Insurer seeking subrogation from entity which leased automobile to its insured — Insurer may not raise for first time on appeal its contention that, according to ruling by First District Court of Appeal, single limit policy in effect at time of accident did not absolve automobile lessor of responsibility as the owner of vehicle under dangerous instrumentality doctrine — Summary judgment in favor of lessor affirmed

6 Fla. L. Weekly Supp. 535b

Insurance — Automobile — Subrogation — Insurer’s action for reimbursement of money paid for property damage as result of intersection collision occurring when defendant, whose view while sitting at stop sign was obscured, moved through intersection — Error to rule in favor of defendant on ground that insured saw defendant’s vehicle moving through intersection in sufficient time to stop and avoid the accident — Because insured had the right of way and defendant had duty to stop at stop sign, look for oncoming traffic, and yield the right of way, insured should not have been found 100% at fault for the accident

6 Fla. L. Weekly Supp. 542a

Insurance — Automobile — Subrogation — Damages resulting when insured vehicle was struck by following vehicle after insured driver stopped when he saw defendant’s car backing onto road — Undisputed testimony that insured stopped when he saw defendant backing out of private driveway onto through street constituted prima facie evidence that defendant violated statute prohibiting driver from backing without interfering with other traffic — Violation of strict liability statute makes a finding of at least some degree of negligence compulsory — Trial court erred in entering judgment in favor of defendant on ground that third driver, by following too closely, caused the accident

6 Fla. L. Weekly Supp. 427a

Insurance — Automobile — Offer of settlement — Covered and noncovered claims — Action against insurer which rejected offer of settlement of personal injury and property damage claims and which then, without informing deceased insured’s representative, reached an agreement to settle only property damage claims — Where insurer which received offer of settlement for property damage and bodily injury claims, a part of which was covered under policy and a part of which was not, insurer owed various duties to its insured pursuant to common law of Florida, including duty to advise insured of settlement opportunity; to advise as to probable outcome of litigation; to warn of possibility of excess judgment; to notify insured that portions of claim were not covered under policy and the reason for insurer’s rejection of claim; and to advise insured that insured may want to seek advice of independent counsel for portion of claim not covered by policy — Insurer failed to fulfill its duty to provide deceased insured’s representative, within a reasonable time, an explanation in writing of the basis in the policy for denial of claim or for the offer of a compromise settlement