Volume 8

8 Fla. L. Weekly Supp. 485a

Insurance — Fire — Cancellation of policy — Breach of contract action against insurer which canceled policy after premium finance company sent notice of cancellation for nonpayment of premium — Valid power of attorney executed by insured authorizing finance company to cancel policy was condition precedent to cancellation — Premium financing agreement and second version of agreement which insurer claims gave finance company authority to cancel the policy are defective — Where record contains no valid power of attorney executed by insured authorizing finance company to cancel policy, and there is no reason to assume that further discovery would uncover such document, partial summary judgment is entered for insured on the issue of coverage

8 Fla. L. Weekly Supp. 302a

Insurance — Automobile liability — Personal injury protection — Leased vehicles — Lessor of motor vehicle failed to shift statutory obligation for primary insurance coverage to lessee where it voluntarily departed from statute as to bold type and used inadequate and unclear provision of statutory language — Clarity was further aggravated by failure to eliminate contradictory language in documents prepared by lessor

8 Fla. L. Weekly Supp. 823c

Insurance — Jury instructions — Instruction that Florida No Fault Act is to be construed liberally in favor of insured was statement of statutory construction which could have misled or confused jury in applying facts to provisions of the Act — Error to limit officer at scene from testifying as to his observations of those involved in accident — Accident report privilege does not prevent officer from describing what was personally observed at scene — Error to exclude testimony of second officer at scene — Eyewitness should have been permitted to testify as to what she saw and heard at accident scene — Error to permit plaintiff’s counsel to cross-examine eyewitness on issue of racial bias where racial slurs became feature of case, and prejudicial effect outweighed any probative value — New trial required

8 Fla. L. Weekly Supp. 219a

Insurance — Automobile — Loss of use expenses — Trial court erred in finding that insured could not recover loss of use expenses under policy that did not include loss of use provision as a matter of law where insurance contract provided that insurer had option to pay for loss in money, or to repair or replace damaged vehicle, but insurer did not pay or repair within reasonable time — Where delay in finding total destruction was caused by insurer, loss of use for unreasonable period of delay was compensable

8 Fla. L. Weekly Supp. 186a

Insurance — Third-party beneficiaries — Class actions — Certification of class — Plaintiff whose vehicle was damaged in accident with defendant’s insured alleging that insurer breached terms of contract by using non-original equipment manufacturer parts in its estimate because non-OEM parts are inferior per se and not of “like kind and quality” to parts they replaced — Plaintiff’s motion to act as class representative in nationwide class action denied for lack of standing

Additional ruling in this case at 11 Fla. L. Weekly Supp. 229a

8 Fla. L. Weekly Supp. 101a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 8 Fla. L. Weekly Supp. 186a

Insurance — Third-party beneficiaries — Class actions — Certification of class — Plaintiff whose vehicle was damaged in accident with defendant’s insured alleging that insurer breached terms of contract by using non-original equipment manufacturer parts in its estimate because non-OEM parts are inferior per se and not of “like kind and quality” to parts they replaced — Plaintiff’s motion to act as class representative in nationwide class action denied for lack of standing — Use of non-OEM parts is expressly permitted by Florida law, and Florida law requires only that there be disclosure where non-OEM aftermarket crash parts are being used — Florida law would be inapposite to proposed nationwide class because individual insurance policies must be interpreted by laws of state where contract was entered into — Issues raised by complaint not common to all class members — Plaintiff cannot establish that every non-OEM part specified on an estimate by insurer is not of like kind and quality to each and every part misplaced — Plaintiff made no showing that class representation was superior to other available methods for the fair and efficient adjudication of the controversy

Additional ruling in this case at 11 Fla. L. Weekly Supp. 229a

8 Fla. L. Weekly Supp. 247a

Insurance — Automobile — Coverage — Collision — Policy language and law of State of Florida allows for first party claims for diminished value when insurer elects to repair insured’s vehicle — Moreover, policy language as to terms “loss,” “repair,” and “replace” is ambiguous — Because the terms of policy are ambiguous, policy itself is ambiguous — Ambiguity must be construed in favor of insured — Insured’s motion for partial summary judgment as to coverage granted

8 Fla. L. Weekly Supp. 749a

Insurance — Automobile — Cancellation of policy — Judgment in favor of insured on issue of insurance coverage affirmed — Insured was necessarily covered under policy where three-option letter stated specific date on which policy would be canceled if insured took no action, and accident occurred on that date

8 Fla. L. Weekly Supp. 388a

Insurance — Automobile — Cancellation of policy — Where insurer informed insured that it needed written proof that insured auto had anti-lock brake system and that, in absence of such proof, it could terminate policy for non-payment of an additional premium, and insurer ultimately sent insured a “three-option” letter which gave insured the option of paying the additional premium and maintaining the policy in effect, canceling the policy and receiving a premium refund, or doing nothing, in which case policy would cancel on certain date; and insured was involved in accident on the date specified as the automatic cancellation date, that accident was covered — Where no time of day is specified, agreement contemplates coverage for the entire day — Subsequent notice of cancellation which did include a specific time cannot substitute for the “three-option” letter required by statute — Further, conflicting notices issued by insurance company are resolved in favor of coverage — Any attempt at cancellation by insurer was improper in that no additional premium was owed — Insurer was required by statute to provide premium discount if vehicle was equipped with ABS, it is uncontroverted that vehicle was equipped with ABS, and there is no requirement in the statute that insured provide written proof of ABS

8 Fla. L. Weekly Supp. 731a

Insurance — Personal injury protection — Attorneys — Disqualification — Attorney who was involved in discussions of specific facts and issues of insured’s PIP case during prior affiliation as counsel for insurer was disqualified from representing insured in her PIP case — Although attorney testified that he does not remember discussing the particulars of insured’s case and was not involved in case before terminating his employment with insurer, actual violation of ethics rules is not prerequisite to granting motion to disqualify to avoid the appearance of impropriety