Volume 9

9 Fla. L. Weekly Supp. 449a

Insurance — Personal injury protection — Medpay — Class action by police officer injured while performing duties — Class certification — Numerosity — Discovery — Abuse of discretion to substantially interfere with officer’s ability to establish numerosity by unduly restricting discovery and not permitting officer to adequately assess the true number of instances in which insurer wrongfully denied medpay coverage based on exclusion of accidents occurring in the course and scope of employment — Reversed and remanded with instructions for expanded discovery

9 Fla. L. Weekly Supp. 701b

Insurance — Stay — Action for bad faith, breach of contract, and inadequate defense, arising out of underlying case in which the parties are awaiting a decision as to whether the Florida Supreme Court will accept discretionary review, is stayed pending review, conditional upon insurer posting supersedeas bond covering amount of excess judgment against plaintiff

9 Fla. L. Weekly Supp. 483a

Insurance — Bad faith — Notice — Cure — Conditions precedent to insured’s maintenance of bad faith action against insurer related to lightning claim were not met where insurer provided allegedly withheld adjuster’s estimate within 60 days of civil remedy notice, and claim that insurer “responded with accusations” is too vague to give insurer notice of what wrong it could cure — Conditions precedent to insured’s maintenance of bad faith action against insurer related to windstorm claim were not met where insurer’s alleged bad faith filing of federal lawsuit was cured within 60 days of civil remedy notice when insurer chose not to appeal adverse judgment in federal suit, there was no wrongful act with respect to insurer’s defense against insured’s federal counterclaim that could be cured or remedied because notice did not allege that insurer engaged in wrongful conduct in defending against counterclaim, and notice did not allege that insurer had wrongfully failed to pay on judgment

9 Fla. L. Weekly Supp. 774a

Insurance — Insured’s action against insurer after insurer disputed claim for stolen vehicle — Plaintiff’s motion to vacate order granting defendant leave to amend its answer to include a compulsory counterclaim is denied — Counterclaim was based upon same factual allegations used by insurer to deny claim from its inception, namely that insurer believed its insured has misrepresented the facts of the claim — Counterclaim merely allows insurer to recover money which it has already paid to insured’s lien holder for the loss at issue in the event a jury determines that insurer’s claim is not factual — Denial of opportunity to file compulsory may result in miscarriage of justice — Plaintiff is not procedurally prejudiced

9 Fla. L. Weekly Supp. 774b

Insurance — Standard Mortgage Clause in policy creates separate and distinct contract between insurance company and lien holder, and lien holder is permitted to recover under circumstances and conditions that would defeat recovery by insured — Insurer’s act of making payment to lien holder after filing of instant action does not constitute a confession of judgment — Motion for summary judgment and entitlement to attorney’s fees denied

9 Fla. L. Weekly Supp. 626a

Insurance — Automobile — Summary judgment is entered for insured on insurer’s claim for rescission where insurer failed to return entire policy premium and application fee within reasonable time

9 Fla. L. Weekly Supp. 187b

Insurance — Hospitals — Hospital liens — Torts — Class action complaint alleging that hospital liens for hospitals’ full charges against proceeds of no-fault and liability insurance policies available to Medicare beneficiaries injured in automobile accidents were improper under Medicare Secondary Payer statutes — MSP program does not limit a hospital’s charges to what Medicare would pay if Medicare were primary payer; rather hospital may seek and collect the greater of its full charges or the amount of third-party payment paid or payable to beneficiary, and hospital may attempt to collect amounts directly from third-party payer or from beneficiary who has received or is entitled to receive third-party payment — Court does not have authority to impose by judicial fiat same limit on MSP statute that federal courts have held was beyond the power of Department of Health and Human Services to impose — Counts seeking declaratory relief and alleging constructive trust/unjust enrichment are dismissed with prejudice to extent that they attempt to state a cause of action based on hospitals’ attempts to collect their full charges directly from any third-party payer, either through billing the payer directly or securing liens against the proceeds of third-party payments — Where amended complaint alleges generally that hospitals attempted to collect full charges directly from beneficiaries, but fails to include allegation that amount hospitals attempted to collect was in excess of amounts paid or payable from third-party payers to beneficiaries, counts are dismissed without prejudice to extent that they attempt to assert a cause of action for violating the MSP statutes and regulations by collecting charges directly from beneficiaries

9 Fla. L. Weekly Supp. 19b

Insurance — Automobile — Action for declaratory judgment that insurer’s practice of charging premium based on industry reference value but paying the lower of either actual cash value or industry reference value in the event of loss is in violation of Florida law — Order granting insurer’s motion to enforce settlement is vacated where both parties agree there was no settlement — No abuse of discretion in denial of motion to amend complaint to add class action allegations and claim for consequential damages given futility of amendment, since prior to class certification insurer offered insured 100% of his demand for vehicle’s industry reference value — Remand for entry of judgment in amount of insured’s demand, as both parties agree that sum is appropriate amount for the vehicle — Insured’s motion for appellate attorney’s fees is granted

9 Fla. L. Weekly Supp. 745a

Insurance — Personal injury protection — Cancellation of policy — Notice of cancellation occasioned by failure to pay premium for newly added vehicle did not invalidate preexisting coverage for two other vehicles, including the vehicle involved in accident, where coverage for the two vehicles was paid in full through the end of the policy period — Independent and severable contract is created when new vehicle is added to a policy of insurance and separate premium charged therefor — When separate premium attributable to the additional vehicle has not been paid, insurer is within its rights to cancel that policy for nonpayment and deny coverage thereunder, but nonpayment for additional vehicle does not render original coverage inoperative — Error to enter summary judgment in favor of insurer

9 Fla. L. Weekly Supp. 321b

Attorneys — Disqualification — Conflict of interest — Insurance — Attorney who, while acting as lead counsel in cases relating to personal injury protection, met with top-level litigation attorneys representing insurer to develop strategies for defense of MRI brokering cases is not disqualified from representing plaintiff in suit against insurer where the current matter does not arise from the same transaction or case in which attorney represented insurer