Volume 9

9 Fla. L. Weekly Supp. 368b

Insurance — Personal injury protection — Error to enter summary judgment in favor of insurer which denied claim based on alleged material misrepresentation in application since materiality of misrepresentation is a question of fact to be determined by the trier of fact

9 Fla. L. Weekly Supp. 626b

Insurance — Personal injury protection — Application — Misrepresentation — Insurer is estopped from asserting affirmative defense that policy was void ab initio based upon alleged material misrepresentation by insured failing to list other household members on application where insurer continued to collect and retained insurance premiums from insured — Further, there is no evidence that any misrepresentation was material where there is no evidence that had insurer known the alleged true facts it would not have issued policy at same rate or in as large an amount, or would not have covered the hazard that resulted in the loss — Affirmative defense stricken with prejudice

9 Fla. L. Weekly Supp. 851d

Insurance — Automobile — Rescission of policy — Material misrepresentations on application — Where evidence establishes that insurer would not have issued policy to insured at same premium if residence of insured’s daughter within household had been disclosed on application, insurer did not err in declaring policy void ab initio, denying coverage thereunder, and returning all premium payments to insured — Final summary judgment granted in favor of insurer

9 Fla. L. Weekly Supp. 505a

Attorney’s fees — Insurance — Personal injury protection — Contingency risk multiplier — Trial court’s finding that chance of success at outset of case was less than even is reasonable in light of evidence that insured’s physicians did not support the chiropractic treatment for which she was denied benefits and the presence of arbitration and standing issues — No abuse of discretion in application of 2.5 multiplier where there was evidence that multiplier was required to obtain competent counsel due to small amount in controversy, that insured’s attorneys could not have mitigated risk of nonpayment, that there was contingency fee agreement, that insured did not have financial resources to pay a reasonable hourly rate, and that insurer eventually paid 100% of disputed bills — Reasonable number of hours — No abuse of discretion in awarding fees to both of insured’s attorneys where trial court considered insurer’s argument that attorneys’ efforts were duplicative and reduced their hours — No merit to insurer’s argument that award of attorney’s fees was contrary to manifest justice of case due to small amount in controversy where insurer failed to show trial court abused its discretion in its award — Appeals — Record — Where parties did not file any transcripts of lower court proceedings, a stipulated statement or a statement of the evidence or proceedings, and parties pointed out deficiency in the record in their briefs but did not move to supplement the record, parties waived compliance with rule 9.200(f) — Post-judgment fees — No error in award of post-judgment attorney’s fees for efforts of attorneys representing insured’s attorneys to enforce judgments awarding attorney’s fees where insurer filed notices of appeal of judgments but failed to post civil supersedeas bonds to stay enforcement — No error in denial of contingency risk multiplier in award of post-judgment attorney’s fees where attorneys were not retained until after final judgments awarding fees were entered, and trial court found likelihood of collection of judgments from solvent insurer to be great — No error in denying insured’s motion to tax post-judgment costs and attorney’s fees of her attorneys based on determination that insured had no interest in attorneys’ efforts to collect attorney’s fees and costs post-judgment — Appellate fees — Insured’s motion for appellate fees for appeals of attorney’s fees judgments denied because issue of entitlement to multiplier goes to amount of fees, not entitlement to the award — As prevailing party on the significant issues, insured is awarded attorney’s fees and costs for appeals of post-judgment attorney’s fees awards

9 Fla. L. Weekly Supp. 820a

Insurance — Personal injury protection — Standing — Assignment — Inconsistent documents — Execution on same day of assignment of benefits and power of attorney which states it is not intended as an assignment and any provisions so interpreted shall be considered null and void — Appeals — Preservation of issues — Issue of trial court’s consideration of unauthenticated power of attorney cannot be raised for first time on appeal — Further, medical provider which admitted authenticity of power of attorney below cannot challenge it on appeal — Where either both documents or the assignment was revoked, the order in which the documents were executed is not an issue of material fact precluding summary judgment — Trial court correctly determined, as a matter of law, that the co-existing documents are inconsistent and a nullity as a matter of law due to their inconsistency

9 Fla. L. Weekly Supp. 223a

Appeals — Insurance — Order dismissing declaratory judgment count in multi-count complaint is not appealable final order — Even if order were appealable, appeal is premature where declaratory judgment count was interrelated with remaining count of complaint — Appellate attorney’s fees — Justiciable issues — Where jurisdictional issue does not appear to have been previously addressed in context of appeal from county court to circuit court, court cannot say that appellant’s attorney should have known appellate jurisdiction would not be supported by existing law — However, appellant’s failure to provide transcript rendered appeal without merit — Appellate fees awarded

9 Fla. L. Weekly Supp. 499b

Insurance — Personal injury protection — Appeals — Summary judgment based on case that has since been reversed is reversed — Appellate court must make ruling in accord with law in effect at time of appellate decision, not at time of entry of judgment

9 Fla. L. Weekly Supp. 284a

Insurance — Amendment to policy — Validity

9 Fla. L. Weekly Supp. 283a

Insurance — Disability — Coverage — Exclusions — Workers’ compensation — Exclusion in disability insurance policy for any loss caused or contributed to by injury or sickness “to the extent you are entitled to benefits under, or obtain any settlement related to, any workers’ compensation or occupational diseases law” is ambiguous as to whether insured is completely barred from recovery under the disability policy because he received workers’ compensation benefits covering part of his loss — Because policy language is ambiguous and no duplication of benefits would occur, exclusionary language is construed against insurer — Summary final judgment in favor of insurer reversed — Remand with instructions to enter summary judgment for insured on issue of coverage

9 Fla. L. Weekly Supp. 15a

Insurance — Automobile — Error to enter summary judgment in favor of insurer on ground that insured made material misrepresentation on policy application by failing to list name of brother over age 15 living with him — Question on application under heading “Drivers Information” asking insured to list all persons who have reached the age of 15 and reside with insured was ambiguous in that it was equivocal