2000

25 Fla. L. Weekly D73a

Appeals — Non-final orders — Insurance — Order determining only that insurer has duty to defend, but not determining coverage, is not appealable

25 Fla. L. Weekly D1544b

Employer-employee relations — Employee benefit plans — Health insurance — Exhaustion of administrative remedies — Trial court abused its discretion in not dismissing employee’s action against employer, initiated after health plan denied coverage for certain claims based on plan’s “pre-existing conditions limitation,” where plaintiff failed to utilize plan’s internal appeals process and where there was no “clear and positive” showing of futility that would excuse failure to exhaust available administrative remedies

25 Fla. L. Weekly D1135b

Insurance — Liability — Duty to defend — Where insurer obtained full satisfaction of the only covered claim against its insured, it had right to withdraw its defense and had no obligation to prosecute appeal on behalf of its insured

25 Fla. L. Weekly D624aNOT FINAL VERSION OF OPINION
Subsequent Changes at 25 Fla. L. Weekly D1294d

Appeals — Insurance — Final judgment dismissing declaratory judgment action in which insured sought declaration that she could accept settlement offer without prejudicing her claim to underinsured motorist benefits was not appealable where insured still has pending claims against insurer for underinsured motorist benefits and loss of consortium — Appeal dismissed

25 Fla. L. Weekly D1123b

Insurance — Ambiguities — No ambiguity presented by “General Aggregate Limit” and “Each Occurrence Limit” when provisions are read together in context of entire policy as a whole

25 Fla. L. Weekly D303a

Insurance — Uninsured motorist — Exclusions — Coverage was excluded for injuries to insured’s son who was involved in accident while riding a motorcycle which was owned by insured, where insured had not paid an additional premium for coverage of motorcycle, and it was not shown as covered on declarations page — There was no ambiguity in exclusion and statement of coverage in policy

25 Fla. L. Weekly D648a

Insurance — Commercial general liability — Where policy provision excluded coverage for bodily injury arising out of ownership, maintenance, use or entrustment to others of any auto owned or operated by or rented or loaned to any insured, another provision defined “insured” to include employees, but an endorsement eliminated employees acting in the scope of their employment from policy definition of an insured, an ambiguity was created — Insurer had duty to defend and indemnify insured in wrongful death suit resulting from accident in which insured’s employee crashed into car driven by decedent while employee was driving his own truck to tow insured’s cement mixer for repairs — Because policy states that insurer will pay those sums that insured becomes legally obligated to pay as damages because of bodily injury, and insured is legally obligated to pay for damages caused by its employee while acting within the scope of his employment, coverage exists unless policy clearly excludes it — Where an exclusion is capable of being fairly and reasonably read both for and against coverage, the exclusionary clause will be construed in favor of coverage

25 Fla. L. Weekly D644b

Contracts — Employment — Trial court erroneously found that former salesman for insurance agency was personally liable for unpaid premiums of his former clients for whom he had signed “receivables exception form” — Court improperly used evidence of industry custom to find that defendant had become guarantor of debts where form authorized only a deduction “from my commission statement for this month” — Evidence of industry custom not properly used to alter terms of plain and unambiguous agreement

25 Fla. L. Weekly D703aNOT FINAL VERSION OF OPINION
Subsequent Changes at 25 Fla. L. Weekly D1475b

Insurance — Workers’ compensation — Agent’s negligent procurement of coverage — Collateral estoppel — Where insured, in application for workers’ compensation coverage, had indicated that coverage for officers was desired, agent changed answer to state that officers were to be exempt from coverage, officer who subsequently sustained catastrophic injuries filed workers’ compensation claim against insurer, insurer denied claim, judge ruled that there was coverage for claim, and plaintiff settled with insurer for less than policy limit while insurer’s appeal was pending, trial court erred in entering summary judgment for agent in plaintiff’s action alleging negligence in failing to obtain worker’s compensation coverage for corporate officers — Agent was not entitled to invoke collateral estoppel based on workers’ compensation proceeding because agent was not party to that action and was not privy to parties to that proceeding — Plaintiff’s action in accepting compromise instead of running risk of appellate court’s reversal of workers’ compensation ruling was acceptable course of action — Plaintiff had no legal duty to go through with appeal and not settle it

25 Fla. L. Weekly D2698a

Insurance — Agents — Negligent failure to procure coverage — Error to enter summary judgment for insurance agent in homeowners’ action alleging that agent negligently failed to procure full replacement coverage after insureds had requested such coverage on ground that insureds failed to read policy prior to loss — In negligence-based action against agent, failure of insureds to read policy and policy booklet from insurer goes to issue of comparative negligence, raises issues of material facts as to reasonableness or unreasonableness of insureds’ actions, and does not completely preclude recovery — Evidence — Insureds should be permitted to introduce evidence supporting claim of “substantial damage” and “50% rule” — Pretrial settlement with flood insurer does not preclude insureds from claiming that they suffered as much or more damage from perils covered by homeowner’s policy obtained through defendant agent, and does not support theory of judicial estoppel or fraud on the court — Insureds should be permitted to present loss-of-use evidence relating to entire period they were without use of insured residence, not just for period of time between initial loss and obtaining alternate housing pending result of suit