2000

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 D305j

25 Fla. L. Weekly D231bNOT FINAL VERSION OF OPINION
Subsequent Changes at 25 Fla. L. Weekly D305j

Insurance — Medicare supplement — Insurer’s failure to comply with 45-day notice requirement of section 627.613(2) does not result in forfeiture of right to deny benefits when the benefits sought are excluded from coverage under the policy — Error to conclude that insurer was prohibited from denying insurance benefits because insurer delayed ten months before informing insured that claim for expenses incurred as resident patient of nursing home would be denied based on finding that care provided appeared to be nonskilled level care, which was not covered by policy — Insurers may be subject to other penalties, outside scope of section 627.613, if they fail to comply with requirements of statute

25 Fla. L. Weekly D1743a

Torts — Fraud — Action against insurance company and insurance agent alleging misconduct in efforts to sell life insurance to plaintiffs — Error to dismiss fraud claims on basis of statute of repose where complaint alleged fraudulent conduct that continued to occur through year in which complaint was filed — Error to dismiss fraud claims on basis of statute of limitations where facts constituting statute of limitations defense do not affirmatively appear on face of complaint — Error to dismiss fraud claims on basis of economic loss rule — No error in dismissal of counts alleging conspiracy to commit fraud where complaint did not allege that agent acted individually or that agent possessed independent personal stake in achieving object of conspiracy — Corporation cannot conspire with its own agents or employees unless the co-conspiring corporate agents are alleged to possess a personal stake in achieving the object of the conspiracy which is separate and distinct from the corporation’s interest — Appeals — Although dismissal of tort claims against insurance company is a non-final ruling from which direct appeal cannot be taken while breach of contract claim remains pending against company, certiorari review is appropriate because same claims were at issue in appeal of dismissal of tort claims against agent

25 Fla. L. Weekly D1329b

Criminal law — Unlawful solicitation for purpose of filing insurance claim — No error in denying motion to dismiss information charging chiropractor with unlawful solicitation for purpose of filing PIP claim in violation of section 817.234(8), although state did not allege intent to defraud — Questions certified whether section 817.234(8) includes a requirement of a specific intent to defraud insurer; and if not, whether statute advances governmental interest in preventing insurance fraud and is not more extensive than is necessary to serve that interest

25 Fla. L. Weekly D2157b

Insurance — Uninsured motorist — Jurisdiction — Service of process — Limitation of actions — Court lacked jurisdiction over alleged uninsured motorist insurer where plaintiff attempted to serve process on insurer on two occasions by sending process to Department of Insurance, but process was returned both times on ground that insurer was not an insurer licensed to do business in Florida; and plaintiff attempted to serve insurer through certain company as its registered agent, but that process was also returned unaccepted because company denied it was the insurer’s registered agent — Because service of process was never accomplished, court could not render valid judgment against insurer — Insurer cannot be substituted in lawsuit in the future as UM carrier, after having been dismissed earlier, because statute of limitations has run — Although insurer was initially timely added or substituted as UM carrier because plaintiff filed her first motion to add the insurer before the statute of limitations had run, after court dismissed insurer from the lawsuit, it could not again be sued without some valid basis to overcome statute of limitations bar

25 Fla. L. Weekly S120a

Insurance — Uninsured motorist — Exclusions — Policy provision which excludes vehicle owned or operated by self-insurer from definition of “uninsured motor vehicle” for purposes of uninsured/underinsured motorist coverage is not permissible under Florida law and public policy — Policy provision refusing to treat self-insured motorist as either underinsured or uninsured motorist is void — Motorist possessing a certificate of self-insurance with limits of liability lower than damages sustained is not “underinsured,” but is deemed statutorily uninsured

25 Fla. L. Weekly D2278aNOT FINAL VERSION OF OPINION
Subsequent Changes at 26 Fla. L. Weekly D88b

Insurance — Uninsured motorist — Where policy provided UM coverage for bodily injury sustained while occupying or getting into or out of vehicle that was covered by liability portion of policy, and liability portion of policy specifically excluded coverage where a covered vehicle was pulling a trailer with a load capacity in excess of 2000 pounds, trial court erred in finding that plaintiff, a class II insured, was covered for injuries sustained in collision between uninsured vehicle and covered vehicle at a time when covered vehicle was towing a trailer with load capacity of 10,000 pounds — Because liability policy specifically excluded coverage where covered vehicle was pulling an excluded trailer, concomitant exclusion from UM coverage did not violate principle that policy’s uninsured motorist coverage may not be more narrowly drawn than liability coverage provisions — Fact that accident involved collision with truck cab, and trailer played no part in accident, not relevant

25 Fla. L. Weekly D108a

Insurance — Uninsured motorist — Exclusions — Injury to insured while occupying motor vehicle owned by insured but not insured under policy — Where insured was riding motorcycle which he laid on its side in order to avoid collision with car at intersection, insured and motorcycle became separated while sliding through intersection, and driver of car placed car in reverse and backed over insured’s legs, trial court erroneously entered summary judgment finding no uninsured motorist coverage under policy covering insured’s vehicles other than motorcycle — Factual issue existed as to whether insured’s occupancy of motorcycle had terminated and a new activity commenced before injury

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