2000

25 Fla. L. Weekly D2579g

Insurance — Commercial general liability — Duty to defend — Original complaint against insured, first amended complaint, and second amended complaint failed to allege any underlying facts to create duty to defend under policy provisions relating to personal injury or advertising injury — Conclusory use of buzz words such as “defamation” and “damage to reputation” not sufficient to trigger duty to defend — Use of word “defamation” without allegations of false statement to third party does not state cause of action for libel or slander — Trial court erred in holding that insurer had duty to defend

25 Fla. L. Weekly D1442a

Insurance — General commercial liability — Plaintiff who was beaten and robbed by unknown assailant at gas station bringing action, as gas station’s assignee, against station’s liability insurer for coverage and for wrongful refusal to defend negligence action against its insured — Because policy excluded all claims for damages “arising from” assault and battery committed by any person, there is no coverage for assault — Policy did not provide coverage for spoliation of evidence claim in which plaintiff alleged that gas station negligently erased videotape that may have recorded the assault and that, had erasure not occurred, plaintiff may have been able to identify and recover damages from assailant — Policy covered bodily injury or property damage, and spoliation, at best, had effect only on an intangible in the form of plaintiff’s cause of action against her assailant — Because original complaint contained only allegations of negligence and none regarding assault, there was duty to defend all allegations — Trial court properly determined that there was no coverage but erred in finding that there was no duty to defend — Remand for determination of damages suffered as result of wrongful refusal to defend

25 Fla. L. Weekly D1741a

Insurance — Commercial general liability — Where policy issued to insured which was in business of renting heavy equipment provided that “all operators of registered mobile equipment are protected persons for their driving of such equipment on a public street or road with your permission,” and defined “registered mobile equipment” as “mobile equipment that’s registered in your name under any motor vehicle registration law,” employee of company which had rented forklift from insured was not a “protected person” while driving the forklift on a road because forklift did not meet definition of “registered mobile equipment” — Policy did not insure negligent driver of forklift directly for accident involving forklift and an automobile because driver was not a protected person

25 Fla. L. Weekly D2827b

Insurance — Commercial garage policy — Coverage — Commercial garage policy issued to hotel which described insured business as “Valet Parking,” which named independent contractor providing valet parking service to hotel as additional insured, which covered garage operations, and which provided that garage operations included “all operations necessary or incidental to a garage business,” provided coverage for personal injuries suffered by a hotel guest who was struck by a luggage cart that was being pushed across hotel lobby by a valet parker — Where valet personnel unload luggage and move it into hotel lobby, that service is properly viewed as being incidental to valet parking service

25 Fla. L. Weekly D1555c

Insurance — Premiums — Trial court properly entered summary judgment for insurer in class action alleging that insurer violated statute requiring that insured be sent a three-option letter whenever a policyholder has been charged a premium that is incorrect for the coverage set forth in the insurance application, where insured was not charged an incorrect premium or quoted a premium pursuant to an insurance application — At most, insured was sent an incorrect monthly payment coupon

25 Fla. L. Weekly D1830a
769 So. 2d 1053

Insurance — Personal injury protection — Class actions — Plaintiff did not have standing to maintain class action claiming that insurer had improperly applied PIP deductible before paying his medical bills where insurer had paid medical bills in full after filing of complaint so that plaintiff was owed no money from insurer, and plaintiff could identify no other persons who were similarly situated to him — Faced with plaintiff with no injury, plaintiff’s mere conjecture that others may have suffered the harm he no longer can claim, and evidence that insurer was doing no more than it was legally obligated to do, trial court properly ordered summary judgment for insurer

25 Fla. L. Weekly D2649a

Insurance — Class actions — Where class action against insurance company alleged that defendant violated statute by failing to pay medical bills under personal injury protection coverage without first obtaining report based on independent medical examination, and defendant thereafter tendered payment to class representative of all amounts claimed on her individual PIP claim plus applicable statutory interest because of defendant’s recognition that it would be liable to class representative on her individual claim regardless of the resolution of the IME issue, trial court erred in entering summary judgment on liability in favor of class — Defendant’s payment of class representative’s individual claim did not constitute a confession of judgment in favor of the class — Payment of individual class representative’s claim or confession of judgment to that individual claim does not constitute confession of judgment to entire class — If confession of judgment is applied to whole class, it must be limited to payment offered to class representative

25 Fla. L. Weekly D1709c

Injunctions — Where insurance company had filed civil RICO action against defendant, alleging that defendant engaged in a continuous pattern of fraudulent billing practices, trial court did not err in denying plaintiff’s motion for temporary injunction to enjoin defendant from utilizing up to $1,000,000 of its assets and to enjoin defendant from filing any further insurance claims with plaintiff — Plaintiff was not entitled to temporary injunction where it was unable to demonstrate an immediate danger of significant loss — Where plaintiff sought to enjoin defendant from utilizing up to $1,000,000 of its assets although plaintiff claimed only $49,000 in fraudulent billings, plaintiff requested relief which contravenes public policy

25 Fla. L. Weekly D1742b

Insurance — Fraud — Uninsured motorist — Personal injury protection — Insured’s fraudulent submissions of claims for personal injury protection benefits justified trial by jury with respect to whether insurer was relieved of paying any sums under policy, including uninsured motorist benefits — Question certified: Does an insured lose all benefits under a divisible insurance policy where the insured’s fraud is committed with respect to one part of the policy but the applicable general fraud provision of the policy provides that fraud in any portion of the policy voids the entire policy?

25 Fla. L. Weekly D808a

Insurance — Life — Cancellation of policy — Error to enter summary judgment requiring payment of proceeds of life insurance policy where there were disputed issues of material fact regarding insurer’s defense that it had validly canceled the policy when funds in bank account from which premiums were automatically debited became insufficient — By proving its routine practice in mailing lapse and cancellation notices, insurer established prima facie case that notices were, in fact, mailed — Also creating issue of fact was evidence that decedent’s son, like decedent, also had a life insurance policy with insurer, the premiums for which were paid by automatic debit from the same bank account from which decedent’s premiums were debited; and that when bank balance became insufficient, insurer sent son a lapse notice which he actually received — Personal representative disputed insurer’s claim that notices were mailed by pointing out that a search of decedent’s records turned up none of the notices; insurer had routine practice of sending by courier a courtesy copy of the lapse notice to the insurance agent, and the insurance agent received no such notice; and when decedent submitted change of beneficiary form prior to his death, insurer processed the form and sent confirmation to decedent without notifying decedent that the policy had been canceled — Rebuttable presumption that “mail properly addressed, stamped, and mailed was received by the addressee” is irrelevant in instant case where policy language required only that notices would be deemed delivered when insurer mailed them to the last known address contained in insurer’s records and did not require insurer to show that insured actually received the notices in question — Under circumstances of case, personal representative can introduce evidence that insured did not receive notices as evidence that insurer failed to mail them — Insurer’s evidence of routine business practice, although sufficient to make prima facie case at trial, does not rise to convincing level which would prohibit insured from questioning the mailing by denying receipt — Personal representative is not relying merely on evidence of nonreceipt, but also on evidence that copy of lapse notice was not transmitted by courier to insurance agent contemporaneously, although that was part of routine practice, and that insurer subsequently processed change of beneficiary form without informing insured that policy had been canceled