2001

26 Fla. L. Weekly D2680a

Insurance — Bad faith — Federal preemption — Insurer seeking to prohibit circuit court from proceeding on statutory claim for bad faith failure to pay medical benefits on ground that claim is preempted by Employee Retirement Income Security Act — Determination that ERISA deprives state court of jurisdiction cannot be made until it is established as matter of law that benefit plan is an ERISA plan — Petition for writ of prohibition denied

26 Fla. L. Weekly D1316a

Contracts — Insurance — Implied duty of good faith and fair dealing — Trial court properly dismissed claim by insurance broker that health plan breached implied covenant of good faith and fair dealing by not properly servicing customers, thus losing commissions for the broker, in absence of an allegation that an express term of the contract was breached

26 Fla. L. Weekly D905b

Insurance — Automobile liability — Indemnification — Settlement agreement — Action by car rental agency against renter’s insurer for indemnification and recovery of litigation expenses for defense of wrongful death action brought by estate of person killed in automobile accident — Where prior to car rental agency obtaining a judgment against the renter for indemnification, renter’s insurer agreed to pay policy limits to estate but payment was not to be made until after estate’s wrongful death action against the rental agency was resolved, and payment was promptly made by insurer after resolution of that action upon the estate’s demand and pursuant to the previously resolved settlement terms, insurer and estate entered into valid settlement agreement, and insurer exhausted its policy limits and owed no further indemnity obligation — Regardless of fact that insurer and estate agreed payment would be made after resolution of the wrongful death action, where essential term of payment was agreed upon, a valid and enforceable agreement existed

26 Fla. L. Weekly D1373a

Insurance — Automobile liability — Coverage — Exclusions — Intentional acts — “Bodily injury or property damage which may reasonably be expected to result from the intentional or criminal acts of an insured person or which are in fact intended by an insured person” — Trial court properly refused to apply exclusion to bodily injuries sustained by occupants of vehicles which were struck by insured’s vehicle while insured was fleeing and eluding a law enforcement officer — Expansive intentional acts exclusion at issue in instant case, if strictly applied, would contravene public policy behind financial responsibility laws

26 Fla. L. Weekly D17a

Wrongful death — Automobile accident — Leased vehicles — Vicarious liability of lessor — Insurance — No error in entering declaratory judgment in favor of insurer in action seeking determination whether driver of leased vehicle was insured under policy issued to lessee and whether insurer had duty to defend driver against claims arising out of death of passenger, in light of lessee’s allegation that car was driven without permission — Vicarious liability — No error in entering judgment for lessor on issue of vicarious liability where jury found, based on competent evidence, that driver of leased vehicle did not have express or implied consent to drive vehicle at time of collision in which passenger was killed

26 Fla. L. Weekly D2509a

Insurance — Automobile liability — Coverage — Action by parties who were shot by hijackers of jitney bus on which plaintiffs were riding against insurer of company under whose transportation permit jitney bus was operated — Because jitney bus was not owned by insured and was used frequently in connection with insured’s business, it was not covered under policy — Policy provision extending coverage for “non-owned autos” is intended to provide coverage to insured while engaged in infrequent or casual use of an automobile other than one described in policy — Even if jitney bus had been covered under non-owned auto provision, there would still be no coverage for plaintiffs’ injuries, because injuries resulted from use of the hijackers’ guns not the use of the jitney bus, and the injuries therefore did not arise out of the ownership, maintenance or use of the jitney bus — Mere fact that a vehicle is the site of an injury or incident is insufficient to create a connection between the use of the vehicle and the injury so as to bring the injury within policy coverage

26 Fla. L. Weekly D1868aNOT FINAL VERSION OF OPINION
Subsequent Changes at 26 Fla. L. Weekly D1960a

Insurance — Automobile liability — Bad faith failure to settle — Insurer was not guilty of bad faith in not accepting offer to settle which was made by surviving husband of wife who was killed in collision with insured’s vehicle and father of minor who was injured in collision, where offeror had not been appointed personal representative of his wife’s estate and had not obtained court approval of a settlement on behalf of his minor daughter at time of settlement offer, and offer was revoked before offeror gained authority to make valid offer to settle — Because insurer had no reasonable opportunity to settle claim, insurer could not have acted in bad faith as matter of law — Insurer could not be held liable for failure to notify insured of offer of settlement where there was no valid opportunity to settle — Trial court erred in failing to grant summary judgment for insurer on failure to settle and failure to notify claims — Trial court properly entered summary judgment for insurer on claim that insurer acted in bad faith in rejecting proposal characterized as Cunningham proposal where, at time of proposal, law required that an excess judgment exist before a bad faith claim could be brought — It was not bad faith on part of insurer to follow the law as it existed at the time and reject the proposal

26 Fla. L. Weekly D2174a

Insurance — Automobile liability — Bad faith failure to settle — Insurer was not guilty of bad faith in not accepting offer to settle which was made by surviving husband of wife who was killed in collision with insured’s vehicle and father of minor who was injured in collision, where offeror had not been appointed personal representative of his wife’s estate and had not obtained court approval of a settlement on behalf of his minor daughter at time of settlement offer, and offer was revoked before offeror gained authority to make valid offer to settle — Because insurer had no reasonable opportunity to settle claim, insurer could not have acted in bad faith as matter of law — Insurer could not be held liable for failure to notify insured of offer of settlement where there was no valid opportunity to settle — Trial court erred in failing to grant summary judgment for insurer on failure to settle and failure to notify claims — Trial court properly entered summary judgment for insurer on claim that insurer acted in bad faith in rejecting proposal characterized as Cunningham proposal where, at time of proposal, law required that an excess judgment exist before a bad faith claim could be brought — It was not bad faith on part of insurer to follow the law as it existed at the time and reject the proposal

26 Fla. L. Weekly D725a

Insurance — Automobile — Where policy limited insurer’s liability to amount necessary to repair or replace insured automobile, insured was not entitled to recover an amount for the diminished value of the automobile following damage resulting from hurricane

26 Fla. L. Weekly D2129b

Insurance — Automobile — Error to enter summary judgment finding that injured daughter was not family member residing in insured mother’s Nevada household when she was injured in a Florida automobile accident and, accordingly, was not covered under policy issued in Nevada to mother — Factual issue existed as to whether injured person was resident of Nevada household, and Nevada law reserves resolution of issue of fact of residency for jury