2001

26 Fla. L. Weekly D2542a

Insurance — Coverage — Denial — Misrepresentation of material fact related to claim — Failure to comply with document production demanded by insurer prior to instituting suit — Where insured owned two watches, only one of which was insured, whether insured’s initial misrepresentation of where he originally obtained the second uninsured watch was material misrepresentation which would void coverage for loss of insured watch should be determined by trier of fact — Disputed issue of fact exists as to whether certain documents requested by insurer were in fact produced and whether failure to produce documents requested was material breach — Error to grant summary judgment in favor of insurer

26 Fla. L. Weekly D702a

Insurance — Personal injury protection — Assignment of benefits — Where a medical provider agrees to perform services based on an unqualified assignment of medical benefits on condition that the insured will be responsible for bills not covered or paid by the insurer, the insured does not have standing to assert a claim against the insurer

26 Fla. L. Weekly D202a

Insurance — Property — Action by primary insurer against excess insurer after primary insurer had settled insured’s claim for hurricane damage for less than limit of primary policy and had taken assignment of insured’s claim against excess insurer for amount of loss which exceeded limit of primary policy — No merit to excess carrier’s claim that excess carrier owes nothing because primary insurance has not been exhausted — Insured may proceed against excess carrier for amount of loss which exceeds limit of primary coverage even though insured has not exhausted primary coverage by collecting full amount of primary policy — Trial court properly entered summary judgment for excess insurer on ground that insured’s assignment of claim against excess insurer to primary insurer violated public policy — It is against public policy and contrary to the relationship between primary insurer and excess insurer to allow primary insurer to settle within primary limits, take an assignment from insured, and then assert a claim against excess insurer

26 Fla. L. Weekly D2727a

Insurance — Homeowners — Rates — Action by Florida Department of Insurance seeking vacation of arbitration award which approved rate increases for homeowners insurance policies on ground that arbitrators exceeded their powers — Highly deferential standard is applicable in judicial review of arbitration awards — Arbitrators did not exceed their powers by their use of hearsay evidence or by admitting evidence of models and output ranges that had not been determined to be accurate and reliable by the Florida Commission on Hurricane Loss Projection Methodology — There is no authority for vacating an arbitration award because the arbitrators considered evidence, even evidence that would be inadmissible in a judicial or administrative proceeding — Arbitrators did not exceed their powers by rendering award more than ninety days after demand for arbitration — There is no requirement that arbitration must conclude within ninety days of the demand — Arbitrators did not exceed their powers by overruling Department’s objection to scheduling hearing more than sixty days after demand for arbitration — Trial court properly dismissed complaint and motion to vacate arbitration award

26 Fla. L. Weekly D536a

Insurance — Personal injury protection — Arbitration — Error to dismiss class action by medical provider against personal injury protection insurer alleging failure to pay statutory interest due upon late payment of PIP claims and to stay proceedings pending completion of arbitration mandated by statute which has been declared unconstitutional by Florida Supreme Court — Plaintiff did not waive right to challenge constitutionality of statute by failing to raise issue in trial court — Because order compelling arbitration was an interlocutory ruling subject to reconsideration by trial court at any time prior to entry of final order, plaintiff could benefit from change in law while appeal from order was pending

26 Fla. L. Weekly D517b

Insurance — Appraisal — Trial court properly granted motion to stay proceedings and compel appraisal where insurance company did not actively participate in lawsuit or take any action inconsistent with its contractual right to appraisal

26 Fla. L. Weekly D2843b

Insurance — Homeowners — Appraisal — Res judicata — Limitation of actions — Where trial court denied insured’s initial application to compel appraisal/arbitration of loss under homeowners policy on ground that insured had not performed conditions precedent although at time of insured’s initial demand for appraisal/arbitration law in district did not permit insured or insurer to refuse to submit to appraisal once demand had been made, during pendency of insured’s appeal district court receded from prior decisions and held that performance of policy preconditions was required prior to granting motion to compel appraisal/arbitration, and district court affirmed summary judgment denying insured’s motion to compel appraisal/arbitration without opinion, insured’s second action to compel appraisal/arbitration after insurer had refused to permit insured to comply with conditions precedent to appraisal/arbitration was not barred by res judicata — Although all elements of res judicata exist, application of res judicata would work an injustice to insured because insured had attempted to comply with legal prerequisites for appraisal, and other similarly situated policyholders had been afforded opportunity to comply with conditions precedent to appraisal/arbitration — Trial court erred in finding that insured’s action to compel appraisal/arbitration was barred by statute of limitations because statute could only have begun to run when insured offered to perform conditions precedent and insurer refused to allow such performance

26 Fla. L. Weekly D1737d

Insurance — Homeowners — Appraisal — Prejudgment interest — Prejudgment interest on losses insureds incurred due to hurricane should be computed from date of appraisal award, and not from date of loss — Because policy provisions allowed insurer sixty days in which to pay appraisal award, and insurer made payment within that time, insureds are not entitled to receive any prejudgment interest — Insureds are entitled to award of costs and attorney’s fees incurred while litigating entitlement to costs and attorney’s fees — Insureds are entitled to award of pre-judgment interest on previously awarded attorney’s fees, with interest accruing from date entitlement to attorney’s fees was fixed through agreement, arbitration award, or court determination

26 Fla. L. Weekly D1411bNOT FINAL VERSION OF OPINION
Subsequent Changes at 26 Fla. L. Weekly D1737d

Insurance — Homeowners — Appraisal — Prejudgment interest — Prejudgment interest on losses insureds incurred due to hurricane should be computed from date of appraisal award, and not from date of loss — Because policy provisions allowed insurer sixty days in which to pay appraisal award, and insurer made payment within that time, insureds are not entitled to receive any prejudgment interest

26 Fla. L. Weekly D1412b

Insurance — Homeowners — Appraisal — Where homeowners policy contained appraisal provision, there was no entitlement to formal hearing under Florida Arbitration Code — Trial court was correct in upholding neutral umpire’s decision to conduct appraisal in informal manner and in granting motion to confirm appraisal award — Conflict certified