2001

26 Fla. L. Weekly D327a

Insurance — Duty to defend — Appeals — Where insured’s action against insurers alleged breach of contract and misrepresentations in connection with expenses incurred in remediating pollution, and included an allegation that insurers owed insured the duty to defend claims arising from environmental conditions, and insurers filed motion to dismiss duty to defend allegations on the ground that no “suit” existed which would trigger any duty to defend, trial court order granting motion to dismiss duty to defend allegations was not an appealable order — Order was not a partial final judgment of dismissal, and order did not determine liability in favor of a party seeking affirmative relief — Order dismisses only portions of causes of action asserted against insurers and does not dispose of an entire case against any party

26 Fla. L. Weekly D151a

Torts — Fraudulent and negligent misrepresentation — Action against real estate broker and agent and insurance agent alleging that real estate agent representing seller falsely informed plaintiffs’ agent that home plaintiffs eventually purchased was not located in Coastal Barrier Resource Area, although seller’s agent was in possession of document indicating otherwise; and further alleging that insurance agent understood plaintiffs would not close on purchase unless they were fully insured, including federal flood insurance, and that insurance agent falsely represented that they would be so insured — Error to grant summary judgment for real estate broker and agent on ground that claims were precluded as matter of law because CBRA designations are land regulations that are part of public record and, accordingly, plaintiffs could have reasonably ascertained this information — Court also erred in determining that plaintiffs did not rely on representation by real estate agent that property was not in CBRA where defendants concede that agent made this representation to plaintiffs’ agent and concede that at the time the defendant had document stating that property was located in CBRA — Question of reliance remains disputed issue of material fact — Conflict certified — Error to enter summary judgment in favor of insurance agent where agent knew that plaintiffs would not close unless they were fully insured at closing, including federal flood insurance coverage, assured plaintiffs that coverage would be effective upon closing, and discovered prior to closing that property was located in CBRA but failed to notify plaintiffs of this information or provide the promised insurance — Question of insurance agent’s negligence presents issues of material fact — Trial court erred in finding that plaintiffs did not establish damages because they have not suffered flood damage and have not purchased private flood insurance — Plaintiffs presented evidence regarding large price differential between federal and private flood insurance and regarding their purchase of a house they would not have bought had they known the property was located in CBRA

26 Fla. L. Weekly D1430a
789 So. 2d 1045Insurance — Personal injury protection — Anticipatory breach — No error in dismissing insured’s complaint for failure to state a cause of action where, although PIP insurer had notified insured that it no longer considered medical treatment necessary and did not intend to honor future claims, insured did not allege that she had incurred any medical bills that were denied or refused by insurer — Appeals — Insured was not denied due process by assignment of appeal from county court to single circuit court judge where local rules of 17th circuit permit single qualified judge to function as the court in first-tier certiorari review and the supreme court has not promulgated a rule mandating three-judge appellate panels in circuit — Insured failed to demonstrate that single judge review deprived her of fair and meaningful opportunity to be heard

26 Fla. L. Weekly D843b

Appeals — Insurance — Appraisal — Order denying motion to compel appraisal is not appealable where trial court had rescinded its previous order compelling appraisal and determined that insured was obligated to comply with post-loss obligations as stated in policy before insured could compel appraisal — No basis for petition for writ of certiorari where there is no showing that trial court departed from essential requirements of law, causing irreparable injury which cannot be adequately remedied on appeal

26 Fla. L. Weekly S473a
790 So. 2d 1061

Torts — Limitation of actions — Negligence — Professional malpractice — Negligence/malpractice cause of action accrues when client incurs damages at the conclusion of the related or underlying judicial proceedings or, if there are no related or underlying judicial proceedings, when client’s right to sue in the related or underlying proceeding expires — If suit is filed prior to time that client’s right to sue has expired or during time that a related or underlying judicial proceeding is ongoing, defense can move for abatement or stay of claim on ground that negligence/malpractice action has not yet accrued — In case at issue, limitations period for negligence action against insurance agent for failure to procure coverage for sports cards did not accrue until proceeding against insurer was final — Plaintiff’s action against agent was nonetheless barred due to principles of judicial estoppel where jury returned verdict in favor of plaintiff in action against insurer on promissory estoppel theory which, in essence, means that coverage existed for the cards — Plaintiff could not then turn around and claim, in action against agent, that coverage did not exist — Although judicial estoppel normally requires mutuality of parties, case falls within exception available where special fairness or policy considerations appear to compel it

26 Fla. L. Weekly D291a

Insurance — Commercial liability — Errors and omissions — Attorney’s fees — Offer of judgment — Declaratory judgment action brought by insurance broker who received renewal premium and insurance broker’s errors and omissions carrier to determine whether insurance policy issued by commercial liability insurer to insured was in full force and effect on date of an automobile accident involving one of insured’s vehicles — Agency — Record contained no evidence that broker was apparent agent for insurer, so that acceptance of premium payment bound insurer to cover the insured — Insurer did not make any representation itself to insured suggesting an agency relationship — Although insurer’s general agent informed insured of the need to fill out a renewal application and pay the premium to broker, letter referred to broker as insured’s agent and warned that renewal was subject to receipt of a fully completed application received by the general agent, not the broker — General agent’s second communication with insured informed it unequivocally that the policy was canceled for underwriting reasons, including failure to provide completed renewal application — Affidavit from officer of general agent stated that broker was not provided with promotional or advertising material or any “letterhead, stationery, brochures, binder forms, signs, or other materials evidencing any relationship” with insurer, and no counter-affidavits were filed by broker — No proof was offered to corroborate allegation that broker was supplied applications in blank form by insurer — Payment of renewal premium to broker not sufficient to establish apparent agency where insurer never demanded premium or calculated what premium would be because it had never received renewal application form — Attorney’s fees — Instant declaratory judgment action was not a civil action for damages within meaning of section 768.79 where “real issue” in case was insurance coverage for an underlying tort action, and no money damages or payment of money was directly requested in the instant action