2001

26 Fla. L. Weekly D723a

Wrongful death — Medical malpractice — Federal preemption — Where plaintiff’s claims of vicarious liability and negligence for wrongful death of plaintiff’s wife related to the administration of an employee benefit plan, a health maintenance organization in this case, such claims were preempted by Employee Retirement Income Security Act — Where the HMO controlled the referral process, required that authorization be obtained prior to the performance of diagnostic and therapeutic procedures, required contracted physicians to seek approval for diagnostic tests and arrange health care through the HMO and its contracted physicians, summary judgment on basis of ERISA preemption was proper — HMO did not assume non-delegable duty to render proper medical care to decedent, where HMO did not contract to render medical services, but only contracted to provide care through the use of its primary care physicians and participating health care providers — HMO could not be held vicariously liable for negligence of physicians who were independent contractors

26 Fla. L. Weekly D2847a

Contracts — Insurance — Venue — Forum selection clause — Trial court properly dismissed claim against medical insurer for improper venue where policy was issued in Colombia and contained a provision for jurisdiction where issued — Plaintiff with only “bald assertions of inefficiency and lethargy in the Colombian judicial system and the empty claim of adhesion,” failed to make the required showing that trial in Colombia would be so gravely difficult that she would for all practical purposes be deprived of her day in court — Appellate court cannot accept plaintiff’s argument that there is time yet in which she may make the required showing — Determination of the forum must occur before the trial on the merits

26 Fla. L. Weekly D2271aNOT FINAL VERSION OF OPINION
Subsequent Changes at 27 Fla. L. Weekly D63c

Torts — Insurance — Health — Damages — Appeal from award of compensatory and punitive damages in action for breach of contract, fraud in the inducement, unfair claims practices, intentional infliction of emotional distress, and promissory estoppel against health insurer that wrongfully terminated child with cerebral palsy from program for catastrophically ill children, brought by father of child individually and for use and benefit of child — Error to instruct jury to award child damages for intentional infliction of emotional distress where fair and objective reading of allegations in complaint shows that father was seeking damages for himself only and not as best friend to his child — Compensatory damages award reversed — Punitive damages award must be reversed where fact that jury was allowed to hear evidence relating to insurer’s alleged infliction of emotional distress upon child may have influenced it to award large amount of punitive damages — Where judge instructed jury that insurer’s conduct was “so gross and flagrant as to show a reckless disregard for human life or the safety of persons exposed to the effects of its conduct” and that insurer’s conduct “showed such an entire lack of care that [insurer] must have wantonly and recklessly disregarded the safety and welfare of the public,” and judge did not instruct jury that it had the discretion to decline to assess punitive damages or to award only nominal amount, jury instructions invaded province of jury by characterizing the conduct of defendant — Error to prevent insurer from introducing mitigating evidence to rebut testimony that its managed care practices violated industry standard — Error to allow parents of other critically ill children to testify about their negative experiences with other health insurers which shared same parent company as defendant where parent company was not named as party in lawsuit, and there was no attempt to pierce the parent company’s corporate veil or pursue a legal theory that would have allowed jury to disregard the corporate structure — Evidence was irrelevant and unduly prejudicial — Parent company’s indemnification agreement with defendant may not be taken into account in setting damages where parent company is not a party to lawsuit — Remand for new trial

26 Fla. L. Weekly D283a

Insurance — Equitable subrogation — Law of the case — Insurer’s action for equitable subrogation against tortfeasors who settled with insured, seeking to recover medical benefits paid to insured — Prior decision by appellate court established that settling tortfeasors had no basis to assert defenses to instant subrogation claim based upon insurance contract between insurer and insured and also established that, with knowledge of insurer’s subrogation rights, settling tortfeasors could not rely on a release signed by insured to avoid claim for equitable subrogation — Error to enter summary judgment against insurer — Remand for further proceedings

26 Fla. L. Weekly D725b

Insurance — Health — Class actions — Trial court did not abuse discretion in certifying class in action alleging that insurer breached identical insurance contract provisions in non-renewal of policies

26 Fla. L. Weekly D1938a

Insurance — Group health — Civil procedure — Amendment of affirmative defenses — Action by individual insured under group health policy against insurer to recover disputed premium stabilization fund monies after association policy holder had assigned its rights in fund monies and its cause of action against insurer for recovery of the fund monies to plaintiff — Abuse of discretion to deny defendant insurer’s motion to amend its affirmative defenses to assert that plaintiff, as assignee, has no greater rights than rights of assignor, and that assignment from association policy holder to plaintiff de facto assigned all of premium refund to one policy beneficiary in violation of section 627.569, Florida Statutes — Statute applies where an association provides group insurance to members and those members contribute to the cost of premiums, and a policy holder cannot preference an individual insured with all, or an unequal portion of dividends, premium refunds, rate reductions, commissions or service fees — Motion to amend affirmative defenses should have been granted where motion was made before summary judgment hearing, defendant had not previously requested leave to amend affirmative defenses, and amendment does not require additional discovery

26 Fla. L. Weekly D229aNOT FINAL VERSION OF OPINION
Subsequent Changes at 27 Fla. L. Weekly D513c

Insurance — General liability — Coverage — Spoliation of evidence claim — Where insured’s employee was injured when a ladder collapsed, and employee brought product liability action against manufacturer and seller of ladder, and action against insured for spoliation of evidence which was crucial to product liability action, insured’s general liability policy did not provide coverage for spoliation of evidence claim — Spoliation claim was not covered under policy provision providing coverage for bodily injuries because there was no causal relation between the bodily injuries suffered and destruction of the evidence — Spoliation claim was not covered under policy provision providing coverage for property damage because plaintiff’s only interest in destroyed property was an intangible interest which was excluded from coverage — Error to enter summary judgment finding that insurer had duty to defend and indemnify spoliation of evidence claim

26 Fla. L. Weekly D1747b

Criminal law — Insurance fraud — Unlawful insurance solicitation — Statute is unconstitutional

26 Fla. L. Weekly D149a

Criminal law — Racketeering — Predicate acts — Unlawful insurance solicitation — Fraudulent intent is not element of offense defined in section 817.234(8), which makes the solicitation of business with intent of receiving payment by making a motor vehicle tort claim or a claim for personal injury protection benefits a third degree felony — Speech — Statute as written violates state and federal constitutions — Conflict certified — Statute as written is too broad in its terms of the scope of activities it can potentially reach and is not narrowly tailored to address only state’s interest in preventing insurance fraud

26 Fla. L. Weekly S765a

Criminal law — Insurance fraud — Unlawful insurance solicitation — Section 817.234(8), Florida Statutes, unconstitutionally infringes upon protections afforded commercial speech