2001

26 Fla. L. Weekly S515b

Criminal law — Unlawful solicitation for purpose of filing insurance claim — Constitutionality of statute

26 Fla. L. Weekly S401a

26 Fla. L. Weekly S369aNOT FINAL VERSION OF OPINION
Subsequent Changes at 26 Fla. L. Weekly D401a

Criminal law — Insurance fraud — Unlawful insurance solicitation — Speech — Section 817.234(8), Florida Statutes (1997), which prohibits solicitation for the making of motor vehicle tort claims or claims for personal injury protection benefits, unconstitutionally infringes upon the protections afforded commercial speech by the First Amendment to the United States Constitution because the Legislature did not include fraudulent intent as an element of the offense — Commercial speech regulated by statute does not relate to an unlawful activity and is not misleading — Although state’s substantial interests in prevention of insurance fraud support restriction on commercial speech, statute does not directly and materially advance state’s goal of preventing insurance fraud — Statute is not narrowly tailored to achieve state’s interest in prevention of insurance fraud

26 Fla. L. Weekly D235b

Jurisdiction — Foreign corporations — Service of process — Allegation that defendant foreign corporation contracted to insure persons, property and/or risks located in Florida and breached contract in Florida insufficient to permit substitute service on Secretary of State pursuant to section 48.181, Florida Statutes (1999) — Complaint did not sufficiently allege that defendant operated, conducted, engaged in, or carried on business or business venture in state — Even if substitute service had been authorized, it was not properly effectuated because plaintiff served copy of process on defendant by private courier, Federal Express — Error to deny defendant’s motion to vacate default and quash service of process

26 Fla. L. Weekly D140a

Insurance — Marine — Jurisdiction — Foreign insurer — Forum selection clause — Florida court has jurisdiction over foreign insurance company that denied coverage to a foreign shipping company when the insured vessel was extensively damaged while sailing in Florida waters — Plaintiff sufficiently demonstrated statutory basis for jurisdiction by submitting detailed affidavits stating that vessel was in Florida when contract for hull and machinery insurance was initially executed and also when insurance coverage was extended for an additional year — Long-arm jurisdiction exists where plaintiff’s cause of action against insurer arose out of insurer’s denial of claim under insurance contract insuring vessel which was located in Florida at time of contracting — Due process — Minimum contacts supporting exercise of jurisdiction over defendant include facts that defendant entered into insurance contract for vessel primarily trading in and out of Florida, vessel was in Florida at time of contract and at time of extension of contract, vessel was involved in previous litigation in Florida, defendant has network of correspondents in state, defendant utilized Florida insurance brokers, a foreign-based underwriter for defendant consistently visited Florida brokers for at least five years, including time period when the vessel was insured by defendant, and mechanical problem that disabled insured vessel that frequented Florida ports occurred in Florida waters, requiring the assistance of a Florida towing company and shipyard — Further, defendant is international company, insuring risks around the world, and its own marketing materials, including those available on worldwide web, advertise network of correspondents who can handle claims quickly and specifically name correspondents in three Florida cities — Venue — Trial court erred in reading language in insurance policy as a forum selection clause — Error to dismiss complaint for lack of jurisdiction

26 Fla. L. Weekly D2933a

Jurisdiction — Contracts — Health insurance — Action by Honduran plaintiff insured by Swedish health insurance company, who became ill and received medical treatment while in Florida, after which the company failed to pay the expenses — Trial court erred in dismissing complaint for lack of personal jurisdiction on ground that contract provision stating that disputes would be litigated in a United States court was not sufficient to subject a foreign corporation to Florida jurisdiction and that there must be independent basis for Florida jurisdiction to attach — Defendant’s action in breaching the contract in Florida by failing to pay medical expense claims to Florida-based medical providers provided independent basis for personal jurisdiction under long-arm statute

26 Fla. L. Weekly D1087a

Insurance — Flood — Jurisdiction — Circuit court did not have subject matter jurisdiction over insured’s action against “Write Your Own” insurer alleging negligence and breach of contract in failure to procure and write maximum flood insurance coverage under National Flood Insurance Program — Federal courts have original, exclusive jurisdiction over all claims relating to the provision of flood insurance under National Flood Insurance Act regardless of whether they are pled in contract, tort or other state statutory remedies, and regardless of whether the named defendant is Federal Emergency Management Agency or a WYO insurer

26 Fla. L. Weekly D357a

Insurance — Fire — Insurable interest — Relation back provision of criminal forfeiture statute does not serve to divest insured of insurable interest in property — Where fire occurred in 1991 on insured property owned by husband and wife, husband was convicted in 1992 of trafficking in cocaine which occurred from 1983 through 1991, husband assigned wife all interest in property in 1993, and federal court entered final order of forfeiture of property in 1993, trial court erred in entering judgment for insurer in insured wife’s action to recover proceeds under policy on ground that relation back provision of forfeiture statute served to deprive insured of insurable interest in property as of date of trafficking offense

26 Fla. L. Weekly D1106b

Insurance — Exclusions — Vandalism of building that had been vacant for more than 60 days before loss — Where insured who planned to renovate vacant restaurant on his property into car showroom had hired architect and had city send inspectors to property, but property was vandalized before any renovations took place or permits were secured, trial court correctly found that building was vacant for purposes of exclusionary clause — Although policy did not consider buildings “under construction” to be vacant and did not define “under construction,” trial court correctly found that building was not under construction at time of vandalism — Summary judgment in favor of insurer affirmed

26 Fla. L. Weekly S611a

Insurance — Legal malpractice — Releases — Action against Florida Insurance Guaranty Association as receiver for insolvent insurer by plaintiff who had entered into settlement agreement with insured — Where settlement agreement provided that insured would consent to judgment against it, that judgment would never be recorded, would create no liens, and could not be recorded, but agreement clearly demonstrated intent of parties not to release FIGA from liability, settlement agreement constituted a covenant not to execute against insured and did not release FIGA from liability — Error to characterize settlement agreement as a release which extinguished any liability that FIGA had as an insurer