2001

26 Fla. L. Weekly D2262a

Administrative law — Insurance — Department of Insurance emergency cease and desist orders stating that some life insurance companies have, in the past, engaged in racially discriminatory practices and that such practices should be discontinued to extent that companies are continuing the practices — Orders failed to satisfy statutory requirements where there were no allegations of statutorily proscribed conduct by named individual companies, there were no charges set forth as to what law was allegedly being violated, nexus between named companies and alleged improprieties and public harm was not indicated, and orders did not identify any specific company whose wrongful actions constitute immediate threat to public health, safety or welfare — Emergency cease and desist orders reversed

26 Fla. L. Weekly D1470a

Administrative law — Department of Insurance — Appeals — Petition for review of non-final agency action — Court lacks jurisdiction to entertain petition where petitioners have failed to identify any agency order rendered within last thirty days which they seek to have reviewed — Petition dismissed — In absence of jurisdiction, court has no authority to grant stay pursuant to rule 9.190(e)(2)

26 Fla. L. Weekly D111a

Declaratory judgments — Insurance — Homeowners — Coverage — Exclusions — Intentional torts — Duty to defend — Amended complaint which alleged only a cause of action for negligence against insured and which eliminated all specific descriptions of intentional tort contained in earlier complaint — Case was proper for declaratory relief, since it involved the construction of policy language under the facts of the case — Question certified: May the insurer pursue a declaratory action in order to have declared its obligation under an unambiguous policy even if the court must determine the existence or nonexistence of a fact in order to determine the insurer’s responsibility? — Trial court properly allowed declaratory judgment action to be tried prior to underlying negligence lawsuit — Conflict certified — Court recedes from that portion of its prior decision in Marr Invs., Inc. v. Greco which is inconsistent with instant opinion — Trial court erred in failing to grant directed verdict on issue of insurer’s duty to defend where cause of action alleged in amended complaint fairly and potentially fell within coverage of policy — No abuse of discretion in granting new trial on coverage issues based upon insurer’s reference during opening statements to settlement between injured party and one of the defendants in the original underlying negligence case — Section 768.041(3), which provides that “release or covenant not to sue, or that any defendant has been dismissed by order of court shall not be made known to the jury” applies to instant action for declaratory relief pertaining to existence of insurance coverage, an action which is closely related to underlying negligence action — Evidence — Original complaint filed in negligence action, which the injured party, an experienced legal secretary, had typed for her attorney-employer, was admissible against the injured party as a statement offered against a party “of which the party has manifested an adoption or belief in its truth” — Various statements made to physicians by injured party, which were admissible as admissions of a party under section 90.803(18)(a), did not have to also qualify for admission under section 90.803(4), as statements for purpose of medical diagnosis or treatment — Jury instructions — Interrogatory verdict form correctly framed the fact issues in the language of the policy exclusions — No error in court’s jury instructions

26 Fla. L. Weekly D764e

Declaratory judgments — Insurance — Coverage — Exclusions — Acts outside scope of employment — Petition for declaratory judgment seeking determination of whether city and police officer, sued for officer’s involvement in automobile accident while off-duty, driving unmarked police vehicle outside of city for unauthorized personal reasons, are entitled to be defended and/or indemnified under city’s indemnity and coverage agreement with petitioner — Trial court’s dismissal of petition for declaratory judgment on ground that issue of “scope of employment” exclusion was factual issue inappropriate for review under declaratory judgment act was decided prior to district court ruling in Higgins, concluding that declaratory judgment is available to resolve fact issues concerning coverage, and that trial court has discretion to allow that issue to be tried in advance of trial of underlying tort claim — Since trial court’s dismissal of petition for declaratory judgment was based on belief that it had no discretion to allow the declaratory judgment case to be tried before the underlying tort claim, order of dismissal was reversed and matter was remanded for further proceedings — Question certified — Conflict noted

26 Fla. L. Weekly D2210a

Insurance — Credit disability — Error to apply workers’ compensation concept of “permanent total disability” to claim brought by insured under credit disability insurance policy and to find, based on that concept, that any ability to work part-time precluded finding that insured was totally disabled — Workers’ compensation law does not apply to occupational disability test contained in insurance contract, which required that insured be unable to engage in any occupation for which insured was reasonably qualified — Review of case law leads to conclusion that Florida Supreme Court does not consider term “any occupation” as being synonymous with “any employment” — Definition of occupation is, on facts of instant case, ambiguous — Trial court failed to accord proper treatment to ambiguous language in policy

26 Fla. L. Weekly D2306a

Civil procedure — Counsel — Insurance — Trial court departed from essential requirements of law when it entered order requiring parties, who were already represented by Florida lawyers, “to retain associated local counsel in Okaloosa County within ten (10) days” — Insurer’s assertion that petition for writ of certiorari is appropriate because of “inherent irreparable harm” of trial court’s action is insufficient to establish irreparable harm — Insurer’s claim that it may be required to pay the additional attorney’s fees its insured will have to pay its local counsel insufficient to establish irreparable harm because insurer may never be ordered to pay insured’s fees, and any such order could be remedied on appeal in any event — Insurer’s assertion that it will suffer irreparable injury for which it does not have adequate remedy on appeal because of the fees it will have to pay additional counsel has merit

26 Fla. L. Weekly D2171a

Insurance — Comprehensive general liability — Exclusions — Bodily injury or property damages arising out of ownership, maintenance, use, or entrustment of motor vehicle — Trial court in declaratory judgment action properly found that exclusion was applicable, and that insurer had no duty to defend or indemnify its insured under comprehensive general liability policy for claim arising out of automobile accident which occurred when insured’s employee was driving insured’s vehicle within the scope and course of his employment — Florida law has generally recognized that duplicate coverage from both an automobile liability policy and a general liability policy for an automobile accident injury covered by an automobile policy is not ordinarily available simply by alleging the separate tort of negligent hiring, supervision, or retention — When an insured defendant in a typical automobile negligence lawsuit is both the owner of the motor vehicle and the employer of the driver, the claim arises out of the ownership and use of the insured’s motor vehicle — Even if plaintiff alleges negligent hiring, supervision, or retention, the standard automobile exclusion clause in a general liability policy excludes coverage for such a claim

26 Fla. L. Weekly D2486a

Insurance — Commercial general liability — Exclusions — Bodily injury or property damage included within products-completed operations hazard — Trial court erred in finding that insurer had duty to defend claim against insured developer under commercial general liability policy issued after insured had completed construction of residence for claimants, alleging that insured negligently misrepresented that lot on which insured built residence for claimant was suitable for construction of residence, but that after residence had been constructed cracks appeared in residence because residence was situated on pockets of debris which caused settling and deterioration as debris decomposed — Exclusion eliminated coverage for claims of bodily injury and property damage arising after insured completed its work — No merit to insured’s contention that completed operations exclusion did not apply because misrepresentations occurred before construction work was completed, and physical damage to property occurred during policy period

26 Fla. L. Weekly D1578b

Insurance — Commercial general liability insurance — Exclusion for bodily injury arising out of ownership, maintenance, or use of an automobile owned or operated by insured applied to claim brought by infant for injuries sustained when insured’s employee was involved in an automobile accident while returning from a pizza delivery — Insurer had no duty to defend claim for negligent hiring, training or supervision — Insurer had no duty to defend or indemnify under concurrent cause doctrine where alleged multiple causes are related and dependent, and risk created by alleged corporate policies and practices of insured was risk of injury arising out of use of an automobile, not a separate and distinct risk

26 Fla. L. Weekly D1359a

Insurance — Commercial general liability — Exclusions — Defamation — Where policy excluded coverage for injury resulting from defamatory statements that were false and known to be false when made, trial court erred in entering summary judgment in declaratory judgment action, finding that insurer had no duty to defend amended complaint which alternatively alleged intentional wrongdoing or negligent defamation — Liability insurer’s duty to defend is controlled by allegations in complaint against insured, even if they may be factually incorrect or without merit — When an amended complaint supersedes an earlier one, the allegations of the amended complaint control the duty to defend