2001

26 Fla. L. Weekly D1630a
788 So. 2d 388

Insurance — Commercial general liability — Exclusions — Torts — Action for property damage to swimming pool and surrounding structures caused by negligence of general contractor and declaratory action to determine extent of coverage of contractor’s commercial liability policy — Coverage — Terms “real property” and “any property” are not ambiguous — Policy exclusion for real property “on which you are performing operations” bars coverage for pool which contractor was draining — Policy exclusion for any property on which work was incorrectly performed bars coverage for pool where trial judge found that contractor drained pool in a negligent manner causing it to pop out of the ground — Exclusion did not refer only to specified tiles and spots on pool that contractor was contracted to repair where damage occurred when contractor was draining the entire pool — As insurer concedes, coverage existed for all property except the pool itself — Damages — No error in awarding homeowner the cost associated with replacing pool and repairing other damaged property where the record fails to demonstrate that this cost exceeded the value of the pool in its original condition or its depreciation in value, and homeowner demonstrated that replacing and repairing damage was practicable by having it done — Where trial court awarded homeowner prejudgment interest, it correctly concluded that loss of use damages were not available — Judgment taxing attorney’s fees and costs against insurer vacated — Nonjoinder — Consolidation of liability and declaratory judgment actions is harmless error in non-jury case

26 Fla. L. Weekly D2938aNOT FINAL VERSION OF OPINION
Subsequent Changes at 27 Fla. L. Weekly D494b

Insurance — Commercial general liability — Coverage — Exclusions — Action by plaintiff who was a passenger in a taxi cab owned by insured and who was driven to remote location and sexually assaulted by cab driver, alleging negligent hiring, negligent retention, and breach of contract for safe transportation — Where policy covered an “occurrence” which was defined as an “accident,” insurer had duty to defend complaint alleging that insured had constructive knowledge of driver’s prior arrests for indecent exposure and loitering for prostitution and incident report in which another passenger stated that driver made sexual advances toward her — As to insurer’s duty to indemnify, issue of fact remains to be resolved as to whether insured had actual knowledge of driver’s proclivity to commit sexual assault — With regard to applicability of policy exclusion for bodily injury “expected or intended from the standpoint of the insured,” factual issue remains to be resolved as to whether driver’s background would lead to the expectation that he would drive a passenger to a remote location and sexually assault her — Policy exclusion of bodily injury arising out of the ownership, maintenance, use or entrustment of auto was not applicable because sexual assault did not arise out of use of the vehicle

26 Fla. L. Weekly D2193a

Insurance — Personal injury protection — Class actions — Trial court properly granted class certification in action alleging that insurer violated section 627.736, Florida Statutes (Supp. 1996), by failing to pay 80% of insured’s medical bills without first obtaining either a report of a physician who performed an independent medical examination or a record review justifying the reduced payment of those bills, and by failing to pay statutory interest after declining to provide PIP benefit payments within 30 days of being given notice of the loss — Plaintiff was properly named as class representative although insurer has admitted liability and tendered payment to plaintiff purportedly for balance of PIP payment plus statutory interest, where insurer has failed to pay plaintiff’s claim in full — Even if insurer were to pay plaintiff’s claim in full after class was certified, class representative may still be able to press the claim on behalf of the absent class members

26 Fla. L. Weekly D2193a

Insurance — Personal injury protection — Class actions — Trial court properly granted class certification in action alleging that insurer violated section 627.736, Florida Statutes (Supp. 1996), by failing to pay 80% of insured’s medical bills without first obtaining either a report of a physician who performed an independent medical examination or a record review justifying the reduced payment of those bills, and by failing to pay statutory interest after declining to provide PIP benefit payments within 30 days of being given notice of the loss — Plaintiff was properly named as class representative although insurer has admitted liability and tendered payment to plaintiff purportedly for balance of PIP payment plus statutory interest, where insurer has failed to pay plaintiff’s claim in full — Even if insurer were to pay plaintiff’s claim in full after class was certified, class representative may still be able to press the claim on behalf of the absent class members

26 Fla. L. Weekly D285a

Insurance — Uninsured motorist — Limitation of actions — Affirmative defense of statute of limitations is not a “coverage defense” within meaning of section 627.426(2)(a), which precludes insurer from denying coverage based on a particular coverage defense unless it gives insured a written notice of reservation of rights to assert coverage defense within thirty days after insurer knew or should have known of defense — Nothing in record supports contention that insurer agreed in writing to process the UM claim “along with and in the manner it was processing” claim for personal injury protection benefits or “through its formal alternative dispute resolution program” — Circumstances were not such that doctrines of waiver and estoppel would prevent insurer from raising statute of limitations defense — No error in entering summary judgment in favor of insurer on ground that UM claim was barred by statute of limitations

26 Fla. L. Weekly D2500b

Civil procedure — Class actions — Insurance — Action arising out of group health insurance plans, alleging insurer and administrator violated Florida Statutes when they cancelled policies without properly offering replacement coverage — Trial court did not err in certifying case as class action — Appeals — Appellate court lacks jurisdiction to review court’s denial of motion to dismiss which asserted that Florida Department of Insurance had instituted administrative proceedings against insurer based on same violations and that Department had primary jurisdiction over claims against both insurer and administrator

26 Fla. L. Weekly D583b

Insurance — Cancellation of policy — Notice — Proof of mailing — Where insurer has good faith basis to believe that reason for cancellation is in fact true, insurer is not required to undertake further investigation

26 Fla. L. Weekly S754c

Civil procedure — Service of process — Dissolved corporation — Pursuant to section 48.101, Florida Statutes (1991), service of process on dissolved corporation must be made on one or more directors of corporation as trustee rather than on corporation’s registered agent — Chapter 48, rather than chapter 607, is the Florida statute that expressly mandates the method by which service is to be perfected on dissolved corporation — 1989 amendments to section 607.1405 did not repeal by implication the express requirements of section 48.101 — Although district court correctly stated that service of process must be effected on a director of a dissolved corporation, it incorrectly assumed that this had not occurred where service was made on the only person ever listed with the State of Florida for any position with the corporation — Fact that papers with which individual was served listed her as “registered agent” rather than as “director” did not render service of process wholly ineffective and void but merely voidable — Because no timely challenge was made to allegedly defective service, trial court properly denied insurer’s motions to set aside earlier judgment which had been entered in separate and distinct legal action

26 Fla. L. Weekly D532e

Insurance — Bad faith — Trial court correctly instructed jury that insurer’s failure to respond to notice of violation within 60 days created presumption of bad faith shifting burden to insurer to show why it did not respond

26 Fla. L. Weekly D479a
778 So. 2d 1037

Insurance — Health maintenance organizations — Torts — Action against HMO by plaintiff and spouse seeking, among other things, damages for bad faith and for loss of consortium — Statutory first-party bad faith claim is not available against health maintenance organization — There is no implied intent by legislature to provide private cause of action against an HMO for violation of Chapter 641 — Bad faith claim not encompassed by section 641.28, which permits civil action to enforce terms and conditions of HMO contract — Sections of Act prohibiting HMO from engaging in unfair or deceptive act or practice does not provide for any private cause of action — Previous unsuccessful attempt by legislature to amend statute to provide for civil liability by an HMO for lack of good faith does not support finding that Act provides for an implied civil action — Section 624.155, which provides that any person can bring civil action against an insurer when person is damaged by insurer for not settling claims in good faith is part of Insurance Code, which does not apply to health maintenance organizations — No error in dismissing bad faith and loss of consortium counts — Abuse of discretion to dismiss those counts without leave to amend — Although complaint was amended four times, each amendment was agreed to by parties and the court, and case had not been litigated for long period of time — Neither party argued that defendant would be prejudiced if amendment were permitted — No merit to argument that amendment would be futile because common law actions would be barred by economic loss rule because plaintiffs allege that defendant’s breach caused physical injury and pain to plaintiff — Because HMO has seemingly placed itself, rather than physician, in charge of decisions as to what medical services are medically necessary for a patient, plaintiffs should be given opportunity to amend complaint and try to state cause of action on common law claims before court rules that no such claims exist in relation to defendant