2002

27 Fla. L. Weekly D778a
814 So. 2d 1119

Insurance — Automobile — Summary judgment in favor of insureds on insurer’s claims for rescission and cancellation is fully supported by record — Insurer failed to make tender of all premiums paid by insureds, a necessary condition precedent to rescission claim — Insurer failed to comply with statutory obligations to effect cancellation of policy where it sent refund of unearned premium solely to premium finance company rather than to insured — Indemnity — Claim for common law indemnity is wholly without merit where there is nothing in the record to support a conclusion that party seeking indemnification could be held vicariously liable for any misconduct of party from whom indemnification was sought

27 Fla. L. Weekly D2212a

Insurance — Automobile — Cancellation of policy — Notice of cancellation given by premium finance company was not effective prior to accident, even though company had notified insured that policy would be cancelled on a date earlier than the date on which accident occurred, where insurer did not receive notice of cancellation until after the accident occurred — Under section 627.848(1)(d), advance notice cancellation requirement contained in policy at issue applied to premium finance company and, accordingly, company could not make cancellation effective prior to insurer receiving notice of cancellation — Insurer’s argument that, because insured had already been notified by premium finance company that policy would be canceled on a specified date, the cancellation became effective on that date even though insurer did not receive notice of cancellation until subsequent date, is contrary to advance notice requirement of policy, which is applicable by statute to premium finance company

NOT FINAL VERSION OF OPINION
Subsequent Changes at 27 Fla. L. Weekly D2212a

27 Fla. L. Weekly D1659a

Insurance — Automobile — Cancellation of policy — Notice of cancellation given by premium finance company was not effective prior to accident, even though company had notified insured that policy would be cancelled on a date earlier than the date on which accident occurred, where insurer did not receive notice of cancellation until after the accident occurred — Insurer’s argument that, because insured had already been notified by premium finance company that policy would be canceled on a specified date, the cancellation became effective on that date even though insurer did not receive notice of cancellation until subsequent date is contrary to section 627.848

27 Fla. L. Weekly D1672c

Insurance — Personal injury protection — Attorney’s fees — Waiver — Where initial complaints contained request for attorney’s fees as result of litigating PIP benefits, final judgment contained reservation of jurisdiction to award fees, and insurer did not appeal reservation or otherwise object to reservation, insurer waived any objection it might have to insurers’ failure to properly plead entitlement to attorney’s fees — Circuit court departed from essential requirements of law in denying award of attorney’s fees

Circuit court opinion at 8 Fla. L. Weekly Supp. 596b

27 Fla. L. Weekly D2251a

Insurance — Automobile — Cancellation of policy — Estoppel — Where insured received notice of cancellation of policy for non-payment of premium from premium finance company and also received a notice of cancellation of policy from insurer, which stated a later date of cancellation than the notice received from the premium finance company, insurer was not estopped from denying coverage for accident which occurred after effective date of cancellation of policy stated in notice from premium finance company but before effective date of cancellation of policy stated in notice from insurer — Insured could not reasonably rely on insurer’s cancellation date when he had twice been placed on notice that his policy would be canceled earlier by premium finance company — Estoppel cannot generally be used affirmatively to extend coverage

NOT FINAL VERSION OF OPINION
Subsequent Changes at 27 Fla. L. Weekly D2251a

27 Fla. L. Weekly D1979a

Insurance — Automobile — Cancellation of policy — Estoppel — Where insured received notice of cancellation of policy for non-payment of premium from premium finance company and also received a notice of cancellation of policy from insurer, which stated a later date of cancellation than the notice received from the premium finance company, insurer was not estopped from denying coverage for accident which occurred after effective date of cancellation of policy stated in notice from premium finance company but before effective date of cancellation of policy stated in notice from insurer — Insured could not reasonably rely on insurer’s cancellation date when he had twice been placed on notice that his policy would be canceled earlier by premium finance company — Estoppel cannot generally be used affirmatively to extend coverage

27 Fla. L. Weekly D1621a

Insurance — Comprehensive general liability — Duty to defend — Attorney’s fees — Because comprehensive general liability policy issued to building contractor provided no coverage for class action claims for damages for repair of defective workmanship, but did provide coverage for claims for personal injury or damages to personal property which might result from defective workmanship, insurer had no duty to defend complaint against insured seeking damages for defective workmanship before amendment of complaint by interlineation to add claim for damage to personal property caused by construction defects — Error to grant attorney’s fees to insured on basis of insurer’s failure to defend from time of service of suit on insured until date of amendment of complaint by interlineation to add covered claims — Attorney’s fees claim based on duty to defend cannot arise until duty to defend arises

27 Fla. L. Weekly D1188a

Insurance — Automobile — Medical payments — Attorney’s fees — Where insured who had been injured in automobile accident requested that medical payments insurer preauthorize surgery for tear to the menisci in his knee, but, after insurer’s physician examined insured and concluded that there was no tear, insurer advised insured that it was not going to make any additional payments for further orthopedic care, plaintiff’s action against insurer was not premature although it was filed prior to insured having surgery in question — Trial court properly awarded statutory attorney’s fees to insured after insured had surgery, surgeon found that insured did, in fact, have torn meniscus, and insurer paid bills for surgery — Trial court properly found that insurer has obligation to preauthorize surgery in a situation in which the injury is within the coverage of the medical payments portion of insurance policy

27 Fla. L. Weekly D920b

Attorney’s fees — Insurance — Class action against automobile insurer for failing to comply with applicable statutes in cancellation of insurance policies — Error to apply contingency fee multiplier in determining attorney’s fee award on grounds that case involved complex and novel issues and that case had less than fifty percent chance of success at the outset, where there was no evidence that without risk enhancement plaintiff would have faced substantial difficulties in finding counsel in the local or other relevant market — Award of prejudgment interest on attorney’s fees from date summary judgment was entered for plaintiff was inequitable where plaintiff did not file motion for attorney’s fees until more than three years after summary judgment, and defendant did not receive amount being requested until after filing of motion

27 Fla. L. Weekly D247e
805 So. 2d 119

Attorney’s fees — Appellate — Insurance — Personal injury protection — Circuit court acting in its appellate capacity failed to apply correct law when it denied insured’s motion for appellate attorney’s fees solely because she did not prevail in appeal to the circuit court — Circuit court apparently neither considered nor applied general rule set forth in Aksomitas v. Maharaj, that appellate court should ordinarily grant prevailing party attorney’s fees contingent on party ultimately prevailing in case below and failed to consider exceptions in Aksomitas for appeals deemed unnecessary or where appellee should have confessed error — Remand for further proceedings