2002

27 Fla. L. Weekly D49a

Declaratory judgments — Insurance — Life — Trial court correctly held that valid orders and mediation agreements in dissolution of marriage action provided former wife with an insurable interest to purchase life insurance policies on former husband — Appropriate remedy for former husband, who maintained that insurer had no authority to provide former wife with life insurance policies insuring his life, is to file pleading in dissolution action to establish change in circumstances warranting reduction in insurance coverage or change in beneficiary of the policies — Any modification would need to account for fact that former husband apparently owes child support arrearage and that premiums on policies have apparently been paid for several years by former wife

27 Fla. L. Weekly D153a

Insurance — Liability — Indemnity — Where Little League Association contracted to use city’s facilities for Little League events, and promised to indemnify city for all claims arising out of use of facilities and to procure insurance policy naming city as co-insured, trial court properly found that Little League’s liability insurer was obligated to indemnify city and city’s liability insurer for attorney’s fees and costs incurred in successfully defending a personal injury claim which arose out of Little League’s use of facilities — Agreement with Little League shifted exposure from city’s liability carrier to Little League’s liability carrier, and primary obligation to defend city for an action arising out of Little League’s use of city’s facilities was with Little League’s insurer — Error to award city and city’s insurer attorney’s fees and costs incurred in bringing declaratory action seeking determination of right to indemnity — Attorney’s fees incurred in the defense of a claim indemnified against are part of the damages allowable, but attorney’s fees incurred in establishing the right to indemnification are not allowable

27 Fla. L. Weekly D1722a

Torts — Contracts — Health maintenance organizations — Action against HMO alleging breach of contract, fraud in inducement, fraud, intentional infliction of emotional distress, breach of implied covenant of good faith and fair dealing, and loss of consortium, arising out of HMO’s withholding or denying authorization of claim for coverage under health benefit contract on ground that treatment sought was for a preexisting condition and therefore excluded from coverage — Medical malpractice — Trial court erred when it determined that claims dealt with medical malpractice and dismissed complaint on ground that plaintiffs failed to comply with statutory presuit notice requirements — Conclusory allegation in complaint that the procedure for which HMO withdrew authorization was medically necessary is not an allegation that HMO rendered medical care to plaintiff — Further, plaintiff’s contractual claim calls for determination as to whether condition was pre-existing as contemplated by parties’ contract which does not require a determination as to whether procedure was necessary — Claims for fraudulent inducement, intentional infliction of emotional distress, and breach of implied covenant of good faith deal with HMO’s alleged misrepresentations prior to parties entering into contract and with whether HMO’s decision to deny authorization was malicious, not with the rendering of medical care — Remand for further proceedings

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 — Jurors — Post-trial interview — Where juror during voir dire claimed she was never party to lawsuit when, in fact, she had been sued in another county by a health care provider for allegedly failing to pay her daughter’s medical bills, trial court should have granted defendant’s request for juror interview — No error in admitting evidence of defendant’s indemnity agreement with its parent company — Once defendant claimed that large award of punitive damages would hurt or bankrupt the company financially, the indemnity agreement became relevant for purposes of proving otherwise

27 Fla. L. Weekly D2533b

Insurance — Uninsured motorist — Evidence — Fraud — Where insured’s fraud in connection with claim for personal injury protection claim did not void uninsured motorist coverage under policy, erroneous admission of evidence of the fraud in UM portion of trial was not harmless — New trial on UM claim required

27 Fla. L. Weekly D2538a

Criminal law — Grand theft of insurance proceeds — Evidence was sufficient to establish that defendant knowingly used insurance proceeds for which third person had superior legal interest — No error in denying motion for judgment of acquittal — Jury instructions — No error in failing to instruct jury regarding defendant’s good-faith belief that he was entitled to insurance proceeds after house was damaged by fire — Where defendant’s mortgage deed gave mortgagee a legal interest in insurance proceeds superior to defendant’s, and sufficient evidence was presented that defendant used the insurance proceeds for his own personal ends, knowing that mortgagee had superior possessory interest in funds, trial court properly instructed jury to determine whether such action constituted theft

27 Fla. L. Weekly D182a

Torts — Fraud — Insurance — Limitation of actions — Fraud action against insurance company for sale of whole life insurance policies represented to the plaintiffs to be retirement plans — Where plaintiffs allege that they continued to pay premiums to insurer for what they believed to be retirement plans and did not learn of the fraud until eight years after purchase of policies, alleged fraud was an ongoing fraud, and each payment resulted in consequent injury to plaintiffs — Fraud was not complete until plaintiffs were no longer suffering consequent injuries through payment of premiums and, thus, statute of limitations could not have begun to run until year plaintiffs learned of fraud or year they stopped paying premiums, whichever is later

27 Fla. L. Weekly D170a

Torts — Fraud — Insurance — Limitation of actions — Plaintiff who purchased policy from defendants alleging she was led to believe that she had purchased a retirement plan, only to learn that retirement plan was merely a life insurance policy with no retirement benefits — Error to dismiss complaint with prejudice on statute of limitations grounds — Statute of limitations could not have begun to run until date plaintiff learned of fraud or date plaintiff stopped paying premiums, whichever was later

27 Fla. L. Weekly D80b

Insurance — Florida Insurance Guaranty Association — Limitation of actions — Declaratory action against FIGA asserting that FIGA is responsible for payment of judgment obtained in negligence action against insured of an insolvent insurer is barred by statute of limitations where plaintiff sued neither insured nor FIGA within one-year limitations period — No authority to support plaintiff’s contention that 1998 declaratory action against FIGA relates back to 1990 negligence action against the insured

27 Fla. L. Weekly D1640a

Insurance — Uninsured motorist — Exclusions — Bodily injury sustained while using or occupying vehicle owned by insured but not insured under policy — Where section of insurance policy dealing with uninsured motor vehicle coverage did not define “vehicle” or “motor vehicle,” applicable definition is that contained in section 324.021(1) — Motorcycle falls within statutory definition of motor vehicle — Error to enter judgment in favor of insureds who sustained bodily injury while using or occupying motorcycle owned by insured but not listed in policy