2002

27 Fla. L. Weekly D1337a

Torts — Contribution — Indemnity — Equitable subrogation — Action against employer and employer’s liability insurer by plaintiff who was injured on job when garage door on storage unit leased to employer malfunctioned, received workers’ compensation benefits from employer, filed suit against lessor and its principals asserting breach of duty to maintain premises, and, as part of settlement of that suit, received assignment of “all legal and equitable rights of actions, claims and interest, including but not limited to indemnity and contribution” claims lessor might have against plaintiff’s employer and employer’s insurer — Trial court correctly dismissed plaintiff’s claim, as lessor’s assignee, for equitable subrogation — Under doctrine of equitable subrogation, upon payment of any claims which should have been paid by employer, lessor would have stood in the shoes of plaintiff and succeeded to plaintiff’s rights against employer and insurer; and plaintiff’s rights to sue employer in tort were non-existent because employer had paid workers’ compensation benefits for accident and was immune from suit under workers’ compensation law — Common law indemnification — Record does not show any legal relationship between lessor and employer which would render lessor vicariously, constructively, derivatively, or technically liable to plaintiff because of some negligence or fault on employer’s part — Record established that employer was in possession and control of rented storage space and that co-employee directed plaintiff to attempt to open jammed garage door, which resulted in plaintiff’s injuries — Absent vicarious liability, lessor, and plaintiff as lessor’s assignee, had no cause of action for common law indemnity against employer — Contractual indemnity — Although lessor was not entitled to contractual indemnification for its own negligent acts under terms of lease between lessor and employer, factual issue remains as to whether lessor was legally or factually responsible for plaintiff’s damages — Finding that lessor was wholly or partially at fault in accident could not be based on underlying lawsuit where lessor never admitted negligence in that suit, release signed in connection with the settlement of the suit specifically acknowledged that lessor’s payment to plaintiff was not to be considered as an admission of liability, and lessor steadfastly denied its liability — Trial court properly found that insurer would not be liable to pay employer’s damages under a contractual indemnity theory based on provision in liability policy expressly excluding liability assumed under a contract

27 Fla. L. Weekly D2186b
830 So. 2d 156

Insurance — Homeowners — Liability — Exclusions — Intentional acts — Where insured, while investigating damage to his vehicle after accident, heard someone behind him, turned around and saw hands in the air, and, believing that he was going to be hit, reacted quickly and punched plaintiff on the side of the head, intentional acts exclusion was applicable, and homeowners policy provided no coverage for injuries suffered by plaintiff as result of blow to his head — Where complaint alleged that insured either intentionally struck plaintiff or intentionally struck plaintiff based upon an erroneous belief that he was an assailant, the intentional act falls within the exclusion of the homeowners policy — Even if insured’s acts were deemed to be in self defense, such acts would be excluded from coverage under intentional acts exclusion — Insurer had no duty to defend or indemnify insured where allegations of complaint, when fairly read, did not bring case within coverage

27 Fla. L. Weekly D1845a
829 So. 2d 242

Insurance — Homeowners — Exclusions — Damage caused by earth movement — Trial court erred in finding that there was coverage under homeowners policy for structural damage to insured home caused by construction blasting near the property where policy excluded coverage for losses from any earth movement however caused — When construing lead-in provision with earth movement exclusion, it is clear that policy excludes from coverage any loss resulting from earth movement, regardless of the cause of the earth movement, and trial court erred in finding that terms of earth movement exclusion and lead-in provision of policy were ambiguous as to whether the exclusion referred only to earth movement from natural causes

27 Fla. L. Weekly D748a
816 So. 2d 140

Insurance — Uninsured motorist — Excess coverage — Where insured rented a car from a car rental agency and purchased an optional “Rental Supplemental Liability Insurance Policy,” but no uninsured motorist benefits were made available to insured, insured was entitled to uninsured motorist coverage because of insurer’s violation of statutory requirement that UM coverage be made available at request of insured — Trial court erred in finding that statutory obligation of carrier to offer UM coverage was negated by fact that self-insured rental company was not required to offer or provide primary UM coverage — Excess coverage may arise by statutory requirement, even when no underlying or primary UM coverage exists

27 Fla. L. Weekly D1667a

Torts — Insurance — Interest — Declaratory judgment action against excess liability insurer to enforce personal injury judgment which stated that it would bear interest at rate of twelve percent per year — Trial court did not have jurisdiction to amend personal injury judgment six years after it was entered to alter and amend the interest rate — Error to limit excess insurer’s liability for interest on personal injury judgment to amount which exceeded primary coverage where express language of policy required insurer to pay all accrued interest, including interest on underlying judgment — Under language of policy, excess insurer is required to pay interest which accrues on entire judgment up until time insurer pays its part of damages awarded — Trial court’s finding that insurer had notice of accident and suit was not erroneous or against manifest weight of evidence

27 Fla. L. Weekly D218a

Insurance — Liability — Excess coverage — Indemnity — Costs — Insured’s action against excess insurer seeking indemnity for damages arising out of incident in which diesel engine designed and manufactured by insured and installed on ship overheated and exploded, severely burning a deck hand — No error in entering judgment following verdict in favor of insurer on insured’s claim for indemnity where policy required insured to notify insurer of any claims or developments in any lawsuits that might reach into its policy coverage, and jury found that insured’s failure to give timely notice to insurer caused actual prejudice to insurer and further found that broker was not agent of insurer for purpose of receiving notice of injured party’s claim — Evidence — No abuse of discretion in granting insurer’s motion in limine to exclude testimony by insured’s experts where experts, who were the attorneys who represented deck hand and ship owner’s excess carrier in deck hand’s negligence action, refused to answer certain deposition questions and to produce documents on ground of attorney-client privilege — Having chosen to use attorneys who were involved in underlying proceedings, it was incumbent upon insured to obtain waiver of any attorney-client privilege if it intended to present those attorneys as testifying experts — No merit to insured’s argument that trial court abused its discretion in refusing to admit evidence of insurer’s conduct subsequent to its receipt of written notice of underlying lawsuit — Decision to exclude evidence of insurer’s lack of investigation and lack of participation in remaining dispute among codefendants following its receipt of notice of settlement was not error — If ruling were erroneous, any error was harmless because trial court ultimately did admit evidence of insurer’s action after receipt of notice during insurer’s portion of case, and insured was free at that point to recall witnesses during its rebuttal to fully explore insurer’s post-notice activities — No error in denying motion for directed verdict on issue of whether broker was acting as excess carrier’s agent pursuant to terms of parties’ contract — Cost judgment cannot be effectively reviewed on appeal where judgment did not specify how it determined amount, and its determination was not evident from face of record — With regard to expert attorney fees included in cost judgment, the same findings should be provided by court as are required for the award of a party’s attorney’s fees, including reasonable number of hours expended, reasonable hourly rate, and any other components which make up any part of fee — Remand for entry of order setting forth findings as to calculation of that fee

27 Fla. L. Weekly D1345

aInsurance — Uninsured motorist — Evidence — Abuse of discretion to fail to admit into evidence the application for social security benefits that insured made eight months prior to accident in which he described in detail his inability to work — Evidence was not merely cumulative to insured’s trial testimony — Stated basis for ruling, that admission of documents would incorrectly admit evidence of a collateral source, is erroneous where insurer sought to introduce social security application for limited purpose of showing the jury insured’s statements regarding his physical limitations made eight months prior to accident — Fact that statements were made in an application for social security benefits does not introduce evidence of receipt of benefits from a collateral source

27 Fla. L. Weekly D1240a

Insurance — Uninsured motorist — Action against insurer by passenger in insured vehicle which was struck by phantom vehicle on interstate highway — Where action was initially filed against insurer and Department of Transportation, and negligence claim against D.O.T. was settled, leaving insurer as sole defendant, trial court erred in allowing insurer to inform plaintiff on morning of trial that it would defend case by saying that accident was attributable to negligence of D.O.T., and to proceed with that defense and place D.O.T. on verdict form as a nonparty defendant — In order to include nonparty on verdict form, defendant must plead as affirmative defense the negligence of the nonparty — Error to permit insurer to present testimony of expert witness who had been plaintiff’s expert in claim against D.O.T., where witness was not on insurer’s witness list, and insurer disclosed its intent to call witness on morning of trial — Reservation of right to call witnesses on other parties’ pretrial catalog was not fair disclosure — Error to permit insurer to elicit from expert witness, on direct examination, the fact that expert had originally been plaintiff’s expert witness in claim against D.O.T. — As a general rule, jury should not be told during direct examination of the witness that he was originally the expert of the plaintiff — If plaintiff were to open door on cross-examination, insurer can walk through the door; and if plaintiff were to take position that D.O.T.’s negligence played no part in accident at all, then insurer could bring out the fact that expert was originally hired by plaintiff to testify that D.O.T. was, in fact, negligent — No abuse of discretion in denying motion for directed verdict or in excluding evidence of amount insurer paid for damage to vehicle which plaintiff did not own — Collateral source jury instruction should have been given where insurance policy was introduced into evidence, and face sheet showed that it included no-fault benefits — Insurer entitled to setoff for personal injury protection benefits that it paid to plaintiff

27 Fla. L. Weekly D579a

Insurance — Life — Action against life insurance company for failure to pay life insurance benefit upon death of insured, with company asserting affirmative defense that policy had lapsed as result of non-payment of premium — Where policy provided grace period for payment of premiums and required company to provide owner of policy with lapse notice, with notice to be deemed delivered when mailed, and company presented evidence of its routine business practices as proof that it mailed lapse notice, trial court did not err in admitting testimony of insured’s personal representative and insured’s insurance agent that lapse notice was not received to rebut company’s proof of mailing — Because appellate court, in reversing prior summary judgment in case, had held that insured was entitled to contradict company’s proof of mailing by arguing non-receipt as one of multiple facts the personal representative relied on in opposition to company’s claim of mailing, appellate court’s prior opinion is law of the case on issue of admissibility of evidence in question — Prejudgment interest — Trial court properly found that where the provisions of section 627.4615, Florida Statutes, governing interest payable on death claim payments, limited prejudgment interest to 8 percent, limitation was applicable only from the date of filing of the claim until the date of filing of suit

27 Fla. L. Weekly D628c

Insurance — Employers liability — Coverage — Spoliation of evidence claim — Claim by insured’s employee, who was injured when a ladder collapsed, against insured for spoliation of evidence by losing or disposing of ladder which was needed as evidence in plaintiff’s product liability suit against manufacturer and distributor of ladder — Where policy provided that, “We will pay all sums you legally must pay as damages because of bodily injury to your employees, provided the bodily injury is covered by this Employers Liability Insurance,” policy provided coverage for spoliation of evidence claim, and insurer was obligated to defend and indemnify insured — Insurer’s contention that coverage was not provided under language which provided that insurer would pay damages “because of bodily injury to your employee that arises out of and in the course of employment, claimed against you in a capacity other than as employer,” is without merit because insured was sued as the owner of the ladder who accidentally destroyed it, and therefore was sued in a capacity other than as employer