2002

27 Fla. L. Weekly D2417c

Insurance — Insured’s action against insurer seeking declaration that policy provided coverage for accident involving insured’s son — Discovery — Trial court departed from essential requirements of law by ordering claims adjuster to answer all deposition questions, even those calling for trade secrets — Portion of order directing claims adjuster to answer question that is objected to on grounds of trade secrets before trial court determines whether insurer has valid trade secret privilege to assert quashed

27 Fla. L. Weekly D2358a

Administrative law — Department of Insurance — Administrative law judge properly rejected collateral challenge by insurance company to allegations in section 120.57 administrative proceeding brought by Department, contending that specified allegations in the administrative complaint were in fact unpromulgated rules — Department’s complaint alleged that certain of company’s underwriting practices are facial violation of regulatory statutes, and company made no showing of any statement of general applicability so as to require rulemaking by Department — Administrative law judge properly found that company has no right to pursue a separate, collateral challenge to an alleged nonrule policy where an adequate remedy exists through a section 120.57 proceeding

27 Fla. L. Weekly D523b

Declaratory judgments — Advisory opinion — Insurance — Trial court erred in entering declaratory judgment holding to be unconstitutional statute governing rate filings with Department of Insurance where plaintiff insurance companies had no rate increase requests pending before Department at time of filing declaratory judgment action, so that there was no present controversy — Allegations which merely raise the possibility that plaintiffs might, in the future, have rate changes disapproved based on the challenged statutory provision are insufficient to create a present controversy — Because there was no actual, present dispute concerning rate filings involving the challenged provision, declaratory judgment constituted an impermissible advisory opinion

27 Fla. L. Weekly D815a

Insurance — Liability — Declaratory judgment — Coverage — Discovery — Where, after underlying tort action against insured had been bifurcated into liability and damages, with court entering partial summary judgment against insured on liability, insurer filed declaratory judgment action alleging that no coverage existed for insured’s liability in underlying action, trial court improperly entered order compelling insurer to turn over its claim file and to submit its counsel and corporate representative to deposition — Certiorari is appropriate where the trial court has ordered production of an insurer’s claim file prior to a determination of coverage, and where the trial court has ordered production of a privileged document — When the issue of insurance coverage is unresolved and at issue in pending court proceedings, a trial court must not order an insurer to produce its claim file and other work product documents — Neither the insured nor the third party plaintiff is entitled to discovery of the claim file in a declaratory action to determine coverage, because the claim file is the insurer’s work product

27 Fla. L. Weekly S692a

Attorneys — Insurance staff attorneys — Circuit court judge directed to vacate orders prohibiting defense counsel who are employed as full-time insurance company staff counsel from using their individual firm names in pleadings and correspondence, or requiring insurance company staff counsel to disclose their insurance company affiliation in filing pleadings and other papers in litigation over which judge presides — Prohibitions encroach upon supreme court’s ultimate jurisdiction to adopt rules for courts

27 Fla. L. Weekly D61d

Insurance — Contracts — Modification — Reformation — Appeal of summary judgment in which trial court determined that parties in a document entitled Modification of Management Agreement properly reformed their original agreement to provide an always-intended indemnification against its own negligence for property manager — Summary judgment error because position now taken by insureds, landowner and property manager, that they had always meant to include indemnification provision, is contrary to position taken by landowner in earlier appeal — Modification document cannot properly be viewed as a reformation — Modification document is an impermissible attempt to modify original agreement retroactively so as to shift priority of insurance coverage after an insured loss has occurred

27 Fla. L. Weekly S710a

Insurance — Disability — Conflict of laws — Appeals — In Florida, the burden of proof is a procedural issue for conflict of laws purposes — District court decision that places burden of proof on insurer to establish that the insured no longer comes within the purview of the policy in a situation where the insurer begins to pay disability benefits but later ceases to pay because it believes the insured is not disabled is not part of substantive law of Florida, and it would be applicable in a case where under Florida’s doctrine of lex loci contractus the substantive law of another state governs the parties’ contract dispute — Florida Supreme Court opinion discharging writ of certiorari as improvidently granted does not constitute binding precedent

27 Fla. L. Weekly D985a

Insurance — Commercial general liability — Duty to defend — Advertising injury — Insured’s display of cigar lighter which infringed on competitor’s copyright and trade dress at industry’s largest trade show, whether it was open to general public or not, was sufficient to qualify as “widespread public distribution” — Error to find that insurer had no duty to defend insured in suit brought against insured by competitor

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

27 Fla. L. Weekly D513c

Insurance — Commercial general liability — Exclusions — Spoliation of evidence claim — Action 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 — Plaintiff’s claim for spoliation of evidence is properly viewed as being “because of bodily injury” and is within scope of insuring agreement in commercial general liability policy — Coverage for spoliation of evidence claim is excluded under exclusion for “bodily injury to an employee of the insured arising out of and in the course of employment by the insured” — Because plaintiff’s claim is for bodily injury suffered in the course of employment, exclusion is applicable, and trial court erred in entering summary judgment finding that coverage existed