2002

27 Fla. L. Weekly D844a

Civil procedure — Class actions — Insurance — Where plaintiffs suffered covered loss, and insurer paid the disputed amount with interest shortly after plaintiffs brought county court action and before complaint was amended to assert class action claims against insurer, there was no existing dispute between plaintiffs and insurer that would give plaintiffs standing to proceed on behalf of other potential plaintiffs with similar disputes — No error in dismissing class action claims for lack of standing — Situation was not one in which insurer “picked off” putative class representatives since plaintiffs were paid in full two years before class action claims were filed — Plaintiffs may pursue any individual claim they may have against insurer, including their claim for attorney’s fees and costs

27 Fla. L. Weekly D1521a

Civil procedure — Class actions — Certification — Insurance — Error to certify class of Florida insureds where plaintiff did not prove elements required for certification — Size of insurer’s business alone does not establish numerosity — Claim that insurer should treat all of its insureds the same is insufficient to establish commonality, and plaintiff demonstrated no common right of recovery based on the same essential facts — Plaintiff’s claims are not typical of any purported class claims — Nothing in record demonstrates that plaintiff would be adequate class representative

27 Fla. L. Weekly D2405b

Insurance — Liability — Commercial lines policy — Coverage — Policy did not cover truck which was not in service at time insurance policy was issued and was not included in the policy as a covered vehicle — Policy clearly stated that additional vehicles were covered only if the insured had reported the vehicle to the insurer, and expressly provided that no automatic coverage was afforded for new and/or replacement vehicles — By failing to report truck prior to collision, insured failed to meet essential condition of policy, and coverage did not exist — Coverage did not exist for individual driving truck at time of collision because he was new driver who had not been added to policy at time of collision — Estoppel — Violation of claims administration statute by hiring attorney to represent insured in wrongful death action without obtaining consent of insured — Estate of individual who was killed when truck struck his automobile did not have standing to assert claim of estoppel under section 627.426(2) — Conditions imposed by section 627.426(2) apply only to immediate parties to insurance contract — Coverage not established as matter of federal law — Trial court incorrectly relied on Form MCS-90 which provides, in essence, that premium paid on policy to insure fleet of trucks also covers truck not specifically listed in policy if truck is involved in accident in course of interstate shipment, because there was no evidence that driver was using truck in interstate shipment of goods at time of collision — Fact that truck might be used for interstate shipment in future does not bring accident within scope of Motor Carrier Act’s insurance coverage provision

27 Fla. L. Weekly S499a

Insurance — Uninsured motorist — Personal injury protection — Coverage — Denial — Fraud — Submission of fraudulent bill under PIP portion of a divisible automobile liability policy does not void UM coverage where the policy contains a general condition that provides that the insurer “will not provide coverage for any loss that occurs in connection with any material misrepresentation, fraud or concealment of material facts, or if any material misrepresentation or omission was made on the auto insurance application” — Insured did not forfeit his right to make claim for UM benefits after he submitted fraudulent bills for reimbursement under PIP benefits provision of the policy — Because district court concluded that UM coverage was properly voided based upon the fraud relating to PIP coverage, that court never considered if evidence of fraud was independently admissible on other issues in the case, or alternatively, whether its admission constituted harmless error — Court declines to address these issues

NOT FINAL VERSION OF OPINION
Subsequent Changes at 27 Fla. L. Weekly D2405b

27 Fla. L. Weekly D1883a

Insurance — Liability — Commercial lines policy — Coverage — Policy did not cover truck which was not in service at time insurance policy was issued and was not included in the policy as a covered vehicle — Policy clearly stated that additional vehicles were covered only if the insured had reported the vehicle to the insurer, and expressly provided that no automatic coverage was afforded for new and/or replacement vehicles — By failing to report truck prior to collision, insured failed to meet essential condition of policy, and coverage did not exist — Coverage did not exist for individual driving truck at time of collision because he was new driver who had not been added to policy at time of collision — Estoppel — Violation of claims administration statute by hiring attorney to represent insured in wrongful death action without obtaining consent of insured — Estate of individual who was killed when truck struck his automobile did not have standing to assert claim of estoppel under section 627.426(2) — Conditions imposed by section 627.426(2) apply only to immediate parties to insurance contract — Coverage not established as matter of federal law — Trial court incorrectly relied on Form MCS-90 which provides, in essence, that premium paid on policy to insure fleet of trucks also covers truck not specifically listed in policy if truck is involved in accident in course of interstate shipment, because there was no evidence that driver was using truck in interstate shipment of goods at time of collision — Fact that truck might be used for interstate shipment in future does not bring accident within scope of Motor Carrier Act’s insurance coverage provision

27 Fla. L. Weekly D1808b

Insurance — Commercial general liability — Claims administration — Insured is entitled to recover expenses incurred in defending himself against a covered claim, even if insured violated policy provision requiring prompt notice of claim, after insurance carrier agreed to defend only with a reservation of its right to deny coverage — Under Claims Administration Statute, once carrier gives insured notice of reservation of rights, carrier must either get a nonwaiver of right to contest coverage from its insured or furnish mutually acceptable counsel to represent insured in lawsuit — No error in failing to exclude expenses incurred between commencement of suit and time suit papers were sent to insurer — Any violation of notice provision by insured is in nature of a “coverage defense” within meaning of CAS, and carrier is barred from asserting a coverage defense unless carrier has complied fully with the statute — Even if insured’s violation of notice provision survived carrier’s failure to comply with claims administration statute and its policy duty to defend, carrier can point to no prejudice from insured’s failure to send papers earlier — Delay in giving notice had no effect on carrier’s contractual duty to defend suit because carrier refused an unconditional defense and thereby ceded defense to the insured

27 Fla. L. Weekly D643b

Insurance — General liability — Action by plaintiff who had recovered default judgment against insured seeking recovery from liability insurer which had canceled policy prior to date of accident in which plaintiff was injured, alleging that policy was erroneously canceled and that finance company was without authority to issue cancellation notice — Because plaintiff was not a party to premium finance contract between insured and finance company and had no assignment of interest from insured, plaintiff lacked standing to challenge premium finance contract — Summary judgment properly entered for defendant insurer

27 Fla. L. Weekly D425b

Insurance — Cancellation of policy — Notice of cancellation

27 Fla. L. Weekly D1700a

Insurance — Claims for breach of insurance contract and bad faith, alleging insured suffered covered loss under her insurance policy consisting of damage to her truck — Discovery — Claim file — Work product — Order requiring insurer to produce its “entire claim file” to plaintiff quashed — Trial court departed from essential requirements of law in determining that counsel for insured made requisite showing of undue hardship required by Rule 1.280(b)(3) for obtaining materials otherwise protected by work product

27 Fla. L. Weekly D1005a

Insurance — Personal injury protection — Discovery — Attorney-client privilege — Work product — Insured’s action against insurer alleging bad faith based, in part, on letter from insurer to insured’s medical providers representing that insurer had statutory right to arbitrate regarding bills, allegedly sent after district court had declared mandatory arbitration to be unconstitutional — Failure of insurer to file privilege log listing specific documents to which it claimed privilege would attach resulted in waiver of attorney-client and work product privileges — The only part of trial court’s order compelling production of documents for which certiorari is granted is portion requiring letters, memoranda, or other written or recorded communication to or from insurer’s attorneys concerning compliance with particular district court decision because, on its face, that request required disclosure of attorney-client communications — Production should not have been ordered without first conducting in camera inspection — Interrogatory requesting names and addresses of other PIP claimants who were advised that a healthcare provider must arbitrate directly with insurer appears to be overbroad and a fishing expedition and should not be allowed — Other PIP claimants were not parties to instant action, and insurer’s handling of their claims is not relevant to limited question of whether insurer acted in bad faith in handling insured’s claim — Trial court did not depart from essential requirements of law by allowing insured to pursue discovery on issue of insurer’s bad faith based on conclusion that insurer’s payment of disputed medical bills by the time the complaint was served was the functional equivalent of a determination of insured’s damages, thereby concluding underlying claim for benefits — Whether trial court erred in denying insurer’s motion to dismiss can be reviewed on plenary appeal, if necessary