2003

28 Fla. L. Weekly D1337a

Insurance — Venue — Trial court erred in finding that venue provision in application for workers’ compensation insurance policy did not apply to insurer’s action to collect unpaid premiums for renewal policy — Application became a part of the agreement between the parties — Venue provision in application for insurance was applicable to renewal of policy

28 Fla. L. Weekly D1321b

Insurance — Appraisal — Judgment against insurer affirmed where insurer had notice of the loss and the amount of the loss was properly submitted to the appraisal panel

28 Fla. L. Weekly D1744a

Torts — Action by insurance company against property inspectors seeking recovery of insurance proceeds paid to insured due to fire loss, alleging that defendant negligently inspected the wrong property and consequently failed to report that insured premises included a nightclub serving alcoholic beverages, a prohibited risk for which coverage would not have been provided under plaintiff’s underwriting guidelines, and further alleging that plaintiff relied upon erroneous inspection report in maintaining coverage under the policy — Trial court erred in entering summary judgment in favor of defendant based on finding that plaintiff’s payment to its insured was deemed voluntary because plaintiff had failed to avail itself of defense under section 627.409(1) based on insured’s failure to list nightclub as business occupying building on insurance application — Policy at issue voided coverage for material misrepresentation or omission only if the insured “intentionally” concealed or misrepresented a material fact in procuring the insurance, and there was nothing in the record that directly or indirectly indicated existence of fraud or intentional misrepresentation by insured — Although statute voids policy for misrepresentation or omission without regard to whether same was intentional, insurance policy is to be given effect rather than the statute when policy alters standard for coverage, so long as it does not contravene public policy — Court rejects notion that rule established by caselaw giving primary effect to policy provisions are distinguishable, based upon whether or not application for insurance is based upon “information and belief,” since policy and application together constitute the contract of insurance

28 Fla. L. Weekly D2274a

Insurance — Personal injury protection — Appeals — District court declines to exercise discretionary jurisdiction to answer question certified by county court regarding requirement that insured countersign medical bills submitted by assignee/medical provider on HCFA Form 1500, given plethora of cases uniformly interpreting the countersignature requirement of section 627.736(5)(a) as permitted, not mandatory, where insured has assigned benefits to medical provider — Appeal transferred to circuit court

28 Fla. L. Weekly D607c

Insurance — Completed operations coverage — Contractors — Named insured — Where contractor was an officer and director of corporation which was involved in negligent construction of department store, contractor sold his interest in corporation and company’s name was changed, contractor thereafter formed a second corporation having the same name as the original corporation, and contractor was issued completed operations coverage policy naming the contractor’s corporation as a named insured, trial court properly entered summary declaratory judgment finding that policy provided coverage to corporation which was involved in negligent construction of store — Any ambiguity as to which corporation was covered under the policy has to be liberally interpreted in favor of the insured and strictly against the insurer — Because coverage existed for corporation as a named insured, contractor individually was covered because policy provided coverage for officers and directors of named insureds — Prejudgment interest — Where parties stipulated in a settlement agreement to an amount to be paid once a judgment for coverage was rendered, the damages became liquidated as of the date of the stipulation, and prejudgment interest began to run from that date

28 Fla. L. Weekly D546a

Insurance — Commercial all-risk — Exclusions — Damages due to settling, cracking, shrinking or expansion — Term “settling” as used in exclusions clause connoted only normal settling, not type of subsidence that occurred here as result of decay of construction debris which, unbeknownst to insured or insurer, was buried in ground beneath the home

28 Fla. L. Weekly S119a
840 So. 2d 993

Insurance — Title insurance — Misfeasance of licensed title insurance agent — Section 627.792, Florida Statutes (1997), which provides that title insurer is liable for defalcation, conversion, or misappropriation by a licensed title insurance agent of certain funds held in trust by the agent, does not apply to attorneys who are acting as title insurance agents if those attorneys are exempt from licensing requirements of section 626.8417, Florida Statutes (1977)

28 Fla. L. Weekly D1590a

Administrative law — Department of Insurance — Suspension of agent’s license — Evidence was sufficient to support license suspension on basis of two instances of engaging in unauthorized transactions with clients by agent who obtained new annuity policies for elderly clients who intended only to make changes to existing annuity policies — For purpose of calculating period of license suspension where multiple grounds for suspension exist, only the violation producing the highest penalty may be considered as the penalty for that count — Violation of section 626.611(9), Florida Statutes, which proscribes fraudulent or dishonest practices in the conduct of business under the license or appointment, requires more than a solitary lapse or single act of misconduct — Department improperly imposed nine-month suspension under section 626.611(9) for agent’s solitary lapse in professional conduct giving rise to first violation — Because agent’s second violation constituted multiple practices for the purpose of section 626.611(9), nine-month suspension for that offense was appropriate

28 Fla. L. Weekly D197a

Contracts — Implied — Plaintiff’s claim for quantum meruit, alleging that plaintiff’s employee provided certain services to defendant which defendant used in underwriting and issuing an insurance policy — A plaintiff may not assert a contract implied in law to circumvent a statutory requirement that a person be licensed to perform services as a life insurance agent — Legislature has determined that “valid license” is required in order to be entitled to “any commission or other valuable consideration” in return for “services as a life insurance agent” — Statute bars payment “directly or indirectly” — It is not inequitable to preclude plaintiff’s recovery because legislature has imposed license requirement as condition of doing type of business involved in instant case — Successor judge was not precluded from granting summary judgment based on same legal theories rejected by predecessor in earlier motion for summary judgment, as facts became more fully developed after initial judge’s ruling — Attorney’s fees — Offer of judgment — Under 1989 version of section 768.79 applicable to instant case, defendant was not entitled to attorney’s fees

28 Fla. L. Weekly D1259a

Torts — Insurance — Contracts — Damages — Lost profits — Action against insurance agent who failed to procure coverage for plaintiff’s power screen which was ultimately destroyed by fire, despite plaintiff’s request that power screen be added to policy — No abuse of discretion in allowing plaintiff’s expert to offer his opinion regarding amount of plaintiff’s lost profits — Although there was no evidence that expert witness had accounting degree, witness could be qualified to testify as expert where witness possessed special knowledge, experience, or skill in the subject upon which witness is called to testify — Evidence of lost profits was too speculative because plaintiff’s expert relied upon a series of assumptions, including assumption that plaintiff would increase production of mulch by 250%, that certain one of plaintiff’s customers would pay maximum price of $12 per yard and buy five or six loads daily, and that plaintiff would not experience the same price decline that other mulch businesses had experienced — Further, expert witness failed to deduct salaries — Remand for new trial on damages