2003

NOT FINAL VERSION OF OPINION
Subsequent Changes at 29 Fla. L. Weekly D98d

28 Fla. L. Weekly D2540a

Insurance — Insolvent insurers — Liquidation proceedings — Jurisdiction — Insurers Rehabilitation and Liquidation Act confers jurisdiction on circuit court to consider action by receiver to recover damages against a third party — Circuit court properly determined that it had subject matter jurisdiction to adjudicate claims made by Department of Insurance, as receiver of insolvent insurance company, on behalf of policyholders and other third parties against trustee of insolvent insurance company

28 Fla. L. Weekly D813a

Insurance — Homeowners — Coverage — Dog bite — Plaintiff, who was a defendant in dog bite suit, was not entitled to coverage for the incident under a homeowner’s insurance policy issued to her sister where plaintiff was not a resident of her sister’s household so as to entitle her to coverage as an insured under the policy — Although insurer issued a homeowner’s insurance policy to sister for house owned by sister, and plaintiff lived in that house, sister never lived in the property, never spent more than a few nights at the house prior to plaintiff moving in, and infrequently came by to visit when plaintiff lived in the house — Plaintiff was never resident relative of sister’s household

28 Fla. L. Weekly D1141f

Torts — Medical malpractice — Health maintenance organizations — Vicarious liability for negligence of physician — Agency — Error to enter summary judgment for defendant health maintenance organization in medical malpractice action on ground that negligent physician was not acting as agent of defendant where record supports inference of control sufficient to present jury question on issue of agency

28 Fla. L. Weekly D961a

Torts — Medical malpractice — Health maintenance organizations — Action alleging vicarious liability of HMO for negligent acts of physician with whom HMO has contracted as independent contractor — Error to enter summary judgment for defendant HMO where there was factual issue as to whether physician was acting as the apparent agent of the HMO in improperly performing surgery on plaintiffs’ minor child

28 Fla. L. Weekly S267a
843 So. 2d 842

Wrongful death — Medical malpractice — Health maintenance organizations — Federal preemption — Vicarious liability claim against HMO based upon allegations that agents or apparent agents of HMO made negligent treatment decisions in caring for decedent is not preempted by Employee Retirement Income Security Act — Court properly rejected plaintiff’s argument that HMO assumed a non-delegable duty to render medical care to decedent in a non-negligent manner when decedent purchased health care coverage from HMO — Error to grant summary judgment for defendant on claims of vicarious liability for negligence of physicians who were allegedly agents or apparent agents on ground that contractual provisions designated the physicians as independent contractors and that there was no evidence that HMO exercised actual control over the medical judgments and decisions made in the care and treatment of decedent — In considering action based on actual agency, it is the right to control, rather than actual control, that may be determinative — Summary judgment was improper where defendant has not conclusively demonstrated the absence of genuine issues of material fact as to whether defendant HMO can be held vicariously liable for alleged negligence of member physicians when providing service pursuant to health plan under theories of actual agency

28 Fla. L. Weekly D532a

Health maintenance organizations — Declaratory action by health care providers against health maintenance organization seeking declaration that various payment methods engaged in by HMO violated the Health Maintenance Organization Act — Trial court properly granted defendant HMO’s motion for judgment on pleadings on ground that Act does not create a private cause of action to bring a declaratory judgment suit to enforce the Act or to declare its violation

28 Fla. L. Weekly D1565a

Insurance — Health insurance — Equitable subrogation — Action by plaintiff which was administrator of health insurance program and had, as administrator and agent of insurer, paid claims insurer had insured, against reinsurers that had reinsured insurer’s obligations, seeking reimbursement for claims paid — Complaint appropriately alleged that plaintiff acted under its obligations under its agreement with insurer, and not as a volunteer, and properly stated a claim that plaintiff was equitably subrogated to insurer’s rights against the defendant reinsurers — Error to dismiss action for failure to state a cognizable, direct action against defendant reinsurers

28 Fla. L. Weekly D505a

Insurance — Health — Failure to pay claims within time limits prescribed by insurance contract and Florida statute — Trial court properly found that insureds could not prevail because they assigned claims to medical providers and, accordingly, did not have standing to bring action against insurer — Damages — Insureds did not sustain damages in form of interest on overdue payments because it was the providers to whom claims were assigned, not the insureds, who lost use of money for a time — Confession of judgment — With regard to insureds’ assertion that they were entitled to judgment in their favor because insurer’s payment of outstanding claims after commencement of litigation was tantamount to confession of judgment, trial judge never made determination that payment was not timely made and, in view of assignments, the insureds, at best, could have succeeded only in forcing insurer to fulfill obligations in which insureds no longer had an interest — No error in entering judgment in favor of insurer

28 Fla. L. Weekly D1597d

Administrative law — Insurance — Department of Insurance erred in rejecting administrative law judge’s conclusion that Department failed to prove violations of statutory provisions under which out-of-state group health insurance provider was charged, and in finding insurer guilty of violations of insurance code — Competent substantial evidence supported ALJ’s finding that insurer did not violate statute by failing to provide form or information to individual who applied for converted policy because individual never specifically asked for information about a conversion policy — Competent substantial evidence supported ALJ’s finding that out-of-state insurer did not engage in unfair method of competition or deceptive act or practice in violation of section 626.9541(1)(g), Florida Statutes, when it annually reevaluated health status and claims history of insureds upon renewal of policies and engaged in tier rating by raising the premiums charged to some individual class members on the basis of those reevaluations — ALJ properly determined that Department failed to prove that the actuarially supportable class enumerated in section 626.9541(1)(g)2, Florida Statutes, was frozen at the time of the initiation of the policy and that, therefore, no violation of the statute was proven — Department could not properly base its finding of a violation on statute where statute was not referenced in charging document or addressed by ALJ

NOT FINAL VERSION OF OPINION
Subsequent Changes at 28 Fla. L. Weekly D1597d

28 Fla. L. Weekly D1437b

Administrative law — Insurance — Department of Insurance erred in rejecting administrative law judge’s factual determination that Department failed to prove violations of statutory provisions under which out-of-state group health insurance provider was charged, and in finding insurer guilty of violations of insurance code — Competent substantial evidence supported ALJ’s finding that insurer did not violate statute by failing to provide form or information to individual who applied for converted policy because individual never specifically asked for information about a conversion policy — Competent substantial evidence supported ALJ’s finding that out-of-state insurer did not engage in unfair method of competition or deceptive act or practice in violation of section 626.9541(1)(g), Florida Statutes, when it annually reevaluated health status and claims history of insureds upon renewal of policies and engaged in tier rating by raising the premiums charged to some individual class members on the basis of those reevaluations — ALJ properly determined that Department failed to prove that the actuarially supportable class enumerated in section 626.9541(1)(g)2, Florida Statutes, was frozen at the time of the initiation of the policy and that, therefore, no violation of the statute was proven — Department could not properly base its finding of a violation on statute where statute was not referenced in charging document or addressed by ALJ