2003

NOT FINAL VERSION OF OPINION
Subsequent Changes at 28 Fla. L. Weekly D1437b

28 Fla. L. Weekly D1002a

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(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

28 Fla. L. Weekly D2305a

Torts — Contracts — Malicious prosecution — Bad faith — Negligent hiring, training, and supervision — Action by insured against insurer and insurer’s agent who referred insurance fraud claims against insured to Department of Insurance, Division of Insurance Fraud — Trial court properly granted summary judgment for defendants on ground that defendants were immune from liability under Insurance Fraud Statute — Where defendant’s agent referred matter to Division of Insurance Fraud, Division’s investigator issued complaint/arrest warrant charging plaintiff with insurance fraud, and state attorney’s office concluded that there was probable cause for issuance of criminal information against plaintiff, trial court properly found that defendants did not act fraudulently or with bad faith and were statutorily immune from suit — Fact that state attorney’s office declined to proceed with its prosecution against plaintiff does not vitiate its initial probable cause finding — Breach of contract action was properly dismissed on statute of limitations grounds where amended complaint alleging breach of contract was not filed until more than five years after the alleged breach

28 Fla. L. Weekly D2802c
861 So. 2d 1185

Torts — Insurance — No-fault law — Trial court erred in refusing to require plaintiffs to prove threshold injury necessary to recover for non-economic damages on ground that threshold requirement was not applicable because defendant’s Michigan automobile insurance policy did not extend personal injury protection coverage within the State of Florida — Policy in question specifically provides coverage required under any state’s financial responsibility laws when insured vehicle is being operated in that state — Attorney’s fees — Joint proposals for settlement were void for failure to apportion settlement amount between parties — Error to award attorney’s fees pursuant to offer of judgment statute

28 Fla. L. Weekly D2625a

Insurance — Uninsured motorist — Exclusions — Injuries sustained when claimant is not physically occupying vehicle — Plaintiffs who were struck and injured by underinsured motorist while pedestrians were not entitled to coverage under extended protection purchased from rental car company where contract for benefits clearly and unambiguously stated that UM protection was limited to injuries sustained by vehicle renter, or family member, while physically occupying rental car — In situations involving Class II or additional insureds, public policy of state is not offended by issuance of UM policy that restricts coverage to injuries or death that occur while insured is occupying the vehicle

28 Fla. L. Weekly D1965a
854 So. 2d 726

Insurance — Business automobile policy — Uninsured motorist — Coverage — Passenger in automobile owned by president and sole shareholder of corporation and insured under policy providing business automobile coverage — Business auto policy cannot be written to include sole stockholder and his family within the UM coverage while excluding all other class II insureds — Statute permits an insured to reject UM coverage “on behalf of all insureds under the policy,” but does not allow rejection of UM coverage on behalf of only some insureds under the policy — Trial court erred in finding that UM limitation did not violate purpose of UM statute — Error to grant summary judgment in favor of insurer — Remand for further proceedings

28 Fla. L. Weekly D957a

Insurance — Uninsured motorist — Exclusions — Bodily injury sustained while occupying auto owned by insured but not insured under policy — No error in finding that motorcycle owned by insureds fit within policy’s definition of “auto” — Genuine issues of material fact existed as to whether insurer complied with section 627.727(9), which requires insurer to provide notice to insured of coverage limitations and to file revised premium rates with Department of Insurance prior to initially providing limited UM coverage — Error to enter summary judgment in favor of insurer on this issue

28 Fla. L. Weekly D2746a

Insurance — Title — Nonconforming mortgage lender that bought and sold mortgage loans from challenged credit borrowers seeking to recover losses sustained when it rejected certain note and entity with which it had mortgage warehousing arrangement resold loan but failed to repay plaintiff the proceeds — Where all of the acts that prevented plaintiff from enforcing its mortgage lien occurred subsequent to the issuance of title insurance policy and arose as direct result of plaintiff’s actions or inactions, the loss was either not covered by, or was excluded by provisions of title insurance policy — Trial court erred in finding coverage under title insurance policy and awarding damages to plaintiff

28 Fla. L. Weekly D567a

Insurance — Property insurance on residential rental property — Exclusions — Vacant property — Error to enter directed verdict for insurer in insured’s action for breach of insurance contract on ground that property was vacant where different conclusions can be drawn on issue from evidence — Whether property was vacant was issue for jury

28 Fla. L. Weekly D1013a

Insurance — Liability — Exclusions — Liquor liability exclusion was applicable to exclude coverage under policy issued to bar for death of a minor who became intoxicated in insured’s bar, walked out of bar, and later, while on foot, was killed by a train — Coverage was not provided under theory that premises owner has a duty to a person known to be drunk to render aid so that the person does not leave and injure himself or others

28 Fla. L. Weekly D11a

Insurance — Liability — Additional insured — Pollution exclusion