2003

28 Fla. L. Weekly D2800b

Insurance — Insured alleging that her insurer had not complied with statute which prohibits insurance companies from including in their rate base monies paid on bad faith and punitive damages claims and related attorney’s fees and taxable costs — Exclusive remedy for asserting claim based on purported violation of section 627.0651 is to seek administrative review pursuant to section 627.371 — Once administrative review is completed, exclusive jurisdiction for judicial review is district court of appeal — Section 624.155, which provides for civil remedy against insurers who knowingly charge excessive rates, does not apply to challenge to rate-making process — Complaint filed in circuit court should be dismissed for failure of plaintiff to pursue and exhaust administrative remedy

28 Fla. L. Weekly D23a
832 So. 2d 916

Administrative law — Declaratory statements — Primary jurisdiction — Department of Insurance — Where insured’s class action against personal injury protection insurer seeking additional reimbursement for travel to and from medical appointments was dismissed by circuit court, which declined to exercise jurisdiction on basis that Department of Insurance had primary jurisdiction over subject matter of the suit, and insured appealed the order of dismissal and filed petition for declaratory statement with Department, asking Department to determine whether it had primary jurisdiction to determine the rate of reimbursement for personal automobile mileage payable under personal injury policy, Department properly dismissed the petition for declaratory statement — When questions presented in a petition for declaratory statement are at issue in pending judicial proceedings, the administrative agency to which the petition is addressed should refrain from issuing a declaratory statement until the proceedings in court conclude — Petition was properly dismissed because issue of primary jurisdiction is still at issue in pending appeal — Even if petition for declaratory statement could be construed as seeking a substantial interest proceeding under sections 120.569 and 120.57(1), dismissal would have been proper, because Department of Insurance does not have statutory authority to adjudicate simple contractual disputes about the amounts of benefits payable under personal injury protection policies

28 Fla. L. Weekly D2193a

Declaratory judgment — Stay — Insureds seeking to stay declaratory judgment action as to any determination of insurers’ duty to indemnify during pendency of class action cases which insurers alleged arose prior to inception of insurance policy and for which insurers alleged coverage was precluded by several policy exclusions — Trial court did not depart from essential requirements of law by denying motion to stay — At this point in declaratory judgment litigation, it appears that resolution of indemnity issue would not necessarily involve determination of facts or issues that are of central concern in class action lawsuits — Further, prompt determination of coverage potentially benefits insured, insurer, and injured party

28 Fla. L. Weekly D1195a

Declaratory judgments — Insurance — Uninsured motorist — Appeals — Dismissal of declaratory judgment action is reviewable as a final order — No error in striking insurer’s claim for declaratory judgment as to coverage under an uninsured motorist insurance policy where essential disputed fact was whether accident was caused by hit-and-run “phantom vehicle” or whether accident was a single vehicle accident for which there was no UM coverage — There was logical basis for court’s determination that declaratory judgment action would not serve any useful purpose and might impair or defeat rights of the parties

28 Fla. L. Weekly D2215a

Declaratory judgments — Dismissal — Trial court erred in granting motion to dismiss declaratory judgment action seeking declaration of coverage under insurance policy on ground that there was no coverage under the policy — Motion to dismiss a declaratory judgment action is not a motion on the merits, but is, rather, a motion only to determine whether there is an entitlement to a declaration of rights

28 Fla. L. Weekly D1826a

Insurance — Comprehensive general liability — Coverage — Estoppel — Question certified: Can the estoppel theory approved in Doe v. Allstate Insurance Co. be applied to conduct arising out of the insurer’s investigation of a claim before the claimant has filed a lawsuit?

NOT FINAL VERSION OF OPINION
Subsequent Changes at 28 Fla. L. Weekly D1826a

28 Fla. L. Weekly D900a

Insurance — Comprehensive general liability — Coverage — Estoppel — When policy excludes coverage, insurer can be estopped to deny coverage if it negligently investigates a claim before suit is filed, and the insured is prejudiced — No merit to insurer’s contention that estoppel can apply only to conduct occurring after insurer undertakes the defense of a lawsuit — Trial court erred in instructing jury on section 627.426(2)(a), Florida Statutes (1995), which provides that a liability insurer shall not be permitted to deny coverage based on a coverage defense unless notice of reservation of rights to assert coverage defense is given to insured within thirty days after insurer knew or should have known of coverage defense — Statute does not apply where there is a complete lack of coverage for the loss sustained — No merit to insurer’s claim that because policy was issued to municipal corporation, it could be liable for a settlement of claim only up to the $100,000 limit provided in waiver of sovereign immunity statute — Claimant could receive compensation in excess of $100,000 through a claims bill, and if claimant were successful in having legislature pass a claims bill, it would be paid with funds of the insured

28 Fla. L. Weekly D1287a

Contracts — Indemnity — Insurance — Limitation of actions — Third-party complaint against construction contractor and insurance company by mall operator who was sued by contractor’s employee for injuries sustained while employee was working at mall — Assuming, as alleged, that defendant breached construction contract by failing to obtain liability insurance and by failing to clean up and maintain safety precautions at time employee was injured, trial court correctly dismissed breach of contract claims as time-barred where action was not commenced within five years of incident — Declaratory judgment — Count seeking declaration of mall operator’s rights as additional insured under insurance policy issued to contractor was filed well within statute of limitations — Issue of coverage under policy became ripe for determination when mall operator settled employee’s negligence action — Rule against splitting of causes of action does not apply because mall operator had not previously filed any action regarding right to insurance coverage under this policy — Although it is unclear why contractor was made party to declaratory judgment action, that issue is not before court — Error to dismiss declaratory judgment action

28 Fla. L. Weekly D2584c

Insurance — Comprehensive business liability — Policy which was issued to insured which cryopreserved sperm samples of person who subsequently became sterile as result of chemotherapy treatment did not provide coverage for damages resulting when the sperm samples were destroyed when the cooling apparatuses failed on the tanks where the sperm samples were stored — Policy which provided coverage for bodily injury but excluded coverage for “personal property in the care, custody or control of any insured,” did not provide coverage for destroyed sperm samples, because sperm which had been removed from the body no longer constituted a part of the body, but instead constituted property whose destruction is not considered bodily injury

28 Fla. L. Weekly D785a

Insurance — Broad form products/completed operations coverage — Duty to defend — Exclusion in policy issued to contractor for property damage to that particular part of any property that must be restored, repaired or replaced because insured’s work was incorrectly performed on it was not applicable to action against insured alleging that insured improperly constructed windows, window sills, and exterior walls in assisted congregate living facility it was constructing, and that defects permitted severe water infiltration which caused owner of property to suffer damage in its business and property — There was potential coverage under policy because damage due to severe water infiltration could include damage to property other than the improperly constructed windows and exterior walls — Exception to exclusion for completed products was applicable because complaint against insured alleged damage to a completed product — Insurer had duty to defend where claims in complaint against insured were potentially covered under policy