2003

28 Fla. L. Weekly S194a

Insurance — Commercial general liability — Per occurrence limit of liability — Action against insured restaurant owner by two victims who were shot in restaurant during a single incident, alleging negligent failure to provide security — When the insured is sued based on negligent failure to provide adequate security arising from separate shootings of multiple victims, there are multiple occurrences under the terms of policy that defines occurrence as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions” — Consistent with the “cause theory,” in the absence of clear language to the contrary, when the insured is being sued for negligent failure to provide security, “occurrence” is defined by the immediate injury-producing act and not by the underlying tortious omission — No merit to claim that all of the shots should be considered one “occurrence” due to the close proximity in time and place of the individual shots fired

28 Fla. L. Weekly D1161a

Insurance — Commercial general liability — Coverage — Intentional acts — Trial court properly determined that insurer had no duty to defend insured university in action by former students who alleged that university falsely represented that there was no accreditation problem with the physical therapy program in which they were enrolled, that accreditation of the program was withdrawn, that university failed to act diligently in seeking reconsideration, that students were ineligible to sit for licensing examination because the program was not accredited, and that students suffered mental stress, anxiety disorders, post-traumatic stress disorder, and depression as result of program having lost its accreditation — Under terms of policy, no coverage was provided because alleged conduct of insured was intentional, not mistaken — Allegation that insured “recklessly” disregarded facts did not allege negligent or non-intentional conduct — Trial court properly entered declaratory judgment finding that insurer had no duty to defend or indemnify insured university

28 Fla. L. Weekly D681a

Insurance — Civil procedure — Class actions — Settlement — Modification by trial court — Attorney’s fees — Trial court improperly entered final judgment approving a negotiated settlement in class action personal injury protection lawsuit as to the payments to the class members, but making referral to a special master for a determination as to the reasonableness of the attorney’s fee which was agreed upon as part of the settlement — Trial court may receive the special master’s report and, if it concludes the fee is unreasonable, may reject the settlement in its entirety and advise the parties what modifications to the agreement may make it acceptable to the court, but the trial court may not effectively re-write the settlement by approving part of it while reserving the right to approve an attorney’s fee different from the one the parties negotiated

28 Fla. L. Weekly D2362a

Insurance — Class actions — Jurisdiction — Error to certify class action against life insurance company by group of policyholders who claim to have been improperly excluded from receipt of dividends from annual divisible surplus of disability policies, where insurance company is domiciled in State of Wisconsin, and Wisconsin Commissioner of Insurance has found that actions taken by company were proper — Company which is domiciled in State of Wisconsin is subject to insurance code of that state, and it is not for the courts of Florida to determine whether the actions of the company were improper

28 Fla. L. Weekly D849a

Insurance — Liability — Cancellation of policy — Extension of coverage by notice of nonpayment — Trial court properly entered summary judgment for insurer determining that there was no coverage where insured’s customer was injured just after the expiration date of the policy and insurer had mailed a notice of nonpayment with a cancellation date of one month after the expiration of the policy, but before receiving the notice of nonpayment the insured had already told the local representative of the insurer that he did not intend to renew the policy — Where the insured had already rejected the renewal policy entirely, the notice of nonpayment did not breathe new life into the rejected renewal

28 Fla. L. Weekly S307d

Insurance — Builder’s risk — Exclusions — Policy’s design defect exclusion bars recovery by insured of expenses incurred in repairing structural deficiencies in condominium building which resulted from design defect — Sue and labor clause of policy requires that an actual covered loss must have occurred or be in progress before insured can recover under this provision for the expenses incurred — Because insured was acting to prevent a potential collapse in expending funds to repair deficiencies, and no actual loss had occurred, funds expended by insured are not recoverable under policy’s sue and labor clause

28 Fla. L. Weekly D1895a

Insurance — Builders risk — Condominiums — Construction defects — Indemnification — Error to find that builders risk policy purchased by condominium developers and effective during construction of condominium project was required to indemnify for construction defects and deficiency claims made after association and individual unit owners had taken over control and occupancy of the condominium from builders and developers — Builders risk policy is a first-party contract which did not indemnify a third party for faulty workmanship and is not a liability policy — Remand with directions that judgment be entered in favor of insurer

28 Fla. L. Weekly S510aStandard jury instructions — Civil — Amendments — Insurance — Bad faith failure to settle

28 Fla. L. Weekly D1349a

Insurance — Liability — Bad faith — Discovery — Attorney-client privilege — Communications between an insured and the counsel hired by insurer to defend him in a liability suit that pertain to common interest held by insured and insurer are available to insurer, and this right of access continues even if interests of insurer and insured become adverse — Communications concerning matters not related to defense or resolution of liability case may be privileged — Error to find that insurer was entitled to access to all communications between insured and counsel — On remand, trial court should review documents and order disclosure of only those documents relating to defense of liability claim, not communications pertaining primarily to insured’s own interests

28 Fla. L. Weekly D1214c

Insurance — Title insurance — Discovery — In action by insured against title insurance company alleging that insurer refused to pay damages under policy and that failure to pay was done in bad faith, trial court departed from essential requirements of law in requiring that insurer produce documents relating to insurer’s business policies and practices regarding its handling of claims and documents relating to claim litigation before there had been a determination of coverage under the policy — A party is not entitled to discovery of an insurer’s claim file or documents relating to the insurer’s business policies or practices regarding the handling of claims in an action for insurance benefits combined with a bad faith action until the insurer’s obligation to provide coverage has been established