2004

29 Fla. L. Weekly D664b

Insurance — Workers’ compensation — Refunds to insurers for overpayments into Special Disability Trust Fund and Workers’ Compensation Administrative Trust Fund — For purpose of computing amount to be assessed to fund SDTF and WCATF, “net premiums written” and “net premiums collected” include reinsurance premiums — Error to order refunds that are attributable to reinsurance premiums

29 Fla. L. Weekly D1528b
877 So. 2d 774

Insurance Windstorm — Exclusions — Concurrent cause — Valued Policy Law — Multiple perils — Homeowner who had wind insurance policy with one carrier for specific face amount, which policy excluded flood damage, and flood insurance policy with another carrier seeking review of trial court’s holding that wind insurer was liable only for its pro rata share, not for face amount of policy, when building was declared total loss after hurricane when local authority, acting pursuant to local ordinance, essentially condemned building after determining that cost of repairs for total damage exceeded half the value of the building — VPL provides that any liability of a casualty insurer where a covered peril is involved in a total loss must be for the face amount of the policy rather than pro rata with other coverages — VPL statutory text does not require that a covered peril be the specific covered peril causing the entire loss — Anti-concurrent cause clause excluding coverage for any damage other than by wind conflicted with VPL text and created ambiguity in policy where policy was silent on whether insurer’s liability under the ACCC became merely pro rata with other coverage, or whether instead the VPL takes precedence over the ACCC — Resolving ambiguity in favor of insured, if windstorm insurer had any liability at all, even fractional share of total damage, under VPL it is liable for face amount of policy — Without deciding whether an attempt by VPL insurance carrier to limit its liability to single peril would be permitted under VPL, court notes that an expressly worded provision to that effect would be necessary to make such a limitation arguably possible — Even if VPL allowed for pro rata liability where damages result from multiple perils, insurer failed to show that condemnation resulting from local ordinance was not attributable solely to the wind damage, as insurer failed to establish that the specific value used by the official was greater than twice the amount of the windstorm damage — “Ordinance or law coverage” — Trial court erred in failing to enforce provision of policy affording additional 25% in benefits, in excess of face amount of insurance, when building is deemed total loss and must be rebuilt — Additional ordinance or law coverage not excluded by general exclusions in policy, because general exclusion clause makes it clear that it does not apply to “other coverage,” and ordinance or law coverage provision is found in section of policy clearly labeled “other coverages” and states in bold letters that “This is an additional amount of insurance” — Remand for entry of judgment awarding owner policy limits, subject to any deductions or reductions otherwise required by policy and permitted by applicable law, along with additional 25% of face amount for additional coverage

29 Fla. L. Weekly D1970a

Insurance — Uninsured motorist — Offset — Collateral source — Personal injury protection — Error to make PIP collateral source offset post-trial over insured’s objection rather than allowing jury to do setoff as required by statute — Appellate court required to apply law as it exists at time of appeal and cannot, as insurer suggests, ignore supreme court decision issued after appellate court’s original affirmance but before time for filing rehearing had expired

29 Fla. L. Weekly D712a

Torts — Where plaintiff was injured on defendant retailer’s premises when he was struck by stack of falling garden hoses and subsequently was injured in a car accident in which the driver of the other car was an uninsured motorist; plaintiff alleged that due to proximity of two accidents injuries could not be apportioned; and plaintiff’s uninsured motorist carrier became a defendant in suit the plaintiffs had already brought against retailer, trial court erred by prohibiting insurer from being identified as plaintiff’s uninsured motorist carrier — Identifying insurer as party defendant who was an insurer and was liable for tortfeasor’s negligence did not adequately apprise jury of insurer’s specific party status — New trial required

29 Fla. L. Weekly D1717a

Insurance — Uninsured motorist — Evidence — Collateral source — Workers’ compensation claims — In action against uninsured motorist insurers to recover for injuries allegedly suffered by plaintiff in automobile accident, trial court erred in excluding evidence of plaintiff’s workers’ compensation claims which would have established that in workers’ compensation proceedings plaintiff attributed the injuries on which his claim against defendant insurers was based solely to work-related accidents — Evidence regarding claims by a plaintiff arising from an event other than the accident at issue is not evidence of a collateral source

29 Fla. L. Weekly D1517a

Insurance — Uninsured motorist — Coverage — Relative residing primarily with insured — Error to find granddaughter entitled to coverage under grandfather’s insurance policy where at time of accident granddaughter, her fiancé and their baby were staying with grandfather while waiting for their water-damaged house to be repaired, and she had clear intent to move back to her house when repairs were complete

NOT FINAL VERSION OF OPINION
Subsequent Changes at 30 Fla. L. Weekly D114c

29 Fla. L. Weekly D2189a

Torts — Insurance — Uninsured motorist — Attorney’s fees — Costs — Where plaintiff who was injured in automobile accident brought action against tortfeasor and plaintiff’s UM insurer, tortfeasor’s insurer offered policy limits of $100,000 which plaintiff wished to accept, but did not because UM insurer refused to waive its subrogation rights and paid plaintiff the amount of the offer, UM insurer subsequently accepted policy limits of $100,000 from tortfeasor’s insurer and waived its subrogation rights against tortfeasor, and verdict of $48,000 was returned on the UM claim, trial court erred in granting tortfeasor’s motion to tax costs against plaintiff — When UM insurer became subrogated to plaintiff’s claim against tortfeasor, it became the real party in interest in suit against tortfeasor and is therefore liable for costs — Court did not err in awarding attorney’s fees and costs to UM insurer based on its offer of judgment in the amount of $501 — Because the UM insurer had no exposure unless plaintiff’s damages exceeded tortfeasor’s policy limits of $100,000, insurer’s offer of $501 was the equivalent of $100,501, and was made in good faith

29 Fla. L. Weekly D1704a

Insurance — Title insurance — Declaratory judgments — Relief from judgment — Error to grant relief from judgment under rule 1.540(b) where motion alleged only that trial court failed to rule on defenses presented at trial — Rule 1.540 motion cannot be used as substitute for untimely motion for new trial or rehearing — Although trial court characterized its correction as an inadvertent omission, trial court in reality reversed its legal position, and this is type of judicial error that is not correctable on rule 1.540 motion — Judicial errors that affect substance of judgment cannot be corrected on court’s own motion pursuant to rule 1.540(a), which allows judges to correct errors arising from “oversight or omission” at any time on their own initiative — Trial court correctly ruled that it could not grant relief pursuant to rule 1.530(g) because motion was not timely — Time for service of motion ran from entry of original judgment rather than amended judgment where amended judgment did not change matters of substance — Remand with directions to reinstate amended final judgment

29 Fla. L. Weekly D1812a

Contracts — Insurance — Insured alleging that although insurance contract provided insurer with subrogee rights to seek recovery of monies it paid to insured pursuant to the contract, insurer breached duty it owed to insured by failing to notify her of Georgia lawsuit filed against tortfeasor by insurer listing insured as an individual plaintiff and by representing to Georgia court that the amount of UM benefits the insurer had paid to insured was a fair and reasonable amount for damages and injuries insured suffered, when insurer knew or should have known that her damages far exceeded this amount — Error to enter final judgment in favor of insurer on ground that release and trust agreement executed by insured upon her receipt of UM benefits released insurer from all future claims “of whatsoever kind” — Language limited release to claims arising prior to and including the date of the release that grew out of the UM policy issued by insurer to insured and further limited claims to those “resulting or to result from” specific automobile accident — Instant complaint was based on acts taken by insurer after execution of release and was not based on the accident itself, but rather on the filing of the Georgia lawsuit in insured’s name personally without notifying her and the reduction of the lawsuit to a judgment in an amount that insurer allegedly knew did not represent insured’s total damages — Paragraph of release authorizing insurer to file action against tortfeasor without mentioning notice to insured did not support trial court’s finding that insurer had no duty to advise insured of lawsuit or finding that insurer was not required to seek full recovery for insured’s injuries instead of limiting recovery to sums insurer had paid to insured as UM benefits — It was clear from release that action insurer was authorized to file was an action for insured’s damages, not insurer’s — Remand for further proceedings

29 Fla. L. Weekly D2717c

Civil procedure — Default — Vacation — Due diligence — Insurer’s appeal from order setting aside final default judgment entered against corporations engaged in manufacturing and selling consumer products in action in which insurer, as subrogee, sought to recover amounts paid to insured as result of fire loss at insured’s residence allegedly caused by defect in defendants’ product — Trial court grossly abused its discretion in finding that defendants acted with due diligence where defendants did not seek relief from default until seven weeks after entry of default final judgment, and defendants’ affidavit offered no explanation for delay — Although there is no bright line rule by which to measure reasonableness of delay in seeking relief from default, court notes that filing of motion to vacate within 20 days of entry of default judgment provides starting point for analysis, and once 20 days have passed, as in present case, other factors must be considered