2004

29 Fla. L. Weekly D734c

Insurance — Contracts — Statute of frauds — Action by insurer as subrogee of its insured seeking contractual indemnity from manufacturer of candle holders who supplied candle holders to the insured for damages paid to insured’s customer for injuries suffered when one of the candle holders broke in half — Error to enter summary judgment for defendant manufacturer on ground that indemnity agreement between manufacturer and the insured was unenforceable under section 725.01, Florida Statutes, the general statute of frauds, because it was not in a writing signed by defendant and was a promise to answer for the debt, default or miscarriage of another — Because the contract between the manufacturer and the insured was a contract for the sale of goods, the statute of frauds contained in article 2 of the Uniform Commercial Code, and not the general statute of frauds, was applicable

29 Fla. L. Weekly D996a

Contracts — Indemnification — Insurance — Subrogation — Waiver — Error to enter directed verdict in favor of horse trainer in race track’s action seeking contractual indemnity for damages paid to injured exercise rider in satisfaction of judgment entered in separate tort action on ground that subrogation issue had been tried by consent, and track’s insurer had waived subrogation — Only evidence on issue of waiver came from insurance agent who indicated that “subro” was short for subrogation and that “subro” column on check issued for payment of rider’s claim contained a check mark in the “no” column, and this testimony failed to establish knowing, intelligent, and voluntary waiver of insurer’s right of subrogation — Remand for reinstatement of jury verdict

29 Fla. L. Weekly D1222c

Insurance — Uninsured motorist — Stacking — Where insured signed an approved UM motorist coverage rejection/selection form and placed check mark in box indicating a rejection of stacking form of coverage and selection of non-stacking form of coverage, trial court erred in finding that stacking was available because of a patent ambiguity created by the manner in which the form had been filled out — Insurer was entitled to rely upon insured’s signature on form as a conclusive presumption of the insureds’ knowing and voluntary waiver of stacking UM coverage

29 Fla. L. Weekly D1847a

Civil procedure — Requests for admissions — Insurance — Insolvent self insurers fund — Where Department of Financial Services, as receiver for insolvent self insurers fund, assessed company for a deficiency under section 624.474, and company argued that it was not a member of the self insurers fund and sent to receiver a request for admission that company was not a member of the self insurers fund, receiver’s untimely response to the request for admission is deemed an admission which established that company was not a member of the self insurers fund for purposes of assessment under section 624.474

29 Fla. L. Weekly D2359a

Creditors’ rights — Insurance — Assignment of proceeds of settlement — Where liability insurer had settled claim against its insured by agreement to pay monthly payments to injured party over period of years, and injured party’s husband, who had become the contingent payee of the monthly payments upon the injured party’s death, secured a loan under a loan agreement that provided that repayment was to be made from the payments received from the insurer under the settlement agreement, lender could not collect balance of loan from insurer upon default by borrower, because the settlement agreement contained an anti-assignment provision — Under applicable Texas law, the anti-assignment provision is valid and enforceable, and defeats creditor’s right to make direct claim against insurer under the settlement agreement

29 Fla. L. Weekly D662b

Insurance — Civil rights violations by state employees — Action seeking payment from Florida State Risk Management Trust Fund for judgment obtained against Florida Game and Fresh Water Fish Commission officers for violation of plaintiff’s federal civil rights — Trial court erred in dismissing action on ground that plaintiff was precluded from recovering through Fund because civil rights violations were based on intentional torts by the officers, where judgment did not contain finding that harm was intentionally caused — Findings of liability for malicious prosecution, for punitive damages, and for conspiracy to violate civil rights do not necessarily constitute a determination that harm was caused intentionally

29 Fla. L. Weekly D2165b

Insurance — Personal injury protection — Reimbursement of insurer for benefits paid — Insurer was entitled to reimbursement from employer for benefits paid to employee after employee was involved in accident while driving employer’s commercial vehicle — Employer is not immune under Workers’ Compensation Act from suit brought by insurer for reimbursement of PIP benefits paid to an employee of the employer — Section 627.7405, Florida Statutes, is not unconstitutional to extent it allows an insurer reimbursement from an employer for PIP benefits paid to an employee of the employer without regard to fault of the employer

29 Fla. L. Weekly D219a

Insurance — Personal injury protection — Reimbursement — PIP insurer seeking reimbursement from insurer of owner of commercial motor vehicle which insured was driving at time of accident — Constitutionality of statute — Equal protection — Plain language of section 627.7405 provides for reimbursement of insurer providing PIP benefits on private passenger vehicle by owner or insurer of the owner of commercial vehicle without regard to fault — Statute bears rational relationship to legitimate state interest in reducing overall automobile insurance rates — Conflict certified

29 Fla. L. Weekly D1817b

Insurance — Personal injury protection — Allowable amount to be paid by PIP insurer to providers of magnetic resonance imaging — Trial court properly found that under statutory scheme, as it existed prior to 2003 amendment, participating physician fee schedule was the proper fee schedule for amounts payable to MRI service providers — Purpose of 2003 amendment was to clarify that the participating fee schedule was the proper fee schedule under the original statute

29 Fla. L. Weekly D2355b

Insurance — Personal injury protection — A medical service provider can “render” a medical service under section 627.736(5)(a), Florida Statutes, when the medical service was provided through the use of an independent contractor — Where provider performed an MRI scan on insured and sent MRI scan for interpretation to an independent contractor radiologist who was paid by provider, provider is entitled to be paid for the professional component of the MRI performed by the independent contractor radiologist