2004

29 Fla. L. Weekly D475b

Insurance — Life — Error to enter summary judgment in favor of personal representative of insured’s estate where there existed material issues of fact as to whether insured was actually dead, whether insured died within two-year incontestability period, and whether insurer waived right to contest reinstatement of lapsed policy by continuing to collect premium payments — Probate ruling does not constitute prima facie evidence of insured’s death, and trial court erred in according presumptive evidentiary value to the death certificate and in placing burden on insurer to demonstrate that insured was alive — Material issue of fact exists as to whether insurer had intention to relinquish right to contest policy through continued acceptance of premiums where insurer presented evidence that at the time it continued to accept premium payments, it was not aware that policy may have been fraudulently reinstated

29 Fla. L. Weekly D2063a

Insurance — Interest — Where contractor was additional insured under commercial general liability policy issued to subcontractor, contractor’s builder’s risk insurer paid contractor for property damage which occurred during construction project, and builder’s risk insurer recovered judgment against liability insurer for damages caused by negligent work of subcontractor, prejudgment interest should have been calculated based on date proceeds for loss would have been due under liability policy — Trial court erred in determining that prejudgment interest was due from date of builder’s risk insurer’s payment to contractor

NOT FINAL VERSION OF OPINION
Subsequent Changes at 29 Fla. L. Weekly D2063a

29 Fla. L. Weekly D1719a

Insurance — Interest — Where contractor was additional insured under builder’s risk policy issued to subcontractor, contractor’s general liability insurer paid contractor for property damage which occurred during construction project, and general liability insurer recovered judgment against builder’s risk policy insurer for damages caused by negligent work of subcontractor, prejudgment interest should have been calculated based on date proceeds for loss would have been due under builder’s risk policy — Trial court erred in determining that prejudgment interest was due from date of general liability insurer’s payment to contractor

29 Fla. L. Weekly D1182a

Insurance — Property and casualty — Action by homeowners against insurer to recover damages to home under policy identified as “Lenders Security Program Master Policy” in which the mortgagee was the named insured with the plaintiffs to be considered as an “additional insured as respects any residual amounts of insurance over and above the insurable interest of the Insured” — Because the outstanding balance due to the mortgagee exceeded the amount of insurance coverage provided under the policy, the insurable interest of the mortgagee exhausts the coverage available under the policy and there are no residual amounts of insurance available to the plaintiff homeowners — Trial court properly entered summary judgment in favor of defendant insurer because plaintiffs sued for relief to which they were not entitled under the policy

29 Fla. L. Weekly D2642a

Contracts — Torts — Insurance — Homeowners — Civil procedure — Consolidation of civil actions having common plaintiff, but different defendants — No abuse of discretion in denying homeowners insurer’s motion to consolidate insured’s action seeking declaration of rights under homeowner’s insurance policy and damages, filed after insurer denied coverage based on belief that there was no sinkhole on insured’s property and that any damage was result of earth movement unrelated to sinkhole activity, with separate lawsuit brought by insured against seller of real property alleging seller failed to disclose material information and actively concealed damage to residence caused by sinkhole activity — Consolidation would not accelerate trial proceedings in insurance action or save insurer any significant costs — Although there is possibility of inconsistent verdicts, lawsuits are different causes of action based on unrelated theories and feature different measures of damages

29 Fla. L. Weekly D1614a

Administrative law — Office of Insurance Regulation — Licensing — Appeal of Immediate Final Order involving sale and administration of health insurance product not authorized by State of Florida — IFO on its face sufficiently states particularized facts showing immediate danger to public welfare — IFO contained allegations of past and recent conduct which would support inference that licensees’ unauthorized activity might continue absent a cease and desist order — IFO was narrowly tailored to be fair and did not suspend or affect status of licenses to sell legitimate and authorized insurance products or to conduct legitimate business

29 Fla. L. Weekly D1481b

Contracts — Municipal corporations — Retired employees — Forms signed by city employees upon their retirement to continue participation in city’s group health insurance plan after retirement did not constitute an agreement that employees’ contribution or premium amount shown on the form would continue unchanged — Trial court erred in entering summary judgment finding that city was obligated to continue to provide insurance coverage to retirees at rate stated in forms

29 Fla. L. Weekly D1784c

Insurance — Jurisdiction — Foreign insurers — Provision for service of process on a foreign insurer under Florida’s Unauthorized Insurer’s Process Law may only be invoked by Florida residents — Subsection (4) of UIPL, which uses language “transaction of insurance,” is available only to Florida residents — Conflict certified — Trial court erred in denying Russian marine insurer’s motion to quash service of process in action brought against it by Honduran insured — To construe UIPL as being available to nonresidents would broaden statute’s jurisdictional reach such that it would violate constitutional due process requirements, given paucity of insurer’s contacts with Florida

29 Fla. L. Weekly D971b
873 So. 2d 411

Insurance — Florida Windstorm Underwriting Association — Rates — Arbitration is improper means of deciding whether and in what amount FWUA’s premiums should be raised — Under FWUA’s Plan of Operation, insurance rate increases proposed by FWUA require approval by Department of Insurance — FWUA’s resort to arbitration of rate filing after Department disapproved request for rate increases was not authorized, because FWUA’s Plan of Operation required departmental approval or assent, not an arbitration award — Trial court erred in entering judgment in declaratory action declaring that “the arbitration resulted in Department approval as a matter of law” — Court did not err in denying premium refunds and injunctive relief — Requests for refunds should be addressed to Department of Insurance rather than to court

29 Fla. L. Weekly D466a

Insurance — Fire — Loss payee mortgagee’s entitlement to proceeds of insurance on property where foreclosure occurred after loss — Where mortgagee foreclosed on insured property after fire loss had occurred, and value of property on date of foreclosure sale was less than the amount of the foreclosure judgment, trial court erred in finding that mortgagee was entitled to the full amount of the settlement subsequently paid by the insurer for the loss — Mortgagee was entitled to only the amount of the deficiency of the security debt that was not recouped at the foreclosure sale, plus interest, and insured mortgagor is entitled to the balance of the insurance settlement