2004

29 Fla. L. Weekly D2062a

Federal preemption — Insurance — Group health — Employee Retirement Income Security Act — Error to find that ERISA preempted plaintiff’s state-law claims against insurer for declaratory relief, equitable estoppel, and respondeat superior tied to negligence count against insurance agent where uncontroverted testimony demonstrated that employers never intended to provide benefits to its employees, but intended only to procure group insurance for employers’ family through their business and to allow employees to insure themselves as they saw fit

29 Fla. L. Weekly D2756a

Torts — Automobile accident — Action by plaintiff individually and on behalf of his minor son arising out of accident in which vehicle owned and occupied by plaintiff’s former wife, who was at time two months pregnant with son, was struck, causing serious injury to former wife and unborn child — Insurance — Uninsured motorist — Coverage — Stacking — Trial court erred in failing to direct verdict for insurer on issue of uninsured motorist protection — UM coverage was unavailable to plaintiff and his son under plaintiff’s policy where plaintiff knowingly accepted policy limitations on UM coverage, one of which was that UM coverage was not available if a family member was injured while in a vehicle that was not insured under the policy at issue, even if the vehicle was owned by the insured or family member; and vehicle owned and occupied by wife at time of injury was insured under a separate policy, not plaintiff’s policy — Fact that there was an ambiguity as to whether plaintiff selected uninsured motorist coverage, in that it was undisputed that in upper portion of election form, plaintiff selected boxes both accepting and rejecting UM coverage, did not create an ambiguity as to whether plaintiff selected stacked or non-stacked coverage in the lower portion of the form — Plaintiff clearly checked box for non-stacked coverage and, in fact, received and remitted the premium for such coverage — Where it was undisputed that form was approved by Department of Insurance, and form was signed by plaintiff, as matter of law, insurer was entitled to statutory conclusive presumption that plaintiff’s rejection of stacked coverage was knowingly made — Further, language used in form sufficiently informed plaintiff of limitations on UM coverage — Damages — Loss of parental consortium — Child born alive is entitled to claim loss of consortium damages under section 768.0415 for permanent injuries sustained by parent that result in a permanent total disability as prescribed by statute, notwithstanding that child was only a fetus at time of injury to parent — Damages, which do not accrue until the loss of parental companionship occurs upon the live birth of the child, relate back to time of injury — Loss of filial consortium — Damages for loss of filial consortium are limited to period of child’s minority — Parent’s award for loss of filial consortium remanded for remittitur to child’s years of minority — Child’s damages for loss of parent’s consortium are not limited to duration of child’s minority

NOT FINAL VERSION OF OPINION
Subsequent Changes at 29 Fla. L. Weekly D2756a

29 Fla. L. Weekly D388b

Torts — Automobile accident — Action by plaintiff individually and on behalf of his minor son arising out of accident in which vehicle owned and occupied by plaintiff’s former wife, who was at time two months pregnant with son, was struck, causing serious injury to former wife and unborn child — Insurance — Uninsured motorist — Cancellation of policy — Where policy provided that plaintiff could cancel policy covering his vehicle, which was sold two weeks prior to accident, either by returning policy to insurer or by giving advance written notice of date cancellation was to take effect, and no evidence was presented that plaintiff returned the policy, the earliest the cancellation could have become effective was the date plaintiff requested cancellation in writing, which date was after the accident at issue — Under clear and unambiguous terms of policy, policy could not have been cancelled retroactively to date plaintiff sold his vehicle even if plaintiff had requested retroactive cancellation — No error in denying insurer’s motion for summary judgment on ground that plaintiff had retroactively cancelled policy prior to accident — Where policy provision allows for vehicle other than the vehicle listed in the policy to become the “covered auto” for purposes of insurance coverage, if that vehicle was purchased during policy period and insurer was notified of that purchase within thirty days, simply because vehicle listed in policy had been sold and new one had not yet been purchased or declared to insurer does not alter the fact that insurance coverage, including any UM coverage, remained in existence — No error in denying insurer’s motion for summary judgment on ground that plaintiff had no insurable interest on day of former wife’s accident — Ambiguities — Multiple checks on UM coverage election form created ambiguity, and jury could have concluded that the fact that plaintiff selected boxes both accepting and rejecting UM motorist coverage created an ambiguity to be resolved in favor of plaintiff, providing him with UM coverage — Because plaintiff failed to make clear choice accepting or rejecting UM coverage, it cannot be said that he made a knowing and informed decision regarding that coverage, and jury could have concluded that he could not have made knowing choice of non-stacked insurance coverage in the lower portion of the form — Further, insurer cannot benefit from presumption of informed choice created by plaintiff’s signature on election form where insurer provided no documentary evidence that election form had been approved by Department of Insurance — Moreover, there was UM coverage for former wife’s accident because she was an insured subject to UM coverage under plaintiff’s policy so as to allow recovery of loss of consortium damages for her accident — Insurer cannot rely on policy language and definitions to attempt to create an exclusion based on former wife’s having been injured while occupying a vehicle owned by her but for which UM coverage was not purchased where insurer did not obtain approval of language used in policy provisions, inform plaintiff of the exclusion on an approved form, or obtain knowing acceptance of the exclusion — No error in denying insurer’s motion for directed verdict on issue of existence of UM coverage — Damages — Loss of parental consortium — Unborn, non-viable fetus can be an “unmarried dependent” for purposes of statute establishing a child’s claim for loss of parental consortium, although fetus does not have this claim until after it is born alive — No error in awarding infant loss of consortium damages due to injuries to his mother — Loss of filial consortium — Damages for loss of filial consortium are limited to period of child’s minority — Parent’s award for loss of filial consortium remanded for remittitur to child’s years of minority — Child’s damages for loss of parent’s consortium are not limited to duration of child’s minority

29 Fla. L. Weekly D1980a

Insurance — Title — Insurer from whom mortgagees sought coverage based on questioned signature on warranty deed brought declaratory judgment action regarding its obligations under policy, and mortgagees counterclaimed for breach of contract — Where loan secured by mortgage deed was criminally usurious, loan agreement was unenforceable — Unenforceable usurious loan cannot give rise to an insurable interest — Without insurable interest in loan, mortgagees could not enforce title policy — Moreover, title policy at issue expressly excluded coverage for defects or adverse claims for invalidity or unenforceability of the lien of the insured mortgage based upon usury — Error to enter summary judgment in favor of mortgagees

29 Fla. L. Weekly D1133a
880 So. 2d 721

Insurance — Uninsured motorist — Evidence — Expert opinion — Scientific evidence — Court did not err in admitting expert opinion testimony that trauma from an automobile accident was the legal cause of insured’s fibromyalgia — Because expert testimony was pure opinion testimony based on the experts’ clinical experience, insured’s history, and the recognized relationship between trauma and the onset of fibromyalgia, the testimony was not subject to the Frye standard for the admission of evidence based upon new or novel scientific techniques

29 Fla. L. Weekly D1362a

Insurance — Uninsured motorist — Evidence — Insurer’s subrogation judgment against uninsured motorist

29 Fla. L. Weekly D1819a

Torts — Insurance — Errors and omissions — Negligent misrepresentation — Action by insured which purchased group health insurance from managing general agent that was not licensed to transact insurance business in state and that subsequently became insolvent, against insurer which provided errors and omissions insurance to the managing general agent, alleging that defendant, by issuing the errors and omissions policy to managing general agent, negligently misrepresented that managing general agent was licensed to transact insurance business in state — Because defendant is in the business of selling insurance, not the business of supplying information to third persons about its insureds’ business qualification, defendant had no pecuniary interest in its insured’s transactions with plaintiff, and defendant’s issuance of errors and omissions policy was not intended to influence plaintiff’s decision about whether to begin a business relationship with the defendant’s insured, trial court properly entered summary judgment for defendant on negligent misrepresentation claim — Trial court also properly entered summary judgment for defendant on claim that defendant, by issuing errors and omissions policy, aided unauthorized insurer in soliciting, negotiating, effectuating, and procuring insurance policies, in violation of section 626.901, Florida Statutes

29 Fla. L. Weekly D2769b

Insurance — Employers liability — Coverage — Intentional torts — Workers’ compensation immunity — Where policy provided coverage for bodily injury by accident and excluded coverage for bodily injury intentionally caused, insurer was obligated to defend and indemnify insured employer in wrongful death action alleging that employees were killed when trench caved in as result of insured’s engaging in conduct which was substantially certain to result in serious injury or death — Because plaintiffs did not allege that insured intended to cause harm to its employees, but alleged only that injury or death was substantially certain to result from insured’s conduct, the incident in which decedents were killed falls within the scope of an “accident” under the liability policy

29 Fla. L. Weekly S774a

Insurance — Employers liability — Intentional tort exception to workers’ compensation immunity — Employers liability policy which covers claims for “bodily injury by accident” and excludes from coverage claims of “bodily injury intentionally caused” by insured employer extends coverage to claim brought against employer by injured employee who satisfied the intentional tort exception to workers’ compensation immunity by demonstrating that the employer engaged in conduct that was objectively substantially certain to result in injury — Public policy does not prohibit an employer from insuring against the risk of liability arising under the objectively-substantially-certain standard — Court does not decide whether a claim brought under the newly-enacted virtual-certainty standard would fall outside such an employers liability policy

29 Fla. L. Weekly D474a

Contracts — Insurance — Workers’ compensation — Employer’s liability — Insurer’s claim for final premium based on audit — Limitation of actions — Insurer’s cause of action against insured did not accrue when it first became aware that insured had been classifying employees as subcontractors, but instead accrued when amount of insured’s liability for additional premiums became liquidated