2004

29 Fla. L. Weekly D715c

Insurance — Insolvent insurers — Workers’ compensation — Florida Workers Compensation Guaranty Association — Torts — Duty to defend or indemnify — Where policy issued by insurer provided both workers’ compensation coverage and employer’s liability insurance, insurer paid two employees full workers’ compensation benefits for injuries sustained during course of their employment and was thereafter declared insolvent, and FWCIGA assumed covered claims for workers’ compensation obligations, trial court properly concluded as matter of law that FWCIGA did not have duty to defend tort action against employer or indemnify employer or its employees in tort action filed against employer by the two employees

29 Fla. L. Weekly D2638a
889 So. 2d 93

Insurance — Homeowners — Discovery — Attorney-client privilege — Work product — Insurer’s failure to submit privilege log by due date for the response to request to produce does not automatically constitute waiver of right not to disclose work product — Under circumstances of instant case, trial court departed from essential requirements of law in compelling discovery of alleged privileged documents as sanction for delay in submitting privilege log — Insurer provided notice of work-product claim when it objected to discovery requests, and although there was delay of several months beyond service of response in serving the privilege log, the log was provided well before hearing at which judge found waiver of work product immunity — Claim that privilege log submitted by insurer was too general to show that documents were privileged not considered by appellate court, because it does not appear that trial court considered sufficiency of log — Court notes that rule requires adequate identification of each document, which would usually include, at a minimum, sender, recipients, title or type, date and subject matter; and identification of documents in bulk or as class such as “claims file” should be the exception

29 Fla. L. Weekly D1070b

Insurance — Casualty — Commercial property — Deductible — Where policy provision concerning amount of deductible applicable to loss due to windstorm is ambiguous, reference may properly be made to unambiguous provisions of insured’s application for insurance and other policy provisions to determine the amount of the deductible — For purpose of determining the extent of insurer’s obligation to pay the insured for loss to covered property, the amount of deductible is not to be applied to total loss, including noncovered loss as well as covered loss — Interpretation of policy to apply deductible to loss that is not covered by policy would be unreasonable and would threaten to render the deductible a nullity

29 Fla. L. Weekly D348a

Insurance — Casualty — Commercial property — Deductible — Where policy provision concerning amount of deductible applicable to loss due to windstorm is ambiguous, reference may properly be made to unambiguous provisions of insured’s application for insurance and other policy provisions to determine the amount of the deductible — For purpose of determining the extent of insurer’s obligation to pay the insured for loss to covered property, the amount of deductible is not to be applied to total loss, including noncovered loss as well as covered loss — Interpretation of policy to apply deductible to loss that is not covered by policy would be unreasonable and would threaten to render the deductible a nullity

29 Fla. L. Weekly D2174a

Insurance — Disability — Where, according to policies at issue, total disability meant the “inability to perform the important duties of the insured’s occupation,” insured’s occupation was defined as the occupation in which insured “is regularly engaged at the time disability begins,” and policy contained no language requiring that insured be actively working at time disability arose, trial court erred in failing to find as matter of law that insured was regularly engaged in an occupation at the time his disability began, notwithstanding fact that insured was not actively employed on date listed in claim as the date disability began — Language of insurance contract should have been interpreted in reasonable manner, consistent with objectives and intentions of contracting parties to provide disability benefits in event insured established that he had become physically disabled during term of policy — Trial court was correct in leaving jury the task of deciding as factual matter the true nature and scope of insured’s “occupation”

29 Fla. L. Weekly S630a CHARLES B. HIGGINS, Petitioner, vs. STATE FARM FIRE AND CASUALTY COMPANY, Respondent. CHERYL L. INGALLS, etc., Petitioner, vs. STATE FARM

NOT FINAL VERSION OF OPINION
Subsequent Changes at 29 Fla. L. Weekly S630a

29 Fla. L. Weekly S533a

Insurance — Homeowners — Declaratory judgments — Coverage — Declaratory judgment statutes authorize declaratory judgments in respect to insurance policy coverage and defense obligations in cases in which it is necessary to resolve issues of fact in order to decide the declaratory judgment action — The determination of the issue of whether the declaratory judgment action or the underlying tort action against the insured should proceed first is within the discretion of the trial court weighing factors outlined by Court as well as factors of the particular case — Trial court did not abuse discretion in allowing declaratory judgment action to be tried prior to underlying negligence action against insured

29 Fla. L. Weekly D2854a

Insurance — Uninsured motorist — Limitation of actions — Conflict of laws — Lex loci contractus — Action by plaintiff who was a named insured seeking UM coverage under policy which was issued in Michigan to plaintiff’s mother who was Michigan resident — Where record does not establish that plaintiff was a Florida resident when automobile accident occurred or that insurer had notice that policy risk with respect to plaintiff would be centered in Florida, cause of action between plaintiff and insurer arose in Michigan where policy was issued — Error to enter summary judgment for insurer on ground that policy contained one-year time limitation for pursuit of legal action for UM benefits, and action was brought more than one year after accident — One-year limitation clause in policy is contrary to Michigan public policy

29 Fla. L. Weekly D2518b
892 So. 2d 1107

Insurance — Underinsured motorist — Exclusions — Anti-stacking provisions — Conflict of laws — Lex loci contractus — Action for underinsured motorist benefits brought by year-round Florida residents who were injured while riding as passengers in automobile which was owned and operated by their winter neighbors and which was insured under policy issued to owners in foreign state at owners’ address in that state, through agent in that state — Error to enter summary judgment in favor of insurer based on exclusionary provision of policy which would preclude passengers from “stacking” underinsured motorist benefits on top of policy limits they received from the policy covering the other vehicle involved in collision and from insurer in its capacity as owners’ liability insurer, an exclusion which was permitted under laws of state in which policy was issued but which is contrary to Florida public policy that UM coverage must be over and above benefits available under any motor vehicle liability insurance coverage and that amount of underinsured coverage shall not be reduced by setoff against any coverage, including liability insurance — Exception to general rule of lex loci contractus occurs when Florida court recognizes a “paramount interest” in protecting Florida residents from provision of insurance contract that is repugnant to public policy of Florida — Exception applies when Florida bears significant connection to insurance coverage and when insurance company has reasonable notice that persons and risks covered by insurance policy are centered in Florida — Where there is significant degree of permanency in an insured’s sojourn in Florida, insured may invoke Florida’s public policy to invalidate an exclusionary clause prohibiting stacking of underinsured motorist benefits, provided that insurance company is on reasonable notice that risk of policy is centered in Florida at time of accident — Owners established significant degree of permanency in Florida by owning home in Florida continuously since 1993, returning to reside in Florida for approximately five and a half months every year thereafter, and garaging vehicle in Florida at the time the accident occurred — Whether insurer had reasonable notice that risk of policy was centered in Florida at time of accident is disputed issue of fact which precluded entry of summary judgment — Court notes instant case involves only the application of Florida’s public policy to invalidate exclusionary provision, and insurer’s duty to provide coverage is not at issue — Accordingly, court was not required to consider meaning of “principally garaged” as it appears in section 627.727(1) — Passengers’ status as year-round Florida residents not relevant to court’s holding in this appeal — Question certified: When Florida is the forum for an action to obtain underinsured motorist benefits under an insurance contract that is otherwise governed by the law of another state, may an insured invoke Florida’s public policy to invalidate an exclusionary clause prohibiting the “stacking” of underinsured motorist benefits when there is a significant degree of permanency in the insured’s sojourn in Florida and the insurer is on reasonable notice that the risk of the policy is centered in Florida at the time of the accident that occurred in Florida?

29 Fla. L. Weekly D1546d
892 So. 2d 1107

NOT FINAL VERSION OF OPINION
Subsequent Changes at 29 Fla. L. Weekly D2518b

Insurance — Underinsured motorist — Exclusions — Anti-stacking provisions — Conflict of laws — Lex loci contractus — Action for underinsured motorist benefits brought by year-round Florida residents who were injured while riding as passengers in automobile which was owned and operated by their winter neighbors and which was insured under policy issued to owners in foreign state at owners’ address in that state, through agent in that state — Error to enter summary judgment in favor of insurer based on exclusionary provision of policy which would preclude passengers from “stacking” underinsured motorist benefits on top of policy limits they received from the policy covering the other vehicle involved in collision and from insurer in its capacity as owners’ liability insurer, an exclusion which was permitted under laws of state in which policy was issued but which is contrary to Florida public policy that UM coverage must be over and above benefits available under any motor vehicle liability insurance coverage and that amount of underinsured coverage shall not be reduced by setoff against any coverage, including liability insurance — Exception to general rule of lex loci contractus occurs when Florida court recognizes a “paramount interest” in protecting Florida residents from provision of insurance contract that is repugnant to public policy of Florida — Exception applies when Florida bears significant connection to insurance coverage and when insurance company has reasonable notice that persons and risks covered by insurance policy are centered in Florida — Where there is significant degree of permanency in an insured’s sojourn in Florida, insured may invoke Florida’s public policy to invalidate an exclusionary clause prohibiting stacking of underinsured motorist benefits, provided that insurance company is on reasonable notice that risk of policy is centered in Florida at time of accident — Owners established significant degree of permanency in Florida by owning home in Florida continuously since 1993, returning to reside in Florida for approximately five and a half months every year thereafter, and garaging vehicle in Florida at the time the accident occurred — Whether insurer had reasonable notice that risk of policy was centered in Florida at time of accident is disputed issue of fact which precluded entry of summary judgment — Court notes instant case involves only the application of Florida’s public policy to invalidate exclusionary provision, and insurer’s duty to provide coverage is not at issue — Accordingly, court was not required to consider meaning of “principally garaged” as it appears in section 627.727(1) — Passengers’ status as year-round Florida residents not relevant to court’s holding in this appeal