2004

29 Fla. L. Weekly D662a

Insurance — Bad faith — Certiorari — Insurer not entitled to writ of certiorari quashing order denying motion to dismiss bad faith claim because insurer has not shown that it will suffer irreparable harm that cannot be adequately remedied on appeal — Petition for writ of certiorari denied without prejudice to insurer seeking writ of certiorari if trial court compels discovery of privileged or protected documents

29 Fla. L. Weekly S787c
896 So. 2d 665

29 Fla. L. Weekly S679a
896 So. 2d 665

NOT FINAL VERSION OF OPINION
Subsequent Changes at 29 Fla. L. Weekly S787c

Insurance — Automobile liability — Bad faith failure to settle — Excess judgment — Failure of insurer to accept offer to settle which was made by surviving husband of wife who was killed in collision with insured’s vehicle and father of minor who was injured in collision — Court approval is not a prerequisite to a valid settlement offer on behalf of a minor — District court erred in holding that because husband had neither been appointed personal representative of his wife’s estate nor been given court approval for the proposed settlement of his minor daughter’s claim, he was without authority to make a valid settlement offer to insurer, and that insurer could not have acted in bad faith as a matter of law — Insurer’s agreement to pay policy limits did not preclude a finding of bad faith as a matter of law — Question of whether insurer acted in bad faith in failing to complete the settlement within the time deadlines established by the settlement offer, thereby insulating its insured from an excess judgment, was properly submitted to jury — District court erred in holding that insurer did not owe duty to advise insured of settlement offer because the offer contemplated settling within policy limits — Duty to inform insured of settlement opportunities is one of the duties subsumed within the duty of good faith owed by insurer to insured — Failure to inform insured of settlement offer does not automatically establish bad faith, but it is one factor for jury to consider in determining whether insurer acted in bad faith — Under totality of circumstances standard, competent substantial evidence supported jury verdict that insurer breached duty of good faith to insured

29 Fla. L. Weekly D1260d

Jurisdiction — Non-residents — Breach of contract in state by failing to perform acts required to be performed in state — Insurance — Bad faith failure to settle — Action against insurer which issued policy to Virginia resident insuring car which was involved in accident in Florida, resulting in death, brought by named insured and driver after insurer refused offer to settle for policy limits and subsequent lawsuit resulted in judgment over the policy limits against insured and driver — Insurer’s failure to exercise good faith is breach of contract — Because policy covered accidents in all states, it was a contractual obligation to be performed in Florida in this case and, accordingly, insurer was subject to personal jurisdiction under section 48.193(1)(g) — Due process — Where insurer agreed to exercise good faith in defending claims against insured throughout United States, it should have foreseen that breach of that duty in Florida, resulting in a Florida judgment, would subject it to being haled into Florida court

29 Fla. L. Weekly D2096c

Insurance — Automobile — Premium financing — Plaintiff alleging on behalf of herself and others similarly situated that $5 “service fee” included with each premium installment payment made to insurer violated premium financing statutes of Florida Insurance Code and seeking declaratory and injunctive relief as well as statutory damages of twice the service fees paid — Error to grant summary judgment in favor of defendants based on conclusion that premium service charges were not subject to premium financing statute because they did not constitute an “advancement of funds or credit” — Although transaction at issue involved only the insurer and its customer and did not involve “advancement” of funds, transaction was “financing” as contemplated by part XVI of Code — Insurer itself apparently considered its plan to be “premium financing” subject to Part XVI because it filed service charge and interest rate plan with Department of Insurance as required by statute — Insurers and subsidiaries become subject to part XV, which governs premium finance companies, if total service charge per year or interest rate “is substantially more than that provided in s. 627.901 . . . .” — Question of material fact remains as to whether service charges assessed were substantially more than that provided in statute, which would subject insurer to part XV of Code, and penalties for any noncompliance — Remand for further proceedings

NOT FINAL VERSION OF OPINION
Subsequent Changes at 29 Fla. L. Weekly D2096c

29 Fla. L. Weekly D1181b

Insurance — Automobile — Premium financing — Plaintiff alleging on behalf of herself and others similarly situated that $5 “service fee” included with each premium installment payment made to insurer violated premium financing statutes of Florida Insurance Code and seeking declaratory and injunctive relief as well as statutory damages of twice the service fees paid — Error to grant summary judgment in favor of defendants based on conclusion that premium service charges were not subject to premium financing statute because they did not constitute an “advancement of funds or credit” — The only provisions of Florida law permitting insurer to collect additional amount from insured when premium is paid in installments are premium financing statutes contained in parts XV and XVI of Insurance Code — Insurer itself apparently considered its plan to be “premium financing” subject to part XVI because it filed service charge and interest rate plan with Department of Insurance as required by statute — No error in denying insured’s cross-motion for summary judgment — Question of material fact remains as to whether service charges assessed were substantially more than that provided in statute, which would subject insurer to part XV of Code, and penalties for any noncompliance — Remand for further proceedings

29 Fla. L. Weekly D1586a

Insurance — Automobile — Theft — Ambiguities — Trial court erred in finding that coverage was excluded for theft of vehicle which had been parked for the night on the side of a street under policy provision which stated that “warranted vehicle not left on open highway overnight” — Policy’s failure to define the term “open highway” made the provision ambiguous, and the ambiguity must be construed in favor of insured

29 Fla. L. Weekly D921a

Insurance — Automobile — Collision — Coverage — Fraud — Claim for collision coverage by insured who had been involved in one-car accident in insured vehicle but initially reported that the vehicle had been stolen — Error to enter summary judgment finding no coverage where one of insurer’s policies contained a “misrepresentations and fraud” provision which allowed insurer to void the policy where the insured has attempted fraud touching upon any matter relating to the insurance, the “misrepresentations and fraud” provision of another one of insurer’s policies relates only to applications, and there is a factual question as to which of the policies was issued to insured

NOT FINAL VERSION OF OPINION
Subsequent Changes at 30 Fla. L. Weekly D1471a
29 Fla. L. Weekly D2812a
Insurance — Automobile — Subrogation — Class action complaint for declaratory judgment against insurance carrier to recover full collision deductible and unpaid rental car bill from subrogation funds insurer obtained from third party tortfeasor’s insurance carrier — No error in dismissing complaint because insured’s allegations, based on common law “made whole” doctrine, failed to state cause of action as matter of law — Insured has not alleged or shown any recovery or attempts to recover her unreimbursed losses from tortfeasor; has not alleged or shown a limited fund or other indication that the tortfeasor is uninsured, judgment-proof, or otherwise unable to pay for her full unreimbursed losses; and has not alleged or shown that insurer has made a claim on any recovery she has received from the tortfeasor that would impair her ability to be made whole — Florida law does not recognize affirmative right or cause of action by an insured against its insurer to be “made whole” beyond the payment of the insurance policy proceeds — Instead, Florida law allows “made whole” doctrine as a defense used by insureds to protect the insured’s direct recovery from a tortfeasor, where the insured’s own insurer makes subrogation claim upon the insured’s recovery

NOT FINAL VERSION OF OPINION
Subsequent Changes at 30 Fla. L. Weekly D43a

29 Fla. L. Weekly D911b

Insurance — Automobile — Collision — Insured’s action against insurer alleging insurer violated “made-whole” doctrine by returning only a portion of insured’s deductible after insurer recovered from third party’s insurer an amount less than it had paid insured — No error in dismissing action with prejudice on grounds that insured could not state claim for relief and that claims were “inappropriate for class action treatment” in light of district court decision which found that class could not be certified on substantially the same issues as those raised in present case