2004

29 Fla. L. Weekly D246a
Insurance — Automobile collision — Misrepresentation of material facts in reporting claim — Where insured crashed the insured vehicle into a retaining wall while driving it on a race track, but insured’s girlfriend, in reporting the claim for damage to the vehicle, lied to insurer with insured’s knowledge by telling insurer that she was driving vehicle on a public street at the time of the accident, trial court properly denied insured’s motion for directed verdict and entered final judgment for insurer in action for damages under automobile collision policy — Where there is a willful false statement of a material fact, there is no requirement that insurer show prejudicial reliance in order to enforce policy provision precluding coverage for loss which occurs in connection with any material misrepresentation, fraud, or concealment of material facts — No merit to insured’s contention that insurer should not have had right to have jury determine the material misrepresentation issue because insured eventually corrected his false statement after he made it

29 Fla. L. Weekly D114a

Insurance — Automobile — Cancellation of policy — Interest on unearned premiums — Where insurer did not return unearned portion of premium to insured in timely manner after cancellation of policy, insured could properly maintain common law claim for interest on the unearned premium — Insured was not required to bring claim for interest on unearned premium under section 624.155, Florida Statutes (1999) — Trial court erred in entering summary judgment for insurer in insured’s common law action to recover interest on unearned premium on ground that insured had failed to file notice with Department of Insurance as condition precedent to filing suit — Apparent conflict noted

29 Fla. L. Weekly D1454a

Insurance — Medical malpractice — Coverage — Where policy at issue provided coverage only for one named physician and physician’s employer/professional association, which was an additional insured, trial court properly found that there was no coverage for the employer under this policy for malpractice claim against another physician employed by it — When all provisions of policy are read together, professional association was an additional insured only for medical treatment rendered by named physician — Estoppel — Error to deny professional association’s motion to amend its pleadings to include claim that insurer was estopped from denying coverage, based on conduct by insurer during time insurer initially provided a defense to professional association — Motion for attorney’s fees under section 627.428, which provides for attorney’s fees where an insured obtains a judgment “under a policy” denied, because professional association was not insured under policy as statute requires — Any recovery by professional association in instant case will be based on estoppel, not “under a policy”

NOT FINAL VERSION OF OPINION
Subsequent Changes at 29 Fla. L. Weekly D1454a

29 Fla. L. Weekly D815a

Insurance — Medical malpractice — Coverage — Where policy at issue provided coverage only for one named physician and physician’s employer/professional association, which was an additional insured, trial court properly found that there was no coverage for the employer under this policy for malpractice claim against another physician employed by it — When all provisions of policy are read together, professional association was an additional insured only for medical treatment rendered by named physician — Estoppel — Error to deny professional association’s motion to amend its pleadings to include claim that insurer was estopped from denying coverage, based on conduct by insurer during time insurer initially provided a defense to professional association — Motion for attorney’s fees under section 627.428, which provides for attorney’s fees where an insured obtains a judgment “under a policy” denied, because any recovery by professional association in instant case will be based on estoppel, not “under a policy” as statute requires

29 Fla. L. Weekly D1119a

Insurance — Personal injury protection — Attorney’s fees — Where action was filed in county court seeking to recover PIP benefits, insurer filed unsuccessful motions to disqualify insureds’ counsel and to stay disqualification proceedings, and insurer filed unsuccessful petitions for writ of certiorari in circuit court seeking review of county court’s rulings, circuit court departed from essential requirements of law in awarding insureds appellate attorney’s fees pursuant to section 57.105, Florida Statutes, because certiorari is a proper procedural remedy for review of a disqualification order — Circuit court properly found that insureds were entitled to receive a provisional award of attorney’s fees pursuant to sections 627.428 and 627.736(7) based upon their successful defense of insurer’s petitions for writs of certiorari filed in relation to the motions to stay the disqualification proceedings

29 Fla. L. Weekly D2641a

Insurance — Personal injury protection — Attorney’s fees — Offer of judgment — Insurer may recover attorney’s fees pursuant to offer of judgment or proposal for settlement in action filed by its insured to recover personal injury protection benefits — Question certified — Whether an offer is made in good faith is a matter of discretion with the trial court after considering circumstances at time offer was made

NOT FINAL VERSION OF OPINION
Subsequent Changes at 30 Fla. L. Weekly D235b

29 Fla. L. Weekly D2412a

Insurance — Personal injury protection — Attorney’s fees — Proposal for settlement — Question certified: May an insurer recover attorney’s fees under rule 1.442, Florida Rules of Civil Procedure, and section 768.79, Florida Statutes in an action by its insured to recover under a personal injury protection policy?

29 Fla. L. Weekly D1815b

Insurance — Uninsured motorist — Attorney’s fees — Proposal for settlement — Error to use multiplier in awarding attorney’s fees under offer of judgment statute — Damages — Verdict regarding pain and suffering was not against manifest weight of evidence — Trial court properly limited amount of judgment to policy limits

29 Fla. L. Weekly D85a

Insurance — Insolvent insurers — Florida Insurance Guaranty Association — FIGA liability for attorney’s fees and costs incurred by insured as result of insurer’s breach of contract in refusing to defend insured in underlying action — Error to award insured attorney’s fees and costs against FIGA as damages for breach of contract where awards do not qualify as “covered claims” — Where insurer wrongfully refused to defend insured in action against insured, insured filed declaratory judgment seeking determination that policies provided coverage for claims against insured, that insurer had duty to defend insured, and that insurer had breached terms of insurance policies by refusing to defend; insurer was declared insolvent and FIGA was substituted as successor in declaratory judgment action; and insured prevailed in underlying action after insured had incurred attorney’s fees and costs in that action, FIGA was erroneously found liable for fees and costs incurred by insured in defending underlying action as result of insurer’s breach of duty to defend — FIGA was not liable for attorney’s fees and costs arising out of insolvent insurer’s breach of duty to defend because such damages were not within the coverage of the policy — Because FIGA did not affirmatively deny a covered claim, FIGA is not responsible for fees and costs incurred by insured in prosecuting declaratory judgment action — Although FIGA may be responsible for attorney’s fees incurred in defending the insured of an insolvent insurer, FIGA was erroneously held responsible for monetary judgment for insurer’s breach of contract where the damages did not constitute a covered claim

29 Fla. L. Weekly D578a

Insurance — Attorney’s fees — Contingency risk multiplier — Question certified whether in light of the Supreme Court’s decision in Sarkis v. Allstate Insurance Company, 28 Fla. L. Weekly S740 (Oct. 2, 2003), a multiplier may be applied to enhance an award of attorney’s fees granted under fee shifting statutes such as sections 627.428 and 627.756, Florida Statutes (2001)