2005

30 Fla. L. Weekly D2598b

Insurance — Personal injury protection — Attorney’s fees — Appellate — An insured is not entitled to appellate attorney’s fees under section 627.428(1) when it loses an appeal, even if the insured ultimately prevails at a trial on the merits — Conflict certified

30 Fla. L. Weekly D2252c

Insurance — Personal injury protection — Attorney’s fees — Appellate — Where an insured loses an appeal, but the matter is remanded for a new trial, the insured is not entitled to any appellate attorney’s fees for the appeal which the insured has lost — Conflict certified

30 Fla. L. Weekly D1356a

Insurance — Personal injury protection — Attorney’s fees — Circuit court acting in appellate capacity departed from essential requirements of law by awarding appellate attorney’s fees to assignee of PIP benefits where the only issues on appeal were calculation of hours spent and use of multiplier in arriving at fee to be awarded, both of which related only to amount of fees, not entitlement to fees

30 Fla. L. Weekly D1953a

Attorney’s fees — Insurance — Personal injury protection — Circuit court acting in its appellate capacity departed from essential requirements of law by granting assignee’s request for attorney’s fees for time spent litigating necessity of contingency risk multiplier, an issue which goes to amount of, and not entitlement to, attorney’s fees — Circuit court departed from essential requirements of law by granting request for appellate attorney’s fees based on finding that insurer waived objection to the appellate fees by failing to file response to attorney’s fee motion within ten days following service — Failure to serve response to motion for attorney’s fees does not create an independent basis for an attorney’s fee award

30 Fla. L. Weekly D2110b

Insurance — Automobile liability — Notice of claim — Failure to cooperate — Error to enter summary judgment for insurer in action for coverage and liability insurance proceeds on basis that insured breached insurance contract by entering into settlement agreement with injured party after insurer agreed to defend insured under reservation of rights, and that insured failed to provide insurer with timely notice of lawsuit against insured — Material question of fact exists as to whether insurer was prejudiced by insured’s delay in notifying insurer, especially where insurer received notice of lawsuit prior to execution of settlement agreement — There is genuine issue of fact as to whether letter from insured to insurer constituted a rejection of insurer’s offer of defense under reservation of rights — If insured’s letter constituted a rejection of defense under reservation of rights, insured would have been entitled to retain its own attorney to defend against claim without jeopardizing its right to seek indemnification from insurer

30 Fla. L. Weekly D1671a

Insurance — Underinsured motorist — Action against insurer arising out of accident with underinsured motorist, claiming damages based upon insured’s injuries which plaintiff contended included meningitis contracted by insured after the accident — No abuse of discretion in precluding insured’s counsel from reopening voir dire to ask additional questions regarding the believability of a low impact collision triggering catastrophic injuries — Counsel had full opportunity to examine jury, and insured has not made any showing of prejudice — No abuse of discretion in excluding portion of insured’s expert’s medical opinion, arrived at only two weeks before trial, that automobile accident delayed diagnosis of insured’s meningitis because doctors attributed insured’s symptoms to injuries caused by the accident rather than meningitis, which theory was also based upon notion that accident’s force caused release of an encapsulated fungus which, in turn, caused meningitis and insured’s ensuing disability — Any error in excluding this testimony was harmless because jury found that accident was not a legal cause of any injury to insured, and expert’s theories all depended on some impact in the accident causing injury to insured — Any error in overruling objection to defendants’ reference to facts outside evidence in closing argument was harmless

30 Fla. L. Weekly D590b

Insurance — Uninsured motorist — Argument — UM carrier contending that inflammatory closing argument comparing defense to Iraqi Minister of Information justified new trial and that repeated references to insured’s payment of premiums and insurer’s failure to pay violated pretrial order on insurer’s motion in limine — Because no objection was made at trial, only objections raised in motion for new trial will be considered on appeal — Under supreme court’s decision in Murphy v. International Robotics Systems, Inc., which set forth standard to be applied by trial court when considering unobjected-to argument upon a motion for new trial, party must establish that challenged argument was improper, harmful, incurable, and such that it so damaged fairness of trial that public’s interest in system of justice requires new trial — Trial court did not abuse its discretion by denying insurer’s motion for new trial where improper comments did not satisfy all of the Murphy factors

30 Fla. L. Weekly D180a

Insurance — Homeowners — Appraisal — Appeals — Insurer is not entitled to certiorari review of trial court order denying insurer’s motion to delineate scope of appraisal, in which insurer contended that insureds were seeking damages for repair expenses that were not covered by policy, because any error in trial court’s order can be corrected by way of postjudgment appeal — Submission of claim to appraisal does not foreclose insurer from challenging an element of loss as not being covered by policy in underlying breach of contract action

30 Fla. L. Weekly D962c
900 So. 2d 676

Attorney’s fees — Insured’s action against insurer for losses to MRI machine — Award to insured of attorney’s fees and costs incurred in connection with drawn-out appraisal process necessitated by insurer’s disputed value estimation was proper — Insured’s involvement of formal judicial system was not unnecessary — Given that goal of section 627.428(1) is to place insured in place it would have been if insurer had seasonably paid claim without causing insured to retain counsel and incur obligations for attorney’s fees, taken in conjunction with rule of law that insured could have recovered any attorney’s fees incurred in reaching settlement of lawsuit had a settlement been reached, court sees no rationale for not extending statute to cover award of attorney’s fees associated with appraisal in instant case

30 Fla. L. Weekly D600a

Insurance — Cargo insurance — Misrepresentations on application — Trial court properly entered summary judgment for insurer in insured’s action to recover policy limit under cargo insurance policy where insured failed to truthfully answer question on insurance application as to whether any insurer had refused to renew or had cancelled policy issued to insured within past five years — Materiality of misrepresentation — Less stringent “knowledge and belief” standard set forth in insurance application controls over strict standard set forth in statute — Even under less stringent “knowledge and belief” standard, trial court correctly granted summary judgment in favor of insurer because there was no dispute that insured had actual knowledge of non-renewal and cancellation which was not disclosed — Insurer’s failure to comply with Claims Administration Statute by failing to timely notify insured of coverage defense by registered or certified mail is irrelevant because insured’s material misrepresentation rendered policy null and void from the date of inception