2005

30 Fla. L. Weekly D1283b

Insurance — Motor truck cargo liability — Duty to defend — Provision of policy stating that insurer “reserves the right as its sole option to defend such action” does not unambiguously mean that insurer has no duty to defend any claim that might be brought against insured that is arguably covered under policy — Policy is ambiguous with respect to insurer’s duty to defend, and ambiguity must be resolved against insurer — Remand for determination of whether allegations of complaint against insured fall within terms of coverage of insurance policy

NOT FINAL VERSION OF OPINION
Subsequent Changes at 30 Fla. L. Weekly D1283b

30 Fla. L. Weekly D845b

Insurance — Motor truck cargo liability — Duty to defend — Provision of policy stating that insurer “reserves the right as its sole option to defend such action” does not unambiguously mean that insurer has no duty to defend any claim that might be brought against insured that is arguably covered under policy — Policy is ambiguous with respect to insurer’s duty to defend, and ambiguity must be resolved against insurer — Remand for determination of whether allegations of complaint against insured fall within terms of coverage of insurance policy

30 Fla. L. Weekly D2349a

Insurance — Windstorm — Appraisal — Appraisal after insured and insurer agreed that policy provided coverage for windstorm damage to insured property but disagreed as to whether windstorm caused all the claimed damage or just part of it and disagreed as to cost to repair claimed loss — Where insurer agreed that there was a covered loss, but disagreed as to the amount of the loss, it was permissible for appraisal panel to decide causation issues, because causation was not a coverage question, but rather an amount-of-loss question — Court erred in confirming appraisal award where umpire, appointed by court after appraisers could not agree as to amount of covered loss, exceeded duties assigned to it and made findings specifically reserved for determination by court — Umpire did not comply with trial court order that umpire “derive at an amount of the total loss, and shall further breakdown the amount of the loss by virtue of excluded causes” — In contravention of trial court order, umpire did not fulfill tasks assigned to it and instead made factual findings as to coverage, an issue not in dispute and an issue it lacked authority to resolve; and causation, an issue which pursuant to trial court’s order, trial court had reserved for itself

30 Fla. L. Weekly D329a

Insurance — Personal injury protection — Ambiguous provision in policy — Where insurer asserted as one basis for its refusal to pay for insured’s medical treatment that insured failed to attend a contractually compulsory examination under oath, and county court entered partial summary judgment for insured on that issue on the ground that the compulsory EUO language in the policy was ambiguous, circuit court departed from clearly established principles of law in reversing summary judgment on the ground that question of whether an ambiguity exists in an insurance contract is one for the jury to decide rather than the court — It is well settled in Florida that the initial determination of whether a contractual term is ambiguous is a question of law for the court — Certiorari granted — Portion of circuit court opinion that reversed partial summary judgment quashed

30 Fla. L. Weekly S203a

Insurance — Homeowners — All risk policy — Exclusions — Earth movement — Blasting activities — Absent specific language in policy to the contrary, an earth movement exclusion is limited to damage caused by natural phenomena — Where all risk policy excluded damage caused by “earth movement” from coverage, policy did not include a lead-in provision excluding coverage for damage resulting from earth movement regardless of its cause, and policy expressly defined term “earth movement” to mean “earthquake, including land shock waves or tremors before, during or after a volcanic eruption; landslide; mine subsidence; mudflow; earth sinking, rising or shifting,” policy did not exclude coverage for damage caused by blasting

30 Fla. L. Weekly D750a

Insurance — All risk — Defective design exclusion — Ensuing loss exception to defective design exclusion — Where all risk policy contained exclusion for cost of making good defective design or specifications, it did not provide coverage for insured’s business interruption and extra expense losses after defects in design and installation of “wet” end to insured’s paper mill caused plant to be shut down — Ensuing loss exception to design defect exclusion, which provided that “this exclusion shall not apply to loss or damage resulting from such defective design or specifications,” did not provide coverage for insured’s business interruption and extra expense losses — Under clear and unambiguous terms of policy, business interruption and extra expense losses are covered only if resulting from damage or destruction of property caused by a covered peril — An ensuing loss exception is not applicable if the ensuing loss is directly related to the original excluded risk

30 Fla. L. Weekly D1017a

Administrative law — Department of Financial Services — Licensing — Revocation — Insurance license — Error to deny licensee’s motion to set aside default revocation, entered when licensee failed to request administrative hearing within 21 days of receipt of administrative complaint, where factual issues were raised in motion and accompanying affidavit which should have been resolved via an administrative hearing — Licensee made allegations which could create situation where doctrine of equitable tolling of his obligation to timely respond to administrative complaint might be applicable where he stated that he believed there was no need to request administrative proceeding while he awaited response from agency to his inquiry letter concerning the complaint and that, since he had only the initials of the customers at issue, he was unable to analyze allegations against him and accurately respond to administrative complaint prior to expiration of 21-day period — Remand for administrative hearing

30 Fla. L. Weekly D156a

Torts — Insurance company’s claim against insurance adjuster with which it contracted to service insurance claims, alleging breach of contract, fraudulent concealment, and breach of fiduciary duty in connection with mishandling of settlement opportunities in case in which an injured person sued insured — No error in directing verdicts on claims of fraud and breach of fiduciary duties, which resulted in elimination of punitive damages claims, where contract between parties did not impose any fiduciary duties upon adjuster, and there was no evidence that adjuster’s failure to notify insurance company of verdict for sixty-six days was anything other than negligent — No error in denying motions for directed verdict and new trial on breach of contract count — No abuse of discretion in denying defendant’s motion in limine and objections to testimony of plaintiff’s insurance expert — Prejudgment interest — Where final judgment reserved jurisdiction to award prejudgment interest, insurance company filed notice of appeal the next day but never moved to relinquish jurisdiction to permit trial court to award prejudgment interest, claim for prejudgment interest was waived