2005

30 Fla. L. Weekly D46a

Insurance — Equitable subrogation — Dismissal — Equitable subrogation action against medical providers by liability insurer which had settled slip and fall claim against its insured, alleging that amount paid in settlement was greater than would have been fair and reasonable but for medical providers’ negligence — Trial court erred in relying on release executed in connection with settlement agreement in dismissing action where the release was not attached to the complaint — Trial court did properly dismiss action on basis of paragraph in amended complaint alleging that claimants would not agree to release language expressly releasing subsequent negligent medical providers — In order to state a cause of action for equitable subrogation, the allegations of the complaint must demonstrate that the subrogee paid off the entire debt — Based on allegation in complaint that claimants would not agree to release language releasing subsequent negligent medical providers, plaintiff insurance company cannot establish that it paid off entire debt

30 Fla. L. Weekly D610a

Insurance — Liability — Coverage — Negligent act, error or omission in conduct of travel agency operations — Insured travel agency sought indemnification for losses it sustained when Automated Ticket Boarding Forms issued and distributed by Airline Reporting Corporation were stolen and ARC refused to defend or cover agency against airlines’ demands for payment because of its unilateral determination that the travel agency had been negligent and had failed to use reasonable care in safeguarding ATBFs — No error in finding that claim was not covered under policy because loss was result of theft, not insured’s negligence — Fact that ARC had concluded that travel agency violated its obligation under their contract does not make the loss a covered claim under policy provisions at issue

30 Fla. L. Weekly D336a

Insurance — Liability — Trial court properly entered summary judgment finding no coverage under policy which expired by its temporal terms eight days prior to event which gave rise to wrongful death action against insured

30 Fla. L. Weekly D1438a

Insurance — Liability — Insurer’s third-party complaint seeking indemnification or contribution from management company based upon settlement of wrongful death action in which insured homeowners association was sued for negligence based upon an accident in which motorist lost control of vehicle while driving through puddle of standing water, crossed roadway’s median, and collided head on with decedent’s vehicle — Error to dismiss fourth amended third-party complaint with prejudice on ground that management company was additional insured under policy — Although insurance policy defined insured as any person or organization qualifying as an insured in “Persons insured” provision of applicable insurance coverage, and “Persons insured” section included any person or organization while acting as a real estate manager for the named insured, there were two contracts between insured homeowners association and management company, a management contract which required company to arrange for the supervision of maintenance of common areas, improvements, and equipment of the association, and a lawn services contract for lawn services, detail work, irrigation, and fountain services; and insurer alleged that any liability attributable to company was result of negligent performance of lawn services contract, and not result of company’s conduct as real estate manager — Whether company was acting as real estate manager and therefore an additional insured was mixed question of law and fact which was not appropriately resolved on motion to dismiss

30 Fla. L. Weekly D2626b

Jurisdiction — Insurance — Order directing insurance company to pay unpaid balance of judgments against insured — Court had no in personam jurisdiction over insurance company because company was never served and was never a party to suit against insured — Although a liability carrier may be joined at or before the time judgment is entered against its insured, there was no such joinder in present case

30 Fla. L. Weekly D2449b

Civil procedure — Class actions — Standing to proceed as class representative — Breach of contract action against health insurer on behalf of Florida physicians for whom payment on claims for high intensity and costly procedures has either been denied or systematically reduced by defendant pursuant to alleged “downcoding” practice — Plaintiff physician lacked standing to serve as class representative because he has no claim for damages against defendant — Trial court abused discretion in certifying class where evidence demonstrated at outset that class plaintiff had no claim for damages and therefore no standing to proceed with case

30 Fla. L. Weekly D75a

Environmental protection — Florida Petroleum Liability and Restoration Insurance Program — Financial responsibility requirement for participation in FPLRIP — Department of Environmental Protection improperly denied restoration coverage under FPLRIP for petroleum discharge which occurred during period when property owner’s petroleum liability insurance policy was in effect, but which was not reported until two weeks after the policy had expired — Property owner was eligible for FPLRIP participation where discharge occurred within policy period and was reported within six months after expiration of the policy

30 Fla. L. Weekly D2834a

Jurisdiction — Insurer — Foreign insurer — Question certified whether a Michigan insurer, which does not sell insurance in Florida, is subject to personal jurisdiction in Florida in a suit by the insured seeking a defense and coverage, where (a) the insured is being sued in Florida for committing slander in Florida and (b) the policy is a homeowner’s policy covering only a Michigan residence but also providing coverage for torts including slander?

30 Fla. L. Weekly D1123a

Health maintenance organizations — Service providers, claiming as third-party beneficiaries under a subscriber’s HMO contract, may bring an action founded on HMOs’ failure to comply with prompt pay provisions of Health Maintenance Association Act — Question certified whether prompt pay provisions of Act are enforceable by courts in an action founded on principles of breach of contract brought against HMO by a service provider

NOT FINAL VERSION OF OPINION
Subsequent Changes at 30 Fla. L. Weekly D2834a

30 Fla. L. Weekly D2174a

Jurisdiction — Insurance — Foreign insurer — Trial court properly found that it lacked jurisdiction over foreign insurer who had issued policy insuring a property having a permanent situs outside Florida — Fact that policy was delivered to property owner at his Florida address not basis for jurisdiction — Unauthorized insurers process law does not apply to suits arising out of any contract of insurance for liability arising out of ownership, operation, or maintenance of any property having permanent situs outside state — Fact that property insurance policy also provides a provision for personal protection for the owner does not change this result — Non-residents — Argument that court had jurisdiction under general Florida long-arm statute was waived for appellate review where argument was never advanced in trial court