2005

30 Fla. L. Weekly D96b

Insurance — Florida Insurance Guaranty Association — Estoppel — FIGA, as successor to insolvent insurer, is not estopped from denying that insolvent insurer had duty to defend and indemnify insured, where only action taken by insolvent insurer in underlying suit was the filing of an answer

30 Fla. L. Weekly D2776b

Insurance — Duty to defend — Action for writs of mandamus and garnishment against Insurance Commissioner and State Treasurer, and Risk Management Trust Fund which provides civil rights liability insurance for employees, to enforce section 1983 civil rights judgment obtained by Coblentz agreement against the estate of a former state employee after Fund refused to defend the estate — Trial court erred in granting summary judgment for defendants on ground that agreement between plaintiff and estate required as a condition precedent that the estate file suit against the Fund and recover a judgment, that the estate had never filed any such lawsuit, and that plaintiff’s demand letter failed to inform defendants that plaintiff would receive an assignment only when the estate received a judgment in a successfully litigated suit against defendants — Trial court erred in concluding that the settlement agreement was incorporated into the federal judgment and in allowing the Fund, as a nonparty to the agreement and lawsuit, to collaterally attack the terms of the consent agreement between plaintiff and the estate — Although a judgment may be entered pursuant to a settlement, once the judgment is entered, its enforceability is not tied to the terms of the settlement — Fund, as a nonparty to the settlement agreement, has no standing to enforce it — Consent judgment is entitled to same preclusive, res judicata effect as any other judgment — Having refused to defend the estate, the Fund lost its right to claim a defense that it otherwise could have raised in federal court — When an insurer has denied coverage that actually exists, the insurer has breached the contract and therefore cannot be allowed to rely upon a contractual provision prohibiting the insured from settlement of the claim with a responsible party in order to relieve itself from liability — To enforce the consent judgment, plaintiff must demonstrate coverage, a wrongful refusal to defend, and that the settlement was reasonable and made in good faith — Mandamus and garnishment are appropriate remedies to collect against Fund — Court did not abuse discretion by denying defendants section 57.105 attorney’s fees — Cited cases do not support argument that Fund is not sui juris

30 Fla. L. Weekly D2257a

Insurance — Motor cargo insurance — Duty to defend — Policy at issue clearly and unambiguously created “right” to defend rather than a duty to defend — Limitation of liability — Target commodities endorsement limiting insurer’s liability for losses of certain commodities, including audio and video equipment, to 10% of the limit of insurance applied to instant case where items listed on invoices reflected that stolen cargo fell within this provision

30 Fla. L. Weekly D566b

Insurance — Duty to defend — Discovery — Work product — Insured’s communications with counsel — Failure of insured to serve privilege log — Because appellate court cannot determine basis for trial court’s order directing insured to produce its entire litigation file in a previous case to insurer, matter remanded for reconsideration in light of recent district court decision clarifying the application of the abrogation of privilege as a sanction for failure to serve a privilege log

30 Fla. L. Weekly D991c

Insurance — Workers’ compensation — Discovery — Trade secrets — Trial court departed from essential requirements of law in ordering workers’ compensation insurer to produce information and documents which would involve disclosure of insurer’s customer list, and which were claimed to be protected by trade secret privilege, without conducting in camera inspection and without making necessary findings of fact

30 Fla. L. Weekly D2450a

Insurance — Discovery — Attorney-client privilege — Crime-fraud exception to privilege — Where insured sued insurer for breach of contract and defamation after insurer had denied claim for property damage, including in its letter of denial the statement that insured had “attempted to commit insurance fraud,” trial court departed from essential requirements of law in finding that defendant insurer had committed fraud by accusing insured of fraud and thereby waived attorney-client privilege under crime-fraud exception to privilege — Under circumstances where insured’s second claim of loss was far in excess of its initial claim of loss which had been settled, insurer knew that insured had not undertaken any repairs to insured property prior to submission of second claim of loss, insurer knew that individual who signed second claim of loss had previously been convicted of insurance fraud, and insurer knew that company which had prepared estimate used in claim of loss was under investigation for improper inflation of insurance estimates, insurer had reasonable belief that insured had attempted to commit insurance fraud

30 Fla. L. Weekly D290c

Insurance — Discovery — Privilege — Documents in claim file — Record is unclear whether attorney-client or work product privilege applies in case at issue — On remand, trial court should determine which documents are in dispute and conduct in camera inspection to determine whether documents are protected by either work product or attorney-client privilege

30 Fla. L. Weekly D847a

Insurance — Disability — Insured’s action against insurers for breach of contract based on their failure to provide disability benefits — Judicial estoppel — Error to apply doctrine of judicial estoppel based on insured’s conduct during earlier bankruptcy proceeding, in which insured seemingly made equivocal or inconsistent statements about his disability — General rule of judicial estoppel in Florida appears to be that claim or position successfully maintained in former action or judicial proceeding bars party from making completely inconsistent claim or taking clearly conflicting position in subsequent action or judicial proceeding to the prejudice of adverse party, where parties are the same in both actions, subject to “special fairness and policy considerations” exception to mutuality of parties requirement — In bankruptcy proceeding, insured did not “successfully maintain” that he was not disabled, as bankruptcy court did not rule on disability issue — Moreover, insurers were not parties to bankruptcy action — “Special fairness and policy considerations” exception to mutuality of parties requirement does not apply in instant case — Insured has not used intentional self-contradiction to obtain unfair advantage

30 Fla. L. Weekly D1317a

Insurance — Directors and officers liability — Exclusions — Policy’s insured versus insured exclusionary clause did not exclude coverage for insured former president and director of bankrupt corporation in bankruptcy trustee’s adversary action against insured on behalf of creditors in bankruptcy proceeding alleging negligence and breach of fiduciary duties

30 Fla. L. Weekly D1698a

Attorneys — Disqualification — Acquisition of material which was protected by opposing party’s attorney-client privilege — Trial court departed from essential requirements of law in disqualifying counsel who had received privileged information pursuant to a trial court discovery order compelling disclosure of the privileged information which was subsequently quashed by appellate court — Although in “inadvertent disclosure” cases, disqualification of counsel may result if attorney receiving privileged documents gains an unfair tactical advantage by virtue of the disclosure, a higher standard applies for disqualifying counsel when the privileged documents are received pursuant to a court order that is subsequently vacated — Appropriate standard for granting motion to disqualify counsel where counsel receives privileged documents by court order that is subsequently quashed is whether counsel’s review of privileged documents caused actual harm to party moving for disqualification, and whether disqualification is necessary because trial court lacks means to remedy moving party’s harm — Disqualification was improper where moving party failed to proffer any evidence of actual harm caused by opposing counsel’s review of privileged documents