2005

30 Fla. L. Weekly D367a
895 So. 2d 1136

Insurance — Commercial liability — Nonjoinder statute — Where contractor on condominium project brought action against insured sprinkler subcontractor for damages resulting from sprinkler system ruptures at project, sought declaratory judgment that contractor’s commercial liability policy provided coverage for the damages, and, in another count, alleged that it was an additional insured under the policy and sued insurer directly for a declaratory judgment, trial court departed from essential requirements of law in denying insurer’s motion to sever or stay the direct action against the insurer — Denial of the motion to sever or stay would result in irreparable harm to insurer throughout the remainder of the proceedings, effectively leaving no adequate remedy on appeal, because it would permit jurors to learn that an insurance company is a party to the action and that coverage may exist for damages sought

30 Fla. L. Weekly D538b

Insurance — Commercial liability — Duty to defend — Trial court properly determined that builder’s commercial general liability policy did not provide coverage for homeowners’ claim against builder for replacement and repair of deficient construction, which was based on discovery that builder had constructed home below Federal Emergency Management Agency and county elevation requirements and that stop work order would not be removed until structure was either elevated or demolished — Claims were expressly precluded by work product, business risk, and professional services exclusions contained in policy

30 Fla. L. Weekly S633a
913 So. 2d 528

Insurance — Commercial general liability — Exclusions — Products-completed operations hazard — Action by municipalities against insured gun manufacturer for cost of medical and other services incurred as result of gun violence in communities — Language in policies excluding from coverage “all bodily injury and property damage occurring away from premises you own or rent and arising out of your product” excludes coverage for suits brought against gun manufacturer by municipalities — Plain language of exclusion excludes coverage for all product-related injuries, not merely defective products — Phrase “arising out of your product” in exclusion is not ambiguous, and should be interpreted broadly

30 Fla. L. Weekly D893c

Insurance — Commercial general liability — Products/completed operations liability — Duty to defend or indemnify insured lumber company for damages claimed in complaint filed by subcontractor against insured, alleging subcontractor suffered damages because of insured’s failure to supply proper grade of cedar siding for certain project, which resulted in subcontractor’s having to replace siding — With regard to commercial general liability policy, trial court properly concluded that there were no allegations of property damages, that dispute concerned breach of contract, and that failure to supply product specified in a contract was business risk not covered by this policy — With regard to products/completed operations liability policy, allegations in complaint showed the owner or general contractor’s property suffered no damage from insured’s failure to supply the correct quality of lumber; rather, the only damage alleged was cost or expense to vendor to remove defective product and supply an acceptable substitute — Recall exclusion — Further, both policies provided that insurance did not apply to damage to impaired property, and both policies contained exclusions which clearly exempted from coverage damages incurred by a vendor who supplies defective products and is required to remove and replace them with specified products — Recall exclusion encompassed deficient or inadequate materials — No error in entering declaratory judgment determining that insurer had no duty to defend or indemnify insured

30 Fla. L. Weekly D2502a

Insurance — Commercial general liability — Coverage — Duty to defend — Insured which sold blood irradiation machine to client seeking determination as to whether insurer owed duty to defend and/or indemnify with respect to suit filed against insured by client after irradiation unit was damaged in transit — Exclusions — Contractual liability — Error to grant insurer’s motion for summary judgment based on “contractual liability” policy exclusion — Although policy language excluded “damages by reason of the assumption of liability in a contract or agreement,” insurer failed to point out any language in the purchase order wherein insured assumed liability for property damage to irradiator during shipment — Exclusion for “property damage” to “your product” “arising out of it or any part of it” is limited in scope to situations wherein product itself is defective — In present case, client does not allege that irradiator was defectively manufactured or that a defect within the machine caused the damage — Accordingly, it was error to grant insurer’s motion for summary judgment based on this exclusion

30 Fla. L. Weekly D1057a

Insurance — Commercial general liability — Professional liability — Trial court properly entered summary judgment in declaratory judgment action, finding that insurer had no duty to indemnify or defend insured nursing home against claims for wrongful death and violation of nursing home resident’s rights, where there was no evidence that any relevant event or injury took place during the period of time when insurer’s policy provided coverage

30 Fla. L. Weekly D774a

Insurance — Commercial general liability — Coverage — Damage to homes constructed by insured general contractor — Policy provided coverage for damage suffered by completed homes when exterior walls moved or sank as result of subcontractors’ use of poor soil, improper soil compaction, or improper testing — Occurrences in question fall within coverage provisions of policy, and no exclusions contained in policy are applicable

30 Fla. L. Weekly D2162a

Insurance — Commercial general liability — Additional insureds — Where insured had contract with owner of building to perform janitorial functions in building, and policy listed building owner as an additional insured with respect to liability “arising out of” insured’s ongoing operations performed for the building owner, building owner was an additional insured with respect to liability arising out of named insured’s operations performed for building owner — Because policy did not contain specific language limiting coverage to named insured’s direct negligence, policy provided coverage to the additional insured building owner for its own negligence — Insurer has duty to defend building owner in action alleging that building owner’s negligence resulted in slip and fall in men’s room in building

30 Fla. L. Weekly D1256c

Civil procedure — Class actions — Insurance — No-fault — Personal injury protection — Coverage — Magnetic resonance imaging services — Plaintiff provider alleging insurer failed to pay “annual Florida medical consumer price index increase” for MRI services, as required by statute — Typicality — Plaintiff is improper class representative for class as presently defined where plaintiff’s claim is based on bill for services provided in 2003, and class definition encompasses MRI providers who did not receive payment in amount adjusted annually for CPI from November 1, 2001 through July 31, 2003 — If trial court were to accept insurer’s interpretation of when CPI adjustment should begin and conclude that no CPI adjustment is due on payments for services performed between November 1, 2001, and November 1, 2002, plaintiff would not be aggrieved and could not represent those members of the class who might be aggrieved — Error to grant motion for class certification

30 Fla. L. Weekly D1563a

Civil procedure — Class actions — Insurance — Health — Wrongful termination of policy with automatic enrollment in replacement plan which had lower benefits — Plaintiff attempting to represent class of employees whose employers had originally purchased the same type of health insurance policy as plaintiff, and whose health care plans were replaced by insurer with a plan with inferior benefits — No abuse of discretion in denying motion for class certification based on finding that plaintiff’s claim differed from those who would have been members of class