2005

30 Fla. L. Weekly D1561a

Appeals — Non-final orders — Insurance — Class actions — Insured’s action against insurance carrier on his behalf and on behalf of proposed class of similar policy holders for violations of repair and replacement provisions — Order dismissing class action allegations with prejudice is not reviewable — Order did not determine that class should not be certified or deny a motion to certify — The only basis for dismissal raised by motion to dismiss under rule 1.140 was legal sufficiency of the pleading for class relief

30 Fla. L. Weekly D110c

Insurance — Group health — Out-of-state groups — Civil procedure — Class actions — Certification — Action seeking monetary damages and declaratory relief, including declaration that dispute resolution provision in policies at issue be rendered unenforceable — No abuse of discretion in considering, but not reaching, procedural unconscionability issue when deciding to certify class — Trial court was entitled to review evidence available regarding procedural unconscionability claim in considering whether prerequisites of rule 1.220(a) were established, and record demonstrates that trial court did not conduct in-depth inquiry into merits of this claim, but instead focused on whether prerequisites for class certification had been met — Adequacy of class representatives — No error in finding plaintiffs to be adequate class representatives, although they were no longer insured under challenged policy — Abuse of discretion to certify class under rule 1.220(b)(2) — Although enforceability of dispute resolution provision appearing in all policies issued to class applies to all class members equally and declaratory relief is at issue, monetary recovery is predominant issue, rendering class certification under rule 1.220(b)(2) inappropriate — No error in certifying class under rule 1.220(b)(3) because common issues involving enforceability of dispute resolution provision which is common to all class members’ policies, and compliance with statutes predominate to an extent that minimizes the risks stemming from any individualized damages inquiry that might be required

30 Fla. L. Weekly D173a

Insurance — Unfair insurance trade practices — Action against insurer alleging fraud and deceit in claims handling process, violations of section 624.155, and violations of section 626.9541 brought by insured who received personal injury protection, Med Pay, and collision benefits, but no uninsured motorist benefits, following automobile accident — Stay — Error to enter indefinite stay of lawsuit pending resolution of appeals in two unrelated cases involving insurer — Two appeals were not initiated in same appellate court and did not involve an identical dispositive issue, and instant case and two pending appellate cases did not arise out of same accident or insurance contract

30 Fla. L. Weekly D386a

Administrative law — Department of Financial Services — Insurance regulation — Appeal from department order concluding that insurer knowingly and willfully failed to pay build-up funds due a bail bond agent upon discharge of liabilities, in violation of section 648.29(3) — Willfulness — Department erred when it recast administrative law judge’s finding on willfulness as a conclusion of law, took exception to this conclusion, and imposed penalty based upon its own conclusion that violation of statute was knowing and willful — ALJ properly found that the existence of a circuit court order allowing insurer to hold build-up funds until conclusion of insurer’s lawsuit against bail bond agent prevented the Department from establishing that insurer was in willful violation of statute

30 Fla. L. Weekly D556a

Insurance — Bad faith — Trial court improperly allowed assertion of bad faith claim against insurer before coverage issue had been resolved — Where court consolidated two cases for discovery and trial, court improperly treated the two cases as merged — Because of potential prejudice to defendant insurer, which had been granted summary judgment in one of the cases, order allowing the filing of a single amended complaint, operating as to both cases, constituted departure from essential requirements of law

30 Fla. L. Weekly D804a REBECCA GALANTE and CHRISTOPHER GALANTE, Appellants, v. USAA CASUALTY INSURANCE COMPANY, a corporation, Appellee. 4th District. Case No. 4D03-3816. Opinion

NOT FINAL VERSION OF OPINION
Subsequent Changes at 30 Fla. L. Weekly D804a

30 Fla. L. Weekly D525a

Insurance — Uninsured motorist — Bad faith — No error in dismissing insureds’ first-party bad faith action with prejudice where it was undisputed that underinsured motorist insurer paid contractual amount due the insured within sixty days of receipt of civil remedy notice, in compliance with safe harbor provision of section 624.155(3)(d)

30 Fla. L. Weekly S219c
899 So. 2d 1121

Insurance — Bad faith actions — Discovery — Work product privilege — Any distinction between first-party and third-party bad faith actions with regard to discovery purposes is unjustified and without support under section 624.155 — Claim file type material presents virtually the only source of direct evidence with regard to the essential issue of insurance company’s handling of insured’s claim — In connection with evaluating the obligation to process claims in good faith under section 624.155, all materials, including documents, memoranda, and letters, contained in the underlying claim and related litigation file material that was created up to and including the date of resolution of the underlying disputed matter and pertain in any way to coverage, benefits, liability, or damages, should be produced in a first-party bad faith action — All such materials prepared after the resolution of the underlying disputed matter and initiation of the bad faith action may be subject to production upon a showing of good cause or pursuant to an order of the court following an in-camera inspection — Where coverage and bad faith actions are initiated simultaneously, court should employ existing tools, such as abatement of actions and in-camera inspections, to ensure full and fair discovery in both causes of action

NOT FINAL VERSION OF OPINION
Subsequent Changes at 30 Fla. L. Weekly D1170d

30 Fla. L. Weekly D478b

Insurance — Liability — Bad faith — Dismissal or abatement of action — Action against insurer for bad faith failure to settle after plaintiff in underlying action offered to settle his bodily injury claim for what he believed to be the bodily injury liability limits of insured’s liability policy plus his property damage, insurer asserted that policy did not afford bodily injury liability and refused the offer, plaintiff submitted a second offer to settle all claims in return for payment of the property damage limits, insurer rejected that offer as well, plaintiff sued insured for bodily injury and property damage, insurer settled property damage claim only by paying plaintiff the amount he had previously sought to settle all claims, and plaintiff’s action for bodily injury liability proceeded to verdict, resulting in judgment against insured — In action by plaintiff and insured against agent, alleging negligent failure to procure full coverage, and against insurer, alleging vicarious liability for agent’s conduct and bad faith failure to settle, trial court did not depart from essential requirements of law by denying insurer’s motion to dismiss or abate bad faith counts until final determination is made on merits of remaining counts — Decisions holding that a tort action against an insured cannot proceed simultaneously with an action by the insured against the insurer alleging bad faith are not applicable — Discovery — Court did not depart from essential requirements of law in denying insurer’s motion for protective order asking court to deny request for production of insurer’s litigation files and claim-handling material generated before final judgment in suit against insured — Claim that trial court departed from essential requirements of law by compelling production of material and documents in claims file without ordering in camera inspection to determine whether any documents are protected by attorney-client privilege or as work product is not ripe for review — Where order compelling insurer to comply with discovery request made no determination that insurer had waived any privileges or protections, and insurer subsequently filed privilege log, trial court has not yet made any determination regarding claim of privilege

30 Fla. L. Weekly D1170d ALLSTATE INDEMNITY COMPANY, Petitioner, v. TIMOTHY OSER, SABRINA PATTERSON, and JO LYNN WALKUP, Respondents. 1st District. Case No. 1D04-2683. Opinion