2006

31 Fla. L. Weekly D929b

Insurance — Homeowners — Personal liability — Coverage — Exclusions — Trial court properly found that insurer was not obligated to defend or indemnify insureds with respect to tenants’ action against insureds for breach of residential lease based on allegations that house had become uninhabitable because of mold — Policy excluded personal liability arising out of rental or holding for rental of any part of any premises by an “insured,” with certain exceptions — Exception to exclusion applicable for rental of an insured location on an occasional basis did not apply because lease of the subject premises was for a one-year period, virtually the entire time that the insureds had owned the premises — Exception to exclusion applicable to rental of premises in part for use only as a residence did not apply because residence in question was rented in its entirety

31 Fla. L. Weekly D363a

Insurance — Homeowners — Accidental direct physical loss — Action alleging that insurer has obligation to repair plumbing abnormality in which, for an unknown reason, drain pipe connecting toilet to sewer pipe had become “backpitched,” thereby impeding flow of water — Error to dismiss action on ground that because there was no evidence of damage from the obstructed toilet there was not a “physical loss” to the property — Abnormality in the pipe itself was a physical loss — Error to dismiss action on ground that, even if a physical loss were proven, policy exclusion for earth movement applied — Burden of proof was on insurer to prove that the exclusion applied

31 Fla. L. Weekly D1198a

Insurance — Homeowners — Exclusions — Bodily injury caused by “any dog owned or kept by you” — Although policy defined “you,” as the named insured and spouse, it is a strained reading to suggest that insurer intended to exclude named insured and spouse from coverage for injuries resulting from an incident involving their dog while at the same time intending to provide coverage for named insureds’ nine-year-old daughter who jointly owned the dog with them — Reading exclusion from perspective of an ordinary person and in conjunction with rest of policy does not support finding that daughter had coverage that her parents did not enjoy — Trial court erred in determining that policy provided coverage for injuries sustained by child who was bitten by dog while visiting insureds’ nine-year-old daughter

31 Fla. L. Weekly D1122a

Health maintenance organizations — Coverage — Exclusions — Experimental or investigational services — Exception — Drug prescribed for treatment of cancer that has been approved by FDA for at least one indication, provided drug is recognized for treatment of covered person’s cancer in Standard Reference Compendium or recommended for treatment of covered person’s cancer in medical literature — Error to enter summary judgment and final judgment awarding damages in favor of plaintiff in action against HMO which denied coverage for TheraSphere treatment for plaintiff’s cancer after finding that exception to exclusion for experimental or investigational services was inapplicable because TheraSphere was a “device,” not a “drug” — Lack of definitions for terms “device” and “drug” does not violate section 641.31(4), which requires a clear and understandable statement of any limitations on services or kinds of services to be provided, and does not make exclusion for experimental or investigational services inapplicable to plaintiff’s claim — Read in context, plan provides adequate notice as to services to which a subscriber is entitled and the limitations on those services or kinds of services — Because trial court’s decision largely rested on erroneous conclusion that plan violated statute, summary judgment and final judgment are reversed — Further, trial court did not consider substance of medical expert’s affidavit, which specifically outlined why TheraSphere treatment does not meet the requirements of the exception and stated that plaintiff was not diagnosed with type of cancer for which FDA had approved treatment with TheraSphere and that TheraSphere was not drug recognized for treatment of plaintiff’s diagnosed condition; two of the articles on which plaintiff relied address only the treatment of a type of cancer other than that with which plaintiff was diagnosed — Remand for further proceedings

31 Fla. L. Weekly D14a

Insurance — Excess coverage — Error to enter summary judgment finding that umbrella policy provides coverage for claim, where there are genuine issues of material fact relating to affirmative defenses and counterclaim for rescission which may ultimately affect coverage

31 Fla. L. Weekly D1798a
Insurance — Uninsured motorist — Evidence — Payment of personal injury protection benefits — Insurer’s payment of PIP benefits in connection with an automobile accident is not relevant to issue of whether medical expenses claimed in insured’s uninsured motorist claim are reasonable, necessary, or connected to the accident, and evidence of such payment is not admissible for that purpose — Error in admission of evidence of insurer’s payment of PIP claims in insured’s action for underinsured motorist benefits was harmless where issue was not a feature of the trial, and evidence was sufficient to support insured’s claim that she had herniation in spinal discs as result of accident which necessitated surgery

31 Fla. L. Weekly D3104d

Insurance — Uninsured motorist — Insured injured in collision with vehicle driven by uninsured motorist and subsequently injured in a different collision which occurred roughly two months later — Trial court erred as matter of law when it granted motion for mistrial following jury’s verdict on ground that insurer’s attorney had asked a question implying that plaintiff had settled with a subsequent tortfeasor — Statute which proscribes informing a jury about settlements involving joint tortfeasors does not apply to instant case involving subsequent tortfeasor — Settlement between insured and party who was responsible for second collision was relevant because it was intended to explain why doctor bills which before the settlement had indicated they were attributable to the second accident began indicating after the settlement that treatment was attributable to the first accident — Remand with directions to reinstate verdict

31 Fla. L. Weekly D1145a

Insurance — Liability — Summary judgment — Error to enter final declaratory judgment finding that insurer has duty to indemnify and defend insured, where there is issue of fact regarding the applicability of a policy exclusion

31 Fla. L. Weekly D800a

Torts — Insurance — Duty to defend — Where liability insurer initially denied coverage for personal injury claim against insured and refused to defend on ground that insured’s notice of claim was untimely, but, after insured had filed breach of contract action against insurer, insurer sent insured a letter stating that it was no longer denying coverage and that it agreed to assume insured’s defense, trial court departed from essential requirements of law in entering order permitting insurer to take control of the defense, to select counsel of its own choosing, and to defend insured in the personal injury suit — Insurer had duty to defend, and insured’s late notice did not relieve insurer from that obligation where there was no prejudice as result of the late notice — By its initial wrongful refusal to defend, insurer forfeited the right to defend and to control the defense

31 Fla. L. Weekly D479b

Insurance — Discovery — Declaratory action seeking determination of whether fee/cost judgment against insured constitutes damages based on personal injury under terms of personal umbrella policy — Trial court erred in ordering insurer to provide information and documents regarding the drafting, marketing and interpretation of its umbrella policies, training of agents and employees as to policies, and claims made under policies on which fees and/or costs were paid — Because construction of policy is question of law to be determined by court, requested discovery was not relevant to litigation