2006

31 Fla. L. Weekly D1131b
929 So. 2d 578

Insurance — Aircraft — Insured’s action against insurer alleging breach of contract and bad faith — Discovery — Attorney-client privilege — Trial court departed from essential requirements of law in ordering insurer to produce attorney-client privileged documents relating to defense of bad faith claim, underlying breach of contract claim, and time period after bad faith claim was made — Florida Supreme Court’s decision in Allstate Indemnity Co. v. Ruiz applies to work-product privilege, not attorney-client privilege — Ruiz did not overrule controlling precedent by district court indicating that attorney-client privilege should be applied in first-party bad faith action — Moreover, plain meaning of sections 624.155, the general statute dealing with bad faith, and section 90.502, the more specific statute dealing with attorney-client privilege, indicates that attorney-client privilege has not been eliminated in first-party bad faith actions — Question certified: Does the Florida Supreme Court’s holding in Allstate Indemnity Co. v. Ruiz, 899 So. 2d 1121 (Fla. 2005), relating to discovery of work product in first-party bad faith actions brought pursuant to section 624.155, Florida Statutes, also apply to attorney-client privileged communications in the same circumstances?

31 Fla. L. Weekly D571a

Insurance — Health — Denial of coverage under policy for organ transplant — Action against insurer and agents by plaintiffs who initially purchased policy that provided coverage for organ transplants but subsequently purchased renewal policy that did not provide coverage for organ transplants after agent represented that the renewal policy provided the same coverage as provided by prior policies that had been issued to plaintiffs — Trial court erred in dismissing complaint primarily on basis of merger clause in application, which stated that agent was not authorized to change or modify insurance contract — Trial court erred in dismissing count for declaratory judgment where complaint contained sufficient allegations entitling plaintiff to declaration of her rights — Court erroneously treated motion to dismiss declaratory judgment action as motion on merits — Error to dismiss count for reformation of contract to include coverage for organ transplants where complaint sufficiently alleged mutual or unilateral mistake — Merger clause in application does not automatically bar plaintiff from seeking reformation of insurance contract — Error to dismiss count for promissory estoppel where complaint alleged that defendants promised plaintiffs that renewal policy would contain same coverage as previous policies, that plaintiffs relied to their detriment on this promise, and that as result of their reliance damages were incurred — Error to dismiss count for fraudulent misrepresentation — Merger clause in insurance application did not automatically defeat plaintiffs’ allegation of reliance because issue of whether plaintiffs reasonably relied on agent’s misrepresentations is issue of fact — Because complaint contains allegations connecting insurer with misrepresentations made by agent, court erroneously dismissed fraudulent misrepresentation count against insurer — Error to dismiss count for negligent misrepresentation — Error to dismiss count for negligent procurement of policy

31 Fla. L. Weekly D178a

Torts — Negligence — Real estate appraisers — Insurance — Action by owner of building which was destroyed by fire against appraiser for negligently appraising the building too low for purposes of insurance, with result that cost of rebuilding the building would substantially exceed insurance coverage — Where appraiser raised defense that insurance agent’s negligence contributed to the insufficient amount of insurance coverage, trial court did not err in refusing to submit the insurance agent’s negligence to the jury because there was no expert testimony to the effect that the agent was negligent — Given that appraising requires expertise, and that the insurance agent did not have that expertise, jury could not have determined that the agent was negligent in the absence of an opinion of an expert

NOT FINAL VERSION OF OPINION
Subsequent Changes at 31 Fla. L. Weekly D1114a

31 Fla. L. Weekly D1073a

Administrative law — Licensing — Insurance agents — Department of Financial Services properly revoked insurance agent’s license for various statutory violations, including representing an unauthorized insurer — DFS properly found that statute imposes an absolute bar against representing an unauthorized insurer and that statute does not include a knowledge element — Burden was on licensee to establish affirmative defense that unauthorized insurer’s plan which he sold was an ERISA-qualified plan and exempt from state regulation

31 Fla. L. Weekly D292a

Torts — Insurance — Where insured was sued for the wrongful death of an employee in an action which alleged that the employee’s death was the result of insured’s intentional acts or conduct that was substantially certain to result in injury or death, and insured filed third-party action against insurance agent which provided workers’ compensation and employers liability policy to insured, alleging that agent breached its duty to obtain proper insurance for insured in that it obtained a policy which contained an exclusion for bodily injury intentionally caused by insured, and that agent misrepresented that it had obtained coverage for all liability with no exceptions, trial court properly entered summary judgment for the insurance agent on the third-party complaint — Because public policy prohibits an insured from being indemnified from a loss resulting from its intentional acts, insured has no claim against agent for failure to procure coverage for intentional acts — In order to prove its misrepresentation case, insured was required to establish that agent made a deliberate and knowing misrepresentation designed to cause, and actually caused detrimental reliance by insured — Since insured would not have been able to obtain coverage for its intentional acts, there could be no detrimental reliance — If allegations of wrongful death complaint against insured could be read to allege liability of insured under theory that insured’s conduct was substantially certain to result in injury or death, coverage would have been provided under policy procured by agent, and there can be no claim against agent for failure to procure such coverage or any claim for misrepresentation

31 Fla. L. Weekly D2375c

Contracts — Insurance — Agent’s commissions — Attorney’s fees — Insurance agent’s action against insurance agency seeking unpaid commission earned before and after termination of relationship with agency — Trial court erred in entering summary judgment finding that agent was not entitled to post-termination renewal commissions where commission agreement between agent and agency unambiguously provided for payment of post-termination commissions — Trial court erred in entering summary judgment finding that agent was equitably estopped from claiming attorney’s fees in action for unpaid wages because agent was an independent contractor rather than an employee — Although section 448.08 attorney’s fees do not apply to independent contractors, issue of whether agent was an independent contractor or an employee should have been submitted to jury — Trial court erred in entering summary judgment denying agent pre-termination renewal commission shortages on grounds of waiver and laches because of agent’s delay in seeking the commission shortages — Waiver is factual issue to be determined by jury — Laches requires showing that defendant would suffer prejudice in event relief is accorded to plaintiff, and there was no showing that agency would suffer any prejudice by affording agent the relief he seeks in the form of an accounting — Equitable defenses of waiver and laches require clean hands, and, if plaintiff’s allegations are true, defendant’s conduct does not demonstrate clean hands