2006

31 Fla. L. Weekly S690b

Insurance — Automobile liability — Bad faith failure to settle — An insurer’s tender of the policy limits to an insured in response to the filing of a civil remedy notice under section 624.155 by the insured, after the initiation of a lawsuit against the insured but before entry of an excess judgment, does not preclude a common law cause of action against the insurer for third-party bad faith

31 Fla. L. Weekly D836a

Insurance — Automobile liability — Bad faith refusal to settle — Insurer can be held liable for bad faith refusal to settle where demand for settlement made by assignee of insured owner of vehicle agreed to release insured owner but refused to release permissive driver of vehicle, who was an additional insured — Trial court erred in entering directed verdict for insurer in bad faith action on ground that insurer could not enter into settlement and release which operated to totally exonerate insured owner without also releasing vehicle driver

31 Fla. L. Weekly D1645c

Insurance — Automobile liability — Bad faith — Where insurer accepted that its insured was responsible for automobile accident as early as the next day and recognized the potential for an excess judgment about four months later, misplaced injured party’s offer to settle which came approximately eight months after the accident, and then purportedly accepted settlement offer, but simply ignored some of the conditions of the offer without explanation and, in fact, did not inquire of insured regarding certain of these conditions, or even inform insured of settlement offer, until after suit was filed against insured, it cannot be said as matter of law that insurer fulfilled its duty to use same degree of care and diligence as a person of ordinary care and prudence should exercise in the management of his own business — Error to enter summary judgment absolving insurer of bad faith claim brought by insured’s bankruptcy estate

31 Fla. L. Weekly D2984c

Insurance — Automobile liability — Bad faith — Declaratory judgment — Accident involving injuries to multiple parties in which insurer exhausted policy limits by paying two claimants, initially denied a third claim because of the exhausted policy limits, and later tendered per person policy limit to third claimant, which third claimant rejected — Error to enter summary judgment for insurer in its declaratory judgment action seeking a declaration that its tender extinguished any bad faith claim insureds might assert — To extent that judgment was meant to bar first party claim of bad faith in settling claims of two claimants without investigating all claims to determine how to best limit insured’s liability, judgment seems to be in error — Judgment also seems to be in error to extent it purports to bar common law third party bad faith claim

31 Fla. L. Weekly D2467a
Insurance — Bad faith — Failure to settle — No abuse of discretion in denying motion for new trial based upon newly discovered evidence when, after trial, insurance company expert acknowledged errors in his testimony, or based upon cumulative errors — Expert’s admission that, contrary to his testimony at trial, his law firm did not use a release worded similarly to the one used by insurer in instant case, which released all persons from liability, was not material to issue of bad faith, but would be evidence to impeach expert’s opinion — Moreover, expert maintained that the fact that the questioned language had been removed from his firm’s release years earlier did not change expert’s opinion that the release was appropriate, nor did he waiver in his opinion that insurer did not commit bad faith — Evidence regarding law firm’s use of different form was not the type of evidence that would probably change result in case because insurer had already established that the attorney for claimant had crossed out over-inclusive language in another release submitted to him by the insurer on behalf of a different insured — Cumulative error — No merit to insured’s contention that certain errors, when considered cumulatively, improperly attempted to shift focus to claimant’s motives and conduct of claimant’s attorney in refusing to settle, although correct focus should have been on motive of insurer in fulfilling its duty to insured — Conduct of claimant and her attorney would be relevant to question of whether there was any realistic possibility of settlement — None of the incidents individually were reversible, as they were either not error or were cured with instruction — Incidents included statement by insurer’s attorney in opening statement that claimant’s attorney stood to earn $500,000 from case, suggesting he would be a biased witness with a financial interest in the outcome; cross-examination of claimant’s attorney as to why attorney did not send request for insurance information to insurer and whether attorney had told claimant not to communicate with insurer; and response by insurer’s expert to a jury-initiated question as to why, in expert’s opinion, claimant’s attorney didn’t make insurer aware of attorney’s appointment as claimant’s legal representative, a question to which insured did not object, even though he had reviewed it prior to expert’s being allowed to answer

31 Fla. L. Weekly D3126a
Administrative law — Office of Insurance Regulation — Windstorm insurance — Rates — Refund of excessive rates — Property owners’ challenge to OIR’s determination that there was no probable cause showing that Florida Windstorm Underwriting Association, predecessor in interest to Citizens Property Insurance Company, violated rating law in setting rates effective during period of July 2000 through June 2002 — Collateral estoppel bars court’s consideration of property owners’ claims — Instant case and prior litigation both involved challenge to validity of rate setting process — Matter was fully litigated and resulted in final decision by appellate court — District court’s determination that it was unnecessary to reach the two arguments revived by property owners in present case, that arbitration of proposed rate increases was unconstitutional and that no public hearing was held, does not alter conclusion, as the appellate court’s decision represented a final adjudication and disposal of overriding, dispositive issue, which was the validity of the rate-setting process

31 Fla. L. Weekly D13b

Insurance — Personal injury protection — Insured is entitled to reimbursement of transportation costs incurred in connection with medical treatment that is reasonably medically necessary

31 Fla. L. Weekly D2675a

Insurance — Circuit court, acting in its appellate capacity, departed from essential requirements of law in concluding that medical provider was entitled as matter of law to recover from insurer the reasonable value of services rendered to insurer’s insured based on quantum meruit theory, where provider did not plead, or otherwise brief during appeal from a dismissal order, that it was entitled to recover from insurer based upon a quasi-contract or quantum meruit theory

31 Fla. L. Weekly D665a

Insurance — Personal injury protection — Coverage — Pedestrian injured by insured driving a rental car — Circuit court erred in concluding that insurer of driver of rental car was required to provide PIP coverage to pedestrian under section 324.021(9)(b)(2) although policy at issue limited PIP coverage to persons occupying a covered vehicle or struck by a covered vehicle, and rental car was not a “covered vehicle” as defined by policy — Appeals — Certiorari — Appellate court had certiorari jurisdiction because circuit court failed to apply correct law when it refused to follow controlling precedent on this issue and when it found PIP coverage based on a statute which was not applicable to PIP coverage

31 Fla. L. Weekly D1120a

Insurance — Personal injury protection — Coverage — Medical expenses — Magnetic resonance imaging — Inflationary cost adjustment — 2003 amendment to section 627.736(5)(b)(5) clarified original legislative intent, which was that Consumer Price Index to be applied was the “Medical Care Item of the Consumer Price Index for All Urban Consumers in the South Region” — Trial court erred in dismissing with prejudice provider’s amended complaint seeking payment for MRI services, including inflationary cost adjustment