2006

31 Fla. L. Weekly D1102a

Declaratory judgments — Jurisdiction — Torts — Medical malpractice — Settlement — Defendant/insured’s appeal from partial final judgment which granted declaratory judgment on complaint filed by medical malpractice insurer, as intervenor, and approved settlement agreement entered into between insurer and plaintiffs without the consent of insured, finding that settlement was “in good faith and the best interests” of insured — There was “bona fide, actual, present, practical need for a declaration,” notwithstanding policy provision which gave insurer the right to settle claim without insured’s consent, because insured was clearly opposed to proposed settlement and felt that it violated her due process rights and was against her best interests, insurer wanted to proceed with settlement because it believed settlement was in good faith and in insured’s best interests, and insurer had need to be relieved of its uncertainty over its right to settle and not have to risk a subsequent bad faith action by insured — Due process — Insured has not articulated any constitutionally protected interest of which she has allegedly been deprived — There is no protected property interest because, absent special circumstances not present in instant case, there is no cause of action for bad faith when an insurance company settles within policy limits over insured’s objection — Even if insured had property interest sufficient to invoke protection of due process clause, insured was afforded due process because she was provided two full adversarial evidentiary hearings, one on motion to intervene and one on settlement approval

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 D973a

Insurance — Uninsured motorist — Limitation of actions — Conflict of laws — Error to find that plaintiffs’ claim for UM benefits was barred by Georgia two-year statute of limitations applicable to personal injury actions — Under Georgia law, applicable statute of limitations period is time allowed for service of the defendant in the underlying tort action, which is Florida’s four-year tort statute of limitations

31 Fla. L. Weekly D1643a

Insurance — Life — Wrongful denial of premium waiver benefits — Attorney’s fees — Where insured’s initial claim for waiver of premium payments based on disability mistakenly disclosed that her debilitating illness predated the issuance of the policies at issue, although, in fact, the onset of her illness occurred well after the issuance of the policies, insurer’s denial of claim based on the erroneous information provided by the insured did not rise to the level of wrongful conduct necessary to impose attorney’s fee award against the insurer — Court rejects insured’s contention that section 627.428 imposes strict liability on an insurer for attorney’s fees even in cases where a valid claim was not submitted

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 D1499a

Insurance — Liability — Garage operations — Coverage — Incident occurring after expiration of policy period — Injuries sustained in automobile collision, which occurred after expiration of policy period, by passenger in rear seat of vehicle sold by insured, which injuries were allegedly caused by failure of passenger’s seat belt — Where policy did not expressly state that covered loss must occur during policy period, trial court properly found policy ambiguous and construed its language against the insurer

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 D2440b

Insurance — Commercial general liability — Notice of claim — Error to grant summary judgment in favor of insurer with respect to late notice where, viewing evidence most favorably to insured and drawing every possible inference in insured’s favor, there was genuine issue of material fact concerning when insured knew of mold problems in construction project and whether insured failed to timely notify insurer

31 Fla. L. Weekly D1956a

Insurance — Commercial general liability — Insured’s action against insurer alleging, among other claims, breach of contractual duty to pay following insured’s settlement of lawsuit against it — Order merely granting insured’s motion for partial summary judgment on this claim is not final and not appealable — Rule 9.110(m), which states that judgments determining “ the existence or nonexistence of insurance coverage in cases in which a claim has been made against an insured and coverage thereof is disputed by the insurer may be reviewed either by the method prescribed in this rule or that in rule 9.130,” does not grant appellate court jurisdiction to entertain appeals from nonfinal orders