2006

31 Fla. L. Weekly D169a

Insurance — Liability — Discovery — Attorney-client privilege — Waiver — Action against umbrella insurance carrier after plaintiffs entered into Coblentz agreement in which defendants entered into consent judgment and assigned to plaintiff any cause of action they had against umbrella insurance carrier in exchange for plaintiff’s covenant not to execute on defendants — Injured party wishing to recover under Coblentz agreement must bring action against insurer and prove coverage, wrongful refusal to defend, and that settlement was reasonable and made in good faith — There was no blanket waiver of attorney-client privilege on the question whether the Coblentz agreement was reasonable and in good faith — However, provision of settlement agreement stating that corporate defendant had been advised by prior corporate counsel and individual defendants had been advised by their personal counsel that “in their opinion, the case, if tried before a jury, would result in a verdict of liability” did waive attorney-client privilege as to the stated opinion of counsel that verdict of liability would result if the case were tried — Recitations elsewhere in settlement agreement that parties had consulted with counsel regarding underlying tort action and settlement agreements did not disclose the substance of the legal advice given and did not accomplish a waiver of attorney-client privilege

31 Fla. L. Weekly D1669a
932 So. 2d 516

Insurance — Liability — Where insurer disputed coverage for patent infringement and unfair competition claims brought against insured, but agreed to defend under reservation of rights, and appellate court found that claims were not covered by policy and remanded for trial court to determine insurer’s right to recover costs of defense incurred while defending insured, trial court did not err in finding that insurer was entitled to its defense costs, fees, and expenses — Sending reservation of rights letter and appointing mutually agreeable defense counsel is an appropriate action when an insurance company disputes coverage — Insured agreed to defense counsel and accepted the defense provided and, accordingly, “necessarily agreed to the terms” on which insurer extended its offer to provide a defense

31 Fla. L. Weekly D2734a

Insurance — Aircraft liability — Coverage — Parties who entered into contract with named insureds to use insured aircraft to fly passengers to Bahamas were covered under policy’s omnibus insured provision, which provided coverage for “any person while using or riding in the aircraft and any person or organization legally responsible for its use” — Insurer had duty to defend parties who were using aircraft in wrongful death actions against those parties by estates of passengers who were killed when the aircraft crashed because estates’ wrongful death lawsuits alleged facts which potentially brought suits within policy coverage — Insurer also had duty to defend parties because they were equitably subrogated to rights of passengers’ estates by virtue of defending their lawsuits and settling the claims — Trial court properly entered summary judgment adverse to insurer in its action seeking declaratory relief — Trial court did not err in staying counterclaim for damages pending appellate court’s resolution of coverage issue

31 Fla. L. Weekly D2795a

Insurance — Legal malpractice — Notice of claim — Error to enter summary judgment for insurer in action to enforce default judgment which had been entered against insured on ground that insurer did not receive notice of claim prior to filing of action — Generally, under governing Louisiana law, an insurer may not raise failure of its insured to give notice of accident or suit as valid defense to claim of an injured third party, but third party’s right to recover may be defeated if insurer can show prejudice from insured’s failure to comply with notice requirements of policy — Disputed issue of fact exists regarding whether plaintiff had knowledge of existing malpractice insurance — Although insurer alleged that it suffered prejudice as matter of law because it had been deprived of opportunity to defend lawsuit against its insured, question of material fact exists as to whether insurer would have defended suit against its insured — Summary judgment is not appropriate where there exists factual dispute concerning whether insurer contributed to lack of notice through an allegedly defective cancellation of policy

31 Fla. L. Weekly S875c

Insurance — Uninsured motorist — Leased vehicle — Lessees of vehicles are not entitled to uninsured/underinsured motorist coverage under policy issued to lessor under policy as reformed by court — Reformation of policy based on mutual mistake — Federal district court properly reformed “named insured” provision of policy to reflect intent of contracting parties to exclude coverage for lessees of vehicles — Lessees are not entitled to coverage under other insurance clause in policy endorsement — Only effect of endorsement is to afford liability coverage to lessor in the event it is exposed to damages due to an accident involving a vehicle leased through one of programs listed in endorsement — Other insurance clause does not alter description of covered auto found elsewhere in policy or endorsement, and does not alter definition of an insured under uninsured motorist coverage section of personal auto supplement

31 Fla. L. Weekly D719a

Insurance — Class actions — Standing — Plaintiff who had obtained ruling that she was entitled to uninsured motorist coverage under Rental Supplementary Liability Insurance Excess Policy issued by defendant has standing to file class action complaint seeking declaratory judgment that plaintiff and other similarly situated individuals are entitled to uninsured motorist coverage and damages — To satisfy the requirement of standing, plaintiff must show that a case or controversy exists between plaintiff and defendant, and that such case or controversy continues from the commencement through the existence of the litigation — Plaintiff has standing because a final judgment has not been rendered on her claim for damages or defendant’s liability — Whether plaintiff is a proper class representative or whether there exists similarity of claims between the named plaintiff and the class members are questions addressed not by principles of standing, but, rather, by the application of the requirements for class action certification

31 Fla. L. Weekly D3017c

Insurance — Personal injury protection — Coverage — Rented vehicle — Where party who was not related to named insured, but was identified as an additional driver on declarations page of policy, rented a vehicle from leasing company, listed party who was injured while driving vehicle as an additional driver under the rental agreement, and listed the policy number under portion of rental agreement providing the “valid and collectible liability insurance and personal injury protection insurance of any authorized rental or leasing driver is primary,” the policy did not provide coverage to the injured driver and her husband — Since the injured parties are not named insureds, they are not entitled to coverage merely because they suffered damages while occupying a motor vehicle — Injured parties are not covered under provision affording coverage to any person who occupies the insured motor vehicle because the rental car they occupied does not qualify as an “insured motor vehicle” as that term is defined in policy — Coverage shifting language in rental car agreement could not serve to create coverage where policy never extended valid and collectible PIP coverage to injured parties — Error to require insurer to provide PIP coverage to injured parties

31 Fla. L. Weekly D2004a

Insurance — Premium financing — Unlawful or excessive insurance premium — Difference between amount paid by installment customers and discounted amount paid by customers who pay in full — Insurer seeking certiorari review of circuit court order finding that its actuarially based paid-in-full discount was an illegal finance charge, contending that insured was first required to seek administrative relief with Office of Insurance Regulation before pursuing civil cause of action — Insured was required to first seek relief with OIR, which has primary jurisdiction over setting of insurance rates — Circuit court erroneously determined that insured was not required to do so and that it had jurisdiction to proceed — Insurer will suffer irreparable injury which cannot be remedied by direct appeal because if it follows trial court’s order and discontinues discount, as it will be violating OIR’s approved premium rates and all of its paid-in-full customers will be required to pay higher rate, whereas if it continues to offer OIR approved rates, it will incur additional liability under trial court’s order

31 Fla. L. Weekly D848c

Jurisdiction — Forum non conveniens — Insurer’s declaratory judgment action regarding coverage provided by policy and duty to defend — Location of witnesses is not important in dispute involving question of law — Because neither party would be significantly undermined or favored by one forum over another, private interests are in equipoise — Where coverage question in case has direct connection to class actions pending in Florida, public interest factor favors Florida as forum — Trial court did not abuse discretion in denying motion to dismiss based on forum non conveniens

31 Fla. L. Weekly D211a

Insurance — Personal injury protection — Interest — Delay in payment of medical benefits — Class actions — Medical provider lacked standing to bring class action on behalf of medical providers and insureds who were allegedly owed statutory interest pursuant to section 627.736(4), Florida Statutes (1994), on PIP benefits not timely provided by insurer where insurer did not owe statutory interest to provider — On date original claim was purportedly submitted to insurer, it was undisputed that policy deductible had not been met and insurer was not required to make any payment until deductible had been met — Insurer subsequently submitted its payment to provider within 30 days of receipt of resubmitted claim