2006

31 Fla. L. Weekly D723a

Insurance — Life — Interest on death benefits — Limitation of actions — Action against insurer alleging that amount paid to beneficiary of life insurance policy failed to include the correct amount of interest on death benefits as required by section 627.4615, Florida Statutes, is governed by the four-year statute of limitations for statutory violations, and not the five-year statute of limitations applicable to contract claims — Statutory provision regarding payment of interest on lump sum benefits is not required to be written into insurance policies

31 Fla. L. Weekly D2305a

Dissolution of marriage — Life insurance — Modification — Former husband seeking to modify life insurance provisions of parties’ settlement agreement, alleging that wife no longer has insurable interest in his life, which allegations were based on fact that one child has become emancipated, reducing his child support obligation to just under $31,000, and former wife has remarried, ending his alimony obligation; and further alleging that former wife had procured insurance policy on husband’s life for $1 million — Error to grant wife’s motion to dismiss on ground that plain language of settlement agreement provided wife with an insurable interest on husband’s life where agreement was ambiguous in this regard — Former husband’s petition asserted that parties’ intent in allowing additional life insurance was for purpose of securing support obligation in excess of life insurance policy husband owned, the agreement was modifiable on this point, the former wife had $1 million policy on husband’s life, husband was uncomfortable with this fact, former wife had financial motive to do him harm, and couple’s relationship had been strained and absent affection; and taken as true, the petition states triable cause of action — Error to deny husband’s motion for rehearing, in which former husband asserted that, in dismissing case, court failed to consider totality of insurance provisions and intent of parties at time of execution of the agreement — Remand for evidentiary hearing on merits with respect to parties’ intent as to former wife’s interest in maintaining insurance

31 Fla. L. Weekly D2341a

Contracts — Insurance — Asset purchase — Appeal from final judgment awarding damages and prejudgment interest to Department of Financial Services, as receiver of insolvent self-insurance medical malpractice trust, in breach of contract action brought against defendant, a California-based insurance entity which entered into agreement whereby defendant acquired trust’s offices, including its staff and relationships with its agents throughout Florida, and defendant agreed to pay trust business fees for each new insured and for cumulative profit generated by its Florida operations during specified period of time — Trial court did not abuse its discretion by excluding testimony of defendant’s “expert in the field of insurance industry transactions and custom and usage” where it was apparent that opinion was based on conversations with defendant’s attorney and with an actuary at witness’s consulting firm — Excluding testimony based on witness’s “suspicion” that opposing expert’s calculations of cumulative profit did not take into account bulk reserves was also an appropriate exercise of trial court’s discretion — Notice — No abuse of discretion in excluding expert testimony of another witness whom defendant never identified as an expert witness — Defendant failed to show that this witness’s curriculum vitae or summary of proposed expert testimony was furnished to plaintiff — Court declines to consider whether trial court erred in excluding remaining expert’s testimony because defendant did not proffer testimony, as is required in order to preserve issue of excluded evidence — No abuse of discretion in denying motion for continuance filed a little more than one month before scheduled date of trial in case which had been pending for three and a half years

31 Fla. L. Weekly D77a

Insurance — Insolvent insurers — Preferential transfers — Action by Pennsylvania insurance commissioner, in her official capacity as liquidator of insolvent insurer, seeking to recover preferential payments made by insurer to defendants under reinsurance agreement — Arbitration — Trial court properly found that liquidator who was suing on behalf of insurer’s creditors was not a party to the reinsurance agreement and therefore not bound by arbitration clause in agreement

31 Fla. L. Weekly D992a

Insurance — Inland marine — Furniture warehouse policy — Duty to indemnify — Settlement — Binding effect on insurer of Coblentz settlement/consent judgment negotiated between insured and claimant — Where policy clearly provided that insured property was to be valued in an amount that would not exceed “the value as shown in tariff documents, bills of lading or shipping receipts if any,” and warehouse receipt and storage contract indicated a declared value of $35,070, there was no legal basis to impose liability on insurer in excess of $35,070, and insurer clearly fulfilled its duty to indemnify by tendering such amount — Because there was no breach of duty either to defend or indemnify, it was error to find that insurer was bound by settlement agreement/consent judgment

31 Fla. L. Weekly D2350a

Insurance — Hospital and healthcare facility liability — Coverage — Claims made policy with extended coverage for claims made after policy period where incidents giving rise to claims were reported to insurer as probable claim events during the policy period and within sixty days of the incident — Trial court erred in finding that coverage was provided under policy for medical malpractice claims made after policy period where incidents giving rise to claims were not reported to insurer within sixty days of the incidents — Court erred in determining that the sixty-day requirement for probable claim event coverage was a condition of coverage rather than a term defining the scope of coverage

31 Fla. L. Weekly D576a

Insurance — Homeowners — Repair and remediation of water damage and mold contamination — Action by insureds against insurer which allegedly exercised its option to repair damage, alleging breach of contract and breach of fiduciary duty by insurer, brought after post-repair inspections indicated the need for additional remediation beyond the policy limits after insurer had informed insureds that remediation had been completed successfully — Error to enter summary judgment in favor of insurer where genuine issues of material fact exist as to whether insurer and insureds created a new contract to repair, including who selected repair company to conduct mold remediation and whether additional mold discovered by insureds’ consultant was from certain walls not included in original repair areas — If new contract to repair was formed, issue of whether insurer breached this contract is issue of fact for jury to determine

31 Fla. L. Weekly D1324a
930 So.2d 756

Insurance — Homeowners — Policy providing all-risk coverage for dwelling and named-peril coverage for personal property — Coverage — Direct physical loss caused by named peril — Mold damage to property sustained when water pipe leaked under home’s foundation while homeowners were away on month-long vacation resulted from discharge of water, a named peril — Mold damage was direct consequence of named peril because discharge of water set into motion a sequence of events proximately resulting in mold damage to homeowners’ personal property — Error to deny coverage for mold damage — Where trial court found that claims for future additional living expenses and depreciation were not covered, trial court did not err in requiring homeowners to repay insurer for monies it tendered to insured for these items — Payment for these items was not tantamount to confession of judgment — In cover letter forwarding payment, insurer clearly indicated that payment was made because of a recent federal court decision, insurer tendered payment to avoid any claim for bad faith even though it disagreed with court’s decision, and tender of payment did not prevent insurer from asking state trial court to rule on this issue of coverage — No merit to insureds’ contention that “all-risk” provision of section providing coverage for dwelling also applied to section providing coverage for personal property

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 D3164c
943 So. 2d 823

Insurance — Homeowners — Valued Policy Law — Question certified: Does section 627.702(1), Florida Statutes (2004), referred to as the valued policy law, require an insurance carrier to pay the face amount of the policy to an owner of a building deemed a total loss when the building is damaged in part by a covered peril but is significantly damaged by an excluded peril?