2006

31 Fla. L. Weekly D2679a
943 So. 2d 823

NOT FINAL VERSION OF OPINION
Subsequent Changes at 31 Fla. L. Weekly D3164c

Insurance — Homeowners — Valued Policy Law — 2004 version of Valued Policy Law forecloses an insurer’s challenge to the measure of damages in the event of a total loss — Where total loss of home during hurricane was caused by both wind, a covered peril, and water, an excluded peril, insurer was liable for the total loss under the 2004 Valued Policy Law — 2005 amendment to Valued Policy Law cannot be read as clarification of legislative intent animating its predecessor, since the amendment states that the amended statute is not to be applied retroactively to claims filed before enactment of the amendment

31 Fla. L. Weekly D2835a

Insurance — Homeowners — Bad faith — Failure to settle — Unfair claims practices — Action against insurer who refused to pay full amount of policy following hurricane-related loss on ground that loss was caused by both wind damage, which was covered under policy, and flood damage, which was not covered — Trial court departed from essential requirements of law in forcing insurer to defend against statutory claims before issue of coverage was fully resolved — Although insurer’s attorney conceded at hearing that insurer had some liability under policy, this did not settle question of how much coverage was due — Even if insurer’s admission of limited liability under Valued Policy Law meant that it was liable for full policy limits as to dwelling itself, extent of loss or damage under remaining coverage provisions, including other structures coverage, ordinance and law coverage, personal property coverage, and loss of use coverage, remains unsettled — Insurer will suffer irreparable harm if forced to defend against both breach of contract and bad faith claims simultaneously — Trial court has authority to abate statutory claims, rather than to dismiss them, if it appears that abatement would be in interest of judicial economy

31 Fla. L. Weekly D2658a

Attorney’s fees — Insurance — Homeowners — Error to deny statutory attorney’s fees incurred by insured in defending declaratory judgment action initiated by insurer, which claimed it had no duty to defend or indemnify the insured — Insurer’s voluntary dismissal of its declaratory action conferred a benefit on the defendant insured in the form of representation in the underlying tort suit against insured

31 Fla. L. Weekly D459a

Insurance — Homeowners — Appeals — Order compelling appraisal does not meet requirements for certiorari relief — Order is not appealable as an order that determines the entitlement of a party to arbitration — Appeal dismissed

31 Fla. L. Weekly D2220a
937 So. 2d 199

Insurance — Appraisal — Attorney’s fees — Error to confirm appraisal award and enter judgment where insurer timely participated in appraisal and paid award without need for court intervention — Insurer is not subject to attorney’s fees where insured initiates litigation even though insurer has complied with terms of alternative dispute resolution provided for in insurance contract

31 Fla. L. Weekly D1310a

Insurance — Homeowners — Coverage — Additional coverage for debris removal and trees, shrubs and other plants and for ordinance or law expenses — Insureds whose home was declared a total loss were entitled to additional coverage for which they were charged and paid a premium — However, as provided in policy, they could receive maximum of 25% of limit of liability only if they actually incurred the covered expenses — Florida’s Valued Policy Law does not alter this conclusion — Remand for insureds to present proof of the incurred expenses consistent with policy — Conflict certified

31 Fla. L. Weekly S669b
944 So. 2d 188

Health maintenance organizations — Medical service provider may bring a cause of action as a third-party beneficiary to the contract between the health maintenance organization and its subscriber based on allegations that the health maintenance organization failed to comply with section 641.3155, Florida Statutes (2001), the “prompt pay provisions” of the Health Maintenance Organization Act — The prompt pay provisions of the HMO Act can be incorporated into the contract between the HMO and its subscribers — Medical service provider’s status as a nonparticipating provider does not preclude it, as a matter of law, from establishing that the contracting parties had a clear or manifest intent to benefit the provider

31 Fla. L. Weekly D2579a

Health maintenance organizations — Class action complaints against HMOs brought by professional association providing emergency orthopaedic services, as non-participating provider, to patients insured by HMOs, alleging violations of section 641.513(5), unjust enrichment and quantum meruit, and account stated and seeking declaratory and injunctive relief — Trial court properly dismissed with prejudice plaintiff’s account stated claims, but erred in dismissing remaining claims — Emergency service providers are required to care for HMO subscribers regardless of whether the provider participates in HMO’s health plan, and section 641.513(5) dictates how an HMO must reimburse these non-participating providers — Trial court erred in finding that statute did not imply a private right of action — With respect to HMOs’ argument that the only avenues for vindication of plaintiff’s rights under statute are either filing of claim under federal Employee Retirement Income Security Act or participating in alternative dispute resolution process established in section 408.7057, ERISA issue was not discussed or raised below, and dispute resolution under section 408.7057 is not mandatory — Plaintiff’s argument on appeal that trial court erred in failing to grant it leave to amend its complaints to assert a third-party beneficiary claim under recent district court holding not considered by appellate court where plaintiff was aware of the holding before trial court dismissed its claims, but failed to seek leave of court or consent of defendants to amend its complaints and never sought leave to amend by moving for rehearing — Trial court erred in dismissing unjust enrichment claims on basis that plaintiff conferred no benefit on HMOs — Plaintiff alleged facts sufficient to support its argument that plaintiff’s treatment of subscribers conferred a benefit on the HMOs and alleged the elements necessary to state unjust enrichment/quantum meruit claim — Trial court should not have considered ultimate merits of plaintiff’s unjust enrichment claim at motion to dismiss stage — No error in dismissing account stated claim — For account stated to exist, there must be agreement between the parties that a certain balance is correct and due and an express or implicit promise to pay, circumstances not present in instant case — Request for declaratory judgment seeking interpretation of section 641.513(5) was appropriate

31 Fla. L. Weekly D1942a
934 So. 2d 602

Health maintenance organizations — Declaratory judgments — Actual controversy — Error to dismiss declaratory judgment complaint seeking interpretation of statute requiring HMOs to pay healthcare providers which have no contract with the HMO for emergency medical treatment rendered to subscribers of the HMO — Dispute as to whether HMO was required to pay provider’s full billed charges because they were “the usual and customary provider charges for similar services in the community where the services were provided” or whether HMO was only obligated to pay amount equal to 120% of what Medicare would reimburse for the same services was properly before the lower court for determination on provider’s complaint seeking declaratory judgment — Statute at issue establishes civil liability, and dispute is not whether liability was imposed by the statute, but the methodology for use in establishing the amount of that liability and the applicable enforcement remedy — Under these circumstances, a private right of action may be implied — Moreover, assuming statutory cause of action may not be implied, common law theories are available for redress through the courts — Because civil remedy exists, whether arising from statute or common law, request for declaratory relief is authorized because an actual dispute, not merely a hypothetical one, exists between the parties

31 Fla. L. Weekly D244a

Health maintenance organizations — Statewide provider and managed care organization dispute resolution program — Appeal from final order of Agency for Health Care Administration adopting recommended order of organization under contract for dispute resolution — Where during course of appeal parties to claims dispute amicably settled dispute underlying final order issued by AHCA, statute did not prohibit AHCA from vacating its prior final order to facilitate the parties’ settlement — AHCA erred in denying joint motion to vacate order on ground that it was prohibited by statute from doing so — Remand with instructions to vacate final order to facilitate settlement between the parties