2006

31 Fla. L. Weekly D131e

Insurance — Health — Arbitration — Where insurer denied insured’s claim under health insurance policy on basis that condition which formed basis of claim was preexisting and that insured’s preexisting condition voided the policy, insured’s action against insurer for breach of contract, fraud in the inducement, negligent misrepresentation, and violations of Deceptive and Unfair Trade Practices Act was not subject to arbitration under arbitration clause in policy — By returning insured’s premium and rescinding the contract, insurer voided the contract and rendered all contractual provisions, including the arbitration clause, unenforceable — Error to grant insurer’s motion to compel arbitration

31 Fla. L. Weekly D1041b

Insurance — Habeas corpus — It is impermissible and frivolous for a petitioner who is not incarcerated to litigate an insurance dispute in a petition for writ of habeas corpus — Petitioner qualifies as a vexatious litigant, and clerk of court is directed to reject any further petitions for writ of habeas corpus on petitioner’s behalf unless signed by member of Florida Bar

31 Fla. L. Weekly D1122a

Health maintenance organizations — Coverage — Exclusions — Experimental or investigational services — Exception — Drug prescribed for treatment of cancer that has been approved by FDA for at least one indication, provided drug is recognized for treatment of covered person’s cancer in Standard Reference Compendium or recommended for treatment of covered person’s cancer in medical literature — Error to enter summary judgment and final judgment awarding damages in favor of plaintiff in action against HMO which denied coverage for TheraSphere treatment for plaintiff’s cancer after finding that exception to exclusion for experimental or investigational services was inapplicable because TheraSphere was a “device,” not a “drug” — Lack of definitions for terms “device” and “drug” does not violate section 641.31(4), which requires a clear and understandable statement of any limitations on services or kinds of services to be provided, and does not make exclusion for experimental or investigational services inapplicable to plaintiff’s claim — Read in context, plan provides adequate notice as to services to which a subscriber is entitled and the limitations on those services or kinds of services — Because trial court’s decision largely rested on erroneous conclusion that plan violated statute, summary judgment and final judgment are reversed — Further, trial court did not consider substance of medical expert’s affidavit, which specifically outlined why TheraSphere treatment does not meet the requirements of the exception and stated that plaintiff was not diagnosed with type of cancer for which FDA had approved treatment with TheraSphere and that TheraSphere was not drug recognized for treatment of plaintiff’s diagnosed condition; two of the articles on which plaintiff relied address only the treatment of a type of cancer other than that with which plaintiff was diagnosed — Remand for further proceedings

31 Fla. L. Weekly D571a

Insurance — Health — Denial of coverage under policy for organ transplant — Action against insurer and agents by plaintiffs who initially purchased policy that provided coverage for organ transplants but subsequently purchased renewal policy that did not provide coverage for organ transplants after agent represented that the renewal policy provided the same coverage as provided by prior policies that had been issued to plaintiffs — Trial court erred in dismissing complaint primarily on basis of merger clause in application, which stated that agent was not authorized to change or modify insurance contract — Trial court erred in dismissing count for declaratory judgment where complaint contained sufficient allegations entitling plaintiff to declaration of her rights — Court erroneously treated motion to dismiss declaratory judgment action as motion on merits — Error to dismiss count for reformation of contract to include coverage for organ transplants where complaint sufficiently alleged mutual or unilateral mistake — Merger clause in application does not automatically bar plaintiff from seeking reformation of insurance contract — Error to dismiss count for promissory estoppel where complaint alleged that defendants promised plaintiffs that renewal policy would contain same coverage as previous policies, that plaintiffs relied to their detriment on this promise, and that as result of their reliance damages were incurred — Error to dismiss count for fraudulent misrepresentation — Merger clause in insurance application did not automatically defeat plaintiffs’ allegation of reliance because issue of whether plaintiffs reasonably relied on agent’s misrepresentations is issue of fact — Because complaint contains allegations connecting insurer with misrepresentations made by agent, court erroneously dismissed fraudulent misrepresentation count against insurer — Error to dismiss count for negligent misrepresentation — Error to dismiss count for negligent procurement of policy

31 Fla. L. Weekly S34a

Insurance — Jurisdiction — Foreign insurers — Unauthorized Insurers Process Law — Section 626.906(4), Florida Statutes (2005), of Florida’s Unauthorized Insurers Process Law, which specifies the acts that will subject unauthorized foreign insurers to the jurisdiction of Florida courts, is available only to Florida residents — Subsection (4) of UIPL, which uses language “transaction of insurance” is available only to Florida residents — Trial court erred in denying Russian marine insurer’s motion to quash service of process in action brought against it by Honduran insured

31 Fla. L. Weekly D1925a

Torts — Contracts — Insurance — Action by assignee of fire insurance policy against reinsurers who settled fire loss claim with insured, alleging negligence and breach of contract — Trial court properly entered summary judgment for defendant reinsurers where plaintiff failed to establish the existence of a common law or contractual duty on part of reinsurers to ascertain the existence of unknown assignees, failed to establish contractual privity with reinsurers, and failed to establish that reinsurers breached reinsurance agreement — There is no existing Florida case law which mandates that an insurer or reinsurer has a common law duty to ascertain whether assignees exist before settling an insurance claim — There is no evidence that reinsurers were aware of plaintiff’s existence — Because plaintiff failed to prove element of legal duty, it cannot establish prima facie case of negligence — Contractual privity did not exist between reinsurers and plaintiff, and reinsurers did not breach any terms of reinsurance agreement when they issued payment of settlement proceeds to insured

31 Fla. L. Weekly D192b

Insurance — Uninsured motorist — Coverage — Where employee who was driving vehicle owned by his corporate employer was involved in accident with another vehicle on interstate highway, employee and driver of the other vehicle stopped on opposite sides of roadway, employee crossed road and stood next to other driver’s vehicle to offer assistance and exchange driver information, and employee was struck by a third vehicle driven by an uninsured motorist, employee was not entitled to coverage under his employer’s uninsured motorist policy — Policy extended coverage to employee only while he was occupying or getting into or out of a vehicle covered by policy, and employee was not occupying or getting into or out of vehicle when he was struck by uninsured vehicle — Because employee was not a first named insured, he was not entitled to UM benefits as a pedestrian under terms of policy — UM coverage exclusions for claimants who were not physically occupying the insured vehicle when injured are enforceable and do not violate public policy — Public policy is not offended by more limited coverage in situations involving Class II or additional insureds

31 Fla. L. Weekly S840b

Insurance — Underinsured motorist — Conflict of laws — Lex loci contractus — Residents of another state who execute an insurance contract in that state, and who reside in Florida for several months of the year, may not invoke Florida’s public policy exception to the rule of lex loci contractus to invalidate an exclusionary clause in the policy — Public policy exception to lex loci rule may only be invoked to protect permanent Florida residents — District court erroneously found that the public policy exception to the lex loci contractus rule is properly invoked when Florida bears a significant connection to the insurance coverage

31 Fla. L. Weekly D2784a

Insurance — Homeowners — Liability — Occurrence — Exclusions — Wrongful death action alleging that insured either intentionally or negligently shot and killed decedent — Where policy excluded bodily injury resulting from insured’s intentional conduct only if insured either expected or intended to cause such injury, and there was factual issue as to whether decedent’s injuries were intended or expected by insured when he fired gun in decedent’s direction, trial court erred in entering summary judgment finding that insurer has no duty to defend or indemnify insured

31 Fla. L. Weekly D345a

Insurance — Homeowners — Liability — Exclusions — Bodily injury arising out of rental of premises — Where insured property owner rented out the premises only one time for a period of two years as part of an effort to sell the property, the rental was not an occasional rental — Exception to rental property exclusion in the case of an occasional rental was not applicable, and policy did not provide coverage for injury to son of renters of property