2007

32 Fla. L. Weekly D2039a

Insurance — Bad faith — Action by sub-subcontractor on public construction project against surety on payment bond alleging surety had acted in bad faith in its handling of sub-subcontractor’s claim against bond — Releases — Error to grant summary judgment in favor of defendant on ground that claim had been released under provisions of settlement agreement where broad release in favor of surety was limited in temporal scope to period ending on specified date, and bad faith claim did not accrue until after that date

32 Fla. L. Weekly D1280a
964 So. 2d 280NOT FINAL VERSION OF OPINION
Subsequent Changes at 32 Fla. L. Weekly D2326a

Insurance — Medical malpractice — Action by physician against insurer, alleging that defendant failed to exercise good faith in settling claim against physician — Error to dismiss action on ground that section 627.4147, Florida Statutes, which requires that any settlement offer by insurer be made in good faith and in the best interests of the insured, does not create a private cause of action against the insurer

32 Fla. L. Weekly D2326a
964 So. 2d 280

Insurance — Medical malpractice — Action by physician against insurer, alleging that defendant failed to exercise good faith in conducting presuit investigation and settling claim against physician — Trial court properly dismissed claim, finding that neither section 766.106 nor section 627.4147, upon which physician relied in making his claim, created a private cause of action against insurer — Section 627.4147(a) requires malpractice insurance policies to grant insurer the sole authority to settle a claim where settlement is within policy limits, but requires that such settlement be made in the best interest of the insured — Requiring that any settlement be in best interest of insured means the interest of insured’s rights under policy, not some collateral effect unconnected with claim

32 Fla. L. Weekly D1787a

Venue — Insurance — Forum selection clause — Insured’s action against insurer alleging wrongful failure to defend — Choice of law and forum selection clause contained in policy insuring plaintiff’s gas station, which policy included coverage for defense costs incurred in administrative proceedings seeking to impose clean-up costs to insured due to underground pollution occurring at the gas station, was mandatory and must be enforced unless shown to be unreasonable or unjust — Three-pronged test requires that chosen forum not be result of unequal bargaining power by one of parties, that enforcement of agreement not contravene strong public policy enunciated by statute or judicial fiat in the forum where litigation is required to be pursued or in the excluded forum, and that clause not transfer essentially local dispute into foreign forum — Court rejects plaintiff’s contention that enforcement of mandatory forum selection clause is unreasonable and unjust because it violates Florida’s interest in environmental protection and insurance regulation — Legislature has determined that Office of Insurance Regulation must review and approve insurance policies drafted by companies doing business in Florida, and policy at issue, including forum selection clause, was reviewed and approved by that agency — Constitutional requirement of separation powers precludes court from directing legislative branch to adopt certain policy statements

32 Fla. L. Weekly D1797b

Insurance — Trial court departed from essential requirements of law by allowing insureds to concurrently pursue first party breach of insurance contract claim and bad faith claim against insurer — Under Florida law, it is inappropriate to litigate bad faith claim against insurer until underlying coverage dispute is resolved — Error to deny insurer’s motion to dismiss without prejudice as to bad faith/unfair settlement practices claim

32 Fla. L. Weekly D380a

Insurance — Uninsured motorist — Bad faith — Trial court departed from essential requirements of law in denying insurer’s motion to dismiss statutory claim for bad faith under sections 624.155 and 626.9541 where extent of damages has not been determined — Insurer will suffer irreparable harm, which includes discovery of accident file, if it is forced to defend against both UM claim and bad faith claim simultaneously — Remand with instructions to dismiss or abate bad faith claim until UM claim is resolved

32 Fla. L. Weekly D1791e
969 So. 2d 393
Insurance — Homeowners — Homeowners whose home was damaged by fire alleging insurer breached insurance contract by excluding depreciation and contractors’ overhead and profit from its initial actual cash value payments and also alleging that withholding of payment for these items required insureds to retain counsel — Circuit court acting in its appellate capacity departed from essential requirements of law by affirming county court order granting summary judgment in favor of insureds on ground that insurer’s payment of certain funds subsequent to date suit was filed constituted a confession of judgment — Confession of judgment doctrine does not apply in this case — Prior to suit, insurer paid benefits to which plaintiffs were entitled under the policy and was abiding by its obligations under the loss settlement provision when it withheld final payment for replacement costs until insureds proved that they had performed act necessary under policy terms to entitle them to final payment — Circuit court’s error in affirming summary judgment resulted in miscarriage of justice because order awarded attorney’s fees to insureds for bringing a premature suit against insurer, which was complying with its policy obligations — Applying confession of judgment doctrine under circumstances would undermine statute’s purpose by simultaneously rewarding unnecessary litigation and discouraging insurers’ prompt compliance with their obligations

32 Fla. L. Weekly D1187a

Insurance — Bad faith failure to settle — Third party’s action against insurer claiming insurer acted in bad faith in failing to settle her claim against insured — Discovery — Attorney-client privilege — Trial court departed from essential requirements of law to the extent that it ordered insurer to produce documents without adequate consideration of attorney-client privilege possessed by either the insurer or its insured — Communications between insurer and insurer’s personal counsel regarding third party’s wrongful death suit against its insured are clearly protected by attorney-client privilege — Moreover, although plaintiff in original tort action against insured may “stand in the shoes” of the insured for the purposes of standing to bring a bad faith action, that position does not permit her access to otherwise privileged communications between the insured and his counsel in the wrongful death action, at least in the absence of a waiver of privilege by the insured or his written assignment of the bad faith claim — A person does not waive or otherwise lose attorney-client privilege merely because a third party is authorized to file lawsuit against the person’s insurance company — Confidential communications between the insured, the insurer, and any counsel representing them regarding matter of common interest are protected by attorney-client privilege from discovery by third parties — On remand, court must apply section 90.502 and case law interpreting it to determine whether documents insurer seeks to protect from disclosure are indeed ones protected by attorney-client privilege

32 Fla. L. Weekly D1514a

Insurance — Automobile liability — Discovery — Trial court departed from essential requirements of law in ordering insurer to produce documents relating to its claims handling practices, even though the underlying coverage case has not been resolved and no bad faith case is pending — No merit to claim that insurer opened door to such discovery by asserting defense of settlement

32 Fla. L. Weekly D262a

Insurance — Automobile liability — Excess liability — Coverage — Where first insurer’s policy provided that if insured obtained other insurance, insurance under first policy would terminate on effective date of other insurance, and insured obtained policy from second insurer that was effective on day before he was involved in accident, first policy provided no coverage for liability resulting from accident — Trial court erred in determining that first insurer is liable for pro rata share of settlement paid by second insurer