2007

32 Fla. L. Weekly D460b

Insurance — Automobile liability — Coverage — Family members — Insurer was required to provide coverage for accident which occurred when insured’s unlicensed son, who had been riding as passenger in friend’s auto and who had been asked to drive when friend began feeling ill, struck moped and injured moped’s passenger — If objective of insurer is not to cover an underage, unlicensed family member, policy must state such an intention explicitly and plainly — Policy at issue granted coverage to all covered persons, and the express definition of covered person included any blood relative of the named insured who resided in the same household and who did not own a private auto — Nothing limited family coverage to only those family members having a valid driver’s license; and all the words used in forms and policy are against the insurer’s attempt to deny coverage — Although insurer argued that son was excluded under provision excluding liability coverage for any person “using” a vehicle without a reasonable belief that the person is entitled to do so, a person may “use” a vehicle without actually driving it — Meaning of this exclusion is more sensibly bound up with “using” a vehicle belonging to someone else while lacking probable reason to believe that one had consent to do so — Sworn testimony by father and by insurer’s officials to the effect that both parties to insurance contract intended that the policy would not cover son because he was unlicensed is irrelevant to construction of policy

32 Fla. L. Weekly D23a

Insurance — Automobile liability — Exclusions — Exclusion for bodily injury sustained by any member of the family of an insured residing in the same household as the insured did not apply to exclude injuries to insured’s sister who was temporarily residing with insured and who separately owned her own automobile and maintained insurance on that automobile — Policy defines a “family member” as “a person related to you by blood, marriage or adoption who is a resident of your household,” “provided said family member does not own a private passenger automobile,” and injured sister owned her own automobile — It is clear from plain meaning of words in policy that “family member” is the same thing as “member of the family” — Declaratory judgment — In bringing declaratory judgment action to determine its obligation to provide coverage under policy, insurer failed to join an indispensable party when it brought action against policy holder’s husband but failed to join policy holder

32 Fla. L. Weekly D449c

Insurance — Automobile liability — Other insurance — Bad faith — Where driver of vehicle which hit pedestrian was covered by two policies, one of which contained a “pro rata” other insurance clause, and the other of which contained an “excess insurance” other insurance clause, effect is properly given to the “excess insurance” clause — Where insurer whose policy contained “pro rata” other insurance clause defended action against insured, that insurer owed a duty of good faith to the excess carrier — In excess carrier’s action against primary carrier, alleging bad faith in the defense of insured, trial court erred in entering summary judgment for primary carrier on ground that primary carrier did not owe excess carrier a duty of good faith

32 Fla. L. Weekly D219a

Insurance — Automobile liability — Nonjoinder statute — Plaintiff’s action against liability insurer for breach of alleged agreement to repair plaintiff’s automobile was properly dismissed for noncompliance with nonjoinder statute where plaintiff had not obtained a settlement or judgment against insured — Presuit undertaking by automobile insurance carrier with third party for repair of property damage and payment of incidental costs caused by negligence of carrier’s insured is not sufficient to satisfy conditions precedent of nonjoinder statute or to render statute inapplicable — Presuit undertaking or agreement with insurer does not qualify as a settlement within meaning of nonjoinder statute because it does not occur within course of pending litigation in which insured is already a party — Insurer’s agreement to repair plaintiff’s vehicle did not create a new and independent obligation

32 Fla. L. Weekly D48a

Insurance — Automobile — Section 319.30, Florida Statutes (2004), is inapplicable where vehicle is not a “total loss” as defined in statute — Where there was no agreement between insurance company and vehicle owner to replace vehicle with one of like kind and quality, vehicle was not a total loss as defined in statute

32 Fla. L. Weekly D1390a

Civil procedure — Dismissal — Error to dismiss with prejudice premium finance companies’ first amended complaint seeking class action status to recover interest on unearned premium refunds allegedly owed to them by insurance company — Although order of dismissal is silent as to reason case was dismissed, defendants’ motion to dismiss was based in part on plaintiffs’ failure to attach insurance policies as required by rule 1.130 — Dismissal with prejudice was improper and premature where plaintiffs alleged that the subject insurance policies were not in their possession but would be produced through discovery — Reversed and remanded

32 Fla. L. Weekly D2353a
Insurance — Automobile — Exclusions — Intentional acts — Appeal by husband and wife co-insureds from final declaratory judgment in favor of insurer holding that insureds’ claims arising from incident in which wife crashed husband’s car into wall of their family-operated car wash were excluded from coverage under automobile policy because their loss was result of an intentional act of wife — Insured husband who filed a claim under collision provision for damage to his car is not excluded from coverage under provision excluding from coverage “any insured who” intentionally causes bodily injury or property damage, because policy language unambiguously restricts the exclusion to the “guilty” insured — Clause excludes a particular insured, not a particular loss, and policy identifies the excluded insured as the insured “who intentionally causes” a loss — Policy language plainly does not take away coverage of an innocent co-insured who did not intentionally cause property damage — Phrase “any insured” does not always equate to joint coverage regardless of context in which it is used

32 Fla. L. Weekly D2113a

Insurance — Automobile — Cancellation of policy — Return of unearned premium — Interest — Insurer required by statute to refund unearned premiums to premium financers within thirty days is liable for interest where the premiums are not refunded in thirty days — Interest is due on late refunds to premium financers based on assignments to premium financers from insureds, which give premium financers same right as insureds to receive interest under Section 627.7283, and based on common law right to recover interest, where premium has not been refunded within statutory grace period

32 Fla. L. Weekly D359b

Insurance — Uninsured motorist — Attorney’s fees — Contingency risk multiplier — Although insured who prevailed in breach of contract action against insurer was entitled to award of attorney’s fees under offer of judgment statute, insured was not entitled to contingency risk multiplier of fees under section 624.155, Florida Statutes, where insured did not bring a bad faith action against insurer under section 624.155 — Amended complaint asserting bad faith action against insurer was a legal nullity where insured never received leave of court to amend complaint

32 Fla. L. Weekly D2701a

Attorney’s fees — Proposal for settlement — Ambiguities — Insurance — Uninsured motorist — Trial court correctly struck proposal for settlement served on plaintiff’s uninsured motorist insurer on ground that proposal was ambiguous — Proposal contained conflicting provisions in that one paragraph stated proposal was meant to resolve all claims against defendant and one paragraph stated that proposal was for “full settlement of the claims raised in the suit” against defendant — Further, proposal was unclear whether it addressed bad faith claim that had been noticed under civil remedies statute — Ambiguity in proposal was patent