2007

32 Fla. L. Weekly D1678a

Attorney’s fees — No error in denying insured’s request for attorney’s fees under section 627.428(1) for insured’s defense of declaratory action that resulted in finding of no coverage and entry of summary judgment in favor of insurer — There were two requests for relief between insured and insurer, the first of which was insurer’s petition for declaratory judgment on coverage issue, and the second of which was insured’s counter-petition seeking declaration that insurer owed defense of wrongful death action against insured and that general liability and umbrella policies provided coverage — On duty to defend, insurer conceded the issue from the start, providing a defense to insured under reservation of rights so that insured’s request for declaration on duty to defend was unnecessary and could not serve as basis for attorney’s fees award — On coverage issue, insurer prevailed — Trial court ultimately ruled in wrongful death action that plaintiff’s wrongful death claim against insured was barred by workers’ compensation statute, and trial court granted summary judgment for insurer on coverage issue based upon workers’ compensation exclusion

32 Fla. L. Weekly D2672a

Insurance — Attorney’s fees — No error in awarding attorney’s fees and costs to insured under section 627.428, Florida Statutes (2003), where insured submitted proof of loss and insurer made initial payments, insured filed suit for failure to pay amounts she believed were owed and insurer contested the claim, and insurer ultimately invoked appraisal process and later tendered additional payments pursuant to results of appraisal — Court cannot conclude that insured filed her breach of contract lawsuit for improper purpose of generating attorney’s fees

32 Fla. L. Weekly D548b
948 So. 2d 1027

Insurance — Personal injury protection — Attorney’s fees — Circuit court departed from essential requirements of law by affirming county court’s award of fees to insured at rate of $400 per hour, with a 2.5 multiplier, in insured’s action against insurer to recover for unpaid chiropractic treatments — Where there was nothing to suggest that insured had any difficulty obtaining competent counsel to pursue his PIP claim, application of multiplier, resulting in a fee of $1,000 an hour for 193.75 hours, was a manifest injustice

32 Fla. L. Weekly D526a
Insurance — Contribution between insurers — Where insured was covered by business auto policy issued by one insurer and specified medical professional and specified general liability policy issued by another insurer, and parties entered into settlement agreement for settlement of claim against insured, with parties signing general release, hold harmless and indemnity agreement in which they agreed not to litigate against each other, one insurer was not entitled to recover from the other insurer attorney’s fees incurred in defending insured — Insurer waived its right to seek contribution for attorney’s fees from other insurer when it entered into release agreement without preserving its right to do so

32 Fla. L. Weekly D2766c

Insurance — Attorney’s fees — Costs — Where homeowners insurer petitioned trial court for appointment of an umpire after appraisers could not agree on an umpire, and insured’s response agreed that an umpire should be appointed, insured was not entitled to attorney’s fees pursuant to section 627.428 when insurer filed a voluntary dismissal after court entered order appointing an umpire — Trial court’s order appointing umpire did not amount to an order against insurer and in favor of insured for purposes of section 627.428(1) — Once insurer filed its voluntary dismissal, insured was entitled to costs under rule 1.420(d)

NOT FINAL VERSION OF OPINION
Subsequent Changes at 33 Fla. L. Weekly D175b

32 Fla. L. Weekly D2519a

Insurance — Uninsured motorist — Error to enter judgment for insured against insurer for amount in excess of policy limits where there was no allegation or showing of bad faith on part of insurer — Insurer did not waive or fail to preserve issue — Attorney’s fees — Insurer is entitled to appellate attorney’s fees pursuant to section 57.105 because insured’s counsel knew or should have known that his proposed final judgment was not supported by existing law when he presented it for entry to trial court, and his defense of the amount of the final judgment on appeal was without merit

32 Fla. L. Weekly D7a

Insurance — Personal injury protection — Examination under oath — Policy at issue did not provide for examination under oath for purposes of PIP claims — Although liability provision of policy required examinations under oath as part of duties of a “person seeking coverage,” that section is replaced by a different section in the PIP coverage — Pursuant to that section, “Duties After an Accident or Loss,” PIP claimant must promptly give insurer written proof of claim, under oath if requested, but no examination under oath is required by the clear and unambiguous terms of policy

32 Fla. L. Weekly D760a

Insurance — Health — Assignment — Anti-assignment provision of benefits clause in health insurance policy was enforceable, unambiguous, and in accord with public policy — Policy clearly and prominently stated that it would not honor assignments of benefits to non-participating providers and that all benefits for covered services rendered by non-participating providers would “always” be paid “directly to the Insured” — No Florida case or statute requires specific verbal formula for ban on assignments to be effective, and cases cited by provider as precedent to support challenge to anti-assignment provision turn on scope of anti-assignment clause, not on whether language of clause was precise enough to be effective — Anti-assignment clauses prohibiting insured’s assignments to out-of-network medical providers are in accord with public interest in limiting health care costs

32 Fla. L. Weekly D537a

Insurance — Homeowners — Appraisal — No abuse of discretion in denying rule 1.540 motions seeking to vacate order confirming appraisal award, to vacate appraisal award and compel reappraisal, and to disqualify homeowner’s appraiser because of his bias against Citizens Property Insurance Corporation — Insurer’s argument was based upon erroneous premise that appraiser’s unquestionable personal bias against insurer rendered him incompetent to serve as appraiser in the present case — Language of policy required only that parties select a “competent” appraiser, and record clearly established that homeowner’s appraiser was competent by virtue of his unquestionable prior experience and/or expertise — Competence is not synonymous with neutrality or independence and, in fact, policy language required only that umpire selected in the event that appraisers could not agree be both competent and independent

32 Fla. L. Weekly D2679f
969 So. 2d 1133

Insurance — Homeowners — Appraisal — Where insured was compelled to file suit against insurer when insurer refused to pay what even its own adjusters determined to be the amount of insured’s loss due to hurricane damage, appraisal process resulted in award to insured of significantly more than adjuster had estimated, insurer continued to fail to pay full amount of insured’s loss, and insurer finally filed balance of appraisal award into escrow on day insurer’s motion for partial final judgment of dismissal was heard, appropriate course of action was for court to confirm appraisal award and enter final judgment thereon — Error to dismiss insured’s complaint with prejudice