2008

34 Fla. L. Weekly D1166a
14 So. 3d 1100

Insurance — Personal injury protection — Appeals — Circuit court acting in its appellate capacity improperly granted medical provider’s motion to dismiss insurer’s appeal from county court judgment entered in favor of medical provider on ground that circuit court lacked jurisdiction because insurer had failed to timely appeal county court’s earlier order striking insurer’s pleadings and entering default judgment as sanction for insurance adjuster’s repeated failure to give requested deposition — There is no authority for non-final appeal from an order striking a defendant’s pleadings and entering a default under current version of rule 9.130(a)(3)(C), as amendment to rule resulted in removal of provision for appeals of orders determining liability in favor of a party seeking affirmative relief — Such orders are not appealable until final judgment — Even if order were appealable as an interlocutory appeal, insurer still had the right to wait to appeal the order after final judgment in a plenary appeal — Dismissal of appeal quashed — Remand to circuit court for further proceedings

33 Fla. L. Weekly D19a

Torts — Insurance — Uninsured motorist — Medical expert — In action against tortfeasor and uninsured motorist insurer, it was improper for trial court to limit defendants’ choice of defense medical expert to the doctor who had examined plaintiff and evaluated his claim for personal injury protection benefits under policy

33 Fla. L. Weekly D2665b

Insurance — Uninsured motorist — Limitation of actions — Error to deny claim for uninsured motorist benefits as barred by statute of limitations where claim was a compulsory counterclaim — Where plaintiff and defendant were both insured under policy, plaintiff sued defendant to recover for injuries she had received while a passenger in vehicle driven by defendant, and insurer filed complaint requesting declaration that liability portion of policy afforded defendant no coverage and did not obligate insurer to defend defendant, plaintiff’s claim that coverage was afforded to her under uninsured motorist portion of policy was a compulsory counterclaim

33 Fla. L. Weekly D1691b

Insurance — Uninsured motorist — Evidence — Trial court abused its discretion by excluding testimony of insured’s accident reconstruction expert as sanction for non-compliance with court’s discovery orders — Circumstances of discovery violations were not sufficiently compelling to justify striking of insured’s most important witnesses, and insurer did not stand to suffer any prejudice — As prescribed by court order, witness provided his files to plaintiff’s counsel within 15 days and scheduled his deposition within 30 days — Although expert did not create report within allotted 15 days, court struck him as witness before his scheduled deposition — Expert’s report was created within 3 days of his being struck by the court and were it not for trial court’s order striking expert as a witness, defense counsel would have obtained expert’s final report and deposed him months before trial — New trial required

33 Fla. L. Weekly D2782a
995 So. 2d 1135

Insurance — Underinsured motorist — Damages — Verdict form — Verdict form was improper where jury was not required to determine future economic damages and future non-economic damages unless they determined that insured had sustained permanent injury — Although future economic damages may be awarded even where jury does not find any permanent injury, erroneous verdict form was harmless where there was no evidence of future medical expenses reasonably certain to occur, and award of past damages was minimal — Error to grant insured new trial on basis of erroneous verdict form

33 Fla. L. Weekly D958e

Insurance — Uninsured motorist — Coverage — Bodily injury sustained while occupying or getting into or out of automobile — Where driver of tow truck had parked tow truck on median of highway, took towing cable off tow truck, pulled cable toward disabled vehicle, dropped cable, and walked down into median twenty to twenty-five feet from cable and twenty to twenty-five feet from tow truck at time he was hit and killed by uninsured vehicle, driver was not occupying the insured tow truck at time of the accident — Error to enter summary judgment for driver’s estate on claim for entitlement to uninsured motorist benefits

33 Fla. L. Weekly D1447a

Insurance — Uninsured motorist — Trial court properly entered summary judgment in favor of insurer in insured’s action seeking to recover under uninsured/underinsured motorist provision of policy, where insured settled her case with tortfeasor and released tortfeasor without first notifying insurer and obtaining insurer’s consent, contrary to section 627.727(6)(a), Florida Statutes — Insured’s failure to comply with statutory provision created presumption of prejudice to insurer — Where insured first submitted her affidavit to rebut presumption of prejudice to insurer when she filed motion for rehearing, and failed to show any compelling reasons or exigent circumstances to excuse affidavit’s tardy filing, trial court did not abuse discretion in denying motion for rehearing

33 Fla. L. Weekly D241a

Civil procedure — Class actions — Competing class action suits against title insurance companies which merged during pendency of litigation — Trial court erred in certifying settlement class, approving settlement agreement, and approving award of attorney’s fees and costs in one action over objection of plaintiffs in competing actions — Where plaintiff and defendant entered into settlement agreement before plaintiff sought class certification, trial court was required to apply heightened scrutiny before approving either settlement or class certification — Where defendant prevented plaintiffs and their counsel in competing actions from becoming aware of and objecting to expansion of plaintiff’s class action lawsuit to the detriment of the plaintiffs in the competing actions, defendants in the actions are estopped from claiming that their merger renders the competing actions unsupportable — Because plaintiff expanded the class without notice to the expanded class and class counsel, settled the expanded class action before seeking certification of the class, and was to receive a payout far in excess of the class members, trial court erred in failing to apply heightened scrutiny, to make specific findings, and to articulate facts upon which it relied in certifying the class and accepting plaintiff as class representative — Error to approve class action settlement which was inadequate and unfair — Settlement notice failed to provide class members with essential information and was misleading

33 Fla. L. Weekly D2380b

Insurance — Summary judgment — Error to enter summary judgment for plaintiff insurer where defendant’s pro se “statement of defense” filed and served in response to plaintiff’s subrogation claim raised facially genuine and material issues of fact

33 Fla. L. Weekly D1993a

Contracts — Insurance — Subrogation — Breach of contract action by property insurer, as subrogee of its insured paving contractor whose plant was damaged during negligent installation of a stationary batch asphalt plant, against the manufacturer of the asphalt plant — Action was not barred by risk of loss provisions in contract between insured and defendant which related to losses during shipment, not losses arising from defendant’s negligent performance of contract services subsequent to shipment — Risk of loss provisions did not clearly express an intent to indemnify defendant against its own negligence — Action was not barred by warranty, disclaimer and release provisions in contract because these provisions pertain to product defects, not defendant’s performance of services — Interest — Court did not err in calculating prejudgment interest from date plaintiff insurer paid its insured’s claim rather than from the date insured’s claim became liquidated — Appellate attorney’s fees — Proposal for settlement — Plaintiff’s claim for appellate attorney’s fees is not precluded by defendant’s bankruptcy discharge and stipulation entered into by plaintiff, defendant, and defendant’s insurer, which stated that defendant’s bankruptcy discharge injunction did not prohibit plaintiff from pursuing action against defendant solely for purpose of recovering available insurance proceeds which cover the claim — Attorney’s fees are included within the meaning of “the claim”