2008

33 Fla. L. Weekly D1237a

Administrative law — Licensing — Office of Insurance Regulation abused discretion in denying application for approval of health flex plan on ground that applicant’s owner had been named in a civil suit brought by the United States government alleging that he had committed fraud in relation to the practice of medicine — Where applicant presented competent substantial evidence that it was entitled to administer a health flex plan, and there was no evidence regarding the truth or falsity of the allegations in the civil suit, it was improper to deny the application on the basis of a suspicion of wrongdoing or untrustworthiness

33 Fla. L. Weekly D1040a

Insurance — Homeowners — Exclusions — Injury arising out of ownership, maintenance, use, loading or unloading of motor vehicle — Injury to tenant who drove insured’s automobile onto ramps on insured property’s driveway, positioned himself underneath automobile to change the oil, and was injured when concrete driveway collapsed, causing automobile to fall on tenant — Injury occurred because of defective driveway, and there was no causal connection between use and maintenance of the automobile and the injuries — Automobile was merely the instrumentality of the injuries, and maintenance of the automobile was coincidental — Error to enter summary judgment finding no coverage under policy

33 Fla. L. Weekly D1789a

Insurance — Homeowners — Exclusions — No error in finding as a matter of fact that water damage in insureds’ home fell within exclusion for “continuous or repeated leakage or seepage of water,” where leakage of water from a toilet supply line damaged the home and loss occurred over period of time

33 Fla. L. Weekly D1454a

Insurance — Underinsured motorist — Evidence — Impeachment — Trial court did not abuse its discretion in precluding insurer from impeaching insured with discrepancy between insured’s prior deposition testimony regarding amount she earned as a waitress and amount of income she reported for the same period on her tax returns where insured dropped lost wage claim on day of trial — Once wage loss claim was dropped, issue of income became a collateral matter, and impeachment on collateral matter is not permissible

33 Fla. L. Weekly D565a

Insurance — Personal injury protection — Discovery — Payout log

33 Fla. L. Weekly D1996a

Insurance — Professional liability — Excess insurance — Coverage — Punitive damages and attorneys’ fees awarded in wrongful death suit against insured — Primary policy’s definition of damages as “any compensatory amount which [the] insured is legally obligated to pay” was unambiguous and covered only compensatory damages — Accordingly, coverage for punitive damages and attorneys’ fees was excluded from excess policy, which applied only to damages covered by primary policy and was subject to same exclusions — Use of phrase “compensatory amount” as opposed to “compensatory damages” does not change result — Moreover, even if definition of “damages” contained in primary policy could be read to include punitive damages, primary policy’s exclusions precluded coverage because they specifically excluded coverage for “civil penalties or fines” levied against the insured, and courts have described punitive damages as “nothing more than civil fines determined by juries instead of judges” — Attorney’s fees are not covered because policies did not expressly provide coverage for attorneys’ fees awarded against insured in litigation, and Florida courts have held that attorneys’ fees are not damages — Error to enter summary judgment in favor of insured — On remand, insured may pursue its claim that it was entitled to coverage for punitive damages on theory of promissory estoppel because primary insurer’s agent had expressly represented to it that insurance policy did not have exclusion for punitive damages and that such representation induced insured to purchase policy — Although issue was raised below, it was not addressed by trial court and was not fully developed

33 Fla. L. Weekly D166a

Insurance — Personal injury protection — PIP payout log — Circuit court, acting in its appellate capacity, applied incorrect law by finding that section 627.736(6)(d), Florida Statutes (2003), requires an insurer to provide its PIP payout log to an insured or the insured’s assignee

33 Fla. L. Weekly D35b

Insurance — Personal injury protection — PIP payout log — Insurer was not required to provide PIP payout log to insured’s assignee — County court properly granted summary judgment for insurer in medical provider’s action seeking declaratory judgment that insurer improperly failed to respond to provider’s pre-suit request that insurer provide a payout log — Circuit court departed from essential requirements of law in reversing county court’s entry of summary judgment in favor of insurer

33 Fla. L. Weekly D283b

Civil procedure — Discovery — Privilege — Work product — Insured’s breach of contract action against insurer — Appellate court unable to tell from record whether trial court departed from essential requirements in ordering insurer to produce certain documents, including reports written by and communicated among insurance adjusters prior to determination of coverage and extent of damages, despite insurer’s claim of work product privilege — Trial court did not conduct in camera inspection, and no copy of privilege log, if prepared and filed below, was made part of appellate record — Remand for further proceedings at which trial court shall determine whether items ordered to be produced constitute work product, and if so, whether insured is entitled to discovery of them pursuant to rule 1.280 notwithstanding work product designation

33 Fla. L. Weekly D752a

Insurance — Personal injury protection — Discovery — Circuit court, acting in its appellate capacity, applied incorrect law when it found that section 627.736(6)(d), Florida Statutes (2003), requires an insurer to provide in presuit discovery its payout log to insured or insured’s assignee and that if assignee “is forced to file a lawsuit of an insurance company’s pre-litigation refusal to provide the log, a post-litigation production of the document is tantamount to a confession of judgment” — Statute does not provide for or address insured’s right to access documents prepared internally by the insurer, and an insurer’s PIP payout log is a document generated by the insurer, not a document the insurer obtained pursuant to subsection 627.736(6)