2008

33 Fla. L. Weekly D1287b

Administrative law — Office of Insurance Regulation — OIR had authority to issue immediate final order which suspended insurer’s Certificates of Authority to transact new business in Florida until insurer produced documents OIR previously subpoenaed in an investigation of company’s insurance practices — OIR was not required to pursue enforcement of its subpoenas in circuit court — Suspension of Certificates of Authority is one of OIR’s available enforcement options — IFO facially complied with requirements of section 120.60(6) — Detailed factual allegations of monetary loss to policy holders and beneficiaries and ongoing criminal activity by insurer were sufficient to demonstrate immediate danger to public health, safety or welfare — IFO was narrowly tailored to address harm — Insurer was accorded the procedural due process demanded by state and federal constitutions

NOT FINAL VERSION OF OPINION
Subsequent Changes at 33 Fla. L. Weekly D1287b
33 Fla. L. Weekly D931e
Administrative law — Office of Insurance Regulation — OIR had authority to issue immediate final order which suspended insurer’s Certificates of Authority to transact new business in Florida until insurer produced documents OIR previously subpoenaed in an investigation of company’s insurance practices — OIR was not required to pursue enforcement of its subpoenas in circuit court — Suspension of Certificates of Authority is one of OIR’s available enforcement options — IFO facially complied with requirements of section 120.60(6) — Detailed factual allegations of monetary loss to policy holders and beneficiaries and ongoing criminal activity by insurer were sufficient to demonstrate immediate danger to public health, safety or welfare — IFO was narrowly tailored to address harm — Insurer was accorded the procedural due process demanded by state and federal constitutions

33 Fla. L. Weekly D1433a

Insurance — Cancellation of policy — Notice — Insured’s action against insurer for breach of contract, alleging that insurer refused to pay claim for losses covered by policy — Error to enter summary judgment for insurer on ground that insurer cancelled policy for nonpayment of premium with effective date prior to date of accident in which insured suffered losses, where insurer offered no proof that cancellation documents were actually mailed to insured — Appellate attorney’s fees — Insured is entitled to award of appellate attorney’s fees pursuant to section 57.105, Florida Statutes, where insurer moved appellate court to relinquish jurisdiction to trial court so that insurer could request trial court to vacate summary judgment, appellate court relinquished jurisdiction but trial court denied motion to vacate, and after jurisdiction was returned to appellate court insurer continued to assert that summary judgment should be affirmed although it knew or should have known that its defense of trial court’s order was not supported by material facts

33 Fla. L. Weekly D2610b
998 So. 2d 1151

Insurance — Business liability — Exclusions — Rendering of professional services at podiatric practice — The act of positioning a patient’s foot to take an x-ray falls within policy provision excluding coverage for injuries due to the rendering of professional services — Act of positioning patient’s foot is encompassed within the term “x-ray services”

33 Fla. L. Weekly D1247a

Insurance — Group life — Lost policy — Policy issued as part of Military Airlift Command Agreement under which airline pilots who conducted flights to Vietnam for United States Government were provided death and disability coverage while they conducted these flights — Where insured airline pilot was paid disability benefits after he was diagnosed with coronary artery disease in 1968, beneficiary was entitled to death benefits when insured died in 1991 as consequence of coronary artery disease, although a copy of the insurance policy could not be located and the policy had been cancelled — Beneficiary seeking to prove coverage under a lost insurance policy need only do so by preponderance of evidence — Once beneficiary established coverage under Agreement, burden shifted to insurer to prove a coverage limitation such as a term informing insured that coverage does not continue indefinitely after policy’s cancellation — Insurer failed to prove that coverage was terminated by cancellation of policy — Beneficiary was entitled to death benefits for death resulting from illness insured incurred during the time he was working for Military Airlift Command Operation

33 Fla. L. Weekly D475b

Insurance — Liability under Florida Unauthorized Insurer Act of trade credit insurance broker who placed insured with insurer who was not authorized to offer, sell, or place insurance in Florida is limited to coverage within the provisions of the insurance contract — Broker was entitled to judgment as matter of law on insured’s claim of violation of Unauthorized Insurer Act where policy did not provide coverage for insured’s claims — There was no coverage where policy covered transactions with insured buyers conducted on a forty-five day term, but insured extended sixty days of credit — Further insured failed to comply with obligation to timely notify insurer of an insured buyer’s failure to pay — Doctrines of waiver and estoppel cannot be applied to alter coverage terms of policy

33 Fla. L. Weekly S770a

Torts — Insurance — Breach of fiduciary duty — Negligence — Assignment of claims — A settlement agreement between two parties that explicitly contains both an assignment of causes of action against a third party insurer and an immediate release of the insured on the same causes of action is valid, and allows the assignees to bring the assigned causes of action against the third party insurer — A claim for breach of fiduciary duty arising from the relationship between an insurance broker and the insured involving allegations of failure to provide insurance coverage was assignable, as it was analogous to a cause of action for bad faith — Because negligence claims against insurance brokers are assignable, and negligence claims and claims of breach of fiduciary duty are separate causes of action, U.S. District Court improperly dismissed assigned negligence claims against insurance broker on ground that only breach of fiduciary duty claim could be presented to jury because there was a fiduciary duty between insurance broker and insured

33 Fla. L. Weekly D2283a

Insurance — Personal injury protection — Bad faith — Although insured is entitled to recover bad faith damages from insurer, including those damages which are a reasonably foreseeable result of a specified statutory violation by the authorized insurer, jury is not free to set amount of economic damages reasonably resulting from the carrier’s bad faith conduct in absence of any evidence quantifying specific losses — Insurer was entitled to judgment in its favor on plaintiff’s claim for bad faith damages where plaintiff offered no evidence on which to justify any amount of economic damages resulting from carrier’s bad faith conduct

33 Fla. L. Weekly D2825a
996 So. 2d 942

Insurance — Automobile liability — Coverage — Son who was operating motor vehicle owned by passenger at time passenger was injured was not an “insured” for purposes of coverage under his mother’s automobile liability policy where policy provided liability coverage only for relatives who resided primarily with the named insured, and son was not residing primarily with mother on date of accident — Evidence established that son was no longer being supported by mother, that he did not maintain room or belongings in her house, and he was not free to come and go from her house; and that mother had thrown son out of the house more than a year before accident occurred, had given his room to another of her children, and had called the police when son tried to return — Insurer was not required to cover son until he established a new permanent residence or to prove that son had established a new residence

33 Fla. L. Weekly D2362c

Insurance — Commercial lines policy — Where endorsement amending liability coverage of policy provided that no coverage would apply to a truck driver who had not been approved by insurer, but also provided that, “Not withstanding the foregoing, we will pay up to $10,000 in property damage and no fault benefits as required by Florida law,” policy provided coverage for up to $10,000 in property damage and no fault benefits for an accident involving a driver who had not been approved by insurer — Trial court erred in finding that there was no coverage because insured failed to have its employee approved by insurer before allowing him to drive