2008

33 Fla. L. Weekly D1798a

Insurance — Personal injury protection — Attorney’s fees — Where circuit court sitting in appellate capacity affirmed county court judgment for plaintiff in action to recover PIP benefits, circuit court departed from essential requirements of law in denying plaintiff’s motion for appellate attorney’s fees

33 Fla. L. Weekly D2694a

Insurance — Homeowners — Hurricane damage — Attorney’s fees — Error to deny insured’s claim for attorney’s fees where insured filed suit after claims adjuster offered, and non-binding mediation confirmed, a net $65.00 for settlement of insured’s hurricane damage claim, insurer invoked binding arbitration clause of policy after suit was filed, and arbitration process resulted in an appraisal award of over $50,000, which insurer promptly paid — No error in rejecting insured’s claim for interest prior to date of payment

33 Fla. L. Weekly D2833a
999 So. 2d 684

Insurance — Homeowners — Attorney’s fees — Where insureds whose home was damaged by hurricane brought breach of contract action against insurer, and insurer requested appraisal and paid significant additional amounts to insureds, insureds are entitled to award of attorney’s fees under section 627.428 — Actual rendition of an order or decree is not an absolute prerequisite to insured’s entitlement to attorney’s fees where insurer voluntarily paid loss before judgment could be rendered — Actual cash value — Depreciation — Insurer could properly withhold portion of contractor’s overhead and profit as depreciation in determining actual cash value

33 Fla. L. Weekly D301a
979 So. 2d 964

Insurance — Insolvent insurers — Florida Insurance Guaranty Association — Where insured had sued her automobile insurer and entered into settlement agreement with insurer whereby insurer agreed to pay insured for her stolen automobile, as well as insured’s attorney’s fees and costs in an amount to be determined by the court, and insurer subsequently became insolvent, trial court properly granted motion to substitute FIGA as defendant in place of the insolvent insurer and to enforce settlement agreement, including agreement to pay attorney’s fees and costs — Attorney’s fees and costs payable under the pre-insolvency settlement agreement were a covered claim eligible for payment by FIGA — While FIGA is not responsible for further attorney’s fees and costs incurred by insured after the insolvency, it is not relieved of the obligation to pay insured’s attorney’s fees and costs incurred pre-insolvency for prevailing on a covered claim

33 Fla. L. Weekly D2649a

Insurance — Personal injury protection — Discovery — Trial court erred in finding that PIP insurer has duty to provide to assignee medical provider insurance information, including PIP payout sheet, name of insurer, name of each insured, limits of liability coverage, statement of any available policy or coverage defense, and copy of policy — Pre-suit disclosure to assignee medical provider is not required by statutes — Attorney’s fees — Where trial court ruled in insurer’s declaratory judgment action that assignee was entitled to pre-suit disclosure of medical information, and appellate court reversed, neither party is entitled to appellate attorney’s fees

33 Fla. L. Weekly D175b

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

33 Fla. L. Weekly D2049d

Insurance — Appellate attorney’s fees — Where appellate division of circuit court reversed county court judgment in favor of insured and remanded for further proceedings, appellate division erred by stating that insured will be entitled to attorney’s fees and costs if insured prevails upon remand — Appellate court may not award attorney’s fees to an insured unless insured prevails on appeal

33 Fla. L. Weekly D1779a

Insurance — Health — Assignment — Trial court erred in concluding that state’s health insurance plan contained anti-assignment clause prohibiting assignment of benefits to non-participating providers — Plan’s statement, “Benefits will be paid directly to you” falls far short of creating contractual bar to assignment — Trial court erred in dismissing with prejudice class action complaint against medical third-party administrator hired by state to process claims in accordance with the plan on ground that this entity did not have ultimate decisionmaking authority regarding payment of benefits — Dismissal was premature where plaintiff contended that administrator should be held accountable for its actions in knowingly paying benefits to the wrong recipients and not enough information has been developed about nature of administrator’s relationship to state and its role in interpreting the plan — Trial court erred in dismissing State of Florida as an improper party without allowing plaintiffs leave to amend complaint to name the proper state entities — Dismissal of administrator cannot be upheld based on plaintiff’s failure to exhaust administrative remedies relating to appeal of a denied claim because this case involved payment to the wrong payee, not an adverse coverage determination — Dismissal cannot be upheld based on sovereign immunity because suit is predicated on a contractual breach — Remand with directions to allow plaintiffs to amend complaint to name proper state agency and/or subdivision

33 Fla. L. Weekly D1117a

Insurance — Liability — Law of the case — Airline validly assigned to county its claims to coverage under policies for remediation of environmental contamination caused by airline in settlement agreement entered into as part of airline’s bankruptcy — Where, in prior appeal, judge’s concurring opinion stated that effect of airline’s bankruptcy settlement was to assign to county airline’s claims for environmental damage under its insurance policies, and dissenting opinion specifically agreed with concurring opinion on that issue, concurring opinion constituted law of the case on that issue — Although concurring opinion does not constitute law of the case, where that special concurring opinion, or an issue in that special concurring opinion, is joined by a majority of the court, it does constitute law of the case as to that specific issue

33 Fla. L. Weekly D1822b

Administrative law — Office of Insurance Regulation — Life insurance — Appeal from final order disapproving insurer’s application to include mandatory arbitration agreement within its life insurance contracts on ground that proposed arbitration agreement did not comply with pertinent Florida statutes and that arbitration agreement contained inconsistent or ambiguous clauses, or exceptions and conditions which deceptively affected the risk purported to be assumed in the general coverage of the contract — Although right to resolve any dispute through binding arbitration is established under provisions of the Federal Arbitration Act, under federal McCarran-Ferguson Act, the business of insurance is exclusive province of individual states — Accordingly, state laws enacted for purpose of regulating business of insurance do not yield to conflicting federal statutes unless federal statute itself specifically relates to the business of insurance — Federal Arbitration Act does not specifically relate to business of insurance — Section 624.155, which provides for a civil action against an insurer, with relevant procedural protections, is a statute regulating the business of insurance — Mandatory arbitration lacks procedural and constitutional protections of a civil action