2008

NOT FINAL VERSION OF OPINION
Subsequent Changes at 33 Fla. L. Weekly D1822b

33 Fla. L. Weekly D1682a

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

33 Fla. L. Weekly D2297c

Insurance — Automobile — Damages sustained by automobile as result of accident — Appraisal

33 Fla. L. Weekly D1948a

Insurance — Disability — Denial of benefits — Application — Misrepresentations — Error to grant summary judgment for insurer based upon finding that insured misrepresented a material fact on her insurance application by failing to disclose any recommended medical procedures, although a doctor had recommended that she undergo a hysterectomy at some point in time prior to her application — Summary judgment should not have been granted where insurer’s counsel conceded an ambiguity in application and factual dispute appears to exist regarding whether insured had pending recommendation for hysterectomy at time she applied for disability policy

NOT FINAL VERSION OF OPINION
Subsequent Changes at 34 Fla. L. Weekly D74a

33 Fla. L. Weekly D2828a

Insurance — Appeals — Final judgment — Where insured sued homeowners insurer for breach of contract and insurer demanded appraisal, order confirming final appraisal award was not a final judgment where order did not contain language of finality disposing of breach of contract action

33 Fla. L. Weekly D708a
Insurance — Uninsured motorist — First-party bad faith claim against insurer — Premature action — Discovery — Trial court departed from essential requirements of law in denying insurer’s motion to dismiss bad faith complaint as premature where there had not been a final determination of liability and damages in an underlying coverage claim — Insurer’s presuit settlement offer did not constitute a legally sufficient determination of damages — Because insurer cannot establish that it will suffer irreparable harm as the result of denial of its motion to dismiss, appellate court does not have certiorari jurisdiction to review the order denying motion to dismiss — Trial court’s order requiring insurer to produce claim file and underwriting file where issues of liability and damages had not been determined constituted a departure from essential requirements of law resulting in irreparable harm — Discovery order quashed

33 Fla. L. Weekly D1790b
988 So. 2d 96

Insurance — Aircraft liability — Bad faith — Bad faith claim and bad faith discovery were premature where there had not been a determination of damages under the insurance contract — Decision holding that bad faith claim requires an allegation that there has been a determination of damages is applicable to both third-party and first-party bad faith claims — Orders denying motions to dismiss bad faith claims and order denying motion for protective order are quashed

33 Fla. L. Weekly D1343c

Administrative law — Department of Financial Services — Insurance — Licensing — Suspension — Sale of ancillary insurance products without obtaining customers’ informed consent, a practice known as “sliding” — No error in administrative law judge’s findings that department did not prove by clear and convincing evidence that licensee had demonstrated lack of fitness or trustworthiness to engage in business of insurance pursuant to section 626.611(7) or had engaged in fraudulent or dishonest practices pursuant to section 626.611(9) — No error in finding that department had sufficiently proven sliding — Discussion of interpretation of term “informed consent” in context of statute prohibiting sliding — Sliding statute is not unconstitutionally vague as applied to licensee in this case — Court rejects interpretation of “informed consent” which would require, in all circumstances, that insurance agents provide an oral assurance to customers that ancillary products are optional — However, ALJ’s findings demonstrate that licensee was guilty of sliding not because she failed to utter certain words or because written materials were unclear, but because licensee took no steps to ensure that customers understood the materials, and this finding is supported by particular facts of instant case — Department improperly substituted its judgment for that of fact-finder when it rejected ALJ’s finding that department failed to prove violation of section 626.611 on ground that ALJ had failed to comply with essential requirements of law because sliding is per se a violation of section 626.611(7) — Statutory distinction between penalties for violations of sliding statute and for violations of section 626.611(7) indicates that Legislature recognized that some instances of sliding would not rise to level of a demonstration of unfitness or untrustworthiness — Court notes that ALJ found that licensee failed to “effectively inform” customers regarding ancillary products, but did not find that licensee had intentionally engaged in sliding — Because 12-month suspension imposed by department was predicated, in part, on violations that did not occur, department must reconsider appropriate penalty on remand

33 Fla. L. Weekly S425b

Insurance — Surplus-lines insurance — Consideration of questions certified by federal Court of Appeals in a case in which insured contended surplus-lines insurer was estopped from denying coverage because policy was delivered to insurance broker, not directly to insured — Neither section 626.922 nor section 627.421 has abrogated the common-law agency analysis that the Court has previously applied in insurance-broker tests, under which it is presumed that an insurance representative, serving as an independent insurance broker, acts on behalf of the insured for purposes of procuring insurance coverage — No language present in either of these statutes precludes a surplus-lines insurer or its direct surplus-lines agent from delivering a copy of coverage documents to the insured’s independent representative-broker instead of directly to the insured — Where a surplus-lines insurer or its direct surplus-lines agent delivers copies of an insurance policy to the representative of the insured, who is acting as an independent insurance broker in the transaction, the insured disputes that it received a copy of the policy, and the insured fails to present any evidence that its independent insurance representative-broker was actually acting as an agent of the insurer, the insured may not point to section 627.421 as mandating that the insurer was required to deliver a copy of the policy directly to the insured — Same result occurs under section 626.922: when surplus-lines insurer or its direct surplus-lines agent delivers copy of surplus-lines policy to insured’s independent representative-broker, that delivery constitutes delivery to the insured — Insurer is incorrect in its assertion that none of statutory provisions of chapter 627 apply to surplus-lines insurance because of exclusionary provisions of section 627.021(2) — Discussion of scope of section 627.021(2) — Attorney’s fees — Federal final summary judgment in favor of insureds was contrary to Florida law, and accordingly, insureds have not obtained a valid judgment or decree against insurer which would entitle them to award of attorney’s fees under 627.428 at this time