2009

34 Fla. L. Weekly D1398a
11 So. 3d 1012

Insurance — Uninsured motorist — Circuit court did not err in finding that claimant, who had received personal injury protection benefits under his employer’s policy until that coverage was exhausted, was obligated under the policy to submit to an examination under oath and to produce medical records , which were requested by insurer in order to investigate its potential liability under uninsured motorist provisions of the policy, even though claimant had not made a written claim under UM portion of policy — No error in finding that policy permitted insurer to reserve its right to later deny coverage — Record does not establish that insurer failed to abide by reasonableness provisions set forth in its policy or that it engaged in unfair claim settlement practices

34 Fla. L. Weekly D2588a
23 So. 3d 237

Insurance — Appeals — Uninsured motorist — Where plaintiff was injured in single vehicle accident while riding as passenger in insured vehicle which was being operated by insured, and plaintiff had received from insurer the full policy limit under the liability provisions of policy, plaintiff may not obtain further recovery under uninsured motorist endorsement and existing pleadings — Insurer is not entitled to writ of certiorari quashing trial court order denying motion for judgment on pleadings because insurer has not established irreparable harm — Prospect that insurer may be put to expense and inconvenience of a trial does not establish irreparable harm — Order is not appealable as a judgment determining the existence or nonexistence of insurance coverage because claim was asserted only against the insurer

34 Fla. L. Weekly D1023a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 34 Fla. L. Weekly D1278a

Insurance — Uninsured motorist — Discovery — Order compelling production of insurer’s claim file constituted departure from essential requirements of law where extent of damages incurred by insured as result of underlying accident had not been fully determined, and bad faith claim had not fully accrued — Bad faith claim is premature where there has been no determination of damages claimed by insured — Offer and acceptance of policy limits under uninsured motorist policy did not determine the amount of damages that must be established as a condition precedent to litigating the potential bad faith claim

34 Fla. L. Weekly D1326c
14 So. 3d 1230

Insurance — Uninsured motorist — Error to grant new trial based solely on insured’s argument that previously undisclosed testimony of insurer’s medical expert unfairly surprised and prejudiced insured and confused the jury — Trial court erred in failing to consider factors set forth by supreme court in Binger v. King Pest Control in determining whether undisclosed testimony should be excluded as prejudicial to opposing party — There was no substantial change between expert’s trial testimony and the opinion contained in his report, which was that there was no evidence of impairment, there was no evidence to substantiate insured’s claims, and there were inconsistencies in insured’s medical records as to whether she began experiencing pain the day after the accident or immediately after the accident — Expert’s testimony did not violate order in limine limiting expert’s testimony to matters within scope of his report — Medical expert’s testimony is not limited to exact wording of expert’s written report — Attorney’s fees — Offer of judgment made by insurer was not so vague that it could be construed as requiring insured to relinquish her right to bring suit for future causes of action unrelated to the subject matter of the instant case — Remand for reinstatement of jury verdict and consideration of insurer’s motion for lower court attorney’s fees — Motion for appellate attorney’s fees provisionally granted, with directions to trial court to determine amount

34 Fla. L. Weekly D386a
3 So. 3d 421

Attorney’s fees — Insurance — Uninsured motorist — No error in awarding attorney’s fees to insured where UM provisions of policy included arbitration clause which provided that, unless both parties agreed otherwise, arbitration would occur in the county in which the insured “lives,” insured requested that arbitration take place in Palm Beach County, insurer insisted that arbitration must take place in New Hampshire, and trial court found there was no basis for insurer’s position — Although insurer did not deny coverage per se, by maintaining that arbitration had to take place in New Hampshire, it forced insured to engage in unnecessary litigation in face of insured’s insistence that he lived in Palm Beach County

34 Fla. L. Weekly D1753a
16 So. 3d 979

NOT FINAL VERSION OF OPINION
Subsequent Changes at 34 Fla. L. Weekly D1799a

Insurance — Breach of contract between insurance agency and insurance company — Agency breached contract with insurance company when it had company issue a policy excluding uninsured motorist coverage although agency had no written waiver of UM coverage from applicant and purportedly knew that applicant wanted UM coverage, and failed to notify company that applicant had not waived UM coverage until after a claim for UM benefits had been made against policy — Summary judgment on breach of contract claim is improper where issue remains as to whether insurance company sustained any injury as consequence of breach — If the insured wanted UM coverage, then insurer suffered no harm flowing from agency’s failure to either secure a UM waiver or to advise insurer that it had no UM waiver — If insured did not want UM coverage or decided after learning of its cost not to take it, then insurer was injured because of agency’s failure to secure a UM waiver from insured

34 Fla. L. Weekly D1406a
32 So. 3d 68

Contracts — Real property sale — Action against seller and title insurance company by buyers who purchased property which was encumbered by a county maintenance easement which prevented buyers from building a residence on the property — Error to grant summary judgment in favor of title insurance company on ground that buyers failed to obtain a survey of the property, and title insurance policy contained an exception for matters which would be disclosed by an accurate survey — The accurate survey exception does not apply where the easement was of public record — Error to grant summary judgment for seller on claim that seller breached sales contract by failing to deliver clear title on ground that sales contract merged into seller’s warranty deed, which made an exception for recorded easements — There was an inherent conflict within deed where deed stated that “land is free of all encumbrances, except taxes accruing subsequent to December 31, 2004,” but also stated that conveyance was subject to easements of record — This conflict converted the bargained-for statutory warranty deed described in the sales contract into a nullity

34 Fla. L. Weekly D412b
18 So. 3d 1099

Insurance — Uninsured motorist — Subrogation — Limitation of actions — Four-year statute of limitations applies to claims for equitable or legal subrogation — Where UM insurer, in order to protect itself from claims, paid a debt in full to its insured which in equity should have been paid by defendant and obtained a release for defendant from its insured, insurer’s claim was one for equitable subrogation — Error to grant motion to dismiss where complaint seeking reimbursement from defendant was filed within four years of paying claim

34 Fla. L. Weekly D859a
8 So. 3d 1213

Insurance — Reinsurance — Error to dismiss with prejudice plaintiff’s complaint for reinsurance benefits based on statute prohibiting suits by unauthorized insurers where lawsuit did not arise out of an unauthorized insurance transaction by plaintiff — Where plaintiff, a foreign corporation, insured a Florida corporation and consequently purchased reinsurance from defendants, section 626.903 did not prohibit plaintiff from suing defendants when they refused to pay reinsurance benefits to plaintiff, even if plaintiff was an unauthorized insurer of Florida corporation

34 Fla. L. Weekly D733a
15 So. 3d 8

Insurance — Premium finance companies — Class action alleging that premium finance company violated section 627.840(b), Florida Statutes, by charging customers more than one additional service charge of twenty dollars within twelve-month period — Because plaintiff failed to allege sufficiently a knowing violation of statute, claim is not an appropriate claim for class action — Trial court erred in certifying class action