2009

34 Fla. L. Weekly D1833b
16 So. 3d 1028

Insurance — Automobile — Medical expenses — Insurer’s denial of claim by named insured’s son for medical expenses coverage on ground that claimant was not a resident relative of the named insured at time of accident — Trial court erred in finding that policy definition of “relative” was ambiguous and that claimant was entitled to medical expenses coverage as matter of law — Policy definition of “relative” as “a relative of any degree by blood or marriage who usually makes his home in the same family unit, whether or not temporarily living elsewhere,” is not ambiguous — Where claimant lives in his own mobile home, and not in his parents’ residence, but has close ties of kinship with his parents and is financially supported by them to a significant degree, there is a factual issue as to whether claimant may qualify as a relative for purposes of medical expenses coverage

34 Fla. L. Weekly D1320a
15 So. 3d 701

Insurance — Automobile — Medical expenses coverage — Where endorsement to policy covering automobile which was purchased for plaintiff by party to whom plaintiff was not married, but with whom she was living, provided medical expense coverage to the named insured or any relative, and the named insured was the person who purchased the automobile, coverage was not provided to plaintiff for medical expenses she incurred as result of injuries suffered when she was in an accident while driving the automobile — Policy was not ambiguous as to whether plaintiff was entitled to medical payment coverage — Trial court erred in entering summary judgment for plaintiff, finding that she is entitled to medical expenses coverage — Remand to afford plaintiff opportunity to establish other theories supporting claim for medical expenses coverage

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 D274a
2 So. 3d 1050

Insurance — Personal injury protection — Attorney’s fees — Fees awarded to insured’s attorney for representation in PIP claim which was added shortly before initial action against tortfeasor and against insurer for uninsured motorist benefits was settled — Fee award was excessive — Late filed amendment to add PIP claim and request for attorney’s fees did not relate back to beginning of action — Date of amendment to add PIP claim was first date from which attorney’s fees relating to that claim could have been awarded — Counsel’s testimony regarding number of hours he expended on action from date complaint was filed will not support fee award for litigating PIP claim — Testimony of counsel and his expert about time expended on PIP claim amounts to little more than speculation

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 D2364b
25 So. 3d 584

Attorney’s fees — Insurance — Personal injury protection — Circuit court acting in its appellate capacity departed from essential requirements of law when it reversed trial judge’s order awarding a contingency fee multiplier because petitioner did not testify that she had difficulty securing counsel to represent her in the cause without a multiplier — Expert testimony that petitioner would have difficulty securing counsel without the opportunity for a multiplier supported imposition of multiplier — Circuit court failed to apply principle of law previously enunciated by district court, rather than that of a sister district court of appeal

34 Fla. L. Weekly D542a
7 So. 3d 583

Insurance — Personal injury protection — Attorney’s fees — Prevailing party — Appellate panel of circuit court departed from essential requirements of law in awarding attorney’s fees to insured where appellate panel reversed trial court’s summary judgment for insured, so that insured was not prevailing party on appeal

34 Fla. L. Weekly D1104a
13 So. 3d 1079

Attorney’s fees — Insurance — Homeowners — Under facts of case, insureds were entitled to recover prevailing party attorney’s fees from their insurer pursuant to section 627.428, even though they filed their civil complaint after insurer invoked its right to an appraisal — Under circumstances, absence of court order or judgment is not fatal to insureds’ claim — More than a year after loss, insurer was taking position that bulk of damage to insureds’ roof was not covered and indicating to insureds that insurer intended to take no further action and was closing its file; insureds invoked right to mediation under insurance contract; and when this failed to resolve dispute, insureds hired counsel and threatened suit, sending the insurer a draft complaint, stating a claim for breach of contract; and only at that point did insurer invoke right to appraisal, while asserting that it was retaining right to deny claim — Although trial court never entered judgment or order confirming appraisal award in insureds’ favor, it is undisputed that insurer paid claim, and Florida law squarely holds that payment after suit is filed operates as confession of judgment entitling insured to attorney’s fees

34 Fla. L. Weekly D1377d
14 So. 3d 1264
Health maintenance organizations — Appeal of dismissal of request for attorney’s fees in action against HMO seeking injunctive relief and attorney’s fees due to HMO’s refusal to provide coverage for certain medical treatment — Attorney’s fees — Appellate — Imposition of sanction of appellate attorneys’ fees pursuant to section 57.105 is appropriate where appeal of trial court’s dismissal of plaintiff’s request for attorney’s fees lacked any statutory support and plaintiff attempted to keep material facts from court — Each deficiency should have been obvious to party and her counsel at time that appeal was filed, and constitutes sufficient reason to impose sanction of appellate fees — Argument on appeal that trial court should have awarded fees under section 641.28, which provides for prevailing party fees and costs in suits to enforce terms and conditions of HMO contract, lacks legal and factual merit, since purpose of lawsuit was not to enforce terms of HMO contract — Plaintiff’s failure to acknowledge in her complaint HMO’s agreement to pay for cost of her medical treatment prior to filing of complaint is sanctionable conduct as it violates appellate counsel’s ethical obligation to present facts accurately and forthrightly — Attorney’s fees to be paid in equal amount by plaintiff and her attorney pursuant section 57.105(1)

34 Fla. L. Weekly D1840a
106 So. 3d 452

Insurance — Fidelity bond issued to bank to cover employee dishonesty — Claim to recover for losses sustained by bank as result of bad loans employee wrote for used car dealer referral program — Trial court did not err in allowing jury to determine the definition of “dishonesty” where that term was not defined in policy — Based on jury’s finding that employee’s 1988 act was not dishonest, insurer cannot avoid liability for employee’s fraudulent acts reported in 2003 — Trial court did not err in denying insurer’s motion for directed verdict on issue of termination of coverage or in instructing jury on termination of coverage — Attorney’s fees — Trial court did not err in denying a contingency fee multiplier on attorney’s fee awarded to bank where relevant market did not require a contingency fee multiplier in order for bank to obtain competent counsel