2010

35 Fla. L. Weekly D888a
34 So. 3d 753

Insurance — Appraisal — Trial court did not abuse its discretion by allowing appraisal to go forward on a dual track basis, while preserving insurer’s rights to contest coverage as a matter of law

35 Fla. L. Weekly D497a
31 So. 3d 852

Torts — Insurance brokers — Negligent or intentional misrepresentation of facts material to risks assumed by insurance company — Insurance broker can be liable to an insurance company which suffers loss as a result of broker’s own fraud or negligence in providing information in the application material to the issuance of a policy — Error to dismiss legal malpractice insurer’s action to recover from broker money paid in settlement of suit against insured on ground that broker, without insured’s knowledge, failed to include in insurance application all professional liability claims, disciplinary proceedings, or suits involving law firm applicant and firm’s members within last five years — Fact that defendant, as a broker, was agent of the insured, does not preclude its liability for negligent or fraudulent conduct — Section 552 of Restatement (Second) of Torts applies to insurance brokers — Indemnity — Complaint did not state causes of action for common law indemnity because plaintiff was obligated to pay based upon a contractual liability, not a vicarious liability for the acts of its broker

35 Fla. L. Weekly D2203b
46 So. 3d 1051

Insurance — Citizens Property Insurance Corporation — Sovereign immunity — Appeals — Trial court’s denial of Citizens Property Insurance Corporation’s motion to dismiss bad faith action on ground of sovereign immunity is not reviewable by writ of prohibition or certiorari — Conflict certified — Question certified: Whether, in light of the supreme court’s ruling in Department of Education v. Roe, 679 So. 2d 756 (Fla. 1996), review of the denial of a motion to dismiss based on a claim of sovereign immunity should await the entry of a final judgment in the trial court?

35 Fla. L. Weekly S640a
62 So. 3d 1086

Insurance — Personal injury protection — Appeals — Second-tier certiorari review — Where county court entered directed verdict for insurer in medical provider’s action for reimbursement of medical treatment expenses on ground that insured unreasonably failed to appear for medical examination, although insurer presented no evidence on affirmative defense of failure to appear for medical examination, and circuit court appellate division reversed the judgment and remanded for trial on merits, the district court of appeal improperly exercised certiorari jurisdiction to quash the circuit court decision — District court did not consider or set forth a sufficient correct legal basis and analysis with regard to the manner in which the circuit court decision denied due process or departed from the essential requirements of law resulting in a miscarriage of justice, but instead merely disagreed with the result in the circuit court without supplying a proper and sufficient legal basis for second-tier certiorari review — District court erroneously held that attendance at a medical examination and testimonial exam without counsel are conditions precedent to coverage not merely benefits — Circuit court was correct that insurer had burden of pleading and proving its affirmative defense, and insurer was required to present evidence to the fact-finder that insured unreasonably failed to attend a medical examination without explanation after having received proper notice — Insured’s unreasonable failure to attend a medical examination would relieve the insurer of liability for subsequent benefits, not medical expenses already incurred

35 Fla. L. Weekly D870a
36 So. 3d 730

Insurance — Automobile — Rescission of policy — Material misrepresentation in application — Trial court erred in refusing to recognize insurer’s rescission of policy based on material misrepresentation where, in answer to question whether the vehicle had been modified, the insured answered “no” although insured had installed larger, wider tires and a lift-kit on the vehicle — Trial court erred in entering summary judgment for plaintiff in action against insurer seeking coverage under policy on ground that the term “modified” in application was ambiguous — Remand for consideration of issue of whether broker who knew of modifications was insurer’s agent whose knowledge should be imputed to insurer

35 Fla. L. Weekly D1269a
36 So. 3d 885

Attorney’s fees — Insurance — Torts — Action against insurance agent alleging negligent procurement of flood insurance coverage in reduced amount — Trial court erred as matter of law by determining that defendant agent was an “insurer” liable for insured’s attorney’s fees under section 627.428 where it was undisputed that agent merely facilitated the contract to which insured and insurer were parties and that the insured had not claimed that the agent was actually a party to the insurance contract — Offer of judgment — Because defendant does not challenge award of attorney’s fees under section 768.79, reversal does not affect that part of final judgment of attorney’s fees

35 Fla. L. Weekly D805a
32 So. 3d 722

Administrative law — Licensing — Suspension of license as life and health insurance agent — Hearing — Department of Financial Services properly dismissed licensee’s untimely petition for administrative hearing — Excusable neglect standard is not available where party has failed to timely file petition for hearing

35 Fla. L. Weekly D1456a
39 So. 3d 440

Insurance — Commercial property — Change of coverage from replacement cost to actual cash value — Broker was no longer insured’s agent after binder had expired and policy had issued — After policy had issued, broker had no authority to instruct insurer to eliminate replacement cost coverage — There is no merit to insurer’s contention that it had never issued a policy to insured because the condition precedent in the binder, requiring a replacement cost appraisal within thirty days, had not been met — Condition stating that binder was subject to “receipt of current replacement cost appraisal within thirty (30) days of effective date,” was ambiguous because it was silent as to which party had the obligation to perform the appraisal — Trial court erred in entering summary judgment for insurer in insured’s breach of contract action after insurer had paid insured’s claim for hurricane damage to insured’s property at actual cash value rather than at replacement cost

35 Fla. L. Weekly D2168a
49 So. 3d 774

Insurance — Windstorm — Authority of agent to bind insurer — Where insurance application clearly provided, on page two, actual notice of limitations on insurance agent’s authority to bind the insurer; applicant did not receive page two of application, but a printed line directly above the signature line on page one of application stated, “I further understand and agree to the terms as set forth on page 2”; and applicant’s principal admitted that when he signed the application, he understood page two was part of the entire application but never asked to review the page, applicant was placed on inquiry notice and therefore subject to limitations imposed on agent by insurer — Trial court erred in finding there was no evidence that applicant was ever put on notice of any limitations on agent’s authority to bind coverage — Trial court did not err by failing to apply incorporation by reference doctrine as to page two of insurance application as a matter of law where language on page one of application neither made it subject to terms and conditions on page two nor expressly referred to or described the agency disclaimer on page two

35 Fla. L. Weekly D235b

NOT FINAL VERSION OF OPINION
Subsequent Changes at 35 Fla. L. Weekly D741a

Insurance — Civil remedy for Insurance Code violations — Final summary judgment in favor of insurer reversed — Remand for entry of final judgment dismissing case without prejudice for failing to file sufficiently specific civil remedy notice, as required by statute

SUBSTITUTED OPINION at 35 Fla. L. Weekly D741a. 31 So. 3d 915