2010

35 Fla. L. Weekly D2695a
50 So. 3d 681

Insurance — Uninsured motorist — Underinsured motorist — Set-off — Settlement — Trial court erred in refusing to offset jury verdicts in favor of insured by amounts received in settlement with tortfeasor and tortfeasor’s insurer where settlement represented a duplication of benefits — Jury verdict was a “total damages” award where insured pled and tried issues of both economic and non-economic damages, although trial court resolved issue of non-economic damages by entering directed verdict in favor of UM insurer with regard to permanency threshold necessary to support award of non-economic damages — Permanent injury — Trial court did not err in entering directed verdict for insurer on permanency issue — Insured’s evidence that she might require surgery in the future which would leave a 1½-inch to 2-inch scar by her ear and possibly a 1-inch or smaller scar on abdomen was not sufficient evidence from which jury could find that insured had sustained injury resulting in significant and permanent scarring or disfigurement

35 Fla. L. Weekly D1762a
44 So. 3d 602

Title insurance — Rescission of policy — Where property owner purchased property at tax sale, subsequently learned that the United States claimed the property, and then applied for title insurance without disclosing this known defect in title to insurer, the owner is not entitled to recover under the title insurance policy — Where a party does not rely on a title insurance company to advise it of encumbrances prior to acquiring title to property, it may not recover on a material title defect of which it had actual knowledge and which it failed to disclose to the insurer at the time it applied for the title policy — Trial court properly entered judgment rescinding title insurance policy

35 Fla. L. Weekly D352a
27 So. 3d 747

Insurance — Subrogation — Rental dwelling policy — Subrogation action against tenant by insurer which had paid insured landlord for fire damage to leased premises, alleging that tenant’s negligence caused the fire — Error to enter summary judgment for defendant tenant on ground that tenant was an implied co-insured under landlord’s insurance policy and that insurer cannot seek subrogation against its own insured or co-insured — In order to determine whether landlord’s insurer may bring a subrogation action against a negligent tenant, the lease as a whole is to be examined in order to ascertain the intent of the parties as to who should bear the risk of loss for damage to the leased premises caused by the tenant’s negligence — Insurer should be allowed to proceed with its subrogation action against tenant because parties did not in unequivocal terms in the lease intend to limit tenant’s liability for negligent acts

35 Fla. L. Weekly D1878b
45 So. 3d 833

Insurance — Property damage — Error to enter summary judgment for defendant insurer where there are genuine issues of material fact concerning coverage and alleged defenses, including but not limited to compliance with notice and proof of loss provisions of policy

35 Fla. L. Weekly D2866b
58 So. 3d 275

Insurance — Personal injury protection — Workers’ compensation lien on insured’s recovery from third-party tortfeasor — Where insured entered into settlement with workers’ compensation carrier whereby insured released employer and carrier from any claims related to workers’ compensation benefits, and employer made a cash payment to insured and waived its statutory lien on insured’s recovery from third-party tortfeasor, it was error to enter summary judgment for PIP insurer in insured’s action to recover PIP benefits — Insured was not required to directly satisfy workers’ compensation lien by paying out-of-pocket in order to claim PIP benefits — Insured effectively did pay from his pocket by giving up his right to seek future workers’ compensation benefits in exchange for a negotiated cash payment and waiver of the lien when settling with the workers’ compensation carrier

35 Fla. L. Weekly D1302a
37 So. 3d 379

Insurance — Personal injury protection — Summary judgment — Affidavits in response to insured’s motion for summary judgment — Where insurer filed affidavit of physician which was an independent medical examination conducted by physical examination of insured without a review of treatment records, and filed a second affidavit which was a peer review of examination and treatment records performed one month later, it was error for county court to strike second affidavit — Any discrepancy in second affidavit cannot be considered a bald repudiation of first affidavit — Circuit court appellate division departed from essential requirements of law in affirming county court decision to strike affidavit and in affirming summary judgment in favor of insured

35 Fla. L. Weekly D1683b
39 So. 3d 563

Insurance — Personal injury protection — Insurer who had made unqualified assignment of PIP benefits to medical provider, and never obtained a re-assignment of benefits, had no standing to sue insurer for benefits — Fact that insured remained liable for amounts billed by medical provider under terms of assignment did not make the assignment a qualified assignment

35 Fla. L. Weekly D1091a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 35 Fla. L. Weekly D1683b

Insurance — Personal injury protection — Insured did not have standing to sue insurer for PIP benefits where insured had made unqualified assignment of PIP benefits to medical provider and had never obtained a re-assignment of benefits or revocation of assignment from provider, notwithstanding language in assignment stating that insured remained liable for any medical bills not paid by insurer — Fact that provider failed to bring claim for bills does not serve as revocation of the assignment — Circuit court, acting in its appellate capacity, departed from essential requirements of law by affirming a final judgment in favor of insured

35 Fla. L. Weekly S222b
35 So. 3d 873

Insurance — Personal injury protection — Overdue benefits — Statutory amendment which requires insured to provide presuit notice to insurer before filing an action for overdue benefits constitutes a substantive change to statute, and cannot be applied retroactively to policies issued before the effective date of the amendment

35 Fla. L. Weekly S81a
35 So. 3d 873

NOT FINAL VERSION OF OPINION
Subsequent Changes at 35 Fla. L. Weekly S222b

Insurance — Personal injury protection — Overdue benefits — Statutory amendment which requires insured to provide presuit notice to insurer before filing an action for overdue benefits constitutes a substantive change to statute, and cannot be applied retroactively to policies issued before the effective date of the amendment