2010

35 Fla. L. Weekly D383a
30 So. 3d 552

Insurance — Public records — Viatical settlement provider’s work papers and trade secrets submitted to Office of Insurance Regulation in course of regulatory investigation — Where work papers were deemed confidential and exempt from disclosure under Public Records Law prior to statutory amendment which placed a time limitation on the confidential and exempt status of work papers, rights in confidentiality of work papers that arose before the statutory amendment cannot constitutionally be nullified by the amendment — Trial court erred in retroactively applying amendment to work papers which had been submitted to OIR before the effective date of the amendment — Although Legislature intended amendment to apply retroactively, retroactive application of amendment improperly deprives viatical settlement provider of vested property rights in confidentiality and exemption of its trade secrets and other work papers already submitted to OIR — Trial court erred in determining that issue of improper disclosure of trade secrets was moot because the information had been essentially revealed in OIR’s show cause order posted on public internet site — Mootness will not foreclose an opportunity for review in circumstances where the issue is likely to recur but would evade review

35 Fla. L. Weekly D2231e
44 So. 3d 1273

Insurance — Life — No error in concluding that insured, as policy’s owner, had, in compliance with policy’s terms, substituted his younger daughter for his niece as beneficiary of life insurance policy some years before he died

35 Fla. L. Weekly D342a
30 So. 3d 549

Civil procedure — Relief from judgment — Insurance — Where plaintiff’s complaint alleged that bouncers at defendant’s bar and club assaulted and battered him, defendant’s liability insurer denied coverage on basis that complaint alleged an intentional tort, and trial court confirmed arbitration award which found that defendant was negligent and entered final judgment on the award, it was error to grant plaintiff’s motion to vacate final judgment which asserted that due to inadvertence or error, the arbitration award should not have been entered because the liability insurance company should be made a party to the claim — Although rule 1.540 authorizes trial court to vacate final judgment on basis of negligent mistake or error, rule is not intended to provide relief for judgmental mistakes or tactical errors of counsel

35 Fla. L. Weekly D1106b
36 So. 3d 789

Insurance — Liability — Coverage — Duty to defend — Liability policy issued to insured provided coverage under general personal liability provisions for defending underlying declaratory judgment action, arising from motor vehicle accident after insured disposed of vehicle and her policy had expired, where language of general liability provision did not require injury to occur at same time as covered “occurrence” or “event” causing the injury, and nothing in policy’s general terms limits coverage to injuries inflicted during policy period — Argument that personal injury protection section of policy limited coverage for automobile accidents to injuries “which occur during the policy period” fails because provision clearly only applies to PIP coverage section of policy, and not to general legal liability protection

35 Fla. L. Weekly D2066b
43 So. 3d 182

Insurance — Liability — Dispute between two general liability insurers, both of whom were primary insurers during different time periods, concerning duty to defend and duty to indemnify insured in underlying construction defect litigation — Damages — Plaintiff-insurer, which provided defense to insured subcontractor after contractor was sued by homeowners for damages caused by water intrusion through exterior doors and contractor filed third-party complaint against insured, was not entitled to reimbursement, from defendant-insurer, of attorney’s fees and costs expended in defense, even though it was eventually determined that claim was not covered by plaintiff’s policy — Plaintiff had an independent contractual duty to defend where third-party complaint alleged covered losses that could have occurred during its policy period — Trial court did not err in awarding plaintiff indemnity costs, as duty to indemnify is determined not by allegations of complaint, but by facts adduced at trial or during discovery — Although there was conflicting evidence as to when water intrusion occurred, under plain language of both policies, coverage was triggered by resulting damage to property caused by water, and uncontroverted testimony established that physical damage occurred during defendant-insurer’s policy period

35 Fla. L. Weekly D1257a
37 So. 3d 918

Insurance — Property damaged by hurricane — Judicial estoppel — Trial court erred in entering summary judgment for defendant insurer in insured’s action to recover for damage caused to real property by hurricane on ground of judicial estoppel — Although insurer claimed that insurance claim was barred under doctrine of judicial estoppel because insured failed to properly disclose claim in insured’s bankruptcy proceeding, insured’s disclosure of his insurance claim as personal property in Schedule B of bankruptcy petition, and his inclusion of item described as house destroyed by hurricane in his statement of financial affairs, were sufficient to preclude application of judicial estoppel in state court case — Standing — Once insured filed bankruptcy petition, lawsuit against insurer became property of bankruptcy estate subject to trustee’s exclusive control — Remand for trial court to order that bankruptcy court be notified of lawsuit — Trustee can abandon lawsuit or request to be substituted as proper party plaintiff — If trustee abandons lawsuit, thereby removing it from bankruptcy estate, insured will be free to proceed with action

35 Fla. L. Weekly D1541a
40 So. 3d 829

Insurance — Insolvent insurers — Guaranty of payments — Offsets — Due process — Trial court erred in finding that bank was entitled to offset balances owed on loans to insurance companies’ affiliates and principals against funds held in certificates of deposit that were pledged as collateral for those loans without affording Department of Financial Services, as receiver for insolvent insurers, time to complete discovery and without holding evidentiary hearings to which DFS was entitled under section 631.154 — To extent order in one case could be interpreted as granting offsets based on direct loans, determination was premature because bank’s entitlement to offsets based on those loans was not developed in the record either legally or factually — Moreover, in one case, trial court granted offsets where none were requested — Remand for further proceedings

35 Fla. L. Weekly D868a
33 So. 3d 94

Insurance — Homeowners — Valued Policy Law — Where insured residence was damaged by both windstorm and flooding, and jury found that wind damage amounted to a total loss or constructive total loss, it was not error to award insureds the policy limits of their homeowners policy without setting off the amount which had been paid to insureds under a separate flood insurance policy — Insurer did not plead setoff as an affirmative defense, and even if pleading requirements had been met, there was no evidence of an actual duplication of benefits

35 Fla. L. Weekly D1516e
43 So. 3d 746

Insurance — Windstorm — Action against windstorm insurer by insureds whose mobile home was destroyed by hurricane — Evidence — Collateral source rule — Where court allowed insurer to introduce evidence of the existence of insureds’ flood insurance policy, insureds’ submission of flood claim, and flood insurer’s resulting adjustment of claim, it was not error to preclude insurer from introducing evidence of the dollar amount of flood insurance payments and estimates — Jury instructions — Trial court did not give constructive total loss instruction in error because substantial damage determination required demolition of insureds’ home to allow for elevation in conformity with flood plain regulations — Evidence of substantial damage determination was admissible as relevant to prove a constructive total loss — Trial court did not err in declining insurer’s proposed jury instruction on insureds’ burden to prove damages caused solely by wind — Court properly instructed jury that insureds had burden to prove losses sustained as a result of wind and that insurer would not be liable for loss caused by excluded perils such as water damage — Trial court did not abuse discretion in failing to instruct jury to apply total loss recovery rule — With regard to mobile home, it was not harmful error to instruct jury that damages should be the amount necessary to repair or replace damaged items — Total loss of mobile home placed it under Valued Policy Law, and once jury found a total loss caused by wind, damages were fixed by statute — With regard to other structures on property, they did not fall within purview of VPL, and jury should have been required to calculate damages to those other structures — Interest — With regard to mobile home, court did not err in awarding prejudgment interest from date of loss — Court erred in awarding prejudgment interest on other structures from date of loss — Because VPL does not apply to those other structures, interest should have been determined in accordance with policy, which allows insurer 60 days from date judgment is entered to make loss payments

35 Fla. L. Weekly D129a
25 So. 3d 652

Insurance — Homeowners — Insured homeowner who did not receive from insurer a statutorily-mandated premium discount for having a windstorm-mitigating hip roof was required to pursue administrative remedies under section 627.371 instead of pursuing court action against his insurer — Premium discount is inextricably linked to rate charged and, accordingly, statute applies to action based on insurer’s failure to provide discount