2010

35 Fla. L. Weekly D2838a
54 So. 3d 999

Insurance — Homeowners — Liability coverage — Trial court erred in entering summary judgment in favor of insurer in declaratory judgment action by insureds to establish liability coverage for an accident that occurred at insureds’ residence — Although the residence did not fall under the policy definition of “residence premises” where it was shown as the “residence premises” in the Declarations, the residence did fall under the policy definition of “insured location”

35 Fla. L. Weekly D1048a
36 So. 3d 136

Insurance — Homeowners — All risk policy — Sinkhole claims — Burden of proof — Section 627.7073(1)(c), Florida Statutes, which provides that the findings, opinions, and recommendations of the engineer and professional geologist as to the verification or elimination of a sinkhole loss and the findings, opinions, and recommendations of the engineer as to land and building stabilization and foundation repair shall be presumed correct, is a vanishing or bursting bubble presumption that affects only insured’s burden of producing evidence — In insured’s action to recover for loss allegedly caused by sinkhole, trial court erred in giving jury instruction on presumption that impermissibly shifted burden of proof to insured — Question certified: Does the language of section 627.7073(1)(c) create a presumption affecting the burden of proof under section 90.304 or does the language create a presumption affecting the burden of producing evidence under section 90.303?

35 Fla. L. Weekly D438b
31 So. 3d 842

NOT FINAL VERSION OF OPINION
Subsequent Changes at 35 Fla. L. Weekly D633a

Hospitals — Health maintenance organizations — Reimbursement to hospitals providing emergency medical services to patients who subscribe to an HMO that does not have a contract with the hospital — Trial court did not err in ruling that term “provider” in section 641.513(5) is not limited only to hospitals — Usual and customary provider charges — What is called for under statute is fair market value of services provided — In determining fair market value of services, it is appropriate to consider amounts billed and amounts accepted by providers with exception of amounts accepted by providers for patients covered by Medicare and Medicaid

35 Fla. L. Weekly D257b
27 So. 3d 140

NOT FINAL VERSION OF OPINION
Subsequent Changes at 35 Fla. L. Weekly D387k

Insurance — Health maintenance organizations — A hospital-based, but non-contracted provider of health care services to the subscribers of a health maintenance organization plan may not balance bill subscribers for unpaid portion of its statements for medical services that have not been paid by the health maintenance organization

35 Fla. L. Weekly D155b
27 So. 3d 692

Insurance — Health insurance — Compromise verdict — Jury verdict finding that defendant health insurer breached contract but awarding zero damages was not a compromise verdict requiring a new trial where jury could have reasonably concluded that plaintiff sustained zero damages

35 Fla. L. Weekly D2718a
53 So. 3d 1052

Insurance — Health insurance — Federal preemption — Declaratory judgment action seeking to prohibit health insurer from seeking subrogation against settlement proceeds of personal injury action on ground that insurer had not met pre-subrogation notice requirements of collateral source statute — Trial court erred in dismissing action on grounds that exclusive jurisdiction over cause of action was in federal court and on preemption provisions of Employment Retirement Income Security Act — Declaratory action is an action in which plaintiff is seeking to enforce or clarify her rights or to recover benefits under her plan and falls under concurrent jurisdiction exception to ERISA — Regulation at issue is directly related to insurance practices and procedures, and savings clause of ERISA exempts section 768.76, Florida Statutes, from express preemption — Further proceedings are warranted to determine whether the plan is a self-insured employee benefit plan as opposed to an underwritten insurance plan — Even where the state law is saved from preemption by ERISA savings clause, the ERISA deemer clause may exclude the law from the reach of the savings clause if the plan is a self-insured employee benefit plan

35 Fla. L. Weekly D2124b
46 So. 3d 1039

Insurance — Property damage — Insolvent insurers — Florida Insurance Guaranty Association — Claims for hurricane damages to condominium’s seven buildings — Statutory cap on covered claims — Trial court properly found that there were seven separate covered claims involved in action within meaning of section 631.57(2) and properly ordered seven separate appraisals in accordance with terms of insurance policy and applicable law — Because each building was separately listed on declarations page, with separate coverage amount and separate premiums listed for each building, each of the seven separate claims should have its own statutory cap of $300,000

35 Fla. L. Weekly D1712a
39 So. 3d 565

Insurance — Directors, officers, and private company liability — Exclusions — Prior litigation exclusion — Trial court properly entered summary judgment for insurer, finding that action against insured by creditors’ trust was sufficiently related to prior turnover action against insured in bankruptcy court so that coverage in the creditors’ trust action was excluded under the prior litigation exclusion in the policy — Whether extrinsic evidence should be considered to determine the applicability of the prior litigation exclusion is to be decided on a case-by-case basis according to the general summary judgment standard of whether resolution of the legal issue depends on genuine issues of material fact — Court need not decide if the determination of whether the prior litigation exclusion is applicable should be based on a comparison of the complaint in the underlying suit and the complaint in the prior suit or on a count-by-count basis because all of the counts asserted in the complaint arose out of the prior turnover suit

35 Fla. L. Weekly D967a
39 So. 3d 565

NOT FINAL VERSION OF OPINION
Subsequent Changes at 35 Fla. L. Weekly D1712a

Insurance — Directors, officers, and private company liability — Exclusions — Prior litigation exclusion — Trial court properly entered summary judgment for insurer, finding that action against insured by creditors’ trust was sufficiently related to prior turnover action against insured in bankruptcy court so that coverage in the creditors’ trust action was excluded under the prior litigation exclusion in the policy — Whether extrinsic evidence should be considered to determine the applicability of the prior litigation exclusion is to be decided on a case-by-case basis according to the general summary judgment standard of whether resolution of the legal issue depends on genuine issues of material fact — Under policy language, the determination of whether the prior litigation exclusion is applicable should be based on a comparison of the complaint in the underlying suit and the complaint in the prior suit rather than on a count-by-count comparison — Insurer was entitled to deny coverage under the prior litigation exclusion where the underlying creditors’ trust action arose out of the prior turnover suit

35 Fla. L. Weekly D2895a
51 So. 3d 1169

Insurance — Homeowners — Personal liability umbrella policy — Coverage — No error in finding that there was no coverage under homeowners policies for claims against insureds for defamation, tortious interference with contract, and civil assault and battery — Error to determine that there was no duty to defend insured who had personal liability umbrella policy where policy limited coverage for personal liability to a “loss,” which was an accident resulting in personal injury or property damage, and policy specifically included defamation in definition of personal injury — Although umbrella policy did not provide insurance for personal injury when insured acted with specific intent to cause harm or injury, complaint alleged that defamation was done “knowingly and/or negligently,” and factual allegations did not clearly exclude incident from coverage — Whether insured acted intentionally or negligently was issue of fact for jury