2010

35 Fla. L. Weekly D2592a
49 So. 3d 810

Insurance — Excess coverage — Commercial umbrella policy — Uninsured motorist — Where an excess insurer agrees to provide insured with excess UM/UIM coverage in the amount required by statute, upon the condition that the insured purchase UM/UIM coverage under its primary policy of limits equal to the amount offered in excess coverage, the excess insurer has complied with statutory requirement that it “make available” uninsured/underinsured motorist protection

35 Fla. L. Weekly D1945a
43 So. 3d 842

Insurance — Failure to appear for examination under oath — Notice to insured of scheduled examination — Summary judgment in favor of insurer affirmed because no issues were preserved for review

35 Fla. L. Weekly D2534a
50 So. 3d 645

Insurance — Windstorm — Action against windstorm insurer by insured whose home was totally destroyed by hurricane — In arriving at amount of damages, trial court erroneously based its ruling on the “other insurance” clause in the windstorm policy where the other insurance was flood insurance — The other insurance clause was not applicable where the insured had a windstorm policy and a flood policy, each covering a different peril — Trial court did not err in denying insurer’s motion for summary judgment under the “total loss recovery rule” — If insured is able to prove that wind alone caused a total loss before the storm surge arrived, despite his successful recovery of flood insurance payments, the valued policy law would require windstorm insurer to pay the policy proceeds — Evidence — Trial court erred in granting insured’s motion in limine and excluding evidence that insured received flood insurance benefits — Trial court erred by precluding insured from submitting to jury claim that wind caused a total loss to insured property under valued policy law

35 Fla. L. Weekly D1241a
36 So. 3d 172

Insurance — Homeowners — Examination under oath — Where insured and his wife appeared for examination under oath, but left during a break after insured had been berated, yelled at, and subjected to one examination in English and another in Creole, and insured’s counsel subsequently made offer to insurer for resumption of examination under oath, trial court properly rejected insurer’s contention that insured breached policy obligations by failing to submit to complete examination under oath, and thus could not file suit under policy — Trial court properly entered order compelling appraisal

35 Fla. L. Weekly D503a

Insurance — Errors and omissions — Exclusions — Handling of Funds exclusion, which excluded “damages arising out of the commingling, conversion, misappropriation or defalcation of funds or other property,” and “Additional Exclusion Endorsement,” which excluded claims connected in any way to the dishonoring of any financial instrument, barred coverage for amounts the insured title insurance company had to pay to satisfy mortgage and clear title after an escrow agent in a real estate transaction misappropriated escrowed funds, leaving insufficient money to satisfy the mortgage

35 Fla. L. Weekly D1558b
41 So. 3d 313

Insurance — Insured’s action against insurer for breach of contract — Discovery — Privilege — Insurer’s claim, underwriting, and litigation files — Circuit court departed from essential requirements of law when it denied insurer’s motion for protective order and found that insurer had waived all objections by filing a motion for protective order, which did not specifically assert privilege objections, but generally stated that plaintiffs were not legally entitled to what was requested — Insurer’s work product and attorney-client privilege objections cannot be deemed waived under the circumstances presented — Remand for evaluation of privilege objections and in camera inspection, if necessary

35 Fla. L. Weekly D2508a
49 So. 3d 807

Insurance — Discovery — Error to grant discovery of insurer’s claim file while coverage issue was pending

35 Fla. L. Weekly D2343a
46 So. 3d 140

Insurance — Personal injury protection — Discovery — Action against PIP insurer seeking declaratory relief regarding allowable amount for MRI services under fee schedule authorized by PIP statute — Order compelling insurer to produce internal procedural memoranda, policies, procedures, claim manuals, guidelines, and standards relating to handling and adjustment of PIP claims for MRI services is not reviewable by certiorari where insurer has not demonstrated that order creates material harm that is irreparable by postjudgment appeal — Discovery of irrelevant materials does not necessarily cause irreparable harm — Order compelling production of privileged materials does not result in irreparable harm where order allows insurer to assert any reasonable, non-frivolous objections to requests, and provides that insurer can withhold any materials it considers privileged provided it files an appropriate privilege log

35 Fla. L. Weekly D539b
32 So. 3d 661

Deceptive and unfair trade practices — Contracts — Limitation of actions — Tolling of running of statute of limitations by the payment of any part of the principal or interest of any obligation or liability founded on a written instrument — Action against mortgagees raising counts of violation of Deceptive and Unfair Trade Practices Act, unjust enrichment, and breach of implied duties of good faith and fair dealing, and alleging that costs of single premium credit insurance purchased on mortgages were excessively inflated and that plaintiffs incurred higher monthly payments than they would have otherwise because the SPCI premiums were added to the amount financed under each mortgage — Trial court properly found that action was barred by statute of limitations — Running of statute of limitations on action was not tolled by section 95.051(1)(f), Florida Statutes, when plaintiffs made each mortgage payment — Section 95.051(1)(f) tolls statute of limitations for claims founded on written instrument on which the payments are being made

35 Fla. L. Weekly D5a

Insurance — Liability — Commercial tractor-trailer — Coverage — Loss due to theft — Estoppel or waiver — Record evidence was sufficient to demonstrate that, as matter of law, insurer was estopped from denying claim for loss due to theft based on garaging warranty which required insured to “warranty” that vehicle would be kept in closed garage, in an enclosed 24-hour guarded lot, or parked adjacent to insured’s residence, and provided for forfeiture of rights under policy if warranty were breached, where insured was not provided a copy of binder or policy until after the loss — For purposes of application of doctrines of estoppel and waiver, Florida law draws distinction between provisions of forfeiture and provisions of coverage — Payment for loss of tractor-trailer due to theft was clearly within bounds of policy, and application of doctrine of estoppel would not serve to impermissibly create or extend coverage — Detrimental reliance — Insurer offered no competent evidence to rebut insured’s affidavit attesting that he was unaware of garaging warranty prior to loss and that he would have parked tractor-trailer in compliance with the warranty had he known of the same — Neither amended response to interrogatories signed only by insurer’s counsel, which included an assertion that broker that procured policy for insured was aware of garaging warranty and informed insured of the same prior to loss, nor set of interrogatory responses signed by investigator employed by insurer’s third-party administrator was sufficient to create issue of fact as to whether insured had notice of warranty prior to loss where neither insurer’s counsel nor investigator had personal knowledge of whether broker informed insured of warranty, and hearsay statements on the matter would not be admissible in evidence