2010

35 Fla. L. Weekly S73a
29 So. 3d 1000

Insurance — Commercial liability — Coverage — Advertising injury — Advertising injury provision that provides coverage for an “oral or written publication of material that violates a person’s right of privacy” provides coverage for faxing of an unsolicited advertisement in violation of the federal Telephone Consumer Protection Act when no private information is revealed in the fax

35 Fla. L. Weekly D481a
29 So. 3d 377

Insurance — Commercial comprehensive general liability — Professional liability — Policy issued to corporation did not provide coverage for claims against directors alleging that they breached their fiduciary duty to plaintiffs by not discovering a Ponzi scheme perpetrated by the company president — Defendants’ negligence in failing to detect a fraudulent Ponzi scheme engineered by the company president does not fall with the definition of “professional services” — Trial court did not err in dismissing complaint for failure to state a cause of action — Plaintiffs are not entitled to entry of judgment on default if complaint fails to state cause of action — Defense of failure to state cause of action may be raised by motion, even after default, and may be raised at trial on merits

35 Fla. L. Weekly D1459a
39 So. 3d 434

Insurance — Commercial general liability policy issued to landscaping contractor who was hired by property owner to trim mangroves on waterfront property — Exclusions — Where policy excluded damage to that particular part of real property on which insured is performing operations, if the property damage arises out of those operations, policy did not provide coverage for damage caused when owner’s mangrove trees were cut below the ten-foot level in violation of permit issued by Department of Environmental Protection — Exclusion was not applicable to damage caused by trimming of mangroves on seaward side of mean high-water mark on land owned by state in violation of permit, and coverage was provided for those damages — Although trial court correctly differentiated between areas which were incorrectly trimmed on owner’s property and on property of non-party to landscaping contract, court improperly determined that insurer is responsible for all of each of the three components of loss in the event that it is not possible to apportion damages between those attributable to mangrove cutting on private owner’s land and those attributable to cutting on state land

35 Fla. L. Weekly D1690b
41 So. 3d 375

Civil procedure — Class actions — Certification — Insurance — Class action by premium finance companies alleging insurance carrier failed to pay interest on late-returned unearned insurance premiums — Proof of numerosity was insufficient to support certification of class

35 Fla. L. Weekly D2018a
43 So. 3d 168

Insurance — Commercial general liability insurance — Duty to defend — Action against insured by tenant of insured’s self-storage facility seeking to recover losses incurred as result of theft of tenant’s trailer which was stored at facility — Error to enter judgment on pleadings in favor of insurer and to dismiss complaint with prejudice based on policy provision excluding coverage for damage to personal property in “care, custody or control” of insured where applicability of exclusion was not apparent within four corners of complaint and was factual question requiring analysis of whether the property at issue was within possessory control of insured

35 Fla. L. Weekly D1268a
36 So. 3d 889

Torts — Insurance brokers — Action alleging that defendant insurance brokers negligently created a “gap” in professional liability insurance coverage for insured by failing to have in place coverage under new policy upon expiration of term of original policy which was not renewed — Surplus Lines Law, which governs insurance policies at issue, requires that insurer give insured at least 45 days’ advance notice if policy is not to be renewed, and provides that if insurer fails to provide the 45-day notice, coverage will remain in effect until 45 days after notice is given or until the effective date of replacement coverage obtained by the insured — Because insurer failed to provide the required notice of nonrenewal to insured, coverage under policy continued until the effective date of replacement policy procured by defendant, and any negligence on part of defendant did not result in damages to insured — Trial court erred in finding that defendant created a gap in coverage

35 Fla. L. Weekly D794a
36 So. 3d 889

NOT FINAL VERSION OF OPINION
Subsequent Changes at 35 Fla. L. Weekly D1268a

Torts — Insurance brokers — Action alleging that defendant insurance brokers negligently created a “gap” in professional liability insurance coverage for insured by failing to have in place coverage under new policy upon expiration of term of original policy which was not renewed — Surplus Lines Law, which governs insurance policies at issue, requires that insurer give insured at least 45 days’ advance notice if policy is not to be renewed, and provides that if insurer fails to provide the 45-day notice, coverage will remain in effect until 45 days after notice is given or until the effective date of replacement coverage obtained by the insured — Because insurer failed to provide the required notice of nonrenewal to insured, coverage under policy continued until the effective date of replacement policy procured by defendant, and any negligence on part of defendant did not result in damages to insured — Trial court erred in finding that defendant created a gap in coverage

35 Fla. L. Weekly D2430c
46 So. 3d 1129

Venue — Insurance — Bad faith — Failure to settle — Declaratory judgment action in which insurer sought declaration regarding whether it had acted in good faith in adjusting claims against its insureds arising out of automobile accident in which claimants’ minor children were injured, one fatally — No error in transferring action to county in which accident occurred, the estate had been opened, and any settlement would have ultimately been paid — Although insured’s county of residence may be significant factor in other cases where venue in bad faith actions is at issue, it is not significant factor under unique facts presented in this case

35 Fla. L. Weekly S235a
35 So. 3d 893

Insurance — Indemnity — Bad faith — No cause of action for third-party bad faith against an indemnity insurer may be maintained when the insurer’s actions were not a cause of the damages to the insured or when the insurer’s actions never resulted in exposure to liability in excess of the policy limits of the insured’s policies — An excess judgment is not always a prerequisite before a bad faith case can be brought against the insurer, but the damages claimed by the insured or its assignee must be caused by the insurer’s bad faith

35 Fla. L. Weekly D2590a
49 So. 3d 809

Insurance — Uninsured motorist — Bad faith failure to settle — Error to deny motion to abate cause of action for bad faith failure to settle claim where causes of action for determination of liability and amount of damages were pending — Discovery — Error to compel insurer to respond to requests for admissions regarding its claims handling procedures and business practices where obligation to provide coverage and damages had not yet been determined