2011

36 Fla. L. Weekly D298a
54 So. 3d 578

Insurance — Windstorm — Appraisal — Error to summarily compel appraisal over insurer’s objection that insured failed to comply with post-loss provisions of policy — Remand for evidentiary hearing on whether insured sufficiently complied with policy’s post-loss requirements

36 Fla. L. Weekly D314c
53 So. 3d 1194

Attorney’s fees — Appellate — Justiciable issues — Insurance — Circuit court sitting in its appellate capacity did not err in affirming county court’s final judgment in favor of insurer in declaratory judgment action seeking declaration of insured’s right to obtain a signed uninsured motorist rejection form — Under unique facts of case, insurer’s provision of form after suit was filed did not amount to confession of judgment — However, appellate issue did not meet threshold for section 57.105 fees, either as to its factual or legal component — Moreover, appellate court’s award of section 57.105 fees should be based on lack of merit of appeal, not lack of merit at trial level — Award of appellate attorney’s fees vacated

36 Fla. L. Weekly D377b
54 So. 3d 1055

Insurance — Uninsured motorist — A policy provision requiring an insured to join the tortfeasor as a condition to bringing or maintaining a suit for uninsured/underinsured motorist benefits is against public policy and void

36 Fla. L. Weekly D1114a
61 So. 3d 1245

Torts — Civil procedure — Costs — Prevailing party — When an uninsured/underinsured motorist insurer is joined as a party defendant and the verdict does not exceed the tortfeasor’s liability limits, the UM insurer is the prevailing party and entitled to its costs — Trial court erred in entering cost judgment against insurer — Attorney’s fees — Trial court erred in denying insurer’s motions for attorney’s fees under section 768.79(1) where insurer made good faith proposal for settlement in amount of $100, and verdict in favor of plaintiffs to whom proposal was made was less than liability limits of policy — Record supports conclusion that offer was made in good faith

36 Fla. L. Weekly D415b
54 So. 3d 1065

Insurance — Uninsured motorist — Where insured filed declaratory judgment action seeking determination of where independent medical examination should take place, it was premature for court to enter summary judgment finding there was no coverage under policy — Trial court properly declared that insured had to attend IME with doctor selected by insurer

36 Fla. L. Weekly D1487e

NOT FINAL VERSION OF OPINION
Subsequent Changes at 37 Fla. L. Weekly D379a

Insurance — Uninsured motorist — Evidence — Expert — Trial court abused its discretion in excluding testimony of insurer’s medical billing and coding expert where insurer argued that insured’s medical providers fabricated or exaggerated medical care necessary for insured’s alleged injuries and expert’s testimony that bills did not correlate to treatment in medical records was relevant to prove this defense — Expert’s testimony regarded a technical matter of which jury did not have basic knowledge — It was clear from expert’s deposition that she had specialized knowledge and training to express opinion on whether bills were properly coded and whether they corresponded to medical records documenting the purported treatment — New trial required

36 Fla. L. Weekly D2208b
78 So. 3d 7

Insurance — Uninsured motorist — Insured was not entitled to UM coverage for injuries he received when his own insured automobile was carjacked and he was forced by his assailants to ride in the trunk of the insured automobile — Insured’s automobile did not become an uninsured vehicle when assailants took possession of it, and insured’s injuries thus did not arise out of the ownership, maintenance, or use of an uninsured vehicle — Further, even if vehicle were an uninsured vehicle, it was no more than a contributor to the cause of the condition which produced the injuries

36 Fla. L. Weekly D1299a
65 So. 3d 558

Insurance — Uninsured motorist — Coverage — Injuries suffered by employee while riding motorcycle rented by her employer — Where policy issued to employer purported to limit UM coverage by defining “covered autos” more narrowly in the UM provisions than in the liability provisions, the policy’s liability definition of “covered autos” determines UM coverage — Trial court erred in relying on the narrower definition of “covered auto” in entering summary judgment finding that the business automobile policy issued to employer did not provide UM coverage to employee who was riding motorcycle rented by employer

36 Fla. L. Weekly D2718a
89 So. 3d 246

Insurance — Uninsured motorist — Evidence — In insured’s action to recover uninsured motorist benefits after insurer had refused to pay UM benefits on ground that medical treatment for which insured sought payment did not stem from injuries incurred in automobile accident, it was error to allow insured to present evidence that insurer had paid insured personal injury protection benefits and to make the payment of such benefits and the standard for the payment of such benefits a feature of trial — Such evidence could only have been intended to convince jury that insurer’s payment of PIP benefits constituted an admission that insured was entitled to recover UM benefits because insurer had already determined that services for which payment was sought were reasonable, necessary, and related to the automobile accident — On remand, no testimony need be adduced regarding insurer’s payment of MedPay benefits to insured

36 Fla. L. Weekly D2635c
83 So. 3d 793

Insurance — Uninsured motorist — Compulsory medical examination — Failure to attend — Although insured breached underinsured/uninsured motorist contract by failing to attend two scheduled compulsory medical examinations and by filing suit before complying with the CME provision in the contract, breach did not defeat coverage because insurer was not prejudiced by the breach — Where policy did not contain language specifying the consequences of a breach of CME provision, prejudice analysis specified by supreme court in Bankers Insurance Co. v. Macias applies — CME provision is a “condition subsequent,” the non-occurrence of which is an affirmative defense that the insurer has the burden to plead and prove — Conflict certified — Questions certified: When an insured breaches a CME provision in an uninsured motorist contract, (in the absence of contractual language specifying the consequences of the breach) does the insured forfeit benefits under the contract without regard to prejudice, or does the prejudice analysis described in Bankers Insurance Co. v. Macias, 475 So. 2d 1216, 1218 (Fla. 1985), apply? If prejudice must be considered, who bears the burden of pleading and proving that issue?