2011

36 Fla. L. Weekly D1067a
63 So. 3d 68

Torts — Negligence — Action against insurer, insurance broker, and insurance agent for lessee of vehicle which was owned by plaintiff-insurer’s subrogee, seeking to recover amounts plaintiff paid in settlement of accident involving leased vehicle, alleging defendants breached duty owed to vehicle lessors and to general public to abide by standard insurance practices to issue automobile liability insurance coverage on leased vehicles as required by Florida vehicle leases and Florida statutes and that, by breaching this duty, defendants assisted the lessee-driver in breaching his lease, which required that lessee maintain certain levels of insurance — Although preemptive effect of federal Graves Amendment did not preclude plaintiff from using equitable subrogation to assert a claim against defendants, negligence cause of action plaintiff sought to pursue against defendants failed as matter of law because, in providing insurance to the lessee, defendants owed no legal duty to lessor

36 Fla. L. Weekly S469a
70 So. 3d 566

Insurance — Automobile liability — Exclusions — Household exclusion — Injuries suffered by parents of named insured’s granddaughter in accident occurring when parents were passengers in insured vehicle being driven by named insured’s granddaughter as permissive driver — Household exclusion unambiguously applies to claims by members of household of permissive driver insured although they were not members of named insured’s household — Household exclusion barring coverage for “any bodily injury” to “any insured or member of an insured’s family residing in the insured’s household” eliminates coverage for bodily injuries suffered by members of the household of a permissive driver insured

36 Fla. L. Weekly D835a
63 So. 3d 27

Insurance — Automobile liability — Excess liability — Umbrella policy issued to owner of freightliner truck which was leased to another company and being driven by that company’s employee at time of accident did not provide coverage to the other company and its employee — Policy unambiguously provided that any person to whom insured owner has leased or rented one of its automobiles is not an insured — Term “automobile” in policy refers to commercial vehicles

36 Fla. L. Weekly S660a
78 So. 3d 1293

Insurance — Automobile liability — Duty to defend and indemnify — Temporary substitute auto — Where insured rented a vehicle when her insured vehicle became disabled under a rental agreement which stated that no additional operators are authorized or permitted, insured permitted the rental vehicle to be used by an unauthorized operator who in turn allowed the vehicle to be operated by another unauthorized operator who operated the vehicle in a negligent manner, resulting in serious injuries to some passengers and death of another passenger, insurer had a duty to defend and indemnify insured in negligence action against insured — Under policy an “owned auto” included a “temporary substitute auto” — Under Florida’s dangerous instrumentality doctrine, an owner’s consent to use the vehicle cannot be vitiated by invocation of third-party agreements attempting to limit the scope of who may operate the vehicle

36 Fla. L. Weekly D2212a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 37 Fla. L. Weekly D36a

Venue — Insurance — Commercial vehicle liability — Forum selection clause — Trial court improperly denied insurer’s motion to dismiss on the basis of improper venue where clear and unambiguous forum selection clause found in policy stated that Georgia shall have jurisdiction and venue over any claims relating to the rights and obligations of the policy, insured freely bargained for and contracted with insurer with full knowledge of the forum selection clause, and insured failed to show that the clause was unreasonable or unjust — While the compelling reasons exception applies to interstate commercial contracts, cases cited by insured are inapplicable to the instant case because they only address Florida’s venue statutes, purely intra-state disputes not governed by forum selection clauses — Insured’s argument that by litigating in Florida and Georgia it would be forced to split its causes of action and that the forum selection clause does not govern all of insured’s claims is rejected — Validity of entire contract must be submitted to the forum chosen by the parties in the contract

36 Fla. L. Weekly D679b
87 So. 3d 782

Insurance — Automobile liability — Bad faith — In bad faith action against insurer by estate of party who was killed in automobile accident caused by insured vehicle, trial court did not err in excluding evidence of insurer’s prompt settlement of claims of other parties who were killed or injured in the accident — Where insurer moved for directed verdict after estate closed its case on ground that estate had not proven the validity of the insured’s assignment of claim to estate, trial court did not abuse discretion in allowing estate to reopen its case to present additional testimony regarding the assignment — The assignment was not a required element of estate’s bad faith claim against insurer — Jury instruction regarding no realistic possibility of settlement within policy limit did not impermissibly shift burden of proof to insurer where instruction was expressly limited to the defense of the unwillingness of the plaintiff to settle — Trial court did not err in denying insurer’s motion for directed verdict

36 Fla. L. Weekly D2259a
71 So. 3d 241

Insurance — Attorney’s fees — Florida Insurance Guaranty Association — Circuit court erred in denying insureds’ motion to recover attorney’s fees from FIGA because FIGA denied insureds’ covered claim by affirmative action when FIGA asserted seven affirmative defenses in its answer alleging that the insureds’ damages were not caused by a covered loss — FIGA’s argument that it was compelled to allege affirmative defenses because a failure to do so would result in a waiver, is rejected — If FIGA believed it had insufficient time to investigate the claim, it should have sought a motion for extension of time to respond, and if the motion was denied, then FIGA should have crafted its answer to avoid any allegation constituting a denial of the claim by affirmative action — Because FIGA failed to do so, insureds are entitled to recover attorney’s fees pursuant to sections 627.428(1) and 631.70

36 Fla. L. Weekly D2340a
72 So. 3d 314

Insurance — Uninsured motorist — Attorney’s fees — Conflict of law — Under Florida law, the statutory right to attorney’s fees is a substantive right — Because insured’s claim for attorney’s fees was based solely on Nebraska statute, Nebraska law governs substantive right to attorney’s fees — Under Nebraska law, it was error to award attorney’s fees unrelated to issue of coverage and to apply a multiplier

36 Fla. L. Weekly D1823a
67 So. 3d 1174

Insurance — Personal injury protection — Appellate attorney’s fees — Where insured prevailed in county court in action on PIP policy, and appellate division of circuit court affirmed the county court judgment, it was a miscarriage of justice for circuit court to deny an award of appellate attorney’s fees to insured

36 Fla. L. Weekly D1553b
99 So. 3d 525

Insurance — Personal injury protection — Appellate attorney’s fees — Where circuit court appellate division reversed summary judgment which county court had entered in favor of insured’s assignee in action against insurer, but affirmed county court order requiring insurer to pay expert witness fee for assignee’s expert, circuit court departed from essential requirements of law in denying award of attorney’s fees to assignee for prevailing on expert witness fee issue