2011

36 Fla. L. Weekly D195b

NOT FINAL VERSION OF OPINION
Subsequent Changes at 36 Fla. L. Weekly D2635c

Insurance — Uninsured motorist — Compulsory medical examination — Insured who refused to attend compulsory medical examination was not entitled to recover uninsured motorist benefits — Compliance with policy provision requiring insured who makes claim to attend CME is a condition precedent to suit and recovery of policy benefits

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 D1732a
83 So. 3d 755

Contracts — Unjust enrichment — Action by title insurance company against parties who engaged in fraudulent real estate closings in which the sellers would receive one HUD-1 settlement statement containing the amount for sale of property, lenders would receive a different settlement statement containing a fraudulently inflated amount for the sale of the property, and the difference between the fraudulently inflated amount provided by lenders and the lesser amount disbursed to sellers would be wired to defendants by title insurance company’s agent — Judgment was erroneously entered for plaintiff title insurance company on unjust enrichment claim where there was no evidence that plaintiff had paid any claim to any lender, agreed to pay any claim to any lender, or received an assignment of rights or claims from any lender — Although plaintiff established that a benefit had been conferred on defendants and that it would be inequitable for defendants to retain the benefit without paying for it, plaintiff failed to establish that it was the party who conferred the benefit — Funds disbursed to defendants did not belong to plaintiff, but rather belonged to lenders

36 Fla. L. Weekly D58a
53 So. 3d 331

Insurance — Title insurance — Title insurance companies were not liable for misappropriation of deposits made to licensed title insurance agent in its capacity as escrow agent — Deposits were not trust funds because agent acted solely as an escrow agent, not as a closing or title issuing agent

36 Fla. L. Weekly D1126b
61 So. 3d 1262
Administrative law — Licensing — Title insurance agents — Department of Financial Services properly denied application for licensure as a resident Florida title insurance agent based on applicant’s prior criminal record, but improperly calculated waiting period for re-application — Appeals — In pipeline case that is still pending on appeal when there has been a change in the law as applied specifically to appellant, appellant is entitled to the benefit of that change

36 Fla. L. Weekly D287a
58 So. 3d 280

Insurance — Title insurance — Class actions — Class action against licensed title insurance underwriters alleging that homeowners were not provided a discounted title insurance reissue rate for which they may have been eligible when they refinanced their homes — Trial court did not err in certifying class upon finding that common question predominated over individualized issues — If, as urged by plaintiffs, Florida law places duty to determine whether the reissue rate applies solely on title insurance companies, the individual practices of their agents and circumstances of each transaction become largely irrelevant, and class adjudication would be appropriate

36 Fla. L. Weekly D1642a
65 So. 3d 1207

Insurance — Uninsured motorist — Subrogation — Summary judgment — Damages — Trial court correctly granted summary judgment in favor of UM insurer as to liability where insurer established defendant’s negligence as rear driver in rear-end collision — Trial court erred in entering summary judgment ordering defendant to pay to insurer the same amount insurer had paid to its insureds — Genuine issues of material fact remained as to amount of damages attributable to accident where award was based only on affidavit listing the check paid to the insureds for the claim, but insurer did not establish what damages the check was intended to cover and whether such damages were related to the accident

36 Fla. L. Weekly D894a
60 So. 3d 514

Insurance — Uninsured motorist — Stacking — Where insureds had purchased stacked UM coverage on the vehicle involved in accident but had expressly rejected UM coverage on another vehicle insured under separate policy and paid no premium for such coverage, insureds were not entitled to recover additional UM benefits from the policy on the vehicle not involved in the accident

36 Fla. L. Weekly D45a
54 So. 3d 1012

Insurance — Public adjusters — Section 626.854(6), Florida Statutes (2008), which bans solicitation by public adjusters for a period of 48 hours, unambiguously bans all solicitation for 48 hours, and this restriction on commercial speech violates Article I, section 4 of the Florida Constitution — Statute is not narrowly tailored to meet state’s objectives

36 Fla. L. Weekly D2785a
83 So. 3d 850

Insurance — Condominiums — Property damage — Replacement cost value — Error to award replacement cost value benefits where policy required insured to actually repair or replace damage as condition precedent to payment of replacement costs, and insured failed to do this — Prevention of performance doctrine did not excuse insured from contractual obligation to complete repairs before receipt of payment