2011

36 Fla. L. Weekly D805a
66 So. 3d 952

Administrative law — Health insurance — Dispute resolution — Statute which directs Agency for Health Care Administration to establish program to provide for resolution of disputes between health plans and health care providers, instructs AHCA to contract with a dispute resolution organization, and requires AHCA to adopt the recommendation of the dispute resolution organization, is constitutional because the dispute resolution procedure is not mandatory, and the statute includes a right to file suit

36 Fla. L. Weekly D1882a
69 So. 3d 304

Insurance — Florida Insurance Guaranty Association — Attorney’s fees — Denial of coverage

36 Fla. L. Weekly D939c
82 So. 3d 849

Insurance — Homeowners — Attorney’s fees — Insolvent insurer — Florida Insurance Guaranty Association — FIGA is excused from statute providing for an award of attorney’s fees to insured who prevails in an action against an insurer, except when FIGA “denies by affirmative action, other than delay, a covered claim or portion thereof” — Based on specific facts of instant case, FIGA’s filing of an answer and affirmative defenses pursuant to a court order did not constitute a “denial” of insureds’ claim by affirmative action other than delay, as FIGA was compelled to answer the complaint by the trial court and did not voluntarily deny claim, but simply asserted its legitimate defenses under the policy — Error to award attorney’s fees to insureds

36 Fla. L. Weekly D1217a
65 So. 3d 541

Insurance — Attorney’s fees — Award of attorney’s fees against the Florida Insurance Guaranty Association is reversed — The FIGA is not responsible for the payment of an insured’s attorney’s fees and costs unless it denies a claim by affirmative action other than delay — A dispute about the amount of damages does not constitute a denial of coverage by affirmative action other than delay exposing FIGA to attorney’s fees where nothing in FIGA’s payment transmittal letter indicated that it denied the claim and the insured never claimed more than the amount tendered

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 D1288a
63 So. 3d 892
Insurance — Fire — Subrogation — Action by commercial landlord’s insurer against commercial tenant — Where commercial lease included general provisions requiring tenant to obtain general liability insurance and indemnify and hold landlord harmless for tenant’s negligence, but lease expressly provided that landlord would purchase property and casualty insurance which covered fire damage on building, and that tenant’s rent included its pro rata share of the premium, the parties intended tenant to be an intended beneficiary or co-insured under landlord’s property and casualty policy — Landlord’s insurer could not maintain a subrogation action against tenant after paying landlord’s claim for fire damage to building

36 Fla. L. Weekly D1218a
65 So. 3d 67

Insurance — Property damage — Exclusions — Windstorm — Ambiguity — Where insured’s building was damaged by a crane during a tropical storm, trial court erred in granting insured’s motion for summary judgment after determining that the windstorm exclusion in the parties’ contract of insurance was ambiguous and should be construed against the insurer — The windstorm exclusion unambiguously provides that if loss or damage is caused by a windstorm the loss is not covered; and the plain language of the “ensuing loss” provision contained within the exclusion means that if a windstorm sets in motion another cause which is not excluded by the policy, and that intervening cause results in a covered loss, then the windstorm exception does not apply — The record reflects that the parties did not stipulate to the cause of the crane falling, and determination of the cause is essential because the exclusion would only apply if the crane fell due to the force of the wind — Case remanded for resolution of this factual issue

36 Fla. L. Weekly D2336b
83 So. 3d 777

Insurance — Mobile homeowners — Exclusions — Error to find insurer liable for claims arising from named insured’s sexual battery and molestation of minor where policy excluded claims “which are expected or intended by any of you or performed at any of your direction”

36 Fla. L. Weekly D411b
56 So. 3d 63

Insurance — Management liability — Duty to defend and indemnify — Where policy contained intellectual property rights exclusion which provided that insurer would not be liable for loss in connection with a claim in any way involving any actual or alleged intellectual property rights, trial court properly entered judgment on the pleadings in favor of insurer in insured’s action for declaratory relief seeking determination of insurer’s duty to defend and indemnify insured against lawsuits arising out of patents acquired by insured and its subsidiary, allegedly without fair compensation to owner

36 Fla. L. Weekly D450a
59 So. 3d 1166

Insurance — Homeowners — Exclusions — Sexual molestation — No error in declaring that insurer had no obligation to provide defense or coverage on negligent supervision action arising out of sexual molestation where policy excluded bodily injury arising out of sexual molestation — When read in context of other exclusions, which all expressly limited the scope of the exclusion based on some action taken by insured, sexual molestation exclusion, which contained no such express limitation, plainly applied to bodily injury arising out of sexual molestation “by any person”