2011

36 Fla. L. Weekly D1365a
62 So. 3d 1281

Insurance — Comprehensive liability — Exclusions — Injuries to children of employees of named insured — Provision that insurance does not apply to “ ‘Bodily Injury’ sustained by the spouse, child, parent, brother or sister of any employee of any insured, or of a contractor, or of an employee of a contractor of any insured as a consequence of ‘bodily injury’ to such employee, contractor, or employee of such contractor, arising out of and in the course of such employment or retention by or for any insured” was properly found by trial court to be ambiguous — Trial court properly found that coverage was not excluded for injuries to the son of an employee of the named insured who was injured when he fell from a tractor being operated by the employee in the course and scope of his employment with the named insured

36 Fla. L. Weekly D515a
57 So. 3d 238

Insurance — Commercial property — Windstorm — Discovery — Trial court departed from essential requirements of law by entering orders compelling two senior officers of insurer to appear for deposition in windstorm insurance case where insurer filed affidavit establishing that these senior officers had no role in investigation or adjustment of insured’s claims

36 Fla. L. Weekly D1786a
82 So. 3d 1001

Insurance — Commercial property — Coverage — Theft — Newly acquired property stored at newly acquired location — Shipment of new inventory housed in insured’s newly-leased warehouse was covered under section of policy providing coverage for business personal property located at a “newly acquired location” and business personal property which was “newly acquired” — Although trial court correctly found that policy provided theft coverage for insured’s loss of this inventory, trial court erred in applying off-premises clause of policy, which applied to temporary storage situations and which limited coverage to maximum of $10,000

36 Fla. L. Weekly D484a
59 So. 3d 177

Insurance — Commercial property — Appraisal — Trial court erred in granting insureds’ motion to compel appraisal where there was factual dispute as to whether insureds had complied with policy’s post-loss provisions

36 Fla. L. Weekly D2669b
75 So. 3d 812

Insurance — Commercial liability — Coverage — Reformation — Mutual mistake — Appeal of declaratory judgment determining that coverage existed for a claim filed against insured arising from injuries sustained while consumer was using exercise ball sold by insured — Declaratory judgment is reversed because trial court’s findings of undisputed fact support reformation of parties’ insurance policy based on mutual mistake where, although original policy included an exclusion schedule that was inadvertently left blank and insured was unaware that new copies of policy mailed to insured’s agent contained corrected exclusion endorsement, insurer and insured agreed that the exercise balls would be excluded from coverage prior to the policy being issued — Trial court’s focus on how insurer failed to notify insured and insured’s agent of the clerical error was misplaced because the manner of notification did not change undisputed fact that the corrected exclusion endorsement did not alter the parties’ agreement to exclude the exercise balls

36 Fla. L. Weekly D1818a
69 So. 3d 975

Insurance — Coverage — Commercial general liability — Exclusions — Appeal from declaratory judgment determining the existence of coverage — Claim arising out of insured’s painting work for plaintiff’s apartments which resulted in spattered paint on glass windows and doors which were allegedly damaged when paint was removed — Error to conclude coverage existed where policy included provisions excluding damage to real property on which operations were being performed if the property damage arose out of those operations or that particular part of any property that must be restored, repaired or replaced because insured’s work was incorrectly performed on it — Cleaning paint spatter from windows and doors was within natural and intended scope of work undertaken by insured and insured’s operations were intended to include the apartments which were being painted, therefore, there is no genuine issue of fact that damage to property arose out of insured’s operations and the underlying claim resulted from insured’s incorrect work within the meaning of the exclusion

36 Fla. L. Weekly D2520a
76 So. 3d 20

Insurance — Commercial general liability — Duty to defend — Error to enter summary judgment based on finding that insurer had no duty to defend insured in personal injury action that fell within automobile exclusion of commercial general liability policy where complaint alleged facts that fairly brought suit outside automobile exclusion

36 Fla. L. Weekly D352c
53 So. 3d 1220

Insurance — Commercial general liability — Duty to defend and indemnify — Exclusions — Assault and battery — Where plaintiff, who was patron in flea market operated by insured, alleged that off-duty sheriff’s officer employed by insured used excessive force while arresting him and that such force caused bodily injury to plaintiff, complaint clearly alleged a battery — Error to find that insurer had duty to defend and indemnify insured where policy unambiguously excluded coverage for claims based on an assault or battery

36 Fla. L. Weekly D1710a
67 So. 3d 1156

Declaratory judgments — Insurance — Commercial general liability — Trial court departed from essential requirements of law by failing to dismiss action to determine whether plaintiffs’ claims against insured were covered by insurance policy issued by defendant-insurer where plaintiffs failed to obtain a settlement with or verdict against the insured prior to filing of declaratory judgment action — Plaintiff could not avoid presuit requirements set forth in nonjoinder statute by instituting separate declaratory judgment action against insurer

36 Fla. L. Weekly D1463b
71 So. 3d 134

Insurance — Personal injury protection — Non-emergency, non-hospital services — Fee schedule — Providers’ action against insurers — Consolidated class action brought against PIP insurers by health care providers who performed MRI services for insureds for which they were allegedly underpaid — Insurers could not rely on computations that capped payments due for MRI services based on Medicare’s Hospital Outpatient Prospective Payment System, which required the use of an additional limiting schedule in determining allowable Medicare payments under Medicare Part B — Sections 627.736(5)(a)(2)(f) and (5)(a)(3) of the Florida Motor Vehicle No-Fault law expressly designated the participating physicians schedule of Medicare Part B as the operative fee schedule to be utilized in computing the minimum amount insurers were allowed to remit for the types of services rendered by the providers — The additional fee schedule under OPPS is a distinct and separate component of the Medicare Part B program and cannot be used to cap amount payable where statute unambiguously refers to the participating physicians schedule as the fee schedule on which to rely