2012

37 Fla. L. Weekly D1022a
95 So. 3d 891

Insurance — Homeowners — Sinkhole claim — Trial court erred in entering summary judgment finding that insurer breached contract by denying insured’s claim where insurer initially sent a letter to insured declining coverage based on engineer’s report and later decided unilaterally to pay the full policy limits during neutral evaluation — Under circumstances, insurer’s payment of policy limits did not constitute a confession of judgment

37 Fla. L. Weekly D2297b
100 So. 3d 720

Insurance — Homeowners — Appraisal — Insurer did not waive right to appraisal by failing to provide timely notice of mediation under section 627.7015, Florida Statutes, where insured had prematurely commenced litigation against insurer — Trial court erred in granting insured’s motion to enjoin appraisal proceedings and lift stay of litigation

37 Fla. L. Weekly D273a
77 So. 3d 1278

Insurance — Homeowners — Coverage — Building ordinance or law endorsement, which provided additional amount of insurance to cover cost of bringing structure into compliance with applicable ordinances and laws — Error to grant summary judgment in favor of insurer in suit filed by insured seeking declaratory judgment as to whether the appraisal demanded by insurer was required with respect to claims made under endorsement and further alleging breach of contract by insurer based on denial of claim — Genuine issues of material fact existed as to whether parties disputed the amount of loss, which would require appraisal, or denial of coverage

37 Fla. L. Weekly D511a
83 So. 3d 908

Insurance — Homeowners — Appraisal — Trial court erred in granting insured’s motion to compel appraisal without conducting an evidentiary hearing where there was an issue of fact as to whether insured had complied with post-loss obligations

37 Fla. L. Weekly D884b
84 So. 3d 1238

Insurance — Homeowners — Appraisal — Summary judgment in favor of insurer, holding that insured breached insurance policy by terminating an appraisal umpire and filing suit before completing the appraisal process, thereby rendering the insurance policy ineffective and relieving insurer of its contractual obligations, was improper because genuine issues of material fact remained — Where there was a breakdown in the appraisal process relating to umpire’s slow pace, insured’s appraiser’s unilateral action to remove the umpire without having authority to do so was improper but may not necessarily constitute a refusal by the insured to comply with the presuit condition to complete the appraisal process — The issue of whether this constituted a material breach of the policy is a question remaining for resolution by the fact finder

37 Fla. L. Weekly D946a
88 So. 3d 965

Insurance — Homeowners — Sinkhole damage — Dismissal — Fraud on the court — Trial court properly dismissed complaint against insurer seeking additional funds for repair of damages on ground of fraud on the court where plaintiffs filed false affidavits regarding entry into contract with a contractor to repair damages, a condition precedent to filing suit — Trial court abused discretion by dismissing complaint with prejudice on the basis of a procedural irregularity where defendant insurer did not establish that there was either no breach or no damages — It would have been appropriate for court to either abate cause until condition precedent was fulfilled or dismiss complaint with leave to amend — On remand, trial court to consider evidence on amount of fees and costs necessarily expended by defendant from filing of premature complaint through dismissal for efforts in establishing plaintiffs’ fraud and to enter judgment for lodestar amount

37 Fla. L. Weekly D2091a
97 So. 3d 918

Insurance — Contracts — Judicial estoppel — Action by school board against insurance company which provided excess medical insurance coverage for school board students and employees and insurance agency which administered plan under which insurance was provided, alleging breach of contract in that claim for medical bills of school board employee was denied — Where insurance company denied claim on the basis that information regarding employee’s pre-existing condition had not been disclosed to company during application process, and record reflects that insurance agency had received the information regarding the pre-existing condition prior to close of the application process, claims against insurance company and insurance agency were mutually exclusive because either agency failed to submit the information to insurance company or, alternatively, company wrongfully denied coverage — School board was not judicially estopped from continuing action against insurance agency after claim against insurance company had been settled for less than the full amount of damages claimed — In order for judicial estoppel to apply, school board must have “successfully maintained” an inconsistent position in action against insurance company, and inconsistent position cannot be viewed as having been successfully asserted against insurance company where claim was resolved by settlement for less than the full amount of damages sought

37 Fla. L. Weekly D1565a
92 So. 3d 871

Insurance — Personal injury protection — Fraud — False or misleading statement relating to claim or charges — PIP insurer’s action against provider seeking declaration that provider’s pattern of misleading practices in its billings relieved insurer and the insured persons from liability for the charges — Trial court properly held that neither insurer nor its insureds owed any PIP and medical payment benefits for any of the charges encompassed within provider’s claims with respect to the insureds — Statute relieves both insurer and insured from paying claims of “any person who knowingly submits a false or misleading statement relating to the claim or charges” — Plain language of statute supports invalidation of not only specific individual charges that were the subject of false and misleading billing statements, but also the entire “claim,” the collective of all charges

37 Fla. L. Weekly D2772a
106 So. 3d 1

Insurance — Florida Insurance Guaranty Association — Covered claims — Surplus lines policy — Where homeowners liability policy was initially issued by a foreign surplus lines carrier which was not subject to FIGA Act, but the surplus lines carrier was acquired and merged into a Florida licensed company which was subject to FIGA Act, FIGA was liable for a claim against insured based on a personal injury that occurred on property after the acquisition and while the Florida licensed company was in viable existence

37 Fla. L. Weekly D707a
85 So. 3d 1143

Insurance — Homeowners — Attorney’s fees — Florida Insurance Guaranty Association — Statute of limitations — Where, shortly before statute of limitations expired, FIGA informed insured it would not be able to investigate and settle her claim before expiration date and advised her to seek legal counsel immediately, which advice insured followed resulting ultimately in the parties’ proceeding through the appraisal process and trial court’s award for hurricane damage, trial court properly denied insured’s motion for attorney’s fees which claimed FIGA had denied her claim by affirmative action — In informing her it would not be able to investigate or settle claim before statute of limitations expired, FIGA never denied insured’s claim — Even if so informing insured constituted denial of claim, insured would still not be entitled to fees because such denial would be the result of delay, and the statute provides for attorney’s fees when FIGA denies a claim “by affirmative action, other than delay”