2012

37 Fla. L. Weekly D1614b
91 So. 3d 910

Insurance — Insolvent insurers — Florida Insurance Guaranty Association — Refusal to reissue settlement check which had been issued by FIGA’s predecessor pursuant to settlement agreement, but which had become stale — Where it was undisputed that predecessor had entered into valid settlement agreement whereby it agreed to pay $125,000 to estate of child who was struck and killed by cab operated by insured, the estate’s claim was a covered claim, and claim was within coverage and not in excess of policy limits, it was error to enter summary judgment in favor of FIGA in estate’s action to require FIGA to honor or reissue settlement check — Fact that FIGA’s predecessor had also tendered separate check to child’s parents to settle their individual claims, without requiring proof of physical injury, did not serve to defeat or offset the legitimate claim of the estate that remained unpaid

37 Fla. L. Weekly D1678b

NOT FINAL VERSION OF OPINION
Subsequent Changes at 37 Fla. L. Weekly D2772a

Insurance — Florida Insurance Guaranty Association — Covered claims — Surplus lines policy — Where policy was issued by surplus lines carrier which subsequently merged with a Florida licensed company, but the surplus lines policy was not renewed after the merger, FIGA had no duty to defend or indemnify the insured in a personal injury action — Surplus lines policies are expressly outside the scope of FIGA provisions, and a claim made upon such a policy cannot be covered under FIGA — Surplus lines carrier’s merger with Florida licensed company and its corresponding change in status from an unauthorized insurer to a member insurer did not change the nature of the policy — The nature of the policy rather than the status of the insurer is determinative of FIGA’s duty to defend and indemnify

37 Fla. L. Weekly D1614b
91 So. 3d 910

Insurance — Insolvent insurers — Florida Insurance Guaranty Association — Refusal to reissue settlement check which had been issued by FIGA’s predecessor pursuant to settlement agreement, but which had become stale — Where it was undisputed that predecessor had entered into valid settlement agreement whereby it agreed to pay $125,000 to estate of child who was struck and killed by cab operated by insured, the estate’s claim was a covered claim, and claim was within coverage and not in excess of policy limits, it was error to enter summary judgment in favor of FIGA in estate’s action to require FIGA to honor or reissue settlement check — Fact that FIGA’s predecessor had also tendered separate check to child’s parents to settle their individual claims, without requiring proof of physical injury, did not serve to defeat or offset the legitimate claim of the estate that remained unpaid

37 Fla. L. Weekly S34a
80 So. 3d 313

Insurance — Attorney’s fees — Florida Insurance Guaranty Association — Action to recover attorney’s fees and costs from FIGA pursuant to section 627.428(1), Florida Statutes (2008) — Plain language of section 631.54(3), Florida Statutes (2008), indicates that in order for FIGA to be obligated to pay claims they must originate from an insurance policy, and must be within the coverage of, or be included within risks taken on and losses protected against in, an insurance policy — Where insured’s policy does not expressly provide coverage for a section 627.428(1) award, it is not a covered claim under section 631.54(3) that FIGA must pay — Argument that FIGA should be obligated to pay because fee award is impliedly covered by policy where law subjects every Florida insurance policy to section 627.428(1), is rejected — Fact that section 627.428(1) is implicit part of policy does not mean claim against insurer for fees and costs is part of policy’s “coverage” as required by section 631.54(3)

37 Fla. L. Weekly D1140c
86 So. 3d 1274

Insurance — Uninsured motorist — Coverage — Stacking — Action against UM insurer by insured policyholder who was injured in single-car accident while riding as passenger in a vehicle which was owned by her father, also a policyholder, and driven by third party/permissive user and who claimed medical costs in excess of amount of combined payments from liability portion of policy and driver’s liability insurance — Exclusions — Trial court properly found that policy provision excluding from definition of uninsured motor vehicle any vehicle available for regular use of any family member conflicted with mandatory UM requirements of section 627.727(3) and was therefore invalid basis for denying coverage when nonfamily member was a permissive user of insured family vehicle and permissive user’s operation of vehicle caused injury to family member who was a Class I insured — Trial court properly ruled that non-stacking election signed by passenger’s mother, who purchased the policy at issue, did not apply to plaintiff because insurer did not obtain knowing acceptance of any such limitation by plaintiff — Waiver of stackable coverage must be personally made by insured who claims stacked benefits — Trial court properly granted summary judgment on coverage and stacking issues — However, trial court erred in awarding the $300,000 claimed by plaintiff where insurer asserted other defenses which might impact amount of benefits due under the policy — With regard to coverage issue, question certified whether the family vehicle exclusion for uninsured motorist benefits conflicts with section 627.727(3) when the exclusion is applied to a class I insured who seeks such benefits in connection with a single-vehicle accident where the vehicle was being driven by a class II permissive user, and where the driver is underinsured and liability payments from the driver’s insurer, when combined with liability payments under the class I insured’s policy, do not fully cover the class I insured’s medical costs — With respect to stacking issue, question certified whether uninsured motorist benefits are stackable under section 627.727(9) where such benefits are claimed by an insured policyholder, and where a non-stacking election was made by the purchaser of the policy, but where the insured claimant did not elect non-stacking benefits

37 Fla. L. Weekly D164a
77 So. 3d 254

Insurance — Automobile — Homeowners — Circuit court properly found that homeowner’s insurer, not issuer of automobile policy, was liable for indemnity and defense of claims against an insured who, while passenger in car driven by girlfriend and owned by girlfriend’s parents, repeatedly reached over and grabbed steering wheel without altering direction of vehicle — Accident which occurred when driver swerved as she was trying to push insured away was not covered by automobile policy — Passenger’s grabbing of steering wheel to annoy driver was not “use of . . . a non-owned auto” within meaning of automobile policy; and damages claimed did not fall within provision of homeowners policy excluding claims for bodily injury or property damage arising out of ownership, maintenance, or use of motor vehicle — Further, because vehicle was non-owned auto within meaning of automobile policy, coverage was available only if insured was “driving” “with the permission, or reasonably believed to be with the permission of the owner,” and it was not reasonable to believe that insured’s horseplay was in any way sanctioned by owners of vehicle

37 Fla. L. Weekly D1604b
98 So. 3d 74
Insurance — All risk business owner’s policy — Coverage — Collapse — Ambiguity — Appeal of summary judgment entered in favor of insurer in declaratory judgment action after trial court concluded that damaged clubhouse, in which the ceiling had dropped twelve inches due to rain water and overweight air conditioning units, was not in a state of “collapse” as that term was defined by the insurance policy — Policy defining “collapse” as an abrupt falling down or caving in of a building, or any part of a building, with the result that the building cannot be occupied for its intended purpose, and covering collapse caused by the weight of people or property and rain water — Argument that policy does not cover loss because the roof had not “fallen” and the building was still standing, is rejected — Policy is not written in terms of how far a building must fall down or to what degree a building must cave in, and policy clearly does not require total destruction for “collapse” to occur — When the trusses failed, the roof above the trusses and the drop ceiling below the trusses deflected downward twelve inches meeting not only the definition of “falling down,” but the definition of “caving in” as well — In addition, all building parts fell inward suddenly and record establishes that building is structurally unsafe and cannot be occupied for its intended purpose — Having found that damage to clubhouse meets definition of collapse under certain paragraph of policy, if appellate court were to accept insurer’s argument that other paragraphs under the covered loss section of policy should be interpreted to avoid coverage, then the policy would be ambiguous and any ambiguity in policy must be resolved in favor of coverage — Exclusions — Exclusions which insurer cites as excluding coverage of damage to clubhouse directly contradict and conflict with the collapse coverage provided in the covered loss section, and is another ambiguity in the policy

37 Fla. L. Weekly D2540a
123 So. 3d 583

Insurance — Liability — Exclusions — Bodily injury caused by transmission of communicable disease or virus — Trial court correctly concluded that insurer did not owe duty of defense or indemnification to insured in action in which a plaintiff alleged she “was exposed to a high risk HSV virus and contracted the herpes virus” from insured where, although insurer agreed to defend and indemnify insured for claims brought against him “for damages because of bodily injury,” policy plainly excluded from the definition of “bodily injury” the transmission of a communicable disease to another by an insured — Fact that policy did not use specific phrase “arising out of” to exclude coverage for these damages does not change result or support insured’s argument that policy did not exclude coverage for resulting physical injuries caused by disease

37 Fla. L. Weekly D2688a
103 So. 3d 200

Insurance — Uninsured motorist — Discovery — Non-parties — Nature and extent of relationship between plaintiff’s counsel’s law firm and plaintiff’s treating physician — Where there is a preliminary showing that plaintiff was referred to doctor by lawyer, whether directly or through third party, or vice versa, defendant is entitled to discover information regarding the extent of the relationship between the law firm and the doctor — Order compelling law firm to produce discovery pertaining to its relationship with treating physician was premature where record did not establish that physician and law firm had a financially beneficial relationship

37 Fla. L. Weekly D2737a
101 So. 3d 412

Insurance — Property — Roof damage caused by hurricane — Discovery — Work product — Attorney-client privilege — Where coverage issue was in dispute and had not been resolved, trial court departed from essential requirements of law, causing irreparable injury, by allowing discovery of activity log notes, emails, and photographs contained in insurer’s claim file