2012

37 Fla. L. Weekly S691a
104 So. 3d 344

Insurance — Citizens Property Insurance Corporation — Bad faith — Sovereign immunity — Appeals — Appellate review of a claim of immunity by Citizens Property Insurance Corporation, a state-created entity, from a bad faith cause of action arising out of the handling of a property damage claim, is not subject to appellate review before entry of final judgment — Writ of prohibition is not available to review claim of immunity where state has partially waived sovereign immunity — Writ of certiorari is not available to review merits of claim of immunity where there is no showing of a departure from the essential requirements of law and no showing of irreparable harm — Continuation of defending lawsuit does not constitute irreparable harm — Court declines to amend rules of appellate procedure to create new exception to allow for review of a non-final order denying a motion to dismiss based on a claim of immunity asserted by a state-created entity — Circuit court’s denial of Citizens Property Insurance Corporation’s motion to dismiss bad faith claim on basis of sovereign immunity is not reviewable

37 Fla. L. Weekly D1701a
94 So. 3d 646

Insurance — Bad faith — Insured’s action against insurer — Circuit court improperly denied insurer’s motion to dismiss count in which insured asserted claims for breach of common law implied covenant of good faith and fair dealing — Trial court did not have benefit of supreme court decision holding that there is no common law first-party bad-faith action in Florida and concluding that “such first-party claims are actually statutory bad faith claims that must be brought under section 624.155”

37 Fla. L. Weekly D2452c
109 So. 3d 226

Insurance — Automobile liability — Leased vehicles — Trial court erred in entering summary judgment finding that lessee of truck and its employee were not named insureds under policy issued to lessor of truck where policy designated as named insureds the lessor and “anyone else while using with your permission a covered ‘auto’ you own, hire or borrow” — Although lessee obtained liability coverage as required by lease agreement, and lease agreement provided that such insurance shall be primary, lessor did not effectively shift responsibility of carrying primary coverage to lessee where lease provision shifting responsibility was not in at least 10-point type as required by section 627.7263(1), Florida Statutes (2004) — Federal Graves Amendment, which precludes liability being established against the owner of a rental vehicle on the basis of the common law principle of vicarious liability, does not preempt statute where lessor had settled claim against it, and claims at issue are against lessee and its employee

37 Fla. L. Weekly D1388a
126 So. 3d 1136

NOT FINAL VERSION OF OPINION
Subsequent Changes at 37 Fla. L. Weekly D2774a

Insurance — Automobile liability — Bad faith failure to settle — Common law bad faith action against insurer by plaintiff who was assignee of insured and personal representative of estate of individual who died as result of injuries sustained in accident in which insured rear-ended decedent’s vehicle — Undisputed facts demonstrated no basis from which reasonable jury could conclude that insurer acted solely in its own interest, but instead showed that insurer acted properly and promptly in continually contacting plaintiff in order to discover name of attorney retained by her so that insurer could then contact the attorney — Insurer was not required to tender check for its policy limits to plaintiff, despite fact that insurer knew plaintiff had retained an attorney — Trial court properly granted summary judgment on behalf of insurer based on unrefuted evidence that insurer acted in good faith in attempting to settle case

37 Fla. L. Weekly D2774a
107 So. 3d 433
Insurance — Automobile liability — Bad faith failure to settle — Common law bad faith action against insurer by plaintiff who was assignee of insured and personal representative of estate of individual who lapsed into coma and ultimately died as result of catastrophic injuries sustained in accident in which insured, who was traveling at a high rate of speed with a blood alcohol level of .19, rear-ended decedent’s vehicle — Trial court erred in granting summary judgment in favor of insurer based on its assumption that there could be no bad faith because decedent was in a coma and therefore there was no one to whom to make an offer — Disputed issues of fact and issues of credibility remain which could not be resolved by summary judgment

37 Fla. L. Weekly D1115a
86 So. 3d 1259
Insurance — Automobile liability — Declaratory action by insurer seeking declaration that policy issued to insured corporation was void ab initio due to a fraudulent, material misrepresentation by insured when it failed to include on driver’s list submitted with application the name of the driver who was involved in accident — Trial court erred in entering summary judgment for defendant on ground that the term “driver” was ambiguous because the term was not defined in application — Issue of ambiguity involves material questions of fact as to whether driver of vehicle was an employee of insured corporation, how often driver drove for insured when application was completed, what effects prior dealings between parties had on insured’s understanding of terms in application, and whether insurer’s failure to use its Non-Specified Operators form impacted insured’s ability to properly complete application

37 Fla. L. Weekly D2789a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 38 Fla. L. Weekly D749a

Insurance — Automobile dealership inventory — Coverage — Titled vehicle held for sale at location scheduled on Declarations — Accident occurring when owner of dealership was en route to have car inspected by another dealer with a planned pick-up by buyer following the inspection — Appeals — Effective review of final judgment entered in favor of insurer is not possible where grounds upon which court found for insurer do not appear and it is possible that trial court may have found for the insurer based upon erroneous conclusion that the vehicle was not a “titled” vehicle — Remand for entry of amended final judgment

37 Fla. L. Weekly D201a
79 So. 3d 843

Insurance — Automobile — Attorney’s fees — Insured prevailing in action against insurer — Nine-month delay in payment of benefits due under policy was not justified by insurer’s suspicions that accident was staged — Error to deny attorney’s fees to insured, who was forced to secure counsel both to respond to initial denial of coverage and to subsequently litigate over insurer’s delay in payment — Insurer entitled to fees for reasonable and necessary hours spent in pursuing those claims — Counsel may also recover reasonable fees incurred in establishing entitlement to fees

37 Fla. L. Weekly D344a
80 So. 3d 394

Insurance — Automobile — Coverage — Automobile accident occurring during interim between lapse of coverage under expired policy and reinstatement of policy — Trial court erred in ruling that insurer’s unconditional acceptance of premium waived its right to claim that there had been a lapse in coverage — Where a policy expires without the insured making a renewal payment, and a loss occurs after the expiration of the policy period, the insurer may subsequently accept premium payments and reinstate the policy prospectively without waiving the right to deny coverage for the loss — Estoppel — Genuine issue of material fact remains as to whether a potentially misleading bill that insurer sent to named insured, which incorrectly listed the renewal policy period, supports affirmative defense of estoppel — Civil procedure — Summary judgment — Trial court erred in rejecting, as self-serving, affidavit of insurer’s underwriting specialist which simply asserted that insurer mailed renewal bills and reminders, insured failed to timely pay renewal premium, and when insured made premium payment following accident, insurer reinstated policy commencing the next day

37 Fla. L. Weekly D571a
82 So. 3d 159

Insurance — Homeowners — Attorney’s fees — Prevailing party — Error to deny insureds’ motion for attorney’s fees pursuant to section 627.428 where insurer’s payments made after suit was filed were tantamount to confessions of judgment entitling the insureds to attorney’s fees, and lawsuit served a legitimate purpose because it motivated the insurer to pay not only the amount of the appraisal award, but additional living expenses incurred as well