2013

38 Fla. L. Weekly D2078a
128 So. 3d 107

Insurance — Title — Coverage — No error in dismissing with prejudice an action seeking recovery under owner’s policy of title insurance for losses associated with demolition and redesign of portion of affordable housing project on which was unearthed an abandoned cemetery and human remains during course of construction — Florida Marketable Record Title to Real Property Act relieved insurer of any legal obligation to search chain of title pertaining to the insured property back to time cemetery was created by deed recorded in the public records where recordation of deed occurred more than thirty years before the effective date of root of title — Owner’s attempt to charge insurer with “implied notice” of existence of cemetery based on 1908 deed is excluded by MRTA’s codified limitation on title insurer’s obligations — Insurer did not have obligation to list as an exception from coverage the statutory easement for ingress and egress to relatives and descendants of any person buried in a cemetery in Florida for purpose of visiting the cemetery — Statute does not create interest in real property, but simply a personal privilege, exercisable in the future if a relative or descendant of a person buried in the cemetery comes forward and seeks to visit the cemetery

38 Fla. L. Weekly D1745a
121 So. 3d 607

Torts — Negligence — Breach of bailment — Insurance company’s subrogation action for reimbursement of amounts it paid for loss of engagement ring, filed against former fiancee who broke off engagement and claimed she did not know whereabouts of ring when insured demanded its return — Error to dismiss claims as barred by section 771.01 — Statute does not affect rights of parties relative to gifts passing between them

38 Fla. L. Weekly D1990a
134 So. 3d 477

Torts — Security company — Action by insurer, as subrogee, against security company, alleging company was negligent in failing to advise client, who was plaintiff’s insured, that analog-based security system that company installed would become obsolete once Federal Communications Commission transitioned from analog-based system to digital system, by failing to replace analog-based system with digital system, after transition, and by failing to advise client/insured that system stopped transmitting signals to security company’s monitoring service once transition occurred — Error to enter judgment on pleadings in favor of security company based on contract between parties where plaintiff alleged tort claims independent of contract

38 Fla. L. Weekly D1746c
120 So. 3d 114

Insurance — Residential tenant — Coverage — Denial — Where insurance company presented undisputed evidence that there was no water leak on premises, as insured claimed, and that mold damage was result of defects in construction process, which were not covered by policy, summary judgment was appropriately entered for insurer, albeit trial court entered summary judgment for wrong reason

38 Fla. L. Weekly D49c103 So. 3d 261 BERNARD DANIEL DUFFY, Petitioner, v. STATE OF FLORIDA, Respondent. 5th District. Case No. 5D12-3834. Opinion filed December

38 Fla. L. Weekly D2159a
124 So. 3d 332

Administrative law — Office of Insurance Regulation — Rules — Windstorm and hurricane losses — Credits or other rate differentials — Rule challenge — Standing — Administrative law judge erred in finding that manufacturer of residential garage door bracing system had standing to challenge rules of accompanying forms relating to insurance credits for homeowners who perform certain upgrades — Manufacturer, who was claiming economic harm based on the absence of an insurance credit that Florida homeowners have never been provided, had no protected economic right that was impaired by the rules and forms at issue — Further, manufacturer failed to show that rules and forms at issue resulted in real or immediate injury in fact sufficient to satisfy substantially affected test — ALJ also erred in finding that manufacturer’s interest fell within zone of interest to be protected or regulated by underlying statute or pertinent rules — Statute was clearly designed to protect consumers who choose to strengthen their homes against storm damage and to protect insurers by lessening their financial exposure, and nothing in language of statute indicates that purpose was to increase manufacturers’ sales — Final order invalidating in part certain rules and forms on ground that the rules and forms constituted invalid exercises of delegated legislative authority is reversed

38 Fla. L. Weekly S517a
141 So. 3d 147

Insurance — Personal injury protection — Under 2008 amendments to PIP statute, a PIP insurer cannot take advantage of Medicare fee schedules to limit reimbursements without notifying its insured by electing those fee schedules in its policy — Because policy in instant case did not reference permissive method of calculation based on Medicare fee schedules, insurer could not limit its reimbursement based on those fee schedules

38 Fla. L. Weekly D915a
111 So. 3d 960

Insurance — Personal injury protection — When a particular CPT billing code is no longer recognized by Medicare Part B but the service represented in that billing code remains covered under Medicare Part B, the service is reimbursable under Medicare Part B for purposes of section 627.736(5)(a)(2)(f), Florida Statutes — Where services provided by medical provider were reimbursable under Medicare Part B, insurer was not permitted to utilize the workers’ compensation fee schedule, but was required to reimburse provider under Medicare Part B fee schedule

38 Fla. L. Weekly D2235a
125 So. 3d 333

Insurance — Personal injury protection — Constitutionality of statute — Acupuncture physician, chiropractic physician, and licensed massage therapists lack standing to challenge PIP Act as an unconstitutional denial of right to access to courts — Trial court erred in entering injunction enjoining Commissioner of Florida Office of Insurance Regulation from enforcing portions of PIP Act

38 Fla. L. Weekly S440a
117 So. 3d 388

Insurance — Personal injury protection — Under section 627.736, Florida Statutes (2008), an insurer cannot require an insured to attend an examination under oath as a condition precedent to recovery of personal injury protection benefits — 2012 amendment to statute to include requirement that insureds seeking personal injury protection benefits comply with terms of policy, including submitting to examination under oath, substantively changed statute, and does not inform or control disposition of case which arose prior to amendment