2013

38 Fla. L. Weekly D302a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 38 Fla. L. Weekly D731b

Insurance — Commercial-residential property insurance — Notice of loss — Trial court properly entered summary judgment finding that insured condominium association which gave notice to insurer five years after hurricane that property had sustained damage in hurricane failed to give timely notice of loss — When an insurance contract contains a provision requiring prompt notice of loss, insured must give notice of loss that implicates a potential claim without waiting for the full extent of damages to become apparent — Trial court erred in entering summary judgment finding that insurer was prejudiced by late notice, as issue of prejudice is question of fact for jury

38 Fla. L. Weekly D731b
112 So. 3d 541

Insurance — Commercial-residential property insurance — Notice of loss — Trial court properly entered summary judgment finding that insured condominium association which gave notice to insurer five years after hurricane that property had sustained damage in hurricane failed to give timely notice of loss — Trial court correctly found that insurer was presumed to be prejudiced by insured’s late notice, and insured failed to overcome the presumption of prejudice — Although the issue of whether an insured has overcome the presumption of prejudice caused by late notice is generally reserved for the trier of fact, it is appropriately raised on summary judgment where the insured fails to present evidence sufficient to rebut the presumption

38 Fla. L. Weekly D2093e
124 So. 3d 947

Insurance — Commercial general liability — Exclusions — Surplus lines carriers — Trial court erred in entering summary judgment in declaratory action, finding that exclusions from coverage contained in combination general endorsement of policy issued by surplus lines carrier were unenforceable because insurer had failed to file and obtain preapproval of the combination general endorsement as required by section 627.410, Florida Statutes (2008) — Under the provisions of section 626.913, Florida Statutes, insurer, as a surplus lines carrier, was exempt from the filing and approval requirements of section 627.410 — 2009 amendment to section 626.913 applies retroactively — Retroactive application of statute does not constitute an unconstitutional impairment of insureds’ vested rights — Even if insurer had been required to present the exclusions for review by Office of Insurance Regulation, failure to do so would not be cause for voiding them

38 Fla. L. Weekly D1185c
116 So. 3d 508

Insurance — Commercial general liability — Exclusions — Damage to property leased by insured — Trial court properly entered final summary judgment declaring insurance company has no duty to defend contractor in tort suit involving damage to leased equipment due to negligent operation, where plain and unambiguous policy language excluded coverage for the damaged equipment — Coverage defense — Claim that insurer waived right to claim no coverage by failing to give statutorily required notice of reservation of rights to assert a coverage defense is without merit because there was no coverage

38 Fla. L. Weekly D1890a
131 So. 3d 15

Insurance — Commercial general liability — Defective products — Exclusions — Trial court erred in finding that insurer’s liability for amounts its insured paid to settle several lawsuits arising out of defective doors manufactured by insured was not limited by policy’s “your product” exclusion because some of the defective sliding-glass doors at issue were modified when third party manufactured and installed transoms running atop the doors — Defective sliding glass doors were not fundamentally transformed by the addition of transoms and, therefore, remained insured’s product — Accordingly, “your product” exclusion precluded any damages awarded to replace them

38 Fla. L. Weekly D2256a
126 So. 3d 385

Insurance — Commercial general liability — Trial court did not err in entering summary judgment for defendant insurer, finding that insurer had no duty to defend insured air conditioning contractor against claims of breach of contract and faulty workmanship in the installation of a compressor — Summary judgment was proper where pleadings did not set forth claims within policy coverage — Policy covered bodily injury or property damage resulting from an occurrence, and pleadings did not allege bodily injury or property damage — Property damage refers to damage to property other than the property being repaired, and a complaint seeking recovery for costs of repair and removal of defective work does not involve a property damage claim

38 Fla. L. Weekly D524a
126 So. 3d 297

Insurance — Marine — Action by lien claimant against marine insurer alleging that insurer breached insurance contract by failing to adjust claim for damage to vessel which had been hijacked within ninety days of submission of claim — Where named insureds were corporation which owned vessel and corporation’s sole officer, director, and shareholder who was killed in hijacking, lien claimant who was not a named insured or a loss payee under policy, and who was a stranger to policy lacked authority to file claims under policy before lien claimant was assigned policy rights by named insured’s personal representative — Further, statutory ninety-day period for insurer to pay or deny a claim is inapplicable because the statute applies only to residential property insurers, and because the policy contained a choice of law provision stating that the agreement is subject to the laws of New York — New York time limitations cited by plaintiff are also inapplicable — Because plaintiff had no authority to submit claims, insurer did not breach contract by refusing to adjust claims — Trial court erred in denying defendant insurer’s motion for directed verdict

38 Fla. L. Weekly D1159c
117 So. 3d 16

Insurance — Underinsured motorist — Bad faith — Where insurer refused to pay on uninsured/underinsured motorist (UM) claim to its insured, insured filed Civil Remedy Notice alleging bad faith, then filed one-count complaint seeking damages under insurance policy, and shortly before trial insurer tendered a check to insured for the policy limits and filed confession of judgment and motion for entry of confession of judgment, which trial court denied, resulting in jury trial with determination of $1 million in damages, entry of judgment in favor of plaintiff for policy limits, and reservation of jurisdiction to determine insured’s right to seek and litigate bad faith damages, trial court was in error to require the parties to proceed to trial and should instead have merely entered the confessed judgment in favor of insured, reserving jurisdiction to award only costs, interest and reasonable attorney’s fees — When insurer agreed to entry of judgment against it in the amount of policy limits, the issues between the parties as framed by the pleadings became moot — No merit to insured’s claim that entry of confessed judgment renders remedies for insurer’s failure to act in good faith “impotent and obsolete” — There is no legal impediment to insured’s pursuing bad faith action against insurer — An insured is not required to obtain a jury verdict in excess of the applicable UM coverage as condition precedent to bringing first party bad faith action

38 Fla. L. Weekly D774a
112 So. 3d 547

Insurance — Homeowners — Bad faith — After insured, having sustained sinkhole damage to his home, filed civil remedy notice of insurer violation over the issue of the damages estimate, insurer moved for and was granted dismissal of lawsuit and appraisal, appraisal award was entered in insured’s favor, insurer paid award, and insured filed bad-faith lawsuit for delay damages, trial court erred in entering summary judgment in favor of insurer on grounds that insured could not maintain a bad-faith claim without a breach-of-contract judgment against insurer — An appraisal award is a sufficient resolution in insured’s favor to satisfy the condition precedent required to bring a bad-faith action — No merit to insurer’s claim that civil remedy notice is invalid because it specifies no definite “cure” amount — There is no statutory requirement that the CRN must provide a specific cure amount

38 Fla. L. Weekly D1721a
123 So. 3d 600

Torts — Insurance — Automobile liability — Duty to defend — Excluded claims — Trial court properly entered summary judgment in favor of insurer in action seeking declaration that insurer did not owe duty to defend and indemnify its insureds in negligence action brought against insureds by permissive user of vehicle — Plaintiff was insured, as defined by policy, where he was operating vehicle with insureds’ consent, and policy excluded coverage for bodily injury sustained by insured or any member of insured’s family residing in insured’s household — Exclusions — Provision excluding from coverage insured or members of insured’s family or household is valid