2013

38 Fla. L. Weekly D817a
111 So. 3d 240

Insurance — Automobile liability — Plaintiff’s motion to add defendant’s liability insurer as party to final judgment for purposes of attorney’s fees and taxable costs was timely — Where final judgment reserved jurisdiction to consider any motions regarding attorney’s fees, motion to add insurer as party, which was filed before entry of judgment on issue of attorney’s fees, was timely — Date of final judgment in main dispute is not proper date for determining timeliness of motion — Arguments raised by insurer in motion for rehearing in trial court were abandoned where insurer filed notice of appeal prior to motion for rehearing being disposed of by signed, written order

38 Fla. L. Weekly D391a
117 So. 3d 1142

Insurance — Homeowners — Attorney’s fees — Insured’s action against insurer for breach of contract and bad faith, and to confirm appraisal award after insurer had sent check to insured for appraisal award but improperly deducted from the appraisal award the amount it unilaterally concluded would be the amount of depreciation — Trial court properly granted insured’s motions for entitlement to attorney’s fees and costs for having recovered depreciation payment — Trial court did not abuse discretion in awarding attorney’s fees for 150 hours, which court reduced from requested 225 hours based on expert testimony, at hourly rate of $450, plus a multiplier of 2.0 — Trial court did not award fees for time spent on unresolved bad faith claim

38 Fla. L. Weekly D1224d
125 So. 3d 956

Insurance — Uninsured motorist — Argument — Expert witnesses — Impeachment — Error to deny insurer’s motion for new trial based on improper closing argument by plaintiff’s counsel and improper cross-examination of insurer’s expert witness — Numerous improper comments urging jury to punish insurer for defending against insured’s claim in court exceeded scope of permissible argument — Questioning of defense expert who conducted compulsory medical examination of plaintiff was improper as to the absence of detailed records showing the number of and payment for compulsory medical examinations performed by expert for insurer, and as to expert’s failure to physically bring requested items with him to court — Costs — Although insured’s cross-appeal of order denying insured’s motion for costs is moot, court notes that provision in UM policy that costs are to be paid by party incurring them is unenforceable

38 Fla. L. Weekly D2386a
126 So. 3d 1255

Insurance — Homeowners — Assignment of benefits — Breach of contract action against insurer by remediation company which had been assigned right to benefits under policy by insured homeowner — Trial court erred in dismissing action on ground that assignee remediation company lacked standing because assignment was invalid where that ground was not raised in motion to dismiss — Although not ruling on issue, court notes that provision of policy that prohibits assignment of policy does not appear to prevent assignment of benefits owing by virtue of a claim arising under policy — Appeals — An order that dismisses a complaint without leave to amend is a final appealable order even if the order is not “with prejudice”

38 Fla. L. Weekly D619b
121 So. 3d 50

Insurance — Bad faith — Arbitration — Trial court erred in denying insurer’s motion to compel arbitration where policy provided for arbitration of disputes or differences of opinion “arising with respect to interpretation of this Policy or in the event of disagreement as to whether or not a particular settlement should be made,” and the issues raised in the bad faith claims at issue are inextricably intertwined with arbitrable issues — Arbitration proceeding will determine issues which underlie bad faith claims

38 Fla. L. Weekly D396a
106 So. 3d 997

Insurance — Administrative law — Homeowners insurer did not waive right to enforce policy appraisal provision by failing to notify insured within five days of receiving claim of right to participate in state-sponsored mediation program where insurer did give insured notice of right to participate in mediation, but not within the five-day period prescribed by administrative rule — By adopting five-day rule, Florida Department of Financial Services exceeded its rulemaking authority

38 Fla. L. Weekly D820a
125 So. 3d 846

Insurance — Property — Condominiums — Hurricane damage — Appraisal — Reduction — Exclusions — Provisions of policies excluding from coverage “other structures on the demised locations, set apart from the building by clear space” did not conflict with statute requiring insurers that issue condominium policies to provide coverage for all portions of condominium property located outside the units and all portions of condominium property for which declaration of condominium requires coverage by the association — Statute, read as a whole, reflects purpose of regulating insurance obligation of condominium associations and was not intended to impose mandatory insurance obligation upon carriers — Accordingly, trial court erred in failing to reduce appraisal award by amounts related to damages excluded from coverage — Trial court erred in entering summary judgment confirming appraisal award without considering insurer’s contention that parties reached pre-appraisal agreement that settled amount due for roof repairs and water extraction for two of the insured buildings — This defense, which was in the nature of accord and satisfaction, should have been adjudicated by court, as it raised claim not encompassed by appraisal clauses in the policies as well as one that appraisers are ill-equipped to decide — Trial court did not err in refusing to address insurer’s defense that certain items awarded were duplicative, as this issue was solely within province of appraisers — If appraisers improperly duplicated itemized losses, it was incumbent upon insurer to seek clarification and/or modification of appraisal — Trial court did not err in refusing to entertain insurer’s claim that it properly removed amounts from the appraisal award that represented losses to property the unit owners were responsible for insuring pursuant to section 718.111(11) where insurer did not contend that policies did not actually cover these losses — Appraisal should be further reduced by amounts previously paid by insurer

38 Fla. L. Weekly D649a
110 So. 3d 110

Insurance — Property — Coverage — Hurricane damage — Appraisal — Ordinance and law coverage — Error to enter final summary judgment in favor of insurer in declaratory judgment action in which property owner contended he was entitled to ordinance and law coverage based on roof damage caused by hurricane — Ordinance and law claim was not encompassed by original appraisal, as evidenced by fact that appraisal award stated that “Ordinance and Law” was not appraised — Further, ordinance and law is not recoverable until it is incurred and thus could not have been appraised at time of original appraisal — Insurer’s contention that ordinance and law coverage is not implicated because appraisers allowed for only two square feet of tile replacement, which was considerably less than the 25% of the total area which would trigger city’s requirement that the entire roof be replaced to current ordinance standards — This was not a ground argued by insurer in its motion for summary judgment; and, in any event, property owner offered affidavit from general contractor stating that city would require replacement because original roof tiles were no longer made and could not be replaced — Property owner was not required to follow formal procedures of Arbitration Code in order to challenge appraisal award

38 Fla. L. Weekly D1507c
117 So. 3d 1226

Insurance — Windstorm — Appraisal — Trial court erred in applying Florida Arbitration Code to “confirm” appraisal award — It was error for court to accept insured’s argument that insurer’s defenses were subsumed in the appraisal process or waived by insurer’s agreement to appraisal — Proper procedure required that insurer’s defenses be addressed, not by motion to confirm appraisal award under Florida Arbitration Code, but rather by motion for summary judgment or trial

38 Fla. L. Weekly D976a
126 So. 3d 355

Insurance — Homeowners — Appraisal — Error to grant motion to compel appraisal where parties had not entered a written agreement setting forth the terms of the appraisal as required by appraisal clause in policy