2015

40 Fla. L. Weekly D862a
186 So. 3d 1

Insurance — Homeowners — Insurable interest — Trial court erred in dismissing breach of contract action against insurer by insured’s assignee on ground that assignee did not have an insurable interest in the insured home at the time of loss — A post-loss assignee is not required to have an insurable interest at the time of loss where the assignor policy holder had an insurable interest at the time of loss

40 Fla. L. Weekly D1811a
171 So. 3d 194

Insurance — Third-party action by homeowners insurer that had been sued by insureds after it had denied claim for water damage to home against plumber who allegedly negligently caused the damage, alleging negligence on part of plumber, common law indemnity, and equitable subrogation — Trial court erred in dismissing claim for common law indemnity on basis that there was not a special relationship between the parties — Trial court erred in dismissing equitable subrogation claim on basis that insurer had not yet paid the debt to insureds — A third-party action for equitable subrogation may be filed before the underlying debt has been paid — Trial court also erred in dismissing negligence claim — Because defendant had not yet filed a responsive pleading to the third-party action, there was an automatic right to amend the third-party complaint, and court had no discretion to deny request for leave to amend

40 Fla. L. Weekly D2678a
180 So. 3d 195

Insurance — Medicare Advantage organization — Trial court did not have jurisdiction of insureds’ declaratory action to determine Medicare Advantage organization’s right to reimbursement of conditional payments from proceeds of insured’s settlement with tortfeasor who caused insured’s injuries — Court lacked subject matter jurisdiction because insureds failed to exhaust mandatory administrative remedies and, even if exhaustion had occurred, claim is subject to exclusive federal jurisdiction — Disputes concerning reimbursement of conditional payments are claims for benefits that arise under the Medicare Act, and must be exhausted through administrative appeals process before invocation of judicial review in federal court — Florida’s collateral sources of indemnity statute is inapplicable to Medicare Advantage organization’s reimbursement rights — Florida subrogation law is expressly preempted by Medicare Act

NOT FINAL VERSION OF OPINION
Subsequent Changes at 40 Fla. L. Weekly D1420b

Insurance — Sinkhole claims — Trial court erred in compelling Florida Insurance Guaranty Association to participate in appraisal of sinkhole claim

40 Fla. L. Weekly D368a
162 So. 3d 183

Insurance — Exclusions — Exclusion of coverage on single-family home for losses caused by vandalism and malicious mischief, theft or attempted theft if dwelling had been vacant or unoccupied for more than thirty consecutive days excluded coverage for arson which destroyed insured home

40 Fla. L. Weekly D2428c
198 So. 3d 45

Insurance — Homeowners — Sinkhole claim — There is no merit to insurer’s contention that it was entitled to directed verdict due to statutory presumption of correctness afforded to certain findings and recommendations of engineering or geological professionals, or insurer’s contention that it should not have had burden of proof concerning the exclusion of coverage for sinkhole claim — Interest — Insureds were not entitled to prejudgment interest from a point prior to verdict where there was no factual determination establishing an earlier fixed date of loss from which to calculate prejudgment interest

40 Fla. L. Weekly D67a
156 So. 3d 511

Insurance — Professional liability — Exclusions — Policy provision which excluded “claims arising out of the inability or failure to pay, collect, administer or safeguard funds held or to be held for others,” unambiguously excluded coverage for insured’s negligent disbursement of funds being held in her trust account while acting as escrow agent in real estate transaction

40 Fla. L. Weekly D433a
157 So. 3d 486

Insurance — Homeowners — Exclusions — Water damage — Water damage exclusion in policy excluded coverage for damage caused when subsurface water accumulated underneath swimming pool which had been partially emptied by insured during tropical storm, exerting hydrostatic pressure which caused pool shell to lift out of the ground

40 Fla. L. Weekly D1910a
174 So. 3d 479

Insurance — Homeowners — Declaratory judgment — Duty to defend and indemnify — Exclusions — Damages arising out of sexual molestation, corporal punishment or physical or mental abuse — Intentional shooting — Plain meaning of words “physical abuse” includes an instance such as one at issue in which insured lent gun to his sister who then used gun to shoot plaintiff, her son-in-law, outside of her home — Trial court properly entered summary judgment in favor of insurer based on determination that insurer had no duty to indemnify or defend its insured in a separate personal injury action arising from the shooting

40 Fla. L. Weekly D2199c
181 So. 3d 508

Insurance — All-risk — Coverage — Chinese drywall — Exclusions — Efficient proximate cause — Homeowners’ action against all-risk insurer which denied their claim for loss and damage to their home after Chinese drywall used in its construction released sulfur gases causing them to vacate the home and causing corrosion and deterioration of copper coils in air conditioning system and other electrical components in house — Trial court did not err in entering directed verdict in favor of insurer based on finding that Chinese drywall was efficient proximate cause of insureds’ loss and that there were no ensuing losses because all of the losses occurred as a direct and continuous result of corrosive drywall — Whether Chinese drywall or humidity was efficient proximate cause of loss was not question that should have been determined by jury where uncontroverted evidence demonstrated that humidity was not a peril that caused the insureds’ loss — Insurer also met burden of proving that Chinese drywall was latent defect, which was an excluded peril, and that the elemental sulfur and concomitant gases met the statutory definitions of pollution and contaminant and fell within policy’s exclusion for gaseous pollutants and contaminants, including vapors and fumes — Although appellate court has held that finder of fact usually determines which peril was most substantial or responsible factor in loss, in instant case the insureds affirmatively requested that the trial court address insurer’s motion for directed verdict, maintaining that they had proven their case under either measure of causation; and de novo review of record reveals no conflict in the evidence as to efficient proximate cause of loss — Insureds’ argument that loss of use of home and subsequent damage to metals and electronics were “ensuing losses” for which they were entitled to coverage is without merit — Not only were losses the result of single discrete injury, the emanation of gas from defective drywall, but the losses stemmed directly from an excluded risk and fell within additional exclusions for pollution and corrosion