2017

42 Fla. L. Weekly D158b
208 So. 3d 1195

Insurance — Homeowners — Exclusions — Marring — Trial court properly found that coverage for cracking of floor tile in home when a vase fell was excluded by marring exclusion — Insurer did not waive its right to rely upon marring exclusion by its pre-suit conduct in initially acknowledging coverage and paying a portion of the claim — Even if insurer’s actions amounted to a waiver, insured failed to preserve issue where insurer asserted the exclusion as an affirmative defense and insured failed to reply to, or avoid, the affirmative defense, instead raising the issue for the first time in opposition to insurer’s motion for summary judgment

42 Fla. L. Weekly D1168a
219 So. 3d 862

Insurance — Evidence — No error in entering store receipts and photocopies of cancelled checks — Store receipts which have distinctive logos and are identified by the purchaser as the receipts for the actual items purchased at the store by the purchaser are sufficiently authenticated and admissible to corroborate testimony of the purchaser regarding the purchase — Photocopies of cancelled checks are admissible as duplicate of the original — Moreover, any error in admitting documentary evidence was harmless where evidence was cumulative to precise facts of purchases to which purchasers testified

42 Fla. L. Weekly D1287b
231 So. 3d 508

Appeals — Certiorari — Insurance — Partial summary judgment holding automobile liability insurer liable, under supplemental payments provision of policy, for attorney’s fees judgment entered against its insureds in underlying personal injury litigation as result of rejection of injured party’s proposals for settlement by attorney assigned by insurer to defend its insureds is non-final, nonappealable order where interrelated count was still pending in trial court — Bad faith claim against insurer which was still pending in trial court was interrelated, as both it and insureds’ claims for coverage of attorney’s fees judgment sounded in contract — However, partial summary judgment amounted to departure from essential requirements of law because it impermissibly authorized execution before entry of final appealable judgment

42 Fla. L. Weekly D2591a
233 So. 3d 1224
Torts — Legal malpractice — Discovery — Attorney-client privilege — Malpractice exception — Insurance — Malpractice action by insurance company against its former lawyer — Malpractice exception to attorney-client privilege applies only to communications between client and lawyer being sued — Malpractice exception does not compel a lawyer’s former client to disclose confidential information with that client’s other lawyers simply because such information may be relevant to the former lawyer’s defense of the client’s malpractice case against the lawyer — While the insured is the attorney’s client when an attorney is hired by an insurance company to represent an insured in a liability case, the communications between the insurer and the lawyer hired to protect the insured’s interests are protected by attorney-client privilege because the insurer and insured share a common interest in the outcome of the case — Insurer’s fiduciary obligation to its insured, and the common interests of the insured and insurer, continue even after the insured notifies the insurer of a potential bad faith claim — Insurer’s communications with both its own lawyers and with the lawyer insurer hired to represent its insured are protected by attorney-client privilege, and the malpractice exception is inapplicable

42 Fla. L. Weekly S176a
210 So. 3d 1224

Insurance — Personal injury protection — Medical expenses — Reasonable and necessary treatment — Discovery — Facts about injured person — Scope of permissible discovery under section 627.736(6)(c) is limited to the production of documents described in subsection (6)(b) — Accordingly, discovery is limited to production of “a written report of the history, condition, treatment, dates, and costs of such treatment of the injured person and why items identified by insurer were reasonable in amount and medically necessary, together with a sworn statement,” as well as production, inspection and copying of “records regarding such history, condition, treatment, dates, and costs of treatment” — Subsection (6) provides limited pre-litigation discovery into specified information about treatment and charges for treatment provided to injured party, and discovery tools found in rules of civil procedure are not triggered until litigation over reasonableness of those charges has ensued — Nothing in subsections (6)(b) or (c) contemplates requiring PIP provider to submit any of its representatives to deposition — Trial court erred by ordering provider to make a designated corporate representative available for deposition

42 Fla. L. Weekly D1119a
225 So. 3d 229

Insurance — Personal injury protection — Declaratory judgment — Error to dismiss, for failure to state cause of action, a declaratory judgment complaint seeking declaration that PIP insurer had improperly relied exclusively on Medicare fee schedules when determining reasonable amount to reimburse providers — Proper methodology for calculating reimbursements under section 627.736(5)(a)(1) and whether Medicare fee schedules could be solely relied on has not been addressed by prior cases — Remand for reinstatement of claim — Court notes that relief requested, which was that class members be reimbursed for amounts they were billed by providers, was inappropriate because plaintiff agreed to balance billing in her policy — On remand, if plaintiff prevails on claim for declaratory relief, court will need to address class action issue as it applies to question of appropriate relief, consider applicability of any notice requirement under PIP statute, and consider whether class action is untenable because individual issues would predominate or precluded because of manageability issues

42 Fla. L. Weekly D446b
214 So. 3d 679

Insurance — Personal injury protection — Coverage — Medical expenses — Statutory fee schedules — Trial court abused its discretion by dismissing complaint for class action declaratory judgment regarding insurer’s calculation of PIP policy medical reimbursements based solely on Medicare fee schedules where the policy did not provide notice of insurer’s election to apply statutory fee schedules pursuant to section 627.736(5)(a)2., but instead provided that insurer would pay 80% of all reasonable expenses for medically necessary services and treatments — Trial court erred in finding that supreme court’s decision in Geico General Insurance Co. v. Virtual Imaging Services answered issues in present controversy — Remand for reinstatement of complaint — Court declines to address insurer’s alternate argument for dismissal, that complaint failed to state a proper class claim, because trial court did not rule on this issue

42 Fla. L. Weekly D1797a
227 So. 3d 621

Insurance — Commercial property — Excess policy covering four hotels having a specific per-occurrence limit, with payout not to exceed the listed value of each of the four insured hotels, was not ambiguous because “statement of values,” which included listed insured value of each of the hotels, was not attached to the excess policy and was not titled “Statement of Values” — Excess policy was not “illusory” because it valued one of the insured hotels at an amount which equaled the total value covered and payable under primary policy — Statement of values was incorporated by reference in the excess policy and sufficiently authenticated — Trial court did not err in using extrinsic evidence to resolve factual question as to whether document titled “Property Spreadsheet” was the latest statement of values on file with insurer — Excess policy was not illusory, despite significant limitations on coverage, where the limitations did not render policy absurd or completely contradict insuring provisions

42 Fla. L. Weekly S960b
232 So. 3d 273

Insurance — Commercial general liability — Construction defects — Invocation of insurer’s duty to defend insured general contractor in action alleging construction defects — For purpose of policy provision that insurer has duty to defend insured against any “suit” seeking damages, the notice and repair process set forth in chapter 558, Florida Statutes (Construction Defects) is a suit because the chapter 558 presuit process is an “alternative dispute resolution proceeding” as included in the policy’s definition of a “suit”

42 Fla. L. Weekly D968c
219 So. 3d 138

Declaratory judgment — Insurance — Non-joinder of insurer in action against insured — Trial court erred in denying motions to dismiss, for failure to comply with statutory condition precedent, a complaint in which an injured party sought declaration that liability policy issued by insurers covered the plaintiff’s bodily injury claim against the insured and the plaintiff’s separate negligence suit against the insured — Although trial court properly rejected plaintiff’s argument that non-joinder statute did not apply because insurers were surplus lines insurers, it erred in abating/staying the action pending plaintiff’s compliance with statutory presuit requirements rather than granting insurers’ motions to dismiss