2018

43 Fla. L. Weekly D616b
240 So. 3d 867

Consumer law — Unfair Insurance Trade Practices Act — Trial court properly found that statutory provision that no person may use or provide to others insurance information required to be disclosed by a borrower to a lending institution in connection with a loan for the purpose of soliciting the sale of insurance without the borrower’s consent applies only where the borrower is directly solicited — Court properly dismissed complaint alleging that statute was violated when mortgagee bank exchanged information with servicer that monitors required levels of insurance on mortgaged property, giving servicer right to impose force-placed insurance on mortgaged property

43 Fla. L. Weekly D1149a
252 So. 3d 773

Insurance — Personal injury protection — Limitation of reimbursement payments to schedule of maximum charges — Policy clearly and unambiguously elected to limit reimbursement payments to the schedule of maximum payments by stating that “in no event will we pay more than 80% of the No-Fault Act ‘schedule of maximum charges’ ” — There is no merit to provider’s contention that insurer must elect either the reasonable charge method of calculation or the schedule of maximum charges method of calculation and that because its policy includes both, insurer relies on an unlawful hybrid method of reimbursement calculation — Question certified: Does the 2013 PIP statute as amended permit an insurer to conduct a fact-dependent calculation of reasonable charges under section 627.736(5)(a) while allowing the insurer to limit its payment in accordance with the schedule of maximum charges under section 627.736(5)(a)(1)?

43 Fla. L. Weekly D583a
245 So. 3d 755

Appeals — Certiorari — Insurance — Personal injury protection — Second-tier review of circuit court’s unelaborated appellate decision affirming county court’s final judgment for a provider in an action for personal injury protection benefits dismissed, as standard for granting second-tier certiorari review has not been met — Discussion of standard for second-tier certiorari review

43 Fla. L. Weekly D2403a
263 So. 3d 122

Insurance — Medicare — Personal injury protection — Class action by assignee of Medicare Advantage Organization against personal injury protection insurer seeking reimbursement for payments made by Medicare Advantage Organizations which should have been paid by PIP insurer — Trial court erred in granting class certification where plaintiff failed to establish that common issues predominate over individual issues — Further, plaintiff, as assignee, had no standing, as assignment had not occurred at inception of case

43 Fla. L. Weekly D2219a
261 So. 3d 637

Insurance — Medicare — Personal injury protection — Class action by assignee of Medicare Advantage Organization seeking to represent other Medicare Advantage Organizations to prosecute private cause of action for double damages under Medicare Secondary Payer Act against PIP insurer, seeking reimbursement for medical bills which were paid by Medicare Advantage Organizations under Medicare, but which should have been paid by PIP insurer — Trial court erred in certifying class, as issues common to class will not predominate, and plaintiff’s proof to establish liability will necessarily devolve into a series of mini-trials under Florida no-fault law — Medicare Secondary Payer Act does not preempt Florida no-fault laws, and plaintiff is required to demonstrate that PIP insurer was required to make payment in the first instance for each reimbursement it claims

43 Fla. L. Weekly D1586a
251 So. 3d 303

Insurance — Life insurance — Action by son of deceased insured under life insurance policy against his uncle, and brother of insured, alleging that defendant was the named beneficiary of life insurance policy but that proceeds of policy were to be held in trust for the benefit of plaintiff under the provisions of insured’s will, and that defendant has refused to pay a portion of the proceeds to plaintiff — Trial court erred in dismissing complaint with prejudice, as there was an issue as to whether, by agreement or operation of law, defendant became a trustee with respect to the proceeds paid over to him as the designated beneficiary of policy

43 Fla. L. Weekly D2768a
261 So. 3d 708

Insurance — Life — Trial court properly imposed constructive trust on life insurance in favor of decedent’s former wife where final dissolution of marriage judgment incorporated a marital settlement agreement that required husband to maintain $1 million life insurance policy naming former wife as irrevocable beneficiary for duration of alimony obligation — Although policy at issue, which was in effect at time of dissolution, originally named former wife as revocable beneficiary, subsequent attempts to name other beneficiaries were nullities, as decedent remained bound by final judgment from which he never appealed or sought relief — Complaint seeking constructive trust and declaratory judgment was timely filed within four years of decedent’s death

43 Fla. L. Weekly D1010a
248 So. 3d 194

Administrative law — Department of Financial Services — Revocation of insurance license on basis of Financial Industry Regulatory Authority’s action against licensee for violations of Securities Exchange Act and National Association of Securities Dealers rules — Language of statute pursuant to which license was revoked and penalty guidelines of administrative rule are not ambiguous — Because FINRA’s action did not become final until National Adjudicatory Council issued its decision, and that occurred after promulgation of rule authorizing license revocation, application of rule to revoke license did not constitute an ex post facto application — Application of FINRA decision in license revocation proceeding did not constitute a violation of licensee’s right to remain silent

43 Fla. L. Weekly D563b
241 So. 3d 237

Insurance — Homeowners — Sinkhole claim — In insured’s breach of contract action against insurer in which the only issue was whether sinkhole activity caused damage to insured’s home, it was improper for counsel for insurer, in opening statement and during cross-examination of insured, to raise point that insured stopped making mortgage payments around the same time that he made claim for sinkhole damage — Insured’s nonpayment of his mortgage and his bank’s foreclosure complaint were not relevant to the issue to be adjudicated where insurer had not raised defenses of fraud, misrepresentation, or unclean hands — Trial court erred in denying motion for new trial after jury had returned verdict for insurer

43 Fla. L. Weekly D2351b
257 So. 3d 488

Insurance — Homeowners — Post-loss obligations — Error to enter summary judgment in favor of insurer due to insured’s alleged failure to satisfy the post-loss contractual obligations of submitting to examination under oath (EUO), submitting a sworn proof of loss, and providing “prompt notice” of the loss — Evidence reflecting that insured’s counsel repeatedly requested to reschedule the EUO to a mutually convenient date and time due to unavailability showed that the insured had cooperated to some degree and/or provided an explanation for insured’s noncompliance which in turn created a question of fact as to whether there was a willful and material breach of EUO provision of policy — Whether the insured’s notice of the claim provided two days after discovering the cause of loss and one day after discovering the actual loss was untimely in view of all facts and circumstances surrounding the loss was an issue of fact for a jury to determine — Insured’s submission of a sworn proof of loss on a different form than that provided by the insurer which contained substantially the same information as the insurer’s form except for claimed personal property loss created a question of fact for the jury as to whether such action constituted a material breach of the policy