2020

45 Fla. L. Weekly D2105a

Insurance — Coverage — Post-loss obligations — Notice of claims — Discovery — Privileged information — Waiver — Trial court did not depart form essential requirements of the law by allowing insurer to depose claims adjuster and insurer’s counsel on topics relevant to notice where trial court appropriately limited discovery to topics not precluded by law — Trial court departed from essential requirements of the law in allowing insured to depose certain corporate representatives on topics insurer’s counsel had agreed to in letter to insured’s counsel where topics extended beyond notice and discovery issues and into areas of claims handling and matters otherwise prohibited by law — Privilege was not waived by insurer’s counsel’s letter as an attorney cannot waive a privilege objection for a client even if counsel indicates an intent to produce certain discovery but later raises a privilege objection to production of that discovery

45 Fla. L. Weekly D2518a

Insurance — Automobile — Uninsured motorist — Coverage — Waiver — Declaratory judgment — Class actions — Certification — Lower courts did not err in denying class certification motions filed by plaintiffs seeking a declaration that defendant insurance company’s online signature process for rejecting UM coverage fails to comply with the law and does not properly advise policyholders regarding UM coverage options — Because the validity of defendant’s process has already been decided by appellate court, neither plaintiff has standing to seek declaratory relief on behalf of the proposed class — Once a prior appellate decision settles a question of law as to which declaratory relief is sought, the relief requested is rendered moot — Moreover, plaintiffs cannot establish commonality and typicality of claims — Proposed class encompasses customers who purchased policies during period of time in which defendant’s challenged procedure was changed twice, making the relevant facts as to the proposed class members different depending on when they purchased the policy

45 Fla. L. Weekly D2172a
302 So. 3d 930

Insurance — Claims-made policy — Indemnification — Cost of defense — Criminal trial — Trial court did not err in entering summary judgment in favor of insurer in action brought by insured seeking to recover defense costs he incurred in a criminal trial in which insured was acquitted — Plain language of policy did not allow for the recovery of insured’s defense costs for his criminal prosecution where policy only allowed for the indemnification of defense costs if those costs were incurred with respect to a claim and no claim, as defined by the policy, was made within the policy period

45 Fla. L. Weekly D1759a

Insurance — Claims-made policy — Municipal corporations — Intergovernmental collective risk management program — Coverage — Errors and omissions — City seeking coverage for investor claims arising out of letters signed by city official misrepresenting that in the event the developer of a residential community development project defaulted, the city would purchase the property, satisfy any existing liens, and complete the project; and, further, seeking declaratory relief against risk management program’s excess carrier — District court correctly determined that claims against city that predated the city’s membership in risk management program were not subject to errors and omissions coverage, and evidence established that city was subject to notice of a monetary demand premised upon official’s fraudulent misrepresentation long before city acquired membership in the program, but failed to take any action — City’s contention that claims did not flow from a wrongful act, and therefore were not excluded from coverage, lacks merit — Trial court did not err in finding that, because of lack of privity, city lacked standing to maintain suit against program’s reinsurer

45 Fla. L. Weekly D2593a

Insurance — Summary judgment — Hearing — Notice — Due process — Trial court violated insured’s due process rights when the trial court granted insurer’s motion for reconsideration and motion for summary judgment during a hearing on insurer’s motion to strike trial witness because neither motion was noticed for hearing, and trial court never gave any advance notice it was going to reconsider its previous summary judgment order

45 Fla. L. Weekly D642a

Insurance — Homeowners — Property damage — Actual cash value — Evidence — Matching costs — Action for breach of insurance contract alleging that insurer failed to pay actual cash value for loss — Predecessor judge adhered to plain language of policy and Florida law in granting insurer’s motion in limine to preclude insured from introducing evidence of matching costs before insured began making repairs — Plain language of insurance policy and relevant statutes limit the initial payment of actual cash value to the direct physical loss to the property, and matching is not a direct physical loss — Entry of judgment as to breach of contract reversed where trial court committed procedural error by summarily concluding that insured could not recover for breach of contract despite neither party moving for summary judgment — Declaratory judgment — Directed verdict — Trial court erred in entering directed verdict in declaratory action — Declaration requested was moot where question of law had been previously settled — Moreover, trial court exceeded its procedural authority in directing verdict prior to commencement of trial

45 Fla. L. Weekly D907a

Insurance — Breach of contract — Summary judgment — Error to grant final summary judgment in favor of insurer on grounds that suit was premature where insurer admitted coverage under the policy

45 Fla. L. Weekly D2089b
302 So. 3d 478

Insurance — Third-party beneficiaries — Language of the policy of insurance clearly reflects that plaintiff was not intended to primarily and directly benefit from the policy where policy expressly stated that it was only between the named insured and the insurer, and that there was no contract of insurance between insurer and plaintiff

45 Fla. L. Weekly D1887a
302 So. 3d 966

Insurance — Professional liability — Bad faith — Legal malpractice — Bad faith action against liability insurer consolidated with legal malpractice action against counsel retained by insurer in underlying medical malpractice case, alleging that but for counsel’s offer to arbitrate, the case against the insured would have settled for policy limits — Trial court did not err in submitting the issue of causation to the jury in bad faith action against insurer where insured claimed that excess judgment resulted from insurer’s alleged bad faith in offering arbitration which precluded settlement from happening, and insurer contended that it was insured’s refusal to turn over his financial records which prevented settlement and led to offer of arbitration — Because issue of what caused insurer’s damages was in dispute, whether insurer’s bad faith caused the excess judgment was a question for the jury — No error in submitting the issue of damages to the jury where, although the damages insured sought in bad faith action was the excess judgment that resulted from arbitration, the jury had to decide what portion of any damages insurer was responsible for after trial court granted insured’s request to consolidate the bad faith and legal malpractice actions — Even if it was error to submit issue of damages to jury, error was harmless where jury never reached the issue of damages given its determination that insurer did not act in bad faith and that counsel was not negligent — Evidence — Routine practice — Trial court did not err in refusing to admit testimony that the standard practice of plaintiff’s counsel’s firm in underlying medical malpractice action was to accept policy limit settlement offers in medical malpractice cases when a defendant refuses to provide financial information — Proposed testimony did not fall within section 90.406 — Even if exclusion of testimony was in error, any error was harmless — No abuse of discretion in admitting plaintiff’s counsel’s fee agreement which contained a waiver of plaintiff’s rights because it was relevant to plaintiff’s counsel’s financial interest and because it did not constitute a needless waste of time — Furthermore, because the argument raised on appeal with respect to the admission of the fee agreement was not contemporaneously raised when insured’s objection was made, it was not preserved — No abuse of discretion in admitting testimony about Board of Medicine proceedings related to complaint filed against insured as a result of the incident which was the subject of medical malpractice action against insured and doctor’s testimony about how egregious she found insured’s actions or inactions to be given that the strength of plaintiff’s case against insured had to be evaluated by jury in determining the issues of bad faith and legal malpractice — Even if admission of evidence concerning Board’s proceeding was erroneous, any error was harmless as insured’s negligence in medical malpractice case was undisputed — No error in admitting evidence regarding a separate medical malpractice case involving insured’s counsel in which punitive damages were awarded where the potential for punitive damages was a disputed issue and factor that led to the offer of arbitration, and case was the basis for counsel’s assessment of the case and the advice given to insured — Trial court did not err in directing verdict for insurer and instructing jury that insurer had no duty to investigate prior to the filing of plaintiff’s notice of intent to initiate a medical malpractice action where nothing in liability insurance agreement created a duty to investigate a potential claim — Moreover, insured failed to prove that insurer violated its fiduciary obligation to protect insured from judgment exceeding the limits of the policy by failing to investigate notice of the incident — No merit to argument that cumulative effect of trial court’s errors warrants a new trial — Attorney’s fees — Proposal for settlement — No error in awarding attorney’s fees to counsel and firm pursuant to section 768.79 despite fact that settlement offer failed to apportion the amount of the settlement offer attributable to each offeror — Because complaint only pled a theory of vicarious liability against the firm, the proposal fell within rule 1.442(c)(4) which does not require the offer to differentiate between tortfeasors where one is alleged to be vicariously liable

45 Fla. L. Weekly D2130a
302 So. 3d 1081

Insurance — Bad faith — Punitive damages — Amendment of complaint — Appeals — Certiorari — Petition for certiorari review of order allowing insured to file amended complaint to assert claims for punitive damages and proceed with premature bad faith claims is moot where trial court subsequently set aside the order and denied insured’s motion to amend after petition for writ of certiorari was filed — Absent a stay, filing of a petition has no effect on trial court’s ability to proceed to adjudicate a case