Florida Insurance Coverage & Bad Faith Newsletter - January 2022

Case Law: Select Decisions Through January 18, 2022

(January 2022) - There is much variety among the insurance law decisions issued by Florida courts over the past year, although the majority of rulings fall under property insurance. There is an amusing quote from one of the Select Decisions: “As a general matter, insurance policies and insurance salesmen have long been the butt of jokes. The former are not known for beautiful prose nor the latter for exciting conversation.” ECB USA, Inc., et al. v. Chubb Ins. Co. of New Jersey, et al., *1 (U.S.D.C. for S.D. Fla., Dec. 17, 2021 – Judge Scola).

Attorneys’ Fees

Garrido v. Safepoint Ins. Co. (Fla. 3rd DCA, January 12, 2022 – Judges Scales, Miller, Bokor) (finding that insurers' voluntary payment of first-party property claim and confession of judgment, without court involvement, did not “conclude the action” so as to trigger Florida Rule 1.525’s thirty-day time period for motions for fees). 

Auto Insurance

Pro-Medics Therapy & Rehab Ctr. V. United Auto Ins. Co. (Fla. 3d DCA, Dec. 22, 2021 – Judge Logue with Judges Hendon and Lobree concurring) (reversing trial court determination that PIP benefits did not extend to plaintiff medical provider’s patient/assignee, as patient/assignee was a “co-insured” under the relevant auto policy, and the plain meaning of the term “co-insured” indicated that the patient/assignee was covered by the relevant insurance policy and therefore entitled to PIP benefits thereunder).

Bad Faith

Wendy Firtell and Brian Firtell v. USAA Casualty Insurance Company (Fla. 4th DCA, Jan. 5, 2022 – Judge Ciklin with Judge Harper concurring and Judge Artau dissenting) (finding that trial court improperly granted summary judgment in favor of insurer on bad faith claim, as the question of whether an insurer acted in good faith toward its insured in resolving a claim is typically an issue of fact for the jury).

Disability Insurance

Metro Life. Ins. Co. v. Liebowitz (U.S. District Ct., Middle District – Jan. 11, 2022 – Judge John Steele) (finding, in rescission action, that statements in insured physician’s insurance application, which denied knowledge of any “fact that could change [his] occupational status or financial stability” and denied that his license was “under review” were false and material as a matter of law when insured knew that he was the subject of a pending Department of Health investigation at the time and no objectively reasonable applicant would provide the answers he provided; however, the issue of whether the insured intended to deceive the insurer was a disputed question of fact for consideration by a fact finder and precluded summary judgment in insurer’s favor).

General Liability Insurance

Diaz Fritz Group, Inc. v. Westfield Ins. Co. (11th Circuit - Jan. 10, 2022 – Judges Rosenbaum, Branch, and Grant) (finding that affirmative defense by defendant, which asserted negligence on the part of the insured plaintiff, did not, by itself, qualify as a "suit" for "damages" against insured so as to trigger liability insurer's duty to defend underlying liability action; defendant’s affirmative defense did not seek any sums that insured “[would] become[] legally obligated to pay as damages because of . . . ‘property damage’” as required by the policy" and defendant’s counter-claims against the insured were purely economic claims which were not covered by the policy).

Insurance Procedural

Capitol Specialty Ins. Corp. v. West View Apts., Case No. 21-11675 (11th Cir. Dec. 22, 2021 – Per Curium – Judges Wilson, Newsom and Anderson) (finding that trial court improperly granted judgment on the pleadings in declaratory judgment action in favor of plaintiff-insurer; defendant-insured denied material facts in its answer, including whether relevant pollution exclusion was included in its policy, and raised an affirmative defense of estoppel, thus precluding judgment on the pleadings in favor of insurer).

Ramon Cruz v. Western World Ins. Co., Case No. 21-cv-23982 (U.S.D.C. for S.D. Fla., Dec. 16, 2021 – Judge Bloom) (finding that: (1) insured’s failure to file a statutorily required written notice of intent did not justify dismissal of claims against property insurer, as insured properly pled that all conditions precedent to the filing of a lawsuit had occurred; and (2) dismissal of insured’s declaratory judgment claim was appropriate where insured was simultaneously maintaining breach of contract claim against insurer, as declaratory relief was duplicative and declaratory judgment was not appropriate for questions of insurer’s past breaching conduct).

Property Insurance

Expert Inspections, LLC a/a/o Pat Beckford v. United Prop. & Cas. Ins. Co., No. 4D21-547 (Fla. 4th DCA, Jan. 5, 2022 – Judge Artau with Judge Klingensmith concurring and Judge Forst dissenting) (affirming trial court’s summary judgment order in favor of United Property and finding that an AOB agreement granting an assignee rights to enforce the insurance contract “does not grant the assignee the right to enforce against the insurer terms from the AOB agreement that are extraneous to the insurance policy itself).

Great Lakes Ins. SE v. Concord Plaza, A Condo. Assoc., Inc., No. 21-cv-21873 (U.S.D.C. for S.D. Fla., Dec. 20, 2021 – Judge Bloom) (granting in part and denying in part Great Lakes’ motion to dismiss Concord’s counterclaims for redundancy, including granting with respect to some redundant claims and denying with respect to some claims “because there may be other conditions precedent for the Court to consider before compelling appraisal.”).

Rainbow Restoration, LLC v. Citizens Prop. Ins. Corp., No. 3D21-167 (Fla. 3d DCA, Dec. 22, 2021 – Judge Scales with Judges Lindsay and Miller concurring) (reversing trial court’s final summary judgment order in favor of Citizens and remanding “to the lower court because there is a disputed issue of material fact as to whether [Rainbow] mailed the necessary documentation to Citizens prior to filing suit.”).

Carl Redhammer v. ASI Preferred Ins. Grp., No. 3D20-1772 (Fla. 3d DCA, Dec. 29, 2021 – Judge Scales with Judges Miller and Bokor concurring) (reversing trial court’s non-final order to compel appraisal in favor of ASI and reasoning that “[w]ithout the benefit of ASI’s competing estimate – presumably one that would be relied upon by ASI in the appraisal process – there is insufficient record evidence that Redhammer and ASI have an informed disagreement on the amount of the loss related to the repair of the main drain line.”).

Eumelia Hernandez v. Citizens Prop. Ins. Corp., No. 3D20-1105 (Fla. 3d DCA, Dec. 29, 2021 – Judge Bokor with Judges Emas and Gordo concurring) (vacating trial court’s dismissal with prejudice order in favor of Citizens and remanding based on reasoning “that before a trial court may dismiss an action with prejudice as a sanction, the trial court must conduct an evidentiary hearing and make specific findings as to the six Kozel [v. Ostendorf, 629 So. 2d 817 (Fla. 1993)] factors in to determine if dismissal with prejudice is warranted.”).

Roy Davis v. Integon Nat’l Ins. Co., No. 21-CV-62170 (U.S.D.C. for S.D. Fla., Jan. 5, 2022 – Judge Ruiz) (granting Integon’s motion to dismiss, with prejudice, because Davis is neither an omnibus insured nor a third-party beneficiary under the policy and finding “that leave to amend the Complaint would be futile because no reading of the Policy would provide a basis for Plaintiff’s claim.”).

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