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January 2011 Caselaw Update

State Farm Mut. Auto. Ins. Co. v. Curran, Case Nos. 5D-09-1488, 5D09-2091, 2011 WL 248541 (Fla. 5th DCA Jan. 28, 2011)

In an action brought by an insured against an automobile insurer, seeking coverage for injuries sustained in an accident with under-insured motorist, the court held that the insured was precluded from recovery due to her failure to attend compulsory medical examination.

Kinman v. State Farm Mut. Auto. Ins. Co. v. Kinman, Case No. 10-11919, 2011 WL 240807 (11th Cir. Jan. 27, 2011)

The district court did not err in granting State Farm summary judgment and concluding that the insured was not entitled to uninsured/underinsured motorist benefits because the policy required the insured to submit to a medical examination, and the insured unreasonably refused to do so.

The Bartram, LLC v. Landmark Am. Ins. Co., Case No. 1:10-cv-00028-SPM-GRJ, 2011 WL 284448 (N.D. Fla. Jan. 24, 2011)

In an action involving whether a builder's risk policy covered property damage to an apartment project caused by various construction defects, the insurer moved to compel (1) certain presentations, training programs and communications created by the insured's independent insurance consultant and (2) emails exchanged between the insured and consultant regarding the builder's risk policy and claims submission process prior to the consultant being retained as an expert in the coverage suit. The insured objected on grounds of work product and relevancy. Although the court found that the training materials were not work product, it concluded that the training documents were not discoverable because they were irrelevant to the coverage issues. The emails, however, were discoverable because prior to being retained as an expert, the consultant's role involved assisting the insured in the claims submission process, not in preparing for litigation.

Diamond State Ins. Co. v. His House, Inc., Case No. 10-20039-CIV, 2011 WL 146837 (S.D. Fla. Jan. 18, 2011)

In a suit brought by an insurer, seeking a declaration of its defense and indemnity obligations under a professional liability and general liability policy in connection with a wrongful death suit filed against its insured, the court denied the insured's motion to compel the deposition of the insurer's corporate representative because the insured failed to show how the insurer's interpretation of the policies was relevant to the coverage dispute. According to the court, the insurer's testimony was irrelevant because if the policies' language is deemed unambiguous, the court would resolve the dispute based upon the plain language of the policy without resort to extrinsic evidence. If, however, the court were to find that the policies' language is ambiguous, the insured would automatically prevail in the suit.

1550 Brickell Associates v. QBE Ins. Corp., Case No. 07-22283-CIV, 2011 WL 9506 (S.D. Fla. Jan. 3, 2011)

The court held that the carrier's reserve information was inadmissible in a breach of contract suit because the carrier's "assessment of its potential maximum liability of a claim would have little relevance to whether [the insured's] damages [were] covered by the … policy and whether [the insurer] breached the policy by failing to pay for covered losses." Even if the reserve information were relevant, the court concluded that it would be inadmissible under Federal Rule of Evidence 403 because it could tend to inject a bad faith element into a simple breach of contract action, which would prejudice the insurer and potentially mislead the jury.

Constr. Consulting & Mgmt Corp. v. Mid-Continent Cas. Co., Case No. 10-81220-CIV, 2011 WL 59151 (S.D. Fla. Jan. 7, 2011)

In a suit brought by an insured concerning a CGL insurer's duty to defend and indemnify the insured in connection with a third-party complaint filed against the insured for grading defects in a construction project, the court dismissed the insured's breach of fiduciary duty claim because it did not allege acts independent from the acts alleged in the declaratory judgment claim and thus was barred by the economic loss rule. The court, however, refused to treat the fiduciary duty claim as a bad faith claim, and noted, that if the insured could cure the pleading deficiencies of the fiduciary duty claim, the claim could proceed even in the absence of a coverage determination.

Dellavecchia v. GEICO Gen. Ins. Co., Case No. 8:09-cv-2175-T-27TGW, 2011 WL 53029 (M.D. Fla. Jan. 7, 2011)

In a first-party bad faith suit, alleging that GEICO did not attempt in good faith to settle the insured's uninsured motorist claim, the court held on summary judgment that (1) the insured was not required to identify violations of § 626.9541(1)(i)(3) in her CRN because the insured was not seeking an independent cause of action for these violations but rather argued that these violations constitute evidence to be considered in evaluating whether GEICO acted in bad faith and (2) the insured's CRN complied with the statute, notwithstanding the failure to list all allegations in her complaint or all supporting evidence.

Infinity Auto Ins. Co. v. Ortiz-Garcia, Case No. 8:10-CV-1883-T-24-MAP, 2011 WL 69082 (M.D. Fla. Jan. 10, 2011)

The court entered a default judgment in favor of the insurer, finding that the insurer was entitled to rescind the automobile insurance policy it had issued to the insured because the insured had misrepresented in the insurance application that the vehicle he sought to insure was garaged in Florida as opposed to New York where the insured lived and accident occurred.

Cardenas v. GEICO Cas. Co., Case No. 8:09-cv-2357-T-23TBM, 2011 WL 1115888 (M.D. Fla. Jan. 13, 2008)

In a bad faith action, alleging that GEICO acted in its own interest in settling a claim by motorcyclists whose motorcycle collided with the insured's vehicle, the court held that GEICO was not liable for bad faith because it had promptly informed its insured of the risk of liability beyond the policy limit; promptly responded to motorcyclists' counsel's request for insurance disclosure; expended every effort to comply promptly with the terms of settlement offer; repeatedly sought assistance from motorcyclists' counsel in drafting acceptable release; paid the policy limit to motorcyclists; and stated willingness to consider both a change to the proposed release and a release drafted entirely by the motorcyclists' counsel.

Altheim v. GEICO Gen. Ins. Co., Case No. 8:10-cv-156-T-24 TBM, 2011 WL 161050 (M.D. Fla. Jan. 18, 2011)

In a first-party action, alleging that GEICO acted in bad faith when it failed to settle the insured's claim for UM benefits, the court held on summary judgment that (1) the insured was not required to delineate in the CRN the specific amount necessary to settle the claim in order for GEICO to cure the alleged violation; (2) whether GEICO considered the insured's settlement offers in light of the evidence it had concerning the insured's injuries was a genuine issue of material fact precluding summary judgment in favor of the insurer; and (3) whether the insurer failed to adopt and implement proper standards for claims investigation, to conduct a reasonable investigation and to promptly communicate with the insured about her claim could be used as evidence to show that the insurer did not settle the claim when it could and should have done so.

Mt. Hawley Ins. Co. v. Dania Dist. Centre, Ltd., Case No. 09-61275, 2011 WL 337346 (S.D. Fla. Jan. 13, 2011)

The court held that the insurer had no duty to defend or indemnify insured in a suit, seeking damages for bodily injury, property damage and loss of use of enjoyment of property resulting from the dispersal of toxic chemicals from the insured's property, because the claimants had failed to allege a single claim against the insured that would preclude application of the pollution exclusion.

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