December 2010 Case Law Update

United Nat’l Ins. Co. v. Best Truss Co., No. 09-22897-CIV, 2010 WL 5014012 (S.D. Fla. Dec. 3, 2010)

Insurer moved for summary judgment arguing that the insured’s roof damages did not manifest during the policy period, because the insured did not notice the damages until after the policy period expired. The insured’s expert opined, however, that the damages began soon after the roof was installed during the policy period and would have been visible save for physical obstructions. The district court agreed with the insured finding a genuine issue of material facts as to the manifestation of damages, because “visibility from within the enclosed and inaccessible attic does constitute manifestation.”

Colony Ins. Co. v. Total Contracting & Roofing, Inc., No. 10-23091-CIV, 2010 WL 5093663 (M.D. Fla. Dec. 8, 2010)

Insurer filed a complaint for declaratory relief against its insured Total Contracting and the Smiths, who had filed suit against Total Contracting for damages arising out of the installation of defective Chinese drywall in their home. The Smiths filed a counterclaim against the insurer. The district court dismissed the Smiths’ counterclaim based on Florida’s non-joinder statute. The district court rejected the Smiths’ argument that it was a compulsory counterclaim in the absence of a judgment or settlement against Total Contracting. The district court also rejected the Smiths’ argument that the non-joinder statute did not apply because they only filed their counterclaim in response to the insurer’s complaint.

Altheim v. Geico Gen. Ins. Co., No. 8:10-cv-156-T-24TBM, 2010 WL 5092721 (M.D. Fla. Dec. 8, 2010)

District court granted and denied in part motion to compel documents of underlying lawsuit in subsequent bad faith lawsuit. The court held that under Allstate Indemnity Co. v. Ruiz, 899 So.2d 2d 1121 (Fla. 2005), the insurer was required to produce all work-product documents created up to the resolution of the underlying claim. The court, however, held that Ruiz did not apply to attorney-client communications: “Ruiz provides no authority for the wholesale piercing of the attorney-client privilege in connection with such discovery. Until such time as the Florida Supreme Court undertakes to decide the matter, I am obliged to side with those [Florida appellate] courts concluding that the privilege should be maintained.”

Royal Marco Point I Cond. Assoc., Inc. v. QBE Ins. Co., No. 2:07-cv-16-FtM-99SPC, 2010 WL 5161111 (M.D. Fla. Dec. 14, 2010)

District court held that insurer’s claims manual, litigation manual and other related policies and procedures documents are neither attorney-client communications nor work-product documents and must be produced in a bad faith lawsuit.

Wapnick v. State Farm Mut. Auto. Ins. Co., No. 4D09-3432, 2010 WL 5093221 (Fla. 4th DCA Dec. 15, 2010)

Court of Appeal reversed the trial court’s finding of no coverage, because the insured’s complaint for declaratory judgment sought only whether State Farm’s designated location for an independent medical examine was reasonable. “The court was asked to determine only where the IME should take place, but instead the court determined that there was no coverage [as a result of the insured’s refusal to attend the IME.] This was error. The trial court should have simply declared that the insured was required to attend the IME as requested by State Farm. Instead the court prematurely declared there was no coverage.”

Harrington v. Citizens Prop. Ins. Co., No. 4D09-2591, 2010 WL 5093204 (Fla. 4th DCA Dec. 15, 2010)

Court of Appeal reversed the trial court’s finding of no coverage determining that the policy was ambiguous. The insureds owned a primary residence and a rental property. The insureds sought liability coverage under their Citizens homeowners policy for an injury to a worker at the primary residence. The policy defined, in part, the “insured location” as “the part of other premises, other structures and grounds used by you as a residence, and which is shown in the Declarations.” The Declarations Page listed the primary residence under the insureds’ name and as the policy’s mailing address. It listed the rental property as “Location of the Residence Premises.” After concluding that the primary residence met the policy’s undefined term of “other premises,” the Court found the policy ambiguous, because “even though the primary property was listed as the mailing address, nothing indicates the ‘insured location’ definition excludes such a listing. Although Citizens many not have intended for coverage to extend to the [primary residence] for an injury that occurred there and had nothing to do with the [rental] ‘Residence Premises,’ the insurance policy appears to cover it, based on the plain reading of ‘insured location.'”

Contender Fishing Team, LLC v. City of Miami, No. 10-10454, 2010 WL 5095873 (11th Cir. (Fla.) Dec. 15, 2010)

Court of Appeal affirmed the district court’s finding that the city’s marina operators liability policy did not cover an accident involving one of the city’s police boats. The court held that coverage for “normal business operations” meant “marina operations,” not just any operations in which the city happened to engage. The court rejected the city’s argument that the policy was ambiguous, because “when we read the entire policy … we conclude that the phrase ‘normal business operations’ clearly means ‘marina operations’ and not just any operations. The Policy itself is called ‘Marina Operators Legal Liability Policy,’ the introduction states that the Policy is one for ‘marina owners’ and covers ‘marina operations’ [and] the words ‘marina operation’ are referred to repeatedly throughout the Policy.”

Westgate Miami Beach, Ltd. v. Newport Operating Corp., No. 09-1881, 2010 WL 5110237 (Fla. Dec. 16, 2010)

Receding from prior case law, the Supreme Court held that: (1) a trial court is allowed to reserve jurisdiction in a final judgment to award prejudgment interest; (2) an appeal from a final judgment reserving jurisdiction to award prejudgment interest will not divest the trial court of jurisdiction to award prejudgment interest; and (3) a final judgment that authorizes execution but reserves jurisdiction to award prejudgment interest will be considered final for purposes of appeal.

Hale v. State Farm Fla. Ins. Co., No. 4D09-1901, 2010 WL 5173889 (Fla. 4th DCA Dec. 22, 2010)

Court of Appeal held that insurer had a duty to defend its insured against a defamation lawsuit even though the policy excluded intentional acts, because the complaint “alleges that the defamation was done ‘knowingly and/or negligent,’ and the factual allegations do not clearly exclude the incident from coverage. Accordingly, whether the loss in the instant case would be covered depends on whether [the insured] acted intentionally or negligently, which is an issue of fact for the jury.”

Sheldon, D.C. v. United Serv. Auto. Ass’n., No. 1D10-0777, 2010 WL 5306461 (Fla. 1st DCA Dec. 28, 2010)

Court of Appeal held that once PIP benefits are exhausted, an insured (or assignee) is barred from filing or maintaining a previously filed lawsuit against an insurer solely to pursue a claim for penalties, interests and/or attorney’s fees based on benefits that were reduced or denied prior to the exhaustion of benefits.

Citizens Prop. Ins. Co. v. Maytin, No. 3D10-693, 2010 WL 5348554 (Fla. 3d DCA Dec. 29, 2010)

Court of Appeal reversed trial court’s grant of motion to compel appraisal. Insurer argued that insured failed to comply with post-loss conditions precluding the invocation of the appraisal clause under the policy. Appellate court remanded for an evidentiary hearing to determine whether insured had complied with the policy’s post-loss conditions enabling him to invoke the appraisal provision.

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