Volume XV, Number 1
January, 2003

FROM THE CORNER OFFICE

The Article Index for the year 2002 Briefly Speaking articles has been printed for your review. If you have not received a particular newsletter, or if you are interested in a specific article, you may visit our Internet home page (www.pmmg.com) which will provide you with copies of all of our 2002 newsletters, or give us a call.

2002 ARTICLE INDEX

• FIRST DCA OFFERS SOME PROTECTION FOR CLAIM FILE MATERIALS IN BAD-FAITH ACTIONS AGAINST INSURERS
• SECOND DCA HOLDS THAT IT IS ERROR TO STRIKE EXPERTS WITHOUT CONDUCTING A FRYE EVIDENTIARY HEARING

• TWO WRONGS DON'T MAKE IT ALL RIGHT
• AN EXPRESS TERM OF THE CONTRACT NEEDS TO BE BREACHED BEFORE A CAUSE OF ACTION CAN BE ASSERTED FOR A BREACH OF THE IMPLIED DUTY OF GOOD FAITH AND FAIR DEALING
• STATUTE OF LIMITATION ON LEGAL MALPRACTICE
• WHEN IS AN INSURANCE POLICY DIVISIBLE?
• 2ND DCA URGES COUNTY COURTS TO CERTIFY ISSUE OF VALIDITY OF PIP PROVISION WHICH REQUIRES THAT AN INSURED BE SUED BY HIS MEDICAL PROVIDER PRIOR TO CONTESTING CARRIER'S DECISION TO PAY ONLY PORTION OF CLAIM CARRIER DEEMS "REASONABLE AND NECESSARY"

• DOI NO LONGER SENDING OUT ACKNOWLEDGMENT OF RECEIPT OF CIVIL REMEDIES NOTICE
• PRIVATE ARBITRATION AGREEMENTS DO NOT PRECLUDE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION FROM PURSUING RELIEF ON BEHALF OF EMPLOYEE
• 3RD DCA ALLOWS INSURED SECOND OPPORTUNITY TO COMPLY WITH POLICY POST-LOSS OBLIGATIONS

• FLORIDA SUPREME COURT CONFIRMS NEW TRIAL WARRANTED WHERE JUROR FAILS TO DISCLOSE PRIOR LITIGATION HISTORY
• WHETHER PURCHASER STATES CAUSE OF ACTION FOR FRAUDULENT MISREPRESENTATION ABOUT A MATTER CONTAINED IN THE PUBLIC RECORD IS A QUESTION OF FACT
• IS ILLEGAL ALIEN A "RESIDENT" UNDER FLORIDA'S NO-FAULT LAW IN ORDER TO OBTAIN PIP BENEFITS?

• FLORIDA SUPREME COURT DECLINES TO EXTEND DAMAGES FOR LOSS OF A CHILD'S COMPANIONSHIP AND SOCIETY (FILIAL CONSORTIUM) BEYOND THE CHILD'S MINORITY
• PIP CARRIERS MAY OBTAIN DISCOVERY FROM MEDICAL PROVIDERS EVEN WHERE THE PROVIDER HAS NOT ACCEPTED AN ASSIGNMENT OF BENEFITS FROM THE INSURED OR DIRECTLY BILLED THE INSURER FOR THE SERVICES
• INSURER HAS NO DUTY TO DEFEND WHERE LANGUAGE OF CONTRACT EXPLICITLY RESERVES TO INSURER THE RIGHT TO DEFEND ACTIONS AT ITS SOLE OPTION
• FOURTH DCA ALLOWS CLASS ACTION AGAINST INTEGON FOR BREACH OF CONTRACT FOR USE OF NON OEM PARTS
• ACTION TO RECIND AND CANCEL POLICY FOR MISREPRESENTATION DENIED DUE TO INSURER'S FAILURE TO PROPERLY RETURN FUNDS

• NEGLIGENT ACTS OF INDEPENDENT CONTRACTOR MAY STILL RESULT IN LIABILITY FOR THE EMPLOYER
• FIFTH DISTRICT COURT OF APPEAL REMOVES LIMITATIONs TO RECOVERY BY MINOR CHILDREN IN WRONGFUL DEATH ACTIONS
• IN A DECLARATORY ACTION TO DETERMINE CONVERAGE THE INSURANCE COMPANY'S CLAIM FILE IS WORK PRODUCT AND IS NOT DISCOVERABLE BY EITHER THE INSURED OR A THIRD PARTY PLAINTIFF
• WAITER! EXCUSE ME, WAITER, THERE IS A CONDOM IN MY COKE!

• LIABILITY UPDATE!
• CONFIRMING AN APPRAISAL AWARD NOT NECESSARILY BAD FOR INSURERS
• A DUTY ASSUMED MUST BE EXERCISED WITH REASONABLE CARE
• TRUCK OWNER/OPERATOR IS NOT AN OMNIBUS INSURED UNDER TRUCK BROKER'S COMMERCIAL UMBRELLA POLICY
• FLORIDA STATUTE 627.736(5) ENTITLES PIP INSURERS TO DENY PAYMENT FOR TREATMENT WHEN MEDICAL PROVIDERS FAIL TO SUBMIT CHARGES FOR SERVICES IN A TIMELY MANNER

• REVISITING "UNDUE HARDSHIP" AND WHAT MUST BE DEMONSTRATED TO CIRCUMVENT WORK PRODUCT LIMITATIONS
• FLORIDA SUPREME COURT RESOLVES CONFLICT ON DEFINITION OF "JUDGMENT OBTAINED" UNDER OFFER OF JUDGMENT STATUTE
• INEQUITABLE TO AWARD MULTIPLIER & PREJUDGMENT INTEREST WITHOUT SUFFICIENT EVIDENCE FROM PLAINTIFF
• SIZE OF CARRIER'S BUSINESS IS INSUFFICIENT IN AND OF ITSELF TO WARRANT CLASS ACTION STATUS

• THE THIRD DCA TAKES A BITE OUT OF ROMAY -- PROVIDING "ADEQUATE INFORMATION" SATISFIES INSURED'S POST-LOSS DUTIES
• RULE AGINST SPLITTING CAUSES OF ACTION WILL NOT BAR A SECOND LAWSUIT FOR PERSONAL INJURIES AFTER A RESOLUTION OF A PROPERTY DAMAGE LAWSUIT
• 1ST DCA REVERSES JUDGMENT FINDING COVERAGE FOR AFTER ACQUIRED TRUCK AND DRIVER: THIRD PARTY CLAIMANT DOES NOT HAVE STANDING TO ENFORCE INSURED'S RIGHT TO MUTUALLY ACCEPTABLE COUNSEL

• SUPREME COURT OF FLORIDA RESOLVES CONFLICTING DECISIONS REGARDING ROLE OF APPRAISAL AS TO COVERAGE AND AMOUNT OF LOSS
• RULE AGAINST SPLITTING CAUSES OF ACTION WILL NOT BAR A SECOND LAWSUIT FOR PERSONAL INJURIES AFTER A RESOLUTION OF A PROPERTY DAMAGE LAWSUIT
• OBLIGATION TO PAY INSURED'S ATTORNEYS FEES DOES NOT ARISE UNTIL DUTY TO DEFEND IS TRIGGERED

• JURY MISCONDUCT MAY NOT ALWAYS CONSTITUTE REVERSIBLE ERROR
• THIRD DCA RECOGNIZES APPLICABILITY OF INTENTIONAL ACT EXCLUSION DESPITE ARTFULLY CRAFTED COMPLAINT AGAINST INSURED
• ESTOPPEL CANNOT EXTEND INSURANCE COVERAGE
• RESERVATION OF RIGHT TO DENY COVERAGE MAY VIOLATE CONTRACTUAL DUTY TO DEFEND

INSURANCE DISCLOSURE IN COMPLIANCE WITH FLORIDA STATUTE IS ESSENTIAL TERM IN AN OFFER FOR SETTLEMENT

In Schlosser v. Perez, 27 FLW D2478, (Fla. 2d DCA Nov. 15, 2002), Florida's Second District Court of Appeal held that the trial court erred in holding a settlement agreement enforceable where plaintiff's offer to settle requested statutory insurance disclosure and defendant's acceptance failed to make such disclosure. In this case, plaintiff's minor daughter was injured in a collision with an automobile driven by defendant. Plaintiff offered to settle on the minor's behalf in exchange for a check for the policy limits. The offer to settle included a request for "all information required by Florida Statute 627.4137" and attached a copy of the statute to the offer. Florida Statute 627.4137 essentially provides that a liability insurer shall provide, upon request by a claimant, a copy of the policy and sworn statement setting forth the insurer's name, each insured's name, coverage limits, and any defense the insurer reasonably believes is available at that time. In addition, the statute requires that the insured or his agent, "shall disclose the name and coverage of each known insurer to the claimant." Here, defendant's insurer sent the policy limit check, but neither defendant nor his insurer disclosed the name and coverage information of each of defendant's insurers. In response to this noncompliance, plaintiff returned the check and filed suit to pursue her negligence action.

Defendant subsequently moved to enforce the settlement agreement, arguing that it was enforceable because plaintiff's offer to settle did not expressly request the insurance disclosure. The trial court granted defendant's motion to enforce the agreement and entered final judgment requiring plaintiff to accept $10,000 pursuant to that agreement, based upon its conclusion that defendant's failure to make the insurance disclosure was an insignificant term of the agreement. The appellate court reversed, holding that the insurance disclosure was an essential term of the offer such that no meeting of the minds had occurred as defendant had failed to make the disclosure. The court rejected defendant's argument that he was not required to provide the disclosure because plaintiff's offer, stating, "I request within thirty (30) days...all information required by Florida Statute 627.4137," did not expressly request the insurance disclosure. The court found that plaintiff's express reference to the statute made it clear that the insurance disclosure was a term of the offer. As authority for its decision, the court cites to Cheverie v. Geisser, 783 So.2d 1115 (Fla. 4th DCA), review denied, 805 So.2d 806 (Fla. 2001). In Cheverie, a plaintiff expressly requested the insurance disclosure in an offer to settle and the court held that such request and plaintiff's return of the settlement check made it clear that the request was an essential term of the offer to settle.

Allison Salsbury Moore

KEEPING SECRETS: FINANCIAL PRACTICES THAT MAY CONSTITUTE ECONOMIC FRAUD DO NOT CONSTITUTE A "PUBLIC HAZARD" SUBJECT TO DISCLOSURE PURSUANT TO FLORIDA'S SUNSHINE IN LITIGATION ACT

In State Farm Fire & Cas. Co. v. Sosnowski, 27 FLW D2330 (November 1, 2002), the Fifth District Court of Appeal held that maintaining confidentiality of State Farm's performance, planning, and review procedures for claims for uninsured motorist benefits is not contrary to public policy as that information does not relate to a public hazard. Id. at D2331.

In Sosnowski, the insured initially sued State Farm for fraud in the handling of her insurance claim for uninsured motorist benefits, and later added a claim for punitive damages. For discovery purposes, the parties agreed to a protective order whereby the parties were allowed to designate documents as confidential, thereby limiting their availability to the parties and witnesses, but a party could also challenge each confidential designation. Relying on the protective order, State Farm produced to Sosnowski the performance, planning, and review evaluations of personnel involved in the handling of her claim, but labeled them confidential.

Sosnowski filed a motion to set aside the agreed protective order arguing that the order was void under the Sunshine in Litigation Act, section 69.081(3). That section of the Act prohibits a court from entering an order or judgment which has the purpose or effect of concealing a public hazard or any information concealing a public hazard. Sosnowski contended that keeping the claim review procedures confidential would be contrary to public policy and a public hazard likely to cause further concealment of benefits to policyholders.

The trial court entered an order vacating the prior protective order, but the Fifth District quashed that order finding that financial practices that constitute economic fraud are not a "public hazard" under 69.081(3). The appellate court, relying on an opinion from the Fourth District, explained that the term "public hazard" under that section of the Sunshine in Litigation Act is limited to instances where health and safety are implicated; the information sought by Sosnowski would only be relevant to her allegations of economic fraud, not a public hazar

Insurers bode well from this opinion as it eliminates an insured's ability to utilize the Sunshine in Litigation Act to discover and publicly disclose an insurer's internal claim review procedures and other confidential internal materials. It appears that Florida courts will not elevate economic skirmishes -- even where fraud is alleged -- to the level of "public hazard" to defeat an insurer's privacy rights.

Jason H. Okleshen