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February 2011 Caselaw Update

Wed Mar 9th, 2011 on     Uncategorized,    

Illinois National Ins. Co. v. Bolen, Case No. 5D10-2856, 2011 WL 248541 (Fla. 5th DCA, Feb. 4, 2011)

In an action involving an insured’s claim for uninsured motorist benefits, the court held that the trial court’s lifting of abatement of a bad faith claim was premature until the carrier’s appeal of a verdict on the coverage action was determined.

Penn-American Ins. Co. v. Lucky Entertainment, LLC, Case No. 8:08-CV-02538-EAK-AEP, 2011 WL 397944 (M.D. Fla., Feb. 4, 2011)

Court rejected an insured’s request for a contingent risk multiplier, finding that the contingent fee agreement in question was executed seven days prior to the court’s order of liability in the insured’s favor. Court awarded a total of $91,906 in fees and costs to the insured, finding that the $450 hourly fee charged by the partner on the file was reasonable, as were the fees charged by associates and staff. Court adopted an average billable rate of $416.

The Bartram, LLC v. Landmark American Ins. Co., Case No. 1:10-CV-00028-SPM-GRJ, 2011 WL 528206 (N.D. Fla., Feb. 4, 2011)

In a discovery dispute centered on the insured’s request for the carrier’s claim file, court held that under federal law, an insurer’s claim files are not automatically entitlted to work-product protection in a first party case. The date for triggerring the “anticipation of litigation” requirement should be the date of the claim denial. Regarding a request for internal claims related policies and procedures, the court found such a request to be not reasonably calculated to the discovery of admissible evidence in a coverage dispute.

In re Deepwater Horizon Oil Spill Litigation, MDL No. 2179, 2011 WL 484286 (U.S. MDL Panel, Feb. 8, 2011)

Multi-District Litigation Panel handling claims relating to the gulf oil spill ordered that two declaratory actions filed against Transocean Offshore Deepwater Drilling by its insurers be transferred to the MDL from the Eastern District of Louisiana. Unlike insurance policies relating to the currently pending Chinese Drywall MDL, the policies at issue here “involve coverage issues with respect to the core of the MDL”, namely the explosion of the oil rig and the ensuing spill, and the insureds here are two principal defendants in the MDL (Transocean and BP).

Citizens Property Ins. Corp. v. Mango Hill Condo. Ass’n, No. 3D10-2014, 2011 WL 613518 (Fla. 3d DCA, Feb. 9, 2011)

Court reversed an order compelling appraisal in a Hurricane Wilma case, and ordered that the trial court conduct an evidentiary hearing on whether the insured complied with the policies post-loss requirements. Trial court must determine whether post-loss conditions have been complied with by the insured before appraisal can proceed.

Essex Ins. Co. v. Big Top of Tampa, Inc., No 2D10-116, 2011 WL 519916 (Fla. 2d DCA, Feb. 16, 2011)

CGL carrier has no duty to defend insured where the insured faces claims for assault and battery. Second DCA reversed the trial court, who determined, following a non-jury trial, that the policy’s “assault and battery” exclusion did not apply because the underlying complaint described an arrest which was lawful and did not constitute an assault and battery within the meaning of the exclusion. Second DCA reasoned that because the underlying complaint clearly alleged that a battery occurred, and the trial court erred by going beyond the allegations of the complaint to determine the issue.

Arrowood Indemnity Co. v. Acosta, Inc., No1D10-1060, 2011 WL 522795 (Fla. 1st DCA, Feb. 16, 2011)

In an action to determine coverage under a D&O policy, the carrier served a statutory offer of judgment in the amount of $1000. After the trial court granted summary judgment in the carrier’s favor on the issue of coverage, the carrier moved for attorney’s fees under its offer. Trial court denied the motion on the grounds that the offer was not made in good faith, and the carrier appealed. The appellate court held that the trial court erred in applying a wholly objective standard to determine whether the offer was made in good faith, and by not giving appropriate consideration to the carrier’s justification for its offer. The trial court should have first considered the carrier’s explanation, then determined whether, despite consideration of the objective factors, the carrier had a “subjectively reasonable belief on which to base its offer.”

Allstate Ins. Co. v. Andrews Florist on 4th Street, Inc., No. 8:08-CV-2253-T-EAJ, 2011 WL 672349 (M.D. Fla., Feb. 17, 2011)

In a coverage action arising out of a car accident, court held that the accident was covered under the carrier’s commercial auto policy. Although driver of the vehicle was not an insured, the coverage under the policy did not depend on the employment status of the driver; coverage is found regardless of who owns, uses, or maintains a covered vehicle. Subsquent jury trial resulted in verdict for the insured that (1) carrier did not provide an adequate defense to the insured, (2) the amount of the settlement contained in a Coblentz agreement was not unreasonable, and (3) the Coblentz agreement was not entered into in bad faith.

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