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November 2010 Case Law Summary

Tue Dec 7th, 2010 on     Uncategorized,    

Here is a brief summary of some recent insurance-related decisions from November 2010:

Coda Roofing, Inc. v. Gemini Ins. Co., 2010 WL 4689325 (S.D. Fla. Nov. 10, 2010)

District court denied carrier’s motion for reconsideration of order granting judgment as a matter of law in insured’s favor, where insurance company could not prove that it intended to include, but omitted due to clerical error, a “torch down roofing exclusion” in roofing company’s commercial general liability policy.

Thompson v. Cincinnati Ins. Co., 2010 WL 4667100 (N.D. Fla. Nov. 9, 2010)

District court denied non-party attorney’s motion to quash subpoena duces tecum issued by insurance company in bad faith lawsuit, seeking information regarding the dates and times he met with his client (the claimant in an underlying wrongful death lawsuit) because the information was not protected by the attorney-client privilege. The insured sued carrier to recover excess judgment allegedly caused by carrier’s failure to timely tender policy limits. The insurance company asserted as a defense that it made several attempts to contact claimant prior to filing of wrongful death lawsuit, but claimant never returned calls or responded to correspondence. Carrier sought information regarding meetings between claimant and counsel to support the inference that the claimant purposely ignored communications from the carrier and thwarted its effort to settle.

Young v. Lexington Ins. Co., 2010 WL 4282117 (S.D. Fla. Nov. 1, 2010)

District court granted insurance company’s motion to strike insureds’ expert witnesses, where insured failed to calendar agreed dates for expert disclosures contained in joint scheduling report, did not disclose experts until after defendants disclosed experts, after deadline to file Daubert motions, and only ten days before discovery cut-off. Court found that insurance company was prejudiced by this delay because it did not have time to conduct expert discovery, and denied motion for extension of time to complete discovery.

USAA v. Kindl, Case No. 5D10-1722, Fifth DCA Nov. 12, 2010: district court granted insurance company’s petition for writ of certiorari and quashed trial court’s order compelling carrier to produce its claim file while coverage issue remained pending.

1550 Brickell Associates v. QBE Ins. Co., 2010 WL 4443733 (S.D. Fla. Nov. 1, 2010)

District court denied insurance company’s appeal of magistrate judge’s orders pertaining to carrier’s rebuttal witnesses. District court found that magistrate judge properly entered order striking insurer’s rebuttal experts because they were testifying on new topics and the prejudice to the insured could not be cured through other means. In addition, the testimony of the rebuttal witnesses was cumulative to its other experts.

Mizner Grand Condo. Assoc., Inc. v. Travelers Prop. Cas. Co. of America, 2010 WL 4683540 (S.D. Fla. Nov. 18, 2010)

District court granted insurance company’s motion to compel responses to request for production where insured’s assignee in breach of contract action produced 100,000 unsegregated and uncategorized documents in response. The court rejected the assignee’s assertion that documents were produced as kept in the usual course of business, and stated that even if the documents were produced as they were kept in the ordinary course of business, if the record-keeping system is “so deficient as to undermine the usefulness of production,” that party would not meet obligations under Fed. R. Civ. P. 34. Assignee was ordered to organize and label the production to reasonably correspond to the discovery request categories.

Citizens Prop. Ins. Co. v. Galeria Villas Condo. Assoc., Inc., 2010 WL 4740049 (Fla. 3d DCA Nov. 24, 2010)

District court reversed trial court’s order compelling appraisal of damage caused by Hurricane Wilma and remanded to trial court with instructions to compel the insured to provide records requested by Citizens regarding its claim, and to allow reasonable access to property damaged by storm. Citizens originally inspected the insured property and concluded that the damage did not exceed the deductible. The insured retained a public adjuster and submitted a signed and sworn proof of loss, but did not produce 13 categories of documents requested by Citizens. In addition, Citizens complained that it had not been permitted to reinspect the property since 2005. Four days after submitting the proof of loss, the insured sued Citizens for breach of contract and a month later, moved to compel appraisal. The Third DCA stated that appraisal was premature because “[o]nly when there is a ‘real difference in fact, arising out of an actual and honest effort to reach an agreement between the insured and the insurer’ is an appraisal warranted.”

Citizens Prop. Ins. Co. v. Ashe, Case No. 1D1D09-1546, First DCA Nov. 17, 2010

Appellate court reversed trial court’s application of “other insurance” clause in wind policy, where insured’s waterfront home was totally destroyed by Hurricane Ivan and flood insurance carrier paid full policy limits, and Citizens paid the adjuster’s estimate minus the deductible. Insured sought to recover the total loss value under his wind-only VPL policy.

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