PIP Benefits - Third District En Banc Analyzed The Application of Two Subsections Of Section 627.736

In United Automobile Insurance Company v. Santa Fe Medical Center (3D08-547),  the Third District, sitting en banc, analyzed the application of two subsections of section 627.736—subsections (4)(b) and (7)(a).  The court held:

We grant the instant petition because the circuit court departed from the essential requirements of law by incorrectly interpreting the language of subsections (4)(b) and (7)(a) of section 627.736, and by failing to apply the correct law set forth in subsection (4)(b). In granting the petition, we clarify that subsection (4)(b) pertains to the time period for payment of PIP benefits if the claim is reasonable, related, and necessary. Subsection (4)(b) provides that when an insured seeks payment of PIP benefits from the insurer, the insurer must pay the claim within thirty days if the claim is reasonable, related, and necessary. If the insurer believes the claim is not reasonable, related, and necessary, it may: (1) deny the claim; or (2) pay the claim until it obtains a valid medical report under subsection (7)(a) and withdraw further payment. “Reasonable proof” when defending an insurer’s decision to deny payment of a claim under subsection (4)(b) does not require that the insurer obtain a valid report pursuant to subsection (7)(a), and the insurer may contest its responsibility to pay a claim at any time, and present evidence obtained after the thirty-day period has expired. Subsection (7)(a), which requires that the insurer obtain a valid medical report, only applies to instances where the insurer withdraws the payment of further PIP benefits, not to the denial or reduction of the benefits claimed.

Fourth District Reverses Finding Coverage Due To Ambiguity In All Risk Policy

In Liebel v. Nationwide Insurance Company of Florida (4D08-3356), the Fourth District reversed the trial court's summary judgment and held the all risk policy provided by Nationwide covered the loss due to an ambiguity in the policy.

The insured bought an all risk policy meaning that coverage is provided “[u]nless the policy expressly excludes the loss from coverage,  this type of policy provides coverage for all fortuitous loss or damage other than that resulting from willful misconduct or fraudulent acts.” Fayad v. Clarendon Nat. Ins. Co., 899 So. 2d 1082, 1085 (Fla. 2005)...under an all-risk policy, an exclusion applies if the loss clearly and unambiguously fits within its provisions...The loss to Liebel’s home was caused by the shifting of earth under th e home that was, in turn, caused by earth shifting from unnatural causes, i.e., the water line rupturing. The loss was, therefore, specifically excluded from the Policy’s coverage by the earth movement exclusion, even though it was caused by an unnatural force, as the exclusion clearly and unambiguously stated that the loss sustained at Liebel’s home fell within it.

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In the instant case, the trial court erred by not holding that the Policy covered the cost of repairing the plumbing system. This is because the Policy, by providing that it does not cover damage caused by water from a plumbing system that is otherwise excluded, but then stating that it covers the cost of repairing a system that caused water damage, has created an ambiguity, as two or more reasonable interpretations of these two intersecting provisions are feasible...Such an interpretation is also in accord with the principle that an all-risk policy will cover a loss falling within its coverage unless that loss is specifically excluded, as the Policy did not specifically exclude the cost of repairing a plumbing system from its coverage.

Twenty Day Requirement Before Summary Judgment Can Be Waived

In Azanza v. Private Funding Group, Inc. (4D09-3751), the Fourth District denied a petition for certiorari claiming that the trial court erred by entering a summary judgment order less than ten days after service of the motion.  While a summary judgment hearing cannot occur until 20 day after service of the motion, the requirement can be waived if no objection is raised.

Proposal For Settlement Not Enforceable Without A Certificate of Service

In Milton v. Reyes (3D08-3121), the Third District held a proposal for settlement was not enforceable because it did not contain a certificate of service as required by Florida Rule of Civil Procedure 1.442.  The result was based upon te Florida Supreme Court's decision in Campbell v. Goldman, 959 So. 2d 223 (Fla. 2007) and was reached regardless of the fact that it was agreed the document was received.  The court disagreed with Jefferson v. City of Lake City, 965 So. 2d 174, 175 (Fla. 1st DCA 2007) and quoting  the dissent in Jefferson stated:

“[p]rudent counsel, being aware of [Campbell], may have well made a tactical decision not to respond to the offer of settlement in this case, confident that, because the form of the offer was defective, no sanctions could flow from rejection of the offer.” Id. (Kahn, J., dissenting). “The . . . result here may be viewed as strict, but it is certainly not harsh.” Id.

Florida Supreme Court Amends Opinion Re: Complex Litigation Rules

On May 28, 2009, a 4-3 decision, the Florida Supreme Court issued an opinion on the management of complex civil cases.  A discussion of the original opinion can be found here.  On September 24, 2009, the court issued a corrected opinion which can be found here.  A notice of the corrections can be found here.

Florida Supreme Court Amends Rule of Civil Procedure Form 1.918

The Florida Supreme Court issued an opinion last week amending Rule of Civil Procedure Form 1.918 (Lis Pendens).  The opinion can be found here.  "The amendment to the form is in response to recent enactment of section 48.23(1)(c), Florida Statutes, which governs the contents of a notice of lis pendens...The Committee also proposes the addition of a committee note clarifying that a notice of lis pendens should contain either the date of the institution of the underlying action, the date of the clerk’s receipt of the notice of lis pendens, or the case number of the underlying action."

Justice Souter Talks About The Constitution

You can watch a video of Retired Supreme Court Justice Souter talking at Harvard University about the Constitution here.  C-SPAN describes the video as follows: "Former Supreme Court Justice David Souter spoke at a Constitution Day celebration at his alma mater, Harvard University. He talked about the document's modern day relevance, his decision-making process, the role of judges, and what he plans to do in his retirement. Noah Feldman moderated."

C-SPAN'S "THE SUPREME COURT"

There has been a lot about the C-SPAN series on the United States Supreme Court.  You can read abut it on C-SPAN's Supreme Court web site here and you can also watch the series from that site.  It began on Sunday, October 4, 2009 and will continue through Sunday, October 11, 2009.  It is at 9:00 p.m. ET every night. 

The CSPAN preview is below.

"Florida pushes ahead with an all-digital courthouse"

The Orlando Sentinel has an article today titled: "Florida pushes ahead with an all-digital courthouse."  The article can be found here.