I. STATE APPELLATE DECISIONS
- Green Lakes Reinsurance (U.K.), PLC v. Branam (Fla. 3d DCA). Marine insurance; authority to submit claim. Judgment against insurer for not timely paying claim after demand reversed, since demand under the policy was made when the demanding party stranger to the insurance policy, had no valid assignment, and court order in related case was insufficient to supply authority for the demand that was made under the policy.
- Indiana Lumbermens Mutual Insurance Company v. Pennsylvania Lumbermens Mutual Insurance Company. Attorney’s fees; general liability. Recovery by one insurer as assignee of the claimant against a subsequent insurer. The appeals court held that the prevailing first liability insurer, suing the second insurer as the claimant’s assignee, is entitled to the award of attorney’s fees under section 627.428, Fla. Stat.
- Sheaffer v. Publix Supermarkets, Inc/Hartford (Fla. 1st DCA). Workers' compensation. Claimant entitled to permanent impairment income benefits based on her psychiatric condition. Though claimant’s doctors assigned a 0% permanent impairment rating (“PIR”) at maximum medical improvement, the evidence showed claimant needed follow-up every two to three months with medication and supportive therapy in order to maintain the improvement she had achieved and avoid de-compensation. The Judge of Compensation Claims’ (“JCC”) conclusion that a PIR cannot be assigned where the use of medications abates the symptoms or manifestations of an otherwise permanent condition was error as a matter of law. Reversed and remanded with directions that a 1% PIR be imposed consistent with the 1996 Florida Uniform Permanent Impairment Rating Schedule.
- State Farm Mutual Automobile Insurance Co. and Thomas v. Thorne, etc. et al. (Fla. 2d DCA). Automobile insurance; uninsured motorist; evidence. Action by plaintiff involved in two separate rear-end collisions in 2004 and 2006 against defendants involved in 2004 accident and against defendant and underinsured motorist carrier for damages resulting from 2006 accident, with plaintiff entering into high-low agreement with defendants involved in 2004 accident. Combination of trial court’s evidentiary errors constituted reversible error and warranted a new trial: 1) disallowing testimony by insurer's expert that plaintiff's shoulder surgeries and knee surgery were unrelated to 2006 accident. Although expert was first disclosed on amended witness list after date court had ordered that witness lists be served, amended witness list was filed sixty-nine days before trial, and late filing did not cause prejudice to plaintiff; 2) excluding insurer's biomedical engineer from testifying that in his opinion plaintiff was not wearing seatbelt at time of accident. Biomechanics is not new or novel science, and Frye v. United States does not apply to testimony of a causal link between trauma and injury; 3) excluding from jury’s consideration of high-low agreement entered into between plaintiff and defendants involved in 2004 accident; 4) permitting plaintiff's counsel to make argument regarding defendants' failure to present expert testimony where plaintiff's counsel had successfully excluded such evidence; and, 5) permitting plaintiff's counsel to argue that defendants were attempting to avoid responsibility and exhibited shameful conduct.
- Tiara Condo Association, Inc. etc. v. Marsh & McLennan Companies, Inc. etc. et al., (Fla. S.Ct.). Economic loss rule. Receding from prior case law, the decision holds that the application of the economic loss rule in Florida is limited to products liability cases, and is not applicable in cases other than products liability. The concurring opinion suggests that general contractual law may still preclude suit in tort where the parties are in contractual privity; for example, if the tort claim is not independent of a breach of contract claim. The dissenting opinions suggest that Florida’s contract law will be seriously undermined by this decision.
- Valera v. Florida Keys Aqueduct Authority and Florida Municipal Insurance (Fla. 1st DCA). Workers’ compensation. In a case where both the Claimant and the Employer/Carrier (E/C) were prevailing parties on different issues, entitling both to the award of costs under section 440.34(3), Fla. Stat. (2009), the Judge of Compensation Claims (“JCC”) erred in offsetting the two cost amounts, resulting in only one award of prevailing party costs to the E/C, because doing so was beyond his statutory authority. Enforcement of a compensation order is appropriately resolved in circuit court. The JCC’s order was reversed and remanded with instructions to the JCC to award costs to each party without offsetting the two cost amounts.
- Villalta v. Cornn International, Inc. et al. (Fla. 1st DCA). Workers’ compensation; general contractor’s immunity from suit. The appeals court held that a general contractor, who engaged a subcontractor by whom the plaintiff’s decedent was employed, became the decedent’s statutory employer and was immune from suit by virtue of section 440.11(1), Fla. Stat. (providing immunity except in the case of an intentional tort). There was no evidence of an intentional tort. The plaintiff relied on a theory of gross negligence under section 440.10(1)(e)2., Florida Statutes, which provides section 440.11 immunity for a subcontractor sued by the employee of another subcontractor, unless the first subcontractor’s own gross negligence was the major contributing cause of the injury. The immunity for contractor and subcontractors within a vertical relationship, as in the present case, is governed by section 440.11(1), with the section 440.11(1)(b) intentional tort exception. The gross negligence exception in section 440.10(1)(e)2. does not apply in this situation.
- Georgia Farm Bureau Mutual Insurance Co. v. Franks (Ct. of App. Ga., A12A2196). Homeowners’ insurance. Georgia’s Insurable Interest Statute requires that an insured have an insurable interest, however; once such an insurable interest is shown to exist, it is the policy at issue, and not the statute, that determines the amount the insured is entitled to recover. Insurer’s assertion that insured’s recovery of policy benefits was limited to a fraction of the policy (a 50 percent ownership interest in property) was erroneous. Although ownership of the insured property was shared, insured’s title and interest to the property was undivided (i.e., was not divided into fractional shares) and the term “amount of the insured’s interest” was not defined in the homeowners’ policy. Trial court’s denial of parties’ cross-motions for summary judgment affirmed.
II. FEDERAL APPELLATE DECISIONS
- USA, et al. v. Travelers Casualty and Surety Company of America. (11th Cir., Fla.). Construction surety bond under the Miller Act securing subcontractor’s right to payment; timeliness of appeal. Surety carrier moved to have moved to dismiss subcontractor’s appeal of the district court’s stay of the lawsuit seeking payment on a surety bond for work that it performed as a subcontractor on the construction of a Department of Veterans Medical Center in Orlando, Florida. The subcontractor brought pursuant to the Miller Act, 40 U.S.C. § 3131 et seq. The Court held that, though suit is brought in the name of the United States under the Miller Act, the United States is merely a nominal party, and not the real party in interest, which means the subcontractor cannot assert the right of the United States to 60 days for entry of appeal, rather than the 30-day period allowed to private litigants. Appeal dismissed as untimely.
III. ADMINISTRATIVE LAW/AGENCY DECISIONS
- In the Matters of Melissa Margarita DiStefano, John Edward DiStefano, and Exclaibur Insurance. Surrender of insurance agent and insurance agency licenses. Florida Department of Financial Services alleged that Respondents misappropriated premium funds, aided and abetted an unlicensed Third party Administrator, and demonstrated a lack of fitness and trustworthiness in the business of insurance.
- No Georgia agency decisions reported.
IV. NOTICES OF ADMINISTRATIVE RULEMAKING PROCEEDINGS
- Rules 60P-1.0015, 60P-1.003, 60P-1.004, F.A.C. – Department of Management Services: Division of State Employees – State Employees’ Insurance; Executive Offices and Telephone Number; Definitions; Appeals. The Division of State Group Insurance (DSGI) is responsible for the administration the health insurance and prescription drug benefits and the pretax programs that are available to officers, employees, and retirees of the State of Florida and their qualified dependents. The DSGI will hold a rule development workshop concerning proposed amendments to these rules, if requested in writing and within 21 days from the date of notice in the Florida Administrative Register on March 29, 2013, 2:00 p.m. - 4:00 p.m., 4050 Esplanade Way, Suite 101, Tallahassee, FL. The preliminary text of the proposed rule in development is not available at this time. The agency contact regarding the proposed rules or preliminary draft Debbie Shoup, Division of State Group Insurance, 4050 Esplanade Way, Suite 215, Tallahassee, FL 32399, (850) 921-4593.
Rule 61G7-10.002, F.A.C. - Reporting of Change of Status Required; Effect on Licensees; Change of Licensee Name. The Board of Employee Leasing Companies proposes the rule amendment to clarify the process and fee due when an employee leasing company experiences a change in ownership that creates a material change in information required for board review, either for original licensure or pursuant to Section 468.5245, Fla. Stat. If the Board schedules a hearing regarding the proposed rule amendment, it will be scheduled and announced in the Florida Administrative Register.
- Rule 69L010.0165, F.A.C. - On-Site Audit Criteria. The Florida Division of Workers’ Compensation (“Division”) seeks to repeal Rule 69L-10.0165. A rule hearing will be held on April 2, 2013, 10:30 a.m., 102 Hartman Building, 2012 Capital Circle Southeast, Tallahassee, FL, if requested in writing by March 28, 2013. The Division contact person for the rule is Kelly Fitton, Manager, Special Trust Fund, Division of Workers’ Compensation, Department of Financial Services, 200 East Gaines Street, Tallahassee, FL 32399, (850) 413-1805, email@example.com.
- Rule 69L-6.026, F.A.C. – Periodic Reports. The Division has withdrawn the proposed rule.
- Rules 69O-162.102, 69O-162.103, 69O-162.104, 69O-162.106, 69O-162.108 – Purpose, Definitions, Individual Annuity or Pure Endowment Contracts, Application of 1994 GAR Table, and Tables. The proposed rule amendments adopt annuity mortality tables for use in financial reporting of annuity reserves as set forth in section 625.121, Fla. Stat. The added new mortality table, recently adopted by the National Association of Insurance Commissioners (“NAIC”) is based upon recent annuitant mortality of insurers. Adoption will create uniformity among states following NAIC model regulation. If requested in writing and not deemed unnecessary by the Florida Office of Insurance Regulation, a rule development workshop will be held on March 19, 2013, 9:30 a.m., 142 Larson Building, 200 East Gaines Street, Tallahassee, FL.
- Regulation Section 120-2-78 – Credit for Reinsurance. The Office of Commissioner of Insurance proposes repeal current Regulation Section 120-2-78, add a new Regulation Section 120-2-78 with the same title, and add additional forms entitled “Form CR-F Part I”, CR-F Part II”, “Form CR-S Part I” and Form “CR-S Part II” for the purpose of incorporating the National Association of Insurance Commissioners (“NAIC”) Model Act # 786. These changes are necessary for the Office to retain NAIC accreditation. Click here for the full text of the proposed changes. Written comments concerning the proposed rule may be submitted to Vince Wiegand, Administrative Procedure Division, Office of Commissioner of Insurance, 1016 West Tower, Floyd Building, Two Martin Luther King, Jr., Atlanta, GA 30334. All comments must be received by 4:30 p.m., April 12, 2013. The Office will hold a public hearing on April 16, 2013, 9:00 a.m., Hearing Room, Office of Commissioner of Insurance, Seventh Floor, West Tower, Floyd Building, Two Martin Luther King, Jr. Drive, Atlanta, GA.
V. MEETING NOTICES OF INTEREST/MISCELLANEOUS
- Citizens Property Insurance Corp Finance and Investment Committee Meeting. March 21, 2013, 4:00 p.m., Orlando-Orange County Expressway Authority, 4974 ORL Tower Road, Orlando, FL. A copy of the agenda may be obtained by contacting: www.citizensfla.com.
- Florida Hurricane Catastrophe Fund Advisory Council Meeting. March 21, 2013, 1:30 p.m. – 5:00 p.m. (ET); March 28, 2013, 10:00 a.m. – 12:00 Noon (ET), Room 116 (Hermitage Conference Room), 1801 Hermitage Boulevard, Tallahassee, FL Persons wishing to participate by telephone may dial (888)670-3525 and enter conference code 7135858151. The meeting on March 21, 2013, is to obtain approval for the premium formula for the 2013 Contract Year, to obtain approval to file Rule 19-8.028, F.A.C. (Reimbursement Premium Formula) for Notice of Proposed Rule, and to file this rule for adoption if no member of the public timely requests a rule hearing. In addition, other general business of the Council may be addressed. The meeting on March 28, 2013, will be a telephone conference call and will be held only if determined to be necessary during the meeting on March 21, 2013. A copy of the agenda may be obtained by contacting Donna Sirmons, Florida Hurricane Catastrophe Fund, P.O. Drawer 13300, Tallahassee, FL 32317-3300, firstname.lastname@example.org
- Florida’s Direct Secure Messaging Service Connects with Alabama and Georgia. The Florida Health Information Exchange’s Direct Secure Messaging Service (DSM) is now connected with systems in Alabama and Georgia. Through this national standard connection, providers in each of the three states can send secure, encrypted messages across state lines to their colleagues who have registered for the service in their respective states.
- Florida Workers’ Compensation Joint Underwriting Association (“FWCJUA”) issues Request for Proposal (“RFP”) for Policy Administration & Managed Care Services. Policy administration services include, but are not limited to, the issuance of policies and appropriate endorsements; premium billing and collection; auditing; claims management including managed care services; loss control and safety engineering; fraud investigation and prevention; financial and statistical data reporting; and customer satisfaction services. Managed care services include, but are not limited to, medical management and disability management. Responses to the RFP will be due no later than 12:00 p.m., Eastern Time, April 12, 2013. Access a copy of the RFP here.