1. STATE APPELLATE DECISIONS
    1. FLORIDA
  • Eaton v. City of Winter Haven and PGCS (Fla. 1st DCA). Workers’ compensation apportionment of benefits. Judge of Compensation Claims (“JCC”) erred in apportioning claimant’s permanent total disability (PTD) benefits. Section 440.15(5)(b), Fla. Stat. (2008), addresses apportionment of permanent indemnity benefits and requires evidence of a “permanent impairment or disability attributable to the accident or injury” and an “anatomical impairment rating attributable to the pre-existing condition.” Apportionment is an affirmative defense and the employer/carrier has the burden of proving each element of the defense. The employer/carrier failed to submit any medical evidence of an anatomical impairment rating attributable to a pre-existing condition. Therefore, the JCC did not have before him medical evidence which could support a finding of a pre-existing permanent impairment.
  • Geico Indemnity Company v. DeGrandchamp (Fla. 2nd DCA). Uninsured motorist/damages. Trial court erred in denying insurer's motion for remittitur or new trial where verdict's award of damages for future medical expenses was not supported by evidence. Where damages are sought for future medical expenses, only medical expenses that are reasonably certain to be incurred in the future are recoverable.
  • Landmark American Insurance Company v. Santa Rosa Beach Development Corp. I, ARD Contractors, Inc. and Beach Colony Resort on Navarre East Condominium Association (Fla. 1st DCA). Hurricane damage/subrogation rights. Third party subrogation action filed by insurer against developer and contractor, who performed exterior repairs on condominiums prior to condominiums sustaining damage following hurricanes, alleging that the damage to condominiums was the result of defective construction by developer and contractor. No error in granting developer's and contractor's motion for summary judgment where plain language of agreement under which developer and contractor undertook repairs released them from liability for any damage subsequent to their repairs, and release covered same matters that were subject to insurer's third party action.
  • Slayton v. Universal Property and Casualty Insurance Company (Fla. 5th DCA). Homeowners’ insurance/windstorm. Breach of contract claim filed against insurer after insurer tendered a check for an amount below estimate prepared by public adjuster, but also notified insured in writing that check did not necessarily constitute a full and final settlement, and that insured could file supplemental claims. No error in entering directed verdict in favor of insurer on insured's breach of contract claim where policy unambiguously limited insurer's liability for replacement or repair costs to the lesser of the policy limits, replacement costs for like construction and use, or necessary amounts actually spent to repair or replace Insured’s argument that policy provision violated section 627.7011, Fla. Stat. was not preserved below.
  • State Farm Insurance Company v. Aloni (Fla. 4th DCA). Property insurance/discovery/work product. Where coverage issue was in dispute and had not been resolved, trial court departed from essential requirements of law, causing irreparable injury, by allowing discovery of activity log notes, emails, and photographs contained in insurer's claim file.
  1. GEORGIA
  • Bell et al. Liberty Mutual Fire Insurance Company, A12A1094 (Ga. Ct. of App.). Homeowners’ insurance/appraisal. Court of Appeals affirmed trial court order granting insurer’s motion for entry and approval of certain appraisal awards determined by an umpire and denying the insureds’ motion to set aside those same awards, which were for less than the limits of insureds’ homeowner’s insurance policy. In the absence of an explicit provision in the standard policy directing the umpire to perform the same itemization as the insured is directed to perform under the standard policy in Georgia, there was no error in the trial court’s failure to impose upon the umpire a duty for which the parties had not specifically contracted.
  • Lloyd’s Syndicate No. 58020 d/b/a Cassidy Davis v. AGCO Corporation, A12A1125, A12A1126 (GA Court of Appeals); Glynn General Purchasing Group, Inc. et al. v. AGCO Corporation, A12A1281 (Ga. Ct. of App.). AGCO, an equipment maker, offered an equipment extended protection plan for machine breakdown or failure (EPP) sold and administered by Glynn General, Inc. Through Glynn General, AGCO purchased liability coverage for costs experienced under the EPP from Lloyds. When repetitive AGCO equipment failures attributed to design or engineering defects occurred, Lloyds denied further coverage, contending that design or engineering defects did not constitute machine breakdown under the EPP and therefore was not covered under Lloyds’ policy, and contending that the repetitive failures for which coverage was claimed were excluded from the Lloyds’ policy under an Epidemic Loss addendum. AGCO sued Lloyds, seeking a declaration of coverage and bad faith damages; and sued Glynn General, alleging fraud (non-disclosure of the Epidemic Loss addendum) and breach of Glenn General’s duty to procure appropriate liability insurance for AGCO. On appeal from trial court orders granting and denying several motions for summary judgment, the appeals court held that engineering or design defects were comprehended within the EPP’s definition of machine breakdown or failure and were covered under the Lloyd’s policy based on the documents’ unambiguous language and on the course of dealings between the parties under the EPP and the Lloyds policy. The appeals court further held that material disputes of fact precluded summary judgment on issues of whether the Epidemic Loss addendum was enforceable against AGCO, as a certificate holder under the master policy issued to Glynn General by Lloyds, whether Lloyds was liable for bad faith damages, and whether Glynn General was liable for bad faith, fraud, or other liability.
  • Nuvell National Auto Finance, LLC v. Monroe Guaranty Insurance Company, A12A1484, A12A1485; Renaissance Recovery Solutions, LLC v. Monroe Guaranty Insurance Company, A12A2421 (Ga. Ct. of App.). Interpretation of automobile policy. Trial court erred in finding that the tow truck was not a “non-owned” auto as to the insured, a repossession management company, and the insured was entitled to partial summary judgment. The purpose of the separation-of-insured clauses contained in an automobile policy is to provide each insured with separate coverage, as if each were separately insured with a distinct policy. The terms “unowned auto” and “named insured,” as used in the policy, were ambiguous; therefore, the policy must be construed in favor of the insured. The trial court also erred in concluding that the tow truck was not being used “in connection with” the business of the insured. Finally, auto finance company’s liability assumed by insured under an indemnity agreement shifted to the insurer because coverage under the policy applied to any liability of the insured resulting from the lawsuit.
  • Sentry Select Insurance Co. v. Treadwell, A12A1052 (Ga. Ct. App.). Spoliation of evidence – certain log books and data. Court of Appeals reversed trial court order striking the answer and remanded the case for the trial court to determine what, if any, sanctions are appropriate. Record showed that shortly after the collision occurred appellants were aware of contemplated litigation based on the letter from the claimants’ attorney, their own investigation, their knowledge that every such highway collision result in claims and their information regarding the claimants.
  • Reaves, et al. v. State Farm Mutual Automobile Insurance Company, A12A1608 (Ga. Ct. App.). Automobile coverage/uninsured motorist. Court of Appeals reversed and remanded trial court order granting summary judgment in favor of insurer. Trial court erred in finding that OCGA § 33-7-11 (b) (2) requires corroboration of her late husband’s statements that there was actual physical contact between his truck and the tractor-trailer.
  1. FEDERAL APPELLATE DECISIONS
  • Zarrella v. Pacific Life Insurance Company, (11th Cir. Ga.). Pacific Life, which issued life policies to an employer-created § 412(i) retirement plan for employees, is not liable to the employer for taxes and penalties assessed by IRS because the value of the life insurance policies exceeded the benefits to be provided under the plan. The employer sued Pacific Life, alleging the insurer breached the provision of its agreements that said the policies the retirement plan purchased satisfied the requirements of § 412(i) and that Pacific Life violated California’s Unfair Competition Law for false advertising. The court upheld summary judgment in the insurer’s favor, finding that (1) Pacific Life represented only that its insurance policies themselves complied with the requirements of § 412(i) and could be included in a § 412(i) plan; (2) Pacific Life was not acting as administrator, fiduciary, or trustee of the retirement plan, and (3) the overfunding which caused the IRS assessments was a consequence of the plan’s design, not the Pacific Life insurance products the plan purchased.
  1. ADMINISTRATIVE LAW/AGENCY DECISIONS
  1. NOTICES OF ADMINISTRATIVE RULEMAKING PROCEEDINGS
    1. FLORIDA
  • Rule 60Q-6.123, F.A.C. – Department of Management Services/Division of Administrative Hearings – Settlements Under Section 440.20(11), Fla. Stat. Amendments to procedural rules for adjudication of workers' compensation claims were announced, pursuant to the mandate in section 440.45, Fla. Stat., that the Division of Administrative Hearings adopt procedural rules. A rule development workshop will be held on January 4, 2013, 2:30 p.m. - 3:30 p.m., (bridge by video teleconferencing): 1809 Art Museum Drive, Suite 200, Jacksonville, FL; 5015 South Florida Avenue, Suite 401, Lakeland, Florida; 401 N.W. Second Avenue, Suite N918, VTC Room 2, Miami, FL; 2401 State Avenue, Suite 100, Panama City, FL; 5405 Okeechobee Boulevard, Suite 200, West Palm Beach, FL; The DeSoto Building, 2nd Floor Conference Room, 1230 Apalachee Parkway, Tallahassee, FL. To participate by telephone, participants may dial 1 (888) 670-3525, follow the voice prompts, and enter the participant passcode (2492172867), followed by #.
  • Rule 69L-5.216, F.A.C. - Division of Workers’ Compensation - Provision of Benefits and Safe Working Environment by Self-Insurers. The Florida Department of Financial Services, Division of Workers’ Compensation published a Notice of Change to proposed Rule 69L-5.216, F.A.C., to address written comments received by the Department concerning self-insurers contracting with a Qualified Servicing Entity.
  1. GEORGIA
  1. MEETING NOTICES OF INTEREST/MISCELLANEOUS