46 Fla. L. Weekly D715a ENRIQUE ARGUELLO and YAHOSKA ARGUELLO, Appellants, v. PEOPLE’S TRUST INSURANCE COMPANY, Appellee. 4th District. Case No. 4D20-69. March 31, 2021. Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Jeffrey R. Levenson, Judge; L.T. Case No. CACE-19-003812 (09). Counsel: Steven E. Gurian of Marin, Eljaiek, Lopez, & Read More »
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Insurance — Homeowners — Watercraft exclusion — No error in determining that watercraft exclusion in the insureds’ homeowners’ insurance policy precluded coverage for injuries sustained by a third party in a boating accident that occurred when the insured son, who had permission to use the boat from the insured father, allowed another third party to pilot the boat while intoxicated — The only applicable exception to the watercraft exclusion unambiguously states that the watercraft exclusion does not apply if the outboard engine or motor is not owned by an insured, and the boat and engine in this case were owned by the insured father — Severability clause, which provides that the policy “applies separately to each insured,” did not render watercraft exclusion ambiguous — Exceptions to the watercraft exclusion are not dependent on the insured who seeks coverage, but on the nature of the watercraft at issue
46 Fla. L. Weekly D718a ARTHUR AIELLO, MICHELLE AIELLO, and ARTHUR JOSEPH AIELLO, Appellants, v. ASI PREFERRED CORP., CARLYN FAGARASS, and RUSSELL BOURNE, Appellees. 4th District. Case No. 4D20-1078. March 31, 2021. Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Barbara W. Bronis, Judge; L.T. Case No. 56-2019-CA-000443AXXXHC. Counsel: Jane Read More »
Workers’ compensation — Temporary partial disability — Retroactive benefits — Factual basis — Judge of compensation claims’s award of retroactive TPD benefits is reversed in part because JCC’s factual basis was ambiguous — Although JCC stated that she accepted expert medical opinion of claimant’s independent medical examiner that claimant was restricted to sedentary work, IME’s opinion was not competent, substantial evidence of medical restrictions for claimant’s compensable injuries because IME never addressed any restriction attributable solely to the compensable injuries — While DWC-25 form identifies work restrictions limited to compensable injuries and may have provided competent, substantial evidence to support TPD award, the language of the order calls into doubt whether the JCC relied on the form — Even assuming JCC did rely on DWC-25, the report alone does not show that assigned work restrictions are retroactive — Considering conflicting medical evidence on whether claimant has continuously been subject to work restrictions for compensable injuries as well as JCC’s apparent reliance on restrictions for non-compensable injuries, court is reluctant to draw inferences that were never acknowledged by JCC — Remanded for further clarification
46 Fla. L. Weekly D740a INTAL CONSTRUCTION, INC./ZURICH NORTH AMERICA, Appellants, v. MOISES MANCERA, Appellee. 1st District. Case No. 1D20-1766. March 31, 2021. On appeal from an order of the Office of the Judges of Compensation Claims. Iliana Forte, Judge. Date of Accident: December 11, 2018. Counsel: Rosalind Milian of MKRS Law, P.L., Coral Gables, Read More »
Insurance — Automobile — Coverage — Escape clause — Multiple policies providing similar coverage — Action arising from fatal automobile accident in which volunteer employee of non-profit corporation was operating vehicle at fault — Trial court did not err by finding that insurer who provided personal vehicle insurance coverage to volunteer employee for bodily injury and property damage also insured corporation — Plain language of volunteer employee’s policy reflects that employee’s insurer did insure corporation where there was no dispute that corporation incurred liability due to the action of its volunteer employee, and volunteer employee’s policy expressly covers a “person or organization” which incurs liability because of the “acts or omissions of an insured” — Fact that volunteer employee’s policy had already exhausted the policy limit by providing coverage to volunteer employee does not determine whether the incident was covered under the policy — While volunteer employee’s policy contains an exclusion to coverage for bodily injury and property damage arising out of the use of any vehicle “while being used to carry persons or property for compensation or a fee,” there was no evidence that volunteer employee was being compensated — Court rejects argument that escape clause in corporation’s policy, which limited coverage to circumstances where corporation did not have other insurance available which afforded the “same or similar coverage,” was inapplicable because one of the policies is a personal policy and one is commercial, and because the policies have different policy limits — Coverage afforded to accident by the policies is at least similar, if not the same, whereby both policies cover property damage and bodily injury and even use the exact same wording — The word “similar” as used in corporation’s policy was not ambiguous — Corporation’s policy’s excess clause, which applies when another insurance company pays out for the same liability but their payment is less than the policy limit of corporation’s policy, is not inconsistent with escape clause — Clauses can co-exist because they are triggered by distinct circumstances
46 Fla. L. Weekly D734a ROXANNE WALLS and SKYLER THOMAS, as co-personal representatives of the Estate of Rachel Walls, Appellants, v. SOUTHERN OWNERS INSURANCE COMPANY, an out of state corporation, Appellee. 1st District. Case No. 1D20-1422. March 31, 2021. On appeal from the Circuit Court for Holmes County. Timothy Register, Judge. Counsel: Theodore R. Howell Read More »
Insurance — Homeowners — Water damage — Denial of coverage — Concealment or fraud — Trial court did not err by entering final summary judgment in favor of insurer on insured’s claim for damage caused by water leak on ground that repair estimate prepared by homeowner’s loss consultant, and adopted by insured in her sworn proof of loss, interrogatory answers, and deposition testimony, included material false statements — When insured relies on or adopts an estimate containing material false statements to support claim, insured is bound by the estimate and cannot avoid application of concealment or fraud provision simply because insured did not prepare the estimate — Insured’s argument that she could not be held responsible for false statements in estimate because she did not intentionally rely on those statements was refuted by record — Moreover, showing of intent was not required under policy’s concealment or fraud provision
46 Fla. L. Weekly D691c JENNIFER MEZADIEU, Appellant, v. SAFEPOINT INSURANCE COMPANY, Appellee. 4th District. Case No. 4D20-2. March 26, 2021. Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; David A. Haimes, Judge; L.T. Case No. CACE 16-017852 (08). Counsel: Erin M. Berger and Melissa A. Giasi of Giasi Law, P.A., Read More »