The Week in Torts – Cases from the Week of June 26, 2020
Is It Good For The Goose?
FLORIDA LAW WEEKLY
VOLUME 45, NUMBER 25
CASES FROM THE WEEK JUNE 26, 2020
COURT DENIES CERTIORARI FROM AN ORDER COMPELLING PRODUCTION OF FINANCIAL INFORMATION REGARDING RELATIONSHIP BETWEEN AN INSURER AND ITS DOCTOR EXPERT—CONCURRING OPINION EXPRESSES CONCERNS WITH WORLEY.
Tahan v. Munoz,45 Fla. L Weekly D1466 (Fla. 3rd DCA June 17, 2020):
Relying on Worley and its progeny, the majority denied the petition for writ of certiorari from an order compelling the production of financial information regarding the relationship between the insurance company and its physician-expert.
In a concurring opinion, Judge Miller expressed concerns that Worley has given rise to disparate treatment between plaintiffs and defendants in personal injury litigation.
This case involved interrogatories seeking financial information regarding the relationship between the non-party insurance company and the physician expert. The judge expressed concern that appellate opinions have “effectively endorsed” the use of interrogatories to obtain such information, while declining to grant certiorari under these circumstances.
The judge noted how insurers are not able to protect themselves from financial discovery while plaintiffs’ counsel are able to. The practical effect of Worley is to permit full Boecher discovery directed to personal injury defendants and their insurers, while shielding injured plaintiffs from having to disclose information about similar relationships that exist between their lawyers and treating doctors. However, as the Florida Supreme Court found in Worley, the rationale for that is because the latter implicates attorney client privilege.
ERROR TO AWARD FEES INCURRED FOR LITIGATING THE AMOUNT OF §57.105 FEES.
The Silver Law Group, v. Bates, 45 Fla. L Weekly D1461 (Fla. 3rd DCA June 17, 2020):
The court upheld the award of §57.105 fees as a sanction, but reminded us that in the §57.105 case (like in other contexts)—courts many not award fees for litigating the amount of fees in either.
SUMMARY JUDGMENT ORDERING UM COVERAGE FOR AN INSURED RESIDENT RELATIVE UPHELD—INSURER FAILED TO OBTAIN INFORMED CONSENT AND DID NOT CHARGE A REDUCED PREMIUM WHICH WOULD HAVE REFLECTED THE LIMITATION ESPOUSED.
Owner’s Insurance Co. v. Allstate Fire & Cas Insurance Co., 45 Fla. L Weekly D1475 (Fla. 2nd DCA June 19, 2020):
The injured victim resided with his mother and stepfather who were insured by Owner’s. The Owner’s policy provided UM coverage, but only afforded it to relatives who did not own an automobile.
The victim got into an accident while driving his own vehicle; a vehicle insured by Allstate. Allstate sought a declaration that the victim was covered under the Owner’s policy, asserting that the policy provided basic liability coverage to resident relatives.
Allstate correctly argued that the victim was entitled to UM coverage because he was insured for basic liability coverage under the liability coverage provision of the policy. Owner’s asserted the argument was waived because Allstate had failed to raise it before rehearing. The court accepted the argument, reminding us that when a trial court reaches the right result, the decision will still be upheld if there is any basis in the record which would support judgment.
Under Florida law, if a liability insurance policy provides bodily injury liability coverage, it must also provide UM coverage to those insured under the policy. Thus, the section of the policy which excluded relatives from extended coverage who own their own vehicle, did not justify exclusion of those individuals from UM coverage, because they were still statutorily entitled to the coverage by virtue of being “insureds” under Section II of the policy.
While a policy may include specified provisions that exclude certain insurers from UM coverage if the named insured knowingly accepts such a limitation and the insurer offers a reduced premium, Owner’s failed to obtain such informed acceptance or provide reduced rates in compliance with the statute. Thus, because the Owner’s policy provided basic liability coverage to the injured victim, Florida law mandates the provision of UM coverage to him as well, and the trial court correctly granted summary judgment in favor of Allstate.