FEBRUARY 2016

Florida Insurance Matters is a monthly update on Florida insurance-related legal developments by the Colodny Fass Insurance Litigation Practice, recognized as the 2014 Insurance Litigation Department of the Year in South Florida by the Daily Business Review.

About the Author

Amy L. Koltnow, a Colodny Fass Shareholder, focuses her practice on representinginsurance companies in complex insurance litigation and counseling insurers on claims avoidance and claims resolution. She has represented insurers in connection with property damage and first-party coverage litigation, claims of “bad faith,” high-risk exposures, class actions and multi-district litigation.

For more information about Ms. Koltnow, click here.

Court upholds insured’s right to assign post-loss benefits without insurer’s consent

Another Florida appellate court has upheld an insured’s right to assign post-loss benefits due under a homeowner’s policy without the insurer’s consent. The Second District Court of Appeal, now joining the consensus with the First, Fourth and Fifth district courts of appeal, cited to Florida case law’s “deep-rooted support” upholding the validity of post-loss assignments. The court further rejected the arguments that the assignment violated the public adjusting statute or the insurable interest statute.

Bioscience West, Inc., a/a/o Elaine Gattus v. Gulfstream Property and Casualty Insurance Co. (Fla. 2d DCA 2016)

• The echoed voice from the courts is that the policy considerations are for the legislature to decide.
• The 2016 legislature is currently working through these AOB issues.

Third DCA examines interaction of exclusionary and severability clauses

A Florida appellate court interpreted the interaction of exclusionary clauses and severability clauses when the exclusionary clause uses the term “any insured”. The court held the exclusion’s use of the term “any insured,” when read in conjunction with the severability clause, creates a class of insureds who are excluded from coverage, but the exclusion does not apply to bar coverage as to other insureds.

Taylor v. Admiral Ins. Co. (Fla. 3d DCA 2016)

• The use of the terms “an insured,” “any insured,” or “the insured” in an exclusionary clause makes all the difference.
• Severability clauses can be tricky when construed with exclusions–seek advice of counsel before denying coverage as to all insureds.

Court upholds jury verdict in favor of carrier based on insured’s fraud in policy application

The 11th Circuit Court of Appeals upheld a jury verdict in favor of a carrier based on the insured’s fraud in the application for the policy. At trial, the underwriter testified that the misrepresentations in the application were material to acceptance of the risk and the amount of premium to be charged. The court construed Florida Statute § 627.409 regarding fraudulent misrepresentations, innocent misrepresentations that materially affect the risk, and breaches after the contract has been formed.

Gamez v. Ace American Inc. Co. (11th Cir. 2016)

• This case has a clear interpretation of 627.409, and should be in defense counsel’s trial notebook when misrepresentations or concealments in the application are an issue in the case.
• Claims managers should likewise review this case when rescinding the policy and refunding the premium based on misrepresentations or concealments in the application.

Matt Scarfone obtains dismissal of suspected fraudulent water loss claim during deposition

Colodny Fass Senior Attorney Matt Scarfone successfully obtained a dismissal of a water loss claim in the middle of his interrogation of the insured at deposition. Rather than answer pointed questions and turn over text messages, the insured’s attorney announced a dismissal of the case to release his client from the hot seat.

Contact Mr. Scarfone at mscarfone@colodnyfass.com or (954) 492-4010.

To view Mr. Scarfone’s professional biography, click here.

For over 40 years, Colodny Fass has represented insurers in complex and high-risk litigation including class actions, bad faith, insurance fraud, multi-jurisdictional cases, coverage matters, and fact-intensive, multi-party lawsuits. The Daily Business Review has recognized Colodny Fass as having the 2014 Insurance Litigation Department of the Year in South Florida.

About Amy L. Koltnow

Amy L. Koltnow, a Colodny Fass Shareholder, focuses her practice on insurance disputes from trial through appeals. She has represented insurance companies in federal and state courts, as well as in mediation and administrative forums. Ms. Koltnow oversees complex litigation matters and has successfully defended numerous class actions and insurance bad faith cases. She is a member of the Claims and Litigation Management Alliance, a national, invitation-only organization committed to furthering high standards of litigation and claims management in pursuit of client defense.

To view Ms. Koltnow’s complete professional biography, click here.

Contact Amy at akoltnow@colodnyfass.com or (954) 492-4010.