February 2019

Florida Insurance Matters is a monthly update on Florida insurance-related legal developments by the Colodny Fass Insurance Litigation Practice, recently recognized as the 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 representing insurance companies in complex insurance litigation and counseling insurers on 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.

Dismissal Warranted for Attorney and Insured’s Flagrant Violations of Court Orders

The Fourth DCA affirmed the involuntary dismissal of a homeowner’s case based on the attorney and the insured’s flagrant disregard of court orders that prejudiced the insurer in preparing the case for trial. The appellate court noted that while courts should be careful when dismissing an action for violating court orders or the rules of procedures, in certain cases it is appropriate, as it was in this case. To continue the trial would only have rewarded the insured’s bad behavior. Perlmutter v. Olympus Ins. Co. (4th DCA Feb. 20, 2019).

Tips & Lessons

• Take note! For a copy of the trial court’s dismissal order that was affirmed on appeal, click here.
• Unfortunately, there are more and more examples like his occurring in the courts; defense counsel should be vigilant in pursuing discovery and documenting all attempts by opponents to frustrate the process.

Compelling Appraisal May, At Times, Require an Evidentiary Hearing

The insureds filed a lawsuit against their insurer for breach of contract alleging the insurer failed to make a coverage decision on their Hurricane Irma claim within 90 days. The insurer filed a motion to dismiss and to compel appraisal. The insureds contend the insurer invoked appraisal only after suit was filed, and they were not subject to appraisal because the insurer failed to provide notice of the insureds’ right to participate in the mediation program pursuant to 627.7105, therefore relieving the insureds from complying with the appraisal provision in the policy. The insureds also sought discovery related to these disputed issues. The insurer objected to the discovery and filed a motion for protective order. The trial court, without conducting an evidentiary hearing, compelled the parties to appraisal and stayed any discovery in the case. The insureds sought an immediate appeal and to stay the appraisal until the appellate court ruled. The insurer also opposed staying the appraisal. On appeal, the insurer admitted the trial court’s order compelling appraisal without conducting an evidentiary hearing was erroneous. Blakely v. First Protective Ins. Co., Jan. 30, 2019 (3d DCA). 

Tips & Lessons

• Always engage in a strategy that is sound and supported by the law. The insurance company vigorously fought against the insureds’ arguments before finally confessing error in the appeal. 
• Some cases warrant aggressive litigation tactics; however, be mindful of the legal and factual issues that, in the end, may only increase the carrier’s risk exposure.