Tag: News

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Weekly Review for Florida Insurance Law for Friday, March 28, 2014

Insurance law

Insurance lawHere are some recent articles of interest that I found this week for the insurance industry, Florida insurance law, Florida insurance claims, and Florida insurance trends.  Enjoy!

Florida Senate OKs Ban on Insurance Underwriting Based on Gun Ownership

The Senate passed a bill that would make it illegal for insurance companies to deny policies or charge higher rates solely based on gun ownership. The bill passed on a 36-3 vote. Read more here… http://ow.ly/uMUZT

Florida May Have Private Flood Insurance Market

Homeowners in Florida are facing rising flood insurance rates that could threaten their financial stability, but state lawmakers may be able to provide some relief through new legislation. The legislation would create a competitive, private insurance market throughout the state. This would take flood insurance out of the jurisdiction of the federal government, allowing private insurers in Florida to provide this coverage to homeowners. State lawmakers believe that this will be beneficial to consumers as the National Flood Insurance Program may no longer be able to provide the coverage that homeowners need. Read more here… http://ow.ly/uMUWL

Florida’s Citizens Reaches Sinkhole Settlement

Florida’s state-backed property insurer said it has reached an agreement with more than 300 policyholders with sinkhole claims that officials say could save the insurer $30 million in legal fees. Read more here… http://ow.ly/uKvAt

Florida Legislature Seeks to Entice Private Insurers to Sell Flood Policies

The Florida Legislature is moving forward on a plan to entice private insurance companies to sell flood policies in the state that’s the most vulnerable to storm surge.

It’s not clear, though, that many private insurers will want to assume the risks of flooding and join two companies already writing certain flood policies in the state.  Read more here…ow.ly/uWHX5

Thanks for reading and sharing.  Stay tuned for next week’s review for Florida Insurance Law!

Photo credit: www.regblog.org

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Federal Court Deadline Changes

United States District Court – Southern District of Florida, Admin Order 2009-51

The U.S. District Court for the Southern District of Florida recently amended its Local Rules to amend time calculations for the purposes of the Federal Rules and for the filing of certain motions and memorandum.  These changes go into effect December 1, 2009 and run until the changes to the Federal Rules of Civil Procedure are adopted next year.  For the complete announcement as well as a copy of Administrative Order 2009-51, please visit the US District Court site by clicking here .

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Insurer May Rescind PIP Insurance for Misrepresentation without Providing 45 Day Cancellation Notice

Florida Insurance Law

Florida Insurance Policy Rescission

In United Automobile Insurance Company v. Salgado, 34 Fla. L. Weekly D1578 (Fla. 3DCA 2009), the Florida Third District Court of Appeal held that an insurer was able to rescind a Florida PIP insurance policy for misrepresentation even though the insurer did not cancel the policy with forty-five day’s advance notice as required by Florida Statute 627.728(3)(a).  In this case, Salgado was injured in a auto accident and the insurer after investigation of the claim determined that Salgado failed to disclose his brother as a member of his household.  The insurer then sent a notice to Salgado that his insurance policy was cancelled as of the start date of the policy for misrepresentation.  Florida Statute 627.728(3)(a) requires that an insurer provide an insured with written notice of cancellation at least forty-five days in advance of the cancellation date.  Salgado claimed that the insurer’s cancellation was improper since the insurer did not give him the required written advance notice and that the State mandated PIP insurance could not be rescinded by an insurer.

In reaching its conclusion that the insurer could rescind the PIP insurance policy for misrepresentation, the Third District held that the Florida No-Fault Law did not abrogate an insurer’s right to rescission since the legislature never included that type of insurance in the list of insurance that could not be rescinded.  As to the issue of the insurer’s failure to provide forty-five day’s advance written notice, the Third District further held that misrepresentation is a viable defense even in the absence of effective cancellation.  In short, misrepresentation trumps all in that it will nullify any policy from its start and is an absolute defense to enforcement of the policy.  In so ruling, the Third District reasoned that rescission has the effect of preventing the insurance policy from ever coming into existence and therefore there is no insurance policy to actually cancel.

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Inherited IRA Subject to Florida Garnishment

Florida Debt Collection

Florida Garnishment Exemption

In Robertson v. Deed and RBC Wealth Management, 34 Fla. L. Weekly D1661 (Fla. 2DCA 2009), the Florida Second District Court of Appeal held that an  IRA inherited by a judgment debtor was subject to Florida garnishment by a judgment creditor.  Florida Statute 222.21(2)(a) provides that a fund or account maintained in accordance with a plan that has been either preapproved or determined to be exempt from taxation by the IRS is exempt from claims of creditors.  In this instance, the Second District found that an inherited IRA does not fall into the exemption since it is not the original fund or account. The original IRA before passing by death is tax exempt and has severe restrictions on when and how it can be accessed.  Conversely, the tax status of an inherited IRA changes drastically as it becomes a liquid asset that a beneficiary may access at any time without penalty and that the beneficiary must take as income.  Unlike the original IRA, an inherited IRA is not a vehicle to defer taxation on income in order to preserve income for retirement.  Accordingly, the Second District ruled that an inherited IRA is no longer subject to the exemption under Florida Statute 222.21(2)(a) and therefore can be garnished by a judgment debtor.

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Maintenance of Passive Website not basis for Florida Jurisdiction

In Rexam Airspray Inc. v. Arminak, 2007 WL 283438 (S.D. Fla.), the U.S. District Court for the Southern District of Florida held that a web site is not well suited to serve as the basis for general jurisdiction over a foreign defendant.  In order to confer jurisdiction over a nonresident defendant, that defendant’s contacts with the State of Florida must be continuous and substantial.  Due to the nature of a web site, while it is possible that the web site have continuous contacts it is equally possible that those contacts are not substantial.  As in this case, a passive web site only makes information available to those interested in viewing it.  On the other hand, an active web site allows users to enter into contracts over the Internet.  Since this web site did not allow its users to contract with the defendant, Southern District Court held that the web site is passive and is thus insufficient to confer jurisdiction over the nonresident defendant. 

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Voluntary Dismissal entitles Defendant to Attorney’s Fees as Prevailing Party

In Alhambra Homeowners Association Inc. v. Asad, 2006 WL 3613693 (Fla. 4DCA),opinion filed December 13, 2006, the Fourth District Court of Appeal held that a Homeowner’s Association that voluntarily dismissed a lawsuit against a Homeowner for noncompliance with Association Rules was liable for the Homeowner’s attorney’s fees.  The general rule is that when a Plaintiff voluntarily dismisses an action, the Defendant is the prevailing party within the meaning of a statutory or contractual provision that awards attorney’s fess to the prevailing party.  This rule applies notwithstanding the fact that the Homeowner’s Association refiled the lawsuit and ultimately prevailed under the same claims.

This decision conflicts with the Third District Court of Appeals decision of Simmons v. Schimmel, 476 So.2d 1342 (Fla. 3DCA 1985), which holds that the voluntary dismissal of a complaint does not imply that the Defendant was the prevailing party as one must look beyond the dismissal to see if the dismissal represents an end or finality based on the merits.

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