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General Liability and Additional Insureds

“University of Miami v. Great American Assurance Company, 38 Fla. L. Weekly D392a, Case No. 3D09-2010, filed February 2013.  Order of summary judgment in favor of insurer regarding indemnification of attorney’s fees and costs based on beach of insurance policy and bad faith was reversed in favor of the “additional named” party to the commercial liability policy, who retained independent legal counsel in the defense of a claim after unsuccessfully demanding that the insurer provide it with legal counsel separate from that of the insured. In this case of first impression the court found that, where there are diverse legal positions of liability between the insured and the additional named party (rather than of coverage or excess polity limits) there is a conflict of interest which requires the insurer to provide separate and independent legal counsel for each party.”

(from RPPTL Construction Regulation Subcommittee).

Trent Cotney of Cotney Construction Law in Tampa, Florida will be presenting a CILB contractor continuing education seminar entitled “OSHA Inspection and Citation Process” on April 23, 2013 for the Education Institute of Florida. The seminar is designed to inform and teach contractors and design professionals how to improve workplace safety programs; what to expect during an OSHA inspection; how to negotiate at the informal conference and how to defend OSHA citations. It will be held at the Holiday Inn Express, Tampa Stadium, 4750 N. Dale Mabry Highway, Tampa Florida from 4:00p.m. – 5:00p.m.   For more information on the seminar, please visit www.trentcotney.com or call (813) 579-3278.

 

“Bernardo Kopel v. Leon Kopel, 38 Fla. L. Weekly ‘D666a, Case No. 3D11-536, filed March 20, 2013. Trial court judgment based on amended complaint that alleged a new cause of action barred by the statutes of limitation was reversed based on the non-applicability of the “relation back” doctrine. In addition, a claim of unjust enrichment against individual defendants was also reversed where the evidence showed that any such benefit was to corporate entities instead.” (from Construction Regulation Subcommittee Monthly Report).

Trent Cotney of Cotney Construction Law in Tampa, Florida was named to Chambers USA — “America’s Leading Lawyers for Business” for Construction Law (2013).

Chambers USA ranks the leading firms and lawyers in an extensive range of practice areas throughout America. The research is in-depth and client focused and the guide is read by industry-leading companies and organizations throughout the US and worldwide.

Fernando Subirats v. Fidelity National Property, 38 Fla. L. Weekly D396a, Case No. 3D12-68, filed February 20, 2013: The Department of Financial Services was found to have exceeded its rulemaking authority by enacting Rule 69J-166.031, F.A.C., requiring an insurer to notify its insured within five (5) days of receiving a claim of the right to participate in a state-sponsored mediation program, failing which the insurer waived his or her right to enforce a policy appraisal provision. The court found that subsection (4) of s. 627.7015, F. S., requiring the creation of a property insurance mediation program, did not include the rulemaking authority to provide for a wavier of this right, and affirmed the trial court’s order staying litigation of the breach of contract claim until the parties complete the appraisal process. (from RPPTL Construction Regulation Subcommittee Monthly Report).

Jay Raubvogel, et. al., v. Credit Suisse Securities, 38 Fla.L. Weekly, Case No. 4D12-259, issued February 20, 2013: The trial court’s finding that the prevailing parties had waived the right to have the court determine attorney’s fees was reversed in the absence of any such express waiver, not merely implied by a request for fees in the arbitration proceedings, and the case remanded for a fee determination by the court. (from RPPTL Construction Regulation Subcommittee Report).

Tiara Condominium Association, Inc., v. Marsh & McLennan Companies, Inc., 38 Fla. L. Weekly S151a, Supreme Court of Florida, Case No SC10-1022, filed March 7, 2013. In a 5-2 opinion (Polston and Canady dissenting in separate opinions and Justice Pariente concurring in a separate opinion), the court responded in the negative to a re-stated certified question form the 11th Circuit Court of Appeals, as follows:

DOES THE ECONOMIC LOSS RULE BAR AN INSURED’S SUIT AGAINST AN INSURANCE BROKER WHERE THE PARTIES ARE IN CONTRACTUAL PRIVITY WITH ONE ANOTHER AND THE DAMAGES SOUGHT ARE SOLELY FOR ECONOMIC DAMAGES?

In holding that the ELR applies ONLY in products liability cases, the majority opinion states the court is receding from it prior rulings in all other cases, which it characterized as “unwise and unworkable in practice. In this case, the condominium’s insurance broker represented that the association had property damage coverage of $50 million PER OCCURANCE; after being damages by two hurricanes (Frances and Jeanne), the association began a more expensive remediation of damages based on this representation, but the insurer (Citizens Property Insurance Corporation) took the position that the coverage was limited to a total of only $50 million for both occurrences. The parties settled for $89 million, and the association sought the balance from its broker based on (1) breach of contract, (2) negligent misrepresentation, (3) breach of the implied covenant fo good faith and fair dealing, (4) negligence, and (5) breach of fiduciary duty..

The trial court granted summary judgment in favor of the broker on all claims, and the 11th Circuit affirmed that result as to all claims except for the negligence and breach of fiduciary duty claims, and certified the question as to these remaining claims in terms of whether the ELR precluded recovery and whether the broker was a “professional” within the exception to the ELR under the holding of Moransais v. Heathman, 744 So. 2d 973 (Fla. 1999), and its predecessor cases. The court’s majority restated the certified question so as to ignore the “professional” exception to the ELR, since they were receding to a “products” only application of the rule.

In his dissent, Justice Canady agreed that the original certified question should be answered in the negative as well, but only because he did not find the insurance broker to within the “professional” exception to this rule. He stated: “With today’s decision, we face the prospect of every breach of contract claim being accompanied by a tort claim.” (from RPPTL Construction Regulation Subcommittee Monthly Report).