Case Law Update – June 2014
Workers’ Compensation
Lord v. Santa Rosa Correctional Institute/The Division of Risk Management, 39 FLW D870, 1st DCA, opinion filed April 24, 2014. Attorney’s fees – Where claimant’s authorized primary care provider discontinued seeing workers’ compensation patients, claimant requested authorization of a new PCP, parties mediated claim, with employer/carrier agreeing to authorize a new PCP and conceding entitlement to E/C paid attorney’s fees for securing that benefit, claimant moved to enforce mediation agreement after E/C had trouble finding a doctor who would agree to serve as claimant’s PCP, and E/C selected a new PCP for claimant after several orders from JCC, it was error to fail to award fees incurred between mediation and authorization of new PCP – Because entitlement to fees is tied to the securing of a benefit, the amount of fee for securing any given benefit should include all attorney time reasonably necessary to secure the benefit.
Taylor v. Air Canada/Liberty Insurance Company, 39 FLW D880, 1st DCA, opinion filed April 25, 2014. Advance compensation – Judge of compensation claims erred in denying claimant’s request for advance of compensation for the purpose of taking the deposition of a witness who may advance proof of the compensability of claim.
Insurance
State Farm Mutual Automobile Insurance Company v. Curran, 39 FLW S122, Sup. Ct., March 13, 2014. Uninsured motorist Compulsory medical examination An insured’s breach of a compulsory medical examination provision in an uninsured motorist policy of insurance does not result in forfeiture of benefits unless the insurer pleads and proves it was prejudiced as part of its affirmative defense – CME provision in UM context is a post loss obligation of insured, not a condition precedent to coverage – Undisputed facts in instant case demonstrate that insurer was not prejudiced by insured’s refusal to submit to CME prior to initiation of litigation.
Citizens Property Insurance Corporation v. Perez, 39 FLW D731, 4th DCA, April 9, 2014. Attorney’s fees – Homeowners – Proposal for settlement – Trial court used incorrect standard in determining whether insurer’s nominal proposal for settlement of insured’s claim for hurricane damage was made in good faith – Rule is that minimal offer can be made in good faith if evidence demonstrates that, at time it was made, the offeror had reasonable basis to conclude that its exposure was nominal – Record contains enough evidence to conclude that insurer only faced nominal exposure, as insured did not first report alleged damage to home for nearly four years after fact – Remand with instructions to enter order granting fees to insurer and determining amount to be awarded.
Solano v. State Farm Florida Insurance Company, 39 FLW D993, 4th DCA, May 14, 2014. Homeowners Conditions precedent to suit – Examination under oath – Error to enter summary judgment for defendant insurer in insureds’ action for breach of insurance contract on ground that insureds failed to appear for examination under oath where insureds complied to some extent with requirements of policy – Summary judgment was precluded by factual question as to whether there was sufficient breach of cooperation provisions of policy to deny insureds any recovery under policy.
