Grant of Attorney Fees

Mercury Insurance Company v. Cooper
(Fla. App., 3rd Dist., Nov. 23, 2005)

A driver was injured in an accident when struck by a motor vehicle insured by Mercury. Mercury filed a declaratory judgment action against the driver, but, while the action was pending, settled the driver’s claim. Mercury’s insured filed an action against Mercury for attorney’s fees, which the court awarded. Mercury moved for reconsideration based on insurance fraud by its insured. The court affirmed the attorney’s fees under section 627.428 as there is no dispute that the settlement and the voluntary dismissal of the declaratory judgment action were related to each other.

Auto-No-Fault

Medical provider failed to attach ‘Assignment of Benefits Form’ to statement of claim

Progressive Express Insurance Company v .McGrath Community Chiropractic
(Fla. App., 2nd Dist., Nov. 18, 2005)

A medical provider filed a small claims action against insurer, seeking to recover PIP benefits assigned to it by the insured. Six months later, the provider amended its claim by attaching an “Assignment of Benefits Form.” The insurer moved for summary judgment on the ground that the provider did not have standing to assert the claim when it filed the action. The trial court agreed, and dismissed the complaint. On appeal, the circuit court reversed. The insurer filed a petition for writ of certiorari. The district court granted the insurer’s petition and quashed the circuit court’s decision. In so ruling, the court found that the “relation back” rule did not apply and that the circuit court’s decision resulted in a miscarriage of justice.

Exclusions-Aircraft

‘Aircraft’exclusions ineffective

Tucker v. Texas Lloyds Insurance Co.
(Texas, Dec. 6, 2005)

Plaintiff and his friend, Hartless, were moving Tucker’s inoperable, home-built light plane onto movable scales to weigh it. Tucker tipped the plane onto its nose, pinning Hartless under the propeller and causing physical injury. Hartless attempted to recover from Tucker and Tucker tendered his defense to Allstate, his homeowner’s insurance carrier. Allstate maintained the aircraft exclusion relieved it of its liability to defend Tucker. Allstate’s coverage did not apply to “bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of aircraft.” The court said the exclusion did not apply. Although the plaintiff clearly owned the aircraft, “[t]o suggest that simply because Tucker owned the aircraft, any personal injury in which the aircraft was implicated in any fashion was excluded does violence to the remaining portion of the exclusory clause.” There was no evidence the aircraft was being maintained at the time, and it was inoperable. Further, the aircraft was not being used as an aircraft at the time of the injury. The court said the injury could have been sustained if the friends were moving a piece of furniture, or any other piece of property. Lastly, the aircraft was not being loaded or unloaded at the time of the accident. The lower court’s grant of summary judgment was reversed and found Allstate had a duty to defend Tucker.

Case Law Watch is edited by Kevin T. Merriman of the law firm of Goldberg Segalla (www.goldbergsegalla.com). Merriman can be reached at kmerriman@goldbergsegalla.com.

Topics Carriers Aviation