Luther, Collier, Hodges & Cash, LLP – Attorneys at Law

Florida Legal Updates – January 2016

Rock You Like A Hurricane

State Farm Florida Insurance Company v. Moody
Damage caused by tornados and other meteorological events occurring as a result of a hurricane system fall within hurricane coverage endorsements found in many Florida insurance policies.

In early December, the Florida Fourth District Court of Appeal issued a ruling favoring insurance companies offering insurance to homeowners in hurricane prone Florida. The Court ruled that damages caused by the effects of a tornado spun off of a hurricane fall under the provisions of a Hurricane Coverage Endorsement. At issue were damages that occurred to two South Florida condos owned by insured parties. The condos were severely damaged when Hurricane Jeanne slammed into the Florida Coast on September 25, 2004.

The policies held by the insured parties contained general loss provisions that would provide coverage for additional living expenses incurred when the insured property becomes uninhabitable. The Hurricane Coverage Endorsement contained in each policy superseded the general provisions when loss was caused by a hurricane. Under the endorsement the additional living expenses would be capped at ten percent of the personal property coverage limit. State Farm issued payments to both insured property owners at the ten percent cap.

The homeowners contended that the damage to their condos was caused by a tornado rather than the hurricane itself and therefore the Hurricane Coverage Endorsement should not apply. The property owners were seeking more reimbursement for living expenses under the general policy provisions. The insured employed experts that noted that adjacent buildings were damaged far less that the building where the insured condos were located. The experts asserted that the differential in damage was explained by the fact that a tornado caused the damage. The insurance companies contended that the difference in damage was due to the fact that the insured condos were in a building that was on a golf course and not shielded from strong winds like the surrounding buildings.

Two lower courts sided with the insured and ordered State Farm to pay the higher costs without the ten percent cap. The Fourth DCA found otherwise. The Court ruled that the policy provisions were unambiguous and should be applied as written. The Court went on to write:

“The Hurricane Coverage Endorsement defines hurricane as, “a storm system that has been declared to be a hurricane by the National Hurricane Center of the National Weather Service.” (Emphasis added). There is only one reasonable interpretation of this definition. If the National Hurricane Center names a storm system a hurricane, the entire named storm system, including the elements of the storm, constitutes the hurricane. “

The Court also noted that no extrinsic evidence should have been considered outside of the policy itself due to the unambiguous nature of the insurance policy itself.

The case provides clarity to the application of similar policy endorsements for hurricanes. Hurricanes often bring with them a flurry of meteorological conditions such as tornadoes, straight line winds, hail, and extreme rain that cause significant property damage. Both insurance providers and insured property owners can be sure that Florida Courts are likely to apply an interpretation of insurance endorsements similar to that from the Fourth Circuit.

For a copy of the decision, see:

Docs v. Glocks

Dr. Bernd Wollschlaeger, et al v. Governor of the State of Florida, et al
Restrictions on doctors inquiring about a patient’s gun ownership under Florida’s Firearms Owners Privacy Act are constitutional.

The Eleventh Circuit Court of Appeals recently upheld Florida’s Firearms Owners Privacy Act. The Act restricts a doctor from asking questions “concerning the ownership [or home possession] of a firearm or ammunition by the patient or by a family member,” unless the doctor “in good faith believes that this information is relevant to the patient’s medical care or safety, or the safety of others.” The controversy arose after pediatrician Dr. Chris Okonkwo asked a young mother questions related the safety of her home and children, including whether she owned a firearm. The conservative state legislature soon enacted a law preventing such discourse. What followed was a battle between doctors proclaiming a free-speech interest in communicating with patients and the State arguing that patients Second Amendment and privacy rights were paramount.

After extensive litigation, and two hearings in front of the Eleventh Circuit, the State and gun-owners prevailed. Proponents of the Act argue that gun ownership is of little importance to medical treatment or patient evaluation. They also assert that any benefit the doctor might gain from asking such a question or having the answer in a patient’s medical records is outweighed by the patient’s right to privacy. Opponents note that doctors regularly ask questions about very private matters including sexual activity, parenting habits, and other intrusive questions all while maintaining privacy through professional decorum and regulation.

The Eleventh Circuit ruled that there was a compelling state interest in protecting the patient’s right to privacy. The Court found that although the Act was subject to First Amendment scrutiny, they applied only intermediate scrutiny to the law because of the conflicting need for privacy protection. The Court was in fact even skeptical that any scrutiny was necessary at all writing “[t]he Act as a whole ‘governs occupational conduct, and not a substantial amount of protected speech,’” so that “[a]ny burden the Act places on speech is thus incidental to its legitimate regulation of the practice of medicine.”

The ruling is an indication to State legislatures around the country that the ideology behind growing momentum for favorable gun laws in the legislative arena is shared at least in part by some of the nation’s highest courts.

For a copy of the decision, see:

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