Florida/Georgia Personal Injury & Workers Compensation

...r claim under the policy. 68 (b) Furnishing forms for reporting a loss or claim, for giving information relative thereto, or for making proof of loss, or receiving or acknowledging receipt of any such forms or proofs completed or uncompleted. 69 Id. § 627.426....

...The issue before us is whether petitioner AIU Insurance Company (AIU) is prohibited from denying coverage in connection with a loss, coverage for which is excluded under a comprehensive liability policy, due to its noncompliance with the notice requirements of section 627.426(2), Florida Statutes (1985). Section 627.426(2) provides in pertinent part: (2) A liability insurer shall not be permitted to deny coverage based on a particular coverage defense unless: (a) Within 30 days after the liability insurer knew or should have known of the coverage def...

...ability endorsement was eliminated from the policy. AIU informed Block Marina that although the claim was not one generally covered under the policy, it would provide a defense subject to a reservation of its right to assert a coverage defense under section 627.426(2)(a)....

...Block Marina and Norfolk Marine were granted a summary judgment prohibiting AIU from denying coverage, because AIU had failed to notify the insured of its refusal to defend within sixty days after its reservation letter and within thirty days before trial, as required by section 627.426(2)(b)....

...On appeal, AIU relied on the Fifth District Court of Appeal's decision in United States Fidelity and Guarantee Co. v. American Fire and Indemnity Co., 511 So.2d 624, 625 (Fla. 5th DCA 1987) [hereinafter USF & G ] in which the court held: The legislature did not intend, by section 627.426(2), to create coverage under a liability insurance policy that never provided that coverage, or to resurrect a policy that has expired by its own terms and no longer legally exists, to cover an accident or event occurring after its termination....

...This endorsement lapsed, thus leaving Block Marina unprotected for the loss later sustained. In both the instant case and in USF & G, coverage which was once available had been allowed to lapse. The Fifth District in USF & G held that under such circumstances section 627.426(2) was not intended to create or resurrect coverage....

...ses at a time when the marina operator's legal liability endorsement had been eliminated from the policy and the contract of insurance expressly excluded such losses from coverage. We do not believe that the legislature intended, by the enactment of section 627.426(2), to give an insured coverage which is expressly excluded from the policy or to resurrect coverage under a policy or an endorsement which is no longer in effect, simply because an insurer fails to comply with the terms of the aforementioned statute. The Fourth District Court of Appeal recently reached the same conclusion, holding that section 627.426(2) was not intended to create coverage where a claim is made outside the effective date of the policy or where a *1000 particular loss is expressly excluded from coverage....

...4th DCA 1988). The Fourth District recognized that there is a lack of coverage in either case and that "[a]n insurer does not assert a `coverage defense' where there was no coverage in the first place." Id. at 1195 (citing USF & G, 511 So.2d at 625). Section 627.426(2), by its express terms, applies only to a denial of coverage "based on a particular coverage defense," and in effect works an estoppel....

...This Court recently reiterated the general rule that, while the doctrine of estoppel may be used to prevent a forfeiture of insurance coverage, the doctrine may not be used to create or extend coverage. Crown Life Ins. Co. v. McBride, 517 So.2d 660 (Fla. 1987). [1] We do not believe that it was the legislature's intent that section 627.426(2) change this long-standing rule. Further, construing the term "coverage defense" to include a disclaimer of liability based on an express coverage exclusion has the effect of rewriting an insurance policy when section 627.426(2) is not complied with, thus placing upon the insurer a financial burden which it specifically declined to accept. Such a construction presents grave constitutional questions, the impairment of contracts [2] and the taking of property without due process of law. Therefore, we hold that the term "coverage defense," as used in section 627.426(2), means a defense to coverage that otherwise exists....

...ovided for delivery of notice of claim by certified or registered mail). Most notably, in Phoenix Ins. Co. v. McCormick 542 So.2d 1030 (Fla. 2d DCA 1989), the Second District Court of Appeal held actual notice by a mode other than that authorized in section 627.426(2)(a), Florida Statutes (1985), sufficient to preserve an insurer's right to assert a coverage defense....

...THIS CAUSE comes before the Court on Plaintiffs', PEPPER'S STEEL & ALLOYS, INC, and NORTON BLOOM, Motion for Summary Judgment and on Defendants', UNITED STATES FIDELITY AND GUARANTY COMPANY and THE HOME INSURANCE COMPANY, Motions to Dismiss. The questions presented are: (1) whether Florida Statute Annotated § 627.426(2) (West 1984) precludes any Defendants from raising defenses regarding their duty to defend and/or provide coverage/indemnification to the Plaintiffs, their insureds, in actions brought against the Plaintiffs by the State of Florida, Depa...

...This court held a hearing on all motions on June 8, 1987. At the hearing it became clear that despite the various issues raised in the motions and responses thereto, there were in fact only two narrow issues before the court: the applicability of Fla.Stat.Ann. § 627.426(2) (West 1984) and its effect on the Defendants' subsequent ability to raise coverage defenses, and the Defendants' duty to otherwise provide a defense. II. The Statute This court is of the opinion that the statute is not applicable to some Defendants and has been complied with by the others. Fla.Stat. § 627.426(2) states in pertinent part: (2) A liability insurer shall not be permitted to deny coverage based on a particular coverage defense unless: (a) Within 30 days after the liability insurer knew or should have known of the coverage defense, w...

...of the subject litigation; or 3. Retains independent counsel which is mutually agreeable to the parties. Reasonable fees for the counsel may be agreed upon between the parties or, if no agreement is reached, shall be set by the court. Fla.Stat.Ann. § 627.426(2) (West 1984)....

...no duty to defend, argue that this section of the statute is not applicable to them and that they cannot be said to have waived any right to assert coverage defenses predicated on an alleged failure to comply with it. In particular, Home argues that § 627.426(2)(b) deals exclusively with arrangements concerning defense of the insured, retention of independent counsel, and delineations of the duties and obligations in relation to pending litigation....

...the parties. Plaintiffs also assert that summary judgment in their favor is appropriate against Defendants Federated, Pacific, Reliance and Constitution because those Defendants have failed to comply with the notice provisions contained in Fla.Stat. § 627.426 and, therefore, cannot deny coverage. [3] Section 627.426(2) provides in pertinent part: (2) A liability insurer shall not be permitted to deny coverage based on a particular coverage defense unless: (a) Within 30 days after the liability insurer knew or should have known of the coverage def...

...first place. In support of their argument, Defendants rely on the case of United States Fidelity & Guaranty Co. v. American Fire & Indemnity Co., 511 So.2d 624 (Fla. 5th DCA 1987) ( "USF & G" ), which held that "[t]he legislature did not intend, by section 627.426(2), to create coverage under a liability insurance policy that never provided that *782 coverage, or to resurrect a policy that has expired by its own terms and no longer legally exists, to cover an accident or event occurring after its termination." Id....

...In this circumstance the Court cannot agree with Defendants that they have not raised a "coverage defense" by failing to provide a defense for the claims asserted against Plaintiffs. See Id. However, Defendants Pacific and Constitution raise another argument in support of their position. They argue that § 627.426 does not apply to them because they are excess insurers with no duty to defend. [4] This argument is well taken. Section 627.426 addresses "problems arising from disputes regarding whether, how and under what circumstances and conditions a defense will be provided for an insured pursuant to a defense provision of an insurance contract." Pepper's Steel & Alloys v. United States Fidelity and Guaranty Co., 668 F.Supp. 1541, 1544 (S.D.Fla.1987). Since neither Pacific nor Constitution have a duty to defend Plaintiffs, § 627.426 is inapplicable to them. Id. Accordingly, Plaintiffs cannot hold either Pacific or Constitution responsible for defense of the Barras suit on the grounds of their failure to comply with § 627.426. Since Defendants Federated and Reliance are not simply excess insurers, § 627.426 does apply to them....

...intent embodied *783 in the notice requirements of the statute has been effectuated. See Pepper's Steel, 668 F.Supp. at 1544. Federated, therefore, will not be charged with the responsibility to defend Plaintiffs on the basis of non-compliance with § 627.426. Finally, a review of the file indicates that Reliance also complied with the requirements of § 627.426....

...Reliance responded to that notice by sending Plaintiffs, by certified mail, a reservation of rights letter dated June 4, 1986. On July 31, 1986, Reliance followed up its original response by sending Plaintiffs, again by certified mail, a letter denying coverage. The timing of these letters was in full compliance with § 627.426. Since Plaintiffs have not offered any evidence to contradict Reliance's contentions, no material fact remains at issue with respect to Reliance's compliance with § 627.426....

...Here, as the learned trial judge ultimately found, Colony's policy unequivocally excluded coverage for liability arising from the injuries Ms. Hollis's complaint against G & E alleged. Her allegations plainly do not create potential coverage under the policy, in whole or in part. Nor does Section 627.426(2), Florida Statutes (1997), somehow give rise to coverage for injuries or losses the policy had unambiguously excluded....

...efense without reservation, despite the dispute; or (2) obtain a non-waiver agreement after full disclosure of the coverage defenses it seeks to preserve; or (3) send a reservation of rights letter and appoint mutually agreeable defense counsel. See § 627.426(2)(b)(3), Fla....

...I again tender this matter to the insurance carrier of G & E Tires for protection and/or expenses in the defense of this matter and that will be our position subject to judicial determination. [2] There has been no contention that Colony failed to comply with the requirements of section 627.426(2), Florida Statutes (1997) either when it preliminarily denied coverage or when it initially refused to defend G & E. Section 627.426(2) provides in pertinent part: A liability insurer shall not be permitted to deny coverage based on a particular coverage defense unless: (a) Within 30 days after the liability insurer knew or should have known of the coverage defense...

...ments of section 627 426(2), where a policy excludes coverage. See AIU Ins. Co. v. Block Marina Inv., 544 So.2d 998, 999, 1000 (Fla.1989) (construing the term "coverage defense" to mean "a defense to coverage that otherwise exists" and holding that "section 627.426(2) ......

...ecision in AIU Insurance Co. v. Block Marina Investment, Inc., 544 So.2d 998 (Fla. 1989), and we approve the application of the exception on the basis we have set forth herein. AIU only addresses whether noncompliance with the notice requirements of section 627.426(2), Florida Statutes (1985), precludes an insurer from denying coverage which is excluded under a comprehensive liability policy. We concluded that an insurer's failure to comply with the requirements of section 627.426 will not preclude an insurer from disclaiming liability where the policy has expired or the coverage sought is excluded by the policy. AIU simply recognizes that section 627.426 does not create or extend nonexistent coverage....

...Accordingly, the trial court was correct in not awarding such attorney's fees. In the second appeal (# X-XX-XXXX), International appeals a number of rulings concerning insurance coverage. International appeals the Final Judgment on Insurance Coverage which finds that International failed to comply with section 627.426(2), Florida Statutes (Supp. 1982), Florida's claims administration statute. Section 627.426(2), Florida Statutes (Supp. 1982), provides that a liability insurer shall not be permitted to deny coverage based on a particular coverage defense unless it follows specific procedures. Florida law requires strict compliance with section 627.426(2), Florida Statutes....

...Salvia, 472 So.2d 486, 488 (Fla. 5th DCA 1985). Although International may have substantially complied with such section, International admits its failure to strictly comply. Accordingly, the trial court's ruling that International failed to comply with section 627.426(2), Florida Statutes, is affirmed....

...International argues that the policy does not cover the Association's liability because the claim against the Association was not first made during that policy's effective period. The insured counters that International cannot assert this "coverage defense" because the insurer failed to comply with section 627.426(2), Florida Statutes....

...American Fire and Indemnity Co., 511 So.2d 624 (Fla. 5th DCA 1987). An insurer does not assert a "coverage defense" where there was no coverage in the first place. Id. Although we affirm the trial court's ruling *1195 that International failed to comply with section 627.426(2), Florida Statutes, we find that the insurance company is not precluded from denying coverage because International did not assert a "coverage defense" since there was no coverage in the first place....

...June 24, 1986, does not provide coverage for the directors because the directors made material misrepresentations on the application for the insurance coverage. This is clearly a "coverage defense" that International waived by failing to comply with section 627.426(2), Florida Statutes....

...irectors is affirmed. We agree with International's assertion that the trial court erred in ruling that insurance coverage exists for the award of treble damages for civil theft. The trial court ruled that because International failed to comply with section 627.426(2), Florida Statutes, it is estopped from denying coverage for a risk not covered by the policy....

...The Association and its directors, however, maintain that treble damages are not excluded by the terms of the policy and that even if coverage for treble damages is excluded, International waived its right to assert such a "coverage defense" because they failed to comply with section 627.426(2), Florida Statutes....

...The same public policy should apply to treble damages. Thus, we hold that treble damages are "fines or penalties imposed by law or matters which may be deemed uninsurable under the law." Next, the Association and its directors assert that International's failure to strictly comply with section 627.426(2), Florida Statutes, precludes International from asserting the "coverage defense" that coverage is specifically excluded by the terms of the policy....

...4th DCA 1972), cert. discharged, 276 So.2d 37 (Fla. 1973). Likewise, it follows that coverage for treble damages cannot be created by waiver and estoppel when such coverage could never exist in the first instance. The legislature did not intend, by section 627.426(2), to create coverage under a liability insurance policy that never provided that coverage....

...erage on the grounds of policy exclusion is not a "coverage defense" because a treble damages award is uninsurable as a matter of public policy; that coverage for an award of treble damages cannot be created by International's failure to comply with section 627.426(2), Florida Statutes, because waiver cannot create coverage for policy risks not covered by the policy terms....

...g for the treble damages issue, we hold here that insurance coverage cannot be extended to include dishonest acts where no such coverage ever existed. See Six L's Packing Co., 268 So.2d at 564. Thus, the fact that International failed to comply with section 627.426(2), Florida Statutes, does not affect the applicability of the rule that waiver and estoppel simply cannot create coverage where coverage never existed....

...s against Auto Owners and Northbrook arising out of the Wellcraft Litigation; (2) whether Reliance has standing to assert its claims against Auto Owners and Northbrook; and (3) whether Auto Owners and Northbrook failed to comply with Florida Statute § 627.426 and are therefore prohibited from denying coverage....

...Reliance obtained a partial summary judgment as to liability against Sun and the Sunquists in the Indemnity Agreement Litigation. Reliance therefore has standing as both a first party claimant and a third party claimant to assert claims for insurance coverage against Auto Owners and Northbrook. C. Florida Statute 627.426 The third threshold issue is whether Auto Owners and Northbrook can deny coverage pursuant to Fla. Stat. § 627.426 which provides that a liability insurer shall not be permitted to deny coverage based on a particular coverage defense unless within "30 days after the liability insurer knew or should have known of a coverage defense, written notice of reservation of rights to assert a coverage defense is given to the named insured. " (Emphasis added). Fla. Stat. § 627.426 does not apply to provide coverage where coverage otherwise does not exist simply because an insurer fails to comply with the terms of the statute....

...Based upon Auto Owners' correspondence to Sun attached in response to Reliance's motion for summary judgment and Northbrook's May 22, 1996, letter attached *1261 to Reliance's third party claim, this court finds that Auto Owners and Northbrook have complied with Fla. Stat. § 627.426. As (1) Sun has not released all of its claims against Auto Owners and Northbrook arising out of the Wellcraft Litigation; (2) Reliance has standing to bring this declaratory action; and (3) Auto Owners and Northbrook have complied with Fla. Stat. § 627.426, this court turns to whether there is coverage under the CGL policies for Reliance's asserted damages....

...ssault & Battery Endorsement and a Liquor Liability Exclusion Endorsement contained in the policy. The insurer was preserving its right to raise coverage defenses, while affording its insured a defense, pursuant to the Claims Administration Statute, section 627.426, Florida Statutes (1991)....

...Despite the policy's requirement of prompt notification, the insured failed to notify the insurer until approximately ten months after the incident. Rather than declining coverage, the insurer elected to provide a defense for the insured under a full reservation of rights. See § 627.426(2), Fla....

...This valid purpose would be frustrated by extending the "confession of judgment" fiction in this case. Here, the insured was not "forced to sue" the insurer to be provided a defense. In fact, the insurer appropriately provided the insured with a defense under a reservation of rights, pursuant to section 627.426(2), Florida Statutes (2004)....

...pecified limits. The consequence of that violation is that the carrier has transferred to its insured the power to conduct the defense of the claim against its insured." [50] The Beville court also found support in the Claims Administration Statute, § 627.426(2), Florida Statutes, [51] which provides that a liability insurer shall not be permitted to raise a coverage defense — e.g., the lack of timely notice — without fist obtaining either a "nonwaiver" agreement or furnishing "mutually acceptable counsel." Beville is not controlling....

...DHS Developers, Inc., 442 So.2d 396, 396-97 (Fla. 5th DCA 1983). [47] Taylor v. Safeco Ins. Co., 361 So.2d 743, 745-46 (Fla. 1st DCA 1978). [48] Nationwide Mut. Fire Ins. Co. v. Beville, 825 So.2d 999 (Fla. 4th DCA 2002). [49] Id. [50] Id. at 1003. [51] Section 627.426(2) provides, in relevant part, that an insurer "shall not be permitted to deny coverage based on a particular coverage defense unless: `the insurer timely sends a reservation of rights letter and either (a) notifies the insured of its...

...ing of coverage. It follows that the award of attorney's fees is also improper because the insured's assignee will recover no judgment. See § 627.428, Fla. Stat. (1993). REVERSED. GUNTHER, C.J., concurs. POLEN, J., concurs in result only. NOTES [1] § 627.426(2), Fla....

...r clause that the arbitrators "shall not decide the [carrier's] liability." More important, both implicate the general rule that no waiver may be inferred in the face of a specific contractual provision, a "nonwaiver clause," which precludes it. See § 627.426(2),(b),2, Fla....

...red vehicle and that Jordan was a covered driver. The judgment is also supported by two other grounds, one based on the conduct of the parties and the other based on the operation of federal law. The court reasoned that General Security had violated section 627.426(2), Florida Statutes, when it hired an attorney to represent Barrentine in the wrongful death action without first obtaining Barrentine's permission....

...As with the provision relating to covered vehicles, we must give effect to the plain meaning of this provision relating to drivers. We are also unable to agree that insurance coverage was created by estoppel. The trial court held that General Security could not deny coverage, because it had not complied with section 627.426(2), Florida Statutes (2000)....

...City of Miami Beach, 521 So.2d 232 (Fla. 3d DCA 1988). The trial court should not have reached the merits of the estoppel issue in this case, however, because it was not properly before the court. Barrentine did not assert a claim of estoppel under section 627.426(2), Florida Statutes....

...The estoppel issue was raised by Anita Enfinger on behalf of the estate. General Security objected to Enfinger's argument on the ground that the estate lacked standing to assert the claim. This objection should have been sustained. The conditions imposed by section 627.426(2) apply only to the immediate parties to an insurance contract....

...at she was living with Kevin at the time she applied for the automobile insurance. Thus, even after that telephone call appellant had no knowledge of that misrepresentation. As to applicability of the provisions of the Claims Administration Statute, section 627.426, Florida Statutes (1989), which was discussed at oral argument, we note that our sister court in Progressive American Ins....

...defense based on an exclusion in the policy for damage caused by fungus and mold. The district judge denied the motion, holding that Mid-Continent had impermissibly delayed in raising this issue and that an amendment was not permissible under Fla. Stat. § 627.426(2)(a), which, according to the district court, requires thirty days written notice if an insurer is going to deny coverage based on a coverage defense. Following trial, the court found that the damage occurred in 2005, and, therefore, that the 2005–2006 policy applied....

...Denial of Motion to Amend the Pleadings The district court denied Mid-Continent’s motion for leave to amend its pleadings at trial to assert a coverage defense based on the fungus and mold exclusion in the policy. Mid-Continent contends that the district court erred in relying on Fla. Stat. § 627.426(2)(a) as the basis for denying the motion. According to Mid-Continent, this statute does not apply to denials of coverage based on express policy exclusions, such as the fungus and mold exclusion at issue here. The Carithers do not appear to dispute that Fla. Stat. § 627.426(2)(a) was not a proper basis for denying the motion....

...Mid- Continent cannot now rely on an exclusion that it has never before 13  Case: 14-11639 Date Filed: 04/07/2015 Page: 14 of 22 mentioned in this litigation. See Fla. Stat. § 627.426(2)(a) (prohibiting insurer from denying coverage based on a coverage defense unless insurer gives written notice to insured within 30 days after insurer knew or should have known of the coverage defense). (Mem....

...ption of this matter” and that “Mid- Continent cannot now rely on an exclusion that it has never before mentioned in this litigation. (Id.) (emphasis added). Second, the district court determined that the amendment was precluded by Fla. Stat. § 627.426(2)(a). We hold that the court did not abuse its discretion in denying the amendment based on Mid-Continent’s unreasonable delay. We need not decide whether the court’s reliance on Fla. Stat. § 627.426(2)(a) was error....

...the underlying suit because it "failed to obtain independent counsel which was mutually agreeable to the parties" as required by the Florida's Claims Administration Act, (Def. Moss Mot. Summ. J. 2). The Florida Claims Administration Act, Fla. Stat. § 627.426(2) (2008), provides that "[a] liability insurer shall not be permitted to deny coverage based on a particular coverage defense unless: ......

...o would operate her automobile and also failed to list a person who resided in her household. The insured argued that the insurer could not deny her coverage because it had failed to comply with the requirements of the Claims Administrative Statute, section 627.426, Florida Statutes (1989)....

...In the notice, Marsico alleged Bartolazo coerced her into a sexual relationship by prescribing addictive drugs. 5 On January 27, 1991, Bartolazo notified National of the claim, seeking coverage under his 1991 policy. National sent to Bartolazo a reservation of rights letter required under Section 627.426(2), Florida Statutes, in August 1991, and in July 1992, filed an amended complaint seeking declaration of its obligations under the 1991 policy....

...It alleged that the policy contained an exclusion from coverage for any bodily injury to any insured or any member of an insured's family residing in the insured's household. The Hinestrosas alleged estoppel and waiver as defenses, arguing that State Farm had failed to comply with sections 627.426 and 627.7264, Florida Statutes (1989), because their insurer had never previously asserted the family exclusion as a policy defense....

...t day" — words usually found in cases seeking only a money judgment rather than a declaratory judgment. Turning to the merits, the gist of the insured's case for coverage is that State Farm failed to comply with the "Claims Administration Statute," section 627.426(2), Florida Statutes (1989), which provides in pertinent part: (2) A liability insurer shall not be permitted to deny coverage based on a particular coverage defense unless: (a) Within 30 days after the liability insurer knew or shoul...

...The issue in that case, as here, was whether a liability insurer "is prohibited from denying coverage in connection with a loss, coverage for which is excluded under a comprehensive liability policy, due to its noncompliance with the notice requirements of section 627.426(2), Florida Statutes (1985)." The court held: We do not believe that the legislature intended, by the enactment of section 627.426(2), to give an insured coverage which is expressly excluded from the policy or to resurrect coverage under a policy or an endorsement which is no longer in effect, simply because an insurer fails to comply with the terms of the aforementioned statute....

...The question is, however, whether the violation would allow the carrier to avoid liability for the expenses of defense during that period. We do not think so. In the first place, any violation of the notice provision is in the nature of a "coverage defense" within the meaning of CSA. Section 627.426(2) bars the carrier from asserting a coverage defense unless the carrier has complied fully with the CAS. § 627.426(2), Fla....

...howing that insurer has not been prejudiced by lack of notice). In this case, the carrier makes no argument that it was prejudiced in some way by the insured's violation of the notice provision. AFFIRMED. WARNER and TAYLOR, JJ. concur. NOTES [1] See § 627.426(2), Fla....

...ception because she had made a material misrepresentation that Blohm would not operate the vehicle. Papasodero, in turn, urged the view that Progressive could not deny her coverage based upon its noncompliance with the Claims Administration Statute, section 627.426, Florida Statute (1989)....

...me of a declaratory judgment action involving the question of coverage. Subsequently, a dispute arose concerning whether or not Progressive fulfilled its duty to provide mutually agreeable independent counsel under the Claims Administration Statute, section 627.426(2)(b)3, Florida Statutes....

...In this case, however, the insurance carrier is not said to be "denying coverage"; there was no coverage in the first instance. In AIU Insurance Co. v. Block Marina Investment, Inc., 544 So.2d 998, 1000 (Fla. 1989), the Florida Supreme Court stated: Therefore, we hold that the term "coverage defense," as used in section 627.426(2), means a defense to coverage that otherwise exists....

...that Blohm was not an "operator" of the vehicle. Based upon the foregoing, the declaratory judgment is reversed, and this cause is remanded for the trial court to enter judgment in favor of Progressive. SCHEB, A.C.J., and HALL, J., concur. NOTES [1] Section 627.426(2), Florida Statutes (1987), provides: (2) A liability insurer shall not be permitted to deny coverage based on a particular coverage defense unless: (a) Within 30 days after the liability insurer knew or should have known of the cove...

...Green, Simmons, Green, Hightower & Gray, P.A., Ocala, and Thomas D. Sawaya, Ocala, for appellee Charles Peter Adolph. Ralph J. McMurphy of Green, Simmons, Green, Hightower & Gray, P.A., Ocala, for appellee Patricia S. Huddleston. COWART, Judge. This case involves a question of whether section 627.426(2), Florida Statutes, creates coverage under an expired liability insurance policy where the issuing insurance company did not comply with the provisions of that statute....

...Adolf counterclaimed against American and crossclaimed against USF & G. The trial court entered final summary judgments in favor of Adolf and American, and against USF & G, finding that USF & G's "claims-made" policy, though expired, provides coverage to Adolf because USF & G did not comply with the provisions of section 627.426(2). We reverse. Section 627.426(2) provides that a liability insurer shall not be permitted to deny coverage based on a particular coverage defense unless the insurer performs certain acts specified in the statute....

...e the policy term had expired and the liability coverage terminated ten years before any claim was made on the policy. An insurer does not assert a "coverage defense" where there was no coverage in the first place. The legislature did not intend, by section 627.426(2), to create coverage under a liability insurance policy that never provided that coverage, or to resurrect a policy that has expired by its own terms and no longer legally exists, to cover an accident or event occurring after its termination. Accordingly, section 627.426(2) does not apply in this case and the lower court erred in so holding....

...I respectfully dissent. Initially I agreed with the theory adopted by the majority that an insurer who has issued an expired policy is not asserting a "coverage defense" when it points out absence of coverage for the mishap, and therefore no duty exists to comply with section 627.426(2) of the Insurance Code. [1] However, section 627.426(2) does not define what the legislature meant by "coverage defense," and in looking at the body of insurance law, "coverage" is used in such a broad, all-encompassing manner, that I fear exclusion in this case will render section 627.426(2) meaningless....

...when the negligent act which caused the accident took place. [4] Most contractors' comprehensive liability policies are of the claims-made type, effective for accidents which happen during the effective dates of the policy. [5] Accordingly, but for section 627.426(2), American's policy would cover this accident because it was in effect when the negligence was discovered; whereas USF & G's policy would not provide coverage because that policy was in effect when the negligent act occurred. The difficult issue in this case is to determine whether section 627.426(2) has the effect of creating coverage for Adolf under USF & G's expired liability policy....

...titutes a condition of forfeiture as opposed to a limitation of coverage, [11] and even whether or not estoppel can expand coverage. [12] If the whole body of case law regarding the effect of waiver and estoppel on insurance contracts were read into section 627.426(2), as apparently the New York courts have done, the result would be a severe reduction in its impact and reach. Similarly, if "coverage defense" as used in section 627.426 is not very narrowly defined and limited in this state, this statute may also be rendered meaningless and ineffective....

...[18] In Auto Owners Insurance Co. v. Salvia, 472 So.2d 486 (Fla. 5th DCA 1985), we held that an insurance company was precluded from asserting "any coverage defense" against an insured, because it failed to select and act upon one of the statutory alternatives set forth in section 627.426(2)....

...The nature of the particular coverage defense sought to be asserted by Auto Owners in that case was not set forth in the opinion, but it did involve a liability policy for work performed during the insured's business operations. We did not read into section 627.426(2) any exceptions for defenses without which coverage would be expanded. Section 627.426(2) uses broad language to impose a duty on an insurer to respond to its insured within set time limits: A liability insurer shall not be permitted to deny coverage based on a particular coverage defense unless: ... As noted above, "coverage" is an all-encompassing word in insurance law. There is no indication in the statute that it only refers to defenses based on breach of conditions leading to forfeiture, or operation of an exclusion. The staff report to section 627.426(2) explained that "this section treats waiver of forfeiture and coverage defense the same and establishes time limits in lieu of the insured having to prove prejudice....

...The policy is not ambiguous, and the defense of no coverage because the accident happened outside the time period covered by the policy would have been readily available to USF & G. However, because USF & G did not comply with the responses mandated by section 627.426(1), the statute decrees it cannot assert this defense....

...84 to May 12, 1985, during which period the accident causing the electrocution occurred. American notified Adolf's insurance agent that American would defend Adolf in the wrongful death action but reserved its right to assert a coverage defense. [1] Section 627.426(2) provides: A liability insurer shall not be permitted to leny coverage based on a particular coverage defense unless: (a) Within 30 days after the liability insurer knew or should have known of the coverage defense, written notice o...

...mpanies in proportion to their respective limits. [1] The trial court also awarded Dr. Stern attorney's fees in the amount of $31,345.45 to be borne equally by the insurance companies. Appellant FPIC contends the trial court erred when it found that section 627.426, Florida Statutes (1987) barred FPIC's denial of coverage; when it found that Dr....

...The trial court found: As to the Defendant/Counterdefendant FLORIDA PHYSICIANS INSURANCE COMPANY, the Court finds that said company is barred from raising a coverage defense to the claim of RICHARD L. STERN, M.D. by its failure to comply with the mandatory requirements of Sec. 627.426(2) Fla....

...Stern, by failing to investigate the claim when it had prompt and early notice thereof pursuant to condition 2(a) of the policy in November of 1983, and is accordingly estopped to claim any prejudice due to late notice of the suit filed in September of 1985. Section 627.426(2) provides, in pertinent part: A liability insurer shall not be permitted to deny coverage based on a particular coverage defense unless: (a) Within 30 days after the liability insurer knew or should have known of the coverage defens...

...to the named insured by registered or certified mail sent to the last known address of the insured or by hand delivery... . Id. We find record support for the trial court's findings that FPIC failed to comply with the mandatory time requirements of section 627.426(2)....

...The trial court correctly determined *159 that FPIC's act of reopening the file on November 13, 1986 constituted sufficient proof that it knew or should have known that it had a coverage defense. FPIC's letter, sent over a month later, failed to meet the requirements of section 627.426....

...PPTF contends that the trial court erred when it found that estoppel barred it from denying coverage because it defended Dr. Stern for fourteen months with actual or constructive knowledge of a coverage defense and when the court determined PPTF had failed to comply with section 627.426....

...'s time with actual or constructive knowledge that the claim had been previously reported to FPIC and could therefore have been excluded from PPTF's coverage. The Court further finds that PPTF failed to comply with the mandatory requirements of Sec. 627.426 Fla....

...Marathon Country Club Condominium West Association, Inc., 525 So.2d 488 (Fla. 3d DCA 1988). Accordingly, we affirm the trial court's determination that PPTF is estopped from denying Dr. Stern coverage. Finally, we hold the trial court erred when it concluded that PPTF is subject to the requirements of section 627.426, Florida Statutes (1987)....

...might be expected to be the basis of a claim or suit; PPTF contends that under AIU their defense, based on this exclusionary clause, constitutes a defense of no coverage rather than a "coverage defense," and so is not subject to the requirements of section 627.426. In AIU, the supreme court distinguished between a "coverage defense" and a defense of no coverage and stated: Therefore, we hold that the term "coverage defense," as used in section 627.426(2), means a defense to coverage that otherwise exists....

...under the policy or under existing law. AIU, 544 So.2d at 1000. While Dr. Stern acknowledges this distinction, he makes a compelling argument that where extrinsic facts are necessary to give effect to an exclusionary clause in a policy, notice under section 627.426 should be required....

...ructive, of the prior claim to become effective. Dr. Stern contends that since application of the exclusion depends on facts extrinsic to the policy, notice to the insured, of the insurer's intent to invoke the exclusion, should be given pursuant to section 627.426. Our reading of AIU compels us to hold, however, that the trial court erred when it *161 found that PPTF's defense to coverage, based on the exclusionary clause in its policy, was subject to the requirements of section 627.426....

...Nevertheless, we certify the following question as being of great public importance: WHETHER A DEFENSE TO COVERAGE, BASED UPON AN EXCLUSIONARY CLAUSE IN AN INSURANCE POLICY WHICH IS DEPENDENT UPON EXTRINSIC FACTS FOR ITS EFFECT, IS SUBJECT TO THE REQUIREMENTS OF SECTION 627.426 FLORIDA STATUTES. Accordingly, we affirm the trial court's final judgment in all respects except that we reverse that part of the judgment which found PPTF's defense to coverage subject to the requirements of section 627.426, Florida Statutes (1987)....

...If the insured cannot be found or does not cooperate, however, Mid-Continent reasons, this Statement of Client's Rights designed to protect policyholders is meaningless. Further, to the extent that First State fails to cooperate, Mid-Continent suggests, under the Florida Claims Administration Statute, 627.426, Fla....

...mony by Mid-Continent corporate representative Nye, who admitted that no provision of the policy required First State to ask for Mid-Continent's defense, serves as an admission that no duty to request exists. Further, Defendants argue that the FCAS, Section 627.426, Fla....

...he insured does not request a defense. In so doing, the Court first notes that with one limited exception, Mid-Continent points to no Florida case law to support its public policy argument. As for the case law Mid-Continent does cite, it pertains to Section 627.426, Fla. Stat., which is inapposite to this discussion. Section 627.426(2) limits an insurer's ability to deny coverage to an insured based on a coverage defense....

...ontinent ultimately did: sending its insured a reservation-of-rights letter and subsequently advising the insured in writing of the insurer's refusal to defend the insured because of a coverage defense. Because Mid-Continent ultimately complied with Section 627.426 in this case by denying coverage, the citation to the mutually agreeable attorney aspect of Section 627.426 has no relevance here....

...ncy of the subject litigation; or 3. Retains independent counsel which is mutually agreeable to the parties. Reasonable fees for the counsel may be agreed upon between the parties or, if no agreement is reached, shall be set by the court. Fla. Stat. § 627.426....

...In Florida, if an insurer fails to comply with this provision of FCAS, it is estopped from denying coverage based on any coverage defenses within the meaning of the statute. Arnett v. Mid-Continent Cas. Co., 2010 WL 2821981, *9-10 (M.D.Fla. Jul. 16, 2010). "[T]he term `coverage defense,' as used in section 627.426(2), means a defense to coverage that otherwise exists." AIU Ins....

...King, 552 F.Supp.2d 1309, 1316 (N.D.Fla.2008). On the other side of the coin, when the insurer argues that coverage is "expressly excluded or otherwise unavailable under the policy or under existing law," the insurer is not raising a *1332 coverage defense within the meaning of § 627.426(2)....

...An insurer's arguments that an insured has not timely provided proper notice of a claim or that an insured has failed to comply with a cooperation provision constitute coverage defenses. See Arnett, 2010 WL 2821981, *10-11. Florida courts require strict compliance with Section 627.426(2) unless actual notice to the insured of the insurer's position has occurred on a timely basis....

...Applying this framework to the instant case, based on the undisputed facts, the Court finds that Mid-Continent is statutorily estopped from invoking its coverage defenses as they pertain to the Basdeo State Case lawsuit, but not as they relate to the Southgate State Case lawsuit. With regard to Section 627.426(2)(a), although Defendants suggest that Mid-Continent either knew or should have known of its coverage defenses as of October 11, 2006, when Hollander inspected the property and observed damage to parts of Southgate other than Bogosian's unit, this Court disagrees....

...s counsel rescinded an offer to allow Mid-Continent to inspect Southgate other than as allowed pursuant to the Florida Rules of Civil Procedure. Upon receipt of the August 3, 2007, notice, on August 8, 2007—well within the 30-day period allotted by Section 627.426(2)(a), by certified mail addressed to First State's last known address, MCC sent First State a reservation-of-rights letter....

...e suggests that the address to which Mid-Continent sent *1333 the letter was not the last known address for First State. Thus, the timing of the letter and the mode of service of it were in strict compliance with the FCAS. As for the compliance with Section 627.426(2)(b), the uncontroverted facts establish that on October 3, 2007, Mid-Continent received a copy of the Basdeo State Case complaint and affidavit of service naming First State as a defendant. D.E. 114, ¶ 33; D.E. 114-30. Thus, as of that date, under Section 627.426(2)(b), Mid-Continent had, at most, until December 2, 2007, to (1) serve written notice by registered or certified mail of Mid-Continent's refusal to defend First State; (2) obtain from Certified a non-waiver agreement; or (3) retain mutually agreeable independent counsel. The undisputed facts, however, do not indicate that Mid-Continent took any of these actions within the designated period. Consequently, Mid-Continent failed to comply strictly with the requirements of Section 627.426(2)(b) as it regards the Basdeo State Case claim. As a result, I respectfully recommend that the Court find that Mid-Continent is statutorily estopped under Section 627.426, Fla. Stat., from invoking its coverage defenses as to the Basdeo State Case claims. Similarly, with regard to the Southgate State Case, Mid-Continent received a copy of that matter on January 24, 2008. D.E. 114, ¶ 38. Therefore, under Section 627.426(2)(b), Mid-Continent had, at most, until March 24, 2008, to (1) serve written notice by registered or certified mail of Mid-Continent's refusal to defend First State; (2) obtain from Certified a non-waiver agreement; or (3) seek to retain mutually agreeable independent counsel....

...[18] On February 29, 2008, within the statutory period, by certified mail, Southgate sent First State a letter reserving Mid-Continents rights and asking First State whether First State desired to have Mid-Continent appoint counsel. See D.E. 114, ¶ 40; D.E. 114-35. This letter did not fulfill the requirements of Section 627.426(2)(b) because it did not provide written notice of Mid-Continent's refusal to defend First State with respect to the Southgate State Case. Nor does the record contain evidence that Mid-Continent otherwise complied with Section 627.426(2)(b) by March 24, 2008. Instead, Mid-Continent did not send out its letter denying coverage to First State until April 17, 2008. D.E. 114, ¶ 47. Because April 17, 2008, falls outside the 60-day period established by Section 627.426(2)(b), Mid-Continent's efforts under the FCAS do not amount to strict compliance, and Mid-Continent, therefore, is statutorily estopped from relying on its coverage defenses as they pertain to the Southgate State Case....

...Under these circumstances, it defies logic to suggest that Pratt requested a defense. [18] Mid-Continent suggests that the February 29, 2008, letter was another reservation-ofrights letter. The Court need not consider whether an insurer can delay the requirements of Section 627.426(2)(b) by sending out additional reservation-of-rights letters concerning the same claims and coverage defenses. Even assuming, arguendo, that an insurer could delay compliance with Section 627.426(2)(b) by sending out such additional reservation-of-rights letters, in this case, Mid-Continent did not send the February 29, 2008, letter within the 30-day period required by Section 627.426(2)(a)....

...gment in favor of the appellee, Salvia. The order was based on the trial court's finding that Auto Owners was precluded from asserting any coverage defenses to Salvia's claim under his insurance policy, because of Auto Owners' failure to comply with section 627.426(2), Florida Statutes (1983)....

...In August of 1983, Salvia was named as a defendant in an action based on the malfunctioning of an automatic transmission repaired by Salvia. The sole issue on this appeal is whether the trial court was correct in determining that Auto Owners failed to comply with section 627.426(2). Section 627.426(2) reads as follows: (2) A liability insurer shall not be permitted to deny coverage based on a particular coverage defense unless: (a) Within thirty days after the liability insurer knew or should have known of the coverage defense,...

...On November 23, 1983, Auto Owners moved to compel designation of counsel on the ground that Salvia was wrongfully withholding approval of the appointed counsel. The trial judge declared this motion moot. Thereafter, Salvia moved for partial summary judgment, alleging that Auto Owners failed to comply with section 627.426(2)(b). According to section 627.426(2)(b), Auto Owners was required to choose one of three alternatives by November 20, 1983, which was sixty days after the issuance of the letter to Salvia declaring that Auto Owners was reserving its right to assert a coverage defense. By November 20, Auto Owners had not chosen any of the three alternatives. On November 23, Auto Owners did file a motion to designate counsel, but such an action is not contemplated under section 627.426(2)(b)....

...al to accept the attorney Auto Owners chose for him. What the appellant's argument overlooks is that the statute provides other options aside from the retention of mutually agreeable counsel. Auto Owners could have chosen the first alternative under section 627.426(2)(b), and given written notice to Salvia of its refusal to defend him by November 20, 1983....

...The Almendrals finally assert that Security National is precluded from raising a coverage defense where it failed to resolve the coverage issue within sixty days of its notification of their loses as prescribed by the Claims Administration Statute, Section 627.426(2), Florida Statutes (1995) [3] . We similarly find no merit to this argument. It has been established that "[s]ection 627.426(2), by its express terms, applies only to a denial of coverage `based on a particular coverage defense....'" AIU Ins....

...4th DCA 1993). It is wholly inapplicable to a defense of no coverage. See AIU, 544 So.2d at 1000. The supreme court in AIU distinguished a "coverage defense" from a defense of no coverage thusly: Therefore, we hold that the term "coverage defense," as used in section 627.426(2), means a defense to coverage that otherwise exists....

...Id.; see also Florida Physicians Ins. Co. v. Stern, 563 So.2d 156, 160-61 (Fla. 4th DCA 1990). Thus, where the uninsured motorist coverage sought by the Almendrals was expressly excluded by the terms of the policy, the insurer's failure to adhere to the requirements of section 627.426(2) cannot serve as a bar to preclude it from disclaiming liability....

...We note that Demming's complaint alleged that Hastings intentionally failed to implement ASC's maintenance policy. Although the policy contains an intentional acts exclusion, Aetna cannot rely on that exclusion because it did not notify the appellees it intended to assert that defense as required by section 627.426(2)(a), Florida Statutes (1993)....

...e first appeal. By that time, the McGuires had incurred expense in litigating the motions for summary judgment and rehearing and in prosecuting the first appeal. The conduct demonstrated by American States in this case is now expressly proscribed by section 627.426(2), Florida Statutes....

...[3] In Crown Life the Fourth District Court of Appeal certified the following to the Florida Supreme Court as a question of great public importance: MAY THE THEORY OF EQUITABLE ESTOPPEL BE UTILIZED TO PREVENT AN INSURANCE COMPANY FROM DENYING COVERAGE? As of this writing, the case is still pending. [4] s. 627.426(2), Fla....

...ALTENBERND, Judge. The Phoenix Insurance Company appeals a final summary judgment which awards damages to Kathleen B. McCormick and Richard McCormick under their liability insurance coverage because Phoenix failed to comply with the Claims Administration Statute, section 627.426, Florida Statutes (1985)....

...The insurance company communicated with him over the telephone and also sent him a copy of the letter denying coverage. The McCormicks' attorney represented them at the hearing on July 17, 1987, and ultimately at the trial. The county court entered judgment against the McCormicks for $934.09. Section 627.426(2)(a), Florida Statutes (1985), states: A liability insurer shall not be permitted to deny coverage based on a particular coverage defense unless: (a) Within 30 days after the liability insurer knew or should have known of the coverage defense, written notice of reservation of rights to assert a coverage defense is given to the named insured by registered or certified mail sent to the last known address of the insured or by hand delivery. Likewise, section 627.426(2)(b)1, Florida Statutes (1985), requires that the insurance carrier's refusal to defend the insured be provided by registered or certified mail....

...sonable or ridiculous conclusion and there are cogent reasons for believing that the letter of the law does not accurately disclose the legislative intent. Holly v. Auld, 450 So.2d 217 (Fla. 1984). We do not believe that the above-quoted language of section 627.426(2), Florida Statutes (1987), requires that actual notice be provided exclusively by the described methods....

...Thus, the two-part test set forth in Lehman-Eastern is still viable. [2] If AVEMCO pursues its subrogation action, USAU is not precluded from denying liability on the ground that notice requirements were not met. USAU was not required to furnish notice of its denial of liability as specified in section 627.426(2)(a), Florida Statutes (1987), because its defense was complete lack of coverage....

...Therefore, the issue of tendering the policy premium is irrelevant in regards to this motion. C. Coverage of the underlying claim should not be excluded 1. Statutory Requirements for Denial of Coverage Defendants assert that Plaintiff has failed to comply with Section 627.426(2) of the Florida Statutes, which dictates the procedure an insurance company must follow before it is permitted to deny coverage based on a particular coverage defense....

...re than thirty (30) days after it found out about the Johnson memorandum and realized that a misrepresentation had been made on the policy application. Defendants additionally assert that Plaintiff has also violated Subsection (b) of Florida Statute section 627.426, but Defendants neglect to point out in either their opposing Memorandum of Law or the accompanying affidavit of James F. McCollum exactly how Plaintiff has failed to comply with this subsection. Therefore, this Court cannot find that Plaintiff's actions have violated Florida Statute Section 627.426 in any way....

...against the estate. GEICO was joined as a defendant solely on the issue of coverage. The trial court determined GEICO was estopped from asserting misrepresentation as a defense because it was untimely under the Florida Claims Administration Statute, section 627.426, Florida Statutes (1983)....

...The decisions do not stand for the proposition that where there are separate coverage premiums, there are separate policies, as argued by Plaintiffs. Second, Plaintiffs argue that Southeast cannot rely upon the antistacking clause, because Hartford failed to comply *240 with Florida's Claims Administration Statute, section 627.426, Florida Statutes (1999). Section 627.426(2) provides: (2) A liability insurer shall not be permitted to deny coverage based on a particular coverage defense unless: (a) Within 30 days after the liability insurer knew or should have known of the coverage defense, written noti...

...Retains independent counsel which is mutually agreeable to the parties. Reasonable fees for the counsel may be agreed upon between the parties or, if no agreement is reached, shall be set by the court. Although there is no dispute that Hartford did not comply with section 627.426, Hartford's assertion of the antistacking clause does not constitute a coverage defense requiring it to comply with section 627.426(2). The Florida Supreme Court explained what constitutes a "coverage defense" in AIU Insurance Co. v. Block Marina Investment, Inc., 544 So.2d 998, 999-1000 (Fla.1989): We do not believe that the legislature intended, by the enactment of section 627.426(2), to give an insured coverage which is expressly excluded from the policy or to resurrect coverage under a policy or an endorsement which is no longer in effect, simply because an insurer fails to comply with the terms of the aforementioned statute.... [T]he term "coverage defense," as used in section 627.426(2), means a defense to coverage that otherwise exists....

...EmbroidMe contended that Travelers was estopped from denying its duty to pay pre-tender fees and costs because its communication of that denial was made after the deadline set for notification of coverage defenses by Florida’s “Claims Administration Statute.” Fla. Stat. § 627.426 (1983)....

...ncy of the subject litigation; or 3. Retains independent counsel which is mutually agreeable to the parties. Reasonable fees for the counsel may be agreed upon between the parties or, if no agreement is reached, shall be set by the court. Fla. Stat. § 627.426 (2)....

...ments. Although the express language of Atlantic Casualty's policy would indicate that the coverage on the trailer was excess to the coverage on the tractor, NAICO argues that Atlantic Casualty is precluded from taking that position now. It cites to § 627.426(2), Fla.Stat....

...Under the circumstances of this case and based upon a plain reading of the cited provisions, the court concludes that it does not. For purposes of these motions, neither Para-Marine nor its driver were named insureds under either Atlantic Casualty policy. Section 627.426(2) creates notice requirements as between the company and its named insured....

...n estoppel argument. For arguments sake, even if NAICO could rely upon these statutory provisions to assert an estoppel argument, they could not thereby create coverage where none existed in the first place. This court addressed the applicability of § 627.426(2) in Lazzara Oil Co. v. Columbia Cas. Co., 683 F.Supp. 777 (M.D.Fla.1988). In the face of a similar argument, this court *1226 cited to a Florida case which held that, "[t]he legislature did not intend, by section 627.426(2), to create coverage under a liability insurance policy that never provided that coverage ..." United States Fidelity & Guaranty Co....

...Under this case law, there is no "coverage defense" issue where there is no coverage. NAICO cannot argue this statute and thereby create an estoppel preventing Atlantic Casualty from asserting its excess over position. This court held in Lazzara, supra that § 627.426 did not apply to an insurance company in an excess coverage policy with no provision requiring a duty to defend. "Section 627.426 addresses `problems arising from disputes regarding whether, how and under what circumstances and conditions a defense will be provided for an insured pursuant to a defense provision of an insurance contract.'" Supra at 782....

...[4] The court disagrees with NAICO's view of the significance of either the AIU decision or that in Doe v. Allstate Ins. Co., 653 So.2d 371 (Fla.1995). Neither stands for the proposition that policy relationships which do not otherwise exist or that coverage which does not otherwise exist, can be created by a violation of § 627.426(2)....

...Redford, Miami, for appellee Block Marina. Payton and Rachlin and Kenneth J. Carusello and Richard S. Rachlin, Miami, for appellee Norfolk Marine Co. Before HENDRY, NESBITT and FERGUSON, JJ. FERGUSON, Judge. The issue presented is whether noncompliance with the notice requirements of section 627.426(2), Florida Statutes (1985), [1] prohibits an insurer from denying coverage as to a loss which may be excluded under a comprehensive liability policy....

...tion of the statute. AIU, the insurer, relies on United States Fidelity and Guarantee Co. v. American Fire and Indemnity Co., 511 So.2d 624 (Fla. 5th DCA 1987), a recent opinion of a divided court [2] which held: [t]he legislature did not intend, by section 627.426(2), to create coverage under a liability insurance policy that never provided that coverage, or to resurrect a policy that has expired by its own terms and no longer legally exists, to cover an accident or event occurring after its termination....

...It was the knowledge of that fact which apparently prompted the insured to obtain an endorsement specifically covering the bailed goods. When the endorsement lapsed in June 1984, the insured was entirely unprotected from the loss sustained. It is conceded that, under the decisional law in effect prior to the adoption of section 627.426(2), Florida Statutes (1985), insurance coverage may not be afforded under general principles of waiver or estoppel. The legislature was presumed to know not only the law, but also that courts may be expected to construe their acts, not only by legal effect, but by language employed to manifest intention. Section 627.426(2) plainly refers to some "particular coverage defense." It is plain that the legislature did not intend to completely abolish the notion that insurance coverage cannot be created by waiver or estoppel....

...Since the statute is irrelevant, I would reverse the order under review on the authority of United States Fidelity & Guar. Co. v. American Fire & Indem. Co., 511 So.2d 624 (Fla. 5th DCA 1987). Otherwise, I concur with the court's certifying the conflict of decisions. NOTES [1] Section 627.426(2) provides: A liability insurer shall not be permitted to deny coverage based on a particular coverage defense unless: (a) Within 30 days after the liability insurer knew or should have known of the coverage defense, written notice o...

...tendering payment because ‘[i]nvestigating any loss or claim under any policy or engaging in negotiations looking toward a possible settlement of any such loss or claim’ does not constitute a waiver of a ‘sworn proof of loss’ requirement.” (quoting § 627.426(1)(c), Fla....

...ing that the agent advised the Thompsons that American Fire did not insure Corvettes. (6) The trial court correctly adjudicated that American Fire was precluded from asserting its "prejudicial late notice" coverage defense for failure to comply with section 627.426(2), Florida Statutes, which denies coverage defenses to insurers unless the insurer takes certain timely action....

...Specifically, from the record, the trial court properly found that the nonwaiver agreement was not obtained from the insured "following full disclosure of the specific facts and policy provisions upon which the coverage defense [was] asserted" as provided in section 627.426(2)(b)(2), Florida Statutes....

...t of their attorneys’ fees, and that Wausau was entitled to judgment. In so determining, the District Court also concluded that Wausau’s claim with regard to the applicability of the $5,000 deduction was not a denial of coverage under Fla. Stat. § 627.426 (2) (1982), and that, accordingly, Wausau had the right to assert, as a substantive defense, its interpretation of the $5,000 deductible provision of the insurance coverage....

...ch appellants appeal to this Court. I. In this appeal, appellants complain of the District Court’s exclusion, from evidence at trial, of a letter dated May 23, 1988 from Wausau to appellants, of the refusal of the District Court to apply Fla.Stat. § 627.426(2) to preclude Wausau from asserting Wausau’s deductibility defense, and of the District Court’s holding with regard to the meaning of the deductible provision....

...*841 Because we agree with appellants concerning the meaning and application of the deductible provision of the insurance policy, we reverse and remand this case to the District Court with directions to enter judgment in favor of appellants. In so doing, we find it unnecessary to determine whether, pursuant to Fla.Stat. § 627.426(2), 1 Wausau should have been precluded by the District Court from asserting its deductibility position....

...d right to rescind the policy because Mid-Continent waived any such right to rescind; (3) Mid-Continent's claimed coverage defenses under any Exclusion in the Policy, because any such defenses have been waived by Mid-Continent pursuant to Fla. Stat. § 627.426(2); and (4) Mid-Continent's affirmative defenses to King's Counterclaim because Mid-Continent failed to present any evidence in support of any of its affirmative defenses....

...id-Continent has waived its right to rescind. This issue is therefore moot. C. Whether Mid-Continent waived various affirmative defenses because any such defenses should have been referenced in the reservation of rights letter pursuant to Fla. Stat. § 627.426(2) Under Fla. Stat. § 627.426(2), an insurer cannot deny coverage based upon a particular "coverage defense" unless "within 30 days after the liability insurer knew or should have known of the coverage defense" the insurer sends the insured "written notice of reservation of rights to assert a coverage defense." Fla. Stat. § 627.426(2)(a)....

...Instead, even if the loss would otherwise fall within the coverage definition, the lack of timeliness would allow a denial of coverage, argues the insurer. This is the classic coverage defense, and it must be in the reservation of rights letter required under Fla. Stat. § 627.426(2)....

...inent. To the extent that the "terms, exclusions, limitations, and conditions" relate to whether the loss is within the coverage definition as modified by the Exclusions, the Affirmative defense is not subject to the notice requirement of Fla. Stat. 627.426....

...Finally, affirmative defenses 8, 9, 10, and 13—arguing lack of mitigation of damages, laches, unclean hands and failure to state a claim—relate to this lawsuit and not the decision to grant or deny coverage itself. Thus, these affirmative defenses are not covered by Fla. Stat. § 627.426's notice requirement....

...Whether Mid-Continent's affirmative defenses to King's Counterclaim should be rejected because Mid-Continent failed to present any evidence in support of any of its affirmative defenses. To the extent that the affirmative defenses are not barred under Fla. Stat. 627.426, and are not barred by the preclusion of rescission under federal law and EPA regulations, the Court finds that Plaintiff/Counter-defendant Mid-Continent has provided sufficient evidence to raise a genuine issue of material fact regarding each affirmative release which remains....

...Accordingly, the case must be remanded to the trial court for this factual determination. The second alleged ground for reversal is that the trial court erred in holding that the insurer was precluded from asserting the $100,000 limitation of coverage due to its alleged failure to comply with section 627.426, Florida Statutes (1987), which requires that the insurer notify the insured within thirty days of a claim for coverage if the insurer intends to deny coverage....

...Block Marina Investment, Inc., 544 So.2d 998 (Fla. 1989) the supreme court refused to extend coverage to a particular loss specifically excluded from the policy, which coverage had been asserted to exist because of the insurance company's failure to comply with the provisions of section 627.426(2), Florida Statutes (1985), which prohibits the denial of coverage "based on a particular coverage defense" where the insurer has failed to give the insured certain notices required by the statute. In holding that the statute did not apply, the court, noted that: We do not believe that the legislature intended, by the enactment of section 627.426(2), to give an insured coverage which is expressly excluded from the policy or to resurrect coverage under a policy or an endorsement which is no longer in effect, simply because an insurer fails to comply with the terms of the aforementioned statute....

...put it in a stronger position to demonstrate that there was no causal relationship. The court did not, accordingly, err in submitting estoppel to the jury. We do agree with the insurer, however, that the trial court erred in instructing the jury on section 627.426(2)(a), Florida Statutes (1995) which provides: A liability insurer shall not be permitted to deny coverage based on a particular coverage defense unless within thirty days after the liability insurer knew or should have known of the c...

...Block Marina Inv., Inc., 544 So.2d 998, 1000 (Fla.1989). This statute does not, as AIU makes clear, apply where, as in this case, there is "a complete lack of coverage for the loss sustained." Id. State Farm Mut. Auto. Ins. Co. v. Hinestrosa, 614 So.2d 633 (Fla. 4th DCA 1993)(section 627.426(2)(a) does not apply where there is no coverage under policy)....

...in a forfeiture of coverage provided by the policy. Under the CAS, no conduct of the carrier in good faith investigation of a possible claim against the insured can result in coverage where the policy explicitly excludes coverage for the claim. See § 627.426(1)(c) ("none of the following acts by or on behalf of an insurer shall be deemed to constitute a waiver of any provision of a policy: ......

...e been obvious—if it occurred—by the time the grower first notified the insured and carrier. [4] This expert does not purport to explain why the law should prefer "false sense of security" as against clear contractual language to the contrary. [5] § 627.426, Fla. Stat. (1995). The incident occurred in 1995. [6] § 627.426(2)(a), Fla....

...ited coverage defenses. In their answers to Lumbermens' counter and cross claims for declaratory relief, the Sheehans and Ms. Feldman alleged that Lumbermens had waived the right to rely on its coverage defenses by its alleged failure to comply with section 627.426(2), Florida Statutes (1983). Lumbermens replied that section 627.426(2) did not apply because Lumbermens' policy was neither issued for delivery nor delivered in the State of Florida, but rather was issued and delivered in Pennsylvania to a Pennsylvania resident. It also argued that Pennsylvania substantive law should govern the declaratory judgment action; therefore section 627.426(2) did not apply. Lumbermens and the Sheehans filed cross motions for summary judgment on the issues whether section 627.426(2) applied to the case and whether Pennsylvania or Florida law would govern the declaratory judgment action. In its partial final summary judgment, the court ruled that "the provisions of Fla. Stat. 627.426 (1982) do apply to this case." However, in an "Order on Motion for Clarification," issued that same date, the court also ruled that "Pennsylvania substantive law applies to the coverage action." Lumbermens made a second motion for partial summary judgment as to the applicability of section 627.426(2), noting that the trial court had ruled that both Pennsylvania substantive law and the provisions of section 627.426(2) apply to this case, Lumbermens argued that the court had implicitly ruled that section 627.426(2) is not substantive, but is instead a law of practice and procedure, and as such would be unconstitutional....

...b]ecause Ms. Feldman resided *778 in Florida on the date of the accident and not in her father's home in Pennsylvania, she was not a resident of her father's household and thus was not a `covered person' under her father's policy." It also held that section 627.426(2), Florida Statutes (1983), is constitutional, and that Lumbermens "complied with the substantive requirements of the statute in a timely fashion on all asserted defenses." The court also noted parenthetically that "F.S. 627.426 was satisfied because at all material times Ms. Feldman was represented by counsel and not prejudiced in any reasonable manner." The first issue is whether the trial court erred in applying section 627.426(2) in that the insurance contract in question was neither issued for delivery nor delivered in Florida....

...ect to the applicable provisions of part II of this chapter and to the other applicable provisions of this code. The trial court found that since Ms. Feldman was located in Florida at the time of the accident, section 627.726 was controlling, making section 627.426 dealing with claims administration applicable in the present case....

...ON MOTION FOR CLARIFICATION GLICKSTEIN, Judge. We delete from our opinion certification of the same question certified in Brooks v. Sturiano, 497 So.2d 976 (Fla. 4th DCA 1986). Our reason for doing so is that our ruling upon the first issue renders section 627.426(2), Florida Statutes (1983) inapplicable whether Florida or Pennsylvania law is applied....

...policy issued in 1983 to Aerosonic by National Union. The disputed order directs National Union to pay defense costs, as they are incurred, in a civil action in which Goldman and Frank are defendants. The trial court's order further determined that section 627.426(2), Florida Statutes (Supp....

...d to reimburse the plaintiffs contemporaneously for expenses and costs incurred in defending the California litigation and that National Union may not deny coverage under the policy because it failed to comply with the Claims Administration Statute, section 627.426(2), Florida Statutes (Supp....

...of coverage defenses. For instance, within 30 days from the date when the insurer knows or should have known of a coverage defense, it must send the insured, by certified or registered mail, written notice of its right to assert a coverage defense. § 627.426(2)(a), Fla. Stat. Notice of refusal to defend the insured must be given by registered or certified mail either within 60 days of compliance with the foregoing requirement or receipt of the summons and complaint. § 627.426(2)(b)(1), Fla....

...4th DCA 1988). During the pendency of this appeal, however, the supreme court resolved this question in AIU Insurance Co. v. Block Marina Investment Co., 544 So.2d 998 (Fla. 1989): We do not believe that the legislature intended, by the enactment of section 627.426(2), to give an insured coverage which is expressly excluded from the policy or to resurrect coverage under a policy or an endorsement which is no longer in effect, simply because an insurer fails to comply with the terms of the aforementioned statute... . ... Therefore, we hold that the term "coverage defense," as used in section 627.426(2), means a defense to coverage that otherwise exists....

...Sheridan at all times objected to the settlement amount as excessive, and to Steadfast's position on coverage. Discussion of Law Although there is an unresolved dispute whether the Florida Claims Administration Statute applies in this case, its principles are instructive. See § 627.426, Fla....

...*277 STRINGER and SILBERMAN, JJ., and GROSS, RAYMOND O., Associate Judge, Concur. NOTES [1] "X-wind" appears to mean "delete wind damage coverage." [2] We can find no statutory or other legal basis establishing thirty days as a waiver of a coverage defense in a first party claim such as this one. Section 627.426(2)(a), Florida Statutes (2004), provides that a liability insurer may not deny coverage based on a particular coverage defense unless, within thirty days after the liability insurer knew or should have known of the defense, written notice of reservation of rights to assert the defense is given....

...any's and requested that Illinois defend the claim because it was based on liquor liability and Scottsdale's policy excluded liquor claims. Illinois refused to defend the claim. Scottsdale defended Tiffany's under a reservation of rights pursuant to Section 627.426, Florida Statutes (1988)....

...will enter. NOTES [1] Keenan also argues that, in order for an insurer to assert a coverage defense based upon late notice by the insured, the insurer generally must meet certain requirements set out in the Claims Administration Statute, Fla. Stat. § 627.426....

...Plaintiffs seek to avoid this result by arguing that Liberty waived the allocation issue by failing to raise it as a coverage defense in its denial of coverage letters to the iCan plaintiffs, in violation of the Claims Administration Statute ("CAS"), § 627.426, Fla....

...GRG argued that Lloyd's had waived its right to assert as a defense the material misrepresentation of question 19 because it did not timely notify GRG of this coverage defense by registered or certified mail, as required by the Claims Administration Statute, section 627.426(2), Florida Statutes (2003)....

...This affidavit was uncontradicted. GRG further argues that even if its answer to question 19 was a material misrepresentation, Lloyd's could not deny coverage on that basis because it did not strictly comply with the Claims Administration Statute, section 627.426, Florida Statutes (2003), by failing to timely notify GRG of the coverage defense by registered or certified mail....

...See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The respondent argues summary judgment should be granted in his favor on three grounds: (1) the policy terms and conditions; (2) State Farm's violation of Fla.Stat. § 627.426; and (3) collateral estoppel. The Court, however, only perceives two separate grounds for Brown's motion, as his first and third bases appear to go hand in hand; thus the Court will address the petitioner's two theories in turn. Violation of Fla.Stat. § 627.426 Section 627.426 of the Florida statutes states that an insurer may not deny coverage based on a particular coverage defense unless, within 60 days of the receipt of a summons and complaint naming the insured as a defendant, the insurer retains independent counsel which is mutually agreeable to the parties. Fla.Stat. § 627.426(2)(b)(3)....

...The respondent states, and presents evidence therefor, that Mr. McGrane repeatedly divulged material to State Farm that was protected by attorney/client privilege and put State Farm's interests ahead of the respondent's during the litigation. The petitioner, on the other hand, states that § 627.426(2) does not even apply to this situation....

...Heidenfeldt, 773 So.2d at 77. Further, as cited by the court in Heidenfeldt, the Florida Supreme Court stated in AIU Insurance Company v. Block Marina Investment, Inc., 544 So.2d 998 (Fla.1989): We do not believe that the legislature intended, by the enactment of section 627.426(2), to give an insured coverage which is expressly excluded from the policy or to resurrect coverage under a policy or an endorsement which is no longer in effect, simply because an insurer fails to comply with the terms of the aforementioned statute.......

...ched during the pendency of litigation, a liability insurer may be joined as a party defendant for the purposes of entering final judgment or enforcing the settlement by motion of any party, unless the insurer denied coverage under the provisions of § 627.426(2) or defended under a reservation of rights pursuant to § 627.426(2)....

...This evidence is unrefuted, and Plaintiffs have presented no evidence from which a jury could find negligence in the failure to settle during litigation. The Court also rejects Plaintiffs’ argument that Travelers has waived its coverage defenses by violating the Claims Administration Statute, Fla. Stat. § 627.426 (2)....

...(1) the insurer gives a written reservation of rights within 30 days of when the insurer knew or should have known of a coverage defense, and (2) the insurer retains independent counsel, mutually agreeable to the parties, within 60 days. Fla. Stat. § 627.426 (2)(a), (b)(3)....

...to settle, but not to determining whether Travelers wrongfully refused to defend as would be necessary to establish the existence of a Cob-lentz agreement. Likewise, the Court agrees with Travelers that the Claims Administration Statute, Fla. Stat. 627.426, applies only to preclude particular coverage defenses and is therefore not relevant to a determination of whether there is a valid Coblentz agreement....

...a particular coverage defense unless ... [w]ithin 30 days after the liability insurer knew or should have known of the coverage defense, written notice of reservation of rights to assert a coverage defense is given to the named insured." Fla. Stat. § 627.426 (2). The Florida Supreme Court has held that noncompliance with the notice requirements in section 627.426(2) does not preclude an insurer from denying *1184 coverage where coverage was excluded under the policy. AIU Ins. Co. v. Block Marina Inv., Inc. , 544 So.2d 998 , 1000 (Fla. 1989). Stated differently, " section 627.426 does not create or extend nonexistent coverage." Doe v....

...out that Essex had failed to file and obtain preapproval of the combination general endorsement as required by section 627.410, Florida Statutes (2008), and they alleged that Essex had failed to comply with Florida’s claims administration statute, section 627.426....

...However, although the parties addressed that issue in their cross-motions for summary judgment, the circuit court did not decide it. Accordingly, we decline to resolve this issue, and we leave it for the circuit court to address on remand. Reversed and remanded. VILLANTI and KHOUZAM, JJ., Concur. . Section 627.426 was not specifically addressed, but as will become clear, our decision in this case applies equally to that statutory provision....

...of a judgment against it. The insured assigned the injured plaintiff any rights it had against the insurer. The insured moved for summary judgment, arguing that when the insurer retained counsel to defend it in the personal injury case, it violated section 627.426(2), Florida Statutes (1993) of the insurance claims administration statute, which provides: (2) A liability insurer shall not be permitted to deny coverage based on a particular coverage defense unless: (a) Within 30 days after the li...

...ent or bad faith refusal to settle, and counts six, seven and eight are due to be dismissed. 3. Breach of Contract In counts nine and ten Royal Oak claims that Travelers breached its duty to provide mutually agreeable counsel. Royal Oak asserts that § 627.426(2), Florida *1272 Statutes, creates a duty on the part of an Insurer to obtain mutually agreeable counsel for the insured in the event of a coverage dispute. Section 627.426(2) reads in pertinent part: A liability insurer shall not be permitted to deny coverage based on a particular coverage defense unless: (a) Within 30 days after the liability insurer knew or should have known of the coverage defense, w...

...icular coverage defense." [24] It does not provide that the insurer's failure to obtain mutually agreeable counsel in the event of a coverage dispute entitles the insured to recover the fees and costs of its separately retained counsel. Accordingly, § 627.426(2) cannot serve as a basis for imposing a duty on Travelers to obtain mutually agreeable counsel for Royal Oak....

...The remainder of Len-Verandahs’ argument on this issue focuses on Len-Verandahs’ contention that National Trust is estopped from asserting late notice as a coverage defense due to National Trust alleged noncompliance with Florida’s Claims Administration Statute, Section 627.426(2), Florida Statutes. Section 627.426(2)(a), Florida Statutes, provides: A liability insurer shall not be permitted to deny coverage based on a particular coverage defense unless ... [w]ithin 30 days after the liability insurer knew or should have known of the coverage defense, written notice of reservation of rights to assert a coverage defense is given to the named insured .... Section 627.426(2)(a), Florida Statutes....

...was issued for delivery and personally delivered to Graham Brothers at its office in Georgia. (Leachman Aff. Doc. # 99-43 at ¶¶ 11, 13). Accordingly, Section 627.401(2) removes the Policy from the requirements of the Claims Administration Statute, Section 627.426(2), and thus, National Trust is not estopped from asserting its late notice defense....

...vered under the parties' policy. See id. at 999. Two weeks prior to trial, the insurer informed the insured that it would not provide further defense because the claim was not covered by the policy. See id. The insurer's actions were in violation of section 627.426(2)(a), Florida Statutes (1985), which required the insurer to notify the insured of its decision not to defend within sixty days after its reservation letter and within thirty days before trial. See id. The supreme court held that the insurer's failure to comply with the time requirements of section 627.426(2)(a) did not result in the insurer losing the right to refuse to cover the insured's defense where the coverage sought was expressly excluded or otherwise unavailable under the policy....

...Nonetheless, the insurer agreed to provide a defense subject to its reservation of the right to assert a coverage defense as a consequence of the endorsement's elimination. Two weeks before trial, AIU refused to provide further defense and, in so doing, violated section 627.426(2)(a), which provides that an insurer cannot deny coverage based on a coverage defense unless at least thirty days prior to trial the insurer provides written notice to its insured of its refusal to defend....

...sworn proof of loss requirement by tendering payment because “[i]nvestigating any loss or claim under any policy or engaging in negotiations looking toward a possible settlement of any such loss or claim” does not constitute a waiver of a “sworn proof of loss” requirement. § 627.426(1)(c), Fla....

...In the notice, Marsieo alleged Bartolazo coerced her into a sexual relationship by prescribing addictive drugs. On January 27, 1991, Bartolazo notified National of the claim, seeking coverage under his 1991 policy. National sent to Barto-lazo a reservation of rights letter required under Section 627.426(2), Florida Statutes, in August 1991, and in July 1992, filed an amended complaint seeking declaration of its obligations under the 1991 policy....

judgment in Sternberg’s favor. We hold that section 627.426, Florida Statutes, does not apply to cases

...(2) Affirmative Defenses: 53. Defendant raise several affirmative defenses in which they assert Progressive is precluded from voiding of the Policy. (a) Claims Administration Statute: 54. Defendants argue that Progressive has failed to comply with Florida Statute § 627.426(2) which regulates Florida's insurance claims administration, and therefore cannot declare the Policy null and void....

...First, it argues that summary judgment in favor of Mesa was improper because, although notice was untimely, it rebutted the presumption of prejudice as to Mesa. Second, it argues that, although R & L received Mesa’s reservation of rights letter within 80 days as provided by Fla. Stat. § 627.426 (2)(a), Mesa waived the late notice defense because its reservation of rights letter did not specify that Mesa would rely on the late notice defense....

...B Gemini next argues that, even if it failed to rebut the presumption of prejudice, summary judgment in favor of Mesa was still improper because Mesa waived the late notice defense by failing to inform R & L that it would rely on that particular defense. We find this argument unpersuasive. The relevant portion of § 627.426(2)(a) reads as follows: (2) A liability insurer shall not be permitted to deny coverage based on a particular coverage defense unless: (a) Within 30 days after the liability insurer knew or should have known of the coverage defense, writte...

...Rather, Mesa directed R & L’s attention to particular provisions — including the “duties in the event of occurrence” provision — it deemed applicable under the circumstances. Given the contents of the reservations of rights letter, Mesa complied with the requirements of § 627.426(2)(a) and did not waive the late notice defense....

...the insurance policy to exclude coverage for the leased excavator, and erred in concluding that Auto Owners did not waive the right to claim no coverage. 1 We conclude the plain and unambiguous policy language excludes the leased equipment, and that section 627.426(2), Florida Statutes, did not require Auto Owners to provide written notice of reserving its right to assert a coverage defense....

...(2) excludes coverage for damage to property leased by the insured’s employees, etc., unless the insured is liable for damage to that property. The two provisions are independent of each other, are entirely consistent with each other, and are not ambiguous. Turning to whether Auto Owners waived its right to deny coverage, section 627.426, Florida Statutes, provides, in pertinent part: (2) A liability insurer shall not be permitted to deny coverage based on a particular coverage defense unless: (a) Within 30 days after the liability insurer knew or should have known of the coverage defense, written notice of reservation of rights to assert a coverage defense is given to the named insured by registered or certified mail sent to the last known address of the insured or by hand delivery[.] § 627.426(2)(a), Fla....

...As the Florida Supreme Court explained in AIU Ins. Co. v. Block Marina Inv., Inc., 544 So.2d 998 (Fla.1989), the notice requirement only applies where coverage exists under an insurance policy, but the insurer seeks to assert a coverage defense. “[T]he term ‘coverage defense,’ as used in section 627.426(2), means a defense to coverage that otherwise exists....

...Plaintiff has since filed a two-count Amended Complaint seeking Declaratory Relief in Count I and alleging Breach of Contract in Count II [D.E. 16]. Defendant has filed a Motion for Summary Judgment asserting, inter alia, that the Florida Claims Administration Statute (CAS), Fla. Stat. § 627.426, does not apply to surplus line insurers, like Mt....

...With regard to the application of the Florida CAS to surplus line insurers in light of the exclusionary language in Fla. Sta. 627.021(2)(e), the court held that under a full statutory analysis, section 627.021(2) applies only to Part I of Chapter 627. Essex, 985 So.2d at 1042. Thus, Section 627.426, the section that is at issue here, applies to surplus lines insurance because this section appears in Part II of Chapter 627....

...ncy of the subject litigation; or 3. Retains independent counsel which is mutually agreeable to the parties. Reasonable fees for the counsel may be agreed upon between the parties or, if no agreement is reached, shall be set by the court. Fla. Stat. 627.426(2). In AIU Ins. Co. v. Block Marina Investment, Inc ., the Florida Supreme Court held that "the term `coverage defense,' as used in section 627.426(2) means a defense to coverage that otherwise exists." AIU Ins....

...Hawley has waived its "coverage defense" by failing to comply with the CAS. Specifically, Sharp argues that Mt. Hawley failed to send a reservation of rights letter within 30 days after it knew or should have known of the "coverage defense". See Fla. Stat. § 627.426(2)(a)....

...Hawley explains, Sharp's failure to comply with the Contractors Endorsement has resulted in a complete lack of coverage. In AIU Ins. Co. v. Block Marina Investment, Inc ., the Florida Supreme Court held that "the term `coverage defense,' as used in section 627.426(2) means a defense to coverage that otherwise exists." AIU Ins....

...Crown Life Ins. Co. v. McBride, 517 So.2d 660 (Fla. 1987)). Furthermore, "construing the terms `coverage defense' to include a disclaimer *1366 of liability based on an express coverage exclusion has the effect of rewriting an insurance policy when section 627.426(2) is not complied with, thus placing upon the insurer a financial burden which it specifically declined to accept." AIU, 544 So.2d at 1000....

...laim, coverage for such claim will be voided under this policy." (emphasis added) [D.E. 29-2, Exh. A] Thus, the policy states clearly that if Sharp fails to comply with the conditions in the Contractors Endorsement, then no coverage exists. As such, section 627.426(2)(a) of the CAS would not apply to Mt....

...id from its inception." Id. at 501. In response to Progressive's argument that the policy was void due to a material misrepresentation made by the insured, the insured argued that Progressive could not deny her coverage due to its noncompliance with section 627.426 of the CAS....

...8:05-C1658-T-17MSS, 2008 WL 1776552, at *5, 2008 U.S.Dist. LEXIS, at *15 (M.D.Fla. Apr. 18, 2008). The court found that "because the express language of the [policy] states that there is no coverage where fraud exists, there can be no `coverage defense' in this case ... [t]herefore, § 627.426(2) is inapplicable to this case." Gimopoulos, 2008 WL 1776552, at *5, 2008 U.S.Dist....

...policy is triggered. Delta countered that Condition 17 is not a grant of coverage or an exclusion of coverage but, rather, a condition of coverage and, as a result, Royal is precluded from denying coverage because it failed to comply with Fla.Stat. § 627.426(2)....

...Papasodero, 587 So.2d 500, 502 (Fla. 2d DCA, 1991). Based on the foregoing, the Court finds that Mt. Hawley's assertion that there is no coverage due to Sharp's failure to comply with the Conditions of Coverage in the Contractors Endorsement is not a "coverage defense". Therefore, section 627.426(2) of the CAS does not apply to Mt....

...in the declaratory judgment action and would not reimburse him for legal costs incurred in defending that action. Thereafter, Wylie filed an appearance in the present case. LEGAL ANALYSIS The Claims Administration Statute Florida's Claims Administration Statute, Section 627.426 of the Florida Statutes (1982), imposes mandatory obligations upon any insurance company which intends to assert coverage defenses against its own insured....

...g the pendency of the subject litigation; or 3. Retains independent counsel which is mutually agreeable to the parties. Reasonable fees for the counsel may be agreed upon between the parties or, if no agreement is reached, shall be set by the court. Section 627.426, Florida Statutes....

...da Statute 627.416. [2] The undisputed facts establish that Allstate sent a reservation of rights to A.H. by certified mail on August 18, 1987. This *813 occurred only thirteen days after Allstate received notice of the counterclaim against A.H. See § 627.426(2)(a), Florida Statutes. Under the statute, Allstate then had sixty days from the date of its reservation of rights to select one of three options enumerated in the claims. See § 627.426(2)(b), Florida Statutes. Allstate fulfilled its statutory duty by retaining mutually agreeable counsel Gerald Bedford to represent A.H. in the pending liability action. See § 627.426(2)(b)(3), Florida Statutes....

...ad been raised to Bedford's continued representation. The actions of Allstate in retaining mutually agreeable independent counsel to defend the counterclaim — on two separate occasions — is in compliance with the Claims Administration Statute. See § 627.426(2)(b)(3), Florida Statutes....

...matter.”). Anticipating Plaintiffs might be able to meet all the elements of a cooperation defense, Section 10 posits two arguments in opposition. Section 10’s first argument focuses on the Florida Claims *1235 Administration Statute, Fla. Stat. § 627.426 ....

...n their initial denial letter of May 6, 2008. This is incorrect as a matter of law. The Act prohibits insurers from denying coverage on a "particular coverage defense," unless the insurer has complied with certain enumerated requirements. Fla. Stat. § 627.426....

...Defendant asserts that it could not fulfill its duty to defend the case before it was notified of the suit. Plaintiff counters that there is no exclusion under the Policy for pre-tender costs; that Defendant failed to comply with the provisions of the Florida Claims Administration Statute, Fla. Stat. § 627.426 (2) (“FCAS”); and that this failure bars Defendant from relying on coverage defenses....

...On the other hand, “in construing insurance policies, courts should read each policy as a whole, endeavoring to give every provision its full meaning and operative effect.” Id. Plaintiff asserts that Defendant is foreclosed from raising its defenses by the Florida Claims Administration Statute, Fla. Stat. § 627.426 (“FCAS”), which states in relevant part: A liability insurer shall not be permitted to deny coverage based on a particular coverage defense unless: (a) Within 30 days after the liability insurer knew or should have known of the coverag...

...f the subject litigation; or 3. Retains independent counsel which is mutually agreeable to the parties. Reasonable fees for the counsel may be agreed upon between the parties or, if no agreement is reached, shall be set by the court. Fla. Stat. Ann. § 627.426 (2) (West). A “coverage defense” under FCAS “means a defense to coverage that otherwise exists.” AIU Ins. Co., 544 So.2d at 1000 . For example, failure to provide timely notice is a “coverage defense” within the meaning of Section 627.426(2)....

forms or proofs completed or uncompleted. Id. § 627.426. Thus, if Travelers had a defense based upon its

...We affirm a summary judgment entered in favor of the insured city. The trial court in effect found that, as a matter of law, the city did not mutually agree to the appointment of an independent counsel to defend an action against the city pursuant to the provisions of Section 627.426(2)(b)(3), Florida Statutes (1985)....

...that at no time did Continental ask for the city's approval as to the independent counsel or keep the city apprised of the progress of the Reilly case. The trial court then entered a summary judgment in favor of the city finding non-compliance with Section 627.426(2)(b)(3), Florida Statutes (1985)....

...In Block Marina, the Florida Supreme Court addressed the issue of "whether petitioner AIU Insurance Company (AIU) is prohibited from denying coverage in connection with a loss, coverage which is excluded under a comprehensive liability policy, due to its noncompliance with the notice requirements of section 627.426(2), Florida Statutes (1985)." Block Marina, *1350 544 So.2d at 998. The trial court granted Block Marina and Norfolk Marine summary judgment prohibiting AIU from denying coverage because AIU had failed to notify the insured as required by § 627.426(2)(b)....

...r extend coverage." Id. at 1000. The Court also found that construing the term "cover defense" which was in the statute: to include a disclaimer of liability based on an express coverage exclusion has the effect of rewriting an insurance policy when section 627.426(2) is not complied with, thus placing upon the insurer a financial burden which it specifically declined to accept. Such a construction presents grave constitutional questions, the impairment of contracts and the taking of property without due process of law. Therefore, we hold that the term `coverage defense' as used in section 627.426(2), means a defense to coverage that otherwise exists....

...ed under the original Policy. (Response, DE 202, p. 6.) Defendants counter that they never asserted estoppel and have not sought coverage based on estoppel. (Reply, DE 221, p. 10.) Defendants also contend that the Block Marina decision is limited to § 627.426 and cite Doe v. Allstate Ins. Co., 653 So.2d 371 (Fla.1995) in support. Doe, in discussing the Block Marina decision, stated that the decision "simply recognizes that section 627.426 does not create or extend nonexistent coverage." Doe, 653 So.2d at 374....

requirements of the claims administration statute, section 627.426(2), Florida Statutes, from asserting that there

...The trial court found that, pursuant to its policy of insurance issued to Blanchard, Geico was required to pay the sanctions judgment. The trial court reasoned that Geico’s purported April 2008 ROR constituted a violation of Florida’s Claims Administrations Statute—section 627.426, Florida Statues (2011) (the CAS). The trial court determined that Geico violated section 627.426(2)(a), which requires an insurer to assert a coverage defense within thirty days of the insurer becoming aware of the coverage defense, since Geico was aware of Blanchard’s deposition misrepresentations in April 2007, yet Geico w...

...One purpose of the CAS is to provide a mechanism for an insurer to notify an insured of an insurer’s particular coverage defense of an otherwise covered claim. As the court expressed in AIU: [W]e hold that the term “coverage defense,” as used in section 627.426(2), means a defense to coverage that otherwise exists....

...Homeowners argued that under the policy, coverage was excluded for intentional torts. Hurchalla opposed the motion, arguing both that Homeowners Choice had not negated her affirmative defenses and that she had not received a reservation of rights letter required by section 627.426(2), Florida Statutes (2013), which fact was supported by both deposition testimony and affidavit....

...However, Doe does not support summary judgment in this case. In Doe, an insured was sued for an intentional tort. Allstate initially provided the insured a defense but did not send a written reservation of rights to the insured regarding coverage, as required by section 627.426(2), Florida Statutes....

...Upon an appeal to the Eleventh Circuit, the court certified an issue to the Florida Supreme Court. The minor’s parents argued summary judgment should not have been granted because Allstate was estopped to deny coverage because it had not complied with section 627.426(2)....

...Oxford of Dean, Ringers, Morgan & Lawton, Orlando, for appellee. GERBER, J. The plaintiff appeals from the circuit court’s orders: (1) granting the defendant’s motion to dismiss his breach of insurance contract action with prejudice; and (2) denying the plaintiff’s motion for defense cost determination under section 627.426(2)(b)3., Florida Statutes (2012) (“Reasonable fees for the [insured’s] counsel may be agreed upon between [the insured and the liability insurer] or, if no agreement is reached, shall be set by the court.”)....

...We remand for the circuit court to enter an order denying the defendant’s motion to dismiss, as we conclude that the plaintiff’s complaint, taken as true, states causes of action for breach of the insurance contract and for defense cost determination under section 627.426(2)(b)3., Florida Statutes (2012)....

...We take no position on whether the plaintiff’s causes of action or the defendant’s counterclaim have merit. 2  We also remand for entry of an order granting the plaintiff’s motion for defense cost determination under section 627.426(2)(b)3., with the circuit court left only to set the amount of such fee....

comply with the claims administration statute, Section 627.426(2), Florida Statutes (1987). In 1983, one Grimes

...Chief Judge Rothenberg acknowledged the constraints of this rule of statutory construction in GEICO Gen. Ins. Co. v. Mukamal, 230 So. 3d 62, 66 (Fla. 3d DCA 2017) (Rothenberg, C.J., specifically concurring), when she wrote: While section 627.426 is clear and unambiguous, and therefore mandates the result identified by the trial court and the affirmance being issued by this Court, such a result appears, to me, to be contrary to the intent of the statute…....

not timely asserted a coverage defense under section 627.-426(2), Florida Statutes (1985). The district

...18 Couch on Insurance 2d § 74:9 (Rev. ed.). The provision does not mean that the insurer cannot assert a defense when an action is brought after the “no-action” period. No statute is asserted as affecting the result in this case. 2 However, it is interesting to note that section 627.426(2), Florida Statutes (1985) provides that a liability insurer shall not be permitted to deny coverage based on a particular coverage defense unless the insurer performs certain acts within certain specified periods of time and even th...

PER CURIAM. Affirmed. AUI Ins. Co. v. Block Marina Inv. Inc., 512 So.2d 1118 (Fla.3d DCA 1987); § 627.426(2)(a), Fla.Stat....

...We have reviewed the pleadings and evidence, read the briefs, and listened to oral argument in this case. Our review and study leads us to the conclusion that there are genuine issues as to material facts on several matters including, but not limited to, the issues of whether § 627.426, Fla....

...However, William has indicated that he does not wish the Court to rule at this time. See Doc. 72. . Douglas and Hooper also argue that Great American waived the right to contest coverage in this case because it failed to comply with the Florida claims administration statute, Fla. Stat. § 627.426 (2)....

...A final judgment was entered awarding Henderson the additional $750,-000 plus costs. In Consolidated Am. Ins. Co. v. Bucolo, 526 So.2d 147 (Fla.3d DCA 1988), we affirmed the summary judgment determining that the insurer had waived the coverage defense pursuant to the Claims Administration Act, section 627.426, Florida Statutes (1985), for failure to timely deny the existence of coverage, citing our opinion in AIU Ins....

written notice of a coverage defense under section 627.426, Florida Statutes (1985), was legally sufficient

...3d DCA 2006)). 3 We distinguish those cases holding that a liability insurer waived untimely notice by not disclosing the defense when it denied coverage. See Nationwide Mut. Fire Ins. Co. v. Beville, 825 So. 2d 999 (Fla. 4th DCA 2002). Waivers by a liability insurer are governed by section 627.426(2), Florida Statutes (2020), which expressly states that a liability insurer waives any coverage defense that it fails to timely raise in its reservation of rights....

...However, that statute and the cases construing it are not applicable where, as here, the insured makes a claim for property insurance benefits. See State Farm Mut. Auto. Ins. Co. v. Sternberg, 699 So. 2d 345, 346 (Fla. 5th DCA 1997) (holding that, by its plain language, section 627.426 applies only to cases involving liability insurance). 4  “[P]rompt and other comparable phrases, like immediate and as soon as practicable, do not require instantaneous notice.” Laquer v....

...of Pittsburgh, Pa., 695 So.2d 475, 476-77 (Fla. 3d DCA 1997). An insurer that defends a claim under a reservation of rights is permitted to assert coverage defenses at a later date provided that it complies with the requirements of Florida Statute § 627.426....

...ge. When a coverage defense is raised, the interests of the parties are obviously in conflict, and the insurer would normally issue a reservation of rights letter informing the insured that he might want to obtain independent counsel. See Fla. Stat. § 627.426 (2); see also 14 G....

...Nevertheless, at this stage of the proceedings, it cannot be disputed that an insured committed a criminal act from which the claim originated. Furthermore, Eye in the Sky’s argument that Max Specialty waived its coverage defense with respect to the criminal acts exclusion is without merit. Section 627.426(2) of the Florida Claims Administrative Statute does not apply to a defense of no coverage....

...477 Fed.Appx. 702 (11th Cir.2012); Hannover Ins. Co. v. Dolly Trans Freight, Inc., No. 6:05-cv-576-Orl-19DAB, 2006 WL 1169496 , at *5 (M.D.Fla. May 2, 2006) (citing Almendral v. Security Nat’l Ins. Co., 704 So.2d 728, 730 (Fla.Dist.Ct.App.1998)). Section 627.426(2) does not create coverage “where a particular claim is expressly excluded from coverage.” AIU Ins....

...Master Antenna Systems, Inc., 534 So.2d 1187 (Fla.Dist.Ct.App.1988)). To assert a “coverage defense,” coverage must otherwise exist, i.e., it must exist in the first place. Country Manors, 534 So.2d at 1195 . 16 Because Max Specialty relies solely on the criminal acts exclusion to the policy to deny coverage, section 627.426(2) is inapplicable....

...On May 21, 2013, the state court entered final judgment and an order approving the settlement. . Defendants also filed a second counterclaim, alleging that Western Heritage was prohibited from asserting a coverage defense because it violated Florida Statutes § 627.426; however, the Court granted Western Heritage’s motion to dismiss this counterclaim....

exists to comply with section 627.426(2) of the Insurance Code.1 However, section 627.426(2) does not define

...the five-year limitation period specified by section 95.11(2)(b) [applies]”); Mendlein v. United States Fid. & Guar. Co., 277 So.2d 538, 539 (Fla. 3d DCA 1973). The Schultzes first argue that Arni-ca is precluded from raising the statute of limitations defense by section 627.426(2)(a), Florida Statutes (2000), which provides: (2) A liability insurer shall not be permitted to deny coverage based on a particular coverage defense unless: (a) Within 30 days after the liability insurer knew or should have known of...

...en notice of reservation of rights to assert a coverage defense is given to the named insured by registered or certified mail sent to the last known address of the insured or by hand delivery.... There is no dispute that Arnica failed to comply with section 627.426....

...in the meaning of the statute. The application of the statute of limitations has nothing to do with the existence of coverage; the affirmative defense would apply regardless of whether an insurance policy covered the claim. It makes no sense to read section 627.426(2)(a) to apply to such an affirmative defense, since an insured is in as good a position as the insurer to know when the statute of limitations will run....

...We have considered the remaining points raised by the Schultzes and find them to be insufficient to warrant reversal. STEVENSON, J., and LABARGA, JORGE, Associate Judge, concur. . Having decided this case based on our construction of the term “coverage defense” in section 627.426(2), Florida Statutes (2000), we do not reach the issue of whether Arnica was a “liability insurer” within the meaning of the statute....

...of sworn proof of loss requirement because “‘[i]nvestigating any loss or claim under any policy or engaging in negotiations looking toward a possible settlement of any such loss or claim’ does not constitute a waiver of a ‘sworn proof of loss’ requirement” (quoting § 627.426(1)(c), Fla....

...Turchin, Inc. v. Gelfand Roofing, Inc., 450 So.2d 554 (Fla. 3d DCA), rev. dismissed, 453 So.2d 1365 (Fla.1984); City of Miami v. J. C. Vereen & Sons, Inc., 359 So.2d 533 (Fla. 3d DCA 1978). Here Continental specifically alleged compliance with section 627.426, Florida Statutes (1985)....

...To avoid the conflict, instead of selecting counsel to represent the respective parties, thereby maintaining some control over the conduct of their defenses, Evanston would have had to give the parties the funds to employ counsel of their choice and to pay the expenses incurred in their separate defenses. See Fla. Stat. § 627.426(2) (requiring insurers, after providing written notice of their reservation of rights, to either refuse to defend, obtain a nonwaiver agreement from, or retain mutually agreeable independent counsel for an insured)....

...To avoid the conflict, instead of selecting counsel to represent the respective parties, thereby maintaining some control over the conduct of their defenses, Evanston would have had to give the parties the funds to employ counsel of their choice and to pay the expenses incurred in their separate defenses. See Fla. Stat. § 627.426(2) (requiring insurers, after providing written notice of their reservation of rights, to either refuse to defend, obtain a nonwaiver agreement from, or retain mutually agreeable independent counsel for an insured)....

...hat the arbitrators “shall not decide the [carrier’s] liability.” More important, both implicate the general rule that no waiver may be inferred in the face of a specific contractual provision, a “nonwaiver clause,” which precludes it. See § 627.426(2),(b),2, Fla....

...Paul's motion, Sea Quest again argues that no exclusion applies to bar coverage under the MGL and excess policies. It contends that both the late notice defense and the defense arising from Trident's assignment agreement with Sea Quest fail due to St. Paul's failure to comply with Fla. Stat. § 627.426(2)....

...On October 2, 2009, nearly four years after the robbery, Scott’s mother reported the robbery to NHIC and advised that the guardian’s counsel had contacted Scott in prison. On October 7, 2009, NHIC sent Scott’s father a “reservation-of-rights letter” under Section 627.426, Florida Statutes....

...While the duty to defend might have changed by subsequent events, there was no reservation of the right to deny coverage based on thp facts at the time, and therefore no obligation for Progressive to provide .mutually agreeable counsel pursuant to Florida Statutes, section 627.426(2)....

...The injured party must thereafter prove coverage, wrongful refusal to defend, and that the settlement was reasonable and made in good faith.”) (internal quotations omitted). 4 failed to comply with the Claims Administration Statute, section 627.426, Florida Statutes....

...We reject Fojon’s attempts to do so with unsupported and speculative allegations that the policy should have listed the driver and auto. The Claims Administration Statute Fojon asserts that Ascendant waived its right to deny coverage by failing to comply with the Claims Administration Statute, section 627.426, Florida Statutes....

...Retains independent counsel which is mutually agreeable to the parties. Reasonable fees for the counsel may be agreed upon between the parties or, if no agreement is reached, shall be set by the court. § 627.426(2), Fla....

...In instances of coverage defenses, the insurance carrier must comply with the Claims Administration Statute. If it does not, it is estopped from asserting the coverage defense—a breach of a policy condition that would forfeit coverage. § 627.426(2), Fla....

...I conclude that Kovarnik is limited to its facts and has no application in this case. While Defendants recognize that an insurer has a right to provide a defense under a reservation of right to determine whether coverage exists, they argue, relying on Section 627.426 of the Florida Statutes, that "to avail itself of this right, the insurer must provide notice to the insured of its reservation of rights, obtain a nonwaiver agreement from the `insured, or retain independent counsel, which is mutually agreeable to the parties." Opp. at 7. The Defendants then argue that Zurich's failure to comply enabled Frankel to enter into the settlement consent judgment. Even assuming Defendants' facts to be true, I conclude, as a matter of law, that Section 627.426 does not apply here because Frankel's policy was not issued for delivery or delivered in Florida but rather in New York....

...Feldman was going to school in Florida, Brooks v. Sturiano, 497 So.2d 976 (Fla. 4th DCA 1986) controls."). Thus, based on the plain language of the statute, since the subject insurance policy was not issued for delivery or delivered in Florida, Part II of Chapter 626, which includes Section 627.426, does not apply. Moreover, even if Zurich's policy was delivered or issued for delivery in Florida, Defendants' argument is still flawed. The obligations imposed under Section 627.426 apply strictly to a denial of coverage based on a "coverage defense." Because Zurich raised the potential for lack of coverage, as opposed to a coverage defense, in its reser vation of rights letter, Zurich was not obligated to comply with Section 627.426 in that letter....

...A denial or disclaimer of coverage based on a complete lack of coverage in the first instance is not a `coverage defense.'"). *1315 In this case, Zurich argues that Frankel breached the cooperation and "no action" provisions of the policy, and these arguments are "coverage defenses" under Section 627.426....

...See id. Those defenses, however, arose in April 2004, over a year after Zurich sent its reservation of rights letter. Defendants incorrectly rely on those April 2004 breaches (the coverage defense) to argue that Zurich had an obligation to comply with Section 627.426 in the January 2003 reservation of rights letter....

first time on appeal, lack of compliance with section 627.426(2), Florida Statutes). Finally, we note that

...yo, on the claim for declaratory judgment. We affirm the judgments, concluding that insurance coverage existed as a matter of law because there-was no genuine issue of material fact that GEICO failed to comply with the Claims Administration Statute, section 627.426, Florida Statutes (2015)....

...t. GEICO subsequently sought to decline coverage based on the coverage defense of breach of cooperation. GEICO’s coverage defense failed to comply with the requirements of the Claims Administration, Statute. The plain and unambiguous language . of section 627.426 states: (2) A liability insurer shall not be permitted to deny coverage based on a particular coverage defense unless: (a) Within 30 days after the liability insurer knew or should have known of the coverage defense, written notice of...

...t. Union General defended the third party lawsuit under a full reservation of rights. Lorenzo then filed a motion for summary judgment in his action against Union General, arguing that by denying PIP coverage, Union General had failed to comply with section 627.426, Florida Statutes (1991). The trial court granted the motion, stating: This Court finds that as a matter of law, the defendant has failed to comply with the procedure set forth pursuant to Fla. Stat. 627.426, and is thus precluded from denying coverage to the plaintiff under the policy at issue in this case. The trial court awarded Lorenzo a total of $51,000 in attorney’s fees, expert witness fee, and costs. *162 On appeal, Union General asserts that because section 627.426, Florida Statutes (1991), only applies to liability insurers, the statute does not apply to its denial of Lorenzo’s first party PIP claim....

...Nonetheless, Lorenzo contends that because Florida law provides that an automobile liability policy may not be sold without PIP coverage, any defenses to coverage barred under the liability policy are also barred under the PIP coverage. We disagree. Section 627.426(2), Florida Statutes (1991), states: (2) A liability insurer shall not be permitted to deny coverage based on a particular coverage defense unless.... The clear language of this statute indicates that it only applies to “liability insurers.” The statute does not address first party PIP claims. Therefore, Union General’s alleged non-compliance with section 627.426(2) has no bearing on the first party PIP claim asserted by Lorenzo....

when the insurer denied coverage pursuant to section 627.426(2). § 627.4136(4), Fla. Stat. See Markert v