insurer does not ‘waive’ coverage defenses by making a payment | Butler Weihmuller Katz Craig LLP


Does an insurer “open coverage” or “acknowledge coverage” for a claim by making a payment? No, this is not the case. The third DCA confirmed: An insurer does not waive its coverage defenses, such as policy exclusions or violations of policy conditions, by making a payment. United Automobile Insurance Company v. Stand-Up MRI of Miami, Inc. a / a / o Omaira Perez, n ° 3D21-71, 2021 WL 3889261 (Fla. 3d DCA September 1, 2021). In Self united, Omaira Perez and her two children were involved in a car accident. Perez and his children requested treatment and ceded their rights to two providers, including the MRI Stand-Up. Both suppliers have filed PIP claims with United Auto. United Auto has paid indemnities for all claims submitted by the primary supplier and for all claims for children submitted by Stand-Up. At the time of the accident, Perez was driving a vehicle that an insured owned but was not on United Auto’s policy. The policy excluded coverage for an accident involving a vehicle that an insured owned but which was not listed on the policy. United Auto denied Stand-Up MRI’s claim for Perez as there was no coverage under the policy. The standing MRI continued United Auto. Stand-Up MRI argued that United Auto waived its non-coverage defense by paying other claims arising from the same accident. The third DCA disagreed: “This argument fails because waiver cannot create insurance coverage when there is no policy to support the coverage.”

Self united reiterates that coverage cannot be extended by a payment-based waiver. A few years ago, in Gamero v. Foremost Ins. Co., 208 So. 3d 1195 (Fla. 3d DCA 2017), the third DCA rejected an insured’s argument that the insurer had waived its right to rely on a policy exclusion because it had initially recognized the coverage and paid part of a property insurance claim. This also applies to the conditions of the policy. In Rodrigo v. State Farm Florida Ins. Co., 144 So. 3d 690 (Fla. 4th DCA 2014), the fourth DCA ruled that payment of the offer does not waive the defense that the insured has not complied with a condition of the policy. Likewise, in Universal Prop. & Case. Ins. Cie c. Horne, 314 So. 3d 688, 692 (Fla. 3d DCA 2021), the third DCA concluded that the insurer had not waived its defense of coverage by issuing a prepayment. As the Eleventh Circuit recently explained, payment of a claim by an insurer “does not waive any requirement of the policy.” New S. Communications, Inc. v. Houston Cas. Co., 835 Fed. NS. 405, 413 (11th Cir. 2020).

Earlier this year, the second DCA addressed a similar issue in certiorari proceedings. Carol Rooney, Esq. discussed the implications of this decision in his blog: Florida’s second DCA: coverage may remain in dispute even after insurer has paid

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