Volume 10

10 Fla. L. Weekly Supp. 793b

Insurance -- Uninsured motorist -- Where UM policy provides that insurer will pay damages for bodily injury sustained by insured in an accident involving an uninsured vehicle when insured is legally entitled to recover from the owner or operator of uninsured vehicle, insurer is not entitled to raise defense of No Fault threshold, that insured did not sustain permanent injury, which would not have been available to uninsured tortfeasor

10 Fla. L. Weekly Supp. 178a

Insurance -- Uninsured motorist -- Waiver -- Where insured rejected uninsured motorist coverage when initially purchasing policy, insured suspended coverages while out of the country, and then reinstated original coverages upon returning to country, insurer was not required to obtain a new waiver of uninsured motorist coverage at time of reinstatement of coverage -- Summary judgment in favor of insurer granted

10 Fla. L. Weekly Supp. 548a

Insurance -- Personal injury protection -- Insurer's motion for summary judgment stricken without prejudice where material issues remain as to medical provider's pending motion to compel discovery

10 Fla. L. Weekly Supp. 488b

Civil procedure -- Summary judgment -- Outstanding discovery directed to movant

10 Fla. L. Weekly Supp. 1019c

Insurance -- Action against insurer by plaintiff, as natural parent and guardian of minor, is barred by clear language of release

10 Fla. L. Weekly Supp. 459a

Insurance -- Medical provider's motion to enlarge time to respond to proposal for settlement granted

10 Fla. L. Weekly Supp. 828a

Insurance -- Personal injury protection -- Small claims -- Proposal for settlement -- Motion to invoke rule 1.442 is granted

10 Fla. L. Weekly Supp. 1000a

Insurance -- Uninsured motorist -- Coverage -- Declaratory judgments -- Motions to dismiss complaint, strike claims, and for summary judgment and judgment on pleadings in declaratory judgment action brought by passenger injured in rental vehicle seeking to determine whether insurer of rental vehicle or passenger's own PIP carrier should provide primary UM coverage -- Action to determine priority of claims is ripe despite fact that plaintiff has not been awarded UM benefits -- Where, although both insurers acknowledge that their policies provide UM coverage, neither insurer has extended UM benefits to plaintiff, and insurers have not yet determined which of them provides primary coverage, insurers' actions have essentially resulted in denial of coverage -- Motions denied

10 Fla. L. Weekly Supp. 227a

Insurance -- Personal injury protection -- Transfer within county court system -- Abuse of discretion to grant motion to transfer 17 lawsuits from one justice center to another within county court system on the ground of convenience to plaintiff's substitute counsel and billing manager -- Plaintiff which made choice of forum in initially filing suits will not later be heard to complain that forum is no longer convenient -- Moreover, nothing in record supports transfer, motion to transfer was legally insufficient and untimely, and allowing transfer would encourage forum shopping within county court system

10 Fla. L. Weekly Supp. 720a

Insurance -- Personal injury protection -- Small claims -- At court's discretion, motion to apply rule 1.442 is granted

10 Fla. L. Weekly Supp. 119b

Insurance -- Personal injury protection -- Settlement -- Enforcement -- Where letters between inured's counsel and her personal injury attorney evince reliance on terms of settlement which does not include any terms of release, and letters between insured's counsel and insurer's counsel reflect that a release was not part of the settlement agreement, settlement is enforceable without release -- Insurer owes penalty interest from twenty days after date of confirmed settlement agreement

10 Fla. L. Weekly Supp. 477d

Insurance -- Personal injury protection -- Reimbursement by insurer of commercial vehicle -- Where insured of PIP carrier was injured in accident while driving sedan owned by his employer and insured through commercial motor vehicle policy, PIP carrier was not entitled to reimbursement of PIP benefits paid pursuant to section 627.7405, which allows for reimbursement to PIP carriers of private passenger vehicles by insurer of commercial motor vehicles involved in an accident -- Under statutory definition, sedan is private passenger vehicle regardless of use

10 Fla. L. Weekly Supp. 1017a

Insurance -- Personal injury protection -- Workers' compensation -- Insurer's action against employer of insured for reimbursement of PIP benefits paid to employee injured in automobile accident while driving employer's vehicle in the course of employment -- Workers' compensation coverage does not immunize employer against statutory liability under section 627.7405 for reimbursement of PIP benefits paid to employee -- Section 627.7405 does not violate employer's constitutional rights by allowing insurer to recover from employer PIP benefits paid to employee without regard to fault of employer -- Insurer did not fail to state cause of action by failing to attach copy of PIP policy to complaint where action is not based on provisions of policy but on statute allowing reimbursement for benefits paid under policy -- Judgment entered in favor of insurer -- Questions certified

10 Fla. L. Weekly Supp. 592b

Insurance -- Personal injury protection -- Civil procedure -- Sanctions -- Challenge to order striking pleadings as sanction for fraud on court -- Where claimant swore he resided at his mother's address in one affidavit and that he resided with his grandmother in a second affidavit, there is no evidence that claimant knew either address might cause disqualification of benefits, and claimant alleges using grandmother's address for “important mail,” insurer failed to show gross misrepresentation -- Abuse of discretion to strike claimant's pleadings

10 Fla. L. Weekly Supp. 44a

Insurance -- Personal injury protection -- Insured's action against insurer -- Claim form -- Insured's itemized statement for medical treatment and letter to insurer failed to meet clear requirement of section 627.736(5)(e) to submit statements and bills for medical services on a HCFA 500 Form -- Insured's motion for summary judgment denied

10 Fla. L. Weekly Supp. 564b

Insurance -- Personal injury protection -- Fee schedule -- Magnetic resonance imaging -- Revised MRI fee schedule set in Section 627.736(5)(b)(5) became effective when signed into law -- Summary judgment entered in favor of insurer that paid amounts set by statute for MRI performed after effective date of statute -- Civil procedure -- Amended complaint filed without leave of court after defendant had filed responsive pleading is stricken

10 Fla. L. Weekly Supp. 979a

Insurance -- Personal injury protection -- Medical bills -- Timeliness -- Where sixtieth day after treatment was a Saturday, sixty-day period for submission of bill to insurer was extended by rule 1.090, and medical provider's bill postmarked on following Monday was timely submitted

10 Fla. L. Weekly Supp. 920a

Insurance -- Personal injury protection -- Examination under oath -- Motion for protective order to prevent insurer from taking EUO of passenger in insured's vehicle after filing of PIP suit is denied -- No merit to argument that EUO is improper once suit is filed where insurance policy does not provide any time frame within which insurer waives right to request EUO, and requirement to submit to EUO remains material term of policy even after suit is filed -- Taking of deposition does not constitute substantial compliance with policy condition requiring submission of all insureds to EUO

10 Fla. L. Weekly Supp. 919a

Insurance -- Personal injury protection -- Examination under oath -- Motion for protective order to prevent insurer from taking EUO of insured after filing of PIP suit is denied -- No merit to argument that EUO is improper once suit is filed where insurance policy does not provide any time frame within which insurer waives right to request EUO, and requirement to submit to EUO remains material term of policy even after suit is filed -- Taking of deposition does not constitute substantial compliance with policy condition requiring submission to EUO

10 Fla. L. Weekly Supp. 926c

Insurance -- Personal injury protection -- Demand for escrow or reservation of PIP benefits is stricken -- Section 627.736 does not make any provision for a plaintiff to demand escrow or reservation of PIP benefits pending resolution of any dispute

10 Fla. L. Weekly Supp. 935a

Insurance -- Personal injury protection -- Fee-splitting -- Medical provider's payment of radiologist as 1099 employee to interpret insured's MRI does not violate section 817.505 prohibition against fee-splitting where insurer has not asserted that any of the parties fall within categories of providers to which statute is applicable -- Further, fee-splitting statute is applicable only where compensation is paid to induce the referral of patients or in return for referring patients, and insurer has not asserted that radiologist has been compensated in exchange for referring insured -- Even if statute were applicable to medical provider, statute authorizes payment to health care provider or other health care facility for professional consultation services -- Medical provider's decision to pay radiologist to interpret MRI does not violate section 458.331 prohibition against physicians paying or receiving compensation for referral of patients to health care providers where insurer has not asserted that radiologist was compensated in exchange for referral, and statute expressly permits medical facilities to pay fee for professional consultation services -- Coverage -- Medical providers -- Plaintiff medical provider is entitled to receive PIP benefits regardless of whether it is provider that actually rendered MRI services where insured's benefits were validly assigned to plaintiff -- Moreover, nothing in statute or definition of word “render” supports insurer's assertion that plaintiff did not render MRI services at issue -- Partial summary judgment entered in favor of medical provider

10 Fla. L. Weekly Supp. 1035a

Insurance -- Personal injury protection -- Discovery -- Documents -- Motion to compel better responses to requests to produce correspondence and notations from PIP claims file, information on insured's physical or mental condition prior to filing of suit, and documentation of amounts paid by insurer to company that recommended usual and customary reductions and to physician performing independent medical examination/peer review or company selecting such physician denied -- Motion to compel production of medical reports on insured granted -- Interrogatories -- Request for better answers to interrogatories regarding identity and role of persons who participated in investigation and selection of IME/peer review physician, insurer's relationship to IME/peer review physician, total amount paid to IME/peer review physician, identity of persons knowledgeable about computer records showing payments made to IME/peer review physician, and listing of documents used to explain to adjusters policies and procedures for use of IME/peer review physicians denied

10 Fla. L. Weekly Supp. 544a

Insurance -- Personal injury protection -- Disability income -- Motion for summary judgment on ground that insured's claim for disability-related income loss was not accompanied by report from a medical professional indicating that insured was disabled is denied -- Issue of PIP disability is question of proof appropriate for trial -- Denial is without prejudice to bringing motion again after discovery if insured can provide no admissible proof that he was disabled and lost income as result of motor vehicle accident

10 Fla. L. Weekly Supp. 643a

Insurance -- Personal injury protection -- Demand letter is not condition precedent to initiating suit for claim paid at reduced rate

10 Fla. L. Weekly Supp. 476a

Insurance -- Personal injury protection -- Error to enter summary judgment in favor of insurer due to failure of plaintiff medical provider to register under section 456.0375 within 60 days of effective date of statute where statute only requires that clinics file registration form with Department of Health within 60 days and, while evidence indicated that provider was not issued license within 60 days, there was no evidence that it did not file registration form within 60 days

10 Fla. L. Weekly Supp. 207b

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Amendments to paragraph (5) of section 627.736, setting amounts to be charged for treatment and services, apply to treatment and services occurring on or after October 1, 2001

10 Fla. L. Weekly Supp. 187a

Insurance -- Workers' compensation -- Employer's liability -- Plaintiff seeking to recover from insurer the amount of a judgment entered against insureds pursuant to a settlement agreement whereby the insureds admitted liability and conceded damages in specified amount, insureds assigned their rights under policy to plaintiff, and plaintiff agreed to seek to recover under the judgment only against insurer under the policy -- Remand following appeals court ruling that where insurer refused both coverage and a defense to its insured for claims brought by injured employee against insured in a civil action, insurer thereby ceded to its insured control of the litigation and the right to settle the claims, insurer is bound by settlement waiving defense of workers' compensation immunity and may not assert that defense against plaintiff's claim for policy benefits to satisfy the judgment entered against the insured pursuant to settlement agreement, and insurer may not relitigate issue of liability by raising any affirmative defenses that could have been raised in the civil action -- Insurer is not entitled to set-off of workers' compensation payments or workers' compensation lien on plaintiff's recovery as these defenses could have been raised in civil action -- Settlement is reasonable

10 Fla. L. Weekly Supp. 436c

Insurance -- Personal injury protection -- Declaratory judgments -- Medical provider properly pled count for declaratory relief where it is alleged that insurer refused provider's numerous requests for PIP log, and due to insurer's dilatory tactics provider is unsure whether there is coverage or whether medical bill was applied to deductible

10 Fla. L. Weekly Supp. 201b

Insurance -- Personal injury protection -- Where non-insured passenger who resides in household with automobile liability policy having PIP coverage first submitted claim to vehicle owner's insurer and received medical payment coverage at 20%, and then 22 months after accident assignee submitted claim to household PIP insurer, assignee is not entitled to any additional payment

10 Fla. L. Weekly Supp. 44c

Insurance -- Personal injury protection -- Passenger who is owner of an uninsured vehicle not being driven or operated on roads of state at time of accident because of being stored and repaired over several months at auto body shop is not barred from recovering PIP benefits -- Amendment to section 320.02(1) removed requirement to register vehicles merely maintained in state although not operated or driven

10 Fla. L. Weekly Supp. 1001b

Insurance -- Personal injury protection -- Coverage -- Denial -- Unregistered clinic -- Mobile diagnostic testing facility which travels to doctors' offices to perform range of motion testing and maintains office used exclusively to prepare reports, maintain records, and perform billing operations does not fall under statutory definition of clinic required to register with Department of Health

10 Fla. L. Weekly Supp. 732a

Insurance -- Personal injury protection -- Coverage -- Code for special report is not associated with providing medical service and is therefore not compensable

10 Fla. L. Weekly Supp. 726a

Insurance -- Personal injury protection -- Coverage -- Unregistered medical providers -- Where clinic had mailed registration form to Department of Health at time of rendering services to insured, but registration had not yet been issued, services were unlawful and noncompensable

10 Fla. L. Weekly Supp. 720c

Insurance -- Personal injury protection -- Coverage -- Unregistered medical provider -- Fully mobile diagnostic testing company which provides medical services at offices of physicians requesting services and uses own office only to prepare reports does not meet statutory definition of clinic required to register with Department of Health

10 Fla. L. Weekly Supp. 720b

Insurance -- Personal injury protection -- Coverage -- Unregistered medical provider -- Fully mobile medical provider which solely conducts diagnostic testing does not meet statutory definition of clinic required to register with Department of Health

10 Fla. L. Weekly Supp. 717b

Insurance -- Personal injury protection -- Coverage -- Unregistered medical provider -- Fully mobile medical provider which solely conducts diagnostic testing does not meet statutory definition of clinic required to register with Department of Health

10 Fla. L. Weekly Supp. 59b

Insurance -- Personal injury protection -- Medical expenses -- Transportation costs -- Insured seeking reimbursement for cost of transportation failed to meet burden to prove that treatment for which transportation was incurred was reasonable and necessary

10 Fla. L. Weekly Supp. 451a

Insurance -- Personal injury protection -- Preferred provider rates -- Assignee who executed PPO contract brings suit against insurer with all of the rights of insured and her non-PPO policy -- Section 627.736(10) provides exclusive means by which insurer may pay reduced PPO rates on PIP claim -- Summary judgment granted in favor of assignee

10 Fla. L. Weekly Supp. 868a

Insurance -- Personal injury protection -- Preferred providers -- No error in finding that insurer who had not directly contracted with medical provider for PPO rates was required to pay PIP benefits at statutory rate -- Summary judgment awarding entire amount medical provider claimed may have been inappropriate where reasonableness of charges was an issue but, where issue was not raised on appeal, appellate court affirms

10 Fla. L. Weekly Supp. 51a

Insurance -- Personal injury protection -- Preferred provider rates -- Insurer that failed to adhere to requirements of 627.736(10) to have PPO policy with insured may not raise Beech Street Network affirmative defense against suit by assignee

10 Fla. L. Weekly Supp. 50b

Insurance -- Personal injury protection -- Preferred provider rates -- Insurer that failed to adhere to requirements of 627.736(10) to have PPO policy with insured may not reduce benefits to assignee to PPO rates

10 Fla. L. Weekly Supp. 49a

Insurance -- Personal injury protection -- Preferred provider rates -- Insurer that failed to adhere to requirements of 627.736(10) to have PPO policy with insured may not reduce benefits to assignee to PPO rates

10 Fla. L. Weekly Supp. 1024a

Insurance -- Personal injury protection -- Reasonable, related, and necessary treatment -- Directed verdict is entered in favor of medical provider where provider's expert testified credibly that treatments received by insured were reasonable, related, and necessary and insurer failed to either substantially discredit provider's expert or come forth with own expert in rebuttal

10 Fla. L. Weekly Supp. 1059a

Insurance -- Personal injury protection -- Claim -- Denial -- Insurer has not yet denied claim and, therefore, insured's suit is premature where insurer sent request for explanation of benefits and staff person of insured's attorney's office sent insurer note stating medical provider is unable to produce requested documentation -- Note not purporting to be communication authorized by medical provider was insufficient to require insurer to decide within ten days of its receipt whether to pay claim, deny claim or initiate formal discovery -- Summary judgment granted in favor of insurer

10 Fla. L. Weekly Supp. 1036c

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Amount -- MRI fee schedule -- Adjustments based on medical Consumer Price Index

10 Fla. L. Weekly Supp. 135a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutes -- Effective date -- Where bill indicates generally that subsections establishing allowable amounts for treatment and services shall apply to treatments and services after October 1, 2001, and subparagraph regarding allowable amounts for MRIs states that it is effective upon becoming law, the effective date of MRI allowable amounts is date the bill was signed into law by the Governor -- Constitutional law -- Statute with effective date before October 1, 2001, is not unconstitutional interference with existing contracts where new provisions change only the amount to be charged for services and would not affect substantive rights under existing contracts

10 Fla. L. Weekly Supp. 208d

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Amendments to section 627.736(5), setting amounts to be charged for treatment and services, apply to treatment and services occurring on or after October 1, 2001

10 Fla. L. Weekly Supp. 208c

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Amendments to paragraph (5)(b) of section 627.736, setting amounts to be charged for treatment and services, apply to treatment and services occurring on or after October 1, 2001

10 Fla. L. Weekly Supp. 208b

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Amendments to paragraph (5)(b) of section 627.736, setting amounts to be charged for treatment and services, apply to treatment and services occurring on or after October 1, 2001

10 Fla. L. Weekly Supp. 208a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Amendments to paragraph (5) of section 627.736, setting amounts to be charged for treatment and services, apply to treatment and services occurring on or after October 1, 2001

10 Fla. L. Weekly Supp. 207a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Amendments to paragraph (5)(b) of section 627.736, setting amounts to be charged for treatment and services, apply to treatment and services occurring on or after October 1, 2001

10 Fla. L. Weekly Supp. 744a

Insurance -- Personal injury protection -- Claim for magnetic resonance imaging services by plaintiff which performed neither the technical nor the professional component of MRI -- Fee-splitting -- Plaintiff's payment of radiologist to interpret MRIs on per-interpretation basis is not fee-splitting where radiologist's compensation is not dependant on whether plaintiff receives payment for its services and is not fixed percentage or any type of commission on monies received by plaintiff -- Patient-brokering -- There was no patient-brokering arrangement as plaintiff is permitted by statute to pay radiologist for professional consultation services -- Plaintiff which receives MRI films from MRI lab, transports films to interpreting radiologist, provides radiologist with letterhead onto which report is placed, and transports report back to lab for distribution does not provide any medical service for which it is eligible to receive payment under PIP statute

10 Fla. L. Weekly Supp. 426a

Insurance -- Personal injury protection -- Coverage -- Lost wages -- Insured is entitled to award of 60% of lost wages not covered by workers' compensation, up to $10,000 policy limit of liability

10 Fla. L. Weekly Supp. 345a

Insurance -- Motion to strike affirmative defense that independent medical examination and additional physician's review of injuries and treatment found that injuries were not related to motor vehicle accident -- Motion to strike denied based on finding that defense presented bona fide question of fact -- Affirmative defense can be revisited by court after parties conduct discovery through motion for summary judgment

10 Fla. L. Weekly Supp. 790a

Insurance -- Personal injury protection -- Whether agreement between medical provider and entity which performed MRI continues to be illegal fee-splitting as previously found in district court case was not proper defense to insured's claim against insurer for cost of MRI where insured had nothing to do with allegedly illegal contract, and medical provider and entity that performed MRI were not brought into action as third-party defendants -- Summary judgment in favor of insured is affirmed in light of insurer's agreement that amount sought by insured was reasonable charge for medically necessary MRI

10 Fla. L. Weekly Supp. 1040a

Insurance -- Personal injury protection -- Claim for magnetic resonance imaging services by plaintiff which performed technical component of MRI and paid radiologist to perform professional component of MRI -- Fee-splitting -- Plaintiff and radiologist who did not have a business relationship with plaintiff and was paid by plaintiff on a per interpretation basis are not fee-splitting -- Notice of loss -- Insurer which has not established a modifier for technical components has made it impossible for technical component to be billed separately, and plaintiff provided legal timely notice of loss with claim form for both technical and professional components of MRI

10 Fla. L. Weekly Supp. 1020c

Insurance -- Personal injury protection -- Claim for magnetic resonance imaging services by plaintiff which performed technical component of MRI and paid radiologist to perform professional component of MRI -- Plaintiff would have been entitled to compensation for technical component if it had designated its bill to only seek compensation for that component -- Plaintiff did not render and is not allowed to recover PIP benefits for professional component of MRI -- Fee-splitting -- Relationship between plaintiff and radiologist is not unlawful fee-splitting -- Question certified whether medical provider can render medical service under section 627.736(5)(a) when medical service was provided through use of independent contractor

10 Fla. L. Weekly Supp. 201a

Insurance -- Personal injury protection -- Coverage -- Exhaustion of benefits -- Action for unpaid medical bill where policy limits have been exhausted by payment for lost wages pursuant to insured's reservation of benefits -- Insured who executed assignment of benefits to medical provider had no right to receive PIP benefits for lost wages after date of assignment to detriment of assignee -- Even if insured had reserved PIP benefits for lost wages prior to assignment, the assignment would have extinguished the reservation of benefits to the extent of payment for services provided by assignee to insured -- Summary judgment entered in favor of assignee

10 Fla. L. Weekly Supp. 789b

Insurance -- Personal injury protection -- Exhaustion of benefits on subsequent claims -- Error to enter summary judgment in favor of insurer where, although insured cannot recover any more benefits, she may be entitled to statutory damages, including attorney's fees

10 Fla. L. Weekly Supp. 738a

Insurance -- Personal injury protection -- Medical bills -- Reduction -- Exhaustion of benefits -- Action by medical provider for balance of partially paid bill after policy limits have been exhausted in payment of subsequent claims of other assignees -- In the absence of absolute assignment of all benefits under policy to medical provider or bad faith on part of insurer in payment of subsequent claims, summary judgment in favor of insurer is granted

10 Fla. L. Weekly Supp. 675c

Insurance -- Personal injury protection -- Medical bills -- Reduction -- Exhaustion of benefits -- Action by medical provider for balance of bill partially paid by insurer claiming charged amount exceeded usual and customary charges -- Insurer must pay overdue claims unlawfully withheld even if policy limits have been exhausted -- Abuse of discretion in granting summary judgment where there was genuine issue of material fact as to reasonableness of amount charged

10 Fla. L. Weekly Supp. 546c

Insurance -- Personal injury protection -- Summary judgment granted in favor of insurer on claim of medical provider to whom insured assigned benefits for unpaid portion of medical bill where prior to filing of suit insurer exhausted benefits with payment to medical provider other than plaintiff

10 Fla. L. Weekly Supp. 199a

Insurance -- Personal injury protection -- Action for balance of partially paid bills where policy limits have been exhausted by payment of subsequent claims -- Issue of whether insurer paid medical provider reasonable and proper amount for services it provided prior to exhaustion of policy limits is question of fact that precludes summary judgment -- Court recedes from prior ruling that exhaustion of benefits relieved insurer of any further liability due to fact that insurer has fulfilled its obligations under policy

10 Fla. L. Weekly Supp. 831a

Insurance -- Personal injury protection -- Coverage -- Exhaustion of benefits -- Escrow language in assignment was not sufficient for insurer to set aside funds prior to exhaustion of benefits

10 Fla. L. Weekly Supp. 827a

Insurance -- Personal injury protection -- Coverage -- Exhaustion of benefits -- Where benefits under policy were exhausted after payment of reduced amount for medical bill, no notice of assignment was provided to insurer prior to suit, no request to escrow benefits for disputed portion of bill was made to insurer prior to suit, and suit was not filed until two and a half years after exhaustion of benefits, medical provider is not entitled to any additional benefits under policy

10 Fla. L. Weekly Supp. 530b

Insurance -- Personal injury protection -- Coverage -- Denial -- Exhaustion of benefits -- Insurer who denied coverage based on alleged preferred provider contract cannot wait until all benefits are exhausted, two years after filing of complaint, and move for summary judgment against assignee who timely demanded payment of PIP claim -- Partial summary judgment granted in favor of assignee on inapplicability of PPO contract to which it was not a party

10 Fla. L. Weekly Supp. 826c

Insurance -- Personal injury protection -- Coverage -- Exhaustion of benefits -- Provider has no cause of action for recovery of benefits where medical provider failed to instruct insurer not to pay other medical benefits until benefits claimed by provider had been recovered or adjudicated, there is no evidence that exhaustion of benefits by insurer during pendency of provider's suit for balance of reduced bills was undertaken in bad faith, assignment does not constitute appropriate notice to gain priority in distribution of benefits because it fails to reference specific bills in dispute, and fact that provider accepted reduced amounts paid by insurer contradicts claim that provider was disputing reasonableness of payment and requesting that benefits be set aside for future resolution

10 Fla. L. Weekly Supp. 1020b

Insurance -- Personal injury protection -- Exhaustion of benefits -- Insurer not entitled to summary judgment based on exhaustion of benefits where evidence indicated that adequate benefits were available to pay medical bills at issue at time lawsuit was filed -- There is no requirement in No-Fault statute that assignee request that benefits be placed in escrow in order to protect right to proceed against insurer following exhaustion of benefits -- Filing of lawsuit provided insurer with notice of disputed bills -- Insurer provided no legal basis to find that payment to separate corporate entity should be deemed equivalent of payment to plaintiff -- Case shall proceed to trial on merits

10 Fla. L. Weekly Supp. 1019a

Insurance -- Personal injury protection -- Exhaustion of benefits -- Where action was filed by assignee after payment was denied as not reasonable, related, or necessary and, at the time, there were sufficient funds available under the policy to pay the claim, and where assignee filed action against insurer prior to exhaustion of benefits, insurer was not entitled to summary judgment based on the subsequent exhaustion of benefits

10 Fla. L. Weekly Supp. 1018b

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Exhaustion of policy limits -- Where insured's PIP benefits were exhausted after medical provider filed suit against insurer, medical provider did not instruct insurer not to pay other PIP benefits until benefits claimed by provider had been adjudicated or amend complaint to specify any particular bills at issue and that any particular amount was to be retained, and there is no evidence that insurer's exhaustion of benefits was taken in bad faith, medical provider has no cause of action against insurer for recovery of benefits

10 Fla. L. Weekly Supp. 834a

Insurance -- Personal injury protection -- Coverage -- Exhaustion of benefits -- Evidence -- Hearsay -- Exceptions -- Business records -- Affidavit of adjuster other than original adjuster assigned to file, as records custodian, falls within business records exception to hearsay rule -- There is no language in PIP statute requiring escrow of benefits

10 Fla. L. Weekly Supp. 833b

Insurance -- Personal injury protection -- Demand for escrow of disputed policy benefits is available mechanism for policy holder or assignee to reserve disputed benefits in the eventuality that benefits are exhausted -- Motion to strike demand for escrow denied

10 Fla. L. Weekly Supp. 833a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 11 Fla. L. Weekly Supp. 248a

Insurance -- Personal injury protection -- Demand for escrow of disputed policy benefits is available mechanism for policy holder or assignee to reserve disputed benefits in the eventuality that benefits are exhausted -- Motion to strike demand for escrow denied

10 Fla. L. Weekly Supp. 124b

Insurance -- Personal injury protection -- Coverage -- Exhaustion of benefits -- Insurer's motion for summary judgment based on exhaustion of benefits denied where there were sufficient funds to pay full amount of medical provider's bill at time it was submitted

10 Fla. L. Weekly Supp. 120a

Insurance -- Personal injury protection -- Coverage -- Exhaustion of benefits -- Action for balance of partially paid bills where policy limits have been exhausted by payment of subsequent claims -- Where medical provider did not request insurer to escrow or reserve unpaid amount, and insurer did not receive actual or constructive notice of suit for unpaid portions of bills until after exhaustion of policy limits, summary judgment is granted in favor of insurer

10 Fla. L. Weekly Supp. 111b

Insurance -- Personal injury protection -- Coverage -- Exhaustion of benefits

10 Fla. L. Weekly Supp. 934a

Insurance -- Personal injury protection -- Provider who was paid less than total amount billed and disputes the amount paid is not required to put insurance company on notice so that it may put funds in reserve -- Factual issue regarding whether insurer paid provider the proper amount for services provided precludes summary judgment -- Defendant's motion for summary judgment denied

10 Fla. L. Weekly Supp. 15c

Insurance -- Personal injury protection -- Summary judgment holding that insurer was barred from contesting claim by failure to present reasonable proof within thirty days after receipt of notice of bill is reversed based on contrary dispositive appellate opinion

10 Fla. L. Weekly Supp. 914b

Insurance -- Personal injury protection -- Coverage -- Insured's action to recover additional benefits after exhaustion of policy limits on theory that incident in which insured's vehicle was struck and, in turn, struck another vehicle was two accidents -- Where insured's vehicle was struck by another vehicle, and impact caused insured's vehicle to rotate and strike third vehicle such that no time or distance separated impacts, insured was involved in multiple impacts as a result of single accident -- Summary judgment granted in favor of insurer

10 Fla. L. Weekly Supp. 921b

Insurance -- Personal injury protection -- Coverage -- Summary judgment is granted in favor of insurer where insurer applied medical provider's bill to deductible which had not been met at time bill was submitted -- Filing suit following original submission of bill and subsequent to deductible having been met does not entitle medical provider to recover under benefits portion of policy

10 Fla. L. Weekly Supp. 731a

Insurance -- Personal injury protection -- Medical bills -- Medical provider's motion for summary judgment is denied where defense of whether medical bill was necessary and related to accident in question remains

10 Fla. L. Weekly Supp. 203a

Insurance -- Personal injury protection -- Independent medical examination -- Because IME may be videotaped by insured's representative, decision of IME physician to not proceed with IME was not legally correct although physician has right to choose not to proceed -- Where insurer unilaterally scheduled second IME without coordinating with insured's attorney, insured filed a motion for protective order which insurer never called up for hearing, and insurer terminated coverage when insured failed to attend IME, insurer breached contract by terminating coverage without any basis to find that insured acted “unreasonably” in failing to attend IME

10 Fla. L. Weekly Supp. 731c

Insurance -- Personal injury protection -- Examination under oath -- Affirmative defense that insured violated condition precedent to suit by unreasonably refusing to submit to examination under oath is barred where policy language is ambiguous as to duties of insured or conditions precedent to filing suit

10 Fla. L. Weekly Supp. 729a

Insurance -- Personal injury protection -- Coverage -- Denial -- Failure to attend examination under oath -- Policy language requiring written claim “and/or” EUO is ambiguous and must be construed in favor of coverage -- Even if provision was not ambiguous, defense of failure to attend EUO would fail because insurer sent request for EUO directly to insured represented by counsel and made no effort to put counsel on notice of EUO -- Summary judgment granted in favor of insured on bills denied solely on basis of failure to attend EUO -- Insurer's motion for summary judgment as to bills contested as not reasonable or necessary is denied because defense raises question of fact

10 Fla. L. Weekly Supp. 971c

Insurance -- Personal injury protection -- Coverage -- Conditions precedent -- Examination under oath -- Where insurer scheduled EUO within thirty days of notice of claim but EUO was not scheduled to take place until over thirty days after notice of claim, insurer breached contract by failing to pay PIP claim within thirty days after notice without reasonable proof that it was not liable for claim and was properly barred from using insured's failure to attend EUO as defense in suit to recover PIP benefits

10 Fla. L. Weekly Supp. 1044d

Insurance -- Personal injury protection -- Explanation of benefits constituted denial for purposes of section 627.736(11) -- Plaintiff not obligated to file seven-day demand prior to filing suit

10 Fla. L. Weekly Supp. 537b

Insurance -- Personal injury protection -- Dispute between medical provider and insurer -- Examination under oath -- Although insured and claimant did not appear for EUO requested by insurer, insurer had obligation to conduct diligent search to obtain information it was seeking from insured and claimant -- Where record is devoid of any evidence to show diligent effort to locate and serve subpoena on insured or claimant during two years of litigation, defendant failed in obligation to obtain reasonable proof to deny claim and bring forth facts to support its coverage defense, and medical provider is entitled to payment of bills timely submitted prior to 30 days after first request for EUO, statutory interest, and attorney's fees

10 Fla. L. Weekly Supp. 865a

Insurance -- Personal injury protection -- Coverage -- Conditions precedent -- Independent medical examination -- Trial court erred in granting summary judgment in favor of insurer where, although insured did not dispute allegation that her absence from all IMEs was unreasonable, insured was entitled to payment of medical bills incurred by insured and received by insurer prior to notice of suspension of benefits

10 Fla. L. Weekly Supp. 16a

Insurance -- Personal injury protection -- Where medical provider filed suit the day before insured attended examination under oath required by PIP policy, condition precedent to filing suit had not been met -- EUO scheduled to occur after statutory 30-day period for insurer to obtain reasonable proof is timely where EUO was scheduled to occur within period and rescheduled at insured's request -- Insurer's request to medical provider for complete medical records on insured before 30-day period began to run was permissible -- Summary judgment for insurer affirmed

10 Fla. L. Weekly Supp. 656a

Insurance -- Personal injury protection -- Coverage -- Plaintiff injured as driver of insured vehicle who is owner of uninsured vehicle -- Where lapse in insurance on plaintiff's vehicle occurred prior to date vehicle became inoperable, vehicle was not in storage and was not permanently inoperable but simply needed brake repair, and plaintiff drove vehicle after lapse in insurance up to right before accident, plaintiff may not recover PIP benefits

10 Fla. L. Weekly Supp. 972a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 11 Fla. L. Weekly Supp. 404b

Insurance -- Personal injury protection -- Summary judgment -- Factual issue -- Error to grant summary judgment in favor of plaintiff on issue of liability where accident report which fails to indicate that plaintiff was passenger in vehicle at time of accident created genuine issue of material fact

10 Fla. L. Weekly Supp. 200c

Insurance -- Dispute between medical provider and insurer -- Count of medical provider's complaint for nonpayment of reasonable and necessary charges is stricken in absence of insurance contract

10 Fla. L. Weekly Supp. 200b

Insurance -- Dispute between medical provider and insurer -- Count of medical provider's complaint for nonpayment of reasonable and necessary charges is stricken in absence of insurance contract

10 Fla. L. Weekly Supp. 1034a

Insurance -- Personal injury protection -- Claim forms -- Where medical provider originally filed suit under name of one of his six corporations other than the corporation to which assignment of benefits was directed and filed HCFAs indicating treatment was completed by the plaintiff corporation rather than assignee corporation and containing other information that was false or misleading, HCFAs do not establish compliance with section 627.736, and plaintiff has failed to lawfully render treatment and provide insurer of notice of loss and amount thereof -- Insurer's motion for summary judgment granted

10 Fla. L. Weekly Supp. 133b

Insurance -- Personal injury protection -- Claim form -- Countersignature -- Florida law does not require patient to countersign legally assigned invoice, bill or health insurance claim form as a condition precedent to insurer paying claim

10 Fla. L. Weekly Supp. 1042b

Insurance -- Personal injury protection -- Claim forms -- Countersignature -- Section 627.736(5)(a) does not require insured to countersign HICF form as condition precedent to insurer paying PIP benefits to medical provider who has provided notice to insurer of acceptance of valid assignment of rights and benefits from insured

10 Fla. L. Weekly Supp. 388b

Insurance -- Personal injury protection -- Claim forms -- Countersignature

10 Fla. L. Weekly Supp. 793a

Insurance -- Personal injury protection -- Bankruptcy -- Where PIP lawsuit was listed as unsecured non-priority claim in defendant's Chapter 7 bankruptcy action in which order of discharge has been entered, complaint is dismissed with prejudice

10 Fla. L. Weekly Supp. 544b

Insurance -- Personal injury protection -- Dismissal -- Assignment -- Attachment of assignment of benefits to complaint of medical provider claiming PIP benefits pursuant to written assignment is not required by rule 1.130 -- Provider's allegation of standing by way of assignment must be taken as true for purposes of motion to dismiss -- Motion to dismiss denied

10 Fla. L. Weekly Supp. 914a

Insurance -- Personal injury protection -- Coverage -- Where there is no evidence that gunshot wound inflicted on driver while driving vehicle was inflicted in any other manner than by accident and no suggestion that gunshot was caused by operation or maintenance of vehicle, there is not a sufficient nexus to indicate death was result of ownership, maintenance or use of vehicle -- Summary judgment granted in favor of insurer

10 Fla. L. Weekly Supp. 465a

Insurance -- Personal injury protection -- Small claims -- Proposal for settlement -- Because small claims actions are excluded from application of Florida Rules of Civil Procedure, court has discretion whether to apply rule 1.442 for purposes of filing proposal for settlement -- Motion to apply rule 1.442 denied

10 Fla. L. Weekly Supp. 645a

Insurance -- Medpay -- Coverage -- Because there was no personal injury protection coverage for medical bill not timely submitted pursuant to PIP statute, no Medpay benefits were due either -- Summary judgment entered in favor of insurer

10 Fla. L. Weekly Supp. 367b

Insurance -- Jury trial -- Where trial court allowed insurer 15 days after denial of motion to dismiss in which to file answer and demand for jury trial, and insurer did not comply with order but filed answer and demand 38 days after entry of order, insurer waived right to jury trial

10 Fla. L. Weekly Supp. 367a

Insurance -- Small claims -- Jury trial -- Motion to strike insurer's demand for jury trial is granted where demand was made in answer filed 45 days after service of process and 24 days after pre-trial conference

10 Fla. L. Weekly Supp. 300a

Jursidction -- Insurance -- Corporations -- Service of process -- Order denying motion to dismiss for lack of jurisdiction is affirmed as jurisdiction over insurer was obtained by service on employee but reversed and remanded as to issue of propriety of service where record is devoid of evidence that members of superior class were absent when process was served on inferior employee

10 Fla. L. Weekly Supp. 1005a

Insurance -- Marine -- Jurisdiction -- Foreign insurer -- Where Russian insurer issued policy to plaintiff, a Honduran resident; insurer provided coverage for fishing vessel registered in and operating out of Honduras; loss of vessel occurred in international waters; insurer does not maintain or have offices, employees, mailing address, telephone listing, real or personal property, agent for service of process, advertising or marketing, bank account, or business records in Florida, and insurer does not insure any Florida residents, insurer's contacts with Florida are not continuous and systematic so as to establish general jurisdiction -- Foreign insurer's acceptance of premiums paid and delivered to Florida insurer pursuant to issuance of cover note established implied authority of Florida insurer as agent of foreign insurer -- Where foreign insurer issued and delivered coverage and terms of insurance to plaintiff through chain of brokers, in Florida, for profit, it is reasonably foreseeable that foreign insurer could be haled into Florida court for transacting insurance and receiving benefits therefrom, and requirements for in personam jurisdiction are satisfied

10 Fla. L. Weekly Supp. 546a

Insurance -- Personal injury protection -- Coverage -- Denial -- Exhaustion of benefits -- Although PIP benefits are exhausted, medical provider is entitled to statutory interest, attorney's fees, and costs

10 Fla. L. Weekly Supp. 532b

Insurance -- Personal injury protection -- Coverage -- Exhaustion of benefits -- Although insurer has paid all PIP benefits due medical provider and policy limits have been exhausted, insurer must pay statutory interest for late payment of benefits

10 Fla. L. Weekly Supp. 514c

Insurance -- Independent medical examination -- Conditions of IME set, including attendance of plaintiff's attorney and videographer or court reporter, plaintiff is not required to provide documents or films or submit to additional x-rays or other testing, IME physician is not to conduct extensive oral or written examination or require completion of lengthy information forms, IME report is to be prepared within 30 days, and IME physician is to clearly identify to plaintiff that he has been hired by defense

10 Fla. L. Weekly Supp. 113a

Insurance -- Personal injury protection -- Coordination of benefits between PIP insurer and health insurer, with insured contending PIP benefits should have been used to pay his lost earnings and health insurer should pay hospital bill -- Level of coordination required of PIP insurer by statute is unclear -- Where PIP adjuster spoke with insured and insured's attorney and made one phone call to health insurer, attempt to coordinate benefits was legally sufficient -- In absence of clear choice for resolution of competing claims for hospital bill and lost wages, PIP insurer's issuance of joint draft payable to insured and hospital was legally valid option

10 Fla. L. Weekly Supp. 129a

Insurance -- Personal injury protection -- Fraud -- Insurer's motion for leave to amend complaint for declaratory relief and unjust enrichment against diagnostic service which filed claim for MRIs but failed to disclose identity of imaging facility that actually made MRI images, seeking to add count for fraud and assert entitlement to punitive damages and attorney's fees -- There is no basis in law or equity to support claim for attorney's fees where attorney's fees cannot be recovered in action for declaratory relief, and insurer has no standing to assert a claim based on violation of patient brokering statute -- Where MRIs were unquestionably covered services, and there was no allegations that patients, imaging facilities or radiologists have timely made competing claims in connection with the MRIs, insurer has failed to allege facts showing damage -- Patients, imaging facilities, and radiologists are indispensable parties which insurer failed to join -- Motion for leave to amend denied without prejudice

10 Fla. L. Weekly Supp. 212a

Insurance -- Personal injury protection -- Discovery -- Depositions -- Expert witness fee -- Treating physician is entitled to expert fee for deposition testimony concerning the subject matter of his expertise, including treatment rendered to insured

10 Fla. L. Weekly Supp. 733a

Insurance -- Bankruptcy -- Proceedings on fees and costs due insurer are stayed pending resolution of medical provider's bankruptcy proceedings

10 Fla. L. Weekly Supp. 478b

Insurance -- Venue -- Forum non conveniens -- Appeals -- Stay -- Where Orange County Court granted request to transfer venue to Hillsborough County, plaintiff medical provider filed notice of appeal of venue decision in Ninth Circuit and motion for stay of Hillsborough County proceedings, but then withdrew motion for stay and proceeded with litigation in Hillsborough County to final judgment, Ninth Circuit's exercise of review was exercise of discretionary certiorari jurisdiction which did not stay proceedings in Hillsborough County, and Hillsborough County Court was not precluded from entering final judgment -- Additionally, medical provider's withdrawal of request for stay and participation in proceedings in Hillsborough County waived venue -- Finally, medical provider has not demonstrated prejudice where trial court could reach no other conclusion than that provider lacks standing because bills submitted to insurer were from orthopaedic corporation not named in suit, and record indicates no connection between treatment rendered to insured and provider -- Although provider and orthopaedic corporation have mutual director, they are separate and distinct corporations -- No error in granting summary judgment in favor of insurer without leave to amend

10 Fla. L. Weekly Supp. 644a

Insurance -- Release -- Insured's assignee is not barred from pursuing claim by previous release of insurer executed by insured in separate uninsured motorist claim

10 Fla. L. Weekly Supp. 635b

Insurance -- Medical provider's motion to strike insurer's affirmative defenses that assert that medical provider is not entitled to collect additional sums for which it is seeking payment because it failed to properly complete claim forms and that medical provider was adequately paid for services provided is granted because assertions are not affirmative defenses but factual argument -- Motion to strike affirmative defenses that allege that amounts not paid to medical provider are not due because medical provider is engaged in attempted theft of amount by fraud and attempted fraud is denied -- Motion to strike affirmative defense that is denial of performance of conditions precedent already denied in answer is granted

10 Fla. L. Weekly Supp. 673a

Insurance -- Personal injury protection -- Coverage -- Unregistered medical provider -- Error to grant motion to dismiss on ground that clinic must allege in its complaint that it was registered with Department of Health -- Consideration of evidence of clinic's date of registration impermissibly extended beyond four corners of complaint -- Evidence should be considered as affirmative defense or in motion for summary judgment, not motion to dismiss

10 Fla. L. Weekly Supp. 456b

Insurance -- Complaint stricken and case dismissed with prejudice where plaintiff perpetrated fraud on court by misrepresenting and omitting information regarding lost wage and loss of earning capacity claim in discovery responses and complaint

10 Fla. L. Weekly Supp. 468b

Insurance -- Small claims -- Dismissal -- Failure to prosecute -- Trial court erred in finding that late docketed subpoena return constituted record activity where return was filed one month beyond six month limit of rule 7.110(e) -- No merit to argument that trial court implicitly found good cause why action should remain pending when it granted motion to compel insurer to respond to discovery requests filed with complaint -- Insurer's failure to respond to discovery does not establish compelling circumstances necessary to qualify for “good cause” exception to rule -- Remand to enter order granting motion to dismiss

10 Fla. L. Weekly Supp. 437b

Insurance -- Complaint -- Because there is no requirement to attach insurance policy to complaint or state dates of service at issue in complaint, motion to dismiss is denied, but motion for more definite statement is granted

10 Fla. L. Weekly Supp. 438a

Insurance -- Small claims -- Motion to dismiss or for more definitive statement due to medical provider's failure to identify dates of service or attach medical bills denied -- Motion to invoke rules of civil procedure granted

10 Fla. L. Weekly Supp. 736a

Insurance -- Personal injury protection -- Discovery -- Production of documents -- Motion to compel production of surveillance films, photographs, and reports; statements of witnesses taken by insurer; photographs of vehicle damage and scene of accident; estimates of repairs or statements concerning nature and extent of damage to vehicles; writing reflecting insurer's examination of vehicles; claims history reports, and other investigative reports is denied as such documents are privileged -- Motion to compel production of documents reflecting monies paid insurer to company recommending usual and customary reductions in claim is denied as documents are irrelevant -- Motion to compel production of records reflecting money paid in past three years to physician who performed independent medical examination or peer review is denied -- Interrogatories -- Insurer does not have to answer interrogatory requesting information on each medical bill not paid in full -- Insurer is not required to answer interrogatories seeking identification of computer program used to review claim, description of how program is supposed to work, description of relationship with company that sold or supplied program, identification of person with most knowledge of program and how it is used, list of materials used to train personnel in use of program, list of personnel knowledgeable about technical aspects of program, list of documents that provide technical information on program, description of program database, list of forms associated with program use, list of reports generated by program, and description of computer program license agreement as interrogatories seek privileged information

10 Fla. L. Weekly Supp. 735a

Insurance -- Personal injury protection -- Discovery -- Production of documents -- Motion to compel production of surveillance films, photographs, and reports; statements of witnesses taken by insurer; photographs of vehicle damage and scene of accident; estimates of repairs or statements concerning nature and extent of damage to vehicles; writing reflecting insurer's examination of vehicles; claims history reports, and other investigative reports is denied as such documents are privileged -- Motion to compel production of documents reflecting monies paid insurer to company recommending usual and customary reductions in claim is denied as documents are irrelevant -- Motion to compel production of records reflecting money paid in past three years to physician who performed independent medical examination or peer review is denied -- Interrogatories -- Insurer does not have to answer interrogatory requesting information on each medical bill not paid in full -- Request for specification regarding privileges claimed is denied where insurer has already filed privilege log -- Insurer is not required to answer interrogatories seeking identification of computer program used to review claim, description of how program is supposed to work, description of relationship with company that sold or supplied program, identification of person with most knowledge of program and how it is used, list of materials used to train personnel in use of program, list of personnel knowledgeable about technical aspects of program, list of documents that provide technical information on program, description of program database, list of forms associated with program use, list of reports generated by program, and description of computer program license agreement as interrogatories seek privileged information

10 Fla. L. Weekly Supp. 209b

Insurance -- Personal injury protection -- Discovery -- Work product -- Despite work product objection, insurer is compelled to produce photographs showing damage to motor vehicle before any damage was repaired and before vehicle was sold, disposed of or junked -- Insurer's repair estimate is not protected by work product privilege

10 Fla. L. Weekly Supp. 45a

Insurance -- Personal injury protection -- Discovery -- Privilege -- Work product -- Contents of videotape of compulsory exam made at direction of insured's attorney in anticipation of litigation is work product until it is determined that video will be used as evidence at trial -- Motion to compel denied, but insured shall produce video once she determines to use it as evidence or will be precluded from use at trial

10 Fla. L. Weekly Supp. 1021b

Insurance -- Personal injury protection -- Declaratory judgment action filed by provider/assignee seeking declaration that it is entitled to receive PIP log under section 627.736(6)(d) and a “Dec” sheet under section 627.4137 -- Plaintiff does not have right to requested information under these statutes

10 Fla. L. Weekly Supp. 439a

Insurance -- Personal injury protection -- Discovery -- Insurer agrees to provide peer review reports and information on payments made over last 3 years to peer review doctor

10 Fla. L. Weekly Supp. 645b

Insurance -- Discovery -- Insurer's failure to timely respond to interrogatories waived all objections other than privilege objections -- Motion to compel better answers granted

10 Fla. L. Weekly Supp. 842b

Insurance -- Discovery -- Interrogatories -- Insurer's failure to timely respond has resulted in waiver of all objections to interrogatories other than privilege objections -- Motion to compel better answers granted

10 Fla. L. Weekly Supp. 134a

Insurance -- Personal injury protection -- Discovery -- Interrogatories -- Motion to compel better answers -- Although insurer does not currently have information it would need to fully and properly answer questions about number of peer reviews performed and income earned from peer reviews in past year by physician who performed peer review upon which insurer based its denial of claim, insurer is ordered to obtain information from physician and serve better answers to interrogatories

10 Fla. L. Weekly Supp. 439b

Insurance -- Personal injury protection -- Discovery -- Insurer ordered to provide amended answers to interrogatories and amended response to request for production and to provide privilege log to support any objections based on privilege

10 Fla. L. Weekly Supp. 916b

Insurance -- Discovery -- Interrogatories -- Objections to questions regarding doctors who were requested by insurer to conduct medical examinations of plaintiff on the grounds that questions are irrelevant, overbroad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible or relevant evidence are overruled

10 Fla. L. Weekly Supp. 1057a

Insurance -- Personal injury protection -- Discovery -- Objections to requests to produce documents, requests for admissions, and interrogatories seeking information concerning databases and computer programs utilized by insurer to determine reasonableness of charges and amounts allowed on grounds that discovery seeks proprietary materials, confidential research, commercial information, and trade secrets are overruled -- If insurer fails to completely respond to discovery requests, it will be prohibited from relying on or utilizing computer software in its defense

10 Fla. L. Weekly Supp. 384a

Insurance -- Personal injury protection -- Discovery -- Production of documents -- Challenge to order requiring insurer denying claim for cervical videofluoroscopy to produce every peer review and independent medical examination report, recommendation, or opinion to insurer generated by IME physician concerning medical provider's videofluoroscopy for last three years -- Requested information is not irrelevant since purpose is to show possible bias of IME physician -- Discovery order is not overly burdensome where trial court required production of only those reports that insurer already possesses, narrowed the request, and left door open for insurer to request relief after good faith effort -- IME physician's willingness to admit on stand to 99.9% denial rate does not render requested production unnecessary where in deposition testimony IME physician was unable to offer specific numbers of reports or to support the idea that he had even once found test medically necessary and denied keeping copies of his reports such that cross-examination of IME physician would not be adequate substitute for production of reports -- Petition for writ of certiorari dismissed

10 Fla. L. Weekly Supp. 644c

Insurance -- Discovery -- Insurer that failed to respond timely to discovery requests has waived all non-privileged objections thereto -- Insurer is ordered to provide better responses to interrogatories and requests for production and file privilege log for any asserted objections based on privilege

10 Fla. L. Weekly Supp. 974a

Civil procedure -- Discovery -- Failure to comply -- Sanctions -- Due process -- Error to deny motion for sanctions which related to post-judgment discovery violations without affording movant an opportunity to be heard

10 Fla. L. Weekly Supp. 862a

Insurance -- Personal injury protection -- Discovery -- Failure to comply -- Where insurer had insured's application for PIP benefits for prior accident in its possession at time of discovery request for entire PIP file including applications, and insurer did not produce application, which it allegedly did not realize it had, insurer's discovery response was not complete at time it was made -- Test of completeness is not subjective test based on what documents insurer realized it had but objective test of what documents were in insurer's possession -- No merit to insurer's argument that it had no duty to supply application because it was not under continuing duty to supplement response to request to produce where original response was not complete -- Error to find that failure to produce application was cured by disclosure of existence of application by insurer's exhibit list where generic entry for “PIP file” did not disclose existence of application -- Entry for impeachment exhibits did not disclose existence of application where, although it was foreseeable by insurer from insured's deposition that insurer would use application to impeach insured's testimony about prior injuries, insurer's counsel never disclosed existence of application to insured's counsel and misrepresented to insured's counsel that he would only be using medical records, photographs of insured's car, and the insurance policy, lulling insured's counsel into believing no other documents existed and not examining insurer's exhibits -- Although application was document insured had filed, where insured never remembered filing application and did not remember what injuries she listed, there is surprise in fact requiring new trial

10 Fla. L. Weekly Supp. 266b

Insurance -- Personal injury protection -- Discovery -- Depositions -- Treating physician/plaintiff is not entitled to expert witness fee -- While treating physician is an expert as defined by rule 1.390(a), he did not acquire or develop expert knowledge for purposes of litigation, but rather, in course of attempting to make patient well

10 Fla. L. Weekly Supp. 262b

Insurance -- Personal injury protection -- Discovery -- Motion to compel insurer to provide better answers to interrogatories and requests for production relating to database used to determine reasonableness of charges is granted

10 Fla. L. Weekly Supp. 739a

Insurance -- Personal injury protection -- Discovery -- Production of documents -- Interrogatories -- Insurer must produce all documentation and information requested regarding monies paid to and insurer's relationship to company whose computer program is used to process claims and reduce medical bills and physician developer of program, databases used in reduction of bills, money saved by use of program, and errors made by program that is related to any information or documentation insurer intends to rely upon or refer to in its defense

10 Fla. L. Weekly Supp. 733d

Insurance -- Personal injury protection -- Discovery -- Production of documents -- Motion to compel production of surveillance films, photographs, and reports; statements of witnesses taken by insurer; photographs of vehicle damage and scene of accident; estimates of repairs or statements concerning nature and extent of damage to vehicles; writing reflecting insurer's examination of vehicles; claims history reports, and other investigative reports is denied as such documents are privileged -- Motion to compel production of documents reflecting monies paid insurer to company recommending usual and customary reductions in claim is denied as documents are irrelevant -- Motion to compel production of records reflecting money paid in past three years to physician who performed independent medical examination or peer review is denied -- Interrogatories -- Insurer does not have to answer interrogatory requesting information on each medical bill not paid in full -- Request for specification regarding privileges claimed is denied where insurer has already filed privilege log -- Insurer is not required to answer interrogatories seeking identification of computer program used to review claim, description of how program is supposed to work, description of relationship with company that sold or supplied program, identification of person with most knowledge of program and how it is used, list of materials used to train personnel in use of program, list of personnel knowledgeable about technical aspects of program, list of documents that provide technical information on program, description of program database, list of forms associated with program use, list of reports generated by program, and description of computer program license agreement as interrogatories seek privileged information

10 Fla. L. Weekly Supp. 414a

Insurance -- Personal injury protection -- Discovery -- Motion to compel production of documents is denied in part based on finding that responses that insurer has previously produced items or that documents do not exist are sufficient -- Insurer ordered to produce plaintiff's PIP policy and declarations, materials used to train insurer's personnel on how to deal with plaintiff attorneys, insurer's publications on PIP issues distributed to PIP adjusters and/or PIP special investigation unit employees in region, and materials used to train PIP SIU employees and managers in region -- Insurer to provide more specific response on SIU scorecard on plaintiff's PIP claim and savings to insurer for market claim offices that handled plaintiff's PIP claim -- Request for all CCPR and insurer publications for four-year period and documents describing savings to insurer nationally as result of use of MBRS on PIP claims denied -- Insurer ordered to produce document on defense strategies on PIP lawsuits for in camera inspection to determine relevance and any claim of attorney-client or work product privilege

10 Fla. L. Weekly Supp. 905a

Insurance -- Discovery -- Documents -- In action arising out of insurer's reductions and non-payment of medical provider's charges determined not to be reasonable through the use of computer database system, sole issue is reasonableness of medical provider's charges and amounts paid by insurer, and information regarding insurer's general claims handling practice is irrelevant -- Protective order granted -- Claims that information is protected by work product doctrine or attorney-client privilege denied in absence of demonstration of applicability of privileges to specific documents

10 Fla. L. Weekly Supp. 904a

Insurance -- Discovery -- Documents -- In action arising out of insurer's reductions and non-payment of medical provider's charges determined not to be reasonable through the use of computer database system, sole issue is reasonableness of medical provider's charges and amounts paid by insurer, and information regarding insurer's general claims handling practice is irrelevant -- Protective order granted -- Claims that information is protected by work product doctrine or attorney-client privilege denied in absence of demonstration of applicability of privileges to specific documents

10 Fla. L. Weekly Supp. 1001a

Civil procedure -- Discovery -- Insurance -- Notes made by agent, servant and/or employee of defendant which would reflect or pertain to any statements made by plaintiff to that individual -- Amount of bills paid by defendant's insurance company -- Defendant's contention that records are maintained by separate department within defendant's insurance company does not have bearing on this instant proceeding, and defendant is obligated to produce all documentation within its control that is otherwise responsive and not protected by privilege despite fact that other adjusters may have handled different aspects of plaintiff's claim -- Payments made by insurance company and evidence relied upon to support insurer's less than full payment of bills

10 Fla. L. Weekly Supp. 909a

Insurance -- Personal injury protection -- Discovery -- Interrogatories -- Insurer's motion to compel better responses from medical provider to questions about amounts provider accepts from other sources in payment of services is granted -- Where issue in case is reasonableness of medical provider's charges for treatment rendered to insured, insurer must be able to compare fees provider accepts from other sources to evaluate reasonableness of charges billed to insurer, and therefore, questions about amounts accepted from other sources are reasonably calculated to lead to admissible evidence

10 Fla. L. Weekly Supp. 546d

Insurance -- Discovery -- Admissions -- Where insurer failed to respond or object to medical provider's request for admissions in timely manner, request for admissions are deemed admitted

10 Fla. L. Weekly Supp. 268b

Insurance -- Personal injury protection -- Discovery -- Admissions -- Where insurer failed to file a written, timely motion for leave of court to file untimely responses to request for admissions, motion for request for admissions to be deemed admitted is granted

10 Fla. L. Weekly Supp. 268a

Insurance -- Personal injury protection -- Discovery -- Admissions -- Where insurer's failure to file timely responses to request for admissions and failure to file a written, timely motion for leave of court to file untimely responses are not the result of excusable neglect, but of reckless disregard for the rules of civil procedure, motion for request for admissions to be deemed admitted is granted

10 Fla. L. Weekly Supp. 460a

Insurance -- Personal injury protection -- Discovery -- Depositions -- Expert witness fees -- Motion to compel deposition of treating physician without expert witness fee is granted

10 Fla. L. Weekly Supp. 438d

Insurance -- Personal injury protection -- Discovery -- Depositions -- Expert witness fees -- Treating physician is not entitled to expert witness fee for deposition testimony

10 Fla. L. Weekly Supp. 429a

Insurance -- Personal injury protection -- Discovery -- Depositions -- Expert witness fees -- Treating physician giving deposition testimony concerning whether bills are reasonable, related, and necessary, and not testifying as to permanency, is testifying as fact witness -- Motion for protective order and expert witness fees denied

10 Fla. L. Weekly Supp. 428b

Insurance -- Personal injury protection -- Discovery -- Depositions -- Expert witness fees -- Treating physician is not entitled to expert witness fees for deposition testimony

10 Fla. L. Weekly Supp. 428a

Insurance -- Personal injury protection -- Discovery -- Depositions -- Expert witness fee -- Treating physician testifying in deposition to explain charges for treatment billed and policies and procedures employed to determine if charges were reasonable, necessary, and related to covered accident testifies as fact witness, not expert -- Physician ordered to appear for deposition without payment of expert witness fee

10 Fla. L. Weekly Supp. 423a

Insurance -- Discovery -- Depositions -- Expert witness fee -- Treating physician is ordered to appear without fee to be examined regarding facts that are subject matter of lawsuit, but expert witness fee shall be paid before physician is required to answer any question that clearly calls for expert opinion

10 Fla. L. Weekly Supp. 417b

Civil procedure -- Discovery -- Depositions -- Expert witness fees -- Treating physician is entitled to expert witness fee for deposition testimony

10 Fla. L. Weekly Supp. 209a

Insurance -- Personal injury protection -- Discovery -- Depositions -- Medical provider's counsel ordered to submit to full and complete deposition

10 Fla. L. Weekly Supp. 554a

Insurance -- Discovery -- Depositions -- Insurer's representative ordered to appear at deposition with no-fault file

10 Fla. L. Weekly Supp. 211a

Insurance -- Personal injury protection -- Discovery -- Depositions -- Motion for protective order disallowing insurer a second opportunity to depose insured's counsel granted

10 Fla. L. Weekly Supp. 923a

Insurance -- Discovery -- Depositions -- Failure to comply -- Sanctions -- Where insurer's counsel gave numerous instructions not to answer questions during deposition of claims adjuster without citing specific privilege, parties are ordered back to deposition, and insurer is ordered to pay medical provider's attorney's fees and costs for time expended on deposition and motion for sanctions -- Because rule does not specifically authorize fee award to be paid by attorney personally, insurer alone will pay fee award

10 Fla. L. Weekly Supp. 546b

Insurance -- Discovery -- Depositions -- Failure to attend -- Sanctions -- Where insurer filed motion for protective order after plaintiff scheduled deposition but failed to set motion for hearing before deposition date, and deponent failed to appear at deposition, insurer is ordered to pay attorney's fees to medical provider's counsel -- Amount of fees calculated

10 Fla. L. Weekly Supp. 357b

Insurance -- Discovery -- Depositions -- Failure to attend -- Failure to file and schedule motion for protective order -- Sanctions -- Insurer is ordered to pay $500 in sanctions to counsel for medical provider

10 Fla. L. Weekly Supp. 644b

Insurance -- Discovery -- Depositions -- Expert witness fee -- Medical provider's witness is not expert witness entitled to fee for deposition testimony to be restricted to facts, not expert opinions

10 Fla. L. Weekly Supp. 533b

Insurance -- Personal injury protection -- Discovery -- Depositions -- Expert witness fees -- Peer review physician shall be compensated for deposition testimony at hourly rate charged for conducting peer review and preparation of report -- If physician can show that peer review work took less than an hour, she can petition for additional fee -- Medical provider is ordered to forward prepayment of one hour fee to physician at least 72 hours prior to deposition -- Physician will only be entitled to cancellation fee if provider cancels deposition within 72 hours

10 Fla. L. Weekly Supp. 112a

Insurance -- Personal injury protection -- Discovery -- Depositions -- Expert witness fee -- Reasonable hourly rate for deposition of physician who performed peer review is $300

10 Fla. L. Weekly Supp. 751b

Insurance -- Discovery -- Depositions -- Expert witness fee -- Physician member of plaintiff medical provider must submit to deposition without a fee, however questioning will be limited to Beech Street issues and matters related to operation of plaintiff's business

10 Fla. L. Weekly Supp. 836a

Insurance -- Personal injury protection -- Discovery -- Depositions -- Expert witness fee -- Treating physician is entitled to reasonable fee for his deposition testimony

10 Fla. L. Weekly Supp. 828b

Insurance -- Personal injury protection -- Discovery -- Depositions -- Expert witness fee -- Treating physician bringing suit against PIP insurer is not entitled to expert witness fee for deposition testimony -- Question certified

10 Fla. L. Weekly Supp. 654b

Insurance -- Personal injury protection -- Discovery -- Depositions -- Expert witness fee -- Treating physician is not entitled to expert witness fee for deposition testimony

10 Fla. L. Weekly Supp. 651a

Insurance -- Discovery -- Depositions -- Expert witness fee -- Treating physician -- Rule 1.390 requires expert witness fee be paid to non-party treating physician for deposition testimony

10 Fla. L. Weekly Supp. 645c

Insurance -- Personal injury protection -- Discovery -- Depositions -- Expert witness fee -- Where physician president of company which contracts to assist insurer to adjudicate claims was deposed to determine why insurer denied claim and why medical provider was required to have establishment license to lawfully render services, deponent is not entitled to expert witness fee

10 Fla. L. Weekly Supp. 845a

Insurance -- Personal injury protection -- Discovery -- Depositions -- Expert witness fee -- $300 per hour is reasonable hourly rate for peer review physician's deposition testimony

10 Fla. L. Weekly Supp. 646c

Insurance -- Personal injury protection -- Discovery -- Depositions -- Expert witness fee -- Non-party physician to be deposed regarding the references on which he relies to determine reductions, coding, and nonpayment recommendations made to insurer utilizing a computer program physician developed is entitled to witness fee as expert on computer program

10 Fla. L. Weekly Supp. 563a

Insurance -- Discovery -- Depositions -- Expert witness fees -- Medical director of plaintiff medical provider, independent contractor technician who performed diagnostic testing on insured, and referring physician that ordered diagnostic testing are entitled to expert witness fees for their deposition testimony -- Depositions set at home of medical director and billing clerk are moved to office of plaintiff's attorney -- Insurer that has set deposition of witness twice, once as billing clerk and again as owner of plaintiff, may only take deposition in one sitting and may not depose witness in county where she has no contacts -- Depositions of non-party referring physician and technician must occur at their place of work or their choice of location to minimize business interruption

10 Fla. L. Weekly Supp. 845b

Insurance -- Discovery -- Depositions -- Expert witness fee -- Physician whose role is that of fact witness is not entitled to expert witness fee for deposition testimony

10 Fla. L. Weekly Supp. 843c

Insurance -- Discovery -- Depositions -- Expert witness fee -- Fact witnesses -- Depositions can take place without paying expert fee so long as questioning is related to treatment rendered to plaintiff and depositions are limited to one hour -- Failure to adhere to restrictions and limitations will entitle deponents to expert witness fee

10 Fla. L. Weekly Supp. 1061b

Insurance -- Discovery -- Depositions -- Expert witness fees

10 Fla. L. Weekly Supp. 1061a

Insurance -- Discovery -- Depositions -- Exert witness fees

10 Fla. L. Weekly Supp. 1060a

Insurance -- Personal injury protection -- Discovery -- Depositions -- Expert witness fee -- Physician is entitled to expert witness fee at rate of $400/hour for deposition testimony

10 Fla. L. Weekly Supp. 1055a

Insurance -- Discovery -- Depositions -- Expert witness fee -- Physician is ordered to appear for deposition without payment of expert witness fee on condition that questions are limited to medical provider financial and billing matters, including participation in Beech Street

10 Fla. L. Weekly Supp. 1043c

Insurance -- Personal injury protection -- Discovery -- Depositions -- Expert witness fee -- Rule 1.390(a) and (c) requires payment of expert fee for deposition testimony of party or non-party treating physician with respect to medical treatment rendered in PIP suit

10 Fla. L. Weekly Supp. 1037c

Insurance -- Discovery -- Depositions -- Expert witness fee -- Treating physician

10 Fla. L. Weekly Supp. 1037b

Insurance -- Discovery -- Depositions -- Expert witness fee -- Treating physician

10 Fla. L. Weekly Supp. 1021a

Insurance -- Discovery -- Depositions -- Expert witness fee

10 Fla. L. Weekly Supp. 973a

Insurance -- Personal injury protection -- Discovery -- Depositions -- Expert witness fee -- Treating physician -- Where insurer seeks to depose treating physician employed by plaintiff medical provider regarding medical care and treatment provided to insured, trial court did not err in holding that witness is entitled to expert witness fee -- If insurer seeks only factual testimony regarding medical care and treatment, it has option to depose physician's medical records custodian

10 Fla. L. Weekly Supp. 933a

Insurance -- Personal injury protection -- Discovery -- Depositions -- Expert witness fee -- Treating physician who testifies regarding his knowledge of patient's treatment, diagnosis or prognosis is fact witness not entitled to expert witness fee since opinion is based on information acquired from physician's personal observations rather than information provided by a party in anticipation of litigation or in preparation for trial -- Question certified

10 Fla. L. Weekly Supp. 907b

Insurance -- Personal injury protection -- Discovery -- Depositions -- Expert witness fee -- Role of treating physician is that of fact witness not entitled to expert witness fee -- Motion to compel deposition without payment of fee granted

10 Fla. L. Weekly Supp. 565b

Insurance -- Discovery -- Depositions -- Treating physician who will be questioned at deposition as fact witness, not expert, not entitled to expert witness fee

10 Fla. L. Weekly Supp. 553a

Insurance -- Personal injury protection -- Discovery -- Depositions -- Expert witness fees -- Treating physician is entitled to expert witness fee for deposition testimony about care and treatment of insured

10 Fla. L. Weekly Supp. 545a

Insurance -- Discovery -- Depositions -- Expert witness fees -- Treating physician is to be treated as fact witness and appear for deposition without pre-payment of any expert witness fee

10 Fla. L. Weekly Supp. 52a

Insurance -- Personal injury protection -- Discovery -- Depositions -- Expert witness fee -- Hourly rate and cancellation fee set for deposition testimony of physician who conducted independent medical examination -- Prepayment of one hour of fee ordered

10 Fla. L. Weekly Supp. 917c

Insurance -- Discovery -- Depositions -- Bad faith

10 Fla. L. Weekly Supp. 458b

NOT FINAL VERSION OF OPINION
Subsequent Changes at 10 Fla. L. Weekly Supp. 1043a

Insurance -- Personal injury protection -- Civil procedure -- Default -- Excusable neglect -- Unverified, unsubstantiated claim by defendant that parties had informal agreement for indefinite extension on responding to complaint was refuted by way of affidavit filed in opposition to motion to set aside default and was unsupported by any proof or written documentation establishing that extension was ever discussed -- Affidavit of defendant's claims examiner, presented for first time midway through hearing, was untimely and, in any event, contained nothing that satisfied defendant's burden of proving excusable neglect -- Statement that defendant “maintains meritorious defenses to the present action,” unaccompanied by any statement as to what those defenses were, not sufficient to prove that defendant had meritorious defense to plaintiff's claims -- Motion to set aside default denied

10 Fla. L. Weekly Supp. 461c

Insurance -- Personal injury protection -- Default -- Vacation -- Excusable neglect -- Motion to vacate default is denied where insurer made conscious decision not to appear at pretrial conference or respond to complaint

10 Fla. L. Weekly Supp. 475b

Insurance -- Civil procedure -- Default -- Vacation -- Where default was entered by clerk without notice to insurer after insurer filed notice of serving interrogatories, default and judgment based thereon are void -- Motion for rehearing and motion to set aside default judgment which raised for the first time argument that default was entered in violation of due process notice requirement of rule 1.500 was not untimely filed because void judgment may be set aside at any time -- Default vacated

10 Fla. L. Weekly Supp. 436c

Insurance -- Personal injury protection -- Declaratory judgments -- Medical provider properly pled count for declaratory relief where it is alleged that insurer refused provider's numerous requests for PIP log, and due to insurer's dilatory tactics provider is unsure whether there is coverage or whether medical bill was applied to deductible

10 Fla. L. Weekly Supp. 554c

Insurance -- Personal injury protection -- Complaint -- Defects -- Action by insurer against MRI provider and its owner -- There are no allegations of ultimate facts supporting legal conclusion that owner is alter ego of provider -- Although complaint alleges that owner and provider did things to mislead insurer, a debtor, corporate veil is pierced where owner uses corporation to mislead creditors or creates general tort risk to public -- Allegation that owner conspired with herself to mislead plaintiff insurer into believing that MRI provider rendered service is immaterial in that services billed for were actually performed under circumstances that were compensable to insurer's insureds as indemnified persons, and mere fact that insureds permitted payment to provider rather than others involved in work establishes no material harm to insurer -- Unjust enrichment -- Insured has failed to allege circumstances establishing that it would be inequitable for defendants to retain benefits where there are no allegations that MRIs were overpriced, not medically necessary, not related, or not done, and insurer does not assert that insureds were not indemnified for MRIs, that insureds did not want payment made to defendants, or that insurer has obligation to any insured or third party for payment of same money paid to defendants -- Declaratory relief -- There is no bona fide, actual, present practical need for declaration where insurer knows allegations that defendants continue to engage in practices insurer deems unlawful are untrue or cannot make those allegations in good faith because owner testified in deposition that neither she nor MRI provider continue to present MRI claims to PIP insurers and have not done so in years -- Fraud -- Insurer has failed to establish key element that it has sustained damage -- Case style -- There are no allegations of ultimate fact supporting action “for the use and benefits of its insureds” -- Further, because insurer seeks relief that could create unsatisfied obligation owed by insureds to MRI provider, insureds are indispensable parties

10 Fla. L. Weekly Supp. 420b

Declaratory judgments -- Insurance -- Coverage -- Plaintiff and defendant seeking determination of whether insurance policies preclude coverage for underlying action -- Motions for summary judgment denied where genuine issues of material fact exist

10 Fla. L. Weekly Supp. 159b

Insurance -- Central air-conditioning unit compressor is fixture, not personalty covered by insurance policy

10 Fla. L. Weekly Supp. 731b

Insurance -- Coverage -- Denial -- Examination under oath -- Dispute between medical provider and insurer -- Medical provider which accepted assignment from insured was not required to submit to EUO

10 Fla. L. Weekly Supp. 756a

Insurance -- Personal injury protection -- Counsel -- Disqualification -- No abuse of discretion in denial of motions to disqualify attorney who previously represented insurer in PIP litigation involving section 627.736(10) and preferred providers where such litigation does not involve unique issues or strategies inasmuch as only real issue is interpretation of PIP statute, matters in which attorney formerly represented insurer were not substantially related to current cases, and there was no use by attorney of confidential information

10 Fla. L. Weekly Supp. 265a

Insurance -- Personal injury protection -- Attorneys -- Disqualification -- Prior employment by insurer -- Motion to disqualify denied

10 Fla. L. Weekly Supp. 206a

Insurance -- Personal injury protection -- Counsel -- Disqualification -- Conflict of interest -- Prior representation of adverse party -- Although PIP case at issue is same type of case as those in which insured's attorney represented insurer as its in-house counsel, where there has been no showing that facts and circumstances are the same or substantially related, motion to disqualify is denied

10 Fla. L. Weekly Supp. 43a

Insurance -- Personal injury protection -- Attorneys -- Disqualification -- Where attorney who previously worked for a law firm that was staff counsel for insurer was not privy to confidential information and strategy which would breach Rules of Professional Conduct and did not use confidential documents or information prepared by insurer in the preparation of her pleadings, motion to disqualify attorney from representing medical providers is denied

10 Fla. L. Weekly Supp. 41b

Insurance -- Personal injury protection -- Attorneys -- Disqualification -- Conflict of interest -- PIP cases involving reduction of medical bills pursuant to preferred provider agreements in which attorney previously represented insurer are not same matter as current cases in which attorney represents assignees where insureds, assignees, dates, and venue are different, and PPO agreements were not crux of prior cases as they are in current cases -- Insurer failed to prove that attorney was privy to confidential information that creates a conflict requiring her disqualification where only opportunity for acquiring confidential information was brainstorming session at which no confidential defense strategy was discussed -- Motion to disqualify denied

10 Fla. L. Weekly Supp. 40a

Insurance -- Personal injury protection -- Attorneys -- Disqualification -- Motion to disqualify attorney who previously represented insurer in PIP cases is denied where insurer failed to establish that matter in which attorney represented insurer was same or substantially related to matter in current cases, or that attorney obtained confidential information when representing insurer that will be used and place insurer at a disadvantage in current cases

10 Fla. L. Weekly Supp. 391a

Insurance -- Personal injury protection -- Attorneys -- Disqualification -- Conflict of interest -- Challenge to order denying motion to disqualify law firm representing medical providers because firm employs attorney formerly employed by insurer as claims adjuster -- Appearance of impropriety alone does not lead to disqualification, and record refutes claim that appearance of impropriety was clear -- Where insurer failed to prove that former claims adjuster was exposed to confidential information or that cases at bar are “substantially related” to cases worked on as claims adjuster, insurer was not entitled to disqualification of law firm

10 Fla. L. Weekly Supp. 198a

Insurance -- Personal injury protection -- Counsel -- Disqualification -- Conflict of interest -- Motions to disqualify attorney who worked for insurer in nonattorney claims litigation specialist position and is now employed by law firm representing medical provider in actions against insurer -- Where there is no evidence that attorney has divulged confidential or privileged communications to law firm or any other third party, insurer has failed to demonstrate that any information to which attorney had access as a claims litigation specialist gives him an unfair advantage while working for law firm, attorney never worked on current cases while employed by insurer, and insurer's extraordinary delays in filing motions for disqualification are deemed to constitute waiver, motions to disqualify are denied

10 Fla. L. Weekly Supp. 718b

Insurance -- Personal injury protection -- Where, due to valid assignment of benefits to medical provider, insured had no cause of action at time he filed original complaint, and insurer paid medical bills and interest prior to filing of amended complaint joining medical provider as plaintiff, medical provider has no cause of action against insurer -- Amended complaint does not relate back to date of filing first complaint where amended complaint has effect of adding new party, medical provider is not sufficiently related to insured to come within narrow exception to rule against relation back when amended complaint has effect of adding new party, and insurer would be prejudiced if relation back were allowed because insurer would be exposed to liability for attorney's fees for complaint that was never valid when filed

10 Fla. L. Weekly Supp. 267b

Insurance -- Maritime law -- Salvage -- Insurer's motion to strike pleading for failure to name correct party is denied and plaintiff is allowed to substitute correct insurer -- Jurisdiction -- Savings to suitors clause of federal statute provides Florida courts with concurrent jurisdiction over salvor's in personam claim -- State nonjoinder of insurers statute does not bar claim against insurer under controlling maritime and salvage law

10 Fla. L. Weekly Supp. 806a

Insurance -- Personal injury protection -- Class action against insurer alleging withdrawal of medical payments without first obtaining report of physician licensed under same chapter as treating physician whose treatment is sought to be withdrawn, reduced, or denied and failure to pay statutory interest when payment of medical bills was made after 30 days from date insurer received notice of fact of loss and amount of bill -- Certification of class -- Numerosity requirement is satisfied by stipulation -- Commonality is satisfied by consistency of common factual circumstances that plaintiff and class were injured in automobile accidents, and plaintiff and class maintained PIP coverage through insurer that is identical as to no-fault coverage -- Typicality is satisfied where plaintiff's claim is identical to claims of class members -- Plaintiff who has retained counsel experienced in mass tort and class action litigation and has no interest antagonistic to that of class meets adequate representation requirement -- Class is appropriate for certification under rule 1.220(b)(3) where numerous issues common to the class predominate over individual cases, and class action is superior to other available methods for fair and efficient adjudication of this controversy

10 Fla. L. Weekly Supp. 470a

Insurance -- Personal injury protection -- Coverage -- Denial -- Cancellation of policy -- Notice -- No error in instructing jury that issue for determination was whether insurer proved it mailed notice of cancellation of policy for nonpayment of premium and in refusing to give proposed instruction that issue was whether insured received cancellation notice -- No error in denial of request to instruct jury as to whether insured's agent received cancellation notice and denial of motion of directed verdict on this point where issue was raised for first time at charge conference of second trial after both parties had rested

10 Fla. L. Weekly Supp. 819a

Insurance -- Marine -- Declaratory judgment action asking court to rule that policy of marine insurance covered sinking of commercial fishing vessel -- Motion for partial summary judgment claiming that two marine insurance brokers named along with insurance underwriters as defendants acted as agents for insured is denied where, although as general principle insurance broker is agent of insured, in this case it is unsettled and indistinct that wholesale broker acted as an insurance broker, and there appears to be complex relationship between brokers and insurance underwriter

10 Fla. L. Weekly Supp. 227b

Insurance -- Med Pay -- Personal injury protection -- Med Pay insurance claims are governed by provisions of insurance policy affording coverage, not statute regulating mandatory PIP insurance -- Error to grant summary judgment finding insurer not liable for claim for Med Pay benefits due to medical providers' failure to comply with statutory requirement to submit bills within 30 days of treatment where Med Pay policy requires only that bills be reasonable medical expenses for bodily injury for services furnished within three years of accident

10 Fla. L. Weekly Supp. 794a

Insurance -- Automobile -- Cancellation -- Nonpayment of premium -- Motion to dismiss class action complaint which alleges that despite written contracts for insurance at set price marked paid in full, insurer cancelled policy and binder for failure to make additional payments -- Contracts -- Regardless of insurer's denomination of additional payments demanded as “previous balance,” apparent unilateral action to increase plaintiff's contract consideration is illegal, and plaintiff has alleged necessary legal requisites for breach of contract -- Three-option letter -- Plaintiff has stated claim for insurer's failure to send three-option letter prior to cancellation of policy which was in effect for more than sixty days, but not as to binder that was in effect for less than sixty days -- Motion for more definite statement as to dates of claims by members of class other than plaintiff is granted

10 Fla. L. Weekly Supp. 985b

Insurance -- Attorney's fees -- Insured was not required to specifically plead statutory or contractual basis for claim for attorney's fees

10 Fla. L. Weekly Supp. 840b

Insurance -- Attorney's fees -- Where insurer's motion for relief from order determining amount of attorney's fees, contending that interest on fee award should run from time amount is determined rather than date entitlement to fees is fixed, was totally devoid of merit, and no reasonable inquiry was made into current state of law prior to filing motion, motion is improper contest of plaintiff's entitlement to prejudgment attorney's fees -- Plaintiff is awarded attorney's fees for time spent responding to motion

10 Fla. L. Weekly Supp. 1060c

Insurance -- Personal injury protection -- Small claims -- Proposal for settlement -- Motion to apply rule 1.442, Florida Rules of Civil Procedure, denied

10 Fla. L. Weekly Supp. 1060b

Insurance -- Personal injury protection -- Motion to strike proposal for settlement filed pursuant to Rule of Civil Procedure 1.442 and section 768.79 granted -- Defendant has not moved for application of any additional rules of civil procedure to instant small claims proceeding -- Small claims actions are excluded from definition of civil actions and are not governed by any rule or statute not contemplated by Florida Small Claims Rules

10 Fla. L. Weekly Supp. 454a

Attorney's fees -- Insurance -- Personal injury protection -- Prevailing insured -- Amount of attorney's fees and expert witness fees calculated

10 Fla. L. Weekly Supp. 114a

Insurance -- Personal injury protection -- Where underlying issues in PIP case have been resolved, proposal for settlement for attorney's fees and costs only is improper -- Proposal stricken

10 Fla. L. Weekly Supp. 718a

Insurance -- Personal injury protection -- Attorney's fees -- Proposal for settlement -- Motion to strike insurer's proposal for settlement inclusive of PIP benefits, interest, penalties, attorney's fees, and costs is denied where proposal is not improper for failing to state amount attributable to attorney's fees, and insurer is not precluded from recovering attorney's fees

10 Fla. L. Weekly Supp. 726b

Insurance -- Personal injury protection -- Attorney's fees -- Proposal for settlement -- Small claims -- Where there is no order or stipulation invoking rules of civil procedure in action for PIP benefits in small claims court, proposal for settlement is improperly filed -- Motion to strike proposal granted

10 Fla. L. Weekly Supp. 637a

Criminal law -- Driving under influence -- Jury instructions -- Lesser included offenses -- Court finds that defendant was entitled to jury instruction on lesser included offense of criminal attempt at his trial for driving under the influence, even though the state presented prima facie case of DUI , and it was uncontested that defendant was actually driving motor vehicle and that defendant had been drinking beer and had refused to submit to breath test -- Motion for new trial granted

10 Fla. L. Weekly Supp. 572a

Insurance -- Personal injury protection -- Attorney's fees -- Insured's challenge to order awarding attorney's fees to insurer -- Trial court need not set forth written findings as to criteria used to determine reasonableness of fee -- Further, appellate court cannot find that criteria were not considered since appellate record does not contain transcript or proper substitute -- Although decision on merits in favor of insurer has been overturned by subsequent appellate decisions, trial judge had no discretion but to award fees to insurer

10 Fla. L. Weekly Supp. 877d

Attorney's fees -- Insurance -- Personal injury protection -- Contingency risk multiplier -- Application of 2.0 multiplier is supported by competent substantial evidence of expert's testimony that cases in which insurer has received written demand from lawyer but refused to pay PIP claim without stated reason are considered dangerous for successor counsel and will not be taken without the ability to petition court for contingency fee multiplier and opinion of expert and insured's counsel that likelihood of success was 50% or less at outset -- Award of attorney's fees for time spent litigating entitlement to multiplier is consistent with intent of section 627.428(1) and within trial court's discretion

10 Fla. L. Weekly Supp. 120bNOT FINAL VERSION OF OPINION
Subsequent Changes at 11 Fla. L. Weekly Supp. 345e

Attorney's fees -- Offer of judgment -- Insurance -- Personal injury protection -- PIP insurer is entitled to award of attorneys' fees pursuant to proposal for settlement/offer of judgment statute, section 768.79, regardless of fact that litigation is small claims case

10 Fla. L. Weekly Supp. 566d

Insurance -- Attorney's fees -- Offer of judgment -- Motion to preclude attorney's fees and costs is granted where insured accepted insurer's offer of judgment that made no mention of attorney's fees, and there was no motion to strike offer prior to bringing of motion to preclude fees

10 Fla. L. Weekly Supp. 361a

Insurance -- Personal injury protection -- Attorney's fees -- Justiciable issues -- Voluntary dismissal -- Insurer is entitled to section 57.105(1) attorney's fees where insured knew or should have known that continued litigation over claim for two medical providers' bills would be pointless several months prior to voluntary dismissal when insurer filed affidavit of one provider's records custodian attesting to assignment which insured did not dispute signing, insurer advised that benefits had been exhausted by payment of subsequent bills, and insured learned that second provider's bill had not been timely submitted to insurer because provider mailed it to the wrong carrier -- Notice requirement of 57.105, as amended effective July 1, 2002, creates new obligation on party seeking fees which is not applicable to sanction for conduct which occurred before effective date of statute

10 Fla. L. Weekly Supp. 373a

Insurance -- Personal injury protection -- Attorney's fees -- Justiciable issues -- Where dissolved corporation rather than medical provider was named as party plaintiff in suit seeking PIP benefits for videofluoroscopy performed by chiropractor not licensed in Florida, there was complete absence of justiciable issues of fact or law at time suit was filed -- Medical provider and its principals, although not named parties are individually responsible for insurer's attorney's fees and costs -- Law firm for medical provider is liable for fees and costs for failing to act in good faith based upon client's representations in filing suit where firm always knew identity of client, firm knew there were several different provider names in fee agreements and as named plaintiffs in PIP suits and knew correct name of provider, and firm knew or should have known that test was performed by an unlicensed doctor rather than doctor listed as provider on claim form, such that simple inquiry would have revealed that law firm named the incorrect party plaintiff in suit and that videofluoroscopy was performed in violation of Florida law and was, therefore, not eligible for payment under PIP statute

10 Fla. L. Weekly Supp. 733b

Attorney's fees -- Justiciable issues -- Where statement of claim filed by plaintiff was facially deficient to state cause of action, defendant is entitled to award of attorney's fees notwithstanding plaintiff's voluntary dismissal

10 Fla. L. Weekly Supp. 643b

Attorney's fees -- Justiciable issues -- Insurance -- Personal injury protection -- Insurer awarded attorney's fees pursuant to sections 768.79 and 57.105 in action brought by provider for failure to pay PIP benefits and/or failure to make payments within thirty days based on finding that reasonable presuit investigation would have revealed that all benefits due were paid and policy limits exhausted nine months prior to filing of action

10 Fla. L. Weekly Supp. 701a

Insurance -- Personal injury protection -- Attorney's fees -- Appellate -- Justiciable issues -- Appellate court has jurisdiction to entertain section 57.105 motion for attorney's fees despite insurer's voluntary dismissal of petitions for writ of certiorari -- Where insurer had no basis to seek disqualification of co-counsel of law firm representing various plaintiffs in actions against insurer on ground that law firm had hired attorney who was formerly employed by insurer as claims litigation specialist, and insurer knew or should have known that 73 petitions for writ of certiorari contesting denials of motions for disqualification and motions to stay proceedings to allow insurer to investigate and corroborate motions for disqualification were not supported by material facts necessary to establish claim and application of law to those facts, it does not appear that petitions were filed in good faith, but rather, for purpose of delay -- Attorney's fees awarded

10 Fla. L. Weekly Supp. 926b

10 Fla. L. Weekly Supp. 926a

Attorney's fees -- Justiciable issues

10 Fla. L. Weekly Supp. 566e

Insurance -- Attorney's fees -- Justiciable issues -- Insurer is awarded attorney's fees where medical provider knew or should have known as of pre-trial conference that case was not supported by facts or law since bills at issue were applied to deductible

10 Fla. L. Weekly Supp. 531c

Insurance -- Personal injury protection -- Standing -- Assignment -- Validity -- Assignment of benefits to medical provider and medical provider's assignment, in turn, to recovery specialists is not prohibited

10 Fla. L. Weekly Supp. 547e

Insurance -- Attorney's fees -- Where medical provider came to fee hearing without fee expert or otherwise being prepared, motion for continuance is granted, but medical provider's attorney is ordered to compensate insurer for cost of preparing for and appearing at hearing

10 Fla. L. Weekly Supp. 464a

Insurance -- Venue -- Motion for change of venue granted -- Motion for assessment of fees denied -- Although there was no logical reason for medical provider to file suit in Collier County, it had legal right to do so

10 Fla. L. Weekly Supp. 574a

Insurance -- Personal injury protection -- Attorney's fees -- Because insured's affidavit stating that she does not recall assigning her benefits and did not intend to do so does not contradict medical provider's assertion that insured did assign her PIP benefits to his office, trial court had competent substantial evidence to support finding that there was an assignment and that medical provider is entitled to award of attorney's fees

10 Fla. L. Weekly Supp. 368a

Insurance -- Personal injury protection -- Attorney's fees -- Discovery -- Insurer is ordered to produce all invoices for services rendered and costs incurred by counsel and all time records of counsel where records will assist in reaching appropriate decision on insured's claim for attorney's fees and costs

10 Fla. L. Weekly Supp. 366a

Insurance -- Attorney's fees -- Discovery -- Depositions -- Motion to depose medical provider's attorney regarding attorney's fees denied as “overkill”

10 Fla. L. Weekly Supp. 108a

Attorney's fees -- Insurance -- Personal injury protection -- Calculation of reasonable attorney's fees -- Contingency risk multiplier is appropriate where insured would have faced substantial difficulties in finding competent counsel in relevant market without possibility of multiplier because insured was at fault in accident and her own personal injury case had little or no value -- Where likelihood of success was even at outset of case, multiplier of 1.5 is awarded -- Expert witness fee awarded -- Insured is awarded prejudgment interest on settlement, and her counsel is awarded prejudgment interest on attorney's fees and costs

10 Fla. L. Weekly Supp. 655a

Insurance -- Personal injury protection -- Attorney's fees -- Contingency risk multiplier -- Fact that exposure of miscalculation following adjuster's deposition increased likelihood of success does not affect award of multiplier, which is based on likelihood of success at outset of case when miscalculation was obscure -- Given strength of insurer's PPO/HMO defense, likelihood of success at outset was less than 50% -- Limited pool of attorney's conversant with PPO/HMO defense along with prospect of protracted and uncompensated attorney's fees litigation, among other factors, indicates multiplier of 2 is essential for medical provider to obtain effective counsel

10 Fla. L. Weekly Supp. 722a

Insurance -- Attorney's fees -- Contingency risk multiplier -- Where likelihood of success for medical provider was even at outset, multiplier of 1.75 should be applied -- Fees of expert witness and costs awarded

10 Fla. L. Weekly Supp. 550a

Insurance -- Life -- Attorney's fees -- Attorney is entitled to pre-suit fees where insurer had already unequivocally denied coverage and reiterated denial prior to attorney's involvement -- Contingency risk multiplier -- Where accidental death benefit of elderly insured, who had several serious health conditions for which he took blood thinning agent and who died due to loss of blood following surgery for leg fracture, excluded coverage if death was contributed to by sickness or its medical or surgical treatment, attorneys could not mitigate risk of non-recovery, standard 40% fee contract would not adequately compensate attorneys, risk was substantial and success was unlikely at outset, and attorneys could not have predicted that claims adjuster would cause insurer to concede case by admitting that insurer had repeatedly violated fair claims standards, multiplier of 2.5 is appropriate -- Appropriate market rates for attorneys determined -- Time spent to obtain entitlement to attorney's fees is compensable -- Costs, including witness fee of attorney's fees expert, awarded

10 Fla. L. Weekly Supp. 549a

Insurance -- Personal injury protection -- Attorney's fees -- Attorney's pre-suit time spent in direct response to insurer's coverage denial is compensable -- Contingency risk multiplier -- Fees should be enhanced for achievement of excellent results where insured fully recovered PIP coverage plus interest -- Where insured had pure contingency risk contract, case was not run-of-the-mill PIP case but a complete denial of coverage based on insured's failure to list son on application, there was even chance of success at outset, and it would have been difficult if not impossible for insured to get proper legal representation without use of contingency contract and possibility of multiplier, multiplier of 2.0 is appropriate -- Expert witness fees, costs, and prejudgment interest awarded

10 Fla. L. Weekly Supp. 535a

Insurance -- Attorney's fees -- Contingency risk multiplier -- Application of contingency risk multiplier is not appropriate in case -- If multiplier were appropriate, multiplier of 1.0 should be applied where likelihood of success was more likely at outset of case involving UCR reductions in medical bills -- Costs and expert witness fee awarded

10 Fla. L. Weekly Supp. 462b

Attorney's fees -- Insurance -- Personal injury protection -- Prevailing party -- Costs including postage, but excluding photocopies and faxes, are awarded -- Contingency risk multiplier -- Where likelihood of insured prevailing was more than 50% at outset given quality of claim and counsel but case was not “run of the mill” due to insurer's failure to give any explanation for nonpayment of bill, insurer's after-the-fact explanation that it had negligently mishandled bill does not affect assessment of potential for success, which is measured at outset of case -- Holding in Palma, allowing recovery for time spent litigating entitlement to attorney's fees but not time spent litigating amount of fees, does not preclude consideration of prospect of extensive unremunerated attorney's fees litigation that affects client's ability to retain effective counsel in determining multiplier -- Multiplier of 1.5 awarded -- Expert witness fees awarded -- Question certified

10 Fla. L. Weekly Supp. 452a

Attorney's fees -- Insurance -- Personal injury protection -- Calculation of attorney's fees and costs -- $300 per hour is proper market rate for experienced board certified PIP lawyer, $250 per hour is proper hourly rate for attorney with less PIP expertise, and $90 per hour is reasonable rate for paralegal -- Contingency risk multiplier -- Application of multiplier is appropriate where it would have been difficult if not impossible to get proper legal representation without use of contingency contract and possibility of multiplier -- Where likelihood of success for insured at outset was slightly better than 50/50, and consequences to insured of loss were high because fact that case was “battle of experts” made it expensive and insured faced owing costs to insurer if he lost, multiplier of 1.5 is awarded -- Costs and expert witness fees awarded

10 Fla. L. Weekly Supp. 269a

Insurance -- Personal injury protection -- Attorney's fees -- Prevailing medical provider -- Contingency risk multiplier of 1.5 is appropriate where likelihood of success was even at outset of case -- Expert witness fees and costs awarded

10 Fla. L. Weekly Supp. 64a

Insurance -- Personal injury protection -- Attorney's fees -- Reasonable hourly rate and reasonable number of hours determined, including hours spent litigating motion to disqualify medical provider's counsel -- Contingency risk multiplier of 2 is appropriate where chance of success was even at time case was initiated

10 Fla. L. Weekly Supp. 63b

Insurance -- Personal injury protection -- Attorney's fees -- Reasonable hourly rate and reasonable number of hours determined, including hours spent litigating motion to disqualify medical provider's counsel -- Contingency risk multiplier of 2 is appropriate where chance of success was even at time case was initiated

10 Fla. L. Weekly Supp. 63a

Insurance -- Personal injury protection -- Attorney's fees -- Reasonable hourly rate and reasonable number of hours expended determined -- Medical provider is entitled to payment for time spent litigating motion to disqualify counsel withdrawn on day of hearing -- Contingency risk multiplier -- Medical provider is entitled to contingency risk multiplier of 1.50

10 Fla. L. Weekly Supp. 62b

Attorney's fees -- Justiciable issues -- Insurance -- Personal injury protection -- Attorney's fees awarded pursuant to section 57.105 for time spent on petition for writ of certiorari and disqualification -- Application of contingency risk multiplier of 2 is warranted

10 Fla. L. Weekly Supp. 368b

Insurance -- Attorney's fees -- Contempt -- Court, sua sponte, finds insurer in contempt where counsel for insurer failed to comply prior to attorney's fees hearing with prehearing order requiring insurer to respond in writing to each item of fees and costs requested by insured within ten days of receipt of time records -- Insurer and counsel are ordered to pay insured's attorney's fees and expert witness fees necessitated by failure to comply with order -- Insurer is ordered to comply with prehearing order or be subject to additional sanctions and possible default on motion to tax fees and costs

10 Fla. L. Weekly Supp. 533a

Insurance -- Attorney's fees -- Interest -- Post-suit payment of medical bill is confession of judgment which waived any potential defenses that insurer could have asserted -- Summary judgment granted in favor of plaintiff as to payment of the bill and entitlement to interest on late payment, attorney's fees, and costs -- Plaintiff's motion for summary judgment denied as to insurer's termination of chiropractic benefits following compulsory medical examination pending additional discovery and inventory of record evidence

10 Fla. L. Weekly Supp. 478a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 10 Fla. L. Weekly Supp. 679a

Insurance -- No error in denying insurer's motion for summary judgment where there remained disputed issues of material fact -- Trial court's failure to consider affidavit of insurance representative submitted by insurer in support of its motion for summary judgment, although technical error, was harmless where insurer confessed judgment on only remaining claim -- Attorney's fees -- Insurer's motion for appellate fees is denied -- Even if insurer were prevailing party, motion for fees was tardy, as was reply brief with which motion was filed

10 Fla. L. Weekly Supp. 959a

Insurance -- Personal injury protection -- Attorney's fees -- Appeals -- Consolidated appeals by insurer and insured -- Jurisdiction -- Trial court lacked jurisdiction to enter amended final judgments after notice of appeal of original final judgments was timely filed where there was no request to appellate court to transfer or relinquish jurisdiction to trial court to amend original final judgments, and there was no motion for rehearing or motion to amend final judgments pending at time appeal was filed -- Appellate court will consider only original final judgments -- Insurer's appeal -- Contingency risk multiplier -- Where insurer challenged insured's entitlement to multiplier in its initial brief and then acknowledged in reply brief prior admission that insured was entitled to multiplier but for first time challenged amount of multipliers awarded, appellate court declines to consider argument disputing range of multipliers awarded -- Appellate fees -- Prevailing insured is entitled to award of attorney's fees under sections 627.428 and 627.736(8) -- Justiciable issues -- Despite fact that insurer's argument that trial court's conclusions that insured's attorneys were entitled to multipliers is not supported by record is itself not supported by record, appeal was not frivolous when filed in absence of authority establishing exact threshold of evidence required to support award of multiplier -- However, appeal became frivolous after insurer conceded prior admission that insured's attorneys were entitled to multipliers -- Fees awarded from date of reply brief -- Motion for award of attorney's fees based on bad faith of insurer in withholding payment of undisputed lodestar fees, interest, and costs is denied where insured fails to identify what services were provided and types of fees he incurred as result of alleged misconduct -- Insured's appeal and cross-appeal -- Costs -- No abuse of discretion in failure to award start up costs in one of five suits filed by insured when additional medical expenses and bills became due subsequent to filing of initial suit where insured fails to identify any record evidence reflecting that start up costs were incurred and reasonably necessary, and insurer disputed start up costs in all suits subsequent to initial suit -- Discovery -- Failure to comply -- No error in denial of motion to tax supplemental fees and costs incurred due to insurer's failure to make admissions as denial pertains to last three cases filed, in which there is no evidence of requests for admissions -- No abuse of discretion in denial of motion to tax supplemental fees and costs as it pertains to first three cases filed where, although insurer denied market required multiplier and that attorneys were unable to mitigate risk of nonpayment, it admitted insured's attorneys were entitled to multiplier and that time spent by attorneys was reasonable and necessary -- Insured is not entitled to supplemental fees and costs for insurer's failure to admit that hourly rates were reasonable where hourly rates were not hotly contested and central issues of case, and there is no evidence that insurer's denial of reasonableness of rates was made in bad faith or that fact was known with certainty at time admissions were requested -- Orders denying supplemental fees and costs are affirmed despite trial court's failure to make findings of fact in support of denials and absence of transcript of hearing showing oral findings where record supports trial court's denials -- Insured's request for appellate fees pertaining to his appeal is denied where, because insured's request for supplemental fees and costs was made as a discovery sanction, it is not claim under insurance policy within scope of section 627.428

10 Fla. L. Weekly Supp. 81a

Attorney's fees -- Insurance -- Appellate fees

10 Fla. L. Weekly Supp. 424a

Insurance -- Disability -- Refusal to pay benefits -- Attorney's fees -- Court-awarded fee cannot exceed maximum permitted under contingent fee contract -- Contract with insured limited amount of attorney's fees to one-third of settlement, regardless of court's finding that reasonable fee would have been much higher without contract's limiting language

10 Fla. L. Weekly Supp. 590a

Insurance -- Attorney's fees -- Justiciable issues -- Where insurance benefits were exhausted long before suit was filed, suit was frivolous, and insurer is entitled to attorney's fees -- Error to award attorney's fees for period after date of entitlement hearing -- Appellate fees -- Where insurer prevailed on issue of entitlement to fees but did not clearly prevail on issue of amount of fees, insurer will only be entitled to appellate fees if it prevails on issue of amount in trial court

10 Fla. L. Weekly Supp. 1039a

Insurance -- Personal injury protection -- Attorney's fees -- Amount -- Hourly rate of $300 is reasonable -- Contingency risk multiplier -- Where expert testified that relevant market requires contingency fee multiplier to obtain competent counsel in PIP claims such as medical provider's case, and provider's chances of success was approximately even at outset of case, multiplier of 1.5 is appropriate -- Costs and expert witness fee awarded

10 Fla. L. Weekly Supp. 1019bNOT FINAL VERSION OF OPINION
Subsequent Changes at 11 Fla. L. Weekly Supp. 139a

Insurance -- Attorney's fees

10 Fla. L. Weekly Supp. 564a

Attorney's fees -- Insurance -- Calculation of attorney's fees, expert witness fees, and costs -- Fees awarded to expert witness who prepared to testify at hearing cancelled due to insurer's failure to comply with court's order preliminary to hearing on motion to tax costs and award attorney's fees

10 Fla. L. Weekly Supp. 124c

Insurance -- Attorney's fees -- Reasonable attorney's fee and expert witness fee set

10 Fla. L. Weekly Supp. 50a

Insurance -- Personal injury protection -- Attorney's fees -- Reasonable hourly rate and reasonable number of hours expended determined -- Contingency risk multiplier of 2.0 is appropriate based on novel issue of medical necessity of x-ray/video fluoroscopy diagnostic test

10 Fla. L. Weekly Supp. 132b

Insurance -- Personal injury protection -- Dispute between medical provider and insurer -- Where insured cooperated to some degree with investigation and processing of claim by completing and submitting application for PIP benefits and driver's statement and submitting to chiropractic independent medical examination and medical doctor IME, and insured and her counsel appeared at examination under oath but requested that EUO be conducted with co-claimant present or insurer provide evidence of policy condition requiring that EUO be conducted separately, there remains genuine issue of material fact as to whether insured breached condition of policy requiring attendance at EUO as condition precedent to suit -- Insurer's motion for summary judgment denied

10 Fla. L. Weekly Supp. 132a

Insurance -- Personal injury protection -- Dispute between medical provider and insurer -- Where insured cooperated to some degree with investigation and processing of claim by completing and submitting application for PIP benefits and driver's statement and submitting to chiropractic independent medical examination and medical doctor IME, and insured and her counsel appeared at examination under oath but requested that EUO be conducted with co-claimant present or insurer provide evidence of policy condition requiring that EUO be conducted separately, there remains genuine issue of material fact as to whether insured breached condition of policy requiring attendance at EUO as condition precedent to suit -- Insurer's motion for summary judgment denied

10 Fla. L. Weekly Supp. 159c

Insurance -- Personal injury protection -- Dispute between medical provider and insurer -- Examination under oath -- No error in granting summary judgment based on insured's failure to attend six EUOs where only evidence of reasonableness of noncompliance with policy requirement to attend EUO was unsubstantiated, untimely filed, self-serving hearsay statement attributing noncompliance to communications breakdown between insured and her former attorney

10 Fla. L. Weekly Supp. 366e

Insurance -- Failure to comply with pretrial order -- Sanctions -- Where insurer's original pretrial catalogue failed to comply with court order, insurer failed to comply with order to file amended catalogue with stipulations of fact, and court finds failure to comply is not isolated incident, motion to strike insurer's witness and exhibit list is granted -- Because insurer has no evidence to present on remaining issue of failure of insured to appear for examination under oath, insured is entitled to judgment as matter of law -- Insured would be entitled to judgment as matter of law even if insurer's witnesses were not stricken because undisputed facts in insured's statement of stipulated facts reveal that insurer was in breach of contract prior to and at time and date of scheduled examination under oath

10 Fla. L. Weekly Supp. 858a

Insurance -- Summary judgment -- Factual issues -- Error to enter summary judgment where there exist material issues of fact concerning whether insureds refused to attend required examination under oath

10 Fla. L. Weekly Supp. 449a

Insurance -- Personal injury protection -- Insured is required to submit to examination under oath even though EUO was requested subsequent to suit being filed because EUO requirement is material term of insured's policy -- Further, failure to appear at EUO would violate “cooperation clause” of insured's policy -- Insured's agreement to sit for deposition following suit did not satisfy spirit of policy mandating EUO -- Motion for protective order denied

10 Fla. L. Weekly Supp. 830a

Insurance -- Personal injury protection -- Coverage -- Denial -- Failure to attend examination under oath -- Insurer's motion for summary judgment based on insured's failure to submit to EUO is denied where policy provision requiring insured to give written proof of claim “and/or” submit to EUO is ambiguous as to whether only written notice of claim is required, only EUO is required, or both are required -- Where insurer does not dispute that reasonable notice of claim was given, medical bills were received, and insurer failed to pay or give reason for not paying within thirty days, and parties stipulated that claim was for covered loss, summary judgment in favor of insured is granted

10 Fla. L. Weekly Supp. 843d

Insurance -- Personal injury protection -- Coverage -- Denial -- Failure to attend examination under oath -- Assignee claiming as omnibus insured was not required to attend EUO under policy requiring “named insured” to submit to EUO -- Summary judgment granted in favor of medical provider as to affirmative defense of failure of condition precedent

10 Fla. L. Weekly Supp. 642c

Insurance -- Standing -- Assignment -- Validity -- Document which fails to transfer all interests under insurance contract and results in insured remaining directly and fully responsible to medical provider for bills is direction to pay notwithstanding provision stating insured assigns benefits -- Summary judgment granted in favor of insurer

10 Fla. L. Weekly Supp. 641b

Insurance -- Standing -- Assignment -- Validity -- Assignment is valid despite not stating name of insurer

10 Fla. L. Weekly Supp. 920b

Insurance -- Personal injury protection -- Standing -- Assignment -- Validity -- Simultaneous execution of assignment and direction to pay does not render documents void

10 Fla. L. Weekly Supp. 466a

Insurance -- Personal injury protection -- Small claims -- Standing -- Assignment -- Validity -- Assignment is valid despite language indicating that insured remains ultimately responsible for all charges incurred

10 Fla. L. Weekly Supp. 465c

Insurance -- Personal injury protection -- Small claims -- Standing -- Assignment -- Validity -- Assignment is valid despite language indicating that insured remains ultimately responsible for all charges incurred -- Limitation of actions -- Statute of limitations does not bar bills for service that occurred within five years of filing suit

10 Fla. L. Weekly Supp. 465b

Insurance -- Personal injury protection -- Small claims -- Standing -- Assignment -- Validity -- Assignment is valid despite language indicating that insured remains ultimately responsible for all charges incurred

10 Fla. L. Weekly Supp. 531b

Insurance -- Personal injury protection -- Standing -- Assignment -- Validity -- Assignment of benefits to medical provider and medical provider's assignment, in turn, to recovery specialists is not prohibited

10 Fla. L. Weekly Supp. 85a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 10 Fla. L. Weekly Supp. 478a and 10 Fla. L. Weekly Supp. 679a

Insurance -- Personal injury protection -- Standing -- Assignment -- Policy prohibiting change in interest in policy without written consent of insurer does not prohibit assignment of claim after loss -- Unclear “no change in interest” language must be construed against insurer -- Trial court's entry of summary judgment in favor of medical provider without considering an affidavit submitted on behalf of insurer for its motion for summary judgment is harmless error where insurer confessed judgment on sole remaining claim

WITHDRAWN. 10 Fla. L. Weekly Supp. 478a

10 Fla. L. Weekly Supp. 119a

Insurance -- Personal injury protection -- Standing -- Assignment -- Patient information form and affidavit of medical provider staff do not create valid assignment -- Medical provider granted 30 days to obtain clear and unequivocal assignment

10 Fla. L. Weekly Supp. 941b

Insurance -- Personal injury protection -- Standing -- Assignment -- Validity -- Lack of medical provider's signature on assignment does not invalidate assignment where conduct of medical provider in providing insured with assignment for her signature, treating insured, submitting bills to insurer, and filing PIP suit based on assignment clearly demonstrate provider's intent to accept assignment -- Insurer's motion for summary judgment denied

10 Fla. L. Weekly Supp. 532c

Insurance -- Personal injury protection -- Standing -- Assignment -- Validity -- Medical provider has standing to pursue insurer for payment of outstanding medical bills under assignment containing reservation requiring insured to be ultimately responsible for bills not covered or not paid by insurer

10 Fla. L. Weekly Supp. 262a

Insurance -- Personal injury protection -- Standing -- Assignment -- Validity -- Assignment of benefits is valid despite blanks where insurance company name is identified, date, and claim number -- Medical provider's conduct in treating patient, submitting bills, and filing PIP suit indicate intent to accept assignment of benefits -- Motion to dismiss denied

10 Fla. L. Weekly Supp. 724a

Insurance -- Personal injury protection -- Standing -- Assignment -- Validity -- Document that provides that insured is transferring and conveying all his rights, title, and interest in medical expense reimbursement is assignment -- Inclusion of terminology of direction to pay does not negate existence of assignment -- Medical provider's affidavit stating that assignment was accepted for limited purpose of collecting payment does not indicate that document was mere direction to pay but, rather, indicates that assignment was meant to convey insured's rights in regard to reimbursement without conveying insured's obligations under policy

10 Fla. L. Weekly Supp. 402b

Insurance -- Personal injury protection -- Standing -- Assignment -- Validity -- Assignment qualified by reservation of liability by insured is, nonetheless, a valid assignment -- Failure of document to state that transfer is irrevocable does not affect validity -- Once patient signs document giving medical provider the right to collect and medical services are rendered, assignment is irrevocable as to benefits for rendered services

10 Fla. L. Weekly Supp. 889a

Insurance -- Personal injury protection -- Standing -- Assignment -- Validity -- Document assigning proceeds of any settlement or judgment resulting from insured's exercise of rights to recovery against any proceeds of insurance policy against which insured may make claim for payment and reserving any and all right of suit to procure payment of benefits does not constitute assignment of benefits

10 Fla. L. Weekly Supp. 856a

Insurance -- Personal injury protection -- Standing -- Assignment -- Validity -- Trial court granting motion to dismiss for lack of standing erred in considering weight and import of assignment of benefits and direction to pay documents filed as attachments to motion to dismiss since documents were outside four corners of complaint which alleged execution of valid assignment -- Error could not be avoided by treating motion to dismiss as motion for summary judgment where fact that motion was heard the same day it was filed would violate rule requirement that motions for summary judgment be served at least 20 days before they are heard -- Further, by failing to raise lack of standing in answer and affirmative defenses, insurer waived issue

10 Fla. L. Weekly Supp. 926d

Insurance -- Assignment -- Validity

10 Fla. L. Weekly Supp. 925b

Insurance -- Personal injury protection -- Standing -- Assignment -- Validity -- Where there is nothing in document entitled “Release of Information Assignment of Payment Instructions for Direct Payment to Clinic” stating that insured relinquished rights to PIP benefits or that medical provider was accepting assignment, document is authorization for direct payment, not assignment -- Motion to dismiss amended complaint granted with prejudice

10 Fla. L. Weekly Supp. 925a

Insurance -- Personal injury protection -- Standing -- Assignment -- Validity -- Where there is nothing in document entitled “Release of Information Assignment of Payment Instructions for Direct Payment to Clinic” stating that insured relinquished rights to PIP benefits or that medical provider was accepting assignment, document is authorization for direct payment, not assignment -- Summary judgment granted in favor of insurer

10 Fla. L. Weekly Supp. 924a

Insurance -- Personal injury protection -- Standing -- Assignment -- Where there is nothing in document entitled “Release of Information Assignment of Payment Instructions for Direct Payment to Clinic” stating that insured relinquished rights to PIP benefits or that medical provider was accepting an assignment, document is authorization for direct payment, not assignment -- Motion to dismiss granted -- Attorney's fees and costs awarded to insurer

10 Fla. L. Weekly Supp. 851b

Insurance -- Personal injury protection -- Standing -- Assignment -- Validity -- Document which authorizes direct payment to medical provider, but fails to convey rights of insured in insurance policy is not assignment, and medical provider had no standing to sue under contract -- No error in entry of summary judgment in favor of insurer

10 Fla. L. Weekly Supp. 829a

Insurance -- Personal injury protection -- Standing -- Assignment -- Validity -- Document that provides that insured is transferring and conveying all his rights, title, and interest in medical expense reimbursement is assignment -- Inclusion of terminology of direction to pay does not negate existence of assignment -- Medical provider's affidavit stating that assignment was accepted for limited purpose of collecting payment does not indicate that document was mere direction to pay but, rather, indicates that assignment was meant to convey insured's rights in regard to reimbursement without conveying insured's obligations under policy

10 Fla. L. Weekly Supp. 565a

Insurance -- Personal injury protection -- Standing -- Assignment -- Validity -- Despite subheading “Assignment of Benefits” and use of word “assignment,” document is not assignment but direction to pay/authorization for direct payment where language only assigns payment, not rights or benefits -- Complaint dismissed with prejudice

10 Fla. L. Weekly Supp. 160a

Insurance -- Personal injury protection -- Standing -- Assignment -- Validity -- Medical authorization and direction to pay is valid assignment -- Reservation of “right to pursue settlement, judgment or verdict” is not reservation, but statement that requirement to pay is not conditioned upon its recovery by a judgment -- Retention of financial liability does not render assignment invalid -- Language relating to direct payment in same document as language of assignment does not negate assignment

10 Fla. L. Weekly Supp. 1056a

Insurance -- Personal injury protection -- Standing -- Assignment -- Validity -- Medical provider did not have standing to bring PIP suit against insurer based on document entitled “Appointment of Agent-in-Fact with Power of Attorney,” which states that insured retains all rights and interest in insurance policy and that medical provider will not enter into any dispute with insurer over payment of benefits and may only operate as agent-in-fact to obtain payment for medical services -- Summary judgment granted in favor of insurer