Volume 10

10 Fla. L. Weekly Supp. 679a

Insurance -- Appeals -- Where issue of standing based on purported invalidity of assignment was directly raised on appeal, and issue of whether policy was assignable was only raised by mention in statement of facts, court could have considered the issue of transferability of policy waived but was not required to do so -- Evidence -- Trial court's denial of admissibility of affidavit on ground that there was issue as to whether affiant had personal knowledge is affirmed where, even if ruling was close call, there is no demonstrated prejudice because decision is order denying summary judgment

10 Fla. L. Weekly Supp. 1044a

Insurance -- Personal injury protection -- Assignment -- Validity

10 Fla. L. Weekly Supp. 1036d

Insurance -- Personal injury protection -- Assignment -- Validity -- Fact that name of insurer and name of medical provider are not contained in assignment is not fatal -- Assignment complies with requirements for valid contract between parties, services were provided as result of assignment and in reliance on assignment, and insurer made payments in reliance on assignment -- Defendant's motion for summary judgment on ground that plaintiff lacked standing denied

10 Fla. L. Weekly Supp. 53a

Insurance -- Standing -- Assignment -- Validity

10 Fla. L. Weekly Supp. 52b

Insurance -- Personal injury protection -- Standing -- Assignment -- Validity -- Document stating insured irrevocably assigns proceeds of insurance policy is valid assignment

10 Fla. L. Weekly Supp. 907a

Insurance -- Personal injury protection -- Standing -- Assignment -- Revocation -- Where medical provider had standing pursuant to assignment at time suit was filed, subsequent revocation of assignment by insured would only be effective as to dates of service not already encompassed in provider's suit -- If suit insured filed after revocation does not encompass any dates of service after date medical provider's suit was filed, insured's suit should be dismissed

10 Fla. L. Weekly Supp. 888a

Insurance -- Personal injury protection -- Standing -- Assignment -- Validity -- Document stating it is direct assignment of rights and benefits under policy constitutes valid assignment of claim -- Revocation language in separate document does not revoke assignment as to services rendered during nine-month period between signing of documents -- No merit to argument that medical provider has no standing or case is not ripe due to fact that insured did not sustain a loss and, therefore, medical provider received nothing by assignment because loss is sustained by PIP insured when insured receives medical treatment arising out of motor vehicle accident, not when insurer refuses payment -- Summary judgment on issue of invalidity of assignment due to failure of insured and medical provider to obtain insurer's consent to assignment is not appropriate where there remains issue as to whether assignment was made after loss was incurred and, therefore, no consent is necessary -- Issues of material fact also remain as to argument that plaintiff failed to comply with statute by not getting medical provider to sign box 12 of HCFA form where, because medical provider has valid assignment, it is reasonable to infer that provider is not misrepresenting fact that it is authorized to receive payment -- Insurer's motion for summary judgment denied

10 Fla. L. Weekly Supp. 172a

Insurance -- Personal injury protection -- Claim forms -- HCFA form which does not contain certification that medical provider has truthfully and accurately completed form, utilize correct codes, and comply with HCFA directions does not put insurer on notice of claim and is not properly payable -- Medical provider who accepts assignment of benefits must provide copy of assignment to insurer as condition precedent to suit against insurer and must comply with policy terms and conditions -- Countersignature -- HCFA form which does not contain signature of insured, but indicates “signature on file,” does not put insurer on notice of loss -- Medical provider who knows or should have known that information in HCFA form is false, misleading, incomplete or patently deceptive, or who acts in deliberate ignorance of truth, falsity or completeness of the information cannot recover direct payment from insurer -- HCFA form must contain name and address of medical provider who actually rendered medical services to insured, not of billing or factoring company -- Medical provider must certify on form that services were performed; “signature of file” notation is legally insufficient certification -- Medical provider who has used unregistered fictitious name on HCFA form or assignment of benefits cannot recover benefits -- Summary judgment granted in favor of insurer

10 Fla. L. Weekly Supp. 200d

Insurance -- Personal injury protection -- Standing -- Assignment -- Dispute between insured and insurer -- Insured who assigned PIP benefits to medical provider did not have standing to bring suit against insurer, and medical provider's attempt to reassign benefits back to insured after insured filed suit did not create standing for insured

10 Fla. L. Weekly Supp. 917a

Insurance -- Personal injury protection -- Provider's action against insurer dismissed based on provider's failure to attach to complaint a copy of assignment executed by insured and failure to allege in body of complaint that insurer had assigned benefits to plaintiff

10 Fla. L. Weekly Supp. 947c

Insurance -- Personal injury protection -- Interest -- Error for trial court to deny plaintiff's motion for partial summary judgment on statutory interest on hospital bill paid one day late or, at minimum, to refuse to submit matter to jury for resolution -- There is no exception for minimal claims to statutory requirement that interest be paid on all overdue PIP payments -- Any question regarding plaintiff's entitlement to interest should have been presented to jury, and trial court did not follow correct procedure in questioning claims adjuster about lateness of payment and existence of assignment outside presence of jury -- Further, trial court erred in deciding that there was assignment to hospital without sufficient evidence of assignment where court based its finding on claims adjuster's testimony that bill indicated existence of assignment but claims adjuster did not know if there had been actual assignment -- Copy of assignment filed by insurer in appendix to answer brief is not part of record on appeal -- Jury instructions -- Trial court's error in giving contradictory and confusing “concurring cause” instruction is not reversible error where plaintiff presented hybrid instruction to court -- Further, verdict form set forth proper statement of law

10 Fla. L. Weekly Supp. 427a

Insurance -- Personal injury protection -- Collection agency that has not provided any medical services but which is assignee of medical provider which holds assignment of PIP benefits from insured can pursue claim for breach of contract against insurer but cannot pursue action under PIP statute -- Question certified

10 Fla. L. Weekly Supp. 1012a

Insurance -- Personal injury protection -- Standing -- Assignment -- Validity -- Document which assigns proceeds of any settlement or judgment to medical provider but reserves right of suit to insured is not assignment of benefits -- Equitable assignment -- Absent ambiguity in purported assignment, affidavits regarding parties' activities before and after signing of purported assignment which medical provider relies upon to counter unambiguous language are irrelevant -- Estoppel -- No merit to argument that insurer should be estopped from defending on assignment theory because it has paid other claims to medical provider arising out of same accident/patient and paid claim at issue at reduced rate in absence of showing of detrimental reliance by medical provider on insurer's payment

10 Fla. L. Weekly Supp. 573a

Insurance -- Personal injury protection -- Error to dismiss amended complaint based on motion to dismiss first complaint for lack of standing because medical provider had right to file amended complaint without prior leave of court, as insurer had not yet filed answer or other responsive pleading, and once provider filed amended complaint legal sufficiency of first complaint as well as motion to dismiss directed to it became moot where amended complaint did not express an intention to save any portion of first complaint -- Standing -- Assignment -- Even if medical provider had not filed amended complaint, dismissal of complaint based on language in purported assignment stating that it is assignment of benefits not assignment of cause of action would be error since such language is internally inconsistent and presents fact issue as to who owns cause of action against insurer -- Further, a motion to dismiss for lack of standing directed to amended complaint would have failed because amended complaint sets forth cause of action based on equitable assignment

10 Fla. L. Weekly Supp. 298a

Insurance -- Personal injury protection -- Standing -- Assignment -- Where medical provider submitted bills directly to and received payment directly from insurer but no formal assignment was introduced to trial court, insured had standing to sue -- Attorney's fees -- Insured suffered no loss entitling him to damages, including attorney's fees, where insured incurred no out-of-pocket expenses for medical provider's services, and medical provider did not bill insured for balance of any reduced payment or seek interest due on late payment by insurer

10 Fla. L. Weekly Supp. 826b

Insurance -- Personal injury protection -- Standing -- Assignment of PIP benefits by insured to medical provider and assignment in turn by medical provider to recovery specialists is not precluded by statute or case law

10 Fla. L. Weekly Supp. 826a

Insurance -- Personal injury protection -- Standing -- Assignment of PIP benefits by insured to medical provider and assignment in turn by medical provider to recovery specialists is not precluded by statute or case law

10 Fla. L. Weekly Supp. 825b

Insurance -- Personal injury protection -- Standing -- Assignment of PIP benefits by insured to medical provider and assignment in turn by medical provider to recovery specialists is not precluded by statute or case law

10 Fla. L. Weekly Supp. 825a

Insurance -- Personal injury protection -- Collection agency which is assignee of medical provider which holds assignment of benefits from insurer does not have right to sue insurer for PIP benefits under current PIP statute

10 Fla. L. Weekly Supp. 913b

Insurance -- Personal injury protection -- Standing -- Assignment -- Collection agency -- Where medical provider received assignment from insured, and in turn, assigned those benefits to collection agency, collection agency has standing to bring PIP action, assuming medical provider received valid assignment from insured

10 Fla. L. Weekly Supp. 913a

Insurance -- Personal injury protection -- Standing -- Assignment -- Collection agency -- Where medical provider received assignment from insured, and in turn, assigned those benefits to collection agency, collection agency has standing to bring PIP action, assuming medical provider received valid assignment from insured

10 Fla. L. Weekly Supp. 911b

Insurance -- Personal injury protection -- Standing -- Assignment -- Collection agency -- Where medical provider received assignment from insured, and in turn, assigned those benefits to collection agency, collection agency has standing to bring PIP action, assuming medical provider received valid assignment from insured

10 Fla. L. Weekly Supp. 911a

Insurance -- Personal injury protection -- Standing -- Assignment -- Collection agency -- Where medical provider received assignment of benefits from insured, and in turn, assigned benefits to collection agency, collection agency may pursue claim against insurer for breach of contract but does not have standing to maintain PIP action -- Since debt collection agency is not medical provider, it does not come within terms of PIP statute -- Summary judgment granted in favor of insurer -- Question certified

10 Fla. L. Weekly Supp. 910a

Insurance -- Personal injury protection -- Standing -- Assignment -- Collection agency -- Where medical provider received assignment of benefits from insured, and in turn, assigned benefits to collection agency, collection agency may pursue claim against insurer for breach of contract but does not have standing to maintain PIP action -- Debt collection agency is excluded from the list of entities which may recover under section 627.736 by clear and express terms of statute -- Summary judgment granted in favor of insurer

10 Fla. L. Weekly Supp. 346a

Insurance -- Personal injury protection -- Standing -- Assignment -- Medical provider did not have standing to sue insurer where assignment states that it is for benefit of entity which is not related to or affiliated with medical provider and assignment does not mention medical provider -- HCFA form which was submitted by other entity and is not countersigned by insured does not create valid assignment -- Notice -- Medical provider has not complied with condition precedent to provide insurer with sufficient notice of loss where chiropractor who performed videofluoroscopy and range of motion tests at issue was neither licensed as medical practitioner nor certified as technician in Florida -- Lawfully rendered services -- Medical provider failed to lawfully render treatment to insured where provider violated law by allowing chiropractor to perform test without verifying his licensure or certification, and chiropractor violated law by testing insured without holding valid license or certificate -- Services to insured were not lawfully rendered where medical provider violated administrative rule by using mobile unit to perform videofluoroscopy test when it was practicable for insured to travel to stationary radiographic installation -- HCFA Form -- Medical provider failed to comply with condition precedent to filing suit by knowingly and intentionally providing false, misleading, incomplete or patently deceptive information on HCFA Form by falsely indicating that it had insured's signature on file, that no outside lab performed test, and that test was performed in its office rather than mobile lab; billing for 5 anatomical areas although only one area was tested; billing for professional component of test that it did not render; misrepresenting cost of services; indicating medical provider's owners performed or supervised test; and naming as medical provider entity which is not registered corporation or fictitious name -- Medical provider failed to “render treatment” within meaning of section 627.736 and cannot recover for treatment, where treatment was provided by independent contractor -- Medical provider failed to comply with condition precedent and failed to lawfully render services where provider did not perform professional component of test but copied report of physician who performed professional component onto its own letterhead and submitted report to justify billing for professional component -- Medical provider which merely provided mobile testing van used to perform test provided no “necessary medical, surgical, x-ray, dental, and rehabilitative services” or the like to insured and is not healthcare provider entitled to PIP benefits -- Patient brokering -- Medical provider's activities constitute clear violation of public policy and statutes prohibiting patient brokering and split-fee arrangements -- Summary judgment granted in favor of insurer -- Questions certified

10 Fla. L. Weekly Supp. 908a

Insurance -- Personal injury protection -- Standing -- Assignment -- Collection agency -- Where medical provider received assignment from insured, and in turn, assigned those benefits to collection agency, collection agency has standing to bring PIP action, assuming medical provider received valid assignment from insured

10 Fla. L. Weekly Supp. 357a

Insurance -- Standing -- Assignment -- Validity -- Documents executed on same date, one purporting to be assignment of benefits and another revoking any and all assignments, are inconsistent, cancel each other out, and divest medical provider of standing -- Summary judgment granted in favor of insurer

10 Fla. L. Weekly Supp. 197a

Insurance -- Personal injury protection -- Standing -- Assignment -- Validity -- Policy language providing that no “change of interest” is effective without written consent of insurer is ambiguous -- PIP insured may assign medical benefits after loss regardless of any non-assignable language in policy -- Motion for summary judgment on insurer's affirmative defense denied

10 Fla. L. Weekly Supp. 732c

Insurance -- Standing -- Assignment -- Medical practice group has no standing to proceed in action where assignment purports to assign benefits to individual physician

10 Fla. L. Weekly Supp. 921a

Insurance -- Plaintiff, who was insured's purported assignee, lacked standing to sue where benefits were exhausted before suit was filed

10 Fla. L. Weekly Supp. 642b

Insurance -- Dispute between medical provider and insurer -- Standing -- Assignment -- Complaint is dismissed with prejudice where assignment attached to complaint assigns benefits to legal entity separate from plaintiff medical provider -- Attorney's fees -- Insurer's proposal for settlement filed less than 90 days after filing of complaint is stricken and will not serve as basis for recovery of attorney's fees and costs

10 Fla. L. Weekly Supp. 547c

Insurance -- Standing -- Assignment -- Plaintiff medical provider has no standing to proceed in action where attachment to complaint assigns benefits to different medical provider -- Action dismissed with leave to amend

10 Fla. L. Weekly Supp. 547b

Insurance -- Standing -- Assignment -- Plaintiff medical provider has no standing to proceed in action where attachment to complaint assigns benefits to different medical provider -- Action dismissed with leave to amend

10 Fla. L. Weekly Supp. 547a

Insurance -- Standing -- Assignment -- Plaintiff medical provider has no standing to proceed in action where attachment to complaint assigns benefits to different medical provider -- Action dismissed with leave to amend

10 Fla. L. Weekly Supp. 1045b

Insurance -- Arbitration -- Contracts -- Motion to dismiss suit due to failure to first seek contractually-required mandatory arbitration is denied where documents do not demonstrate that plaintiff knowingly bound itself to arbitration

10 Fla. L. Weekly Supp. 263a

Insurance -- Personal injury protection -- Application -- Misrepresentation -- Declaratory judgments -- Where insurance agent filled out application for insurance with knowledge that insured had two daughters and that one daughter had a learner's permit, agent wrote answers on application contrary to those facts by listing insured and spouse as only residents of household, and agent or her secretary did not read application verbatim in Spanish to insured whom agent knew does not read or speak English, insurer is estopped to allege misrepresentation to cancel policy

10 Fla. L. Weekly Supp. 178b

Insurance -- Marine -- Void policy -- Material misrepresentations on application -- Underwriters' motion for summary judgment seeking ruling that policy of marine insurance is void due to material misrepresentations on application for insurance is denied where there exist genuine issues of material fact with regard to materiality of facts omitted or misrepresented

10 Fla. L. Weekly Supp. 396a

Insurance -- Appeals -- Timeliness -- Motion for rehearing of order dismissing appeal for lack of jurisdiction -- Amended final judgment purporting to re-enter order enforcing settlement agreement and awarding prejudgment interest did not materially alter order so as to toll time for appeal where issue on appeal is not prejudgment interest but validity of settlement agreement insofar as it affects entitlement to attorney's fees -- Additional finding in amended final judgment that agreement was “written” does not affect appellant's rights and obligations where, whatever form agreement took, trial court enforced it and circuit court considered its validity in first appeal, which challenged dismissal of motion to determine entitlement to attorney's fees -- No merit to contention that appellant did not have grounds to file cross-appeal challenging order enforcing settlement agreement in first appeal because order reflected intent of parties where, although order may have reflected parties' intent when rendered, validity of agreement became contested prior to, and was ripe for review by time of, first appeal -- Further, there is no merit to argument that if appellant had argued against order in first appeal, it would be seeking reversal of later order denying entitlement to attorney's fees where appellant could have argued against attorney's fees on ground that settlement agreement is invalid, and that trial court reached right result for wrong reason, and appellant, in fact, did make that argument in first appeal -- Although in first appeal circuit court denied relief on rehearing stating that order on appeal was order denying motion to determine entitlement to attorney's fees, not order enforcing settlement agreement, validity of the agreement is essential to determination of entitlement to attorney's fees and circuit court did consider the issue -- Rehearing denied

10 Fla. L. Weekly Supp. 395b

NOT FINAL VERSION OF OPINION
Subsequent Changes at 10 Fla. L. Weekly Supp. 396a

Insurance -- Appeals -- Timeliness -- Order enforcing settlement agreement that ordered defendant to tender notice of dismissal with prejudice contemplated no further judicial labor and was, therefore, final order despite trial court's characterization of order as interlocutory -- Amended final judgment that purported to re-enter final order or revise final order in immaterial way did not toll time for appeal -- Even if order were interlocutory, it merged into prior appeal that sought review of order denying plaintiff's entitlement to attorney's fees -- Appeal dismissed for lack of jurisdiction

10 Fla. L. Weekly Supp. 547d

Insurance -- Appeals -- Stay of payment of fees and costs pending appeal, granted under condition that medical provider post bond, is lifted where bond was not posted

10 Fla. L. Weekly Supp. 379a

Insurance -- Personal injury protection -- Discovery -- Production of documents -- Appeals -- Certiorari -- Order compelling production of documents causes irreparable harm sufficient to permit certiorari review and departs from essential requirements of law by allowing medical provider to obtain premature discovery in support of unripe bad faith claim entirely unrelated to provider's underlying PIP claims as assignee of insured and requiring production of document that may be protected by trade secret privilege without first conducting in camera review -- Discovery sought to show insurer's reasons for paying bills at preferred provider rates is not relevant to claim for insurance benefits -- Privilege -- Trade secrets -- Argument that insurer failed to provide evidence to support assertion that document contains trade secrets lacks merit where, by failing to conduct in camera inspection, trial court refused to even reach stage where insurer could submit evidence on trade secrets -- Insurer did not waive trade secrets privilege regarding agreement between insurer and software company by asserting affirmative defense based on agreements between insurer and PPO network and between medical provider and PPO network -- Claim of trade secrets privilege was also not waived by insurer's failure to file privilege log where, because insurer raised trade secrets objection to only one discovery request, it was clear which privilege insurer was invoking for which document -- Trial court's offer to seal document after insurer produced it is inadequate substitute for in camera inspection prior to production -- Order compelling production quashed

10 Fla. L. Weekly Supp. 679a

Insurance -- Appeals -- Where issue of standing based on purported invalidity of assignment was directly raised on appeal, and issue of whether policy was assignable was only raised by mention in statement of facts, court could have considered the issue of transferability of policy waived but was not required to do so -- Evidence -- Trial court's denial of admissibility of affidavit on ground that there was issue as to whether affiant had personal knowledge is affirmed where, even if ruling was close call, there is no demonstrated prejudice because decision is order denying summary judgment

10 Fla. L. Weekly Supp. 164b

Insurance -- Appeals -- Argument -- Comments in closing argument, which were not objected to at trial, did not rise to level justifying new trial