Volume 12

12 Fla. L. Weekly Supp. 306b

Insurance -- Uninsured motorist -- Collateral setoff -- Motion for rehearing in appeal and cross-appeal of judgment awarding damages, attorney's fees, and costs to plaintiff who was passenger in vehicle rear-ended by uninsured motorist in action against UM carrier of driver of vehicle in which plaintiff rode -- Motion is granted in part -- In ruling that trial court abused its discretion by awarding PIP setoff after trial in absence of stipulation to presentation of PIP setoff evidence to trial judge after trial, appellate court ruled on issue not raised in cross-appeal and prevented insurer from presenting evidence of parties' stipulation to have collateral source setoff heard by judge post trial -- Evidence -- Hearsay -- Exception -- Business records -- Although supplementary evidence of parties' stipulation reveals trial court did not abuse discretion in hearing collateral source setoff post trial, court erred in setting off amount based in part on documents of plaintiff's now-insolvent PIP carrier which were inadmissible, due to lack of proper foundation and trustworthiness, where there was no record custodian to testify as to how records were generated

12 Fla. L. Weekly Supp. 236a

Attorney's fees -- Insurance -- Prevailing insurer is awarded attorney's fees for handling of case from time of service of proposal for settlement

12 Fla. L. Weekly Supp. 395b

Insurance -- Settlement -- Defendant's motion for reconsideration of order entered by predecessor judge granting plaintiff's motion to enforce settlement agreement and imposing sanctions against defendant for failure to comply with the terms of the settlement -- Correspondence which was known to defendant and some of defendant's attorneys prior to hearing, but which was not brought to the covering attorney's attention, not basis for reconsideration -- Correspondence did not unequivocally establish the defendant's entitlement to prevail, nor does court's failure to consider the correspondence result in harmful error which in interest of justice should be corrected -- Relief from judgment -- Motion for reconsideration which was unsworn could not be treated as rule 1.540 motion and, in any event, problem giving rise to motion was created by defendant, who in exercise of due diligence should have been able to properly present it to court -- With respect to payment ordered by predecessor judge, defendant had more than sufficient time to produce sum and should have provided the sum to plaintiff, even if it believed it would be successful with its request for reconsideration

12 Fla. L. Weekly Supp. 397a

Insurance -- Personal injury protection -- Venue -- Forum non conveniens -- Where insurer's motion to transfer venue from Broward County to Orange County states that the accident occurred and the accident witnesses are located in Orange County and insured received treatment in Orange County from a doctor who has since relocated to Broward County, but insurer failed to set forth anticipated substance or significance of testimony of witnesses, trial court is unable to properly weigh the convenience of key witnesses and insurer has failed overcome medical provider's forum selection by showing substantial inconvenience or undue expense -- Motion to transfer venue denied

12 Fla. L. Weekly Supp. 336d

Insurance -- Personal injury protection -- Venue -- Forum non conveniens -- Order granting motion to transfer venue is affirmed where there are significantly more contacts in transferee county -- Trial court did not abuse discretion in determining when motion to transfer could be filed

12 Fla. L. Weekly Supp. 1074a

Insurance -- Personal injury protection -- Venue -- Forum non conveniens -- Where insurer whose claims office is located in Hillsborough County will be substantially inconvenienced and incur undue expense in defending suit in Orange County, Sumter County is convenient forum for matter since insured lives in and had accident in that county, and parties and witnesses have no connection or contact with Orange County, venue is transferred from Orange County to Sumter County

12 Fla. L. Weekly Supp. 390a

Insurance -- Personal injury protection -- Summary judgment -- Motion for summary judgment is premature where answer has not yet been filed, medical provider has not conclusively established that insurer cannot properly serve answer which could raise issue of material fact, and discovery has not been completed -- Further, motion is not supported by affidavit or other sworn proof

12 Fla. L. Weekly Supp. 206a

Insurance -- Personal injury protection -- Summary judgment -- Untimely filed affidavit containing conclusory statements did not create genuine issue of material fact

12 Fla. L. Weekly Supp. 344a

Insurance -- Personal injury protection -- No error in granting final summary judgment to insurer and denying medical provider's motion for summary judgment as to attorney's fees -- Suit for unpaid claim for Flex C.S.O. Support was premature where medical provider filed suit prior to providing invoice for support requested by insurer, and insurer made full payment of claim within ten days of receiving invoice pursuant to court order compelling production

12 Fla. L. Weekly Supp. 370a

Insurance -- Personal injury protection -- Standing -- Assignment -- Where named plaintiff as originally filed and as in amended complaint are different from entity named in assignment, assignment does not confer standing on plaintiff -- Summary judgment granted in favor of insurer

12 Fla. L. Weekly Supp. 867b

Insurance -- Personal injury protection -- Settlement agreement -- Vacation -- Insurer's motion to set aside settlement and to strike insured's motion for attorney's fees and costs is granted based on finding that insured's attorney lacked clear and unequivocal authority to execute settlement on insured's behalf after insured terminated the representation -- Insurer's motion for attorney's fees is granted

12 Fla. L. Weekly Supp. 636a

Insurance -- Personal injury protection -- Settlement agreement -- Motion to set aside -- Unilateral mistake -- No abuse of discretion in refusing to set aside mediated settlement agreement and order ratifying agreement where failure to ascertain correct amount of damages with information readily available and time to accurately determine them is not mistake going to substance of agreement, and medical provider sets forth no facts to support claim that mistake caused by provider's oversight was excusable

12 Fla. L. Weekly Supp. 485a

Insurance -- Personal injury protection -- Summary judgment -- Rehearing -- Court refuses to consider counter-affidavits submitted for first time in motion for rehearing filed by insurer after summary judgment was entered in favor of medical provider -- Motion for rehearing denied -- Question certified whether it is abuse of discretion for trial court to refuse to consider counter-affidavits submitted for first time in a motion for rehearing by nonmoving party after summary judgment has been entered against that party where counter-affidavits create genuine issues of material fact

12 Fla. L. Weekly Supp. 567c

Attorney's fees -- Proposal for settlement -- Insurance -- Personal injury protection -- Small claims -- Rules of civil procedure, including rule regarding proposals for settlement, shall apply in small claims PIP case

12 Fla. L. Weekly Supp. 567b

Attorney's fees -- Proposal for settlement -- Insurance -- Personal injury protection -- Small claims -- Rules of civil procedure, including rule regarding proposals for settlement, shall apply in small claims PIP case

12 Fla. L. Weekly Supp. 583a

Insurance -- Personal injury protection -- Pleadings -- Answer -- Amendment -- Motion to file second amended answer and affirmative defenses is denied where action had already been pending 18 months when motion was served, medical provider has already had to come into court several times on pretrial matters at behest of insurer, and insurer was unable to advise court of reasons for significant delay in case

12 Fla. L. Weekly Supp. 1082a

Insurance -- Personal injury protection -- Notice of loss -- Timeliness -- Late notice defense must fail because insurer was not deprived of opportunity to timely investigate claim where insurer received notice 32 days after initiation of treatment but waited four weeks after receipt of notice to send PIP package, insurer did not schedule physical examination and examination under oath until more than two months after receipt of notice, insurer did not deny claims from other medical providers based on late notice but instead applied bills to deductible, and insurer did not assert late notice defense in response to pre-suit demand letter

12 Fla. L. Weekly Supp. 3a

Insurance -- Personal injury protection -- Coverage -- Defenses -- Notice of loss -- Jury instruction on late notice was against manifest weight of evidence where policy provided for notification of insured's accident rather than injury, insurer's assertion that it raised affirmative defense of untimely notice of injury as opposed to accident conflicted with its written defense referring to notice of “alleged loss accident,” and insurer's litigation adjuster admitted in deposition that it was not defending case on basis that it did not get notice as soon as practicable after accident -- Remand for new trial

12 Fla. L. Weekly Supp. 778b

Insurance -- Personal injury protection -- Assignee's action against insurer -- Presuit requirements -- Notice of loss -- Disclosure and acknowledgment form -- Where it was established that insurer did not receive disclosure and acknowledgment form before assignee filed suit, and form which was forwarded to insurer nearly a year after suit was filed purported to be executed on date two months prior to the date the form was available for distribution by the Department of Insurance, insurer is entitled to summary judgment

12 Fla. L. Weekly Supp. 1190a

Insurance -- Personal injury protection -- Claims -- Disclosure and acknowledgment form -- Where it is undisputed that insured did not execute standard disclosure and acknowledgment form which is part of claims process until after last treatment for which medical provider seeks payment, insurer's motion for summary judgment is granted

12 Fla. L. Weekly Supp. 1180a

Insurance -- Personal injury protection -- Notice of claim -- Disclosure and acknowledgment form -- Medical provider which sent self-generated PIP disclosure and acknowledgment form rather than standard disclosure and acknowledgment form authored by Office of Insurance Regulation provided sufficient notice to insurer

12 Fla. L. Weekly Supp. 1179a

Insurance -- Personal injury protection -- Notice of loss -- Collateral estoppel -- Insurer is collaterally estopped from relitigating defense of late notice in present case where issue was fully litigated and decided in favor of medical provider in prior suit involving bills presented to insurer stemming from same accident involving same insured and accrued at facility owned by same owner as facility in present case

12 Fla. L. Weekly Supp. 126c

Insurance -- Personal injury protection -- Trial court did not abuse its discretion in denying motion for mistrial and did not misinterpret section 627.736

12 Fla. L. Weekly Supp. 39a

Insurance -- Personal injury protection -- Written final judgment for full amount of jury verdict must be reversed as it is not in conformance with oral pronouncement that trial court would adjust verdict

12 Fla. L. Weekly Supp. 237b

Attorney's fees -- Insurance -- Personal injury protection -- Prevailing insurer is awarded attorney's fees and costs for representation after rejection of proposal for settlement -- Expert witness fee and prejudgment interest are awarded

12 Fla. L. Weekly Supp. 505a

Insurance -- Personal injury protection -- Declaratory action -- Insurer is required to provide copy of policy, declarations page and PIP log on pre-suit request from medical provider

12 Fla. L. Weekly Supp. 492b

Insurance -- Personal injury protection -- Independent medical examination -- Failure to answer material questions -- Where facts are not in dispute, question of whether information sought in IME is material is question of law that may be decided at summary judgment stage -- Where insured refused at IME to discuss how accident occurred and failed to disclose after inquiry prior automobile accident in which he had been knocked unconscious, insured failed to provide material information, thereby failing to comply with condition precedent to submit to IME, and is barred from recovery -- Summary judgment is granted in favor of insurer

12 Fla. L. Weekly Supp. 1086a

Insurance -- Personal injury protection -- Independent medical examination -- Failure to attend IME does not relief insurer from duty to pay all medical bills for services that predate missed IME, including those for which medical bills were received less than thirty days prior to missed IME

12 Fla. L. Weekly Supp. 724b

Insurance -- Personal injury protection -- Patient brokering -- Fee-splitting -- Error to enter summary judgment in favor of plaintiff where there are genuine issues of material fact as to whether plaintiff was broker ineligible for reimbursement and whether fee arrangement between plaintiff and physician violated prohibitions against patient brokering and fee-splitting

12 Fla. L. Weekly Supp. 1107a

Insurance -- Personal injury protection -- Explanation of benefits -- Insurer breached contract with medical provider by failing to provide EOB when it failed to make payment on medical bills received from provider

12 Fla. L. Weekly Supp. 1101a

Insurance -- Personal injury protection -- Explanation of benefits -- Noncompliance letter from insurer quoting large portions of PIP statute is not sufficient to constitute itemized specification of unpaid charges/EOB -- Medical provider may maintain action against insurer for breach of contract by failing to provide EOB -- No merit to argument that provider cannot maintain cause of action because it cannot establish damages -- Damages are for jury to determine and may be nominal, and action seeks relief in form of specific performance by delivery of EOBs

12 Fla. L. Weekly Supp. 262b

Insurance -- Personal injury protection -- Declaratory judgment -- Examination under oath -- Right of insured to record -- Where insurance contract is silent as to right to record EUO, court cannot write in provision permitting recording -- However, where insurer was unable to present any argument that presence of audiotape was unreasonable or that recording would have hindered or obstructed performance of EUO in any way, insurer's refusal to proceed with EUO when insured desired to audiotape examination was inappropriate -- Summary judgment granted in favor of insured

12 Fla. L. Weekly Supp. 536a

Insurance -- Personal injury protection -- Coverage -- Examination under oath -- Failure to attend -- Where question of whether contract language regarding EUO is ambiguous is question of law to be determined by trial court, and court was correct in ruling that contract language stating that insured shall give written proof of claim under oath and/or submit to examination under oath was ambiguous, summary judgment and directed verdict were properly entered in favor of insured

12 Fla. L. Weekly Supp. 799a

Insurance -- Personal injury protection -- Coverage -- Examination under oath -- Failure to attend -- Notice of EUO sent to attorney representing insured is imputed to insured -- Where insurer rescheduled EUO at request of insured's attorney and provided notice to attorney, and insured failed to appear at EUO and did not thereafter attempt to reschedule EUO before MRI was performed, insurer is entitled to summary judgment

12 Fla. L. Weekly Supp. 584b

Insurance -- Personal injury protection -- Coverage -- Denial -- Failure to appear for examination under oath -- Notice of an examination under oath provided to an insured's attorney constitutes notice to insured -- Where insured's attorney requested that EUO be rescheduled, insurer rescheduled the EUO and provided new date to attorney, and insured failed to appear, insurer is entitled to summary judgment

12 Fla. L. Weekly Supp. 1104b

Insurance -- Personal injury protection -- Explanation of benefits -- Medical provider's motion for summary judgment granted as to count alleging failure to provide EOB -- Examination under oath -- Failure to attend -- Where insurer improperly failed to direct notice of EUO to attorney representing insured, insured's failure to attend EUO was not unreasonable

12 Fla. L. Weekly Supp. 833b

Insurance -- Personal injury protection -- Examination under oath -- Failure to attend -- Where insured's counsel sent letter stating it was necessary for him to be present at EUO despite PIP policy providing that only person being examined could be present and offering to arrange to have EUO taken at his office or over telephone, but insurer did not respond and scheduled EUO, question of whether refusal to attend EUO was unreasonable created issues of fact precluding summary judgment

12 Fla. L. Weekly Supp. 977a

Insurance -- Personal injury protection -- Examination under oath -- Failure to attend -- Where letters scheduling EUOs and denial of coverage letters sent after insureds failed to appear clearly stated that voiding coverage was potential result for failure to appear, yet insureds made no effort to reschedule EUOs or otherwise respond to letters, insureds breached terms of policy and insurer is relieved of liability to pay claims

12 Fla. L. Weekly Supp. 531b

Insurance -- Personal injury protection -- Coverage -- Denial -- Examination under oath -- Failure to attend -- Although district court of appeals' opinion holding that if insurer does not pay benefits by end of 30-day statutory period insured is free to sue and have case determined on merits appears to have been implicitly overruled by supreme court decision holding that if insurer does not pay benefits or secure reasonable proof that it is not responsible for payment within 30 days bill is overdue but insurer is not forever barred from contesting claim, appellate court does not have judicial power to decide issue -- In absence of clear expression from supreme court, issue of whether district court of appeal opinion is in conflict with later supreme court opinion should be left to district court of appeal -- Applying district court of appeal precedent, insurer cannot defend claim on basis of insured's failure to attend EUO set outside of 30-day statutory period after submission of medical bills -- Summary judgment in favor of insurer reversed

12 Fla. L. Weekly Supp. 318b

Insurance -- Personal injury protection -- Examination under oath -- Failure to attend -- Trial court abused its discretion in refusing to consider affidavit of insured's trial attorney regarding communications with insurer seeking rescheduling of EUO in support of motion for rehearing of summary judgment in favor of insurer based on insured's failure to attend EUO -- Affidavit creates genuine issue of material fact as to intentional nature of insured's non-attendance

12 Fla. L. Weekly Supp. 368a

Insurance -- Personal injury protection -- Dismissal -- Failure to prosecute -- Motion to dismiss for failure prosecute is denied where medical provider filed pleadings with court within 30 days of receipt of notice of failure to prosecute

12 Fla. L. Weekly Supp. 583b

Insurance -- Personal injury protection -- Discovery -- Failure to comply -- Sanctions -- Where insured has been trying unsuccessfully for two years to obtain information on amount of money insurer has paid to medical providers who conducted independent medical evaluation and peer review, and insurer's conduct has come perilously close to but has not quite reached level of egregious conduct necessary to invoke ultimate sanction of striking insurer's pleadings, striking insurer's experts and imposition of monetary sanctions are appropriate

12 Fla. L. Weekly Supp. 255b

Insurance -- Personal injury protection -- Discovery -- Depositions -- Failure to attend -- Sanctions -- Attorney's fees and costs awarded

12 Fla. L. Weekly Supp. 569a

Insurance -- Personal injury protection -- Discovery -- Depositions -- Failure to appear -- Sanctions -- Motions for contempt and/or orders compelling attendance of two witnesses at depositions granted -- Sanctions -- Attorney's fees awarded for cost of bringing motion against one witness

12 Fla. L. Weekly Supp. 422a

Insurance -- Personal injury protection -- Discovery -- Depositions -- Failure to appear -- Error to impose sanction of attorney's fees and costs against nonparty expert witness for failure to appear at deposition without finding witness in contempt -- Fact that witness declined option of having contempt hearing does not obviate need for finding of contempt to support imposition of sanctions -- Further, award of sanctions was premature where witness was not given opportunity to comply with order granting motion to compel entered three days earlier

12 Fla. L. Weekly Supp. 991a

Insurance -- Personal injury protection -- Explanation of benefits -- Because PIP statute requiring EOB has become part of PIP insurance contract, medical provider may maintain breach of contract action for failure to provide EOB, even if only nominal damages arise -- Motion to dismiss denied

12 Fla. L. Weekly Supp. 990a

Insurance -- Personal injury protection -- Explanation of benefits -- Insurer's “non-compliance letter” which does not state reason for denial of charges is not sufficient as itemized specification of unpaid charges/EOB -- Medical provider may maintain action for breach of contract for failure to furnish EOB -- No merit to argument that provider cannot maintain action because it cannot establish damages where critical question in action is existence of breach of contract and damages, which may be nominal, are for jury to determine after determination of liability -- Moreover, action seeks relief in form of specific performance, which does not require showing of damages

12 Fla. L. Weekly Supp. 1196a

Insurance -- Personal injury protection -- Demand letter -- Sufficiency -- Demand letter with all medical bills attached is sufficient where bills identify specific services, amounts and dates of service claimed

12 Fla. L. Weekly Supp. 1069b

Insurance -- Personal injury protection -- Demand letter -- Where demand letter was sufficiently specific to allow insurer's claims representative to understand what claim was referenced and identity of provider claiming not to have been paid, it is irrelevant that demand letter was sent by provider's billing agency -- Insurer's motion for summary judgment is denied

12 Fla. L. Weekly Supp. 1015b

Insurance -- Personal injury protection -- Demand letter -- Insured complied with all material requirements of demand letter by specifying that unpaid claim at issue was mileage, the exact mileage due, and the date range in which transportation expense was incurred -- Finding that letter was sufficiently specific is supported by fact that insurer made payment for exact amount claimed, with interest, but did not include statutory penalty and postage

12 Fla. L. Weekly Supp. 770b

Insurance -- Personal injury protection -- Demand letter -- Presuit demand letter lacks specificity required by statute -- Action is abated to allow medical provider to cure insufficiencies

12 Fla. L. Weekly Supp. 673b

Insurance -- Personal injury protection -- Demand letter -- Document identified as demand letter with attached HCFA forms fails to comply with requirement to specify exact amount due as it does not account for amounts applied to deductible, amounts reduced to reasonable charges or any other partial payments made

12 Fla. L. Weekly Supp. 1072c

Insurance -- Personal injury protection -- Demand letter -- Insured who failed to send demand letter before filing suit failed to satisfy condition precedent to filing suit, and deficiency was not cured by post-suit demand letter -- No merit to claim that it was necessary to file suit prior to sending demand letter in order to toll statute of limitations where statute provides for tolling of statute of limitations for 15 business days from mailing of demand letter

12 Fla. L. Weekly Supp. 277b

Insurance -- Personal injury protection -- Appeals -- Certiorari -- Demand letter -- Where order under review dispensed with statutorily mandated pre-suit procedure which cannot be effectively remedied on postjudgment appeal, appellate court has jurisdiction to review insurer's petition for writ of certiorari -- Correspondence which did not state that it was demand letter, did not provide name of medical provider who rendered treatment that formed basis of claim, and did not include itemized statement of medical services or lost wages did not meet requirements of demand letter -- Complaint should have been dismissed, although general averment set forth in complaint stated that all conditions precedent had been performed

12 Fla. L. Weekly Supp. 368c

Insurance -- Personal injury protection -- Demand letter -- Medical provider was not required to submit additional demand letters prior to seeking to amend complaint to allege additional reductions taken on same CPT codes as sought in previous demand letter -- Motion to amend granted

12 Fla. L. Weekly Supp. 664c

Insurance -- Personal injury protection -- Demand letter -- Pre-suit demand letter with attached patient ledger showing twenty-three dates of service for treatment rendered by medical provider and explanation of benefits documents identifying seven dates of service for which insurer either reduced or refused to pay bills only placed insurer on notice as to claims for seven dates of service represented by EOBs -- Partial summary judgment granted in favor of insurer as to all unpaid charges except those included in EOBs

12 Fla. L. Weekly Supp. 1172b

Insurance -- Personal injury protection -- Standing -- Assignment -- Demand letter served by insured who has assigned benefits to medical provider and has not obtained revocation of assignment is invalid and does not satisfy condition precedent to suit

12 Fla. L. Weekly Supp. 1172a

Insurance -- Personal injury protection -- Demand letter -- Letter that conforms to statutory requirements for demand letter and puts insurer on notice of identity of medical provider claiming not to have been paid is sufficient irrespective of fact that letter was sent by provider's billing agency

12 Fla. L. Weekly Supp. 769c

Insurance -- Personal injury protection -- Demand letter -- Pre-suit demand letters sent by medical provider prior to reassigning benefits back to insured do not satisfy requirement that insured send demand letter before initiating suit -- Where insured did send demand letter in regard to treatment by second medical provider and moved to amend complaint to add benefits owed to that provider, and insurer cannot be said to suffer prejudice from granting motion to amend, motion to amend is granted and partial summary judgment in favor of insurer is granted only as to unpaid benefits relating to original provider

12 Fla. L. Weekly Supp. 254b

Insurance -- Personal injury protection -- Demand letter from billing agency that did not possess valid assignment in its favor does not satisfy condition precedent to suit by medical provider/assignee

12 Fla. L. Weekly Supp. 564b

Insurance -- Personal injury protection -- Demand letter -- Sufficiency -- Demand letter which contained itemized patient account ledger for all medical treatment rendered to insured did not state with specificity each amount, date of treatment, service or accommodation and type of benefits claimed to be due and, therefore, failed to comply with statute and satisfy condition precedent to suit -- Summary judgment granted in favor of insurer

12 Fla. L. Weekly Supp. 162b

Insurance -- Personal injury protection -- Demand letter -- Where medical provider failed to mark and tabulate CPT codes and charges on health insurance claim forms attached to demand letter so as to specify each exact amount at issue for each individual charge at issue and provide accurate total amount claimed to be due, claim forms were insufficient as itemized statement, and provider failed to comport with all material requirements of demand letter -- Final summary judgment in favor of insurer granted

12 Fla. L. Weekly Supp. 957b

Insurance -- Personal injury protection -- Demand letter -- Insured who had assigned rights to medical provider and did not revoke assignment prior to serving pre-suit demand letter did not have right or authority to serve letter

12 Fla. L. Weekly Supp. 151c

Insurance -- Personal injury protection -- Demand letter -- Before medical provider can file amended complaint to include additional charges for unpaid PIP benefits for dates of service not mentioned in original complaint, provider must send demand letter for additional charges

12 Fla. L. Weekly Supp. 1072a

Insurance -- Personal injury protection -- Demand letter -- Illegible demand letter and attached ledger do not constitute compliance with statutory pre-suit requirements

12 Fla. L. Weekly Supp. 556a

Insurance -- Personal injury protection -- Demand letter -- Sufficiency -- Where court cannot determine from review of form demand letter and attachments amount of check insurer could have written to absolve itself of liability, medical provider has failed to satisfy condition precedent to filing PIP suit -- Complaint dismissed with prejudice

12 Fla. L. Weekly Supp. 80b

Insurance -- Personal injury protection -- Demand letter -- Insurer's nonpayment of medical provider's charges prior to effective date of 2003 amendment to section 627.736(11), requiring presuit demand letter even when charges have been denied or reduced, vested in provider substantive right to file cause of action without necessity of filing presuit demand letter -- Although 2003 amendment expressly provides for retroactive application, such application shall not be permitted where it impairs vested rights -- Motion to dismiss denied

12 Fla. L. Weekly Supp. 1085a

Insurance -- Personal injury protection -- Demand letter -- Where demand letter sent by counsel for medical provider/assignee indicated it was sent on behalf of insured, letter was sent to claims representative not designated by insurer to receive demand letters on its behalf, and letter had attached copies of HCFA forms but failed to identify exact amount due, letter did not satisfy statutory condition precedent of demand letter

12 Fla. L. Weekly Supp. 779b

Insurance -- Personal injury protection -- Demand letter -- Sufficiency -- Attachment of HCFA forms to pre-suit demand letter without identifying exact amount claimed to be overdue fails to satisfy requirements of section 627.736(11)

12 Fla. L. Weekly Supp. 488c

Insurance -- Personal injury protection -- Demand letter -- Sufficiency -- Demand letter pertaining only to medical services provided and unpaid prior to August 1, 2003, the effective date of amendments to section 627.736(11)(a), need not satisfy amendment's requirement to state with specificity exact amount owed and types of benefits claimed to be due

12 Fla. L. Weekly Supp. 327a

Attorney's fees -- Insurance -- Personal injury protection -- Prevailing party -- Confession of judgment -- No error in finding that medical provider was prevailing party entitled to award of attorney's fees where insurer confessed judgment by paying bills within 8 days after PIP suit was filed, but still defended suit based on lack of notice of intent to initiate litigation -- Demand letter -- Error to enter final judgment in favor of medical provider despite lack of notice of intent to initiate litigation where insured received medical treatment after October 1, 2001, and her policy was renewed after effective date of section 627.736(11) and, therefore, statute was applicable and notice of intent to initiate litigation was required -- Issue of notice of intent is moot, however, due to insurer's full payment of medical bills prior to entry of final judgment -- Contingency risk multiplier -- Abuse of discretion to award multiplier where Quanstrom requirements were not met

12 Fla. L. Weekly Supp. 488b

Insurance -- Personal injury protection -- Delay in payment of benefits -- Penalty -- Where insurer did not pay bill within 30 days of receipt of demand letter and then paid bill with interest prior to suit, insurer is responsible for paying postage costs and statutory penalty on amount tendered

12 Fla. L. Weekly Supp. 495b

Insurance -- Personal injury protection -- Default -- Vacation -- Denial -- Excusable neglect -- Motion to set aside default is denied where, although insurer claims it was unaware motion for enlargement of time to respond to complaint had been denied, it offered no good faith explanation as to why mail would not reach insurer's counsel at address provided by counsel or explanation for its failure to respond to court clerk's telephone inquiry regarding failure to include return envelopes with motion for enlargement of time -- Neglect due to understaffing, although perhaps excusable if an isolated circumstance, is no longer excusable where it has persisted over past two years

12 Fla. L. Weekly Supp. 665b

Insurance -- Personal injury protection -- Workers' compensation lien -- Action by insured injured in automobile accident while in course and scope of his employment against PIP carrier that seeks to apply deductible and then pay 80% of balance due for satisfaction of workers' compensation lien -- Insurer is precluded from applying deductible in satisfaction of workers' compensation lien because to do so would not assure complete coverage to insured for work-related injuries -- To avoid duplication of coverage, PIP check should be made payable directly to workers' compensation carrier -- Insured need not pay workers' compensation lien before seeking reimbursement from PIP insurer -- Attorney's fees -- Insured is entitled to pro-rata share of attorney's fees and costs -- Contingency risk multiplier of 2.0 is awarded where likelihood of success was even at outset and amount involved, results obtained and fee arrangement in light of relevant market would require multiplier to obtain competent counsel -- Costs, expert witness fee and prejudgment interest awarded

12 Fla. L. Weekly Supp. 957c

Insurance -- Personal injury protection -- Coverage -- Out-of-state policy without PIP coverage -- Where insured with non-PIP policy issued in Iowa was employed in Florida for at least five months prior to accident, but insured failed to register vehicle in Florida and maintain security on vehicle, insurer's motion for summary judgment is granted

12 Fla. L. Weekly Supp. 607a

Insurance -- Personal injury protection -- Res judicata -- Appeal of dismissal of subsequent suit involving same accident and injuries involved in prior suit -- Where order enforcing settlement of first suit clearly does not provide that resolution of matter was without right to further proceedings by medical provider, and trial court determined that settlement covered only those bills incurred through certain date and second suit could proceed as to bills incurred after that date, doctrine of res judicata does not bar second suit -- Error to dismiss suit

12 Fla. L. Weekly Supp. 240a

Insurance -- Personal injury protection -- Coverage -- Resident relative of owner of another vehicle -- Evidence -- Accident report privilege -- Regardless of whether plaintiff's address as recorded on police accident report was taken from her driver's license or verbally given to investigating officer by plaintiff, portion of report containing address is admissible in proceeding on plaintiff's motion for partial summary judgment as to residency -- No merit to argument that report, which is self-authenticating, is inadmissible as unverified document that was not authenticated -- Questions certified

12 Fla. L. Weekly Supp. 157a

Insurance -- Personal injury protection -- Coverage -- Plaintiff is resident relative entitled to PIP benefits under policy of sister-in-law

12 Fla. L. Weekly Supp. 1087a

Insurance -- Personal injury protection -- Coverage -- Son of insured who does not own a motor vehicle and resides in insured's home is entitled to PIP benefits under insured's policy -- Where insurer failed to conduct reasonable investigation or set claimant for examination under oath within 30 days of receipt of claim, insurer has failed to establish any proof that it was not responsible for payment of claim -- Where insurer breached policy and failed to timely schedule EUO, insurer is barred from using claimant's failure to attend post-suit EUO as reason for nonpayment -- Insurer has agreed to allow medical provider to amend pleading to correct name of assignor

12 Fla. L. Weekly Supp. 311b

Insurance -- Personal injury protection -- Coverage -- Evidence -- Hearsay -- Error to enter involuntary dismissal based on ruling that hearsay evidence of medical provider was insufficient to prove prima facie case of coverage -- Deposition testimony of treating physician establishing that patients' injuries were related to accident for which coverage was available fell within exception to hearsay rule and was sufficient to survive motion for directed verdict

12 Fla. L. Weekly Supp. 403b

Insurance -- Personal injury protection -- Coverage -- Denial -- Explanation of benefits -- Where medical provider had not provided documentation requested via EOB prior to filing suit, amount at issue had not become overdue, and suit was premature -- Test results, including raw data, wave forms, and physician's interpretation are within meaning of statutory discovery provision for records regarding history, condition, and treatment that provider was legally required to provide pursuant to EOB request -- Insurer can request documentation or information from provider without also requesting sworn statement that treatment rendered was reasonable and necessary -- Motion for continuance to allow time to perfect service of affidavit in opposition to insurer's motion for summary judgment is denied and affidavit is stricken where affidavit faxed without cover sheet or exhibits does not comply with timeliness requirements or formal rule requirements -- Summary judgment granted in favor of insurer

12 Fla. L. Weekly Supp. 403a

Insurance -- Personal injury protection -- Coverage -- Passenger in rental vehicle driven by unauthorized driver -- Where driver's PIP policy defines covered persons broadly as persons occupying “your insured car” and defines “insured car” broadly as “any car you use,” passenger was not required to be resident or relative of driver to avail self of PIP coverage under driver's policy and driver's actual ownership of vehicle or being listed as additional driver on rental agreement is not prerequisite to coverage

12 Fla. L. Weekly Supp. 39b

Insurance -- Personal injury protection -- Coverage -- Claimant who failed to maintain insurance on own vehicle -- Inoperable vehicle -- Trial court prematurely shifted burden from insurer, who sought summary judgment on grounds that claimant injured as passenger failed to maintain PIP insurance on own vehicle, to medical provider/assignee without first determining that insurer met burden of proving nonexistence of material issues of fact -- Moreover, trial court erred in granting summary judgment where record reveals plain disputes of material fact as to inoperability of claimant's vehicle

12 Fla. L. Weekly Supp. 716a

Insurance -- Personal injury protection -- Coverage -- Foreseeable consequence of operating vehicle -- Injuries suffered while fleeing attack in vehicle -- Where insured who had been involved earlier in evening in bar fight was later attacked again at friend's residence and dragged out of allegedly running vehicle while attempting to flee, insured's injuries arose out of relationship with attackers, not operation of vehicle, and there is no PIP coverage for injuries -- Error to enter summary judgment for insured

12 Fla. L. Weekly Supp. 681b

Insurance -- Personal injury protection -- Coverage -- Insured person -- Passenger in leased vehicle -- Definition of “owner” in section 627.732(5) is definition to be used when determining whether driver's insurance affords PIP coverage to passenger of rental vehicle, not more restrictive definition in driver's insurance policy -- Where there is genuine issue of material fact as to whether rental agreement between driver and car rental company is security agreement that allows leasing driver to have “right of possession” of vehicle so as to allow driver to be owner of vehicle, and thereby qualify vehicle as “covered vehicle” and passenger as “insured person,” insurer's motion for summary judgment is denied

12 Fla. L. Weekly Supp. 1171b

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Usual and customary charges -- Fact that policy gives insurer the choice of independent sources to determine usual and customary charges does not preclude medical provider from disputing that source's finding of what is usual and customary charge for services in geographic area -- Insurer's motion for summary judgment is denied where there is disputed issue of material fact as to reasonableness of provider's charge, and it cannot be determined on summary disposition whether database accurately assesses reasonableness of charges

12 Fla. L. Weekly Supp. 379a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Medical provider -- Where medical provider was not at time of treatment and is not presently properly registered fictitious name, provider is not able to sue any entity -- Where provider was not and is not properly licensed to engage in or manage any business or profession in county or licensed with any governmental entity to perform medical treatment, any treatment was rendered unlawfully, and neither insurer nor insured are required to pay any charges

12 Fla. L. Weekly Supp. 216a

Insurance -- Personal injury protection -- Coverage -- Transportation expenses -- PIP statute does not provide for automobile transportation expenses incurred while driving to and from medical appointments

12 Fla. L. Weekly Supp. 873a

Insurance -- Personal injury protection -- Claims -- Medical bills -- Timeliness -- Where insurer filed affidavit stating bills were received over 75 days from date of service and letter of claims representative purporting to seek medical bills from claimant, claimant filed opposing affidavit of medical provider's billing clerk that failed to identify what bills were submitted or whether they were bills for particular claimant among four claimants involved under insured's policy, clerk's affidavit does not state facts upon which clerk's personal knowledge of transactions is based except that she reviewed mail receipts and records, and no copies of medical records were presented to satisfy hearsay exceptions, insurer's motion for summary judgment is granted

12 Fla. L. Weekly Supp. 890b

Insurance -- Personal injury protection -- Standing -- Where named plaintiff did not provide any services to insured or submit bills to insurer, but rather services were provided and bills submitted by similarly named medical provider that is separate and distinct corporate entity, and neither plaintiff nor provider produced assignment of benefits, plaintiff lacks standing -- Where plaintiff has not submitted any bills to insurer, motion for summary judgment finding plaintiff has not sustained any damages is granted -- Motion for summary judgment finding plaintiff failed to satisfy condition precedent of furnishing demand letter is granted -- Plaintiff whose bills had not been reduced or denied was required to submit demand letter under former version of statute then in effect and did not do so -- Final summary judgment granted in favor of insurer

12 Fla. L. Weekly Supp. 652a

Insurance -- Personal injury protection -- Coverage -- Medical provider -- Unregistered medical provider -- Where medical provider was required to register as clinic but failed to comply with registration requirements, insurer is entitled to reimbursement of expenses paid to provider from insureds' PIP policies -- Insurer is permitted to seek and obtain reimbursement at any time, even if investigation into charges did not commence within thirty days from date bill was submitted to insurer

12 Fla. L. Weekly Supp. 959a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reduction -- Reasonableness -- Medical provider's motion for summary judgment is denied where issue of reasonableness of usual and customary reduction remains in dispute

12 Fla. L. Weekly Supp. 693a

Insurance -- Personal injury protection -- Deductible -- Appeal of judgment in favor of insurer in action by medical provider seeking amount of reductions to bills applied to deductible at 80% of reduced amount -- Where total amount of bills at issue as originally billed is less than amount of deductible and bills were submitted before deductible was met, insurer was under no obligation to pay bills in whole or in part, and provider was not entitled to recover amount of reductions from insurer -- Insurer correctly applied reduced medical bills rather than original amount to deductible

12 Fla. L. Weekly Supp. 985b

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reduction -- Preferred provider -- Insurer not party to PPO contract -- Medical provider's motion for summary judgment is granted where provider has provided substantial record evidence that insurer is not party to contract or affiliate of parties to contract, insurer acknowledges it is not named party to contract, and insurer's conclusory affidavit which fails to set forth source of affiant's information or establish that affiant was competent to testify on issue is insufficient to create disputed issue of material fact as to whether insurer is affiliate of parties to contract

12 Fla. L. Weekly Supp. 230b

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reduction -- Preferred provider

12 Fla. L. Weekly Supp. 936a

Insurance -- Personal injury protection -- Failure to pay benefits -- Error to grant insured's motion for summary judgment where twelve affirmative defenses, all replete with numerous issues of fact, remained pending and where opposing party had not yet completed discovery -- Reduced payments made by an insurer in accordance with a preferred provider agreement do not violate section 627.736(10)

12 Fla. L. Weekly Supp. 1102a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Usual and customary charges -- Judgment of insurer's adjuster as to whether charges are usual and customary based on software “Fees on Disc” and AMA CPT code book cannot substitute for physician's report required before withdrawal of benefits -- Where adjuster does not know basis for amount given as ususal and customary charges by software, adjuster's testimony is incompetent evidence insufficient to raise genuine issue of material fact -- Where insurer obtained chiropractor's report based on independent medical examination to withdraw further benefits, but treating chiropractor's affidavit established that insurer received requests for payment for treatment prior to date of IME report, medical provider is entitled to partial summary judgment on issue of liability for treatment prior to IME date

12 Fla. L. Weekly Supp. 1098a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary treatment -- Summary judgment -- Where medical provider's motion for summary judgment with supporting affidavit establishes prima facie entitlement to relief on issue of whether treatment provided to insured was reasonable, related and necessary, and insurer's affidavit in opposition to motion was untimely served, summary judgment is granted in favor of provider -- No merit to argument that summary judgment cannot be granted because insurer has filed motion to amend answer and affirmative defenses to allege misrepresentation -- Court will not condone insurer's dilatory conduct in waiting nine months after insurer became aware of possible misrepresentation to file motion to amend

12 Fla. L. Weekly Supp. 937a

Insurance -- Personal injury protection -- Coverage -- No abuse of discretion in refusing to consider peer review notice when entering summary judgment in favor of medical providers where affidavit was untimely filed, and trial court found absence of any compelling reasons or exigent circumstances which might excuse tardiness

12 Fla. L. Weekly Supp. 1103a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary treatment -- Police report stating no apparent injuries were observed does not create disputed issue of material fact regarding whether insured was injured in accident where officer's statement is not inconsistent with insured's examination under oath and affidavit stating that injuries were internal -- Police report unsupported by affidavit fails to meet requirements of rule 1.510(e) and would not be admissible at trial as evidence of officer's observations -- Partial summary judgment granted in favor of medical provider

12 Fla. L. Weekly Supp. 925d

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary treatment -- Evidence -- Hearsay -- Medical diagnosis or treatment -- Insured's medical record and treating physician's testimony that he relied on accident information to diagnose and treat insured is admissible to establish existence of accident

12 Fla. L. Weekly Supp. 116a

Insurance -- Personal injury protection -- Coverage -- Usual and customary charges -- Summary judgment -- Factual issues -- No error in granting summary judgment in favor of medical provider where only affidavit on file at time of hearing on motion for summary judgment was affidavit filed by provider which swore that bill was usual and customary, and insurer filed mere denial unsupported by affidavit, testimony, or other evidence disputing amount of bill -- Affidavit of insurer's adjuster filed 27 days after summary judgment hearing, which did not contain any documentation demonstrating what insurer would consider to be reasonable amount for bill, assert that affiant was licensed physician, or give reason why bill was denied in its entirety, cannot be considered competent substantial evidence -- Other affidavit filed by adjuster relates to another claim and suit and cannot be considered competent reasonable proof in case -- Motion for rehearing was properly denied where it was based on late affidavit and failed to bring to attention of court any matter overlooked or misunderstood

12 Fla. L. Weekly Supp. 254c

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary treatment -- Summary judgment -- Medical provider's motion for summary judgment is granted where insurer failed to support answer and affirmative defenses asserting that medical services were not reasonable, related and necessary with affidavit; provider filed affidavit of physician swearing that services were reasonable, related and necessary, and insurer did not offer counter affidavit or otherwise respond to provider's affidavit

12 Fla. L. Weekly Supp. 244b

Insurance -- Personal injury protection -- Coverage -- Defenses -- Failure to attend examination under oath -- Where insurer did not schedule EUO within 30 days of receipt of notice of loss, insurer breached insurance policy by failing to pay PIP claim within 30 days after notice or establish that it had reasonable proof it was not liable for payment; and insurer is barred from using insured's failure to attend EUO as defense or reason for nonpayment -- Independent medical examination -- Cutoff of benefits based on IME report by chiropractor only affects chiropractic benefits and is inapplicable to bills from orthopedic medical provider -- Demand letter -- Requirement to send pre-suit demand letter was obviated by insurer's denial of benefits based on alleged failure to attend EUO -- Summary judgment granted in favor of providers where insurer failed to substantially impeach medical expert testimony of treating physicians or present countervailing evidence from licensed physician to dispute reasonableness, relatedness, and necessity of medical services and expenses

12 Fla. L. Weekly Supp. 984b

Insurance -- Personal injury protection -- Coverage -- Withdrawal -- Failure to obtain medical report -- Where insurer failed to obtain medical report prior to deciding not to pay claim, medical provider is entitled to summary judgment -- No merit to argument that requirement of medical report prior to “withdrawal” of benefits applies only when insurer has decided to pay claim and then later changes its mind

12 Fla. L. Weekly Supp. 969a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Unreasonable, unrelated or unnecessary treatment -- Failure to obtain medical report within 30 days -- Insurer cannot defend suit for denial of benefits on grounds of reasonableness, necessity or relatedness where peer review was not obtained until after bills became due and owing

12 Fla. L. Weekly Supp. 877a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary services -- Insurer created jury issue as to whether treatment was reasonable, related and necessary where insurer severely impeached medical provider during cross-examination with respect to provider's inability to determine when accident occurred from clinical evaluation of insured who presented for treatment one month after accident, provider's failure to include insured's physical labor in prior history, and provider's inability to tell how insured's cyst came about or logically relate cyst to accident, and jury issues were also presented by insured's testimony with respect to delay in seeking treatment and lack of physical injury in accident -- Renewed motion for directed verdict and motion for judgment notwithstanding verdict in insurer's favor is denied

12 Fla. L. Weekly Supp. 430a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Relation to accident -- Evidence -- Hearsay -- Exceptions -- Double hearsay of medical provider's records containing insured's statement to physician that she was in automobile accident was properly admitted to prove insured's injuries were related to accident where provider's records were introduced by records custodian who satisfied all predicate requirements for business records exception, and statement to physician without mention of identity or fault falls within hearsay exception for statements made for purposes of medical treatment

12 Fla. L. Weekly Supp. 669c

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable charges -- Summary judgment is precluded where genuine issue of material fact as to whether database accurately assessed reasonableness of medical provider's charges remains to be determined

12 Fla. L. Weekly Supp. 126b

Insurance -- Personal injury protection -- Summary judgment -- Factual issues -- Error to enter summary judgment where there are factual issues as to whether medical expenses were reasonable, necessary or related

12 Fla. L. Weekly Supp. 970a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Unreasonable, unrelated or unnecessary treatment -- Failure to obtain medical report within 30 days -- Strict interpretation of PIP statute to require physician's report as condition precedent only when benefits are withdrawn, but not when claim is outright denied, leads to ridiculous result and defeats purpose of PIP statute -- Insurer is barred from denying coverage based on physician's record review in absence of an independent medical examination and where review fails to account for IME examiner's findings -- Where insurer failed to obtain valid physician's report within 30 days of receipt of claim, insurer waived right to present countervailing expert testimony from a physician in opposition to treating physician's affidavit attesting to reasonableness, relatedness and necessity of treatment but may still contest claim through other defenses or substantially impeach treating physician -- Because insurer failed to obtain physician's report within 30 days of claim, that report was peer review without IME, insurer has not produced other proof of non-compensability, and insurer has voluntarily withdrawn affirmative defenses, peer review report and affidavit are stricken and final summary judgment is entered in favor of medical provider -- Questions certified

12 Fla. L. Weekly Supp. 986a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Unreasonable, unrelated or unnecessary treatment -- Summary judgment -- Affidavit and report of physician who conducted peer review is not sufficient to raise disputed issue of material fact where report based on “to best of my knowledge and information” rather than personal knowledge does not meet requirements of rule 1.510(e), attempt to certify or verify report is insufficient because rules specifically require that report be submitted under affidavit, and allowing insurer to substitute this physician for prior expert stricken as sanction for failure to comply with discovery would make sanction meaningless

12 Fla. L. Weekly Supp. 776a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary expenses -- Peer review physician's affidavit regarding treatment rendered does not create genuine factual issue as to whether medical treatment for which insurer denied coverage was reasonable, related and medically necessary where affidavit was not supported by physical examination and does not state physician's opinion with regard to propriety of treatment or proper foundation for admissibility under an exception to hearsay rule, and was not dated prior to denial of payment -- No merit to argument that requirement that insurer obtain valid report by physician stating treatment is not reasonable, related and necessary prior to withdrawal of benefits applies only to benefits withdrawn, not those withheld -- Report of physician who conducted independent medical examination, which is accompanied by authenticating affidavit, creates factual issue as to whether expenses rendered after IME date were reasonable, related and necessary -- Motion for summary judgment granted in part

12 Fla. L. Weekly Supp. 249a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related, and necessary medical expenses -- Insurer is precluded from attempting to create genuine issue of material fact on issue of whether expenses were reasonable, related, and necessary by using peer review performed more than 30 days after receipt of medical expenses where there is no other reasonable proof that supports denial or withdrawal of benefits -- Summary judgment is granted in favor of insured where insured met burden of establishing prima facie case that medical expenses were reasonable, related, and necessary through affidavit of treating physician; and insurer, which presented only invalid peer review report and testimony of litigation adjuster, failed to present sufficient countervailing evidence to rebut insured's case -- Where insurer never raised fact that insured does not appear as passenger on police report as affirmative defense, that fact alone is insufficient evidence supporting denial or withdrawal of benefits in absence of deposition testimony from officer or other evidence

12 Fla. L. Weekly Supp. 95a

Insurance -- Personal injury protection -- Coverage -- Unreasonable, unrelated or unnecessary medical expenses -- Peer review conducted years after disputed bills were received by insurer will not be considered in opposition to medical provider's motion for summary judgment on reasonableness, relatedness, and necessity of services where insurer did not comply with condition precedent to procure valid physician's report before withdrawing payment of benefits -- Motion for summary judgment granted

12 Fla. L. Weekly Supp. 515a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Withdrawal of benefits -- Treatment not reasonable, related, or necessary -- Nothing in plain language of section 627.736(7)(a) requires insurer to provide proof of independent medical examiner physician's licensure before insurer can raise affirmative defense that treatment for which payment was requested was not reasonable, related, or necessary -- Because both reasonableness and necessity are essential elements of plaintiff's case under No-Fault Law, issue of whether IME holds requisite license is to be raised by plaintiff in plaintiff's pleadings

12 Fla. L. Weekly Supp. 963b

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Unreasonable, unrelated or unnecessary expenses -- Peer review report submitted by insurer in opposition to medical provider's motion for summary judgment on issue of whether medical expenses are reasonable, related and necessary is not competent evidence that gives rise to disputed issue of material fact where report contains no authenticating provision and insurer has submitted no accompanying affidavit -- Report created for sole purpose of litigation is inadmissible as business record

12 Fla. L. Weekly Supp. 437a

Insurance -- Personal injury protection -- Coverage -- Defenses -- Failure to attend examination under oath -- Error to strike defense on ground that EUO requirement was extinguished by assignment of benefits -- Answer and affirmative defense specifying failure to attend EUO as condition precedent that did not occur set forth defense with particularity -- No merit to argument that defense was properly stricken because insurer breached policy prior to insured's failure to attend EUO by failing to pay claim within 30 days without reasonable proof that it was not liable for claim where insurer scheduled EUO to occur within 30 days of receipt of medical provider's bill, although it also provided alternative date outside 30-day period -- Where issue is reasonableness of charges, rather than whether medical services were reasonable, related, and necessary, affidavit of litigation adjuster stating charges were above usual and customary charges, which was hearsay but not rank hearsay, was competent evidence disputing medical provider's affidavit and granting of summary judgment on issue was improper

12 Fla. L. Weekly Supp. 892a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary services -- Where medical provider filed affidavit attesting that medical treatment was necessary and related to automobile accident and that charges were reasonable for services provided, insurer filed opposing affidavit from adjuster stating charges were not reasonable per insurer's bill auditing program but no evidence that services were not necessary and related, and adjuster's deposition indicates that she could attest that bills were reduced due to use of auditing program but could offer nothing to allow court to conclude results of auditing program would be admissible evidence, final summary judgment is granted in favor of providerAFFIRMED at14 Fla. L. Weekly Supp. 320c

12 Fla. L. Weekly Supp. 891a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary services -- Where medical provider filed affidavit attesting that office consultation he provided was medically necessary and related to automobile accident and that charge was reasonable and consistent charge within medical community, insurer filed opposing affidavit from claims representative stating charge was not reasonable per software program used to assist insurer in determining reasonableness of charges but no evidence that service was not necessary and related, and depositions of claims representative and adjuster could offer nothing to allow court to conclude results of software program would be admissible evidence, final summary judgment is granted in favor of providerAFFIRMED at14 Fla. L. Weekly Supp. 322a

12 Fla. L. Weekly Supp. 96a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Unreasonable, unrelated or unnecessary treatment -- Summary judgment -- Where medical provider filed affidavits of treating physicians which establish that all treatment was related to accident, reasonable, and necessary; and insurer failed to either substantially impeach medical expert testimony of treating physicians, present countervailing evidence from licensed physician, or establish that provider has not complied with conditions precedent; provider is entitled to summary judgment

12 Fla. L. Weekly Supp. 89a

Insurance -- Personal injury protection -- Civil procedure -- Insurer's reply to motion for summary judgment served one business day before motion hearing and affidavits of medical experts served on day of hearing are stricken as untimely served where insurer did not demonstrate that delay in service was excusable -- Coverage -- Reasonable, related or necessary medical expenses -- Where medical provider presented affidavits of treating physician and insured to establish that medical expenses were reasonable, related, and necessary; insurer's reply and affidavits have been stricken; and insurer has failed to establish that it had reasonable proof that it was not responsible for payment of medical bill within 30 days and failed to obtain report from physician in same licensing chapter as treating physicians stating no further treatment was medically necessary, all outstanding bills remain due and owing -- Even if police report attached to insurer's reply were considered, insured's statements to police officer regarding subjective complaints are inadmissible hearsay -- If statements were admissible as exception to hearsay rule, subjective statements regarding injuries at time of police report fail to create genuine issue of material fact regarding whether medical expenses were reasonable, related, and necessary -- Summary judgment granted in favor of provider

12 Fla. L. Weekly Supp. 495a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary treatment -- Summary judgment -- Disputed issue of material fact as to reasonableness, relatedness or necessity of treatment is not created by insurer obtaining peer review stating not all treatment was reasonable, related and necessary after withdrawal or denial of medical payments -- Where medical provider's affidavit establishes that treatment was related to accident but does not offer opinion that treatment was reasonable and medically necessary, and this cannot be inferred from statement that provider examined insured and prescribed treatment she received, affidavit is not sufficient to eliminate all disputed issues of material fact -- Insurer cannot challenge whether treatment was reasonable or medically necessary if provider is able to bring forth evidence that treatment was reasonable and medically necessary

12 Fla. L. Weekly Supp. 963a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary treatment -- Where medical provider has submitted affidavit of physician attesting to reasonableness, relatedness and medical necessity of treatment and affidavit of provider's officer manager attesting to reasonableness of charges, and insurer has filed nothing in response, provider's motion for summary judgment is granted as to issue of whether expenses are reasonable, related and necessary -- Provider's motion for summary judgment is denied as to issue of whether insured provided insurer with written notice of accident because issue is question of fact for jury to determine

12 Fla. L. Weekly Supp. 376a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 12 Fla. L. Weekly Supp. 485a

Insurance -- Personal injury protection -- Demand letter -- Summary judgment is granted in favor of medical provider on defense of failure to furnish pre-suit demand letter where there is no factual dispute that provider did furnish letter, and provider's obligation to provide letter dissipated when insurer suspended benefits -- Coverage -- Medical expenses -- Reasonable, related and necessary expenses -- There does not exist any question of material fact regarding reasonableness, relatedness and necessity of medical expenses and court grants motion for summary judgment where insurer failed to establish that it had reasonable proof it was not responsible for payment of bills within 30 days of receipt and failed to file properly authenticated and sworn report from physician licensed under same chapter as treating physicians stating no further treatment was medically necessary -- Adjuster's sworn answers to interrogatories referencing hearsay independent medical examination report is insufficient as matter of law to substantiate IME suspension date or otherwise support defense that expenses are not reasonable, related or necessary

12 Fla. L. Weekly Supp. 782a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary expenses -- Evidence -- Accident report that does not include insured is not admissible evidence to defeat insured's motion for partial summary judgment on issue of reasonableness, relatedness and medical necessity because report is not self-authenticating and neither statutes nor rules provide hearsay exception concerning accident reports -- Where accident report was sole evidence relied upon by insurer at summary judgment hearing, motion for partial summary judgment granted

12 Fla. L. Weekly Supp. 532a

Insurance -- Personal injury protection -- Coverage -- Evidence -- Accident report privilege -- Error to admit accident report into evidence because report is expressly inadmissible under section 316.066(4) and facts of case do not fall within exception to privilege -- Error was harmless where treating physician's testimony and insured's medical records, to which insurer did not object, provided jury with substantial factual basis to conclude insured was involved in automobile accident for which he sought medical treatment -- Treating physician's testimony was admissible as exception to hearsay rule where he testified that he relied on automobile accident information for purposes of diagnosis and treatment

12 Fla. L. Weekly Supp. 33a

Insurance -- Personal injury protection -- Coverage -- Unreasonable, unrelated or unnecessary medical expenses -- Where insurer did not raise affirmative defense of excessiveness of amounts billed or present any evidence that individual amounts billed were excessive, medical provider met burden of proof on reasonableness and necessity of services through testimony of treating physician and was not required to present specific expert testimony addressing reasonableness of amounts billed -- On cross-claim, summary judgment against third-party provider of MRI and CT-scan is reversed and remanded for trial on reasonableness and necessity of tests

12 Fla. L. Weekly Supp. 271a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary expenses -- Where both accident and treatment occurred during September 2001, policy on which claim is based could not have been classified as new or renewed on or after October 1, 2002 -- Accordingly, court must examine verdict finding that motion x-ray was necessary relative to requirements for reimbursement of medical expenses prior to 2001 amendment that replaced common law standard of whether procedure was “reasonably necessary” with higher standard that procedure be “medically necessary” -- Where fact finder determined that medical provider met burden on higher standard of “medically necessary,” appellate court can affirm verdict in light of correct lower standard of “reasonably necessary” as long as it too is supported by competent substantial evidence

12 Fla. L. Weekly Supp. 393a

Insurance -- Personal injury protection -- Coverage -- Denial -- Reasonable, related and necessary treatment -- Where medical provider has presented competent that treatment provided to insured was reasonable, related and medically necessary, and insurer has presented competent sworn evidence of independent medical examination and peer review report to raise issue of material fact as to whether treatment that occurred after date of withdrawal of benefits was reasonable, related and necessary but has not presented any competent sworn evidence for treatment prior to that date, provider is entitled to partial summary judgment on issue of liability for treatment prior to withdrawal date

12 Fla. L. Weekly Supp. 375a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary treatment -- Where insurer failed to establish it had reasonable proof it was not responsible for payment of medical bills within 30 days of receipt and has failed to establish that charges were not reasonable, related and necessary or that medical providers did not comply with any conditions precedent, summary judgment is granted as to all medical expenses except $450 waived by provider upon court's finding that peer review raises genuine issue of material fact regarding those expenses

12 Fla. L. Weekly Supp. 867a

Insurance -- Personal injury protection -- Rehearing -- Provider's policy of giving 50% discount to patients who pay for medical treatment in cash rather than through insurance violates state law -- Motion for rehearing in which provider seeks to introduce evidence that discount policy was not in effect on date of service at issue is denied -- Final judgment with prejudice is appropriate as insurer or insured is not required to pay claim for service that was not lawful when rendered

12 Fla. L. Weekly Supp. 265a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 12 Fla. L. Weekly Supp. 867a

Insurance -- Personal injury protection -- Provider's policy of giving 50% discount to patients who pay for medical treatment in cash, rather than through insurance, violates state law -- Although small percentage of reductions for cash payment might be understandable given cost of doing business with insurance companies, 50% reduction amounts to charging insurance companies an premium rate, which is illegal -- Court notes that pro bono or reduced fee medical rates for indigents are not affected by ruling

12 Fla. L. Weekly Supp. 93b

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related or necessary treatment -- Medical provider's motion for summary judgment is granted where there is no genuine issue of material fact as to reasonableness, relatedness, and necessity of medical bills or as to issue of provider's licensure to provide physical therapy

12 Fla. L. Weekly Supp. 668b

Insurance -- Personal injury protection -- Medical bills -- Reduction -- Needle electromyography procedure -- Statutory limitation of charges to 200% of allowable amount under Medicare Part B reimbursement schedule applies only to medically necessary nerve conduction testing when done in conjunction with needle electromyography not to medically necessary electromyography testing procedure alone

12 Fla. L. Weekly Supp. 1175a

Insurance -- Personal injury protection -- Coverage -- Medical benefits -- MRI -- Affidavit of treating physician that cervical and lumbar MRIs at issue were reasonble, medically necessary, and related to subject motor vehicle accident was not substantially impeached, and no countervailing evidence from licensed physician was presented -- Accordingly, provider/assignee is entitled to summary judgment as a matter of law

12 Fla. L. Weekly Supp. 870a

Insurance -- Personal injury protection -- Medical expenses -- Magnetic resonance imaging -- Where testimony of medical provider that MRI was related and medically necessary was unrefuted by any contradictory medical evidence and not severely impeached on cross-examination, verdict for insurer is against manifest weight of evidence -- Further, fact that insurer failed to submit any report by physician licensed under same chapter as provider stating MRI was not reasonable, related or necessary precludes insurer from denying payment -- Notice of loss -- Timeliness -- Record fails to demonstrate that insurer was prejudiced by 68-day delay in receiving notice of accident where insurer set independent medical examination for one month after receipt of notice and set examination under oath nearly four months after receipt of notice, and insurer did not attempt to use surveillance to investigate claim, although insured was still undergoing treatment after notice of loss was provided, or attempt peer review -- Judgment notwithstanding verdict is entered on issues of relatedness and medical necessity and verdict is directed on late notice issue that jury never reached

12 Fla. L. Weekly Supp. 384b

Insurance -- Personal injury protection -- Coverage -- Where medical provider established prima facie case of necessity of MRI and authenticity of assignment of benefits, and insurer failed to carry burden of establishing question of fact and admits it has no basis to challenge authenticity of assignment, summary judgment is granted in favor of provider

12 Fla. L. Weekly Supp. 989a

Insurance -- Personal injury protection -- Demand letter -- MRI -- Amount in excess of statutory fee schedule -- Demand letter for MRI which sought amount in excess of maximum compensable amount set by statute failed to satisfy statutory requirement for demand letter as matter of law -- Summary judgment granted in favor of insurer

12 Fla. L. Weekly Supp. 1094b

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- MRI -- Where insurer paid MRI provider pursuant to participating fee schedule under Medicare Part B without any consumer price index increase, insurer is liable to provider for consumer price index increase

12 Fla. L. Weekly Supp. 681a

Insurance -- Personal injury protection -- Coverage -- MRI -- Payment of allowable amount of Medicare Part B -- Medical consumer price index adjustment -- Where legislature intended that amount of payment authorized for MRI was to be adjusted annually, and legislature's subsequent amendment of statute to set standard for adjustment as CPI for all urban consumers for the south reveals what intent of legislature was, insurer was obligated to adjust amount it pays to MRI providers annually in accord with south regional CPI -- Summary judgment granted in favor of medical provider as to liability

12 Fla. L. Weekly Supp. 670b

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- MRI -- Fee schedule -- Insurer which paid medical provider's bill for MRI provided in 2002 at 175% of allowable amount under Medicare Part B has complied with statute, and provider is not entitled to adjustment to Medical Consumer Price Index for Florida that has never existed or adjustment based on Consumer Price Index for South region reflected in 2003 statutory amendment

12 Fla. L. Weekly Supp. 60a

Insurance -- Personal injury protection -- Coverage -- Magnetic resonance imaging -- “Medical Consumer Price Index for Florida” as used in section 627.736(5)(b)5 refers to Medical Care Item of Consumer Price Index for All Urban Consumers in South Region

12 Fla. L. Weekly Supp. 640a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- MRI -- Fee schedule -- Plain and ordinary meaning of language of MRI fee schedule provision of section 627.736(5)(b)(5) directs that fee schedule became effective upon act becoming law, which occurred on June 19, 2001 -- Provision in section 11(3) providing for effective date of October 1, 2001, refers to other sections of act and is not in disharmony with section 627.736(5)(b)(5)

12 Fla. L. Weekly Supp. 548b

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- MRI -- Insurer is not relieved from liability for payment of benefits for an otherwise payable MRI bill because bill submitted reflects amount in excess of amount allowed under statutory scheme -- Insurer remains obligated to pay amount allowed under statutory fee scheme based on percentage of coverage afforded under policy

12 Fla. L. Weekly Supp. 548a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- MRI -- Insurer is not relieved of liability for payment of benefits for an otherwise payable MRI bill because bill submitted reflects amount in excess of amount allowed under statutory scheme -- Insurer remains obligated to pay amount allowed under statutory fee scheme based on percentage of coverage afforded under policy

12 Fla. L. Weekly Supp. 547b

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- MRI -- Insurer is not relieved from liability for payment of benefits for an otherwise payable MRI bill because bill submitted reflects amount in excess of amount allowed under statutory scheme -- Insurer remains obligated to pay amount allowed under statutory fee scheme based on percentage of coverage afforded under policy

12 Fla. L. Weekly Supp. 547a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- MRI -- Insurer is not relieved from liability for payment of benefits for an otherwise payable MRI bill because bill submitted reflects amount in excess of amount allowed under statutory scheme -- Insurer remains obligated to pay amount allowed under statutory fee scheme based on percentage of coverage afforded under policy

12 Fla. L. Weekly Supp. 545b

Insurance -- Personal injury protection -- PIP insurer is not relieved from payment of benefits for otherwise reasonable, necessary, and related medical expense for MRI just because bill submitted to insurer reflects amount in excess of that allowed under statutory scheme

12 Fla. L. Weekly Supp. 545a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- MRI -- Insurer is not relieved from liability for payment of benefits for an otherwise payable MRI bill because bill submitted reflects amount in excess of amount allowed under statutory scheme -- Insurer remains obligated to pay amount allowed under statutory fee scheme based on percentage of coverage afforded under policy

12 Fla. L. Weekly Supp. 539c

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- MRI -- Insurer is not relieved of liability for payment of benefits for an otherwise payable MRI bill because bill submitted reflects amount in excess of amount allowed under statutory scheme -- Insurer remains obligated to pay amount allowed under statutory fee scheme based on percentage of coverage afforded under policy

12 Fla. L. Weekly Supp. 480a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- MRI -- Insurer's affidavit with unauthenticated paper independent medical examination report attached is stricken because IME report is inadmissible evidence -- Obtaining paper IME report over one year after receipt of bills, long after denial or refusal of payment and after medical provider filed suit for breach of contract to pay PIP benefits, is not in compliance with statutory requirement to obtain medical report stating treatment is not reasonable, related or necessary as condition precedent to withdrawing or refusing payment -- Fact that HCFA form submitted to insurer sets forth amount greater than MRI fee schedule does not provide defense to payment -- Final summary judgment is entered in favor of provider

12 Fla. L. Weekly Supp. 444b

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- MRI -- No merit to argument that trial court erred in granting summary disposition in favor of medical provider when it was never established that MRI bill was reasonable where provider agreed to insurer's request to move scheduled summary disposition hearing to later date subject to proviso that record would be frozen as of original hearing date, and issue of reasonableness of MRI bill raised in peer review was not disclosed prior to original hearing date -- Although statute limits what may be charged for MRI service, MRI charge in excess of fee schedule amount does not provide absolute defense to payment -- No error in entering summary judgment in favor of provider where affidavit of treating physician indicated why MRI was ordered, affidavits of provider's corporate representative and records custodian verified that MRI was performed, authenticated billing records and indicated how provider credits patient and insurer under fee schedule, and insurer failed to present contrary evidence sufficient to reveal genuine issue

12 Fla. L. Weekly Supp. 102b

Insurance -- Personal injury protection -- Coverage -- Magnetic resonance imaging -- Charges for MRI are subject to statutory fee schedule irrespective of amount of charge on HCFA form -- Insurer's motion for summary judgment denied

12 Fla. L. Weekly Supp. 715b

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- MRI -- Where original language of section 627.736(5)(b)(5) did not define “medical Consumer Price Index for Florida” to be used to adjust amount to be charged to PIP insurer for MRI and no index by that exact name exists, but Medical Care Item of CPI for all Urban Consumers in South Region is only CPI that fits within parameters set forth in statute, and clarifying amendment plainly evinces legislature's intent that medical CPI for Florida means CPI for Urban Consumers in South Region, trial court erred in not considering adjustment to MRI payment based on that CPI -- Demand letter -- Medical provider was not required to furnish demand letter as condition precedent to filing suit involving claim that was reduced

12 Fla. L. Weekly Supp. 725d

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- MRI -- Trial court properly ruled on claim, applying precedent holding that allowable amount under Medicare Part B refers to Medicare's participating fee schedule

12 Fla. L. Weekly Supp. 153a

Insurance -- Personal injury protection -- Coverage -- Magnetic resonance imaging -- Medicare fee schedule adjustment -- Prior to effective date of amendment to PIP statute, appropriate fee schedule to compensate medical provider for MRI was based on Medicare Part B schedule, not limiting charge -- Where Consumer Price Index for Florida, named in statute prior to amendment as basis for determining amount to calculate adjustment for consumer price index for MRI does not exist, insurer properly paid for MRI services by paying 200% of Medicare Part B schedule without adjustment

12 Fla. L. Weekly Supp. 335c

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- MRI

12 Fla. L. Weekly Supp. 590a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- MRI -- Unlicensed medical provider -- Defense that medical provider's treatment was unlawful for failure to have required medical license fails where provider's affidavits were sufficient to shift burden of going forward on defense to insurer, and insurer proffered nothing -- Peer review report concluding that MRI was not necessary is not valid report required prior to withdrawing treatment authorization where peer review physician did not examine insured and report fails to mention report of physician who conducted independent medical examination and rendered no opinion on necessity of MRI -- 2001 amendment to section 627.736(7) evinces legislative intent to end practice of peer review physicians opining merely on basis of records review by requiring that such conclusions be supported by physical examination -- Summary judgment granted in favor of provider

12 Fla. L. Weekly Supp. 494b

Insurance -- Personal injury protection -- Coverage -- Medical providers -- Failure of medical provider to obtain occupational license does not operate as bar to recovery of PIP benefits -- Medical treatment is “lawfully rendered” despite lack of occupational license since county occupational license law is not law related to provision of medical services and treatment

12 Fla. L. Weekly Supp. 671a

Insurance -- Personal injury protection -- Coverage -- Medical bills -- Late-submitted bill -- Action by insured against PIP carrier for satisfaction of liens claimed by Medicare and health insurance carrier for medical bills originally submitted to and paid by health insurer and Medicare -- Where bills were not submitted to PIP insurer within 30 days of rendition of treatment, bills are neither payable nor enforceable

12 Fla. L. Weekly Supp. 663a

Insurance -- Personal injury protection -- Medical expenses -- Functional capacity testing -- Patient brokering -- Kickbacks -- Where technician employed by plaintiff mobile diagnostic business traveled to medical provider's office to perform FCEs in provider's treatment room, technician used plaintiff's marketing method to obtain referral of insured by instructing provider he could bill for professional component of FCEs, marketing materials described to provider that referral would increase provider's revenues by ability to bill substantial professional component, plaintiff's method for soliciting referral of insured is unlawful as billing of professional component acted as improper financial consideration that induced referral -- Billing of technical component and professional component for same FCEs is unlawful and violates spirit of statutes prohibiting patient brokering and kickbacks -- Plaintiff that engaged in unlawful billing practices has failed to lawfully render reimbursable service pursuant to PIP statute

12 Fla. L. Weekly Supp. 1036a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- MRI -- Fee-splitting -- Patient brokering -- Global billing by medical provider which performed technical component of MRI but contracted with independent radiologist to perform professional component -- Where provider billed $250 for professional component of MRI services, and only professional services rendered were by independent radiologist who charged provider $50, payment sought by provider would result in fee-splitting and patient brokering -- Remand with instructions to enter judgment in favor of insurer

12 Fla. L. Weekly Supp. 787a

Insurance -- Personal injury protection -- Coverage -- Denial -- Reasonable proof within 30 days -- Insurer is not barred from contesting claim for PIP benefits by failing to pay claim or schedule EUO within 30 days of receipt of written notice of covered loss -- Medical provider's motion for summary judgment on issue of reasonableness, relatedness and necessity of medical expenses is denied although insurer has not presented any proof disputing reasonableness, relatedness or necessity, because affidavit submitted by provider which states that affiant is responsible for ensuring that charges are reasonable, properly coded and timely submitted fails to establish prima facie case that charges are reasonable, related and medically necessary -- Examination under oath -- Failure to attend -- Where insurer itself breached PIP policy by failing to pay bills or schedule EUO within 30-day authentication period, motion for summary judgment based on insured's failure to attend EUO is denied

12 Fla. L. Weekly Supp. 835b

Insurance -- Personal injury protection -- Examination under oath -- Failure to attend -- Where insurer scheduled EUO outside thirty-day investigatory period following receipt of first set of bills, but within thirty-day period after receipt of second set of bills, medical provider was entitled to summary judgment as to first set of bills only

12 Fla. L. Weekly Supp. 789a

Insurance -- Personal injury protection -- Coverage -- Medical bills -- Failure to authenticate within thirty days -- Insurer's attempts to toll time for authentication of medical bills through submission of explanation of benefits forms stating that bills were delayed were in clear violation of PIP statute -- Since insurer was required to obtain peer review report as condition precedent to denial of payment for medical bills, insurer may not rely on report obtained after denial of payments -- Partial summary judgment granted in favor of medical provider REVERSED at 14 Fla. L. Weekly Supp. 339a

12 Fla. L. Weekly Supp. 172a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Exhaustion of policy limits -- Subsequent claim for unpaid bills -- Summary judgment -- Where benefits were available at time provider's bills were received and thirty days after receipt of bills when liability for overdue PIP benefits was established, insurer is precluded from raising defense of subsequent exhaustion of benefits -- Provider's motion for partial summary judgment is granted

12 Fla. L. Weekly Supp. 938a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Evidence -- Harmful error to strike medical records relating to NCVs admitted into evidence during medical provider's case, which were admissible under evidence code -- With records in evidence, error to grant motion for directed verdict on NCV issue at close of provider's case -- Error to grant motion for directed verdict on issue of non-payment for MRIs where provider had arguable position of substantial compliance with statutes relating to form and substance of bills and predicate for arguing that preparation and submission of bills complied with tradition, custom and commonly accepted business practice in PIP community

12 Fla. L. Weekly Supp. 1097b

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary treatment -- Peer review obtained after insurer decided not to pay claim and to withdraw benefits was not timely obtained -- No merit to argument that requirement to obtain medical report before withdrawal of benefits applies only when insurer had decided to pay claim and later changed mind

12 Fla. L. Weekly Supp. 161b

Insurance -- Personal injury protection -- Coverage -- Denial -- Explanation of benefits -- Sufficiency -- Where, rather than setting forth precise reason for denial of claim, insurer's letters set forth verbatim roster of statutes, letters failed to meet statutory requirements for EOB -- In failing to comply with statutory requirement to provide itemized specification for declined claims, insurer breached insurance contract -- Partial summary judgment entered in favor of medical provider as to liability

12 Fla. L. Weekly Supp. 678b

Insurance -- Personal injury protection -- Explanation of benefits -- Failure to provide requested information -- Where medical provider failed to provide additional information requested in EOBs issued within 30 days of insurer's receipt of bills, bills never became overdue, and insurer is relieved of duty to pay PIP benefits

12 Fla. L. Weekly Supp. 677a

Insurance -- Personal injury protection -- Coverage -- Denial -- Explanation of benefits -- Because provisions of PIP statute became part of insurance contract, insurer breached contract when it failed to comply with statutory requirement to provide EOB itemizing charges received and detailing reasons for non-payment and failed to respond to medical provider's pre-suit demand letter specifically requesting that information

ORDER GRANTING DEFENDANT'S MOTION FORSUMMARY FINAL JUDGMENT, and FINAL SUMMARYJUDGMENT IN FAVOR OF DEFENDANT

12 Fla. L. Weekly Supp. 505b

Insurance -- Personal injury protection -- Delay in payment of benefits -- Tolling of period -- Explanation of benefits -- Where insurer did not dispute amount of charge for TNS unit but sent EOB requesting invoice 10 days after receipt of bill, EOB tolled 30-day time limit for making payment and insurer had 20 days after receipt of invoice to make payment -- Demand letter -- No merit to insurer's argument that it cannot be held liable for TNS unit bill being overdue because demand letter needed to be sent after invoice was received by insurer and 20 days passed without payment where insurer stipulated during discovery that condition precedent of demand letter as to TNS unit was satisfied and never took any action to dismiss suit or amend answer to assert affirmative defense or notified medical provider that insurer required another suit to be filed to litigate TNS unit bill -- Partial summary judgment granted as to bill

12 Fla. L. Weekly Supp. 1077a

Insurance -- Personal injury protection -- Notice of loss -- No merit to defense of failure to provide written notice of accident where insured provided notice of claim as soon as practicable -- There was no prejudice to insurer from any alleged late notice, as insurer delayed in scheduling independent medical examination and examination under oath -- Fraud -- Insurer failed to specifically plead claim for fraud where insurer failed to state that it relied on representation in billings and was damaged by expenses incurred in investigating fraudulent claim -- Insurer, which did not pay any bills, has not sustained any damages or relied to its detriment on claims for payment -- Coverage -- Medical expenses -- Reasonable, related and necessary treatment -- Peer review report is not considered for purposes of ruling on motion for summary judgment where insurer did not furnish report until hearing on motion -- IME report and peer review report prepared for purposes of litigation are not admissible under business records exception to hearsay rule -- Affidavit and deposition testimony of adjuster concerning IME physician's report is not competent to create genuine issue of material fact regarding reasonableness, relatedness or necessity of treatment -- Where insurer failed to either substantially impeach medical expert testimony of treating physician or present countervailing evidence from licensed physician to dispute reasonable, related and necessary medical services and expenses, and insurer failed to establish that medical providers have not complied with any conditions precedent to suit, providers are entitled to summary judgment

12 Fla. L. Weekly Supp. 589b

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Summary judgment is granted as to issues of insured's involvement in accident and coverage by valid policy where medical provider provided record evidence meeting its burden of proof, and insurer failed to come come forward with contrary evidence -- Ruling is reserved on issue of whether MRI was reasonable, necessary and related until after hearing to determine why two peer review reports are materially different -- By agreement of parties, summary judgment is granted on issues of timeliness of billing and insurer's payment and whether denial of benefits was properly based on alleged failure to give timely notice of accident

12 Fla. L. Weekly Supp. 589a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Summary judgment is granted as to issues of insured's involvement in accident and coverage by valid policy where medical provider provided record evidence meeting its burden of proof, and insurer failed to come come forward with contrary evidence -- Ruling is reserved on issue of whether MRI was reasonable, necessary and related until after hearing to determine why two peer review reports are materially different -- By agreement of parties, summary judgment is granted on issues of timeliness of billing and insurer's payment and whether denial of benefits was properly based on alleged failure to give timely notice of accident

12 Fla. L. Weekly Supp. 714a

Insurance -- Personal injury protection -- Complaint -- Dismissal -- Error to grant motion in limine and dismiss suit on ground that subsequent bills incurred after insured failed to attend independent medical examination were not pleaded in complaint and those pled were already paid where complaint was sufficient to include subsequent bills incurred, as evidenced by fact that insurer did not seek voluntary dismissal after paying bills incurred before IME but instead asserted affirmative defense of failure to attend IME, and it is clear that insurer knew that complaint included subsequent bills incurred after IME -- Further, ruling on motion in limine was erroneous where motion was actually motion for summary judgment or motion for judgment on pleadings

12 Fla. L. Weekly Supp. 875a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Magnetic resonance imaging -- Where affidavit of physician who requested MRIs supports finding that MRIs were reasonable, related and necessary, and insurer filed only unauthenticated hearsay report in opposition, medical provider that performed MRI is entitled to payment for MRI based on Medicare fee schedule -- Demand letter -- Insurer's denial of bills due to lack of countersignature relieved provider of necessity of serving pre-suit demand letter -- Examination under oath -- Failure to attend -- Where EUO was not scheduled to occur within 30 days of insurer's receipt of bills, defense of failure to attend EUO is not available -- Further, suspension of benefits prior to dates of scheduled EUOs, based on independent medical examination, constituted anticipatory breach that discharged insured's duty to attend EUO -- Final summary judgment entered in favor of provider

12 Fla. L. Weekly Supp. 967a

Insurance -- Personal injury protection -- Coverage -- Affirmative defenses -- Notice of loss -- Medical provider has overcome any prejudice from 37 day delay between accident and notice to insurer where insurer was fully able to investigate claim through independent medical examination, examination under oath, and peer review -- Disclosure and acknowledgment form -- Summary judgment is granted in favor of medical provider on affirmative defense of failure to provide disclosure and acknowledgment form where copy of form that substantially complied with statutory requirement was filed with affidavit of provider's records custodian -- Unreasonable, unrelated or unnecessary treatment -- Summary judgment is granted in favor of provider as to affirmative defense that treatment was unreasonable, unrelated or unnecessary where provider filed affidavit of treating physician attesting that treatment was related and necessary and affidavit of records custodian attesting that charges were reasonable, and insurer filed peer review that did not establish that insurer had reasonable proof pursuant to statute -- Where IME report raises disputed issues of material fact as to reasonableness, relatedness or necessity of medical treatment rendered after IME date, summary judgment is granted in favor of provider as to dates of service prior to IME cutoff only

12 Fla. L. Weekly Supp. 88b

Insurance -- Personal injury protection -- Coverage -- Lost wages -- Insured is entitled to loss of gross income for time he was forced to take as paid vacation days due to injuries, and insurer does not receive credit in amount paid to insured by his employer for those vacation days -- Unreasonable, unrelated or unnecessary medical expenses -- Summary judgment on entitlement to payment for medical services is precluded by factual issue regarding reasonableness, relatedness, and necessity of services raised by peer review

12 Fla. L. Weekly Supp. 1035b

Insurance -- Personal injury protection -- Coverage -- Pedestrian struck by rented vehicle -- Appeal of judgment in favor of rental car company in action by injured pedestrian against both rental company and driver's PIP insurer -- Where rental car driver's PIP policy covers any pedestrian struck by “covered vehicle,” policy defines “covered vehicle” as all vehicles owned by policyholder, and section 324.021(9)(b)(2) classifies lessor of rental vehicle as owner of vehicle for purposes of liability, injury to pedestrian struck by rented car is covered by PIP policy

12 Fla. L. Weekly Supp. 826c

Insurance -- Personal injury protection -- Error to enter summary judgment in favor of insurer where insurer's failure to file answer necessarily created issues of fact -- Further, competing affidavits of claims adjuster, insured and insured's mother as to whether insured had notified insurer prior to accident of move to Florida from state without PIP benefits created genuine issue of fact precluding summary judgment -- If trial court determined that insured had not properly framed cause of action, opportunity to amend complaint should have been granted where no answer had been filed and insured may have bona fide cause of action if she timely notified insurer's agent of change of residence -- Demand letter -- Affirmance is not warranted on alternative basis that summary judgment should have been granted because insured failed to serve demand letter where neither party has raised or argued that issue on appeal

12 Fla. L. Weekly Supp. 377a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary treatment -- MRI -- No merit to insurer's claim that it is not obligated to make any payment for MRI because amount billed exceeded statutory maximum -- Where treating physician's testimony established that MRI was medically necessary and related to insured's injuries; court cannot consider peer review report that was not obtained before MRI bill was denied; and independent medical examination report does not express any opinion concerning necessity of MRI or other care rendered prior to examination; there is no genuine issue of material fact regarding reasonableness, relatedness and necessity of MRI -- Fraud -- Affirmative defense of fraud is deemed waived where insurer has provided no facts in answer that would support defense -- Demand letter -- Where evidence establishes that pre-suit demand letter was mailed and was received by insurer, and demand letter was not required because insurer denied payment of medical bill, affirmative defense of failure to send sufficient demand letter fails -- Provider's motion for summary judgment granted

12 Fla. L. Weekly Supp. 1174a

Insurance -- Personal injury protection -- Explanation of benefits -- Failure to provide -- Motion for partial summary judgment as to count alleging breach of contract for failure to provide EOB is granted where insurer concedes it failed to provide EOB

12 Fla. L. Weekly Supp. 790a

Insurance -- Personal injury protection -- Coverage -- Denial -- Reasonable proof within thirty days -- Claims adjuster's deposition testimony that insurer down-coded CPT codes at issue without reasonable proof, in conjunction with medical provider's motion for partial summary judgment, shows insurer failed to obtain reasonable proof within 30-day authentication period -- Affidavit of president of coding consultant firm does not establish dispute of material fact as to CPT codes -- Affidavit prepared for sole purpose of litigation and lacking trustworthiness is inadmissible -- Exhaustion of policy limits -- Insurer that failed to plead exhaustion of policy limits as defense before or during hearing on motion for partial summary judgment waived defense -- Partial summary judgment granted in favor of provider

12 Fla. L. Weekly Supp. 486a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reduction -- Exhaustion of policy limits -- Subsequent claim for unpaid portion of medical bills -- Summary judgment is precluded by factual issue of whether reduced amount paid by insurer prior to policy limits exhausting was reasonable amount for services provided

12 Fla. L. Weekly Supp. 567a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Exhaustion of policy limits -- Subsequent claim for unpaid portion of bills -- Where initial timely submission of bill to insurer prior to exhaustion of policy limits sufficiently placed insurer on notice that litigation may ensue if bill was not paid in full, insurer paid bill at reduced amount, and medical provider filed suit for unpaid portion of bill after policy limits were exhausted but prior to expiration of statute of limitations for breach of contract action, genuine issue of material fact as to whether provider's charges were unreasonable or unnecessary prevents entry of summary judgment in favor of insurer

12 Fla. L. Weekly Supp. 75b

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reduction -- Claim for unpaid portion of bills subsequent to exhaustion of policy limits -- Where policy limits were exhausted well before suit was filed, insurer is as matter of law not liable to provider for remainder of reduced benefits or denied benefits but may still be liable for statutory damages for lateness of reduced and denied payments, including interest and attorney's fees -- Insurer's motion for summary judgment is granted in part and denied in part

12 Fla. L. Weekly Supp. 674b

Insurance -- Personal injury protection -- Coverage -- Exhaustion of policy limits -- Subsequent claim for unpaid portion of bills -- Motion for summary judgment is denied despite failure of medical provider to put insurer on notice of dispute regarding insurer's reduction of bill prior to exhaustion of policy limits where issue of whether sufficient benefits were awarded to pay provider properly and in accordance with statute prior to benefits being exhausted is question for trier of fact

12 Fla. L. Weekly Supp. 383a

Insurance -- Personal injury protection -- Coverage -- Exhaustion of policy limits -- Where there is no dispute that insurer paid out in excess of policy limits prior to medical provider filing suit, insurer is entitled to summary judgment -- Insurer was entitled to reapportion overpayment of PIP benefits to outstanding Medpay coverage

12 Fla. L. Weekly Supp. 670c

Insurance -- Personal injury protection -- Coverage -- Exhaustion of policy limits -- Insurer did not err in exhausting policy limits by paying hospital claim rather than medical provider's claim that was submitted prior to hospital's claim where insurer received hospital claim of lien within 30 days from date insurer received provider's claim, and insurer properly held benefits pending receipt of hospital invoice and then exhausted benefits by paying invoice

12 Fla. L. Weekly Supp. 382a

Insurance -- Personal injury protection -- Coverage -- Exhaustion of policy limits -- Insurer's motion for summary judgment based on exhaustion of policy limits is denied -- Attachments to motion cannot be considered because they are not sworn or certified, and issues of material fact remain with regard to order in which insurer received claim submissions and whether insured was overpaid for wage loss

12 Fla. L. Weekly Supp. 998a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Hospital lien -- Where hospital holding lien for limits of PIP policy submitted offer to insured through insurer that would have allowed insured to retain portion of benefits, insured rejected offer, and hospital requested that insurer send full payment of lien, insurer had no obligation to advise insured prior to paying benefits to hospital that there would be no further offers from hospital and that insured could either accept hospital's offer or all of her PIP benefits would be taken by hospital

12 Fla. L. Weekly Supp. 231b

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Exhaustion of policy limits -- Medical provider/assignee's interests under PIP policy are extinguished where benefits have been exhausted and provider failed to give insurer timely or sufficient notice of dispute prior to exhaustion -- Summary judgment entered in favor of insurer

12 Fla. L. Weekly Supp. 210c

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Exhaustion of policy limits -- No error in dismissing cases where benefits were exhausted before suits were filed and medical provider did not allege or demonstrate that insurer conducted itself inappropriately in any way

12 Fla. L. Weekly Supp. 237a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Exhaustion of policy limits -- Subsequent claim for unpaid portion of medical bills -- Where medical provider never requested that insurer escrow or reserve benefits for unpaid portions of reduced bills or put insurer on notice that it was contesting partial payments until suit was filed after exhaustion of policy limits, summary judgment is granted in favor of insurer

12 Fla. L. Weekly Supp. 121b

Insurance -- Personal injury protection -- Coverage -- Exhaustion of policy limits -- Escrow request -- Specificity -- No error in determining that escrow request was insufficient where request authorized insurer to reserve any disputed or unpaid medical bills but did not specify amount to be placed in escrow, and record does not reflect whether request was provided to insurer in advance of suit or whether medical provider contested reductions in advance of filing suit

12 Fla. L. Weekly Supp. 351a

Insurance -- Personal injury protection -- Coverage -- Exhaustion of policy limits -- There is no provision in PIP statute for escrow of benefits -- Court cannot enforce demand for escrow of benefits -- Insurer cannot be required to pay more than policy limits unless there is bad faith on part of insurer

12 Fla. L. Weekly Supp. 1185a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Exhaustion of policy limits -- Request to escrow disputed PIP benefits stricken

12 Fla. L. Weekly Supp. 1172c

Insurance -- Personal injury protection -- Section 627.736 does not make provisions for plaintiff to demand escrow of PIP benefits pending resolution of dispute

12 Fla. L. Weekly Supp. 688a

Insurance -- Personal injury protection -- Coverage -- Exhaustion of policy limits -- Subsequent claim for unpaid portion of bills -- No error in granting summary judgment in favor of insurer where fact of exhaustion of policy limits was not in dispute -- Reasonableness of insurer's reduction of medical bills, while a genuine issue of material fact at time of reduction, was no longer material after benefits were exhausted -- Medical provider's suggestions that insurer should have held money in escrow until statute of limitations expired, issued joint checks, or filed interpleader action do not comport with purpose of no-fault statutory scheme to provide swift and virtually automatic payment

12 Fla. L. Weekly Supp. 594a

Insurance -- Personal injury protection -- Demand to reserve contested amounts stricken -- Neither policy nor statute requires insurer to reserve funds after making full or part payment

12 Fla. L. Weekly Supp. 1104a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Exhaustion of policy limits -- Subsequent claim for unpaid portion of bills -- Insurer has no obligation to reserve funds where no objection has been made or lawsuit filed by medical provider at time of exhaustion of benefits

12 Fla. L. Weekly Supp. 1092c

Insurance -- Personal injury protection -- Coverage -- Exhaustion of policy limits -- Where PIP policy limits had been exhausted by time medical provider served complaint, there is no evidence that provider requested or instructed insurer not to pay other claims until benefits claimed by provider had been resolved or adjudicated, and there is no evidence insurer's exhaustion of benefits was undertaken in bad faith, provider has no cause of action for recovery of benefits

12 Fla. L. Weekly Supp. 994a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Exhaustion of policy limits -- Medical provider's entitlement to statutory interest and penalties for overdue PIP benefits survives exhaustion of policy limits -- Insurer's motion for summary judgment denied

12 Fla. L. Weekly Supp. 957a

Insurance -- Personal injury protection -- Coverage -- Exhaustion of policy limits -- Where policy limits were exhausted after suit was filed, medical provider cannot maintain action against insurer

12 Fla. L. Weekly Supp. 86a

Insurance -- Personal injury protection -- Coverage -- Denial -- Failure to attend examination under oath -- Insurer which breached PIP policy by failing to pay medical bills within 30 days or establish that it had reasonable proof that it was not responsible for payment and which failed to timely schedule EUO within 30 days of receipt of notice of loss is barred from using insured's failure to attend EUO as reason for non-payment

12 Fla. L. Weekly Supp. 42a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 12 Fla. L. Weekly Supp. 531b

Insurance -- Personal injury protection -- Coverage -- Denial -- Examination under oath -- Failure to attend -- Insurer can defend claim on basis of insured's failure to attend EUO set outside of 30-day statutory period after submission of medical bills -- Insurer's failure to pay claim or obtain reasonable proof that it is not responsible for payment within 30-day period subjects insurer to penalties of interest and attorney's fees but does not forever bar insurer from contesting claim -- Summary judgment was properly entered in favor of insurer

12 Fla. L. Weekly Supp. 631b

Insurance -- Personal injury protection -- Declaratory judgment -- Coverage -- Error to weigh evidence and make credibility determination when deciding motion for directed verdict/involuntary dismissal -- New trial required -- Attorney's fees -- Appellate -- Plaintiff's motion for appellate fees for non-final appeal is granted contingent on plaintiff ultimately prevailing with recovery on policy

12 Fla. L. Weekly Supp. 490a

Insurance -- Personal injury protection -- Coverage -- Denial -- Unreasonable, unnecessary or unrelated medical expenses -- Reasonable proof within thirty days -- While insurer does not lose right to contest whether bill is reasonable, related and necessary if it fails to obtain reasonable proof within 30 days of receipt, insurer must obtain medical report before it can thereafter withdraw benefits -- Where more than 30 days after receipt of bills for medical and chiropractic treatment insurer obtained peer review by chiropractor opining that some chiropractic treatment was excessive, and insured's motion for summary judgment does not argue that insurer withdrew benefits before it obtained medical report or establish that no dispute exists as to whether insurer failed to obtain medical report before withdrawing benefits, insured is entitled to summary judgment as to all medical bills but is entitled to summary judgment only as to that portion of chiropractic bills not controverted by peer review

12 Fla. L. Weekly Supp. 673c

Insurance -- Personal injury protection -- Coverage -- Denial -- Independent medical examination -- Failure to attend -- Where medical provider agreed to reschedule IME at request of insured's attorney, insurer is prohibited from using first IME date as date of suspension of benefits -- Where insured unreasonably failed to attend second scheduled IME, insurer is not obligated to pay medical bills received after insured's nonattendance but is required to pay bills received prior to nonattendance -- Notice of loss -- Failure of insured to provide notice of loss until sixteen days after accident is insufficient to deny payment where insured provided notice of claim as soon as practicable and, even if notice was late, there is no allegation that insurer was prejudiced by late notice -- Summary judgment granted in favor of medical provider

12 Fla. L. Weekly Supp. 491a

Insurance -- Personal injury protection -- Coverage -- Denial -- Explanation of benefits -- Insurer's motion for summary judgment arguing that medical provider's noncompliance with EOB request for records and information constitutes failure to satisfy condition precedent to suit is denied where there is factual issue as to whether insurer requested additional information within 30 days of receipt of invoices -- Insurer is entitled to partial summary judgment as to facts that information was requested and that provider failed to provide anything in response to request

12 Fla. L. Weekly Supp. 491a

Insurance -- Personal injury protection -- Coverage -- Denial -- Explanation of benefits -- Insurer's motion for summary judgment arguing that medical provider's noncompliance with EOB request for records and information constitutes failure to satisfy condition precedent to suit is denied where there is factual issue as to whether insurer requested additional information within 30 days of receipt of invoices -- Insurer is entitled to partial summary judgment as to facts that information was requested and that provider failed to provide anything in response to request

12 Fla. L. Weekly Supp. 983a

Insurance -- Personal injury protection -- Coverage -- Denial -- Unreasonable, unrelated or unnecessary expenses -- Failure to obtain reasonable proof within 30 days -- Where insurer's failure to pay PIP benefits or provide explanation of benefits explaining reason for denial of payment within 30 days of receipt of notice of claim shows insurer did not have reasonable proof to deny payment within 30-day statutory period, insurer is precluded from asserting defense that treatment was not reasonable, related or necessary

12 Fla. L. Weekly Supp. 452a

Insurance -- Personal injury protection -- Coverage -- Denial -- Explanation of benefits -- No error in finding insurer breached contract by failing to provide EOB for reduced or rejected claims without requiring medical provider to prove underlying treatment was reasonable and necessary

12 Fla. L. Weekly Supp. 391a

Insurance -- Personal injury protection -- Coverage -- Denial -- Explanation of benefits -- Medical provider/assignee's claim for breach of contract for not providing adequate EOB -- Date of loss, date of claim, date of service, and amount of claim are sufficient “itemization” where complete denial of claim is made -- However, where insurer failed to specify reason for denial, insurer's responses failed to meet “specification” requirement of section 627.736(4)(b) -- As section 627.736(4)(b) has become part of PIP insurance contract, provider is entitled to assert insurer's failure to provide required EOB as separate cause of action for breach of contract -- Summary judgment granted in favor of provider

12 Fla. L. Weekly Supp. 391a

Insurance -- Personal injury protection -- Coverage -- Denial -- Explanation of benefits -- Medical provider/assignee's claim for breach of contract for not providing adequate EOB -- Date of loss, date of claim, date of service, and amount of claim are sufficient “itemization” where complete denial of claim is made -- However, where insurer failed to specify reason for denial, insurer's responses failed to meet “specification” requirement of section 627.736(4)(b) -- As section 627.736(4)(b) has become part of PIP insurance contract, provider is entitled to assert insurer's failure to provide required EOB as separate cause of action for breach of contract -- Summary judgment granted in favor of provider

12 Fla. L. Weekly Supp. 396a

Insurance -- Personal injury protection -- Coverage -- Denial -- Explanation of benefits -- Form response letter that cites to various subsections of section 627.736, but does not explain which provisions apply, how medical provider violated statute, and what is needed to process claim is not legally sufficient EOB -- Partial summary judgment entered in favor of provider on claim of entitlement to EOB and attorney's fees

12 Fla. L. Weekly Supp. 372a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 12 Fla. L. Weekly Supp. 970a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary treatment -- Summary judgment -- Affidavit of peer review physician and attached peer review report is not competent evidence that would create genuine issue of material fact where affidavit is conclusory and does not state physician's opinion or basis of opinion with regard to propriety of treatment, but merely authenticates peer review report, which is inadmissible as document created for sole purpose of litigation -- Peer review report is not valid report allowing insurer to withhold benefits on grounds of medical report where report was not obtained prior to withholding benefits and is not factually supported by physical examination -- Insurer's failure to pay benefits within thirty days does not bar insurer from posing other defenses, such as late notice -- Summary judgment granted in favor of provider with respect to whether treatment was reasonable, related and necessary

12 Fla. L. Weekly Supp. 41b

Insurance -- Personal injury protection -- Coverage -- Defenses -- Failure to attend examination under oath -- Error to strike defense on grounds that EUO requirement was extinguished by assignment of benefits -- Answer and affirmative defense specifying failure to attend EUO as condition precedent that did not occur set forth defense with particularity -- No merit to argument that defense was properly stricken because insurer breached policy prior to insured's failure to attend EUO by failing to pay claim within 30 days without reasonable proof that it was not liable for claim where insurer scheduled EUO to occur within 30 days of receipt of medical provider's bill, although it also provided alternative date outside 30-day period -- Where issue is reasonableness of charges, rather than whether medical services were reasonable, related, and necessary, affidavit of litigation adjuster stating charges were above usual and customary charges was competent evidence disputing medical provider's affidavit and granting of summary judgment on issue was improper

12 Fla. L. Weekly Supp. 1174b

Insurance -- Personal injury protection -- Coverage -- Medical benefits -- MRI -- Summary judgment entered in favor of provider, as assignee of insured -- Civil procedure -- Affidavit of insurer's claims adjuster was untimely and therefore inadmissible for purposes of summary judgment where affidavit was not mailed five days prior to hearing -- Notice of accident -- Insurer was not prejudiced by twenty-six-delay in reporting accident since insurer did not schedule examination under oath until more than five months after receipt of notice of accident/loss and did not schedule independent medical examination for more than four months after receiving notice of accident/loss -- Insurer's allegation that referring physician committed fraud was not pled with specificity and particularity required by law, and, accordingly, this affirmative defense is stricken -- Affidavit of treating/referring physician that MRI at issue was reasonable, medically necessary, and related to subject motor vehicle accident was not substantially impeached by insurer

12 Fla. L. Weekly Supp. 792b

Insurance -- Personal injury protection -- Coverage -- Affirmative defenses -- Amendment -- Timeliness of motion -- Where case had already been pending for 18 months when insurer filed motion to amend affirmative defenses to allege material misrepresentation, case involves relatively small amount in dispute, medical provider has already been required to come to court several times on pretrial matters at behest of insurer, and insurer is unable to advise court of legitimate reasons for significant delay in case, motion to amend affirmative defenses is denied

12 Fla. L. Weekly Supp. 709d

Insurance -- Personal injury protection -- Coverage -- Affirmative defenses -- Amendment -- No error in failing to consider insurer's amended answer and affirmative defenses prior to entry of summary judgment where insurer never obtained leave of court to file amended pleading -- Affirmative defense of failure of insured to countersign bill was properly stricken -- Grant of partial summary judgment as to defense of lack or lateness of written notice of accident was proper where insurer failed to show any prejudice from receiving notice when it did -- No error in entry of summary judgment as to defense of fraud where defense was withdrawn and than raised again in amended answer that insurer did not obtain leave to file -- No error in entering summary judgment as to defenses of failure to provide insurer with valid assignment and reasonableness, relatedness and necessity of medical expenses where defenses had already either been stricken or ruled upon by trial court -- Error to enter summary judgment where affirmative defense of failure to attend independent medical examinations that was raised in original answer and affirmative defenses but was never disproved or found by trial court to be legally insufficient prior to entry of summary judgment

12 Fla. L. Weekly Supp. 517a

Insurance -- Personal injury protection -- Coverage -- Appeal of order granting summary judgment in PIP action brought by plaintiff injured while driving parents' vehicle against insurer of parents' vehicle and insurer of vehicle co-owned by plaintiff and former fiance -- Where trial court granted summary judgment in favor of insurer of co-owned vehicle, holding that PIP coverage under policy would only apply to plaintiff if she was driving co-owned vehicle or another vehicle insured under that policy because she was not named insured on policy, and same court subsequently entered summary judgment in favor of insurer of parents' vehicle, determining that plaintiff did have PIP coverage with insurer of co-owned vehicle, factual and legal inconsistencies in two orders precluded entry of summary judgment -- Summary judgment in favor of insurer of parents' vehicle is reversed

12 Fla. L. Weekly Supp. 81a

Insurance -- Personal injury protection -- Coverage -- Affirmative defenses -- Fraud defense is stricken where insurer has failed to satisfy requirements that it make specific allegations and clearly state facts constituting fraud -- Reasonable, related or necessary medical expenses -- Medical provider was not required to file sworn testimony from referring physician stating that disputed orthopedic exam was medically necessary and related to accident -- Examining physician is qualified to testify to necessity and relatedness of own exam -- Service of attachments to affidavits on evening before summary judgment hearing did not prejudice insurer where documents had been in insurer's possession as early as claim and certainly by time of discovery -- Where provider filed affidavits of treating physicians which establish that all treatment was related to accident, reasonable, and necessary; and insurer failed to either substantially impeach medical expert testimony of treating physicians, present countervailing evidence from licensed physician, or establish that provider has not complied with conditions precedent; provider is entitled to summary judgment

12 Fla. L. Weekly Supp. 445b

Insurance -- Personal injury protection -- Coverage -- Affirmative defenses -- Amendment -- No abuse of discretion in denying insurer's motion to amend affirmative defenses

12 Fla. L. Weekly Supp. 669b

Insurance -- Personal injury protection -- Counterclaims -- Motion to dismiss insurer's counterclaims for failure to comply with statutory pre-suit requirements is denied -- Motion to dismiss counterclaims of fraud and unjust enrichment is denied where insurer has stated cause of action and pled with specificity and clarity -- Counterclaim for unlawfully providing service and false or misleading statement under criminal statute is dismissed -- Motion to dismiss counterclaim for illegal kickback is denied where insurer has stated cause of action

12 Fla. L. Weekly Supp. 319a

Insurance -- Personal injury protection -- Trial -- Continuance -- Denial -- Abuse of discretion to deny insurer's emergency motion for continuance where less than two weeks before trial both named owners of medical provider were arrested for allegedly rendering fraudulent treatment and making improper solicitation of patients, and insurer sought continuance to depose owners and insured to determine whether insured received fraudulent treatment or improper solicitation

12 Fla. L. Weekly Supp. 167a

Insurance -- Personal injury protection -- Complaint -- Sufficiency -- Statute that requires demand letter as condition precedent to filing PIP suit does not require that letter and its attachments be attached to complaint

12 Fla. L. Weekly Supp. 554b

Insurance -- Personal injury protection -- Plaintiff is not required to submit demand letter to insurer as condition precedent to filing amended complaint

12 Fla. L. Weekly Supp. 926b

Insurance -- Personal injury protection -- Claims -- HCFA form -- Error to grant summary judgment in favor of insurer on ground that HCFA forms were insufficient due to unidentifiable signature in box 31 -- Statute does not contain express requirement that box be signed, insurer does not contend that failure to sign box legibly hindered its investigation of accident in any way, and insurer's processing of claims for two years without raising problem with signature and its payment of portions of some claims submitted on forms with allegedly deficient signature implies intentional and voluntary waiver of alleged deficiency

12 Fla. L. Weekly Supp. 163a

Insurance -- Personal injury protection -- Claim forms -- Physician signature -- HCFA forms not containing physician's signature are not deficient -- Coverage -- Unregistered clinic -- Charges for services provided by licensed acupuncturist at unregistered medical clinic wholly owned by person who is not licensed medical provider are unlawful and noncompensable

12 Fla. L. Weekly Supp. 115b

Insurance -- Personal injury protection -- Claims -- Signature by medical provider -- Error to enter summary judgment in favor of insurer based on medical provider's failure to sign box 31 of HCFA form where statute does not expressly require signature and there is no evidence that lack of signature caused confusion regarding amount of claim or hindered insurer's investigation of claim or that provider intentionally provided false, misleading, incomplete and patently deceptive HCFA form -- Statute does not require that technically deficient notice constitutes no notice at all

12 Fla. L. Weekly Supp. 888b

Insurance -- Personal injury protection -- Claim forms -- Signature of physician -- Where insurer was provided all information needed to process claim despite use of stamp to affix physician's signature and misplacement of physician's license number in wrong box on form, claim form was substantially complete and accurate -- Coverage -- Medical expenses -- Reasonable, related and necessary services -- Where insured filed affidavit of treating orthopaedic physician stating that orthopaedic treatment rendered was reasonable, related and necessary, and insurer submitted affidavit of physician of undisclosed specialty who performed independent medical examination stating that further treatment in his specialty would not be reasonable, related or necessary, there is no competent evidence of record to dispute that any orthopaedic treatment was reasonable, related and necessary -- Where insured filed affidavit of treating chiropractor stating that chiropractic treatment rendered was reasonable, related and necessary, and insurer submitted affidavit of chiropractor who performed IME stating that further treatment would not be reasonable, related and necessary, there is no evidence that chiropractic treatment rendered prior to date of IME was not reasonable, related and necessary -- Insured's motion for summary judgment is granted as to all affirmative defenses except improper CPT billing, on which issue insured offered no evidence

12 Fla. L. Weekly Supp. 637a

Insurance -- Personal injury protection -- Claim form -- Signature and credential of medical provider -- Where statute does not expressly require provider's signature on notice of loss to insurer but does suggest credentials must be supplied, typewritten name of provider supplied in box 31 of HCFA claim forms is not fatal to provider's claim, but failure to supply credentials in box 31 or on any other form leads to conclusion that provider failed to provide notice of covered loss -- Error to enter summary judgment finding insurer improperly denied payment

12 Fla. L. Weekly Supp. 781a

Insurance -- Personal injury protection -- Claim form -- License number -- Insurer has met burden for summary judgment based on medical provider's failure to satisfy condition precedent of submitting complete claim form where insurer submitted both incomplete claim form and affidavit of claims adjuster indicating HCFA form received from provider did not reflect provider's professional license number -- Unnotarized affidavit of provider's billing clerk indicating that provider subsequently sent new HCFA form with license number on unspecified date did not create genuine issue of material fact -- Billing clerk's affidavit is defective for being unnotarized and not having been provided to insurer prior to hearing -- Retroactive submission of complete HCFA form does not cure failure to satisfy condition precedent

12 Fla. L. Weekly Supp. 594b

Insurance -- Personal injury protection -- Claim form -- Omission of license number -- Insurer's motion for final summary judgment asserting that it was not furnished with notice of loss due to medical provider's failure to include license number in box 31 of HCFA forms is denied where insurer cannot reasonably assert that license number was needed to process or evaluate bills as it paid all bills submitted on identical forms prior to withdrawal of benefits based on independent medical examination, insurer never requested any information from provider regarding box 31 or suggested that it was in need of license number to be on notice of claim, and insurer cannot show any prejudice from omission of license number

12 Fla. L. Weekly Supp. 570b

Insurance -- Personal injury protection -- Claim forms -- Medical license number -- Claim form containing medical provider's medical license number in box 33 rather than box 31 substantially met statutory requirements for claims -- Insurer's motion for summary judgment denied

12 Fla. L. Weekly Supp. 484a

Insurance -- Personal injury protection -- Claim forms -- Motion for rehearing of order granting summary judgment in favor of insurer is denied where medical provider failed to satisfy condition precedent of submitting properly completed statement or bills, by failing to include license number of treating physician in Box 31 of HCFA forms until after suit was filed and two months after being warned by insurer of defect, and failed to obtain leave of court to abate action to allow re-submission of properly completed bill -- Suggestion that compliance with statute requiring submission of completed form could be met by quick Internet search for physician's license number is rejected where legislature did not provide for this alternative to statutory scheme

12 Fla. L. Weekly Supp. 483a

Insurance -- Personal injury protection -- Failure of provider to provide professional license number in space provided for “Signature of Physician or Supplier, Including Degree or Credentials” -- Insurer's motion for summary judgment granted

12 Fla. L. Weekly Supp. 152b

Insurance -- Personal injury protection -- Demand letter -- Case is stayed until medical provider submits proper demand letter and insurer is given prescribed deadline for response

12 Fla. L. Weekly Supp. 83a

Insurance -- Personal injury protection -- Coverage -- Affirmative defenses -- Examination under oath -- Failure to attend -- Insurer is barred from using insured's failure to attend EUO as reason for non-payment where insurer failed to timely schedule EUO within 30 days of notice of loss -- Independent medical examination -- Failure to attend -- Where insurer rescheduled IME appointment, it waived right to suspend benefits as of first IME date -- However, where insured unreasonably failed to attend rescheduled IME, medical bills received after that date are not payable by insurer -- Claim form -- Failure to properly complete box 31 of HCFA form is not legal basis to deny payment -- Civil procedure -- Motion to strike affidavit of medical provider's office manager as untimely served is denied where affidavit was served by facsimile 14 days prior to hearing and insurer had ample opportunity to file affidavits in opposition thereto and did so -- There is no requirement for moving party to file affidavit in support of motion for summary judgment 20 days prior to hearing -- Motion for summary judgment is granted where provider complied with all conditions precedent to suit, and there do not exist any questions of material fact regarding reasonable, necessary, and related medical expenses incurred by insured and insurer's failure to pay

12 Fla. L. Weekly Supp. 173a

Insurance -- Personal injury protection -- Claims -- Disclosure and acknowledgment form -- Medical provider that submitted copy of disclosure and acknowledgment form with initial bills substantially complied with statutory requirement, and insurer waived defense by not informing provider of need to submit original -- Provider has substantially complied with requirement for provider's signature on HCFA form

12 Fla. L. Weekly Supp. 483b

Insurance -- Personal injury protection -- Coverage -- Notice of loss -- Where insurer never received original and valid disclosure and acknowledgment form, it was never provided with written notice of covered loss and is not responsible for payment of benefits -- Summary judgment granted in favor of insurer

12 Fla. L. Weekly Supp. 262a

Insurance -- Personal injury protection -- Demand letter -- Motion for summary judgment on ground that demand letter was sent to wrong insurer is denied -- Original claims were received and acted on without denial of coverage by incorrect insurer having similar name and same address, same registered agent, and the same person authorized to receive demand letters as correct insurer -- Insurer cannot thwart intent of statute allowing resubmission of claim by not sending denial and then using failure to notice proper insurer as defense -- Insurer's motion for summary judgment on whether billing for separate CPT codes constituted unlawful unbundling is denied where no evidence was presented to dispute affidavit swearing services were properly coded -- Bills were overdue when demand letter and suit were filed given fact that insurer's written request for documentation was not dated until 51 days after notice of covered loss

12 Fla. L. Weekly Supp. 887c

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Physician's sworn affidavit resolved issue of whether provider's medical personnel were licensed at time they rendered treatment to insured -- Physician was legally licensed as osteopathic physician at time he rendered treatment to insured -- There is no requirement that provider provide proof of licensing when submitting written notice of covered loss -- Claim form -- Failure to comply with countersignature requirement not basis for denying coverage -- Evidence -- Hearsay -- Insured's statements to provider that he sustained injuries related to automobile accident fell within exception to hearsay for statements pertinent to medical diagnosis or treatment, and provider's testimony was sufficient to establish that insured was involved in an automobile accident

12 Fla. L. Weekly Supp. 218b

Insurance -- Personal injury protection -- Claims -- Medical bills -- Countersignature by insured -- No error in granting summary judgment holding that section 627.736 does not require medical bills attached to HCFA 1500 to be countersigned by insured where medical provider has accepted an assignment of benefits

12 Fla. L. Weekly Supp. 171a

Insurance -- Personal injury protection -- Standing -- Assignment is valid -- Claim form -- Countersignature -- There was no requirement for insured to countersign HCFA forms where medical provider has accepted assignment of benefits -- Coverage -- Magnetic resonance imaging -- Insurer is not relieved of liability for MRI by fact that amount of bill exceeds fee schedule -- Summary judgment is granted in favor of provider on issues of whether insured was involved in automobile accident, has submitted valid notice of claim, and was covered on date of loss by valid policy issued by insurer; whether provider timely billed for MRI; and whether insurer failed to timely pay bill -- Peer review report precludes summary judgment on issue of whether MRI was reasonable, related, and necessary

12 Fla. L. Weekly Supp. 40a

Insurance -- Personal injury protection -- Complaint -- Amendment -- Denial -- Abuse of discretion to deny medical provider's motion to amend complaint where provider had filed only one original complaint which it sought to amend once, and there was no surprise or prejudice to insurer since allegations in amended complaint were identical to those of original complaint and proposed amendment was to assert valid cause of action for breach of contract to which insurer had already raised defenses in answer to original complaint -- Claims -- HCFA form -- Countersignature -- Error to enter summary judgment against provider on claim for declaratory relief on issue of necessity of countersignature on HCFA forms where courts have uniformly interpreted countersignature provision in section 627.736(5)(a) as permitted, not mandatory, mechanism that does not require insured's signature when benefits have been assigned to provider

12 Fla. L. Weekly Supp. 754b

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- MRI -- Claimant which did not perform any service to or for insureds other than billing for services that were contracted out was not entitled to recover PIP benefits for services allegedly provided to insureds -- Claimant concealed fact that it was billing for services performed by other companies and/or independent contractors when it checked “no” in box 20 of HCFA form indicating that no outside lab was used -- Claimant knowingly submitted HCFA forms requesting direct payment from insurer for professional component of MRI services in excess of the maximum amount permitted by statute -- Insurer was not furnished with notice of a covered loss for bills where bills were not truthfully and accurately completed in accordance with statute and HCFAs -- Intentional misrepresentations in any part of claim voids all coverage for claims -- Further, by accepting irrevocable assignment of benefits, claimant became third-party beneficiary of insurance contract, and was bound by terms and conditions of policy -- Intentional misrepresentations violated policy's misrepresentation provision and, accordingly, claimant was not entitled to any benefits under assignment of benefits -- Claimant was proprietary clinic and was required by statute to register and have a medical director, and insurer is entitled to recover all amounts paid during period when claimant was not in compliance with statute -- Claimant could not recover directly from insurer when it presented or caused to be presented HCFA form that was not signed in box 31 by health care provider certifying that services were actually rendered and medically necessary -- Term “render” as used in section 627.736 requires that person who executes box 31 of HCFA and submits HCFA claim form must be the medical provider/supplier to have actually physically performed the medical services or directly supervised the performance of such services, and a clinic may not under this statute subcontract or retain another corporation or independent contractor to perform these services -- Fee arrangement between claimant and interpreting physician's company contemplated impermissible fee-splitting arrangement -- Insurer may recover payments made to claimant, together with post judgment and prejudgment interest

12 Fla. L. Weekly Supp. 1034b

Insurance -- Personal injury protection -- Medical benefits -- MRI -- There was sufficient conflicting evidence to create factual question for jury on issue of reasonableness of MRI charge, and trial court did not err in denying motion for directed verdict on this issue -- Abuse of discretion to deny motion for mistrial based on opposing counsel's prejudicial and inflammatory remarks in closing argument that insurer did not know what a reasonable charge was because “they don't pay,” and that insurer was a “fighting machine” -- Comments were so inflammatory that they were incurable and resulted in denial of fair trial

12 Fla. L. Weekly Supp. 399a

Insurance -- Personal injury protection -- Coverage -- Denial -- Misrepresentations -- Where insured misrepresented to insurer investigating claim of plaintiff that he was injured while working on insured's vehicle in insured's garage that alleged accident did not occur, policy relieves insurer of liability for plaintiff's claim despite fact that plaintiff was not person who committed misrepresentation -- No merit to argument that PIP statute, which at time of incident contained no fraud provisions, superseded fraud provisions of policy and required payment of PIP benefits

12 Fla. L. Weekly Supp. 770a

Insurance -- Medpay -- Demand letter -- Insured is not required to send demand letter to insurer prior to filing suit for overdue or unpaid benefits under medical payment insurance

12 Fla. L. Weekly Supp. 256a

Insurance -- Personal injury protection -- Medpay -- Demand to escrow PIP and Medpay benefits is stricken -- Discovery -- Motion to compel better answers to interrogatories and better response to request to produce is granted

12 Fla. L. Weekly Supp. 865c

Insurance -- Personal injury protection -- Med pay -- Escrow of benefits -- Request for reservation of benefits in amount sufficient to cover claims denied

12 Fla. L. Weekly Supp. 153b

Insurance -- Personal injury protection -- Limitation of actions -- Statute of limitations did not begin to run on date insurer provided notice that it would no longer pay PIP benefits or on date of first treatment after insurer's general denial of benefits, but on each new date of treatment after general denial -- Motion for summary judgment is denied for services received within five years of filing of complaint

12 Fla. L. Weekly Supp. 149b

Insurance -- Liability -- Subcontractor's general liability policy -- Coverage -- Where subcontractor's general liability policy affords coverage to any other person or entity that subcontractor is required by agreement to add to policy, certificate of insurance stating general contractor is to be named as additional insured on subcontractor's policy with regard to certain project is effective to add general contractor as additional insured under terms of policy only if there was agreement requiring subcontractor to add general contractor as named insured -- Where record does not establish why language was added to certificate of insurance, if named project is site where subcontractor's employee was injured, or amount of coverage required if subcontractor was required to add general contractor as named insured, motion for summary judgment is denied

12 Fla. L. Weekly Supp. 690a

Insurance -- Personal injury protection -- Default -- Vacation -- Jurisdiction -- Service of process -- Trial court denying motion to vacate default had insufficient proof to determine that jurisdiction had been established over insurer where court had return receipt for service of process on Department of Insurance but lacked proof of compliance with statutory procedures for forwarding copy of process to insurer

12 Fla. L. Weekly Supp. 853a

Insurance -- Homeowners -- Claim for water loss/damage to condominium unit's bathroom -- Summary judgment -- On rehearing, order granting summary judgment finding loss excluded under policy is vacated where trial court failed to rule on ore tenus motion to amend reply and affirmative defenses to assert waiver and estoppel prior to granting summary judgment -- Motion to amend granted

12 Fla. L. Weekly Supp. 654c

NOT FINAL VERSION OF OPINION
Subsequent Changes at 12 Fla. L. Weekly Supp. 853a

Insurance -- Homeowners -- Condominiums -- Claim for water loss/damage to condominium unit's bathroom walls, cabinets and fixtures is excluded under homeowners policy where policy provides that it will cover property pertaining to premises which are homeowner's responsibility as expressed or implied under governing rules of condominium, and declaration of covenants provides that condominium association's hazard insurance covers repairs to walls, cabinets and fixtures within bathroom of unit

12 Fla. L. Weekly Supp. 947b

Insurance -- Personal injury protection -- Fraud on court -- Sanctions -- Dismissal -- Where plaintiffs in PIP action for injuries allegedly sustained in accident involving phantom vehicle misrepresented material information regarding their involvement in previous accidents, previous injuries sustained, prior litigation and information that would facilitate discovery, complaint is dismissed with prejudice

12 Fla. L. Weekly Supp. 278a

Insurance -- Fire -- Subrogation action by insurer against tenant of apartment damaged by cooking fire -- Where lease provides that tenant is responsible for repairing damage to apartment it may cause, recommends that tenant secure liability insurance, and contains indemnity clause in favor of landlord, but does not clearly shift risk of fire loss to tenant or expressly require tenant to obtain fire insurance, tenant is intended beneficiary under landlord's fire insurance policy and cannot be sued by insurer -- Final summary judgment in favor of tenant affirmed

12 Fla. L. Weekly Supp. 115a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 12 Fla. L. Weekly Supp. 532a

Insurance -- Personal injury protection -- Coverage -- Evidence -- Accident report privilege -- Error to admit accident report into evidence because report is expressly inadmissible under section 316.066(4) -- Even if exception to accident report privilege applied, trial court erred in admitting report without testimony because report of investigation is not admissible under public records and reports hearsay exception -- Remand for new trial

12 Fla. L. Weekly Supp. 568b

Insurance -- Personal injury protection -- Dismissal -- Two dismissal rule -- Medical provider is barred from activating third identical suit for same PIP benefits where two prior suits were voluntarily dismissed by provider -- Second suit operated as adjudication on merits when served by provider who had previously dismissed identical action in another jurisdiction

12 Fla. L. Weekly Supp. 501a

Insurance -- Personal injury protection -- Discovery -- Privilege -- Work product -- After in camera review, court finds that work product privilege applies only to snapshot computer generated notes and close file notes

12 Fla. L. Weekly Supp. 151a

Insurance -- Personal injury protection -- Discovery -- Documents -- Adjuster's log -- Privilege -- Work product -- Adjuster's log becomes non-discoverable work product when adjuster makes determination that independent medical examination report is appropriate -- Motion to compel is granted as to adjuster log notes from inception of claim up to time of adjuster making determination that IME was appropriate

12 Fla. L. Weekly Supp. 155b

Insurance -- Personal injury protection -- Discovery -- Objections to supplemental discovery are overruled where there is nothing in file to indicate that claimed trade secret privilege is applicable or that supplemental discovery is irrelevant -- Objecting insurer should have filed privilege log and/or produced allegedly protected documents for in camera inspection

12 Fla. L. Weekly Supp. 354a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Discovery -- In event of dispute relating to insurer's right to discover information about insured's history, condition or treatment or dates and costs of such treatment, insurer may petition court to enter order permitting such discovery -- Medical provider ordered to provide documentation and items requested by insurer

12 Fla. L. Weekly Supp. 147a

Insurance -- Personal injury protection -- Presuit discovery -- Where medical provider submitted incomplete, unsigned, unattested, and improperly filled out HCFA 1500 claim form for range of motion and muscle strength testing, insurer has made several attempts to obtain additional information regarding bills, and provider has refused to produce requested documents and information, insurer's petition for presuit discovery is granted

12 Fla. L. Weekly Supp. 145a

Insurance -- Personal injury protection -- Presuit discovery -- Where medical provider submitted incomplete, unsigned, unattested, and improperly filled out HCFA 1500 claim form for range of motion and muscle strength testing, insurer has made several attempts to obtain additional information regarding bills, and provider has refused to produce requested documents and information, insurer's petition for presuit discovery is granted

12 Fla. L. Weekly Supp. 143a

Insurance -- Personal injury protection -- Presuit discovery -- Where medical provider submitted incomplete, unsigned, unattested, and improperly filled out HCFA 1500 claim form for range of motion and muscle strength testing, insurer has made several attempts to obtain additional information regarding bills, and provider has refused to produce requested documents and information, insurer's petition for presuit discovery is granted

12 Fla. L. Weekly Supp. 140a

Insurance -- Personal injury protection -- Presuit discovery -- Where medical provider submitted incomplete, unsigned, unattested, and improperly filled out HCFA 1500 claim form for range of motion and muscle strength testing, insurer has made several attempts to obtain additional information regarding bills, and provider has refused to produce requested documents and information, insurer's petition for presuit discovery is granted

12 Fla. L. Weekly Supp. 865a

Insurance -- Personal injury protection -- Discovery -- Interrogatories -- Medical provider is ordered to provide better responses to interrogatories regarding reasonableness of charges for CPT code at issue, insurance and government programs from whom provider received payments for that CPT code, and amounts provider accepted from each such source

12 Fla. L. Weekly Supp. 363a

Insurance -- Personal injury protection -- Discovery -- Documents -- Independent medical examination reports and payment records -- IME physician's request for compensation for compliance with discovery request for all IME reports provided to any insurer within past two years is denied despite claim that, because physician mixes files of his patients and IME cases in alphabetical filing system, it would be unduly burdensome to pull all files to determine if it is file of regular patient of IME referral and then copy and redact each applicable record -- Physician is ordered to provide IME reports and payment records at reimbursement of $1 per page copied and $1 per year researched -- Plaintiff is ordered to keep records confidential and redact any records used at trial

12 Fla. L. Weekly Supp. 398b

Insurance -- Personal injury protection -- Discovery -- Documents -- Peer review reports and record of payments -- Peer review physician is ordered to provide copies of redacted medical records review reports prepared at request of any scheduling or insurance company within past two years and list of payments for reports -- Physician is entitled to reasonable copy and postage charges, but not to compensation for producing and copying documents

12 Fla. L. Weekly Supp. 174b

Insurance -- Discovery -- Defendant's objection to interrogatory requesting names of providers whose charges were compared with plaintiff provider's charges in order to determine that the amounts charged by plaintiff were not usual, reasonable and/or customary -- Inability to provide response due to manner in which database is compiled

12 Fla. L. Weekly Supp. 230c

Insurance -- Personal injury protection -- Discovery -- Documents -- Chiropractor is compelled to produce redacted medical records

12 Fla. L. Weekly Supp. 577a

Insurance -- Personal injury protection -- Discovery -- Interrogatories -- Medical provider is ordered to provide better answers to interrogatories and identify any persons or entities possessing ownership interest in provider and all persons employed at facility where insured received treatment during one month -- Motion to compel better response to request to produce lists of literature received by medical provider, documentation regarding persons who provided services to insured, medical director contract, and other documents is granted in part with limitations as to time period and facility at issue and provisions for making some documents available for inspection if documentation is too voluminous

12 Fla. L. Weekly Supp. 958a

Insurance -- Personal injury protection -- Discovery -- Documents -- Insurer is ordered to produce all reimbursement amounts allowed to health care providers within medical provider's zip code for CPT code at issue -- Medical provider is ordered to produce, relative to CPT code at issue, fee schedules, billing receipts for all patients on dates of treatment of insured, records regarding patients or insurers who have disputed reasonableness of charges, audits, documents from any claim or lawsuit involving dispute over amounts billed, and documents showing licensure and registration

12 Fla. L. Weekly Supp. 565b

Insurance -- Personal injury protection -- Discovery -- Interrogatories -- Motion to compel better answers to interrogatories requesting information related to reasonableness of medical provider's charges, including information regarding amounts provider accepts from patients and entities other than insurer, is granted

12 Fla. L. Weekly Supp. 565a

Insurance -- Personal injury protection -- Discovery -- Documents -- Insurer is entitled to all documentation in medical provider's possession that evidences treatment performed; that treatment was reasonable, related and medically necessary; and reasonableness of charges, including information regarding amounts provider accepts from patients and entities other than insurer

12 Fla. L. Weekly Supp. 99a

Insurance -- Personal injury protection -- Discovery -- Medical provider is ordered to respond to request to produce and provide verified answers to interrogatories

12 Fla. L. Weekly Supp. 1069a

Insurance -- Personal injury protection -- Discovery -- Interrogatories -- Failure to respond -- Sanctions -- Court declines to strike pleadings or enter default as sanction for insurer's failure to respond to interrogatories regarding its relationship with physician who performed compulsory insurance medical examination and company that acts as insurer's agent in assigning cases to physicians who perform examinations, but insurer is ordered to reply to interrogatories

12 Fla. L. Weekly Supp. 156a

Insurance -- Personal injury protection -- Discovery -- Failure to comply -- Sanctions -- Motion for contempt is denied and motion for sanctions is granted for failure to comply with order requiring better responses to supplemental request to produce and better answers to interrogatories

12 Fla. L. Weekly Supp. 255a

Insurance -- Personal injury protection -- Discovery -- Interrogatories -- Insurer is ordered to answer interrogatories concerning use of members, employees or experts of claims management company to testify as experts or perform analysis, examination or render opinions for insurer -- Insurer is ordered to answer interrogatories concerning use of chiropractor to perform medical examinations on its behalf

12 Fla. L. Weekly Supp. 1180b

Insurance -- Personal injury protection -- Discovery -- Failure to comply -- Sanctions -- Where insurer's noncompliance with discovery orders demonstrated willful and deliberate disregard of court's authority, disregard of orders has severely prejudiced medical provider's ability to adequately prosecute matter since insurer has used documents from underwriting file it refuses to produce to support its defense of material misrepresentation, and insurer's actions have caused unnecessary delay, insurer's pleadings are stricken and default is entered against insurer

12 Fla. L. Weekly Supp. 1070a

Insurance -- Personal injury protection -- Discovery -- Interrogatories -- Insured's objections that interrogatories regarding prior injuries and claims are overbroad, irrelevant, immaterial, harassing and not reasonably calculated to lead to discovery of admissible evidence are overruled -- Attorney work product privilege objection to interrogatory regarding identity of any persons from whom insured, insured's attorney or anyone acting on insured's behalf have obtained statements regarding issues in suit is overruled -- Objection to providing information on medical providers on ground that information is contained in claim file is overruled

12 Fla. L. Weekly Supp. 767a

Insurance -- Personal injury protection -- Discovery -- Independent medical examination reports and payment records -- Failure to comply -- Sanctions -- Contempt -- IME physician is found in contempt and stricken from insurer's witness list where insured's preparation for trial set to occur within three weeks has been substantially prejudiced by physician's failure to comply with subpoena for IME records on grounds that because regular patient files and IME referral files are intermingled in physician's filing system it would be unduly burdensome to pull all files to identify IME referrals and then copy and redact applicable records -- By failing to comply with court order requiring physician to comply with subpoena, physician has shown absolute contempt for statutory obligations -- Physician has proven that he has no respect for those obligations by admission that he has not changed filing system, and physician has exhibited no concern or remorse for his inaction

12 Fla. L. Weekly Supp. 778a

Insurance -- Personal injury protection -- Discovery -- Failure to comply -- Sanctions -- Insurer's pleadings are stricken as sanction for willful deliberate disregard of court's authority where insurer's response to first set of interrogatories are over 571 days overdue and more than 39 days past extended discovery deadline

12 Fla. L. Weekly Supp. 215b

Civil procedure -- Striking of pleadings -- Order granting motion to strike pleadings, specifically finding willful noncompliance, is affirmed

12 Fla. L. Weekly Supp. 868a

Insurance -- Personal injury protection -- Discovery orders -- Failure to comply -- Sanctions -- Where insurer comes to court with unclean hands due to failure to comply with discovery orders, court refuses to entertain insurer's motion for summary judgment and strikes its proposal for settlement -- Exhaustion of policy limits -- Escrow of disputed benefits -- Court does not rule on insured's motion to escrow disputed benefits but notes that risk inherent in insurer's decision to continue to pay bills despite request to escrow funds rests entirely on insurer and puts insurer at risk of paying above policy limits

12 Fla. L. Weekly Supp. 866c

Insurance -- Personal injury protection -- Discovery orders -- Failure to comply -- Sanctions -- Insurer's motion to dismiss for failure to comply with order to produce better answers to interrogatories and responses to request for production is denied in part, and production of better responses and answers is ordered -- Insurer is awarded attorney's fees for bringing motion

12 Fla. L. Weekly Supp. 582a

Insurance -- Personal injury protection -- Discovery -- Interrogatories -- Failure to comply -- Where court finds defendant in willful and wanton contempt of court for violating numerous orders to provide better answers to expert witness interrogatories, and medical provider has been prejudiced by failure to provide information needed to fully and fairly cross-examine experts at trial, insurer's experts are stricken with prejudice

12 Fla. L. Weekly Supp. 1099b

Insurance -- Personal injury protection -- Discovery -- Failure to comply -- Sanctions -- Civil contempt -- Default -- Where repeated failure to comply with discovery was not result of neglect or inexperience of insurer's attorney, attorney has been previously sanctioned three times in case, insurer itself is personally involved in disobedience of attorney working directly and solely for insurer, medical provider has incurred far more fees than necessary to obtain information it had clear right to obtain, attorney offered no explanation for noncompliance, and delay created significant problems for judicial administration by requiring that judge spend inordinate amount of time on motions to compel and motions for sanctions, insurer is found in civil contempt and default is entered

12 Fla. L. Weekly Supp. 1099a

Insurance -- Personal injury protection -- Discovery -- Failure to comply -- Sanctions -- Default -- Civil contempt -- Where insurer's attorney had ability to comply with discovery orders but willfully and with deliberate indifference failed to do so, insurer was complicit in disobedience, failure to comply has caused undue delay prejudicing medical provider, insurer had notice from prior order that timely compliance was condition precedent to defense of suit and more than fair opportunity to cure, and court has been presented no valid reason for noncompliance, insurer is held in civil contempt and default is entered

12 Fla. L. Weekly Supp. 264b

Insurance -- Personal injury protection -- Discovery -- Failure to comply -- Sanctions -- Insurer ordered to pay medical provider's attorney's fees and to make contribution to charity

12 Fla. L. Weekly Supp. 231a

Insurance -- Personal injury protection -- Discovery -- Second motion to compel response to discovery is granted -- Failure to comply will result in dismissal with prejudice

12 Fla. L. Weekly Supp. 1020a

Insurance -- Personal injury protection -- Discovery -- Requests that insurer provide independent medical examination reports prepared by insurer's expert and copies of payment invoices were overly broad -- Content of IME report is protected healthcare information, and seeking even redacted versions of IMEs impermissibly infringes on patient privacy, without a corresponding justification -- Impeachment of expert is collateral purpose which is more easily obtained through cross-examination of expert -- Discovery that is permitted is how often expert testified on insurer's behalf and how much money expert made from its relationship with insurer -- Limiting discovery to one-year period was appropriate -- Remand with instructions to enter order directing insurer to provide information on how often expert was hired by insurer for expert witness services, names of cases expert was hired to render opinions in, and how much money expert was paid for his services, including hourly rates, during one-year period

12 Fla. L. Weekly Supp. 1093b

Insurance -- Discovery -- Production by insurer's experts of list of all payments for any expert services for past two years