Volume 13

13 Fla. L. Weekly Supp. 157c

Insurance -- Workers' compensation -- Filed rate doctrine -- Action by insured against workers' compensation carrier for demanding additional premiums dismissed -- Insured must seek to exhaust administrative remedies under statute governing workers' compensation insurance rates before seeking redress in courts

13 Fla. L. Weekly Supp. 106a

Insurance -- Personal injury protection -- Summary judgment -- Where documents relied upon by insurer in support of motion for summary judgment are not sworn or certified, court cannot consider or rely upon them -- Motion denied

13 Fla. L. Weekly Supp. 501c

Attorney's fees -- Insurance -- Personal injury protection -- Proposal for settlement -- Where prevailing insurer's proposal for settlement for $100 was not made in bad faith, insurer is entitled to award of attorney's fees and costs

13 Fla. L. Weekly Supp. 181b

Attorney's fees -- Insurance -- Personal injury protection -- Proposal for settlement -- Good faith -- Although insurer's $100 settlement offer was substantially less than amount claimed by medical provider and could not have included attorney's fees and costs, where offer was served before provider's counsel had expended substantial amount of time on case, and insurer possessed documents that demonstrated that insured's benefits had been exhausted, provider failed to establish that offer was not made in good faith -- Motion to enforce proposal for settlement and tax fees and costs granted

13 Fla. L. Weekly Supp. 394c

Insurance -- Personal injury protection -- Discovery -- Depositions -- Failure to attend -- Sanctions -- Where insurer's litigation adjuster failed to appear for deposition regarding insurer's claim for attorney's fees awarded as sanction against medical provider in underlying PIP suit and failed to obtain protective order or provide any reason for non-appearance, and insurer's counsel also failed to appear for deposition after numerous attempts by provider's counsel to coordinate deposition, conduct is deliberate contumacious disregard for trial court's authority and grounds for award of sanctions -- Insurer's motion for award of fees and costs is stricken

13 Fla. L. Weekly Supp. 788a

Insurance -- Automobile -- Rescission -- Return of premiums -- Where insurer did not tender to premium finance company all premiums paid by insured, it did not effect common law rescission of insurance policy -- Directed verdict in favor of insured affirmed

13 Fla. L. Weekly Supp. 819a

Insurance -- Personal injury protection -- Expert witnesses -- Exclusion -- Fraud on court -- Expert witness for insurer is excluded and testimony is stricken where witness attempted to perpetrate fraud on court by submitting false information regarding number of IMEs performed, percentage of IMEs performed for defense, and amount of labor and expense that would be required to comply with discovery request for IMEs that expert had already been required to compile in another case involving same insurer, and insurer assisted expert in concealing information by representing to court that expert had never previously produced IMEs for discovery -- Verdict is directed in favor of medical provider where, as result of striking testimony, there is insufficient evidence to support termination of benefits

13 Fla. L. Weekly Supp. 839a

Insurance -- Personal injury protection -- Venue -- Forum non conveniens -- Where medical provider's only nexus with county where suit was filed is fact that insurer does business there, substantially all other aspects of case are elsewhere, motion to transfer venue is granted

13 Fla. L. Weekly Supp. 511a

Insurance -- Personal injury protection -- Venue -- Forum non conveniens -- Defendant's motion to transfer venue granted -- Medical provider's forum of choice is suspect where the only nexus with county where suit was filed is fact that insurer does business there, and substantially all other aspects of case, including location of crash, residence of patient/assignor, location of treatment, and plaintiff's offices and witnesses, are elsewhere -- Forum shopping is viable concern since there is only one county judge to hear all civil cases in county in which suit was filed -- Moreover, county is devoting substantial resources to address and resolve a very large number of cases whose only connection is that defendant's insurance companies do business in the county

13 Fla. L. Weekly Supp. 1021c

Insurance -- Personal injury protection -- Venue -- Insurer's motion to transfer venue is denied where nexus to county is established by location of medical provider's residence, medical practice and corporation and fact that correspondence relating to claim was sent to and from county

13 Fla. L. Weekly Supp. 645b

Insurance -- Personal injury protection -- Venue -- Forum non conveniens -- Where medical provider's only nexus with county where suit was filed is fact that insurer does business there, substantially all other aspects of case are elsewhere, and large number of cases whose only connection with county is fact that insurer does business there is burden on county, motion to transfer venue is granted

13 Fla. L. Weekly Supp. 330a

Insurance -- Personal injury protection -- Venue -- Forum non conveniens -- No abuse of discretion in granting motion to transfer venue from Broward County to Palm Beach County -- Although insurer's claims office and medical provider's counsel's office were both located in Broward County, Palm Beach County is where insureds reside, accidents occurred, medical services were provided, and unspecified witnesses were located -- No merit to argument that insurer did not establish Palm Beach County as more convenient forum because it failed to produce affidavit bearing information regarding identity of witnesses from Palm Beach County and significance of their testimony where affidavits regarding significance of unspecified witnesses' testimony provided sufficient evidence for court to consider convenience of parties and witnesses and interest of justice

13 Fla. L. Weekly Supp. 365a

Insurance -- Personal injury protection -- Standing -- Assignment -- Where unambiguous language of purported assignment indicates that only benefit that has been assigned to provider is right to collect payment directly from insurer, document is merely direction to pay and does not assign to provider rights necessary to proceed in litigation against insurer

13 Fla. L. Weekly Supp. 349a

Insurance -- Personal injury protection -- Standing -- Assignment -- Revocation -- Effective date -- Parol evidence -- Where written revocation of assignment signed by medical provider and insured after date insured served pre-trial demand letter is silent as to effective date of revocation, affidavits of insured and provider stating insured and provider orally agreed to revoke assignment prior to date of demand letter should be considered by court since affidavits supply omitted fact

13 Fla. L. Weekly Supp. 392a

Insurance -- Personal injury protection -- Standing -- Assignment -- Equitable -- Where law allows assignment to be written, oral, or both, insured unequivocally stated intent to transfer right to have emergency services paid to ambulance service that transported him to hospital, parties acted in accord with that intent, and insurer would be justified in paying debt to ambulance service as it is entity that provided emergency services to insured, valid assignment exists

13 Fla. L. Weekly Supp. 187a

Insurance -- Personal injury protection -- Dispute between insured and insurer -- Standing -- Assignment -- Where insured executed assignment of benefits in favor of medical provider, and there is no evidence of a reassignment of benefits from provider to insured at or before suit was filed, insured lacks standing to proceed in suit against insurer

13 Fla. L. Weekly Supp. 183b

Insurance -- Personal injury protection -- Dispute between insured and insurer -- Standing -- Assignment -- Where insured executed assignment of benefits in favor of medical provider, and there is no evidence of a reassignment of benefits from provider to insured at or before suit was filed, insured lacks standing to proceed in suit against insurer

13 Fla. L. Weekly Supp. 639a

Insurance -- Personal injury protection -- Coverage -- Commercial vehicle -- Where insured was injured while occupant of commercial vehicle owned by car service, PIP insurer is entitled to be reimbursed by car service for all no fault benefits paid to insured -- Because section 627.7405 requires owner or insurer of commercial vehicle to reimburse injured person's PIP insurer, it is not relevant if vehicle was not insured or required to be insured under Florida law since owner is ultimately responsible

13 Fla. L. Weekly Supp. 614a

Insurance -- Personal injury protection -- Coverage -- Commercial vehicle -- Where insured was injured while occupant of commercial vehicle, PIP insurer is entitled to be reimbursed by owner of commercial vehicle for all no-fault benefits paid to insured, regardless of whether commercial vehicle was at fault in accident and whether vehicle was insured or even required to be insured

13 Fla. L. Weekly Supp. 521a

Insurance -- Personal injury protection -- Dump truck owned by city was a commercial motor vehicle for purposes of providing subrogation rights under Florida Statute 627.7405 to PIP insurer -- PIP carrier on dump truck driver's personal motor vehicle is entitled to reimbursement for payments made on behalf of its insured for injuries sustained while he was driving dump truck in the course and scope of his employment

13 Fla. L. Weekly Supp. 1224a

Insurance -- Personal injury protection -- Reimbursement -- Commercial motor vehicle -- Vehicle owned by private corporation contracting with municipality to provide transportation services is commercial motor vehicle and is not deemed to be owned by municipality for purposes of exclusion from statutory provisions for reimbursement of benefits paid by PIP insurer of private passenger vehicle for injury to insured while occupant of commercial motor vehicle or when struck by commercial motor vehicle while not occupant of self-propelled vehicle

13 Fla. L. Weekly Supp. 1090b Insurance -- Personal injury protection -- Coverage -- Claimant with own PIP coverage -- Claimant's own PIP insurer was obligated to pay for injuries…

13 Fla. L. Weekly Supp. 1107a

Insurance -- Personal injury protection -- Priority of payments -- Where hospital did not timely perfect its lien, lien lost its priority until such time as it was properly recorded, and provider's bill, which was received both before the hospital's bill and before recording of lien, was entitled to priority under English rule -- English rule applies to assignees of PIP benefits -- With regard to insurer's contention that it had 30 days to investigate claim and make determination on whether to pay provider's bill, insurer cannot shuffle priority of payments in that 30-day period

13 Fla. L. Weekly Supp. 344a

Insurance -- Personal injury protection -- Notice of loss given three and a half years after accident was not given as soon as practicable -- Where insured failed to rebut presumption that insurer was prejudiced by failure to report accident in timely manner, insured's claim and PIP suit cannot be maintained

13 Fla. L. Weekly Supp. 491b

Insurance -- Personal injury protection -- Notice of loss -- Where medical provider furnished insurer with own disclosure and acknowledgment form rather than standard Department of Insurance form, but form submitted by provider substantially complied with statute, insurer was provided with proper notice of covered loss

13 Fla. L. Weekly Supp. 395a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 13 Fla. L. Weekly Supp. 513b

Insurance -- Personal injury protection -- Notice of claim -- Disclosure and acknowledgment form -- Medical provider which did not use standard disclosure and acknowledgment form authored by Office of Insurance Regulation, but instead used self-generated disclosure and acknowledgment form, substantially complied with Section 627.736 -- Insurer demonstrated that it received written notice of covered loss by making reduced payment of bill, and insurer did not advise provider that it would not process bill because of need for approved form or notify provider when it received demand letter that it did not consider itself in receipt of written notice of covered loss -- Defendant's motion for summary judgment is denied

13 Fla. L. Weekly Supp. 619a

Insurance -- Personal injury protection -- Notice of loss -- Where medical provider wrote “See Attached” on lines of Standard Disclosure and Acknowledgment Form provided for description of treatment rendered and attached documents describing treatment, form was properly executed -- Nothing in statute or policy requires that all treatment rendered be written on lines of form -- Summary judgment -- Opposing affidavit -- Timeliness -- Affidavit in opposition to summary judgment served by hand delivery only one business day prior to summary judgment hearing is stricken -- Where provider met burden of establishing that bills were overdue and owing, and insurer had no evidence other than stricken affidavit to dispute provider's contention that bills were reasonable, related and necessary, summary judgment is granted in favor of provider

13 Fla. L. Weekly Supp. 740a

Insurance -- Personal injury protection -- Notice of loss -- Disclosure and acknowledgment form -- Where description of services rendered was omitted from disclosure and acknowledgment form, there was no substantial compliance with requirements for notice of covered loss -- Summary judgment granted in favor of insurer

13 Fla. L. Weekly Supp. 1006a

Insurance -- Personal injury protection -- Notice of loss -- Disclosure and acknowledgment form -- Disclosure and acknowledgment form with description of “services actually rendered” omitted failed to provide notice of fact of covered loss -- Contemporaneous submission of bills and medical records does not constitute substantial compliance with requirement to submit properly completed form where one of main purposes of form is to identify and divulge services actually rendered

13 Fla. L. Weekly Supp. 1021b

Insurance -- Personal injury protection -- Jurisdiction -- County court has jurisdiction of equity proceeding where amount in controversy in PIP claim does not exceed $15,000

13 Fla. L. Weekly Supp. 1033a

Insurance -- Personal injury protection -- Dispute between insured and insurer -- Error to dismiss insured's complaint as insufficiently pled where it is undisputed that valid contract of insurance existed, insured alleged in complaint that insurer that issued check payable only to medical provider after receipt of revocation of assignment of benefits failed to pay correct amount of money to correct claimant, in violation of contract and PIP statute, and insured alleged that he suffered damages as result of insurer's breach -- No merit to argument that revocation which revokes assignment of benefits but does not apply to any prior authorization for direct payment is confusing -- There is clear distinction between assignment of benefits and direct payment authorization, and no such authorization appears on record -- Error to dismiss complaint for failure to state cause of action while at same time granting partial relief under complaint by ordering insurer to reissue check in insured's name -- Attorney's fees -- Appellate -- Insured is entitled to attorney's fees for work done on initial and reply brief, but not for work done on unsuccessful cross-appeal seeking striking of order to re-issue check

13 Fla. L. Weekly Supp. 641a

Insurance -- Personal injury protection -- Insurer waived its right to discontinue benefits based on insured's alleged failure to appear for independent medical examination when it rescheduled IME appointment -- Insurer is not entitled to deny PIP benefits to insured as to medical bills received prior to issuance of notice of suspension letter

13 Fla. L. Weekly Supp. 35a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 13 Fla. L. Weekly Supp. 431a

Insurance -- Personal injury protection -- Summary judgment -- Rehearing -- Where insurer moved for rehearing of denial of motion for summary judgment but did not set matter for hearing, insurer asked that motion for rehearing be heard when parties appeared for trial before different judge, trial court indicated over medical provider's objection that it would entertain motion for rehearing on next day, and on next day court heard and granted motion for rehearing and motion for summary judgment, one-day notice violated provider's right to reasonable notice of hearing -- Independent medical examination -- Failure to attend -- Error to enter summary judgment where record shows only that insured failed to attend IME and does not establish that insured refused to attend IME or that any refusal was unreasonable -- Until insurer proved unreasonable refusal to attend IME, provider was under no obligation to show otherwise, and trial court erred in relying on insured's silence to prove unreasonable refusal -- Trial court also erred in refusing to consider deposition on rehearing where, although deposition was not filed prior to original summary judgment hearing, deposition was taken pursuant to notice and physically in existence “before the court” at time of that hearing

13 Fla. L. Weekly Supp. 431b

Insurance -- Personal injury protection -- Independent medical examination -- Failure to attend -- Where there was no evidence in case showing why insured failed to attend IME, directed verdict in favor of insurer was premature -- Insurer had burden to show insured's failure to attend IME was unreasonable -- Simple showing of failure to attend did not shift burden of proof to medical provider to prove why insured failed to attend IME

13 Fla. L. Weekly Supp. 431b

Insurance -- Personal injury protection -- Independent medical examination -- Failure to attend -- Where there was no evidence in case showing why insured failed to attend IME, directed verdict in favor of insurer was premature -- Insurer had burden to show insured's failure to attend IME was unreasonable -- Simple showing of failure to attend did not shift burden of proof to medical provider to prove why insured failed to attend IME

13 Fla. L. Weekly Supp. 434a

Insurance -- Personal injury protection -- Independent medical examination -- Failure to attend -- Insurer was liable for benefits for which it received requests for payment prior to date of missed IME that occurred during 30-day investigative period -- Benefits were due and payable immediately as loss accrued and upon receipt of bill or reasonable proof of loss by insurer

13 Fla. L. Weekly Supp. 1001a

Insurance -- Personal injury protection -- Independent medical examination -- Failure to attend -- Insured's failure to attend IME did not relieve insurer from paying medical provider's bills that were received prior to missed IME, including bills received less than thirty days prior to missed IME

13 Fla. L. Weekly Supp. 374b

Insurance -- Personal injury protection -- Final judgment -- Partial summary judgment -- Rule 1.510 does not authorize entry of final judgment as to previously granted partial summary judgment on claim for one date of service while claim for other date of service remains pending

13 Fla. L. Weekly Supp. 732c

Insurance -- Personal injury protection -- Explanation of benefits -- Medical provider is entitled to maintain cause of action for breach of contract and declaratory relief based on insurer's failure to provide explanation of benefits upon presuit request by provider -- Motion to dismiss denied

13 Fla. L. Weekly Supp. 118a

Insurance -- Personal injury protection -- Coverage -- Self-propelled vehicle -- Claim arising out of injuries sustained by insured, a disabled person who was riding his scooter when he was struck by a van while attempting to cross street -- No error in finding that scooter, modified in almost every regard, was a self-propelled vehicle exempt from personal injury protection benefits pursuant to Florida Statutes, § 627.736(4)(d)1. -- Scooter was not a motorized wheelchair as one would interpret that term in its normal usage -- Appellate holding is limited to the specific facts of this case given the unique characteristics of the scooter -- Summary judgment in favor of insurer affirmed

13 Fla. L. Weekly Supp. 365b

Insurance -- Personal injury protection -- Coverage -- Denial -- Examination under oath -- Failure to attend -- Where insurer failed to schedule EUO within 30 days of receiving notice of claim and did not have any reasonable proof that it was not responsible for payment of claim, insured's failure to attend EUOs scheduled outside 30-day statutory period did not give insurer right to deny benefits to insured

13 Fla. L. Weekly Supp. 288a

Insurance -- Personal injury protection -- Examination under oath -- Failure to attend -- Where sworn evidence establishes that EUO notice was sent to insured, and there is no sworn evidence disputing that notice was sent or establishing that notice was not received, receipt of notice is presumed -- No merit to argument that insured was not required to attend EUO because denial of benefits letter was sent before EUO was requested where bill at issue was not sent to insurer until after EUO was requested -- Further, where EUO was scheduled for same month as disputed bill was received, there is no violation of 30-day deadline to investigate or pay claim -- Anticipatory repudiation defense raised in motion for rehearing is not allowed where defense was not raised in pleadings, and further delay is not warranted -- Insurer's motion for summary judgment is granted

13 Fla. L. Weekly Supp. 117a

Insurance -- Personal injury protection -- Examination under oath -- Trial court erred in granting summary judgment in favor of insurer based on insured's failure to appear for EUO where EOU request was made after complaint was filed -- Provider, as insured's assignee, was entitled to pursue cause of action since insurer did not pay submitted claim within 30-day period

13 Fla. L. Weekly Supp. 364a

Insurance -- Personal injury protection -- Examination under oath -- Insurer is entitled to summary judgment in suit filed by medical provider where insured willfully refused to comply with terms of policy requiring examination under oath as condition precedent to filing suit

13 Fla. L. Weekly Supp. 786a

Insurance -- Personal injury protection -- Examination under oath -- Failure to attend

13 Fla. L. Weekly Supp. 770a

Insurance -- Personal injury protection -- Examination under oath -- Summary judgment must be affirmed as it was undisputed that insured refused to submit to EUO, a condition precedent to filing suit -- Insured's failure to submit to an EUO is a willful and material breach of the insurance contract that precludes recovery under the policy -- Provider/assignee has no greater rights than the insured against the insurer

13 Fla. L. Weekly Supp. 839b

Insurance -- Personal injury protection -- Judicial notice -- Medicare Part B Fee Schedule and Worker's Compensation Fee Schedule

13 Fla. L. Weekly Supp. 172a

Insurance -- Personal injury protection -- Discovery -- Medical provider is ordered to produce materials received from manufacturer of instrument used to test insured, redacted patient sign in sheet for date of service at issue, raw data for testing performed on insured, and any documents evidencing agreement between provider and insured for accepting payment from collateral source as result of third-party liability settlement or for writing off balance owed for treatment of insured

13 Fla. L. Weekly Supp. 904a

Insurance -- Personal injury protection -- Discovery -- Depositions -- Failure to attend -- Sanctions -- Evidentiary hearing will be held on issue of insurer's failure to produce corporate representative for deposition -- Speaking objections and inflammatory comments made by insurer's counsel during deposition were impediment to taking deposition and unprofessional

13 Fla. L. Weekly Supp. 1007a

Insurance -- Personal injury protection -- Discovery -- Admissions -- Requests that insurer admit that it had allowed amounts to other medical providers in same zip code equal to or greater than amounts charged by plaintiff medical provider for similar CPT codes are not relevant and or likely to lead to discovery of admissible evidence, as information sought does not tend to prove that provider's charges were reasonable -- Provider's motion to compel better responses is denied, and insurer's objections to requests for admissions are sustained

13 Fla. L. Weekly Supp. 1205a

Insurance -- Personal injury protection -- Demand letter -- Sufficiency -- Demand letter and attached itemized bill were sufficient to satisfy statutory requirements and place insurer on notice as to amount of bill -- No violation of self-referral statutes occurred -- Summary judgment regarding reasonableness of charges is granted in favor of medical provider

13 Fla. L. Weekly Supp. 495a

Insurance -- Personal injury protection -- Demand letter -- Retroactive application of statute -- Constitutionality -- Impairment of contract -- Medical provider acquired property interest in cause of action for PIP benefits when insurer declined to pay benefits -- Accordingly, provider's cause of action vested under PIP statute in effect at time insurer contracted with insured, and insurer's non-payment of provider's charges vested in provider a substantive right to file cause of action against insurer pursuant to section 627.736 without necessity of pre-suit demand letter -- Where 2003 amendment to statute imposing demand letter requirement created retroactive application of demand letter provision by requiring that demand letter be submitted to insurer before lawsuit could be filed even after cause of action has vested, requirement constituted a legislative impairment of contract in violation of article I, section 10 of Florida Constitution

13 Fla. L. Weekly Supp. 1084a

Insurance -- Personal injury protection -- Demand letter -- Presuit demand letter served by insured prior to revocation of assignment given to medical provider is invalid and does not satisfy condition precedent for suit

13 Fla. L. Weekly Supp. 349b

Insurance -- Personal injury protection -- Demand letter -- Letter sent to related entity mistakenly named as insurer -- Where medical provider filed complaint against one of insurer's entities; that entity was served by Secretary of State, answered complaint without denying it was proper party, admitted it was correct entity that provided coverage to insured, and two years later amended answer to deny admission; employees do not recognize difference between any of insurer's entities; entities share the same employees, contact person, website, administrative address, home office, mailing address and records location; and proper entity has been substituted as party in case; insurer was put on notice of claim, and insurer's entities are sufficiently related that no prejudice will occur from applying relation back doctrine to demand letter -- Insurer's motion for summary judgment denied

13 Fla. L. Weekly Supp. 1091a

Insurance -- Personal injury protection -- Demand letter -- Where medical provider sent pre-suit demand letter and filed suit before providing insurer with x-ray report requested in explanation of benefits, demand letter was sent before bills became overdue and was premature -- Where provider did not serve another demand letter after claim became overdue ten days after insurer received x-ray report, suit is premature -- Where bills were not overdue when suit was filed, insurer was not in breach of contract at that time, and complaint is legal nullity

13 Fla. L. Weekly Supp. 88b

Insurance -- Personal injury protection -- Demand letter -- Sufficiency -- Demand letter that states it is demand letter under section 627.736 but fails to specify subsection (11), lists medical provider by shortened version of its name and was not sent to person and address specified by insurer to receive notice on behalf of insurer does not meet statutory requirements -- Argument that insurer can never change person designated to receive notice or that insurer is required to notify counsel when name of person is changed is rejected

13 Fla. L. Weekly Supp. 88a

Insurance -- Personal injury protection -- Demand letter -- Sufficiency -- Demand letter that states it is demand letter under section 627.736 but fails to specify subsection (11) and which was not sent to person and address specified by insurer to receive notice on behalf of insurer does not meet statutory requirements -- Argument that insurer can never change person designated to receive notice or that insurer is required to notify counsel when name of person is changed is rejected

13 Fla. L. Weekly Supp. 346a

Insurance -- Personal injury protection -- Demand letter -- So long as insurer is put on notice of identity of medical provider which claims it has not been paid, it does not matter that demand letter is sent by provider's billing agency after valid assignment of benefits from insured to provider has been made

13 Fla. L. Weekly Supp. 155b

Insurance -- Personal injury protection -- Demand letter -- Plaintiff could not rely on demand letters filed by billing service company on behalf of former assignee to satisfy statutory requirement that he provide insurer with written notice of intent to initiate litigation -- Having failed to meet condition precedent to suit, plaintiff cannot bring this action

13 Fla. L. Weekly Supp. 391a

Insurance -- Personal injury protection -- Demand letter -- Where demand letter did not specify that exact amount being claimed was for interest, but instead, specified that full amount of charges for date of service was due, medical provider failed to comply with statutory condition precedent to filing PIP suit

13 Fla. L. Weekly Supp. 511b

Insurance -- Personal injury protection -- Demand letter -- Where demand letter stated that medical provider was claiming full amount of charges for date of service and did not specify that amount being claimed was only interest for late payment of bill, letter did not satisfy statutory requirement to include exact amount due -- Final summary judgment entered in favor of insurer

13 Fla. L. Weekly Supp. 609b

Insurance -- Personal injury protection -- Demand letter -- Insurer's motion for summary judgment based on insured's failure to furnish pre-suit demand letter to person designated by insurer to receive such notices is denied where question of material fact exists as to whether insured substantially complied with pre-suit requirement by sending demand letter to claims adjuster after adjuster failed to respond to insured's repeated attempts to obtain name and address of designated demand letter recipient

13 Fla. L. Weekly Supp. 889c

Insurance -- Personal injury protection -- Demand letter -- Sufficiency -- Where demand letter sent by medical provider contained HCFA forms without specifying exact amount claimed, and letter failed to account for claims not yet overdue or amounts applied to deductible, reduced to reasonable charges or partially paid, letter failed to comply with statute -- Summary judgment granted in favor of insurer

13 Fla. L. Weekly Supp. 608c

Insurance -- Personal injury protection -- Demand letter -- Where medical provider who sent pre-suit demand letter subsequently reassigned cause of action to insured, and insured did not send separate demand letter prior to filing PIP action, summary judgment is granted in favor of insurer

13 Fla. L. Weekly Supp. 489a

Insurance -- Personal injury protection -- Demand letter -- Where medical provider claimed that amount of interest paid by insurer was incorrect, demand letter which did not state specific amount of additional interest claimed to be due failed to comply with section 627.736(11)(b)(3)

13 Fla. L. Weekly Supp. 1040a

Insurance -- Personal injury protection -- Civil procedure -- Whether billing ledger attached to 15-day demand letter pursuant to Florida Statutes, section 627.736(11) was legible created issues of fact that precluded summary judgment on that basis -- Summary judgment must be affirmed under Tipsy Coachman rule since the billing ledger listed all treatment received by insured, not just treatment for which payment was sought as required by PIP statute -- Summary judgment affirmed

13 Fla. L. Weekly Supp. 1085a

Insurance -- Personal injury protection -- Demand letter -- Sufficiency -- Presuit demand letter to which medical provider attached patient account ledger which failed to indicate with specificity which services had been reduced or denied did not comply with statutory requirements -- Complaint dismissed without prejudice

13 Fla. L. Weekly Supp. 180a

Insurance -- Personal injury protection -- Demand letter -- Where medical provider filed suit after effective date of statutory amendment requiring pre-suit demand letter but did not fulfill demand letter requirement, final summary judgment is entered in favor of insurer

13 Fla. L. Weekly Supp. 160a

Insurance -- Personal injury protection -- Explanation of benefits -- Where, upon receipt of bill for cervical pillow, insurer sent EOB making timely request for invoice for pillow, and provider did not send invoice but instead filed suit, EOB tolled time for payment, and claim for pillow was not overdue at time suit was filed -- No merit to argument that only way insurer could request invoice under section 627.736(6)(b) is if it requested all information listed in section, including sworn statement that services rendered were reasonable and necessary

13 Fla. L. Weekly Supp. 862a

Attorney's fees -- Insurance -- Personal injury protection -- Prevailing medical provider -- Where insurer paid PIP claim in full on sixteenth day after service of demand letter but before suit was filed, medical provider was not entitled to attorney's fees award, as provider did not obtain judgment or functional equivalent -- Waiver -- Insurer did not waive right to appeal trial court's ruling on entitlement to fees by participating in bifurcated hearing on amount of fees -- Fifteen-day pre-suit period for payment of claim after receipt of demand letter does not create cause of action for attorney's fees if claim is not paid within fifteen days

13 Fla. L. Weekly Supp. 838a

Insurance -- Personal injury protection -- Default -- Where insurer's counsel filed notice of appearance, but insurer failed to file answer or otherwise defend action within 20 days after service of process, entry of default is appropriate

13 Fla. L. Weekly Supp. 573a

Insurance -- Personal injury protection -- Declaratory judgment -- Insurer's obligation to provide PIP log on pre-suit request from medical provider -- Error to determine that medical provider was entitled to PIP log where no provision of PIP statute dictates that insurer must provide PIP log to insured or assignee or even require that insurer keep PIP log at all -- However, because provider has right to information essential to determine its status as claimant, it has right to information that would otherwise be compiled in PIP log, copy of policy and declarations page -- Further, as assignee of insured, provider had right to documentation at issue since insured had right to that documentation at any time -- Argument that assignment did not specifically authorize release of documentation has been waived by failure to raise issue below -- Demand letter -- Argument regarding alleged defects in demand letter is rejected where appeal concerns only declaratory relief action, not action for benefits requiring demand letter, and any issue with demand letter would not affect validity of summary judgment in declaratory judgment action -- Further, demand letter issue not raised below has been waived -- Insurer is equitably estopped from asserting position that unintentional post-suit production of documents renders action moot where insurer's refusal to produce documents forced provider to seek counsel and file suit -- Moreover, court has jurisdiction to address merits of moot action where, as here, action involves important issue capable of repetition yet evading review

13 Fla. L. Weekly Supp. 996a

Insurance -- Personal injury protection -- Fraud -- Section 627.736(4)(g), which provides that insured's commission of insurance fraud related to PIP coverage will void coverage, is not applicable to, and does not provide remedy for, insurance fraud committed by medical provider/assignee

13 Fla. L. Weekly Supp. 729b

Insurance -- Personal injury protection -- Coverage -- Examination under oath -- Failure to attend -- Attendance at EUO is not condition precedent to benefits where insurer which rescheduled EUO with notation that benefits cutoff was coming effected anticipatory repudiation discharging any further obligations under contract -- Further, insurer is required to pay any bills received before failure to attend EUO -- Passenger in vehicle owned by insured who has no coverage herself and did not live with anyone with coverage is covered under insured's policy -- Independent medical examination -- Failure to attend -- Insurer is liable for medical bill for procedure that occurred prior to cutoff date based on failure to attend IME

13 Fla. L. Weekly Supp. 578b

Insurance -- Personal injury protection -- Coverage -- Non-owned vehicle -- Where coverage while operating non-owned vehicle excluded vehicle owned by relative, policy clearly and unambiguously did not provide coverage for truck owned by insureds' son -- Liability of parent for minor driver -- Parents' PIP policy should not be extended to require coverage of claims against parents based on liability for son's negligence or willful misconduct which parents assumed by signing son's driver's license application where such coverage was not contemplated in policy -- Insurer's motion for summary judgment granted

13 Fla. L. Weekly Supp. 257a

Torts -- Conversion -- Insurance -- Personal injury protection -- Coverage -- Medical provider -- Unregistered clinic -- If clinic fails to register, it may not collect PIP benefits for services rendered, and insurer who mistakenly pays for such services may assert claim for reimbursement -- Provider's argument that insurer is impermissibly attempting to assert a private cause of action under applicable registration statute is not supported by case law or statutory authority -- Accepting allegations in complaint as true, plaintiff has alleged cause of action for compensatory damages and conversion -- Motion to dismiss denied

13 Fla. L. Weekly Supp. 916b

Insurance -- Personal injury protection -- Standing -- Medical provider/assignee has no standing to recover for bill submitted under federal tax identification number of another medical provider -- Coverage -- Medical expenses -- Lawfully rendered services -- Where provider/assignee is neither registered corporation nor registered fictitious name authorized to transact business in state, provider is not entitled to maintain cause of action and is precluded from claiming PIP benefits since services were not lawfully rendered

13 Fla. L. Weekly Supp. 906a

Insurance -- Personal injury protection -- Coverage -- Unregistered medical provider -- Insurer is entitled to recover PIP and Medpay benefits paid to unregistered provider

13 Fla. L. Weekly Supp. 905a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Lawfully rendered services -- Licensure -- Medical provider is precluded from seeking or obtaining payment of PIP and medical payment benefits from insurer or patients for care rendered when provider was not registered clinic or exempt from registration requirement -- Insurer is entitled to reimbursement for all expenses paid for services rendered while provider was unregistered, even if investigation of charges did not commence within 30 days from submission of bill to insurer -- Where insurer's common law cause of action is founded on fact that provider was not licensed, reimbursement is required even after repeal of statute providing that insurer may assert claim that treatment was not reasonable, related or necessary after payment of claim

13 Fla. L. Weekly Supp. 373a

Insurance -- Personal injury protection -- Counterclaims -- Statutory cause of action for violating PIP statute -- Dismissal -- Motion to dismiss is granted as to count of insurer's counterclaim asserting statutory cause of action for violation of section 627.736, alleging that medical provider violated statute by submitting bills that were not medically necessary and not coded in accordance with CPT guidelines, and bills for services not lawfully rendered due to provider's failure to be licensed in massage therapy -- PIP statute and massage therapy licensing statute do not purport to establish civil liability but merely make provisions to secure the safety and welfare of public

13 Fla. L. Weekly Supp. 364b

Insurance -- Personal injury protection -- Reconsideration -- Where no final judgment has issued, trial court has authority to reconsider and modify or vacate order denying motion for summary judgment -- Coverage -- Medical provider -- Unregistered clinic -- Where medical provider operated from single structure or facility on date services were rendered to insured, provider was clinic which was required to register with state to recover claimed PIP benefits -- Summary final judgment entered in favor of insurer

13 Fla. L. Weekly Supp. 87a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reduction -- Where insured provided evidence that therapeutic pillow was reasonable, related and medically necessary and that amount charged for pillow was reasonable, insurer's decision to reduce charge to 20% over invoiced cost of pillow failed to meet requirements of no-fault statute

13 Fla. L. Weekly Supp. 641b

Insurance -- Personal injury protection -- Coverage -- Where insurer failed to identify to medical provider's responses to interrogatories that insurer relied on to oppose summary judgment, court will not consider responses -- Where provider attached uncertified copies of bills to affidavit in support of summary judgment and did not attest in affidavit that attachments were true and correct copies, court will not consider copies -- Partial summary judgment is entered as to uncontroverted matters on which provider's affidavit is not conclusory, including fact that insured was injured in accident, total amount of treatment rendered, assignment of benefits to provider, and proper licensure of provider

13 Fla. L. Weekly Supp. 343b

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Where insured was involved in two motor vehicle accidents occurring one month apart, and medical records and reports indicate that insured sustained no new injuries and received no additional treatment as result of second accident, insured is not entitled to PIP benefits with respect to second accident

13 Fla. L. Weekly Supp. 203a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Second opinion -- Physician who examined insured and provided second opinion on request of treating physician provided medical service compensable under PIP statutes

13 Fla. L. Weekly Supp. 359b

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary treatment -- New trial -- Where insurer presented no medical testimony to refute testimony of medical provider's medical expert that treatment was reasonable, related and necessary, and cross-examination in no way severely impeached expert's testimony, zero verdict is unjust and against manifest weight of evidence -- Motion for new trial granted

13 Fla. L. Weekly Supp. 126a

Insurance -- Personal injury protection -- Ruling that provider had burden to prove reasonableness of treatment, but not reasonableness of price, was error -- Appeals -- Insurer did not invite error and waive right to appeal where record shows that insurer argued that unreasonableness of medical provider's charges need not be pled as affirmative defense, and not until judge upheld own ruling that insurer was estopped from arguing unreasonableness of amount of charge did insurer ultimately acquiesce to entry of final judgment

13 Fla. L. Weekly Supp. 394b

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Determination of reasonable charge for disputed bills is question of fact for jury that precludes summary judgment

13 Fla. L. Weekly Supp. 101a

Insurance -- Personal injury protection -- Notice of loss -- Insured's motions for directed verdict and judgment notwithstanding verdict, following verdict determining that insurer did not receive reasonable notice of loss, are granted -- Correspondence from insured to insurer requesting that hospital bill for gastric bleed occurring one year after automobile accident be processed for payment with enclosed hospital bill stating that physician charges will be billed separately and later letter specifically requesting payment for physicians in certain amount satisfied requirement for notice of loss and amount of loss for services provided by physicians -- No merit to argument that insured was required to provide insurer with medical bill for physicians' services or medical records to establish reasonable proof of covered loss where bill would not assist insurer in determining whether hospitalization for gastric bleed was related to accident, PIP statute did not require insured to furnish insurer with bill or records, and insured fulfilled any obligation to provide medical records by signing authorization allowing insurer to obtain records -- No merit to argument that insured's cause of action on claim based on second more specific letter sent after complaint was filed was premature since 30-day period to pay claim had not expired at time complaint was filed where premature element of cause of action was cured by passage of time as claim matured and benefits subsequently became overdue 30 days after insurer's receipt of letter -- Insurer's recourse for premature claim was to either seek dismissal without prejudice or to seek stay or abatement of action until claim ripened, which it did not do -- Coverage -- Medical expenses -- Reasonable, related and necessary treatment -- Where insured's experts testified credibly that insured's use of aspirin and other non-steroidal and anti-inflammatory medicines was likely cause of gastric bleed resulting in hospitalization, insured testified credibly that she consumed medicines on almost daily basis following accident, and insurer failed to present own expert in rebuttal or to substantially discredit or severely impeach testimony of insured's experts, insured is entitled to summary judgment on issue of relatedness of treatment to accident -- Further, insured is entitled to summary judgment on relatedness issue due to insurer's failure to comply with statutory requirement to obtain report from physician licensed under same statute as treating physicians before it could challenge reasonableness, relatedness or necessity of treatment rendered

13 Fla. L. Weekly Supp. 380b

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary treatment -- Summary judgment is granted in part where there is no disputed issue of material fact as to relatedness and medical necessity of treatment, but there remains dispute as to reasonableness of amount charged

13 Fla. L. Weekly Supp. 334a

Insurance -- Personal injury protection -- Appeal of judgment against driver's insurer in action brought by plaintiff who was struck by driver's vehicle while sleeping in garage -- Standing -- Assignment -- Waiver -- Trial court correctly found that insurer waived affirmative defense of assignment by failing to raise defense by motion to dismiss or in responsive pleading, even where insurer asserted that it was surprised by existence of assignment introduced at trial -- Coverage -- Pedestrian -- No merit to argument that trial court erroneously shifted burden of proof by requiring insurer to prove that plaintiff was not entitled to PIP benefits -- Plaintiff was entitled to insurer's PIP benefits as a pedestrian not entitled to PIP coverage from any household vehicle -- Medical expenses -- Reasonable, related and necessary treatment -- No error in denying insurer's motion for directed verdict on issue of reasonableness and necessity of medical bills despite absence of expert testimony on issue where medical records and lay testimony laid sufficient predicate for issue to be presented to jury

13 Fla. L. Weekly Supp. 857a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary treatment -- Error to direct verdict in favor of insurer based on erroneous conclusion that treating physician's testimony that medical bills were reasonable and explanation of how he arrived at that opinion did not establish prima facie showing of reasonableness of bills -- New trial required

13 Fla. L. Weekly Supp. 899a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary treatment -- Summary judgment -- Opposing affidavit -- Where insurer failed to obtain peer review physician's report prior to medical provider's bill coming due, insurer cannot use peer review report, affidavit and testimony to refute prima facie showing that services rendered were reasonable, related and necessary -- Partial summary judgment granted in favor of provider

13 Fla. L. Weekly Supp. 891a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary treatment -- Summary judgment -- Opposing affidavit -- Where medical provider sustained initial burden of establishing that medical treatment was reasonable, related and medically necessary though affidavits of medical provider and owner of billing company, opposing peer review which was not factually supported by independent medical examination was not valid report that could form basis for denial of benefits or be considered as record evidence to oppose motion for summary judgment, and insurer has provided no evidence that valid report was in its possession when benefits were denied, provider's motion for summary judgment is granted

13 Fla. L. Weekly Supp. 1235a

Insurance -- Personal injury protection -- Summary judgment -- Opposing affidavits -- Affidavit of doctor who performed peer review but did not perform physical examination or make complete medical records review is insufficient as matter of law -- Summary judgment entered in favor of insured

13 Fla. L. Weekly Supp. 893b

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary expenses -- Where insurer failed to obtain valid report stating treatment was not reasonable, related or necessary prior to denying payment of benefits, peer review report obtained after denial of benefits was not valid report and cannot be used to refute medical provider's prima facie showing that treatment was reasonable, related and necessary -- No merit to argument that requirement of prior valid report applies only to benefits withdrawn and not to those withheld or denied

13 Fla. L. Weekly Supp. 378b

Insurance -- Personal injury protection -- Summary judgment -- Medical provider is entitled to summary judgment regarding whether insured was injured in accident, use of correct CPT codes, and standing where insurer filed no affidavits to oppose those issues and there is no record evidence to oppose issues -- Coverage -- Medical expenses -- Provider is also entitled to summary judgment on issues of reasonable, related and necessary treatment where peer review filed by insurer is stricken and record evidence does not raise disputed issue of fact -- Peer review is deficient where reporting physician never physically examined insured, and report makes no mention of whether physician is in active practice, reviewed all medical records, or maintains own records for three years as required by section 627.736(7) -- Further, report is deficient for failing to provide facts to support opinions regarding prices charged by medical provider and limits of necessary treatment

13 Fla. L. Weekly Supp. 177c

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary treatment -- Insurer cannot oppose motion for summary judgment regarding reasonable price for services by filing affidavit and peer review of physician that insurer did not rely upon in applying reductions to medical provider's bills, rather than opposing motion with documentation that insurer actually relied upon to reduce bills -- Withdrawal of benefits in reliance on peer review prepared by physician who did not examine insured is contrary to PIP statute -- Insurer's failure to comply with section 627.736(7)(a), by use of peer review which was obtained one year after claims were submitted and which was not supported by physical examination, results in waiver of insurer's right to present countervailing expert testimony from physician -- Summary judgment entered in favor of medical provider

13 Fla. L. Weekly Supp. 189a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary treatment -- Summary judgment -- Independent medical examination is rejected as opposing affidavit where IME report was untimely served and is unsworn -- Insured's statement acknowledging that he suffered knee injury more than twenty years ago does not create disputed issue of material fact as to reasonableness, relatedness or necessity of treatment where statement is consistent with medical provider's position that treatment did not arise because of prior knee injury but because of new injury -- Even if insured believed that current injury was related to prior injury, PIP statute requires insurer to obtain physician's statement, not layman's statement, to avoid liability for payment of PIP benefits -- Provider's motion for final summary judgment granted

13 Fla. L. Weekly Supp. 164a

Insurance -- Personal injury protection -- Notice of accident -- Where insurer received notice of accident prior to commencement of treatment and was fully able to investigate claim through all investigatory tools, insurer is not relieved of liability by fact that notice was not given as soon as practicable -- Coverage -- Medical expenses -- Reasonable, related and necessary treatment -- Final summary judgment is granted in favor of medical provider where provider submitted affidavits attesting that services rendered were reasonable, related and necessary; court declines to consider reports of two doctors that conducted IMEs because reports were not authenticated; and court rejects peer review report because it was not authenticated, was prepared a year and half after payment was denied, and it was not supported by physical examination -- No merit to argument that section 627.736(7)(a) requirement to obtain physician report applies only to benefits withdrawn, not to those withheld

13 Fla. L. Weekly Supp. 244a

Insurance -- Personal injury protection -- Summary judgment -- Evidence -- Peer review -- No abuse of discretion in excluding peer review report from consideration on motion for summary judgment where there is no indication that physician who prepared report actually examined insured or reviewed complete treatment records or that physician met record keeping requirements of section 627.736(7)(a) -- Further, insurer has failed to demonstrate report would be admissible as affidavit where record fails to indicate that it was made under oath or that records referenced therein were authenticated and attached

13 Fla. L. Weekly Supp. 900a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Summary judgment -- Opposing affidavit -- Where witness whose deposition testimony insurer offered to dispute amount of charges relied on Physician Fee and Coding Guide for year prior to year of treatment, testimony was unreliable -- Further, where insurer failed to attach to testimony portions of guide on which witness relied, testimony could not be used -- Summary judgment granted in favor of medical provider

13 Fla. L. Weekly Supp. 1206a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary expenses -- Notice of filing compulsory medical examination report could not be relied upon by insurer at summary judgment proceeding where notice was untimely filed at hearing without exigent circumstances -- Medical report, which was not accompanied by affidavit or sworn testimony, was hearsay -- Deposition testimony of litigation adjuster was unreliable and inadmissible to show medical bills were not within usual and customary range where adjuster referred to Physician's Fee and Coding Guide but did not identify to which year or edition of guide she was referring or attach pages referenced to deposition, and insurer failed to submit admissible evidence that would establish that adjuster was expert who could rely on guide -- Where litigation adjuster who did not actually make reductions read from claims adjuster's notes which were not made part of record pursuant to insurer's work product privilege objection, reliance on claims adjuster's notes was tantamount to relying on hearsay and violated sword and shield doctrine -- Summary judgment entered in favor of medical provider

13 Fla. L. Weekly Supp. 182a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary treatment -- Affidavits presented by insurer in opposition to motion for summary judgment are insufficient where affidavits were served on day of hearing and conflict with insurer's response to interrogatory stating that sole basis for denial of benefits was excessiveness of bills and insurer's admissions that MRI at issue was reasonable, related and necessary -- Independent medical examination and peer review reports are insufficient where reports state that information is true to best of reporting physician's knowledge or that contents are true and accurate, but do not state that reports are based on personal knowledge -- Further, reports are insufficient for having been filed after insurer had already withdrawn benefits -- Final judgment entered in favor of medical provider

13 Fla. L. Weekly Supp. 507b

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary treatment -- Where treating physician's affidavit establishes that insured was injured as result of motor vehicle accident and that treatment was reasonable, related to accident and medically necessary; insured's coverage under policy is established by insurer's responses to request for admissions; and insurer filed opposing affidavit of physician which was insufficient, in that affidavit was unsworn and stated that information was accurate to best of affiant's knowledge; but affidavit of adjuster raised disputed issue of material fact as to amount of deductible; medical provider is entitled to partial summary judgment as to reasonableness, relatedness and necessity of 80% of amount claimed, less applicable deductible no greater than amount adjuster claims is due

13 Fla. L. Weekly Supp. 433a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related, and necessary treatment -- Affidavit of treating physician was sufficient to meet medical provider's burden of demonstrating absence of genuine issue of material fact regarding medical necessity and relatedness of treatment -- Affidavit was conclusory and insufficient with regard to reasonableness of amount claimed where affidavit stated that amount of bill was reasonable and what is customarily charged for similar medical services in the community but did not provide foundation of provider's personal knowledge and/or expertise regarding community billing practices, did not recite any admissible facts or physician's guide on which statement regarding reasonableness of amount billed was based, and did not make an affirmative showing that provider was competent to testify regarding his billing statement

13 Fla. L. Weekly Supp. 1157a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary treatment -- Medical provider's affidavit in support of summary judgment that contained nothing other than conclusory and self-serving statements that treatment was reasonable, related and necessary and that proper code was used to bill insurer was not sufficient to support summary judgment -- Further, where affidavit directly contradicted statements made in provider's deposition, affidavit raised factual issues which should have precluded entry of summary judgment -- Trial court also erred in ruling that insurer was not entitled to rely on computer-based database to support reduction in payment of charges

13 Fla. L. Weekly Supp. 505a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary treatment -- Summary judgment -- Medical provider's motion for partial summary judgment on issue of reasonableness, relatedness and necessity of treatment is granted where provider's motion and affidavit facially establish entitlement to summary judgment on issue; insurer failed to submit any affidavits or reports to rebut provider's assertion that treatment was reasonable, related and necessary; and insurer withdrew transcript of deposition of representative of billing company related to issue

13 Fla. L. Weekly Supp. 381b

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary treatment -- Where medical provider filed affidavit of treating physician stating that treatment rendered was related to accident and medically necessary and that charges were reasonable in amount, provider met burden of moving party to establish non-existence of any genuine issue of material fact -- Opposing affidavit of physician filed by insurer is insufficient to raise disputed issue of material fact where physician's report was obtained untimely after withdrawal of benefits and physician is not licensed under same chapter as treating physician -- Affidavit of actuary is legally insufficient where reference to information collected from providers does not demonstrate personal knowledge, Medicare data on which actuary also relies is proprietary to third party not shown to be authoritative source on issue, and fees paid by Medicare are insufficient to raise disputed issue of material fact as to reasonableness of fees charged in non-Medicare context -- Final summary judgment entered in favor of provider

13 Fla. L. Weekly Supp. 787a

Insurance -- Personal injury protection -- Appeals -- Record -- Trial court's striking of affirmative defense that services were not reasonable, related or necessary and precluding insurer's doctor from testifying about issue is affirmed where insurer failed to include in record on appeal order striking affirmative defense as sanction for discovery violations or documentation of events leading up to imposition of sanction -- Directed verdict -- Error to enter directed verdict in favor of medical provider where testimony of provider's doctor was conflicting and created inference that doctor may not have reviewed insured's charts adequately to determine that medical bills were reasonable, necessary and related

13 Fla. L. Weekly Supp. 629c

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary treatment -- Medical provider's motion for summary judgment is denied where affidavit of insurer's medical expert is sufficient to create genuine issue of fact -- Section 627.736(4)(b) permits insurer to raise defense of reasonableness at any time, even after 30-day period for payment has expired

13 Fla. L. Weekly Supp. 1160c

Insurance -- Personal injury protection -- No error in and directing verdict that office visits and treatment in dispute were medically necessary and related to accident where medical provider's expert testified that charges were medically necessary and related, and testimony of insurer's expert supported that contention

13 Fla. L. Weekly Supp. 439a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable charges -- Where reasonableness of charges for treatment, not reasonableness of treatment itself, was in dispute between parties, and medical provider filed affidavit of treating physician in support of motion for summary judgment which addressed reasonableness of treatment but failed to submit any proof as to reasonableness of charges, provider failed to satisfy burden for granting summary judgment

13 Fla. L. Weekly Supp. 344b

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Absence of reasonable proof of covered loss

13 Fla. L. Weekly Supp. 194a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Medical provider has made prima facie showing of entitlement to recovery of PIP benefits where provider has established through affidavits and examination under oath that insured was involved in motor vehicle accident, there is no dispute that insured was covered by insurer's PIP policy, and provider has established through physicians' affidavits that treatment was reasonable, related and necessary -- Affirmative defenses -- Notice of loss -- Defense of untimely notice of loss fails where insured testified in EUO that she called insurance agent on date of accident

13 Fla. L. Weekly Supp. 903a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Overdue bills -- Request for documentation/information -- Failure to respond -- Medical provider was not entitled to bring action to collect on claim for nerve conduction testing where provider had not responded to insurer's request for documentation or information regarding medical necessity of testing and, therefore, claim was not yet overdue

13 Fla. L. Weekly Supp. 842a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary treatment -- Summary judgment -- Opposing affidavit -- Affidavit of doctor who performed peer review is legally insufficient and may not be relied upon to rebut prima facie case that services rendered were reasonable, related and necessary and that charges were reasonable in amount where records or peer review report referenced in affidavit are not attached thereto, peer review is not supported by physical examination of insured, affidavit relies on hearsay peer review and makes conclusory allegations that charges were not correctly coded and exceeded usual and customary amounts, and affidavit presents double hearsay problem by relying on peer review not admissible as business record because prepared for purpose of litigation -- Claim -- Mailbox rule -- Where medical provider attested that it is provider's general practice to send copy of invoice after receiving request for invoice from insurer, and copy of invoice is in file for claim, presumption is raised that invoice was mailed to insurer -- Adjuster's testimony that he did not receive invoice is insufficient to rebut presumption of mailing where insurer failed to establish chain of custody of invoice between Tampa office where mail is received and adjuster located in Fort Lauderdale

13 Fla. L. Weekly Supp. 825a

Insurance -- Personal injury protection -- Notice of claim -- Disclosure and acknowledgment form which differed from standard form promulgated by Office of Insurance Regulation only by rewording of acknowledgment phrase substantially complies with promulgated form and cannot be used to preclude payment of claim

13 Fla. L. Weekly Supp. 826a

Insurance -- Personal injury protection -- Notice of claim -- Where medical provider wrote “See Attached” on lines of standard disclosure and acknowledgment form provided for description of treatment rendered and attached documents describing treatment, form substantially complies with standard form and statute -- Independent medical examination -- Failure to attend -- Insurer cannot use opinion of medical doctor to suspend benefits where all treatment is chiropractic, and insurer failed to notify insured of intent to suspend benefits as result of non-attendance at IME -- Insurer cannot use insured's nonattendance at IME with chiropractor to suspend benefits where insured's attorney requested that unilaterally scheduled IME be reset at mutually convenient time, but insurer never rescheduled IME, and insurer failed to notify insured of intent to suspend benefits as result of non-attendance at IME -- Examination under oath -- Insured was not required to attend EUO where insurer failed to provide insured with requested copy of insurance policy on which EUO defense is premised -- Further, where insurer gave two alternative dates for EUO, only date insured can contend insured did not appear at EUO is second date and, since that date fell after effective date of benefits cutoff, insured's duties under policy had been discharged and insured had no duty to attend EUO -- Summary judgment -- Peer review -- Timeliness -- Insurer is precluded from relying on untimely filed peer review in opposition to summary judgment -- Where insurer had no evidence other than untimely peer review to dispute provider's contention that bills were reasonable, related and necessary, summary judgment is granted in favor of provider

13 Fla. L. Weekly Supp. 1213a

Insurance -- Personal injury protection -- Coverage -- Examination under oath -- Failure to attend -- Where there is no evidence that insurer scheduled EUO, which insured failed to attend, within 30 days after receiving first two bills from medical provider, neither provider nor insured breached insurance contract for those bills, and insurer failed to establish reasonable proof for denying claims regarding those bills -- Affidavit of non-appearance for EUO scheduled within 30 days of receipt of third bill raises factual issue as to whether insured was properly scheduled for EUO with respect to third bill -- Insurer's argument that bills were not compliant with section 627.736 fails where insurer failed to provide explanation of benefits regarding deficiencies for 11 months after first bill was submitted -- Partial summary judgment entered in favor of provider

13 Fla. L. Weekly Supp. 1088a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Withdrawal of benefits -- Peer review report -- Where insurer denied payment for nerve conduction velocity test based on peer review report that was based solely on conclusions drawn from examination of records, insurer failed to obtain valid report allowing withdrawal of payment -- Medical provider's motion for summary judgment granted 

13 Fla. L. Weekly Supp. 1160a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- MRI -- Despite opposing affidavit and independent medical report, there was sufficient evidence that MRI was reasonable, related and necessary to support entry of summary judgment in favor of medical provider

13 Fla. L. Weekly Supp. 378a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- MRI -- Patient brokering -- Fee splitting -- Where undisputed facts demonstrate that medical provider rendered no professional or technical services pertaining to MRI bill, lease agreement between provider and scan center and employment agreement between provider and physician that interpreted MRI constitute illegal patient brokering and/or fee splitting

13 Fla. L. Weekly Supp. 494b

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- MRI -- Summary judgment is entered in favor of medical provider where affidavit of physician establishes that MRI was reasonable, related and necessary as result of accident, and medical provider has not filed anything in opposition to motion for summary judgment -- Where provider is not accredited MRI facility, charges are payable at 175% of Medicare Part B fee schedule

13 Fla. L. Weekly Supp. 416a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- MRI -- Medicare Part B fee schedule -- Consumer Price Index adjustment -- Trial court erred in retroactively applying 2003 amendment to section 627.736(5)(b)5, which changed the timing of CPI adjustments to Medicare Part B fee schedule for MRI services to August 1 to reflect entire calendar year's CPI changes, where inclusion of effective date in statute rebuts any argument that statute is retroactive -- Where applicable 2001 version of statute provides that first annual CPI adjustment was to occur on November 1, 2002, insurer was not required to make CPI adjustment to fee schedule before paying bills for MRI service provided prior to November 1, 2002

13 Fla. L. Weekly Supp. 901a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- MRI -- Allowable amount -- Adjustment to Florida Medical Consumer Price Index -- Court may refer to 2003 amendment to section 627.736(5)(b)(5), clarifying that term “Florida Medical Consumer Price Index” in 2001 statute refers to annual medical care item of Consumer Price Index for All Urban Consumers in South Region, to interpret meaning of CPI language in 2001 statute -- No merit to argument that reliance on 2003 amendment to interpret CPI language in 2001 statute would result in unconstitutional retroactive application of 2003 amendment -- Correct amount of CPI adjustment calculated -- Question certified

13 Fla. L. Weekly Supp. 912b

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- MRI -- Allowable amount -- Adjustment to Consumer Price Index for All Urban Consumers in South Region -- Calculation -- CPI calculation must be made annually and cumulatively, reflecting combined prior years' increases from 2001 through August 1 of year MRI was performed -- Correct CPI adjustment calculation reveals insurer paid medical provider less than allowable amount for MRI

13 Fla. L. Weekly Supp. 785a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- MRI -- Allowable amount -- Adjustment to Florida Medical Consumer Price Index -- Error to grant summary judgment in favor of insurer that failed to apply CPI adjustment to MRI payment on grounds that Florida CPI named in 2001 version of statute did not exist at time of payment where construction of statute to find legislature intended payments be adjusted by nonexistent standard would be absurd and render statute meaningless -- Based on rules of statutory construction and consideration of 2003 amendment specifying that CPI for southern region of country be applied, insurer was required to adjust payment pursuant to CPI for southern region

13 Fla. L. Weekly Supp. 1099a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- MRI -- Allowable amount -- Adjustment to Consumer Price Index for All Urban Consumers in South Region -- Calculation -- CPI calculation must be made annually and cumulatively, reflecting combined prior years' increases from 2001 through August 1 of year MRI was performed and percentage in change of prices for 12-month period ending June 30 of that year -- Correct CPI adjustment calculation reveals insurer paid medical provider less than allowable amount for MRI

13 Fla. L. Weekly Supp. 1097a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- MRI -- Allowable amount -- Adjustment to Consumer Price Index for All Urban Consumers in South Region -- Calculation -- CPI calculation must be made annually and cumulatively, reflecting combined prior years' increases from 2001 through August 1 of year MRI was performed and percentage in change of prices for 12-month period ending June 30 of that year -- Correct CPI adjustment calculation reveals insurer paid medical provider less than allowable amount for MRI

13 Fla. L. Weekly Supp. 1002a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- MRI -- Where affidavit of medical provider attests that MRI was requested by provider and was reasonable, related and necessary as result of accident, and insurer has not filed opposing affidavit, provider's charges for MRI are payable at statutory fee schedule -- Fact that HCFA form submitted to insurer claimed amount greater than fee schedule allows is not defense to payment -- Independent medical examination -- Failure to attend -- Where insurer set two dates for IME and admits that insured never received notice of first date and insured's counsel never received notice of second date, insurer failed to provide legally sufficient notice of IMEs, and failure to attend IMEs is attributable to insurer and not unreasonable

13 Fla. L. Weekly Supp. 729a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- MRI -- Charges in excess of statutory fee schedule -- Where charges for MRI set forth in demand letter exceeded statutory fee schedule, charges were unreasonable and not payable

13 Fla. L. Weekly Supp. 361a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- MRI -- Reasonable, related and necessary treatment -- Where medical provider's affidavit attests that MRI services were reasonable, related and necessary as result of injuries incurred in accident, and insurer did not file opposing affidavit, provider is entitled to payment of charges pursuant to MRI fee schedule -- Fact that HCFA form submitted to insurer sets forth amount greater than fee schedule is not defense to payment of charges -- No merit to claim that insured is not entitled to coverage under PIP policy covering vehicle she occupied at time of accident because she was entitled to PIP coverage under policy covering vehicle owned by grandmother with whom she resides where grandmother filed unopposed affidavit stating that insured is not listed on her PIP policy

13 Fla. L. Weekly Supp. 347a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- MRI -- Bill in excess of statutory amount -- Insurer's motion for summary judgment raising for first time defense that insurer could not respond to demand letter for MRI bill because letter failed to state correct statutory amount allowable for MRI procedures is denied where it is undisputed that insurer denied MRI claim based on peer review opining that MRI was not reasonable or medically necessary and charges appeared excessive

13 Fla. L. Weekly Supp. 329c

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- MRI -- No error in granting summary judgment in favor of medical provider where ample evidence was presented to find bill for each MRI was reasonable, and order granting summary judgment was consistent with statute

13 Fla. L. Weekly Supp. 242a

Insurance -- Personal injury protection -- Since time trial court issued final summary judgment holding that MRI provider could recover for underpayment of PIP benefits, appellate court has issued decision determining that benefits payable for MRIs are to be based on Medicare Part B fee schedule rather than limiting charge schedule -- Remand to trial court to follow now-controlling appellate decision

13 Fla. L. Weekly Supp. 499a

Insurance -- Personal injury protection -- Demand letter -- Insurer's motion for summary judgment as to issue of whether plaintiff complied with demand letter requirement is denied where there is disputed issue of material fact as to PIP contact person listed on Department of Insurance website -- Coverage -- Medical provider -- Referral and billing service -- Summary judgment is granted in favor of insurer as to issue of whether amount billed by plaintiff was improper where plaintiff provided only referral and billing services not compensable under PIP statute and is not physician, hospital, clinic or other person or institution lawfully rendering treatment and entitled to recover PIP benefits

13 Fla. L. Weekly Supp. 824b

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Lawfully rendered treatment -- Affirmative defense of failure to comply with provision of Health Care Act concerning medical director is stricken where during all relevant times medical provider held unencumbered license pursuant to Act, and insurer cannot state cause of action for perceived violation of Act absent independent determination of violation by Agency for Health Care Administration

13 Fla. L. Weekly Supp. 824b

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Lawfully rendered treatment -- Affirmative defense of failure to comply with provision of Health Care Act concerning medical director is stricken where during all relevant times medical provider held unencumbered license pursuant to Act, and insurer cannot state cause of action for perceived violation of Act absent independent determination of violation by Agency for Health Care Administration

13 Fla. L. Weekly Supp. 823b

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Lawfully rendered treatment -- Affirmative defense of failure to comply with provision of Health Care Act concerning medical director is stricken where during all relevant times medical provider held unencumbered license pursuant to Act, and insurer cannot state cause of action for perceived violation of Act absent independent determination of violation by Agency for Health Care Administration

13 Fla. L. Weekly Supp. 420a

Insurance -- Personal injury protection -- Coverage -- Medical bills and liens paid by insured -- Where insured did not comply with statutory requirement to submit to PIP insurer, on properly completed form, claims for personally paid medical bills and Medicare lien, insurer did not have notice of covered loss, PIP benefits were not overdue, and insured did not have cause of action under PIP statute -- Federal law which gives Medicare ability to seek reimbursement from PIP insurer for bills paid by Medicare does not give insured who satisfied Medicare lien ability to seek reimbursement from insurer -- Insured has no cause of action against PIP insurer for health insurance lien where claim was not submitted on properly completed form, and health insurance was reimbursed from jury award to insured that included past medical expenses, such that reimbursement of insured by PIP insurer would result in windfall

13 Fla. L. Weekly Supp. 558a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Failure to pay or obtain reasonable proof within 30 days -- Error to enter summary judgment in favor of medical provider where penalty for not paying valid claim or obtaining reasonable proof that claim is not valid within 30-day authentication period is imposition of additional interest and attorney's fees, not elimination of insurer's right to contest claim -- Reasonable charges -- No merit to argument that insurer's responses to request for admissions establish that charges are reasonable -- Statements in admissions relating to payments made to other providers in same zip code as provider and under similar CPT codes do not require conclusion that disputed charges are reasonable -- Further, insurer is entitled to rely on computer-based program to contest reasonableness of charges and have jury weigh both parties' proof

13 Fla. L. Weekly Supp. 908c

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Overdue bills -- Explanation of benefits -- Tolling of period to pay or reject claim -- Where insurer made timely request for x-ray reports to support claims for x-rays and received no response from medical provider, claims were not overdue at time of filing complaint, and suit is premature

13 Fla. L. Weekly Supp. 1154a

Insurance -- Personal injury protection -- Coverage -- Medical benefits -- Expert neurological consultation -- Usual and customary charges -- Evidence -- Error to permit insurer's witness to give opinions as a billing expert although he admitted during testimony that he was not a billing expert and did not do his own billing -- Jury could have used this improper testimony in arriving at their verdict -- Because of this testimony, it was also error to prohibit provider's billing specialist from testifying as to codes and fee guide -- Provider also should have been allowed to introduce redacted explanation of benefits statements showing amounts insurer had previously paid for the same service -- New trial required

13 Fla. L. Weekly Supp. 612a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Exhaustion of policy limits -- Subsequent claim for unpaid portion of bill -- Exhaustion of benefits after insurer is on notice that medical provider is pursuing claim for underpaid bills will not shield insurer from liability for those bills -- Further, insurer is precluded from arguing exhaustion defense where insurer failed to raise issue of exhaustion of benefits until more than one year after exhaustion had occurred, insurer raised issue in motion for summary judgment without amending affirmative defenses to allege exhaustion defense, and delay was prejudicial -- No merit to claim that affirmative defense stating that insurer's liability, if any, is governed by terms, conditions and limitations of policy pleads exhaustion of benefits because this defense was raised months before exhaustion occurred

13 Fla. L. Weekly Supp. 718b

Insurance -- Personal injury protection -- Coverage -- Exhaustion of policy limits -- Subsequent claim for unpaid portion of bills -- Where PIP benefits were exhausted prior to medical provider filing suit for unpaid portion of reduced bills, and provider does not allege bad faith or inappropriate bill processing, provider is not entitled to recover benefits or statutory penalties

13 Fla. L. Weekly Supp. 744a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Exhaustion of policy limits -- Where insurer's overpayment of insured's lost wages claim resulted in premature exhaustion of benefits, and medical provider's claim was submitted prior to lost wages claim and exhaustion of benefits, insurer is liable to provider for amount of overpayment so long as provider is able to establish that benefits claimed were reasonable, related and necessary

13 Fla. L. Weekly Supp. 489b

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Nerve conduction testing -- Only NCV that is exclusively and entirely performed by physician can be reimbursed at higher Medicare rate -- NCV performed by physician's assistant is compensated at lower workers' compensation rate

13 Fla. L. Weekly Supp. 345b

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Nerve conduction testing -- Where NCV done in conjunction with needle electromyography was physically performed by physicians assistant working under medical provider's license, test is not reimbursable at 200% of Medicare Part B rate, but at lower workers' compensation fee schedule rate -- Where amount insurer is entitled to recoup for overpayment for NCV far exceeds amount provider seeks in suit, provider cannot prevail, and insurer's motion for summary disposition is granted

13 Fla. L. Weekly Supp. 375a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Needle electromyography -- Sections 627.736(5)(b)3 and 4 which provide that charge for nerve conduction testing may be reduced to workers' compensation fee schedule when testing is performed in conjunction with needle EMG does not permit insurer to reduce needle EMG charge

NOT FINAL VERSION OF OPINION
Subsequent Changes at 15 Fla. L. Weekly Supp. 615a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Nerve conduction velocity test and electromyography procedure -- Where statute allows charges for NCV testing done in conjunction with EMG procedure to be billed at rate not exceeding 200% of fee schedule of Medicare Part B when both procedures are performed and billed solely by appropriately licensed physician and for payment under lower workers' compensation rates when NCV does not meet those requirements, medical provider's use of medical and physician assistants to perform physical portions of NCV and EMG did not require that provider be paid only under lower rates -- Restrictive interpretation of statute taken by insurer would prevent physician from putting skills to more effective utilization, thereby maximizing insured's PIP benefits, and would undermine intent of legislature to encourage physicians to delegate healthcare and clinical tasks to medical or physician assistants

13 Fla. L. Weekly Supp. 625a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Needle electromyography -- Reasonable charge -- Section 627.736 does not require insurer to pay for needle EMG pursuant to mandatory fee schedule -- Partial summary judgment is granted in favor of medical provider as to balance of reduced bill for needle EMG -- Record, including medical provider's affidavit made from personal knowledge, establishes prima facie case for summary judgment -- Affidavit of physician who performed peer review is improper and inadmissible due to fact that physician did not perform physical examination of insured, affidavit relies on hearsay and is conclusory, and affidavit refers to peer review not attached to affidavit -- Affidavit of insurer's litigation specialist indicates bill for needle EMG was reduced based on Medicare fee schedule, which is not federal or state medical fee schedule applicable to automobile and other insurance coverage that may be considered to determine reasonableness of charge pursuant to section 627.736(5)(a)

13 Fla. L. Weekly Supp. 1152a

Insurance -- Personal injury protection -- No abuse of discretion in denying insurer's ore tenus motion for extension of time to file affidavit supporting peer review physician's report in opposition to medical provider's motion for summary judgment where motion for summary judgment was noticed six weeks before motion hearing, and insurer offered no explanation for failure to timely file affidavit -- Even if timely filed and considered at motion hearing, affidavit would not have affected court's decision to enter summary judgment in favor of provider where insured's benefits were withdrawn by making of reduced payment prior to physician's report having been obtained -- Section 627.736(7)(a) requires written report as condition precedent to withdrawing, denying or reducing medical treatment -- Argument that peer review report was not submitted to satisfy statutory condition precedent, but to create genuine issue of material fact as to charges, is inconsistent with report, which states that evaluation was conducted to determine which services were medically necessary, reasonable and related to accident and contained physician's attestation that he met requirements of section 627.736(7)

13 Fla. L. Weekly Supp. 425a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary treatment -- Peer review -- Timeliness -- Trial court erred in ruling that peer review submitted by insurer in opposition to motion for summary judgment was untimely -- There is no requirement in Florida law that insurer file peer review within 30 days of date of notice of loss to contest reasonableness, relatedness or necessity of PIP claim -- Further, while law requires that insurer obtain medical report prior to withdrawing benefits without consent of insured, it does not require medical report prior to denying benefits

13 Fla. L. Weekly Supp. 1234a

Insurance -- Personal injury protection -- Explanation of benefits -- Failure to provide -- Medical provider/assignee may maintain cause of action against insurer for breach of contract for failure to furnish EOB -- Damages are for jury to determine and may be nominal -- Relief in form of specific performance of delivery of EOB would not require showing of damages

13 Fla. L. Weekly Supp. 716b

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Denial -- Explanation of benefits -- EOB stating that bill had been denied because documentation did not fit coding and advising of procedure for seeking reconsideration or recoding constitutes denial of bill, not discovery request that tolled time for payment -- Payment made 55 days after receipt of bill was overdue payment for which interest is due

13 Fla. L. Weekly Supp. 129a

Insurance -- Personal injury protection -- Default -- Abuse of discretion to enter default, deny motion to set aside default and enter final judgment without conducting hearing -- On remand, trial court may address dilatory conduct of insurer's counsel if after conducting hearing it finds sanctions short of default are appropriate

13 Fla. L. Weekly Supp. 124b

Insurance -- Personal injury protection -- Default -- Error to enter default judgment where medical provider failed to serve insurer with prior notice of application for default -- Order vacating default, entered after insurer filed notice of appeal, was without effect as appellate court had jurisdiction

13 Fla. L. Weekly Supp. 643b

Insurance -- Personal injury protection -- Default -- Where insurer failed to file responsive pleading by deadline set by court and continued to fail to comply with order to file pleading despite clear notice of medical provider's intention to seek default, provider is entitled to default

13 Fla. L. Weekly Supp. 1205b

Insurance -- Personal injury protection -- Coverage -- Denial -- Failure to obtain physician's report -- Where insurer failed to obtain physician's report prior to denying payment, defense that bills were not reasonable or necessary is barred -- Insurer's definite and unconditional repudiation of contract discharged any further obligation for medical provider to attempt to comply with conditions precedent to recovery or cure alleged notice defects

13 Fla. L. Weekly Supp. 437a

Insurance -- Personal injury protection -- Error to present medical charges to jury where medical provider waived charges as to services provided by one physical therapist and the only other therapist working for provider testified that he did not provide any services to insured -- Verdict form -- Defects -- Issue of defect on verdict form was preserved for appeal where insurer raised issue prior to discharge of jury -- Where issue for jury was reasonableness of charges compared to reduced amount allowed by insurer, verdict form that directed jury to add up reasonable amounts to determine damages, rather than adding up differences between reasonable amounts and amounts paid, would not yield correct damages and would result in double payment to provider -- Provider's argument that there was no evidence that allowed amounts had ever been paid is unpersuasive under circumstances -- Trial court had authority to correct verdict at hearing on final judgment

13 Fla. L. Weekly Supp. 797a

Insurance -- Personal injury protection -- Complaint -- Amendment -- Medical provider's name -- Abuse of discretion to deny medical provider's motion to amend complaint to correct omission of word “Centers” from provider's name and to enter summary judgment in favor of insurer based on named plaintiff, which is real corporation, not being real party in interest and not suffering any damages -- Fact that insurer correctly named provider in caption to its response to request for admissions established that insurer had no illusions as to identity of proper plaintiff

13 Fla. L. Weekly Supp. 960a

Insurance -- Personal injury protection -- Affirmative defenses -- Striking -- Abuse of discretion to sua sponte strike affirmative defense during pre-jury conference -- Pleadings -- Amendment -- Abuse of discretion to not allow insurer to amend defenses to include other insurance where motion to amend was insurer's first attempt to amend pleadings and amendment would not be unduly prejudicial, was significantly related to original claims and would not radically alter nature and scope of litigation -- Summary judgment -- Factual issue -- Abuse of discretion to grant medical provider's motion for summary judgment on issue of whether treatment was reasonable, related and necessary and deny insurer's motion for summary judgment based on provider's alleged improper use of portable x-ray machine where insurer's motion presented material issue of disputed fact as to whether x-ray services were reasonable, related and necessary -- Trial court erred in denying motion for rehearing of orders striking fraud defense and orders granting and denying motions for summary judgment where insurer presented sufficient circumstantial evidence in affidavit regarding material factual issue to grant motion for rehearing

13 Fla. L. Weekly Supp. 374a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Medical provider is entitled to recover 80% of amount of bill and statutory interest for bill which insurer's litigation adjuster admits insurer should have paid -- Provider entitled to statutory interest, penalty and postage on bill that insurer paid late without paying statutory interest

13 Fla. L. Weekly Supp. 508a

Insurance -- Personal injury protection -- Coverage -- Commercial vehicle -- Where insured was injured while occupant of commercial vehicle owned by car service, PIP insurer is entitled to be reimbursed by car service for all no fault benefits paid to insured

13 Fla. L. Weekly Supp. 380a

Insurance -- Personal injury protection -- Coverage -- Exhaustion of policy limits -- Evidence -- Affidavit in support of insurer's motion for summary judgment claiming exhaustion of benefits is deficient where affidavit provides no information demonstrating that affiant is competent to testify to matters stated therein -- Where only remaining materials filed in support of motion for summary judgment are hearsay, motion is denied

13 Fla. L. Weekly Supp. 393a

Insurance -- Personal injury protection -- Coverage -- Exhaustion of policy limits -- Subsequent claim for unpaid portion of bills -- Where medical provider never put insurer on notice that it was contesting partial payment of bill until after benefits were exhausted, summary judgment is granted in favor of insurer

13 Fla. L. Weekly Supp. 1149a

Insurance -- Personal injury protection -- Coverage -- Exhaustion of policy limits -- Subsequent claim for unpaid portions of bill -- No error in finding that medical provider was required to provide notice of intent to contest partial payments and that provider's notice was not received by insurer until complaint was served, after benefits were exhausted -- No error in granting insurer's motion for summary judgment -- Appeals -- Argument that provider may be entitled to attorney's fees and interest if benefits should have been paid was not raised below and, accordingly, cannot be considered on appeal

13 Fla. L. Weekly Supp. 766a

Insurance -- Personal injury protection -- Exhaustion of Benefits -- English Rule for establishing priorities of assignees -- An insured cannot maintain a cause of action against the insurer once benefits are exhausted unless certain criteria are met -- Where bad faith is not alleged, insured must promptly notify insurer that an amended claim will be forthcoming when insurer tenders partial payment of claim -- Insured must also refuse partial payment or escrow such funds until claim has been fully adjudicated -- Summary judgment in favor of insurer affirmed

13 Fla. L. Weekly Supp. 1223a

Insurance -- Personal injury protection -- Coverage -- Exhaustion of policy limits -- Medical provider's claim that, despite fact that no benefits can or would be paid because policy limits have been exhausted, insurer can and should be required to pay interest on benefits provider sought is contrary to PIP statute which provides that interest is due at time payment of overdue claim is made -- Provider cannot be entitled to attorney's fees where claim for benefits and interest must be denied

13 Fla. L. Weekly Supp. 183a

Insurance -- Personal injury protection -- Coverage -- Exhaustion of policy limits -- Where medical provider did not dispute reduced amounts paid prior to benefits being exhausted, provider is not entitled to any additional benefits, including Medpay benefits

13 Fla. L. Weekly Supp. 177a

Insurance -- Personal injury protection -- Coverage -- Exhaustion of policy limits -- Summary judgment -- Factual issues -- Where medical provider resubmitted claim after partial payment was made and prior to exhaustion of benefits, there remains question of fact as to whether insurer fulfilled obligation to make prompt payment of claims -- If claim was not handled competently, insurer would be liable for additional money plus interest

13 Fla. L. Weekly Supp. 421a

Insurance -- Personal injury protection -- Coverage -- Exhaustion of policy limits -- Trial court erred in granting summary judgment in favor of medical provider whose claim was denied on ground that benefits were exhausted in payment of another provider's untimely claim -- Although Section 627.736(5)(b) allows insurers to deny claims submitted more than 30 days from date of service, it does not prohibit an insurer from paying such bills

13 Fla. L. Weekly Supp. 1108a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Exhaustion of policy limits -- Insurer's motion for summary judgment based on exhaustion of benefits subsequent to reduced payment of medical provider's bills is denied where deposition testimony of litigation adjuster, which does not establish that adjuster has personal knowledge of how independent review company determined what is usual and customary rate, failed to show that insurer had reasonable proof to make reduced payment -- Further, summary judgment cannot be granted because jury would have to determine whether medical provider's charges were reasonable within meaning of statute and whether insurer's reductions were based on reasonable proof -- Summary judgment is also improper because insurer is liable for statutory interest and attorney's fees if jury finds that provider's charges were reasonable or decides that insurer did not have reasonable proof to reduce bills

13 Fla. L. Weekly Supp. 355a

Insurance -- Personal injury protection -- Coverage -- Exhaustion of policy limits -- Where insurer elected not to pay PIP benefits for amounts billed and otherwise payable to medical provider, and there were sufficient benefits remaining under policy to pay full amount billed at time of billing, but insurer ignored provider's priority claim and exhausted benefits in payments to providers having subordinate claims, insurer owes provider compensatory damages in amount equal to benefits that would have been paid if insurer had properly paid claim prior to exhaustion of benefits, as well as statutory interest and penalties, attorney's fees and costs -- Insurer's failure to recall receipt of entire HCFA form is insufficient to rebut presumption that entire form was received where insurer acknowledges receiving portion of form

13 Fla. L. Weekly Supp. 903b

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Exhaustion of policy limits -- Where PIP benefits were exhausted after insured filed suit for bills denied by insurer, and there is no allegation that insurer acted in bad faith, insurer satisfied statutory and contractual obligations to insured -- Insurer has no duty to escrow funds pending resolution of contested claim

13 Fla. L. Weekly Supp. 502a

Insurance -- Personal injury protection -- Coverage -- Exhaustion of policy limits -- Insurer was not required to set aside reserve fund for denied or reduced claims, and provider who filed suit for denied claim shortly before policy limits were exhausted is not entitled to additional PIP benefits beyond policy limits -- Summary judgment granted in favor of insurer

13 Fla. L. Weekly Supp. 501b

Insurance -- Personal injury protection -- Coverage -- Exhaustion of policy limits -- Where PIP benefits were exhausted after suit was filed, medical provider is not entitled to recover any monies from insurer

13 Fla. L. Weekly Supp. 830c

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Failure to pay or investigate within 30 days -- Exhaustion of policy limits -- Insurer's failure to respond to medical provider's claim within 30 days does not mandate that insurer is responsible for payment of claim after exhaustion of policy limits -- Where insurer decided to deny provider's claim based on peer review and to settle other claims submitted on behalf of insured until policy limits were exhausted, and there is no showing of bad faith on part of insurer, insurer has satisfied obligations under PIP statute and contractual obligations to insured -- Provider/assignee could reserve right to recover payment from insured in event claim is not paid by insurer -- Insurer has no duty to escrow funds pending resolution of contested claim

13 Fla. L. Weekly Supp. 367a

Insurance -- Personal injury protection -- Coverage -- Exhaustion of policy limits -- Escrow of disputed benefits -- Where there is no provision in PIP statute permitting request to reserve disputed benefits, and medical provider is not sure of amount it is requesting be escrowed as request includes unspecified amount of interest, court refuses to exercise discretion to create requirement that insurer escrow any disputed benefits

13 Fla. L. Weekly Supp. 348b

Insurance -- Personal injury protection -- Exhaustion of benefits -- Demand to escrow benefits is stricken as not authorized by statute -- Demand letter -- Complaint is dismissed with leave to amend by attaching copy of purported demand letter

13 Fla. L. Weekly Supp. 181a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Exhaustion of policy limits -- Even though medical provider notified insurer of intent to dispute reduction or denial of payment before benefits were exhausted, insurer was not required to set aside disputed funds -- Insurer's motion for summary judgment granted

13 Fla. L. Weekly Supp. 157b

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Exhaustion of policy limits -- PIP statute does not make provisions for demand to escrow benefits pending resolution of dispute -- Demand letter -- Complaint dismissed without prejudice to amendment to attach complete copy of demand letter and enclosures referenced therein

13 Fla. L. Weekly Supp. 157a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Exhaustion of policy limits -- PIP statute does not make provisions for demand to escrow benefits pending resolution of dispute

13 Fla. L. Weekly Supp. 156c

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Exhaustion of policy limits -- PIP statute does not make provisions for demand to escrow benefits pending resolution of dispute

13 Fla. L. Weekly Supp. 398a

Insurance -- Personal injury protection -- Coverage -- Exhaustion of policy limits -- Penalty provisions in PIP statute cannot be extinguished by exhausting policy limits as long as benefits were available to pay claim before it became overdue -- Insurer's motion for summary judgment cannot be granted where there remain genuine issues of material fact concerning lawfulness of insurer's reductions of medical provider's bills based on database recommendation and reasonableness of charges submitted

13 Fla. L. Weekly Supp. 1000b

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Overdue bills -- Explanation of benefits -- Tolling of period to pay or reject claim -- Where insurer made timely request for additional documentation regarding claim in EOB and received no response from medical provider, time for payment of claim was tolled, and claims were not overdue and collectible at time of filing suit

13 Fla. L. Weekly Supp. 1019b

Insurance -- Personal injury protection -- Explanation of benefits -- Medical provider/assignee was entitled to EOB even where EOB had been furnished to insured and insurer had informed insured that it would not honor further bills for treatment rendered by provider in light of independent medical examination findings

13 Fla. L. Weekly Supp. 1019a

Insurance -- Personal injury protection -- Explanation of benefits -- Medical provider/assignee was entitled to EOB even where EOB had been furnished to insured, and insurer had informed insured that it would not honor further bills for treatment rendered by provider in light of independent medical examination findings

13 Fla. L. Weekly Supp. 1019a

Insurance -- Personal injury protection -- Explanation of benefits -- Medical provider/assignee was entitled to EOB even where EOB had been furnished to insured, and insurer had informed insured that it would not honor further bills for treatment rendered by provider in light of independent medical examination findings

13 Fla. L. Weekly Supp. 1102a

Insurance -- Personal injury protection -- Explanation of benefits -- Failure to provide -- Because statutory requirement that insurer furnish claimant with EOB became part of insurance contract, breach of contract action is proper where insurer has failed to provide EOB to medical provider/assignee -- No merit to argument that insurer was only obligated to furnish EOB to insured or that insurer was relieved of duty to provider by furnishing EOB to insured where statute clearly requires that EOB be furnished to entity making claim -- Attorney's fees and costs awarded to provider

13 Fla. L. Weekly Supp. 1098b

Insurance -- Personal injury protection -- Explanation of benefits -- Failure to provide -- Because statutory requirement that insurer furnish claimant with EOB became part of insurance contract, breach of contract action is proper where insurer has failed to provide EOB to medical provider/assignee -- No merit to argument that insurer was only obligated to furnish EOB to insured or that insurer was relieved of duty to provider by furnishing EOB to insured where statute clearly requires that EOB be furnished to entity making claim -- Attorney's fees and costs awarded to provider

13 Fla. L. Weekly Supp. 1096b

Insurance -- Personal injury protection -- Explanation of benefits -- Failure to provide -- Insurer must furnish medical provider/assignee with EOB specifying each reduced or denied charge and reasons for non-payment, and provider who brings action to enforce statutory right is entitled to attorney's fees and costs if it prevails -- No merit to argument that insurer was only obligated to furnish EOB to insured or that insurer was relieved of duty to provider by furnishing EOB to insured where statute clearly requires that EOB be furnished to entity making claim -- Attorney's fees and costs awarded to provider

13 Fla. L. Weekly Supp. 1100a

Insurance -- Personal injury protection -- Explanation of benefits -- Non-compliance letter quoting large portions of PIP statute does not satisfy requirement for EOB -- Because statutory requirement that insurer furnish claimant with EOB became part of insurance contract, breach of contract action is proper where insurer has failed to provide EOB to medical provider/assignee -- Attorney's fees and costs awarded to provider

13 Fla. L. Weekly Supp. 1093b

Insurance -- Personal injury protection -- Explanation of benefits -- Non-compliance letter does not satisfy requirement for EOB -- Because statutory requirement that insurer furnish claimant with EOB became part of insurance contract, finding of breach of contract action is proper where insurer has failed to provide EOB to medical provider/assignee -- Attorney's fees and costs awarded to provider

13 Fla. L. Weekly Supp. 1051a

Insurance -- Personal injury protection -- Where insurer requested additional documentation within thirty days of receipt of claim, but explanation of benefits only generally requested “additional documentation,” without more, doubt remained as to whether EOB was specific enough to put provider on notice as to what additional information was needed -- Trial court erred in granting insurer's motion for summary judgment on ground that provider had failed to respond to insurer's request for additional documentation

13 Fla. L. Weekly Supp. 37c

Insurance -- Personal injury protection -- Explanation of benefits -- Trial court correctly found that insurer breached insurance contract by failing to provide written explanation of benefits required by statute

13 Fla. L. Weekly Supp. 1009b

Insurance -- Personal injury protection -- Explanation of benefits -- Failure to provide -- Insurer breached contract by failing to provide EOB requested by insured in pre-suit demand letter -- No merit to argument that insurer was relieved of continuing obligation to provide EOB where benefits were exhausted prior to demand for EOB

13 Fla. L. Weekly Supp. 509a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary treatment -- Faxed affidavit in opposition to motion for summary judgment is not legally sufficient to demonstrate disputed issues of material fact where fax did not contain cover sheet, indicate number of pages transmitted or include sender's fax number -- Traffic crash report is not sufficient to create disputed issue of material fact where report would not be admissible in evidence -- Even if report were admissible, report that indicates on its face that officer did not witness crash would be hearsay -- Fraud -- Where insurer has insufficiently pled fraud, medical provider was not required to move to strike defense but could wait to test legal sufficiency at summary judgment -- Medical provider has failed to establish absence of disputed issue of material fact as to relatedness of treatment where it is undisputed that insured was not driver of either vehicle involved in accident, and accident report lists no passengers in either vehicle -- Physician's affidavit stating that insured was injured in automobile accident is hearsay and its content is insufficient to establish foundation that statement is admissible under medical diagnosis exception to hearsay rule -- Partial summary judgment granted in favor of provider on all issues except whether insured was involved in accident and defense of late notice

13 Fla. L. Weekly Supp. 1090a

Insurance -- Personal injury protection -- Coverage -- Defenses -- Accord and satisfaction -- Where insurer asserts defense of accord and satisfaction based on agreement between provider and insured, and in opposition to insurer's motion for summary judgment, medical provider asserts that agreement was not intended to waive provider's rights under assignment from insured to seek recovery from insurer of any PIP benefits not paid directly by insured, disputed issue of fact regarding intent of parties precludes entry of summary judgment

13 Fla. L. Weekly Supp. 830a

Insurance -- Personal injury protection -- Counterclaims -- Fraud, unjust enrichment, negligent supervision and deceptive and unfair trade practices cannot be raised as counterclaims in action for breach of contract pursuant to section 627.736

13 Fla. L. Weekly Supp. 175a

Insurance -- Personal injury protection -- Counterclaims -- Statutory cause of action for violating PIP statute -- Dismissal -- Motion to dismiss is granted as to count of insurer's counterclaim asserting statutory cause of action for violation of section 627.736, alleging that medical provider violated statute by submitting bills for treatment that was not medically necessary, bills which were not coded in accordance with CPT guidelines, and bills for treatment not lawfully rendered due to provider's failure to be licensed in massage therapy -- PIP statute and massage therapy licensing statute do not purport to establish civil liability but merely make provisions to secure the safety and welfare of public

13 Fla. L. Weekly Supp. 173b

Insurance -- Personal injury protection -- Counterclaims -- Statutory cause of action for violating PIP statute -- Dismissal -- Motion to dismiss is granted as to count of insurer's counterclaim asserting statutory cause of action for violation of section 627.736, alleging that medical provider violated statute by submitting bills for treatment that was not medically necessary, bills which were not coded in accordance with CPT guidelines, and bills for treatment not lawfully rendered due to provider's failure to be licensed in massage therapy -- PIP statute and massage therapy licensing statute do not purport to establish civil liability, but merely make provisions to secure the safety and welfare of public -- Motion to dismiss is denied as to fraud count where insurer's counterclaim alleges all essential elements of common law fraud

13 Fla. L. Weekly Supp. 499b

Insurance -- Personal injury protection -- Collateral estoppel -- Plaintiff's claim in case involving driver is barred by doctrine of collateral estoppel where parties and issues in PIP case brought by plaintiff as assignee of driver of vehicle involved in accident are identical to those in case brought by same plaintiff seeking benefits under same PIP policy as assignee of passenger in vehicle, trial court in case involving passenger held that plaintiff was not entitled to recover PIP benefits because plaintiff is not physician, hospital, clinic or other person or institution lawfully rendering treatment, and that judgment became binding on parties when it was not appealed

13 Fla. L. Weekly Supp. 1076a

Insurance -- Personal injury protection -- Coverage -- Claimant who failed to maintain insurance on own vehicle -- Inoperable vehicle -- Vehicle with dead battery and flat tire which claimant eventually repaired himself was not inoperable on date of loss -- Claimant's failure to operate vehicle does not relinquish statutory requirement to maintain security for vehicle

13 Fla. L. Weekly Supp. 107b

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary treatment -- Where medical provider's affidavit attests that services provided were reasonable, related and necessary as result of automobile accident, and insurer failed to produce competent evidence to rebut provider's evidence, summary judgment is granted on issue of reasonableness, relatedness and necessity of treatment -- Claimant residing with member of household who owns vehicle -- Where it is undisputed that at time of accident passenger resided alone and did not own vehicle, evidence that passenger resided with parents until few weeks prior to accident does not create disputed issue of material fact as to where passenger resided on date of accident, and insurer must provide coverage for accident -- Summary judgment -- Premature -- Outstanding interrogatories are no impediment to summary judgment where interrogatories are not related to matters at issue in summary judgment motion, and insurer has taken no action to compel compliance with rules of discovery relating to interrogatories

13 Fla. L. Weekly Supp. 907b

Insurance -- Personal injury protection -- Coverage -- Person not occupant of vehicle owned or operated by insured -- Where medical provider incorrectly represented to insurer that person who was not occupant of vehicle owned or operated by insured was covered under insured's policy, and insurer made payments to provider, insurer is entitled to recover payments made -- Prejudgment interest, attorney's fees and costs awarded

13 Fla. L. Weekly Supp. 1085b

Insurance -- Personal injury protection -- Declaratory judgment -- Confession of judgment -- Where insurer that had refused coverage on grounds that newly-purchased truck driven by insured at time of accident was not insured vehicle under policy extended coverage and paid benefits after declaratory action seeking declaration of insured's right to coverage was filed, insurer confessed judgment and abandoned all defenses by changing position, and insured is entitled to attorney's fees and costs

13 Fla. L. Weekly Supp. 90a

Insurance -- Personal injury protection -- Claims -- Countersignature -- Failure of insured to countersignature HCFA forms did not constitute reasonable proof that insurer was not responsible for paying bills submitted by medical provider -- Coverage -- Medical expenses -- Reasonable, related and necessary treatment -- Insurer could not rely on peer review report to deny or reduce charges where report was not obtained prior to denying or reducing bills, but when bills were already 5 to 11 months overdue -- Argument that insurer did not withdraw payment of bills because it made some reduced payments is without merit since withholding payment of benefits is indistinguishable from withdrawing payments -- Further, insurer could not rely on peer review report to create issue of material fact where report is inadmissible hearsay and lacks trustworthiness -- Deposition testimony of claims adjuster cannot create issue of material fact as to whether medical treatment was reasonable, related and necessary -- Summary judgment granted in favor of provider

13 Fla. L. Weekly Supp. 1062b

Insurance -- Personal injury protection -- Where de facto confession of judgment occurred when insurer paid claim in full after suit was filed but before insurer was served in case, no justiciable issue of law or fact on merits of case existed for determination when cross-motions for summary judgment regarding demand letter issue were filed and summary judgment was entered in favor of medical provider -- Remand with instructions to dismiss and reserve jurisdiction to address attorney's fees and cost issues

13 Fla. L. Weekly Supp. 645a

Insurance -- Personal injury protection -- Pleadings -- Answer -- Amendment -- Timeliness -- Motion to amend answer and affirmative defenses is denied -- PIP suit had been pending for more than recommended resolution standard of 18 months at time insurer served motion to amend, case involves relatively small amount in dispute, medical provider already has been required to come to court several times on pretrial matters at behest of insurer and has incurred expenses of preparing for and attending mediation and arbitration, and insurer is unable to advise court as to legitimate reasons for significant delay in case

13 Fla. L. Weekly Supp. 162b

Insurance -- Personal injury protection -- Complaint -- Amendment -- Motion to amend complaint one year after settlement of underlying claim to name as plaintiff medical provider to whom insured assigned bad faith claim after settlement is denied where insured has provided no justification for delay in seeking amendment

13 Fla. L. Weekly Supp. 1016a

Insurance -- Personal injury protection -- Standing -- Issues of lack of standing and defective assignment not raised in pleadings are not impediment to summary judgment -- Notice of loss -- HCFA form -- Signature of medical provider -- Where provider provided all information on HCFA form necessary to process claim, form is substantially complete and substantially accurate as to all material elements despite typewritten signature of provider -- No merit to argument that earlier version of statute, which required complete and accurate completion of all provisions of form, not merely material provisions, applies because policy was issued prior to statutory amendment where legislature made it clear that amendment applies to treatment and services occurring on or after effective date -- Summary judgment -- Where adjuster stated in deposition that bills were not paid because they were applied to deductible, and in affidavits opposing motion for summary judgment insurer averred that treatment was not reasonable, related or necessary, insurer did not impermissibly alter position since positions are not inconsistent -- Affidavit of adjuster, which attempted to authenticate independent medical examination report that was hearsay, is disregarded as hearsay -- Where IME physician refers to and attaches hearsay IME report to his affidavit, but also independently sets forth findings as result of examination and opinion that further treatment would not be reasonable, related or necessary, affidavit is not hearsay -- As there remains disputed issue of material fact as to reasonableness, relatedness and necessity of treatment after IME date, provider's motion for summary judgment is granted in part on all issues except that treatment

13 Fla. L. Weekly Supp. 184a

Insurance -- Personal injury protection -- Claim form -- Signature of medical provider -- Where provider gave oral authorization for billing company to affix signature to claim form, insurer's defense of lack of notice due to provider's failure to personally sign form fails

13 Fla. L. Weekly Supp. 190a

Insurance -- Personal injury protection -- Notice of loss -- Claim form -- Insurer's motion for summary judgment on ground that HCFA-1500 was not proper notice of loss, as plaintiff did not include signature on Box 31, but instead typed “Signature in File,” denied

13 Fla. L. Weekly Supp. 1092a

Insurance -- Personal injury protection -- Notice of loss -- HCFA form -- Where medical provider failed to include professional license number on HCFA forms, insurer was not provided with notice of loss

13 Fla. L. Weekly Supp. 369a

Insurance -- Personal injury protection -- Demand letter -- Where demand letter identifies provider of services as physician, but services were actually rendered by professional association in which physician is sole shareholder, provider failed to satisfy condition precedent to filing suit -- Claim form -- Where demand letter and assignment of benefits identified physician as provider of services, HCFA form which identified professional association as service provider and reflected tax identification number of association was not properly completed

13 Fla. L. Weekly Supp. 608b

Insurance -- Personal injury protection -- Demand letter -- Sufficiency -- Demand letter with attached patient ledger which contained all dates of service but was not marked in any way to indicate which charges medical provider was disputing as having been improperly reduced or denied was not sufficiently specific to satisfy statutory demand letter requirement -- No merit to claim that demand letter was deficient due to misspelling of insured's name where attached assignment of benefits containing correct spelling dispelled any ambiguity as to name of insured -- Claim forms -- Defense that HCFA forms lacking insured's signature and containing wrong accident date were false, misleading, incomplete or patently deceptive was waived by insurer's payment of prior HCFA submissions without raising objection

13 Fla. L. Weekly Supp. 637a

Insurance -- Personal injury protection -- Claim form -- HCFA -- Defects -- Taxpayer identification number -- Waiver -- Mere payment of claim does not amount to waiver of any defects in claim -- Where insurer filed affidavits averring that it was not aware of incorrect taxpayer identification number at time it partially paid claim and would not have paid claim if it had known, and medical provider filed no opposing affidavits or sworn evidence, insurer has established for summary judgment purposes that it did not waive defect in claim -- Due to defect in HCFA, insurer was not provided with notice of covered loss and summary judgment is granted in favor of insurer

13 Fla. L. Weekly Supp. 610b

Insurance -- Personal injury protection -- Claims -- HCFA form -- Defects -- Waiver -- Medical provider has failed to prove that insurer waived defect in HCFA form which did not have professional license number in Box 31 by making partial payment of claim -- Waiver cannot be inferred from deposition of litigation adjuster which did not indicate that insurer knew of defect in form at time it made partial payment, and statute mandating inclusion of license number provides that deficiency may be asserted even after payment -- Insurer has not been provided with notice of covered loss

13 Fla. L. Weekly Supp. 375b

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Re-read and interpretation of diagnostic studies -- Unbundling from office visit -- Where re-reading and interpreting diagnostic studies is not included in office visit CPT code and not included in levels of evaluation and management services, medical provider did not unbundle CPT codes for re-reading and interpreting MRI and x-rays from office visit code -- CPT guidelines pertaining to re-reading and interpreting diagnostic studies do not restrict medical provider from billing for re-reading and interpreting studies ordered by another provider

13 Fla. L. Weekly Supp. 179a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- CPT coding -- Insurer improperly denied payment for re-reading and interpretation of previously taken lumbar MRI and cervical and lumbar x-rays based on insurer's belief that those charges were built into provider's initial office visit, CPT code 99245, billed on same date -- Applicable American Medical Association Current Procedural Terminology did not say that reading and interpretation of MRI and x-ray films was included within CPT Code 99245 -- Actual interpretation of diagnostic tests/studies is not included in levels of evaluation/management services -- There is no requirement that physician doing re-read must have ordered diagnostic studies during a patient encounter -- Provider's motion for summary judgment granted 

13 Fla. L. Weekly Supp. 1233a

Insurance -- Personal injury protection -- Examination under oath -- Failure to attend -- Insured did not unreasonably refuse to attend EUO where insured's attorney requested that insurer reschedule EUO that had been unilaterally scheduled for minor at time parent was unavailable to attend, and insurer never responded to attorney's request -- Claim form -- Acknowledgment and disclosure form -- Where medical provider's self-generated acknowledgment and disclosure form includes all language specified by section 627.736(5)(e) and identifies specific services rendered, form substantially complies with statute despite failure to use specific form generated by state

13 Fla. L. Weekly Supp. 366a

Insurance -- Personal injury protection -- Misrepresentation -- Insurer met its burden of proving non-existence of genuine issue of fact as to medical provider's misrepresentation of services by introducing insured's examination under oath in which insured denied having done or been taught exercises, affidavits of litigation specialist, and HCFA forms establishing that services were not rendered -- Provider did not file anything in opposition to raise genuine issue of material fact -- Misrepresentation voids entire claim -- Further, insurer is not responsible for payment of bills that were untimely submitted -- Insurer's motion for final summary judgment grantedREVERSED in part at 14 Fla. L. Weekly Supp. 1089a

13 Fla. L. Weekly Supp. 796c

Insurance -- Personal injury protection -- Misrepresentations -- Claims investigation -- Where PIP policy excludes coverage “if you or insured person has concealed or misrepresented any material fact or circumstance or engaged in fraudulent conduct in connection with presentation or settlement of claim,” statute in effect at time of loss gave insurers discretion to exclude coverage for misrepresentation or fraud, and insured made misrepresentations during investigation of claim of person injured while repairing insured's vehicle in insured's garage, insurer was not obligated to cover claim despite fact that injured claimant did not make misrepresentations and misrepresentations occurred during investigation of claim

13 Fla. L. Weekly Supp. 341a

Insurance -- Personal injury protection -- Exhaustion of policy limits -- Where PIP benefits were used to pay both lost wages and medical expenses and insured did not request that remainder of PIP benefits be reserved for paying lost wages until shortly before PIP policy limits were exhausted, and policy contains endorsement that expressly provides that medical payment coverage is excess to PIP coverage and, aside from co-pay not paid by PIP, not available until all medical expense benefits under PIP coverage have been exhausted, insurer had no duty to retroactively reallocate medical expenses previously paid by PIP to medical payment coverage after all PIP coverage had been exhausted

13 Fla. L. Weekly Supp. 124a

Insurance -- Personal injury protection -- Claims -- Timeliness -- Where medical provider never submitted MRI bill to insurer, and bill was submitted by insured's attorney five months after treatment was rendered, trial court correctly concluded that medical provider lost right to be paid for MRI -- Med pay -- Error to enter summary final judgment in favor of insurer where, in absence of statutory or contractual restriction, insured may be entitled to recover from med pay coverage the 20% of MRI bill that would have remained unpaid by PIP had claim been properly submitted

13 Fla. L. Weekly Supp. 10a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 13 Fla. L. Weekly Supp. 124a

Insurance -- Personal injury protection -- Claims -- Timeliness -- Where medical provider never submitted MRI bill to insurer, and bill was submitted by insured's attorney five months after treatment was rendered, trial court correctly concluded that medical provider lost right to be paid for MRI -- Med pay -- Error to enter summary final judgment in favor of insurer where, in absence of statutory or contractual restriction, insured may be entitled to recover from med pay coverage the 20% of MRI bill that would have remained unpaid by PIP had claim been properly submitted

13 Fla. L. Weekly Supp. 176a

Insurance -- Personal injury protection -- Coverage -- Medical provider -- Unregistered clinic -- Where medical provider was clinic required to register under section 456.0375 but was not registered, insurer is entitled to reimbursement from provider for all expenses paid by each insured's PIP and med pay coverage for treatment rendered while provider was not registered

13 Fla. L. Weekly Supp. 151a

Insurance -- Personal injury protection -- Coverage -- Medical provider -- Unregistered clinic -- Where medical provider was clinic required to register under section 456.0375 but was not registered, insurer is entitled to reimbursement from provider for all expenses paid by each insured's PIP and med pay coverage for treatment rendered while provider was not registered

13 Fla. L. Weekly Supp. 561a

Insurance -- Personal injury protection -- Service of process -- Where statute provides that service upon chief financial officer shall be sole method of service of process upon insurer, service on insurer's registered agent was not binding or valid, and trial court never had personal jurisdiction over insurer

13 Fla. L. Weekly Supp. 33a

Insurance -- Commercial property -- Default -- Where insurer filed motion to dismiss and/or compel appraisal, trial court denied motion to dismiss and granted insured's motion to enforce settlement agreement, and thirteen days later trial court entered final judgment for insured without insurer having filed an answer or affirmative defenses, lack of responsive pleading by insurer makes final judgment a default final judgment, and trial court erred in entering judgment without providing insurer with notice of any application for default and opportunity to respond -- Remand with instructions to allow insurer to file answer and affirmative defenses

13 Fla. L. Weekly Supp. 833a

Insurance -- Personal injury protection -- Default judgment -- Post judgment interest

13 Fla. L. Weekly Supp. 840a

Insurance -- Personal injury protection -- Medical payments -- Coverage -- Exhaustion of policy limits -- Where medical provider submitted bills to insurer after exhaustion of PIP benefits but while medpay benefits still remained, claim is for medpay benefits only and is governed by contract principles rather than No-Fault law -- Priority of payments -- Assignment given to provider by insured conferred on provider right to priority of payment of bills from medpay benefits over later-submitted claims from other providers or insured -- While it is prerogative of insurer to pay, reduce or deny claims without reserving disputed benefits, insurer reduces or denies claims at own peril, and if it is subsequently shown that claim should have been paid, insurer will be required to pay claim despite exhaustion of medpay benefits -- Further if provider establishes that claims should have been paid, insurer will be obligated to pay prejudgment interest

13 Fla. L. Weekly Supp. 200b

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary services -- Summary judgment -- Opposing affidavit -- Medical provider's motion to strike physician's affidavit filed in opposition to motion for partial summary judgment, based on argument that it is not competent evidence because it is only acknowledged and not made under oath, is denied -- Where affidavit of treating physician establishes that amounts charged are usual, customary and reasonable and that services rendered were reasonable, necessary and related to accident and opposing affidavit does not address whether services rendered were reasonable, related and necessary but disputes the reasonableness of only some of charges claimed, provider is entitled to partial summary judgment regarding bills for which opposing affidavit does not create question of fact -- Where PIP benefits have been exhausted since filing of suit, provider is only entitled to recover interest on past due amounts, from date insurer received bills to date of exhaustion, and statutory penalties

13 Fla. L. Weekly Supp. 156a

Insurance -- Personal injury protection -- Interest -- Insurer that paid medical bills three months after receipt owes statutory interest to medical provider

13 Fla. L. Weekly Supp. 350a

Insurance -- Personal injury protection -- Indemnity -- Insurer who was sued by claimant for payment of medical bills does not have cause of action for common law indemnity against medical provider -- Third-party complaint dismissed

13 Fla. L. Weekly Supp. 888a

Insurance -- Personal injury protection -- Indemnification -- Motion to dismiss insurer's action against medical provider as third party defendant under theory of common law indemnity is granted -- Party seeking indemnification must be without fault, and its liability must be vicarious and solely for the wrong of another; indemnification can only come from party who was at fault; and Florida courts require special relationship between parties in order for common law indemnification to exist -- Insurer has failed to demonstrate that provider's charges were unlawful due to failure to appoint medical director where, although person appointed as director testified that he was unaware of appointment, insurer did not allege that director failed to perform statutory duties -- Further, insurer failed to prove wrongdoing on part of provider where there was no allegation that services were not reasonable and necessary -- Insurer could not satisfy requirement that its liability be vicarious and solely from wrong of another where insurer's liability arose from insurance policy insurer sold to plaintiff/insured -- Special relationship -- Insurer cannot satisfy requirement of showing special relationship between parties based solely on submission of bills to insurer and receipt of payments pursuant to now-revoked assignment -- Further, decision to dismiss satisfies legislative intent of clinic responsibilities statute where there is no evidence of injury to consumers or that provider was in violation of basic care standards or other applicable provisions of statute

13 Fla. L. Weekly Supp. 186a

Insurance -- Personal injury protection -- Expert witnesses -- Striking -- Expert is stricken as trial witness where insurer was ordered to produce all underlying data for CPT codes at issue from HMO database relied upon by expert witness to opine on reasonableness of charges as well as all Medicare documents used by expert; insurer did not produce any Medicare or HMO data, but produced only summary of data received by database proprietor without data from which summary was compiled; and provider will be prejudiced because there will be no way to effectively cross-examine expert on summary or confirm summary's accuracy

13 Fla. L. Weekly Supp. 889a

Insurance -- Automobile -- Coverage -- Rental car used in business -- Where policy unambiguously excluded coverage of any vehicle rented and used in insured's employment or business, rental vehicle used by insured in door-to-door sales and delivery of educational books was excluded -- Further, loss itself was excluded where policy provided that, unless rated for business use, insurance would not apply to claims arising from accidents occurring while insured vehicle was used in course of business, and policy was not rated for business use

13 Fla. L. Weekly Supp. 43a

Insurance -- Liability -- Other insurance -- Excess insurance -- Where subcontractor orally agreed to provide $1,000,000 of general liability coverage to general contractor and contractor was included as an additional insured on subcontractor's general liability policy, contractor was also an additional insured under terms of subcontractor's excess or umbrella policy -- Because umbrella policy specifically provided that insurance would not afford an additional insured limits of insurance in excess of the minimum limit of insurance the insured subcontractor agreed to provide, and contractor received $1,000,000 from general liability insurer, contractor was not entitled to any additional coverage under umbrella policy -- Summary judgment granted in favor of umbrella policy insurer

13 Fla. L. Weekly Supp. 394a

Evidence -- Judicial notice -- Motion for Judicial Notice of Medicare Part B Fee Schedule and Florida Workers' Compensation Fee Schedule is granted

13 Fla. L. Weekly Supp. 162c

Insurance -- Personal injury protection -- Independent medical examination -- Insurer waived right to suspend PIP benefits as of date of first missed IME by rescheduling IME for later date -- Insurer is responsible for all bills received prior to second missed IME -- Coverage -- Medical expenses -- Reasonable, related and necessary treatment -- Summary judgment is granted in favor of medical provider on issue of reasonable, related and necessary expenses and usual and customary charges for all bills in dispute where provider provided affidavit of chiropractor opining that services were reasonable, related and necessary and charges were usual and customary, and insurer did not file any opposing affidavits -- Affirmative defenses of notice and material misrepresentation that were not pled by insurer are waived -- Examination under oath filed on day of summary judgment hearing is untimely -- EUO that was not taken under oath at trial, hearing or other legal proceeding and was not subject to cross-examination is inadmissible hearsay -- Even if not untimely or inadmissible, EUO does not create genuine issue of material fact on issues before court -- Reasonableness of failure to attend second IME is only remaining disputed issue

13 Fla. L. Weekly Supp. 616a

Insurance -- Personal injury protection -- Coverage -- Involvement in accident -- Evidence -- Although police report is self-authenticating, list of names of persons involved in accident contained in report is inadmissible hearsay and cannot be considered by court in determining whether insured was passenger in vehicle involved in accident -- There is no exception under hearsay rule that would permit proponent to lay predicate for admissibility of crash report where report does not meet criteria for admissibility as business record or public record -- Moreover, crash report is incompetent because it invites court to infer that insured was not involved in accident by inferring without direct evidence that officer witnessed accident and identified all occupants of vehicle -- Accident report privilege applies to reports by law enforcement officers as well as reports by persons involved in accidents -- Summary judgment is granted in favor of medical provider as to reasonableness, relatedness and necessity of treatment

13 Fla. L. Weekly Supp. 563b

Insurance -- Liability -- Joinder of insurer in action against insured -- No error in denial of motion to add condominium unit owner's liability insurer as party defendant prior to entering final judgment on complaint for injunction allowing condominium association access to unit to determine and repair water leak -- Policy covered damages for bodily injury or property damage caused by occurrence to which policy coverage applied and defined “occurrence” as an accident which resulted in bodily injury or property damage -- Complaint for injunction which sought only access to condominium unit to determine and make necessary repairs caused by water leak did not state claim for property damage -- Insurer was not obligated to defend owner in action that was not covered under policy -- Insured went beyond scope of complaint in stipulation for settlement by agreeing to accept full liability for property damage and to compensate association for fees incurred in injunction action -- Language of statute authorizing joinder of liability insurer is discretionary not mandatory

13 Fla. L. Weekly Supp. 636a

Insurance -- Personal injury protection -- Discovery -- Documents -- Privilege -- Work product -- Amended privilege log that simply refers to PIP routing sheet and 17 entries of adjuster notes failed to meet specificity and detail requirements of rule 1.280(b)(5) -- In camera inspection of materials claimed to be privileged leads to conclusion that insurer could have provided more specific log regarding adjuster's notes but that no more specificity is required as to routing sheet -- Court finds that all but two of adjuster's notes were prepared in ordinary course of business and not in anticipation of litigation, all but two notes are excluded from work product privilege and must be produced to medical provider

13 Fla. L. Weekly Supp. 571a

Insurance -- Personal injury protection -- Discovery -- Appeals -- Certiorari -- Pre-trial discovery order compelling better response to medical provider's request to produce claims handling and training materials provided to PIP adjusters is reviewable by petition for writ of certiorari where order departed from essential requirements of law and would cause material injury to insurer throughout proceedings, leaving no adequate remedy on appeal -- Privilege -- Trade secret -- Trial court departed from essential requirements of law when it compelled production of materials without addressing asserted trade secret privilege and conducting in camera review of materials -- Relevance -- Where underlying action is only PIP claim without claim for bad faith action, requested claim files, manuals, guidelines and documents concerning claims handling procedures are irrelevant and/or privileged work product -- Waiver -- Insurer did not waive any privileges where insurer raised objections based on relevance and work product prior to motion to compel hearing and asserted sufficiently specific objection based on trade secret privilege in response to provider's third request to produce

13 Fla. L. Weekly Supp. 370a

Insurance -- Personal injury protection -- Discovery -- Documents relative to chiropractor who performed independent medical examination of insured and information relative to the relationship between the insurer and the third-party vendor which directly retained this chiropractor to perform IME are clearly discoverable where it is clear that insurer justified reduction of benefits in this case based on IME report -- Although information sought may not be in direct possession of insurer, insurer has burden of obtaining the information from the expert it relied upon in making coverage decisions

13 Fla. L. Weekly Supp. 370a

Insurance -- Personal injury protection -- Discovery -- Documents relative to chiropractor who performed independent medical examination of insured and information relative to the relationship between the insurer and the third-party vendor which directly retained this chiropractor to perform IME are clearly discoverable where it is clear that insurer justified reduction of benefits in this case based on IME report -- Although information sought may not be in direct possession of insurer, insurer has burden of obtaining the information from the expert it relied upon in making coverage decisions

13 Fla. L. Weekly Supp. 472b

Insurance -- Personal injury protection -- Uninsured motorist -- Discovery -- Pure bill -- Where insurer has demonstrated that there are inconsistencies in medical findings made by medical provider relative to insureds who were allegedly involved in accident with phantom vehicle and in insureds' accounts of how accident occurred, insurer has shown good cause to support request for pure bill of discovery requiring disclosure of facts and evidence regarding whether accident actually occurred, whether provider actually performed services for which it billed and received payment from insurer, identity of medical personnel performing services, whether services were up-coded, whether documented injuries actually exist, and whether services were reasonable, necessary and related to accident

13 Fla. L. Weekly Supp. 397b

Insurance -- Personal injury protection -- Discovery -- Interrogatories -- Insurer's objections to interrogatories seeking procedure reports reflecting charges received by insurer for CPT codes at issue for one-year period within certain zip codes are overruled where information sought is probative and relevant or at least crafted to lead to discovery of admissible evidence, untimely objections are deemed waived, and insurer has failed to provide basis for assertions of work product and trade secret privileges or claims that information is proprietary or violative of third party rights

13 Fla. L. Weekly Supp. 351a

Insurance -- Personal injury protection -- Discovery -- Documents -- Insurer is required to produce procedure reports for charges, or underlying data for procedure report, and charge distribution graphs and fee verification report for CPT code at issue

13 Fla. L. Weekly Supp. 173a

Insurance -- Personal injury protection -- Discovery -- PIP log -- Where trial court has previously ruled that there is no recognized cause of action for failure to produce PIP log or duty imposed on insurer to produce log in response to pre-suit demand, motion for protective order is granted to extent that insurer shall not produce log until medical provider ceases to pursue cause of action based on failure to produce log -- When provider ceases to pursue such cause of action, insurer shall produce log, and production will not be deemed or intended to be confession of judgment

13 Fla. L. Weekly Supp. 1215b

Insurance -- Personal injury protection -- Discovery -- Where insurer wants to dispute reasonableness of charges by relying on computer program and computer generated sums, medical provider is entitled to discovery of every explanation of benefits and explanation of reimbursement generated by insurer for CPT codes at issue in geozip for period three months prior to and three months after statement of particulars -- Discovery request is burdensome, but not unduly burdensome since all information is or should be computerized and insurer has ability to have program designed to make accessing information less burdensome

13 Fla. L. Weekly Supp. 1088b

Insurance -- Personal injury protection -- Discovery -- Explanations of benefit and explanations of reimbursement generated by defendant for particular zipcode for three-month period prior to and subsequent to each of respective dates of service and CPT codes at issue

13 Fla. L. Weekly Supp. 1088c

Insurance -- Personal injury protection -- Discovery -- Computer database used to reduce bills -- If insurer intends to rely on computer database in defending reduction of bills claimed to exceed usual, customary and reasonable amounts, insurer must produce materials regarding use, composition, operation, and maintenance of database

13 Fla. L. Weekly Supp. 1222a

Insurance -- Personal injury protection -- Discovery -- Physician who conducted compulsory medical examination relied upon to deny PIP benefits is ordered to comply with subpoena duces tecum to produce copy of report and compensation received in relation to insured's claim, copies of all medical records review reports prepared during past three years, number of CMEs performed in past three years, cases in which physician has testified at trial or through deposition in past three years and approximation of percentage of income earned performing CMEs -- Objection to production of records of compensation received for preparing medical records reviews in past three years is sustained at this time, but insured may revisit request after obtaining discovery ordered if there is additional need for documentation

13 Fla. L. Weekly Supp. 1222a

Insurance -- Personal injury protection -- Discovery -- Physician who conducted compulsory medical examination relied upon to deny PIP benefits is ordered to comply with subpoena duces tecum to produce copy of report and compensation received in relation to insured's claim, copies of all medical records review reports prepared during past three years, number of CMEs performed in past three years, cases in which physician has testified at trial or through deposition in past three years and approximation of percentage of income earned performing CMEs -- Objection to production of records of compensation received for preparing medical records reviews in past three years is sustained at this time, but insured may revisit request after obtaining discovery ordered if there is additional need for documentation

13 Fla. L. Weekly Supp. 1189a

Civil procedure -- Insurance -- Discovery -- Medical provider is ordered to produce entire patient files -- Provider and insurer shall prepare joint stipulation regarding production of non-patient specific documents -- If provider complies with agreement to reimburse to insurer all monies paid relative to these patients, court will consider whether pending or further discovery is warranted

13 Fla. L. Weekly Supp. 343a

Insurance -- Personal injury protection -- Discovery -- Interrogatories -- Medical provider is compelled to provide better answers to interrogatories requesting names of health insurers with which provider admits it has contracts to accept agreed-upon rates and amounts accepted from each such insurer for CPT codes at issue

13 Fla. L. Weekly Supp. 480a

Insurance -- Personal injury protection -- Discovery -- Pre-suit discovery -- Pursuant to section 627.736(6)(c), insurer is entitled to pre-suit discovery of documents and information regarding medical provider's bills for treatment, including resumes and licenses of all persons who rendered treatment to claimants, claimants' files, correspondence with claimants, documentation evidencing amount provider accepted for CPT codes at issue from other insurers, and other information relative to establishing usual and customary charges for those CPT codes

13 Fla. L. Weekly Supp. 478a

Insurance -- Personal injury protection -- Discovery -- Pre-suit discovery -- Pursuant to section 627.736(6)(c), insurer is entitled to pre-suit discovery of documents and information regarding medical provider's bills for treatment, including resumes and licenses of all persons who rendered treatment to claimants, claimants' files, correspondence with claimants, documentation evidencing amount provider accepted for CPT codes at issue from other insurers, and other information relative to establishing usual and customary charges for those CPT codes

13 Fla. L. Weekly Supp. 471a

Insurance -- Personal injury protection -- Discovery -- Pre-suit discovery -- Pursuant to section 627.736(6)(c), insurer is entitled to pre-suit discovery of documents and information regarding medical provider's bills for treatment, including resumes of all persons who rendered treatment to insured, records and documents pertaining to or signed by insured, correspondence with insured, documentation evidencing amount provider accepted for CPT codes at issue from other insurers, and other information relative to establishing usual and customary charges for those CPT codes

13 Fla. L. Weekly Supp. 1236a

Insurance -- Discovery -- Usual, customary and reasonable rates for particular CPT codes -- Procedure reports showing charges for particular CPT codes -- Listings or summaries showing charges received for year for particular CPT codes

13 Fla. L. Weekly Supp. 1014b

Insurance -- Personal injury protection -- Discovery -- Documents -- Privilege -- Work product -- Documents not prepared in contemplation of litigation are not privileged work product -- Privilege log -- Defects -- Where insurer's counsel could not articulate for court what specific items claimed on privilege log are, insurer must amend log to describe nature of items -- Interrogatories -- Insurer must provide curriculum vitae of expert witness in response to inquiry regarding witness's qualifications -- Verification -- Answers to interrogatories are not verified where jurat states answers are true and correct to best of knowledge

13 Fla. L. Weekly Supp. 314a

Insurance -- Personal injury protection -- Expert witnesses -- Exclusion -- Abuse of discretion to exclude testimony of insurer's expert witness as discovery sanction where expert was included in insurer's timely filed amended pre-trial catalogue

13 Fla. L. Weekly Supp. 829b

Insurance -- Personal injury protection -- Discovery -- Insurer is ordered to produce independent medical examination reports and peer review reports prepared by insurer's expert at behest of insurer and drafts to claims management company reflecting payment for procurement of IME and peer review reports

13 Fla. L. Weekly Supp. 794a

Insurance -- Personal injury protection -- Discovery -- Failure to comply -- Pretrial disclosure of witnesses -- Abuse of discretion to exclude testimony of litigation adjuster not listed on insurer's pre-trial catalog where there would be no prejudice to medical provider in allowing use of adjuster whom provider had deposed -- Denial of insurer's due process right to call witnesses was harmful

13 Fla. L. Weekly Supp. 736b

Insurance -- Personal injury protection -- Discovery -- Failure to comply -- Where insurer did not timely raise any objections to interrogatories or requests for production, objections are deemed waived and insurer is ordered to provide complete verified answers to interrogatories and produce documents responsive to request for production -- Documents claimed to be privileged may be filed under seal, and court will conduct hearing to determine if privilege objection should not also be waived

13 Fla. L. Weekly Supp. 545a

Insurance -- Personal injury protection -- Discovery -- Failure to comply -- Sanctions -- Prejudice -- Exclusion of letter from insured's attorney requesting that insurer reschedule examination under oath and testimony of insured and insured's attorney regarding letter was too drastic a sanction for medical provider's failure to list letter as exhibit and attorney as witness until after court-ordered discovery deadline where there was no attempt by insurer to cure perceived prejudice; insurer, who was aware of attorney and letter for two and half years before trial, had independent knowledge of existence of witness; provider's noncompliance with discovery deadline was not intentional or in bad faith since it was not aware of letter until after expiration of deadline; and allowing attorney and insured to testify briefly as to EUO rescheduling would not have disrupted orderly and efficient flow of trial -- New trial required -- Jury instructions -- Abuse of discretion to fail to give requested instruction asking jury to determine whether insured breached insurance contract by unreasonably refusing to attend EUO where requested instruction was accurate statement of law, instruction actually given erroneously created strict liability standard for EUO attendance, facts in case supported requested instruction, and requested instruction was necessary for jury to properly resolve issues in case

13 Fla. L. Weekly Supp. 823a

Insurance -- Personal injury protection -- Discovery -- Failure to comply -- Dismissal

13 Fla. L. Weekly Supp. 197b

Insurance -- Motion to compel discovery and to dismiss without prejudice granted

13 Fla. L. Weekly Supp. 984a

Insurance -- Personal injury protection -- Contempt -- Where it appears from plaintiff's willful, wanton and contumacious disregard of discovery order and order to show cause, plaintiff's failure to attend compulsory medical examination and deposition, and evidence suggesting that plaintiff has left his address and failed to renew his Florida driver's license that plaintiff no longer desires to continue legal action, case is dismissed without prejudice

13 Fla. L. Weekly Supp. 1073a

Insurance -- Personal injury protection -- Discovery -- Failure to comply -- Sanctions -- Default -- Where insurer failed to comply with court orders requiring submission of interrogatory responses under oath and production of corporate representative for deposition, there is pattern of insurer requiring court to enter orders compelling discovery with sanctions, insurer was personally involved in acts of disobedience, and insurer's justification for disobedience is insufficient, insurer's pleadings are stricken and default is entered

13 Fla. L. Weekly Supp. 319c

Insurance -- Personal injury protection -- Discovery

13 Fla. L. Weekly Supp. 906c

Insurance -- Personal injury protection -- Discovery -- Documents -- Peer review reports and payments -- Insurer's expert witness is required to produce all medical records review reports prepared in last three years and records of payments for reports

13 Fla. L. Weekly Supp. 906b

Insurance -- Personal injury protection -- Discovery -- Documents -- Peer review reports and payments -- Insurer's expert witness is required to produce all medical records review reports prepared in last three years and records of payments for reports

13 Fla. L. Weekly Supp. 512a

Insurance -- Personal injury protection -- Discovery -- Expert witness -- Physician who performed independent medical examination of insured is ordered to comply with subpoena duces tecum to produce to medical provider documents and information regarding other IMEs and peer reviews rendered in past three years and compensation for IMEs and reports

13 Fla. L. Weekly Supp. 916a

Insurance -- Personal injury protection -- Discovery -- Documents -- Where insurer relied on analysis performed by third parties to determine reasonable charges, insurer must produce data underlying analysis even though insurer does not have possession, custody or control of information

13 Fla. L. Weekly Supp. 1210a

Insurance -- Personal injury protection -- Discovery -- Software used to reduce medical bills -- Where insurer asserts defense that bills exceeded reasonable and customary charges, and it is undisputed that results provided by software owned by third party were sole basis upon which claims were denied or reduced, insurer must produce computer programs and data used to assess bills or independently prove defense without reference to computer program or results -- Fact that insurer employed third party or used third party's computer program to deny or reduce benefits does not affect medical provider's right to discovery -- Privilege -- Trade secrets -- Mere assertion of trade secret privilege does not foreclose discovery because court can limit disclosure to avoid irreparable harm -- Further, privilege claim is inapplicable in light of insurer's intention to rely on computer program at trial -- Insurer that does not own program has no standing to assert trade secret privilege -- Provider is not required to seek third party discovery from owner of program where insurer is already obligated to produce program upon which it relied to make challenged reductions and denials

13 Fla. L. Weekly Supp. 874a

Insurance -- Discovery -- Computer database utilized by insurer to determine “usual and customary charge” for particular medical service in medical provider's geographical location

13 Fla. L. Weekly Supp. 571a

Insurance -- Personal injury protection -- Discovery -- Appeals -- Certiorari -- Pre-trial discovery order compelling better response to medical provider's request to produce claims handling and training materials provided to PIP adjusters is reviewable by petition for writ of certiorari where order departed from essential requirements of law and would cause material injury to insurer throughout proceedings, leaving no adequate remedy on appeal -- Privilege -- Trade secret -- Trial court departed from essential requirements of law when it compelled production of materials without addressing asserted trade secret privilege and conducting in camera review of materials -- Relevance -- Where underlying action is only PIP claim without claim for bad faith action, requested claim files, manuals, guidelines and documents concerning claims handling procedures are irrelevant and/or privileged work product -- Waiver -- Insurer did not waive any privileges where insurer raised objections based on relevance and work product prior to motion to compel hearing and asserted sufficiently specific objection based on trade secret privilege in response to provider's third request to produce

13 Fla. L. Weekly Supp. 624b

Insurance -- Personal injury protection -- Discovery -- Interrogatories -- Motion to compel discovery is granted as to interrogatories regarding checks issued, computer program used to review claim, training regarding use of program, personnel knowledgeable about technical aspects of program, description of database used by program, and reports generated by program -- Insurer does not have standing to assert trade secret privilege on behalf of non-party vendor of computer program

13 Fla. L. Weekly Supp. 556b

Insurance -- Personal injury protection -- Discovery -- Claims log -- Work product and attorney-client privilege -- Waiver -- Where medical provider made generic request for production of everything contained within insurer's PIP file, general objection that all material in file are work product or attorney-client communication without privilege log or other precise description of items claimed to be privileged waived privilege -- Relevancy -- No abuse of discretion in requiring production of claims log where insurer, who objected that contents of log were irrelevant, did not show irreparable harm warranting certiorari relief and failed to carry burden of coming forward with description of contents, thereby depriving court of factual basis for resolving relevancy issues

13 Fla. L. Weekly Supp. 396b

Insurance -- Personal injury protection -- Discovery -- Failure to comply -- Where insurer sought to strike medical provider's discovery requests as being served with small claims complaint on an unrepresented party, insurer then agreed to respond to discovery by date certain, and on due date for discovery insurer sent letter advising that it would not be responding to initial discovery and would instead insist that discovery be reserved, request for admissions is deemed admitted and insurer is ordered to respond to interrogatories and request to produce

13 Fla. L. Weekly Supp. 359a

Insurance -- Personal injury protection -- Where insurer failed to respond to valid requests for admission, summary judgment is proper based on those admissions, and insurer's opposing affidavits were filed in untimely manner, medical provider's motion for summary judgment is granted

13 Fla. L. Weekly Supp. 191b

Insurance -- Personal injury protection -- Evidence -- Affidavits faxed from insurer to medical provider are not legally sufficient to create disputed issue of material fact where fax did not comply with rule 1.080(b)(5) requirements to contain cover sheet, notation of number of pages transmitted, and sender's fax number -- Court will not consider peer review report which is not supported by affidavit but does contain verification language -- Examination under oath -- Failure to attend -- There was no breach of contract by insured failing to attend EUO requested by insurer more than thirty days after receipt of notice of claim -- Coverage -- Medical expenses -- Reasonable, related and necessary treatment -- Insurer cannot rely on report of chiropractor that conducted independent medical examination more than two months after treatment was begun to defeat provider's motion for summary judgment where report opines that future treatment would not be necessary, but does not state that previous treatment rendered was not reasonable, related or necessary -- Peer review report obtained one year and eight months after bills were submitted is untimely and does not meet statutory requirement to obtain medical report prior to withdrawing payment -- No merit to argument that medical report is only required when insurer had decided to pay claim and then changes its mind, not in the event of out-right denial of coverage -- Admissions -- Where insurer did not timely respond to request for admissions or obtain relief from admissions, insurer has admitted that provider is entitled to relief it seeks -- Summary judgment granted in favor of provider

13 Fla. L. Weekly Supp. 1204a

Insurance -- Personal injury protection -- Discovery -- Depositions -- Treating physician -- Insurer has right to question treating physician who is sole shareholder and clinical director of medical provider regarding any matter within scope of discovery under rule 1.280(b), including role and responsibilities as clinical director and corporate matters known to physician -- Physician may be questioned about treatment specifically provided by physician and treatment provided by medical provider, even where questions require physician to review medical file

13 Fla. L. Weekly Supp. 472a

Insurance -- Discovery -- Depositions -- Objections -- Sanctions -- Where insurer's counsel made speaking objections at deposition, rather than making objections as to form, insurer is ordered to pay attorney's fees and costs of motion for sanctions -- Objections based on attorney-client privilege and work product privilege were appropriate

13 Fla. L. Weekly Supp. 828b

Insurance -- Personal injury protection -- Discovery -- Depositions -- Financial records -- Where owner of medical provider gave evasive and non-responsive answers in deposition, and grand jury indictment has been filed against owner and provider's records custodian, unusual and compelling circumstances warrant production of 1099s and subsequent deposition of owner

13 Fla. L. Weekly Supp. 828a

Insurance -- Personal injury protection -- Discovery -- Depositions -- Financial records -- Where owner of medical provider gave evasive and non-responsive answers in deposition, and grand jury indictment has been filed against owner and provider's records custodian, unusual and compelling circumstances warrant production of 1099s and subsequent deposition of owner

13 Fla. L. Weekly Supp. 598b

Insurance -- Personal injury protection -- Discovery -- Pre-suit -- Medical provider is ordered to produce patient specific documents and parties are ordered to file joint stipulation detailing production of non-patient specific documents

13 Fla. L. Weekly Supp. 598a

Insurance -- Personal injury protection -- Discovery -- Pre-suit -- Medical provider is ordered to produce patient specific documents, parties are ordered to file joint stipulation detailing production of non-patient specific documents, and provider is directed to appear for deposition after documents are produced

13 Fla. L. Weekly Supp. 1086b

Insurance -- Personal injury protection -- Discovery -- Depositions -- Motion for protective order for insurer's corporate representative with most knowledge of procedure reports denied despite insurer's claims that reports will not be utilized in case and information is proprietary, trade secret and work product

13 Fla. L. Weekly Supp. 397a

Insurance -- Personal injury protection -- Discovery -- Depositions -- Where medical provider sent insurer interrogatory seeking procedure reports reflecting charges received by insurer for CPT codes at issue for one-year period within certain zip codes and request to depose corporate representative with the most knowledge of generating procedure reports, and insurer notified provider of intent to seek protective order regarding deposition, but by date of hearing on provider's motion to compel deposition, insurer had not moved for protective order, motion to compel deposition is granted

13 Fla. L. Weekly Supp. 1215a

Insurance -- Discovery -- Depositions -- Failure to attend -- Sanctions -- Where insurer and counsel failed to attend three depositions and failed to file and schedule motion for protective order seeking to excuse attendance, insurer's counsel is ordered to pay attorney's fees and court reporter fees to insureds' counsel

13 Fla. L. Weekly Supp. 730a

Insurance -- Personal injury protection -- Discovery -- Depositions -- Expert witness fee -- Treating physician who has accepted assignment of benefits from insured and brought action to collect benefits and who testified at deposition regarding billing practices of his office is fact witness not entitled to expert witness fee -- Question certified

13 Fla. L. Weekly Supp. 156b

Insurance -- Personal injury protection -- Discovery -- Deposition -- Expert witness fee -- Treating physicians are not entitled to expert witness fees for deposition testimony regarding services provided and charges for services

13 Fla. L. Weekly Supp. 155a

Insurance -- Personal injury protection -- Discovery -- Depositions -- Expert witness fee -- Treating physician is entitled to expert witness fee for deposition testimony -- Despite insurer's company policy of not holding depositions in physicians' professional offices, treating physician may be deposed in his office if he instructs staff that he is not to be interrupted during scheduled time

13 Fla. L. Weekly Supp. 829a

Insurance -- Personal injury protection -- Discovery -- Depositions limited to one hour