Volume 14

14 Fla. L. Weekly Supp. 862a

Insurance -- Uninsured motorist -- Joinder of uninsured at-fault driver as co-defendant in insured's breach of contract action against UM insurer is not required despite contract provision requiring insured to sue both insurer and at-fault driver -- If insurer desires to join at-fault driver, it may file third-party action for subrogation

14 Fla. L. Weekly Supp. 553a

Insurance -- Settlement agreement -- Enforcement -- Motion to enforce settlement agreement is granted, notwithstanding plaintiff's attempt to call off settlement after defendant tendered payments in the agreed amounts and provided general release for plaintiff's execution -- Correspondence from plaintiff's prior attorney consummated the settlement agreement previously reached, regardless of whether a release was to be executed, and lawsuit was to be dismissed with prejudice upon payment of the agreed amounts

14 Fla. L. Weekly Supp. 105a

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, and substantially all other aspects of case are elsewhere, motion to transfer venue is granted

14 Fla. L. Weekly Supp. 687c

Insurance -- Personal injury protection -- Venue -- Forum non conveniens -- Motion to transfer venue denied

14 Fla. L. Weekly Supp. 805b

Insurance -- Personal injury protection -- Venue

14 Fla. L. Weekly Supp. 827a

Insurance -- Personal injury protection -- Summary judgment -- Opposing affidavit -- Defects -- Insurer should have been permitted to correct technical deficiency in affidavit stating information was true to best of affiant's knowledge prior to entry of summary judgment against insurer

14 Fla. L. Weekly Supp. 821b

Insurance -- Personal injury protection -- Summary judgment -- Hearing -- Continuance -- Denial -- Abuse of discretion to deny continuance of summary judgment hearing and grant summary judgment before medical provider had opportunity to complete discovery

14 Fla. L. Weekly Supp. 976a

Insurance -- Personal injury protection -- Summary judgment -- Denial -- Failure to identify admissible materials on which movant relies

14 Fla. L. Weekly Supp. 178a

Insurance -- Personal injury protection -- Summary judgment -- Affirmative defenses -- Insurer's statement in prior motions that its only affirmative defense was insured's alleged failure to attend examination under oath constituted tacit admission that failure to attend EUO was insurer's only defense -- Insurer may not assert additional affirmative defenses in attempt to defeat summary judgment

14 Fla. L. Weekly Supp. 887a

Insurance -- Personal injury protection -- Reimbursement of benefits -- Operation of commercial vehicle -- Where insured, who was injured while operating city vehicle, suffered no actual loss even after having reimbursed city half of recovery received from third-party tortfeasor in settlement of workers' compensation lien, PIP carrier could have denied insured's PIP claim and has no right to reimbursement of unreasonable and unnecessary payment of PIP benefits from city

14 Fla. L. Weekly Supp. 586a

Insurance -- Personal injury protection -- Statutory penalty -- Failure to include penalty on overdue interest

14 Fla. L. Weekly Supp. 292a

Insurance -- Personal injury protection -- Notice of loss -- Professional license number -- Affidavit of litigation adjuster submitted by insurer in support of motion for summary judgment on notice of loss issue is admissible where, although affidavit states that it is based on “my information and belief,” statements in affidavit establish that adjuster has requisite personal knowledge to authenticate bills at issue -- Waiver of defense -- Insurer did not waive defense of lack of notice of loss based on failure to include medical provider's professional license number on bills by earlier denial of bills based on independent medical examination cutoff -- Statute provides that lack of notice defense can be raised at any time -- Where dates of service at issue were after effective date of 2003 amendment mandating that license number be included on all bills, and it is undisputed that bills at issue do not contain license number, bills did not put insurer on notice of covered loss

14 Fla. L. Weekly Supp. 1061a

Insurance -- Personal injury protection -- Notice of loss -- Where omnibus insured, who was passenger in insured vehicle and mother-in-law of insured, failed to provide information regarding residence and vehicle ownership necessary to verify coverage prior to filing suit, insurer had not received notice of covered loss at time of filing complaint, and complaint is legal nullity

14 Fla. L. Weekly Supp. 394a

Insurance -- Personal injury protection -- Notice of claim -- Disclosure and acknowledgment form -- Failure to submit -- Where medical provider failed to submit original standard disclosure and acknowledgment form to insurer prior to insured filing suit, insurer was never placed on notice of claim, and claim was never overdue and is legal nullity -- No merit to argument that failure to provide form impacts only initial date of service, not entire claim -- No prejudice to insured from dismissal of suit because, where medical provider fails to comply with legal requirement to submit bill, neither insurer nor insured is responsible for payment

14 Fla. L. Weekly Supp. 789a

Insurance -- Personal injury protection -- Notice of loss -- Disclosure and acknowledgment form -- Failure to list services actually rendered on form is fatal to PIP claim

14 Fla. L. Weekly Supp. 689b

Insurance -- Personal injury protection -- Disclosure and acknowledgment form -- Where disclosure and acknowledgment form did not set forth services actually rendered, insurer was not provided with notice of loss, and neither insurer nor insured is responsible for payment of bills -- Submission of medical bills and records contemporaneously with disclosure and acknowledgment form does not constitute substantial compliance with statutory requirement to disclose services rendered on form -- No merit to arguments that non-compliant form only impacts initial date of service and that insurer should be estopped from defending on basis of non-compliant form

14 Fla. L. Weekly Supp. 505a

Insurance -- Personal injury protection -- Disclosure and acknowledgment form -- Where self-generated disclosure and acknowledgment form provided by medical provider failed to list services rendered or to provide physician attestations, form does not comply with statutory requirements, insurer was never placed on notice of covered loss, and claim was never overdue -- No merit to argument that insurer should be estopped from defending claim on basis of non-compliant form -- Statute provides that insurer can assert that claim is in violation of statute at any time, and elements of equitable estoppel have not been proved

14 Fla. L. Weekly Supp. 308a

Insurance -- Personal injury protection -- Examination under oath -- Failure to attend -- Where insurer took no action upon receipt of claim, did not have reasonable proof sufficient to deny the claim, and failed to provide an explanation of benefits, that inaction resulted in waiver of defense that claimant failed to attend EUO scheduled more than 30 days after receipt of plaintiff's first bill

14 Fla. L. Weekly Supp. 496b

Insurance -- Personal injury protection -- Examination under oath -- Failure to attend -- Waiver of defense -- Where insurer took no action on receipt of claim, did not have reasonable proof sufficient to deny claim, and failed to provide explanation of benefits, insurer's inaction is waiver of defense that insured failed to attend EUO scheduled more than 30 days after receipt of first bill

14 Fla. L. Weekly Supp. 1060b

Insurance -- Personal injury protection -- Failure to attend examination under oath -- Insured's failure to attend an EUO prior to the filing of a lawsuit does not result in immediate breach of the insurance contract -- When an insurer reschedules a previously set EUO, the latest date scheduled is the date that is controlling when determining whether the insured complied with a condition in the insurance contract -- If the insured cooperates with the insurer to some degree, summary judgment is improper and a question of fact arises for presentment to the jury

14 Fla. L. Weekly Supp. 1091a

Insurance -- Personal injury protection -- Examination under oath -- Failure to attend -- Where insurer sent letter suspending benefits as of two days after date of MRI and scheduled insured to attend EUO regarding MRI, trial court erred in finding no genuine issue of material fact regarding whether suspension letter constituted anticipatory breach of contract relieving insured of obligation to attend EUO

14 Fla. L. Weekly Supp. 1090a

Insurance -- Personal injury protection -- Examination under oath -- Failure to attend -- Summary judgment -- Factual issues -- Error to enter summary judgment in favor of insured where motion for summary judgment did not disprove or establish legal insufficiency of EUO no-show defense raised by insurer

14 Fla. L. Weekly Supp. 894a

Insurance -- Personal injury protection -- Examination under oath -- Failure to answer questions -- Where insured attended EUO but refused to answer material questions about two accidents that occurred less than one year prior to accident at issue, insured breached insurance contract, and insurer is relieved of obligation to pay PIP benefits

14 Fla. L. Weekly Supp. 108c

Insurance -- Personal injury protection -- Discovery -- Documents -- Motion to compel discovery of every explanation of benefits and explanation of reimbursement generated in geozip for CPT codes at issue three months prior to and three months after dates of service is granted

14 Fla. L. Weekly Supp. 207a

Insurance -- Personal injury protection -- Demand letter -- Sufficiency -- Attachment to demand letter of claim forms setting forth amount of original claims without reflecting partial payments made by insurer on forms or elsewhere in demand letter does not comply with statutory requirement that demand letter set forth exact amount claimed to be due -- Demand letter with handwritten costs that were illegible and demand letter with attached claim forms that postdated the date the insurer received the demand letter were also erroneous -- No error in entry of summary judgment in favor of insurer

14 Fla. L. Weekly Supp. 1160a

Insurance -- Personal injury protection -- Demand letter -- Sufficiency -- Demand letter is not defective for demanding payment of bill insurer claims is excessive where insurer is still responsible for payment of reimbursable amount of bill, and insurer did not provide explanation of benefits stating why bill was reduced or denied -- Partial summary judgment on demand letter defect defense is entered in favor of medical provider

14 Fla. L. Weekly Supp. 886a

Insurance -- Personal injury protection -- Demand letter -- Sufficiency -- Demand letter to which itemized statement and HCFA form were attached was sufficient -- Even if letter were not sufficient, insurer's failure to respond to letter or issue explanation of benefits would have resulted in waiver of demand letter defense

14 Fla. L. Weekly Supp. 1069a

Insurance -- Personal injury protection -- Demand letter -- Sufficiency -- Letter demanding that insurer pay entire amount of insured's medical bills without taking into account numerous payments made by insurer and claiming interest without specifying dates of service for which payment was allegedly late or amount of interest accruing per diem does not satisfy condition precedent to filing suit

14 Fla. L. Weekly Supp. 673a

Insurance -- Personal injury protection -- Demand letter -- Sufficiency

14 Fla. L. Weekly Supp. 166b

Insurance -- Personal injury protection -- Demand letter -- Sufficiency

14 Fla. L. Weekly Supp. 917a

Insurance -- Personal injury protection -- Demand letter -- Where insured served demand letter on individual other than person designated with Department of Insurance to receive demand letters on behalf of insurer, dismissal was appropriate -- Statutory service requirement is not waived by showing that insurer was not harmed by service of demand letter on wrong person

14 Fla. L. Weekly Supp. 180a

Insurance -- Personal injury protection -- Demand letter -- Sufficiency -- Where medical provider is disputing full amount of claims submitted, and insurer made no payments at all on claims, provider was only required to submit either an itemized statement specifying amount, date of treatment and type of benefit claimed to be due or HCFA forms to fulfill statutory demand letter requirements -- Where provider's demand letter included both itemized statement and HCFA forms, and insurer's failure to provide response indicating that demand letter was not in compliance breached PIP contract and statute, affirmative defense regarding sufficiency of demand letter is stricken

14 Fla. L. Weekly Supp. 614a

Insurance -- Personal injury protection -- Demand letter -- Where demand letter from unaccredited MRI provider demanded payment at rate applicable to accredited MRI provider, amounts claimed to be owed were not accurate or reasonable, and demand letter and claim were insufficient as matter of law -- Summary judgment in insurer's favor affirmed

14 Fla. L. Weekly Supp. 874b

Insurance -- Personal injury protection -- Insurer breached contract by failing to provide certified copy of declarations page and copy of policy requested in demand letter

14 Fla. L. Weekly Supp. 298b

Insurance -- Personal injury protection -- Demand letter -- No merit to insurer's argument that it is entitled to summary judgment because demand letter was mailed by medical provider but did not have assignment of benefits attached where plaintiff is insured, and insured did not assign benefits to provider

14 Fla. L. Weekly Supp. 395b

Insurance -- Personal injury protection -- Demand letter -- Demand letters submitted to insurer by medical providers, and demand letters submitted to insurer by insured's attorney on behalf of medical providers, were defective where they were submitted after medical providers had revoked assignment of benefits and reassigned all benefits and potential cause of action to insured -- Insured lacked standing to file action against insurer for nonpayment of benefits where insured failed to comply with statutory requirement to furnish demand letter -- Final summary judgment entered in favor of insurer

14 Fla. L. Weekly Supp. 232c

Insurance -- Personal injury protection -- Demand letter -- Lost wages -- Demand letter for wage loss claim did not comply with statutory requirements where letter stated number of weeks insured was out of work, multiplied by salary, but did not indicate dates on which insured was out of work after surgery -- Appellate court will not entertain argument that section 627.736(11) is unconstitutional for retroactively materially changing insurance contract by requiring presuit demand letter where issue was not raised before trial court

14 Fla. L. Weekly Supp. 257a

Insurance -- Personal injury protection -- Defenses -- Election of remedies -- Error to require insurer to elect remedies between affirmative defense of accord and satisfaction and denial that bills are reasonable, related and necessary at pretrial conference and to overrule insurer's objection to requirement to elect remedies prior to trial

14 Fla. L. Weekly Supp. 383a

Insurance -- Personal injury protection -- Default -- Where insurer who entered notice of appearance but did not file response has been provided with notice that medical provider is seeking default, yet insurer has continued to fail to file response, default is entered against insurer

14 Fla. L. Weekly Supp. 932a

Insurance -- Personal injury protection -- Declaratory judgment -- Insurer's obligation to provide PIP log on presuit request from insured -- No error in entering summary judgment in favor of insurer in insured's declaratory action seeking PIP log where there is nothing in record to suggest that insured is disputing that bill was correctly applied to deductible or that coverage has been exhausted, and insured received requested information in explanation of benefits forms

14 Fla. L. Weekly Supp. 580b

Insurance -- Personal injury protection -- Motion to dismiss and motion for summary judgment in action brought by medical provider against insured's employer's commercial carrier for benefits and for presuit information are denied as premature where, although commercial carrier was wrong insurer and insured's PIP carrier covered provider's claim, commercial carrier did not inform provider that it was the wrong insurer presuit

14 Fla. L. Weekly Supp. 175a

Insurance -- Personal injury protection -- Dismissal -- Res judicata -- Where medical provider filed two virtually identical complaints against insurer for breach of contract by failure to pay PIP benefits for same series of treatments rendered at same facility by same physician to same insured as result of same accident and the only difference in complaints is dates of service at issue; all bills accrued prior to filing first suit; and there was no reason, other than provider's desire to file multiple lawsuits, to split cause of action into two parts, final judgment issued in first case is conclusive of every justiciable issue that could have been litigated, and bills not claimed therein cannot be recovered -- Motion to dismiss second action granted

14 Fla. L. Weekly Supp. 976b

Insurance -- Personal injury protection -- Res judicata -- Each bill for separate treatment dates is separate claim and cause of action although all result from same accident -- Medical provider is not barred from bringing claims for dates of service withdrawn from prior suit when provider discovered that demand letters for those dates of service were prematurely sent

14 Fla. L. Weekly Supp. 874a

Insurance -- Personal injury protection -- Res judicata -- Although final judgment was previously entered in action against insurer for overdue PIP benefits, second action by same medical provider against insurer based on different set of bills is not barred by res judicata

14 Fla. L. Weekly Supp. 299b

Insurance -- Personal injury protection -- Upon striking of insurer's untimely opposing affidavits, summary judgment is granted in favor of medical provider on issue of medical bill reduced by insurer

14 Fla. L. Weekly Supp. 504b

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable charges -- Summary judgment -- Insurer's affidavits in opposition to motion for summary judgment on reasonableness of amount charged are not sufficient to rebut medical provider's prima facie case where insurer uses information from third party database to make reasonableness determinations, and claims representatives and consulting actuary who made affidavits and were deposed have no personal knowledge of how calculations are made by third party

14 Fla. L. Weekly Supp. 504a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable charges -- Summary judgment -- Insurer's affidavits in opposition to motion for summary judgment on reasonableness of amount charged are not sufficient to rebut medical provider's prima facie case where insurer uses information from third party database to make reasonableness determinations, and claims representatives and consulting actuary who made affidavits and were deposed have no personal knowledge of how calculations are made by third party

14 Fla. L. Weekly Supp. 322a

Insurance -- Personal injury protection -- Summary judgment -- Factual issues -- Reasonableness of charges

14 Fla. L. Weekly Supp. 320c

Insurance -- Personal injury protection -- Summary judgment -- Factual issues -- Reasonableness of charges

14 Fla. L. Weekly Supp. 689a

Insurance -- Personal injury protection -- Evidence -- Judicial notice -- Medicare reimbursement schedule and workers' compensation reimbursement manual

14 Fla. L. Weekly Supp. 675a

Insurance -- Personal injury protection -- Evidence -- Motion to take judicial notice of fee schedules applicable to Medicare and workers' compensation coverage is denied where insurer has withdrawn Mitchell Medical/Ingenix defense that was sole basis for reduction of bills

14 Fla. L. Weekly Supp. 1010a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable charges -- Evidence -- No error in admitting explanation of benefits forms from insurer and other entities that paid medical provider's charges in full -- No abuse of discretion in finding that Medicare fee schedule was irrelevant where provider does not accept Medicare patients -- No abuse of discretion in finding workers' compensation fee schedule irrelevant where, although provider accepts workers' compensation patients, fee schedule is not only way provider receives payment for their treatment -- No abuse of discretion in finding that testimony of physician who used to work for provider and who treated insured regarding his understanding of what the test he ordered would accomplish was not relevant to issue of reasonableness of charge for test -- No abuse of discretion in sustaining relevancy objection to testimony of physical therapist who does not practice in same community as provider

14 Fla. L. Weekly Supp. 628a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Failure to obtain reasonable proof within 30 days -- Insurer is not barred from contesting reasonableness, relatedness or medical necessity of claim by failure to obtain peer review within 30 days

14 Fla. L. Weekly Supp. 1018a

Insurance -- Personal injury protection -- Coverage -- Denial -- Independent medical evaluation -- Error to find that IME report that discusses lack of need for future medical treatment, therapy, and diagnostic testing did not terminate coverage for future medical evaluations -- Court declines to distinguish, as matter of law, between medical evaluation and medical treatment, therapy, and diagnostic testing

14 Fla. L. Weekly Supp. 939a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 15 Fla. L. Weekly Supp. 123a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Failure to obtain reasonable proof within 30 days -- Insurer is not barred from contesting reasonableness, relatedness or necessity of treatment merely because peer review was obtained after benefits were denied and overdue -- Remand to consider legal sufficiency of peer review affidavit

14 Fla. L. Weekly Supp. 937a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Failure to obtain proof within 30 days -- Insurer that denied benefits as soon as claim was submitted was not required to obtain peer review report within 30 days of receipt of bills in order to contest claim on grounds of reasonableness, relatedness and necessity

14 Fla. L. Weekly Supp. 934a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Failure to obtain proof within 30 days -- Insurer that denied benefits as soon as claim was submitted was not required to obtain peer review report within 30 days of receipt of bills in order to contest claim on grounds of reasonableness, relatedness and necessity

14 Fla. L. Weekly Supp. 539a

Insurance -- Personal injury protection -- Coverage -- Denial -- Unreasonable, unrelated or unnecessary treatment -- Failure to obtain reasonable proof within 30 days -- Insurer's failure to obtain medical or peer review report within 30 days did not preclude insurer from contesting reasonableness, relatedness or necessity of treatment -- Error to grant summary judgment for medical provider because peer review report was submitted more than 30 days after claim was filed

14 Fla. L. Weekly Supp. 132a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary expenses -- Summary judgment -- Opposing affidavit -- Validity -- No error in entering summary judgment in favor of medical provider where affidavit and peer review report filed in opposition to motion did not comport with statutory requirements that they be based upon examination of patient or factually supported by examination and treatment records and prepared by physician in active practice

14 Fla. L. Weekly Supp. 782b

Insurance -- Personal injury protection -- Summary judgment -- Opposing affidavit -- Summary judgment granted in favor of medical provider on issue of reasonableness, relatedness and necessity of MRI where provider's motion establishes prima facie entitlement to relief, and insurer's affidavit was untimely served -- Independent medical examination and peer review reports, if admissible, do not create genuine issue of material fact where IME was performed on day insured received MRI and opines only as to reasonableness, relatedness or necessity of further treatment -- Explanation of benefits -- Insurer breached policy by not furnishing provider with EOB County

14 Fla. L. Weekly Supp. 1020a

Insurance -- Personal injury protection -- Summary judgment -- Opposing affidavit -- Although trial court that entered summary judgment in favor of medical provider on claim for MRI may have erred in not considering affidavit of physician who performed independent medical examination because IME was performed more than 30 days after submission of claim, summary judgment is affirmed because affidavit that focused on treatment and services rendered after MRI did not create genuine issue of material fact as to whether MRI was reasonable, related or necessary

14 Fla. L. Weekly Supp. 888a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary expenses -- Summary judgment -- Opinion of doctor who performed independent medical examination that no further treatment would be reasonable, related or necessary fails to create genuine issue of material fact as to medical services rendered prior to IME -- Although IME report would appear to create issue of material fact as to reasonableness, relatedness and necessity of treatment after date of IME, insurer waived right to suspend benefits as of date of IME by not notifying medical provider of intent to suspend until 4 months after treatment ended, nearly 6 months after IME -- Affidavit of doctor who conducted peer review also fails to create genuine issue of material fact on reasonable, related and necessary issue because peer review that is based on review of incomplete records and not supported by examination of insured is not valid report -- Further, insurer cannot create genuine issue of fact through IME report and peer review that contradict each other -- Summary judgment entered in favor of provider

14 Fla. L. Weekly Supp. 315b

Insurance -- Personal injury protection -- Directed verdict -- Reference in final judgment to “verdict” entered in favor of medical provider indicates trial court entered directed verdict, not summary judgment -- Entering directed verdict prior to trial is improper, but does not amount to reversible error if legally justified -- Evidence -- Affidavits -- Although insurer failed to preserve issue of sufficiency of physician's affidavit by challenging affidavit with trial court, appellate court must examine affidavit to fulfill duty to determine whether it is insufficient to support verdict as matter of law -- Affidavit was insufficient as matter of law, and trial court erred in entering directed verdict where issue before court was not merely reasonableness of amount of bills, but also relatedness and necessity of treatment, and affidavit merely recites statutory standard for when bills are payable under PIP policy and fails to state nature of insured's condition, proper treatment for condition, nature and extent of treatment actually provided, whether physician was insured's treating physician and what made treatment reasonable, related and necessary -- Even if trial court entered summary judgment, it erred in doing so based on affidavit insufficient to demonstrate conclusively nonexistence of genuine issue of material fact

14 Fla. L. Weekly Supp. 624a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Failure to obtain reasonable proof within 30 days -- PIP statute does not require insurer to obtain medical report within 30 days of notice of claim to dispute reasonableness, relatedness or medical necessity of treatment -- Peer review -- Error to hold that affidavit that alleges doctor “performed review of medical records ... known as peer review” was based on conclusions not facts -- Affidavit is sufficient despite failure to attach medical records where records were filed in case, and peer review report attached to affidavit referenced records in detail -- Error to enter summary judgment in favor of medical provider

14 Fla. L. Weekly Supp. 83b

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary expenses -- Summary judgment -- Affidavit and report by peer review physician filed in opposition to medical provider's motion for summary judgment on reasonableness, relatedness and necessity of MRIs was not valid report where report was not supported by physical examination of insured and was not prepared prior to denial of benefits -- Requirement to obtain report from like physician applies when benefits are withdrawn as well ass when benefits are denied at the outset

14 Fla. L. Weekly Supp. 675b

Insurance -- Personal injury protection -- Summary judgment -- Where medical provider's affidavits in support of summary judgment are not conclusory, self-serving or impeached, treatment and charges are found to be reasonable, related and necessary -- Summary judgment entered in favor of provider

14 Fla. L. Weekly Supp. 536b

Insurance -- Personal injury protection -- Coverage -- Denial -- Unreasonable, unrelated or unnecessary treatment -- Failure to obtain reasonable proof within 30 days -- Although not obtained within 30 days of notice of loss, peer review and independent medical examination are reasonable proof that treatment was not reasonable, related and necessary, and trial court erred in disregarding physicians' affidavits and entering summary judgment in favor of medical provider -- Affidavits did not require verification to be considered by court

14 Fla. L. Weekly Supp. 424a

Insurance -- Personal injury protection -- Summary judgment -- Hearing -- Continuance -- Pending discovery -- No abuse of discretion in denying motion to continue second summary judgment hearing due to pending discovery where first summary judgment hearing was continued for 3 months to allow additional depositions, and insurer has shown no extenuating circumstances to explain lack of any attempt to re-schedule depositions during 3-month delay -- Factual issues -- Opposing affidavit -- In entering summary judgment in favor of provider, it was error to overlook or dismiss opposing affidavit and report of IME doctor refuting need for diagnostic testing because IME report was filed separately from affidavit where report was incorporated in affidavit by reference -- Error to enter final summary judgment addressing reasonableness of charges but failing to address pending unresolved issue of medical reasonableness of treatment

14 Fla. L. Weekly Supp. 71a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary expenses -- Summary judgment is granted in favor of medical provider where, although insurer claims in answer that charges were not reasonable, defense is not presented in verified format, no affidavit has been filed in opposition to motion for summary judgment, and only evidence before court at time of hearing on motion is provider's affidavit stating that charges were reasonable

14 Fla. L. Weekly Supp. 795c

Insurance -- Personal injury protection -- Summary judgment -- Opposing affidavit -- Affidavit in opposition to provider's motion for summary judgment on issue of reasonable and customer charges was legally insufficient where affidavit was not based on personal knowledge and did not authenticate and attach all documents relied upon in forming opinion -- Because insurer did not file another affidavit, despite court having granted leave to do so, summary judgment on issue is granted in favor of medical provider

14 Fla. L. Weekly Supp. 794a

Insurance -- Personal injury protection -- Venue -- Forum non conveniens -- Where medical provider's only nexus to county where suit was filed is fact that insurer has office there, and substantially all other aspects of case are elsewhere, motion to transfer venue is granted -- Sanctions -- Section 57.105 sanctions are not available for opposing motion to transfer venue

14 Fla. L. Weekly Supp. 140b

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- MRI -- Patient brokering -- Fee splitting -- Where medical provider to whom insured was referred for MRI sent insured to another company to perform MRI, and provider “leased” equipment from other company but performed neither technical nor professional component of MRI, arrangement is patient brokering and/or fee splitting prohibited by section 817.505 -- No error in finding that provider cannot be reimbursed under PIP statute for services it did not render -- Section 817.505 is constitutional

14 Fla. L. Weekly Supp. 382c

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- MRI -- Allowable amount -- Adjustment to Consumer Price Index for All Urban Consumers in South Region -- 2003 amendment to statute -- Constitutionality -- Question certified

14 Fla. L. Weekly Supp. 87a

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 MRIs

14 Fla. L. Weekly Supp. 798b

Insurance -- Personal injury protection -- 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 MRIs

14 Fla. L. Weekly Supp. 788b

Insurance -- Personal injury protection -- 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 date of treatment

14 Fla. L. Weekly Supp. 372a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- MRI -- Allowable amount -- Adjustment to Consumer Price Index for All Urban Consumers in South Region -- “Medical CPI for Florida” provision of 2001 version of section 627.736(5)(b)5 refers to medical care item of CPI for All Urban Consumers in South Region -- MRI providers are entitled to begin receiving annual CPI adjustments as of November 1, 2001, not November 1, 2002

14 Fla. L. Weekly Supp. 369a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- MRI -- Allowable amount -- Adjustment to Consumer Price Index for All Urban Consumers in South Region -- Final summary judgment is entered in favor of MRI providers in class action suit against insurer that failed to make full payment for MRI services in accordance with 2001 version of section 627.736(5)(b)5 or other pre-existing law where insurer does not dispute that it did not pay any CPI adjustments for MRI services provided to insureds during time period of November 1, 2001, through July 31, 2003

14 Fla. L. Weekly Supp. 584a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Unlicensed provider -- Charges for massage therapy are non-compensable for dates of service on which medical provider did not have massage therapy establishment license

14 Fla. L. Weekly Supp. 1140a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Lawfully rendered treatment -- Lack of county occupational license does not render treatment unlawful -- Even if lack of license rendered treatment unlawful, tax collector's acceptance of payment for all due occupational taxes after date of service cured any illegality back to date taxes were due

14 Fla. L. Weekly Supp. 1137b

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Lawfully rendered treatment -- Medical provider's failure to maintain massage establishment license at time massage treatments were performed renders treatments unlawful and noncompensable -- Where provider was never certified to supervise certified chiropractic physician's assistants who examined insured and made recommendations for her treatment, and CCPAs were never authorized to work under supervision of provider, treatments were unlawful and noncompensable -- Treatments were not rendered unlawful by failure to obtain county occupational license

14 Fla. L. Weekly Supp. 1144c

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Lawfully rendered treatment -- Medical provider's failure to maintain massage establishment license at time massage treatments were performed renders treatments unlawful and noncompensable -- Where provider was never certified to supervise certified chiropractic physician's assistants who examined insured and made recommendations for her treatment, and CCPAs were never authorized to work under supervision of provider, treatments were unlawful and noncompensable -- Treatments were not rendered unlawful by failure to obtain county occupational license

14 Fla. L. Weekly Supp. 45a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Lawfully rendered services -- Licensure -- Medical provider was precluded from seeking or obtaining payment of PIP or 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

14 Fla. L. Weekly Supp. 786a

Insurance -- Personal injury protection -- Coverage -- Lawfully rendered services -- Medical provider that lacks massage therapy establishment license cannot recover from insurer or insured for massage therapy treatment -- Possession of county occupational license does not obviate need for massage establishment license

14 Fla. L. Weekly Supp. 1062c

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable charges -- Insurer's policy of uniformly paying certain procedure codes at 200% of workers' compensation statute or Medicare Part B fee schedule does not violate PIP statute -- If medical provider disagrees with payment, it may sue and bears burden of proving charges are reasonable

14 Fla. L. Weekly Supp. 299a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Failure to pay or investigate within 30 days -- Tolling of period -- Where insurer timely requested that medical provider submit invoice from supplier of electrical stimulation pads to determine proper payment, and provider did not submit invoice prior to filing suit, request for invoice tolled time for payment of charge for pads, and charge was not overdue at time provider filed suit

14 Fla. L. Weekly Supp. 1149b

Insurance -- Personal injury protection -- Explanation of benefits -- Failure to provide -- Sufficiency of petition for declaratory judgment/complaint for breach of contract

14 Fla. L. Weekly Supp. 534a

Insurance -- Personal injury protection -- Coverage -- Exhaustion of policy limits -- Error to enter summary judgment in favor of medical provider where benefits were exhausted before provider filed suit and before insurer received notice that reduced claims were contested -- Insurer is not liable for statutory interest since it is not liable for reduced claims -- Appeals -- Absence of transcript of summary judgment hearing does not preclude appellate review

14 Fla. L. Weekly Supp. 520a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Exhaustion of policy limits -- Where insurer had no reason for reduction of medical bills and was on notice prior to exhaustion of benefits that medical provider disputed reductions, trial court correctly denied insurer's motion for summary judgment based on exhaustion of benefits -- Benefits paid to other providers, which should have been paid to plaintiff provider first and which resulted in exhaustion of benefits, should be considered gratuitous payments

14 Fla. L. Weekly Supp. 1087a

Insurance -- Personal injury protection -- Summary judgment -- Trial court correctly entered partial summary judgment in medical provider's favor where provider submitted affidavit attesting that treatment of insured was reasonable, related to accident, and medically necessary and that charges were reasonable, and insurer failed to file affidavit to counter provider's affidavit or provide medical opinion to support claim that treatment was not reasonable, related or necessary -- No abuse of discretion in striking transcript of examination under oath where insurer withheld transcript based on assertion of privilege and/or claim that transcript did not exist until it amended answer to assert fraud based on EUO long after discovery had been completed

14 Fla. L. Weekly Supp. 699a

Insurance -- Personal injury protection -- Trial court properly directed verdict in favor of medical provider in actions for PIP benefits where insurer based denial of benefits solely on paper peer review report without medical report from physician who actually examined insureds -- Denial of payment is withdrawal of payment to which report requirement of section 627.736(7) applies

QUASHED at 33 Fla. L. Weekly D839a

14 Fla. L. Weekly Supp. 1019a

Insurance -- Personal injury protection -- Summary judgment -- Opposing affidavit -- Sufficiency -- Trial court's reasoning as to insufficiency of affidavit filed in opposition to motion for summary judgment is unclear -- Case is remanded for reconsideration and more specific ruling -- Insurer is not barred from contesting medical bill solely by fact that peer review affidavit was obtained and filed after initial denial of benefits

14 Fla. L. Weekly Supp. 84a

Insurance -- Personal injury protection -- Coverage -- Summary judgment is entered in favor of insurer where insured denied that he was involved in accident on alleged date of loss or that he was treated by medical provider -- Examination under oath attached to motion for summary judgment was sufficient to support motion without necessity of affidavit from insured

14 Fla. L. Weekly Supp. 339a

Insurance -- Personal injury protection -- Summary judgment -- Error to enter summary judgment in favor of medical provider prior to filing of answer -- Fact that motion to dismiss was pending, that provider made claims for conflicting dates of service and that significant amount of time had passed between accident and treatment demonstrate existence of material issues of fact -- Failure to pay or investigate within 30 days -- Insurer is entitled to rely on peer review report indicating that claimed medical expenses are not reasonable, related, and necessary despite fact that medical report was not obtained within 30-day period to investigate and authenticate claim

14 Fla. L. Weekly Supp. 184b

Insurance -- Personal injury protection -- Affirmative defenses -- Affirmative defenses that services rendered by medical provider were not reasonable, related and/or necessary are not legally cognizable defenses and are stricken, as it is provider's burden to prove that services were reasonable, related and/or necessary -- Fraud -- Affirmative defense contending that insured's failure to disclose ultrasound and reeducation of movement services during examination under oath constituted fraud was not pled with sufficient specificity and is stricken with leave to amend -- Demand letter -- Sufficiency -- Affirmative defense alleging demand letter was improper because only HCFA forms were attached is stricken -- Submission of either itemized statement or HCFA forms satisfies demand letter requirement when demanding full amount of claims submitted -- Further, insurer failed to furnish explanation of benefits notifying provider that insurer considered demand letter insufficient and benefits would not be provided

14 Fla. L. Weekly Supp. 1089a

Insurance -- Personal injury protection -- Error to enter summary judgment in favor of insurer based on insurer's affirmative defense of fraud where discrepancies between insured's examination under oath, claim forms, insured's medical record, and depositions of insured and treating physician raised issue of fact as to what services were rendered, an issue which is material to fraud defense -- Burden never shifted to medical provider to file anything in opposition to insurer's motion for summary judgment where insurer failed to demonstrate absence of genuine issue of material fact

14 Fla. L. Weekly Supp. 184a

Insurance -- Personal injury protection -- Affirmative defenses -- Striking -- Affirmative defense claiming insured failed to fulfill all conditions precedent by not attending sworn statement is not pled with sufficient specificity and is stricken without prejudice -- Affirmative defense alleging that medical provider's fee for MRI was not reasonable and is in excess of allowable amount under Medicare Part B fee schedule is stricken with prejudice because assertion that MRI fee is unreasonable does not excuse payment in entirety

14 Fla. L. Weekly Supp. 671a

Insurance -- Personal injury protection -- Coverage -- Defenses -- Affirmative defenses regarding validity of assignment, failure to comply with conditions precedent and policy, failure to comply with standard disclosure and acknowledgment form requirement, and failure to provide discovery of facts about injured person are not pled with required specificity and are stricken -- Fraud defense is stricken because county court does not have jurisdiction to determine criminal fraud -- Insurer does not have standing to assert defense that medical provider is attempting to exploit insured for financial gain

14 Fla. L. Weekly Supp. 384a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Where plaintiff received medically necessary and reasonable treatment for injuries related to automobile accident, and fees charged for treatment were reasonable in amount, partial final summary judgment on issue of medical fees is entered in favor of plaintiff

14 Fla. L. Weekly Supp. 305a

Insurance -- Personal injury protection -- Hospital lien -- Timeliness -- Medical provider is entitled to full payment of bill where hospital lien was untimely

14 Fla. L. Weekly Supp. 938a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Exhaustion of policy limits -- Error to enter summary judgment in favor of medical provider where benefits were exhausted before provider that accepted reduced payment of claim filed suit and before insurer is alleged to have received notice that provider was seeking unpaid portion of bill -- Further, insurer is liable for statutory interest only if insurer is ultimately found to have duty to pay claim

14 Fla. L. Weekly Supp. 1000b

Insurance -- Personal injury protection -- Coverage -- Insured's action against insurer seeking damages as a result of unpaid PIP benefits that insured sought to be applied towards a workers' compensation lien incurred after insured was involved in an on-the-job automobile accident -- Suit was premature where complaint was filed less than 30 days after service of demand letter -- Error to enter summary judgment in favor of insured on ground that lien had been settled where there were factual issues as to whether lien had been settled or when settlement occurred, whether insurer had been put on reasonable notice of insured's request for compensation, and, if there were a lien settlement to which PIP benefits applied, the entity which should be paid to avoid duplication -- Civil procedure -- Error to consider counsel's unsworn statements when considering motion for summary judgment -- Insurer's failure to file affidavit in opposition to summary judgment is of no consequence where insured did not meet burden of showing absence of factual issue

14 Fla. L. Weekly Supp. 481b

Insurance -- Personal injury protection -- Coverage -- Where insured's injuries resulted from altercation with husband, not contact with motor vehicle, insured has failed to state cause of action for PIP benefits

14 Fla. L. Weekly Supp. 881a

Insurance -- Personal injury protection -- Coverage -- Exhaustion of policy limits -- Insurer's motion for summary judgment based on exhaustion of benefits is denied where there remains material issue of fact as to whether insurer's denial of benefits was wrongful -- If charges are found to be reasonable, necessary and related, insurer will be liable for statutory interest and attorney's fees

14 Fla. L. Weekly Supp. 647a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Exhaustion of policy limits -- Insurer is not liable for balance of reduced claim despite fact that benefits were exhausted in payment of later-filed claims after medical provider filed suit and despite fact that provider resubmitted its claim with presuit demand letter prior to the benefits exhausting

14 Fla. L. Weekly Supp. 438b

NOT FINAL VERSION OF OPINION
Subsequent Changes at 14 Fla. L. Weekly Supp. 1013a

Insurance -- Personal injury protection -- Coverage -- Exhaustion of policy limits -- Escrow of disputed amount -- Insurer was not required to reserve remaining PIP benefits when claim was paid in reduced amount or denied -- However, where there were sufficient benefits to pay medical provider's claim at time insurer denied claim on erroneous belief that provider was required to register as clinic, and insurer disregarded provider's priority claim and exhausted benefits on subordinate claims, insurer is responsible for provider's claim as well as interest and penalties

14 Fla. L. Weekly Supp. 1059b

NOT FINAL VERSION OF OPINION
Subsequent Changes at 14 Fla. L. Weekly Supp. 805a

Insurance -- Personal injury protection -- Coverage -- Exhaustion of policy limits -- Where insurer exhausted benefits after suit was filed, and there is no evidence that exhaustion of benefits was undertaken in bad faith, summary judgment is awarded for insurer

14 Fla. L. Weekly Supp. 869a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Exhaustion of policy limits -- Right to contest denial of PIP claim was extinguished through exhaustion of benefits after claim was submitted and suit was filed where there was no showing of bad faith

14 Fla. L. Weekly Supp. 1013a

Insurance -- Personal injury protection -- Coverage -- Exhaustion of policy limits -- No merit to argument on rehearing that court overlooked case law where court found cited cases distinguishable -- Court did not hold that insured is entitled to benefits in excess of policy limits in absence of bad faith, but rather, that PIP benefits were overdue because insurer wrongfully denied and disregarded provider's priority claim and exhausted benefits on subordinate claims -- Appeals -- Preservation of issues -- No merit to contention that provider should have been prevented from raising argument in response to exhaustion of benefits defense because it did not file reply to defense where issue was raised in both parties' motions for summary judgment and argued in trial court

14 Fla. L. Weekly Supp. 438a

Licensing -- Driver's license -- Suspension -- Driving under influence -- Lawfulness of stop

14 Fla. L. Weekly Supp. 1102b

Insurance -- Personal injury protection -- Independent medical examination -- Failure to appear -- Where insurer unilaterally rescheduled IME after insured failed to appear for first appointment in order to give insured benefit of doubt, and insured failed to appear for second IME, insurer did not waive right to terminate benefits as of date of first missed IME

14 Fla. L. Weekly Supp. 99c

Insurance -- Personal injury protection -- Explanation of benefits -- Failure to provide -- Insurer that failed to provide statutorily required EOB breached insurance contract with insured -- Summary judgment entered in favor of medical provider as to liability and at minimum nominal damages

14 Fla. L. Weekly Supp. 99b

Insurance -- Personal injury protection -- Explanation of benefits -- Failure to provide -- Insurer that failed to comply with statutory mandate to furnish itemized specification of unpaid charges to medical provider breached insurance contract -- Letter filed in opposition to summary judgment is legally deficient where letter explains reason for suspension of chiropractic benefits after suspension date, but provider's services were orthopedic services provided prior to suspension date -- No merit to insurer's argument that it was merely required to provide explanation, but that explanation need not be correct or understandable

14 Fla. L. Weekly Supp. 584c

Insurance -- Personal injury protection -- Coverage -- Denial -- Explanation of benefits -- Breach of contract action is proper against insurer that failed to furnish EOB for unpaid charges -- Non-compliance letter does not meet requirements for EOB

14 Fla. L. Weekly Supp. 497b

Insurance -- Personal injury protection -- Coverage -- Denial -- Explanation of benefits -- Breach of contract action is proper against insurer that failed to furnish medical provider with EOB for unpaid charges -- Non-compliance letter does not meet requirements for EOB

14 Fla. L. Weekly Supp. 496a

Insurance -- Personal injury protection -- Coverage -- Denial -- Explanation of benefits -- Breach of contract action is proper against insurer that failed to furnish medical provider with EOB for unpaid charges

14 Fla. L. Weekly Supp. 97a

Insurance -- Personal injury protection -- Explanation of benefits -- Failure to provide -- Insurer that failed to provide statutorily required EOB to medical provider/assignee breached insurance contract with insured -- No merit to argument that insurer is only obligated to furnish EOB to insured or was relieved of obligation to provider by having furnished EOB to insured -- Because statute requires that EOB be provided to claimant, where provider submitted claim, insurer was required to provide EOB to provider -- Summary judgment entered in favor of provider

14 Fla. L. Weekly Supp. 94a

Insurance -- Personal injury protection -- Explanation of benefits -- Where insurer sent letter to insured's attorney advising that no benefits would be paid due to missed independent medical examination, and thereafter insured received treatment from medical provider, insurer was required to provide EOB to provider regarding ensuing claim -- Because statute requires explanation for each item claimed and provider's claim was not part of claim made by insured, insurer was obligated to explain denial of claim, even if it merely repeated previous denial

14 Fla. L. Weekly Supp. 179b

Insurance -- Personal injury protection -- Coverage -- Actual occurrence of accident -- Where both parties rely on insured's examination under oath, in which insured states that he was injured as result of accident, and insurer has submitted no competent evidence to contravene insured's statement, medical provider is entitled to summary judgment on issue of existence of accident and injury -- Medical expenses -- Reasonable, related and necessary expenses -- Where insurer has presented no competent evidence to controvert provider's affidavits, provider is entitled to summary judgment on issue of necessity of treatment rendered prior to independent medical examination -- No merit to argument that provider's affidavit is substantively defective due to notary's failure to indicate how she identified affiant -- Summary judgment is precluded on issue of reasonableness and relatedness of treatment prior to IME where inconsistency between provider's affidavit and actual bills raises question as to what treatment was actually rendered -- Summary judgment is also precluded on issue of deductible where no-fault payment register filed by provider does not establish without material dispute that deductible has been eliminated

14 Fla. L. Weekly Supp. 779a Insurance -- Personal injury protection -- Attorneys -- Disqualification -- Timeliness of motion MICHAEL J. DELESPARRA, D.C., P.A. (a/a/o Junide Francois) v. UNITED AUTOMOBILE…

14 Fla. L. Weekly Supp. 1161a

Insurance -- Personal injury protection -- Complaint -- No merit to claim that separate counts alleging breach of contract for failure to pay amounts owed, provide explanation of benefits, provide declarations page, and provide copy of policy are repetitive and must be pled as single count -- Argument that counts alleging failure to provide EOB and copy of policy do not allege causes of action permitting the injunctive relief sought by plaintiff also fails -- Motion to dismiss is denied

14 Fla. L. Weekly Supp. 576a

Insurance -- Personal injury protection -- Claim forms -- Signature of medical provider -- Requirements of box 31 of HCFA form are met where provider's name is typed or facsimile signature is stamped in box -- Question certified whether statute requires actual handwritten signature of medical provider in Box 31 of HCFA form

14 Fla. L. Weekly Supp. 103b

Insurance -- Personal injury protection -- Claim form -- Professional license number -- Insurer's failure to notify medical provider for two years after receipt of claims that claims were defective due to absence of professional license number constituted waiver of defense -- Further, insurer that was able to proceed as normal with claims investigation has not demonstrated prejudice caused by alleged deficiency in claim formsREVERSED at 16 Fla. L. Weekly Supp. 37a

14 Fla. L. Weekly Supp. 1021a

Insurance -- Personal injury protection -- Claims -- Medical bills -- Statutory requirement that physician's license number be included on medical bills does not apply retroactively to policy that predates requirement -- Independent medical examination -- Failure to attend -- Rescheduling IME after insured failed to attend initial IME did not constitute waiver of right to terminate benefits as of date of first IME where there was no indication that insurer rescheduled IME to correct some statutory deficiency that would make scheduling of first IME unreasonable as matter of law or that first IME was, in fact, unreasonably scheduled -- Remand for determination of whether insurer unreasonably set or insured unreasonably missed IME

14 Fla. L. Weekly Supp. 893b

Insurance -- Personal injury protection -- Notice of claim -- Waiver -- Partial payment of claims submitted on HCFA forms from which medical provider's professional license number was omitted did not waive insurer's right to assert that deficient forms failed to place insurer on notice of covered loss

14 Fla. L. Weekly Supp. 85a

Insurance -- Personal injury protection -- Claim form -- Professional license number -- MRI facility -- Statutory requirement to place professional license number on CMS 1500 form does not apply to MRI facilities because facilities do not have, and are not required to have, such license

14 Fla. L. Weekly Supp. 796a

Insurance -- Personal injury protection -- Claim form -- Professional license number -- Insurer was not placed on notice of covered loss where medical provider failed to include professional license number on CMS 1500 forms

14 Fla. L. Weekly Supp. 480c

Insurance -- Personal injury protection -- Claims -- Where bills submitted to insurer by medical provider do not contain professional license number of provider, insurer was not provided with written notice of covered loss, and bills are not payable

14 Fla. L. Weekly Supp. 479a

Insurance -- Personal injury protection -- Notice of loss -- Where disclosure and acknowledgment form failed to list or describe treatment rendered and did not contain attestation of treating physician, and CMS 1500 claim form did not include professional license number of medical provider in box 31, insurer was not given written notice of covered loss -- Summary judgment entered in favor of insurer

14 Fla. L. Weekly Supp. 226a

Insurance -- Personal injury protection -- Fee splitting -- Patient brokering -- Where medical provider paid same rent for use of MRI facility's space and equipment every month irrespective of amount of actual use, lease provided that rental payments were consistent with fair market value without regard to volume or value of referrals between parties, provider was prohibited by lease from using MRI facility on anyone other than own patients, MRIs were performed by personnel of MRI facility but under direct supervision of provider, and additional amount charged by provider above actual MRI cost was charge for performance of MRI, not referral fee, there was no basis on which trial court could find fee splitting or patient brokering arrangement, and court did not err in denying insurer's motion for summary judgment on issue -- Notice of claim -- HCFA forms -- Notation of “signature on file” in box 31 of HCFA forms did not constitute misrepresentation where provider's name was on forms, and provider actually rendered services claimed -- Errors and omissions in HCFA forms did not result in lack of proper notice of claims where statute in effect at time forms were sent did not require that forms be filled out in entirety, omissions were not misrepresentations and, at most, information in forms was erroneous or incomplete -- No merit to argument that contractual arrangement between provider and MRI facility violates public policy by violating Patient Brokering Act where evidence demonstrates that provider did provide MRI services and did not receive payment for only referring patients to facility

14 Fla. L. Weekly Supp. 1027a

Insurance -- Personal injury protection -- Coverage -- Medical bills -- CPT coding -- No error in finding as matter of law that CPT provision does not require that medical provider's interpretation of diagnostic test results ordered by another provider be bundled with office consultation CPT code, but allows for separate CPT code for reading test -- Physician's affidavit stating that medical provider's billing practices were unreasonable and constituted impermissible unbundling did not create fact issue precluding summary judgment because meaning of terms was question of law, not issue for expert testimony, and there was no evidence that affiant was expert on interpretation of CPT -- Further, insurer's interpretation of CPT code provision was contrary to past practice and cost-saving policy -- Reasonable charges -- Peer review and affidavit filed one year after bills were submitted to insurer was not time-barred by statute -- Peer review affidavit was not excludable for taking position inconsistent with claims adjuster's deposition testimony that basis for reducing provider's bills was Mitchell medical billing system where deposition and affidavit both stand for proposition that provider's charges are not reasonable -- Peer review affidavit is not required to be supported by examination of insured because insurer's reduction of provider's claims does not constitute withdrawal of benefits -- Error to exclude peer review affidavit

14 Fla. L. Weekly Supp. 977a

Insurance -- Personal injury protection -- Claim form -- Disclosure and acknowledgment form -- Where the only services rendered by provider for insured consisted of interpretation of diagnostic testing, which was not performed in presence of insured, provider is exempt from disclosure and acknowledgment form requirement

14 Fla. L. Weekly Supp. 982a

Insurance -- Personal injury protection -- Explanation of benefits -- Failure to provide -- Insurer that failed to provide EOB upon denial of medical provider's bill waived right to assert that bill was defective for lack of disclosure and acknowledgment form

14 Fla. L. Weekly Supp. 687b

Insurance -- Personal injury protection -- On rehearing, motion to dismiss is denied

14 Fla. L. Weekly Supp. 687a

Insurance -- Personal injury protection -- Summary judgment granted in favor of insurer where unambiguous policy language provides no benefits

14 Fla. L. Weekly Supp. 50a

Insurance -- Personal injury protection -- Declaratory judgment -- Coverage -- Misrepresentations -- Where insured failed to cooperate with insurer's investigation of accident allegedly caused by phantom vehicle by providing documents requested by insurer to corroborate insured's testimony in examination under oath, insured and other vehicle occupants gave conflicting statements and made material misrepresentations in EUOs, and insurer's accident reconstructionist found that accident could not have occurred in manner claimed by insured, no insurance coverage exists

14 Fla. L. Weekly Supp. 978c

Insurance -- Personal injury protection -- Interest on overdue PIP payments is calculated from date insurer was furnished with written notice of amount of covered loss

14 Fla. L. Weekly Supp. 174b

Insurance -- Homeowners -- Where homeowner's insurance policy was issued before effective date of section 627.7011, which requires insurer to offer law and ordinance and replacement value coverage when issuing or renewing policy, homeowner is not entitled to declaration that statute applies to policy, as constitution bars retroactive application of statute to change rights that vested before statute went into effect

14 Fla. L. Weekly Supp. 1118c

Insurance -- Homeowners -- Appraisal process -- Waiver -- Insurer that failed to notify insured of right to participate in mediation of dispute regarding claim for hurricane damage waived right to invoke appraisal clause of homeowners insurance policy

14 Fla. L. Weekly Supp. 1118b

Insurance -- Homeowners -- Motion to dismiss complaint for failure to state cause of action or to abate to appraisal denied

14 Fla. L. Weekly Supp. 100b

Insurance -- Stay -- Striking -- Lack of reciprocity -- Where foreign insurer failed to introduce evidence that foreign state is reciprocal state under National Association of Insurance Commissioners Rehabilitation and Liquidation Model Act or Uniform Insurers Liquidation Act, notice of automatic stay is stricken

14 Fla. L. Weekly Supp. 586b

Insurance -- Personal injury protection -- Coverage -- Exclusions -- PIP policy unlawfully broadens statutory exclusion for injury suffered by named insured while occupying vehicle owned by named insured and not insured under policy where policy defines “named insured” as insured and insured's spouse -- Injuries suffered by insured while occupying vehicle owned by wife are covered

14 Fla. L. Weekly Supp. 32a

Insurance -- Personal injury protection -- Evidence -- Abuse of discretion to prevent medical provider who was suing for cost of MRI from introducing evidence of insurer's payment of charge for orthopedist's review of MRI in reliance on section 90.409, which provides that evidence of offering to pay medical expenses or other damages is inadmissible to prove liability for accident or injury -- Provider sought to introduce evidence of payment for MRI review to prove that insurer was liable for cost of MRI, not to prove insurer's liability for injury or accident, payment for MRI review was relevant to issue of whether MRI was medically necessary, and probative value of evidence was not substantially outweighed by danger of unfair prejudice, confusion of issues or misleading jury -- Exclusion of evidence was not harmless where it does not appear from transcript that reasonable juror would have understood or inferred that insurer paid for MRI review -- No error in allowing insurer to admit evidence of more thorough post-litigation review by same physician who conducted pre-litigation records review

14 Fla. L. Weekly Supp. 747a

Insurance -- Personal injury protection -- Expert witnesses -- Striking -- Where insured has not proffered intended testimony of expert witnesses stricken by trial court due to insured's failure to comply with order requiring disclosure of experts, insured has not shown prejudice -- No abuse of discretion to permit insurer's expert to testify that it was unusual in his clinical experience for insured's objective and subjective findings not to vary and that he considered that factor in evaluating insured's medical records to reach opinion on necessity of treatment where testimony was opinion of insurer's expert, not improper comment on opinion or credibility of insured's expert

14 Fla. L. Weekly Supp. 523a

Insurance -- Automobile -- Cancellation -- Appeals -- Timeliness -- Insured's motion for rehearing was timely when measured by date of service rather than date of filing; therefore, appeal filed within 30 days of order on motion for rehearing was also timely filed -- Law of case doctrine did not preclude trial court from entering summary judgment on remand after entry of appellate order finding that neither party's motion for summary judgment should have been granted due to existence of factual issues where appellate court's statement was not decision on question of law, and record before trial court following remand was different from record on appeal -- Insured is estopped from arguing on appeal that disputed issues of fact regarding cancellation of policy exist that precluded entry of summary judgment for insurer where insured argued to trial court that no material issues of fact existed on that issue -- No error in denying insured's motion for rehearing seeking to amend complaint to plead promissory estoppel where insured could not have pled viable estoppel theory -- Attorney's fees -- Appellate -- Justiciable issues -- Motion for section 57.105 fees is denied for failure to afford safe harbor period to insured

14 Fla. L. Weekly Supp. 405a

Insurance -- Personal injury protection -- Fraud on court -- Coaching witness -- Sanctions -- Dismissal -- Where trial court held unrecorded sidebar at which attorneys for medical provider were instructed to warn provider's corporate representative to refrain from making gestures that court believed were meant to coach insured during her testimony, and thereafter court declared mistrial with prejudice when it observed that provider's representative continued to make gestures during cross-examination of insured, but record fails to demonstrate that provider's representative was aware that his behavior would compromise case or understood consequences, provider's due process rights were violated by dismissal without notice and opportunity to be heard

14 Fla. L. Weekly Supp. 621a

Insurance -- Personal injury protection -- Dismissal -- Failure to prosecute -- Record activity -- Error to grant insurer's motion to dismiss for lack of prosecution where there was record activity within one year preceding motion to dismiss, even though record activity was action by insurer rather than by plaintiff-medical provider

14 Fla. L. Weekly Supp. 141b

Insurance -- Personal injury protection -- Discovery -- Witnesses -- Failure to disclose -- No error in exclusion of testimony of witness not disclosed in accord with pretrial order where use of witness would prejudice opposing party

14 Fla. L. Weekly Supp. 127b

Insurance -- Personal injury protection -- Appeals -- Certiorari -- Timeliness -- Petition for writ of certiorari filed after insurer filed motion for rehearing of order challenged by petition but before trial court ruling on motion for rehearing is not premature as filing of petition constituted abandonment of motion for rehearing -- Discovery -- Privilege -- Trade secret -- Trial court departed from essential requirements of law by ordering production of documents claimed to contain trade secrets without conducting in camera inspection and setting forth findings regarding asserted trade secret privilege -- Waiver -- Privilege log -- No merit to argument that insurer waived trade secret privilege by failing to file privilege log where it appears from fact that trial court overruled attorney-client and work product objections on ground that no privilege log was filed that only those privileges were affected by lack of log -- Determination that trade secret privilege was not waived by lack of log is within trial court's discretion -- Motion to compel quashed

14 Fla. L. Weekly Supp. 588a

Insurance -- Personal injury protection -- Discovery -- Pure bill of discovery complaint is dismissed where medical provider has already identified proper party defendant and potential causes of action for breach of contract and PIP claim -- Further, small claims court has no jurisdiction over pure bill of discovery complaint

14 Fla. L. Weekly Supp. 179a

Insurance -- Personal injury protection -- PIP log -- Explanation of benefits -- Cross motions for summary judgment in action alleging that insurer breached contract by failing to provide insured with PIP log and itemized specification of each item reduced or denied -- Where it is undisputed that insurer did not reduce or deny any medical bills submitted, insurer did not violate PIP statute by failing to provide itemized specification of items reduced or denied -- Where insurer did not attempt to invoke section 627.736(6), whereby insurer can petition court to seek discovery measures and insured has right to request copies of any discovery so obtained, insured cannot rely on statute to assert right to PIP log -- Summary judgment granted in favor of insurer

14 Fla. L. Weekly Supp. 1059c

Insurance -- Personal injury protection -- Complaint -- Amendment -- Futility -- Insurer's obligation to provider PIP log on presuit request from insured -- Amendment of medical provider/assignee's complaint to add count for declaratory relief based on insured's right to obtain PIP log under section 627.736(4)(b) is not rendered futile by case law addressing question of provider's right to PIP log under section 627.736(6)d) -- Motion to amend granted

14 Fla. L. Weekly Supp. 1162a

Insurance -- Personal injury protection -- Discovery -- Privilege -- Waiver -- Privilege log filed by insurer was incomplete and failed to meet minimal procedural requirements where log failed to disclose date, sender, and recipient for each document listed -- When raising work product privilege, work must have been prepared when the probability of litigation was substantial and imminent -- In view of fact that insurer delayed more than a year in responding to plaintiff's request to produce, defendant should have and could have produced legally sufficient privilege log -- Privilege objections raised by insurer are deemed waived

14 Fla. L. Weekly Supp. 388a

Insurance -- Personal injury protection -- Discovery -- Privileges -- Waiver -- Insurer's work product and attorney-client privilege objections are deemed waived where insurer failed to file privilege log for more than 8 months after medical provider propounded request to produce, log produced is incomplete and confusing due to use of acronyms and abbreviations and does not contain required information necessary to distinguish between valid privileges and frivolous claims to avoid discovery, and at hearing insurer could not raise single argument that validated claim of work product privilege

14 Fla. L. Weekly Supp. 493a

Insurance -- Personal injury protection -- Discovery -- Presuit -- Insurer was obligated to provide PIP file upon presuit request from insured -- There is no requirement that requesting insured cite section 627.736(6)(d)

14 Fla. L. Weekly Supp. 250a

Insurance -- Personal injury protection -- Discovery -- Trial court did not abuse discretion in granting plaintiff's motion to compel physician who conducted independent medical examination to comply with subpoena duces tecum where information sought in subpoena was required by statute to be maintained by physician, and defendant insurer did not object to production of material requested -- Because physician's motion for protective order did not qualify as an objection, plaintiff was proper in seeking order to compel -- Physician did not establish the sort of irreparable harm necessary for granting of writ of certiorari

14 Fla. L. Weekly Supp. 1157a

Insurance -- Personal injury protection -- Discovery -- Independent medical examination -- Doctor who performed insured's IME and who claims that compliance with discovery request for copies of all IME reports and peer review reports performed in last three years is too burdensome is directed to produce all reports in first five boxes of medical records maintained alphabetically or five boxes maintained chronologically beginning with date of insured's IME

14 Fla. L. Weekly Supp. 486a

Insurance -- Personal injury protection -- Discovery -- Interrogatories -- Interrogatory requesting identification of every entity contacted by insurer or its agents regarding claim is reasonable and likely to lead to admissible evidence relevant to material misrepresentation defense -- Documents -- Privileges -- Work product -- Requested documents prepared by insurer or its agents or in their possession prior to receipt of demand letter are not protected by work product privilege -- Insurer's underwriting guidelines are not protected work product and are relevant to claim that insurer would have charged higher premium but for material misrepresentation

14 Fla. L. Weekly Supp. 490a

Insurance -- Personal injury protection -- Discovery -- Documents -- Claims of attorney-client and work product privilege are denied, and insurer is ordered to produce documents relating to determination of reasonableness of medical provider's charges, and composition, use and maintenance of databases used to determine reasonableness of provider's charges and regional charges

14 Fla. L. Weekly Supp. 167b

Insurance -- Personal injury protection -- Discovery -- Interrogatories -- Insurer is required to provide better answer to interrogatory asking for total amount of money paid by insurer or any subsidiaries in three-year period to certain entity -- Insurer is required to produce every explanation of benefits and explanation of reimbursement generated for CPT codes at issue in geozip area for three months prior to and three months after dates of service

14 Fla. L. Weekly Supp. 167a

Insurance -- Personal injury protection -- Discovery -- Interrogatories -- Insurer is required to provide better answer to interrogatory asking for total amount of money paid by insurer or any subsidiaries in three-year period to certain entity -- Insurer is required to produce every explanation of benefits and explanation of reimbursement generated for CPT codes at issue in geozip area for three months prior to and three months after dates of service

14 Fla. L. Weekly Supp. 187a

Insurance -- Personal injury protection -- Discovery -- Interrogatories -- Insurer's objection to interrogatory, which inquires into factual basis for each request for admissions not unequivocally admitted by insurer on grounds that interrogatory seeks disclosure of opinion and also seeks to have insurer prepare provider's case, is legally insufficient, groundless and improper under rule 1.340(b) -- Further, interrogatory that does not seek mental impressions, conclusions or legal theories of counsel, but only seeks opinion of party is not objectionable -- Motion to compel granted

14 Fla. L. Weekly Supp. 145c

Insurance -- Personal injury protection -- Discovery -- Failure to comply -- Sanctions -- Deprivation of jury trial right

14 Fla. L. Weekly Supp. 782a

Insurance -- Personal injury protection -- Discovery -- Sanctions

14 Fla. L. Weekly Supp. 819a

Insurance -- Personal injury protection -- Discovery -- Appeals -- On appeal of summary judgment order entered against insurer after striking of insurer's expert witness as sanction for noncompliance with discovery orders, appellate court will not determine whether information sought in interrogatories was proper or evaluate the sufficiency of insurer's answers where those issues would have been suitable for certiorari review of trial court's orders compelling better answers -- No abuse of discretion in striking expert witness where insurer was compelled four times by court order to provide answers to interrogatory regarding expert's testimony in other cases, was subjected to monetary sanctions for noncompliance twice and has yet to provide ordered response

14 Fla. L. Weekly Supp. 1095b

Insurance -- Personal injury protection -- Verdict form -- Abuse of discretion to use verdict form that did not require jury to find treatment provided was reasonable in addition to finding treatment was necessary and related to accident where form was inconsistent with jury instructions -- Jurors -- Challenge -- Cause -- Where there was reasonable doubt that juror challenged for cause could render impartial decision because juror's answers regarding objectivity toward insurance companies were equivocal and conditional, trial court erred in failing to strike juror -- Discovery -- Expert witnesses -- Failure to disclose -- Where pretrial order required parties to disclose witnesses, trial court abused its discretion by allowing undisclosed expert witness to testify to prejudice of insurer -- Remanded for new proceeding

14 Fla. L. Weekly Supp. 1037b

Insurance -- Personal injury protection -- Discovery -- Failure to comply -- Sanctions -- No abuse of discretion in entering order excluding evidence and testimony due to insurer's failure to disclose witness information where insurer exhibited continuing pattern of noncompliance with discovery orders, and trial court had admonished insurer for noncompliance and clearly warned that future noncompliance would result in sanctions tantamount to default

14 Fla. L. Weekly Supp. 78b

Insurance -- Personal injury protection -- Discovery -- Expert witnesses -- Treating physician -- Medical provider's motion for protective order against insurer's request for expert discovery information regarding treating physician's experience as expert witness is granted where physician will testify regarding medical necessity of treatment as treating physician, not as retained expert, and physician's involvement with any prior independent medical examinations or peer reviews is immaterial to medical necessity issue

14 Fla. L. Weekly Supp. 177b

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 amount, insurer must produce materials regarding use, composition, operation and maintenance of database

14 Fla. L. Weekly Supp. 177a

Insurance -- Personal injury protection -- Discovery -- Documents -- Insurer is required to produce every explanation of benefits and explanation of reimbursement generated for CPT codes at issue in geozip area for three months prior to and three months after dates of service

14 Fla. L. Weekly Supp. 176b

Insurance -- Personal injury protection -- Discovery -- Interrogatories -- Computer database used to review bills -- Insurer relying on computer database as defense in asserting that bills are unreasonable is ordered to provide information regarding underlying formula, criteria and methodology utilized to determine amount allowed, scale or schedule of reasonable billing amounts used to reduce bills, and list of medical providers in county currently billing at rates insurer elected to pay for period three months before and three months after first date of service at issue -- Insurer also required to provide name and address of any providers in county to which insurer paid higher amount during same period, with explanation for higher payment -- Defense can be waived by failure to provide this information

14 Fla. L. Weekly Supp. 124a

Insurance -- Personal injury protection -- Discovery -- Computer database used to review bills -- Certiorari challenge to interlocutory order requiring compliance with previous order that compelled discovery related to database and imposing sanctions for noncompliance with prior order -- Timeliness of petition -- Where prior order compelled production within certain time, but insurer and database owner did not seek review of that order and, instead, waited to seek appellate review until order requiring compliance and imposing sanctions was rendered one year later, petition for writ of certiorari is actually challenging initial order compelling production and is dismissed for lack of jurisdiction -- Imposition of attorney's fees as sanction for discovery violation is not subject to certiorari review

14 Fla. L. Weekly Supp. 835a

Insurance -- Personal injury protection -- Discovery -- Software used to reduce medical bills -- Appeals -- Insurer asserting certiorari challenge to order compelling production of information and documents pertaining to software and database used to reduce medical bills has not shown that discovery order will cause irreparable or material harm where insurer has option to use evidence other than computer program to support defense that amounts charged exceed reasonable amounts for services rendered -- Trial court did not depart from essential requirements of law in ordering insurer to produce underlying data upon which it based determination of reasonable charge where order does not state absolute requirement that insurer produce materials allegedly not in its possession, but merely establishes condition that if insurer wants to use program and database in defense it must produce requested discovery -- No merit to argument that medical provider is not entitled to discovery on issue because burden to prove reasonableness of charges is on provider, not insurer, where insurer raised excessiveness of charges as affirmative defense

14 Fla. L. Weekly Supp. 108a

Insurance -- Personal injury protection -- Discovery -- Failure to comply -- Sanctions -- Where insurer failed to produce underlying data for database used to review bills, database is stricken as defense

14 Fla. L. Weekly Supp. 895a

Insurance -- Personal injury protection -- Discovery -- Failure to comply -- Computer database used to review medical bills -- Where insurer has failed to produce underlying data and documents substantiating database used to review bills, database is stricken as defense

14 Fla. L. Weekly Supp. 847a

Insurance -- Personal injury protection -- Discovery -- Computer database used to review medical bills -- Trial court did not err in compelling production of manuals and documentation related to database used to review medical bills where documents were in insurer's control and possession, and insurer failed to file privilege log asserting privileged nature of documents -- Requests for production that seek identification of information, not production of documents, were improperly propounded, and trial court erred in compelling production -- No error to compel production of alleged trade secret of payments made in excess of amount allowed where insurer did not file privilege log -- Discovery order does not depart from essential requirements of law or rise to level of irreparable harm merely because compliance will require unwarranted effort and expense, but will not effectually ruin insurer's business

14 Fla. L. Weekly Supp. 669a

Insurance -- Personal injury protection -- Discovery -- Privilege -- Work product -- Privilege log filed by insurer was not legally sufficient, and court could find waiver of privilege based solely on this fact -- However, after in camera review, court determines that ISO Claim Summary Search is work product and need not be disclosed -- Documents which were not produced at time that litigation was substantial and imminent or which do not contain information meeting the definition of work product must be disclosed -- Plaintiff entitled to attorney's fees and costs incurred in seeking this order

14 Fla. L. Weekly Supp. 478a

Insurance -- Personal injury protection -- Discovery -- Privilege -- Waiver -- Insurer's work product and attorney-client privilege objections are deemed waived where insurer failed to file privilege log for more than 8 months after medical provider propounded request to produce, log produced is incomplete and confusing due to use of acronyms and abbreviations and does not contain required information necessary to distinguish between valid privileges and frivolous claims to avoid discovery, and at hearing insurer could not raise single argument that validated claim of work product privilege

14 Fla. L. Weekly Supp. 107a

Insurance -- Personal injury protection -- Discovery -- Claims adjuster's log notes -- Privilege -- Work product -- Date of demand letter triggers adversarial relationship for which subsequent entries into adjuster's notes may be privileged, as notes prepared prior to receipt of demand letter are not prepared in anticipation of litigation -- Attorney-client -- Production would not violate attorney-client privilege where only notes sought are those prepared prior to demand letter and prior to date insurer was represented by counsel, and insurer did not anticipate that it would be sued at that time

14 Fla. L. Weekly Supp. 395a

Insurance -- Personal injury protection -- Discovery -- Depositions -- Expert witness fees -- Deposition of treating physician in capacity as records custodian and fact witness on issues of whether insured was in accident and whether orthopedic and neurological treatment for which insured was referred was necessary -- Motion for expert witness fee, protective order and attorney's fees and costs is denied

14 Fla. L. Weekly Supp. 100c

Insurance -- Personal injury protection -- Discovery -- Depositions -- Sanctions -- Insurer's motion for sanctions against medical provider that objected to request to depose provider's owner is denied where insurer did not provide reasonable explanation for failing either to set deposition or file motion to compel for twelve months after provider's objection, and provider agreed to provide owner for deposition at reasonable time before hearing and did so -- Coverage -- Affirmative defenses -- Amendment -- Denial -- Motion to amend answer to assert fourteen additional affirmative defenses is denied where insurer filed motion one year after suit was filed, insurer failed to offer any explanation for delay, insurer knew or should have known of defenses at time original answer was filed or shortly thereafter, and new defenses would prejudice medical provider and inject new issues into case which were not raised in pleadings or discovery and which are calculated to cause further delay and defeat provider's motion for summary judgment with paper issues -- Conclusory defenses are insufficient as matter of law

14 Fla. L. Weekly Supp. 758a

Insurance -- Personal injury protection -- Discovery -- Depositions -- In granting motion for clarification of ruling that trial court departed from essential requirements of law by compelling deposition sought to find out how insurer determined reasonable charges, appellate court determines that issues raised in pleadings and joint pretrial statement include reasonableness of charges but maintains that reasons underlying amount insurer pays on claims is totally irrelevant because it is medical provider's burden to prove reasonableness of charges rather than insurer's burden to disprove reasonableness

14 Fla. L. Weekly Supp. 757a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 14 Fla. L. Weekly Supp. 758a

Insurance -- Personal injury protection -- Discovery -- Depositions -- Where reasonableness of medical provider's charges is not in dispute, deposition of member of insurer's steering committee to find out how insurer determined amount it would pay PIP providers seeks irrelevant information, and order compelling deposition departs from essential requirements of law -- Even if reasonableness of charges were at issue, provider would still not be entitled to take deposition because reasons and motives underlying insurer's actions are not relevant to claim for benefits

14 Fla. L. Weekly Supp. 52b

Insurance -- Discovery -- Depositions -- Failure to attend -- Sanctions -- Attorney's fees and costs awarded as sanction for failure to attend deposition

14 Fla. L. Weekly Supp. 95a

Insurance -- Personal injury protection -- Discovery -- Depositions -- Failure to attend -- Where insurer has shown deliberate and contumacious disregard of court's authority, bad faith, willful disrespect or gross indifference to court order and deliberate callousness by failing to follow three prior orders requiring insurer's claims adjuster to appear at depositions, insurer's pleadings are stricken

14 Fla. L. Weekly Supp. 52a

Insurance -- Personal injury protection -- Discovery -- Depositions -- Failure to attend -- Sanctions -- Where insured failed to appear at deposition as ordered by court, and insured's conduct has been willful, ongoing and repeated, summary judgment is granted in favor of insurer -- Costs awarded to insurer

14 Fla. L. Weekly Supp. 51a

Insurance -- Personal injury protection -- Declaratory action -- Discovery -- Depositions -- Failure to attend -- Where insured failed to cooperate with insurer in investigation of claim by failing to attend multiple depositions, including deposition ordered by court, and gave incomplete or misleading testimony regarding claims history and accident allegedly caused by phantom vehicle, no PIP coverage exists -- Insurer is relieved of all obligations to insured, any other named insured or any omnibus insured for any damages received as result of alleged accident -- Civil judgment entered against insured

14 Fla. L. Weekly Supp. 631b

Insurance -- Personal injury protection -- Default -- Vacation -- Excusable neglect -- Failure of attorney's secretary to retrieve bailiff's voice mail message advising that case would start that afternoon constitutes excusable neglect where neglect is that of secretary, not attorney, and secretary was assigned to work for three attorneys on day of trial

14 Fla. L. Weekly Supp. 569a

Insurance -- Personal injury protection -- Default -- Vacation -- Insurer who waited nearly a month after learning of entry of default to file motion to vacate did not act with due diligence -- Conduct, taken as a whole, did not amount to excusable neglect -- Motion to vacate default is denied

14 Fla. L. Weekly Supp. 646a

Insurance -- Personal injury protection -- Default is entered against insurer for failure to properly plead or otherwise defend action where insurer filed frivolous motion to dismiss for lack of standing and did not timely file responsive pleading to complaint

14 Fla. L. Weekly Supp. 825a

Insurance -- Personal injury protection -- Default -- Abuse of discretion to enter default against insurer for failure to properly serve or file answer where, although insurer could not confirm that answer was mailed, insured had actual receipt of answer by fax, and explanation that failure to file answer was due to sheer oversight does not indicate willful, contumacious or deliberate conduct

14 Fla. L. Weekly Supp. 96a

Insurance -- Personal injury protection -- Default -- Because insurer filed notice of appearance, such that default is processed through court rather than clerk and rule 1.500(b) applies, service of motion for enlargement of time did not bar entry of default where insurer was provided with notice of application for default and motion for enlargement of time was not filed before court entered default -- Vacation -- Denial -- Excusable neglect -- Mere conclusory statement that office was “bombarded” with files, without facts regarding how and when files were provided and explanation for why insurer could not review files prior to 20-day response deadline or file motion for enlargement of time at same time as notice of appearance, does not demonstrate excusable neglect -- Motion to vacate denied

14 Fla. L. Weekly Supp. 777b

Insurance -- Personal injury protection -- Default -- Mere participation in case, by participating in mediation ending in impasse, without responding to complaint is not sufficient to avoid default

14 Fla. L. Weekly Supp. 582a

Insurance -- Personal injury protection -- Declaratory judgments -- Insurer's obligation to furnish PIP log to medical provider/assignee -- Mootness -- Where provider failed to have motion to amend complaint to add count for declaratory relief based on insurer's failure to provide PIP log heard prior to court hearing and granting insurer's motion for summary judgment based on exhaustion of policy limits, provider's motion to amend and motion for summary judgment are rendered moot

14 Fla. L. Weekly Supp. 1144b

Insurance -- Personal injury protection -- Declaratory action -- Insurer's obligation to provide policy, declarations page and/or PIP log on presuit request from assignee/medical provider -- Provider may maintain action for copy of policy and declarations page, even where documents have been provided to insured

14 Fla. L. Weekly Supp. 1167b

Insurance -- Personal injury protection -- Declaratory action -- Insurer's obligation to provide policy, declarations page and/or PIP log on presuit request from assignee/medical provider -- Cancelled policy -- Where insurer is alleging that policy was not in effect at time of loss due to cancellation, voiding, or termination, provider is entitled to certified copy of declarations page and policy presuit

14 Fla. L. Weekly Supp. 1167a

Insurance -- Personal injury protection -- Declaratory action -- Insurer is required to furnish declarations page, policy and/or PIP log upon presuit request from assignee/medical provider

14 Fla. L. Weekly Supp. 867a

Insurance -- Personal injury protection -- Declaratory judgment -- Insurer's obligation to provide policy, declarations page and/or PIP log on presuit request from assignee/medical provider -- Tendering PIP log with letter stating extent of alleged coverage under policy did not satisfy insurer's obligation to provide declarations page requested by provider

14 Fla. L. Weekly Supp. 418a

Insurance -- Personal injury protection -- Declaratory judgment -- Insurer's obligation to provide PIP log upon presuit request by assignee/medical provider -- Jurisdiction -- County court has subject-matter jurisdiction over claim for declaratory relief concerning PIP log -- Standing -- Assignment -- Where insured assigned PIP benefits to provider, provider obtained all rights and benefits of insured under policy, including right to obtain PIP log -- Where without PIP log provider is unable to determine its status as claimant and whether deductible has been met, provider is entitled to PIP log

14 Fla. L. Weekly Supp. 400a

Insurance -- Personal injury protection -- Declaratory judgment -- Insurer's obligation to provide policy, declarations page and PIP log on presuit request by assignee/medical provider -- Section 627.736(6)(d) requires presuit production of PIP log to assignee/medical provider if requested -- Error to grant motion to dismiss declaratory action -- Outstanding issues in case preclude award of attorney's fees to provider

14 Fla. L. Weekly Supp. 238a

Insurance -- Personal injury protection -- Declaratory judgment -- Insurer's obligation to provide policy, declarations page and/or PIP log on presuit request from assignee/medical provider -- No error in entering summary judgment in favor of provider on claim for declaratory relief based on insurer's failure to furnish PIP log where insurer furnished some documents to provider whose claim was allegedly applied to deductible but, because documents did not contain information regarding total amount of bills applied to deductible or indicate that provider's bill was only bill received, provider was unable to determine its status as claimant with respect to whether or not deductible had been met

14 Fla. L. Weekly Supp. 108b

Insurance -- Personal injury protection -- Declaratory judgment -- Insurer's obligation to provide PIP log on presuit request from medical provider/assignee

14 Fla. L. Weekly Supp. 352a

Insurance -- Personal injury protection -- Declaratory judgment -- Insurer's obligation to provide policy, declarations page and/or PIP log on presuit request from assignee/medical provider -- Section 627.736(6)(d), which entitles insured to all information obtained by insurer from medical providers or employers, also entitles assignee/provider to such information -- Information that may be obtained under statute includes PIP log to extent it contains information obtained from medical providers or employers -- Section 627.4137, which requires production of policy to any claimant by any insurer who does or may provide liability coverage to pay any claim, requires insurer to provide copy of policy and declarations page -- No merit to argument that statute is not applicable to PIP insurer where insured's policy provides for liability coverage for bodily injury in addition to PIP coverage -- No merit to argument that statute's discovery obligation only applies to third-party claims -- Section 627.7401 merely requires that insurer send insured form notice of rights under No-Fault Act within 21 days of PIP claim and does not provide any basis for obtaining presuit discovery -- No merit to argument that insurer need not comply with presuit discovery obligations where requesting provider has knowledge of, or alternative methods of obtaining, requested information

14 Fla. L. Weekly Supp. 1157b

Insurance -- Personal injury protection -- Declaratory judgment -- Insurer is obligated to provide copy of explanation of benefits, policy and declarations page on presuit request from medical provider even if documents have been given to insured -- Motion to dismiss denied

14 Fla. L. Weekly Supp. 218a

Insurance -- Personal injury protection -- Declaratory judgment -- Jurisdiction -- County court -- Where amount in controversy did not exceed $15,000, county court had jurisdiction to hear complaint seeking only declaratory relief -- Coverage -- Medical expenses -- Reduction -- Preferred provider -- No error in entry of declaratory judgment finding that insurer is not entitled to discounted PPO rates and shall not be allowed to take PPO reductions on medical bills submitted by insured or her treating physicians where insured was reasonably in doubt regarding payment of bills and PIP policy because insurer sent documents to insured stating that bills would not be paid pursuant to no-fault law but instead would be paid pursuant to PPO agreement with Beech Street, insured's policy with insurer does not contain PPO provision, insured only became aware of fact that insurer did not actually reduce bills during discovery after commencing litigation, insurer did not provide insured with PIP log showing bills had not been reduced until after she commenced litigation, and it remained unclear whether insurer would attempt to reduce future bills pursuant to Beech Street agreement

14 Fla. L. Weekly Supp. 1144a

Insurance -- Personal injury protection -- Declaratory action -- Insurer's authority to change CPT codes

14 Fla. L. Weekly Supp. 1143b

Insurance -- Personal injury protection -- Declaratory action -- Insurer's authority to change CPT codes

14 Fla. L. Weekly Supp. 178b

Declaratory judgments -- Jurisdiction -- Insurance -- Petition stated elements for declaratory judgment pursuant to Chapter 86 -- There is genuine dispute as to plaintiff's rights under insurance contract, and petitioner properly petitioned court as to construction and validity of a statute

14 Fla. L. Weekly Supp. 1059c

Insurance -- Personal injury protection -- Complaint -- Amendment -- Futility -- Insurer's obligation to provider PIP log on presuit request from insured -- Amendment of medical provider/assignee's complaint to add count for declaratory relief based on insured's right to obtain PIP log under section 627.736(4)(b) is not rendered futile by case law addressing question of provider's right to PIP log under section 627.736(6)d) -- Motion to amend granted

14 Fla. L. Weekly Supp. 681a

Insurance -- Personal injury protection -- Declaratory judgments -- Summary judgment -- Factual issues -- Where claims adjuster's deposition testimony and affidavit state that adjuster personally sent copy of policy and declarations page to medical provider in response to presuit demand letter, motion for summary judgment on claim that insurer failed to provide documents is denied

14 Fla. L. Weekly Supp. 667a

Insurance -- Personal injury protection -- Medical provider/assignee is entitled to copy of policy and declarations page presuit, even if one was provided to insured

14 Fla. L. Weekly Supp. 583a

Insurance -- Indemnity -- Declaratory judgments -- Factual issues -- Declaratory relief is available to determine whether notice was proper under insurance policy, a fact upon which insurer's obligation to provide coverage exists

14 Fla. L. Weekly Supp. 1067a

Insurance -- Personal injury protection -- Attorneys -- Disqualification -- Prior employment -- Motion to disqualify counsel for medical providers is granted where, in prior employment by insurer, providers' attorney co-supervised attorney who represented insurer in another case that involved the same automobile accident, insured and medical providers as instant case

14 Fla. L. Weekly Supp. 389a

Insurance -- Personal injury protection -- Costs -- Guidelines -- Where amended Statewide Uniform Guidelines for Taxation of Costs in Civil Cases were not in effect when suit was filed but were in effect when insurer's right to tax costs was triggered by voluntary dismissal of case, amended guidelines apply to determination of which costs are taxable -- Deposition charges are taxable where costs were reasonably necessary for insurer to defend case

14 Fla. L. Weekly Supp. 1164a

Insurance -- Personal injury protection -- Continuance -- Motion -- Sufficiency -- Notice of unavailability

14 Fla. L. Weekly Supp. 1142a

Insurance -- Personal injury protection -- Coverage -- Insured who submitted affidavits and exhibits that demonstrated she was entitled to coverage as matter of law for an accident that occurred after binder had been issued by broker for her new vehicle, which was added to existing policy, is entitled to summary judgment -- Affidavit submitted by insurer's underwriter indicating that insured did not have coverage at time of accident because insurer did not issue policy on vehicle until after accident did not create genuine issue of fact, because it did not address temporary binding effected by insurer -- Insurer bound insured's policy in compliance with governing statute, record supports contention that broker was actual agent of insurer, and even if record did not establish actual agency, apparent agency was established

14 Fla. L. Weekly Supp. 129a

Insurance -- Automobile -- Gap policy -- Jurisdiction -- County court -- Appeal of county court's dismissal of action brought by owner of vehicle totaled in accident against defendant that did not indemnify owner pursuant to gap policy in which defendant agreed to pay owner difference between outstanding balance of car loan and vehicle's actual cash value in event of total loss, upon finding that court lacked subject matter jurisdiction to address sole remaining issue of attorney's fees and costs following entry of default and defendant's payment of damages because defendant is not insurer, but motor vehicle service agreement company -- Chapter 634, which governs motor vehicle service agreements and grants jurisdiction to circuit court for violation of statute, is not applicable because gap policy sold by defendant did not indemnify against loss caused by failure of mechanical or other component part of vehicle and, therefore, was not motor vehicle service agreement -- Rather, where gap policy indemnified owner against loss greater than value of totaled vehicle, but less than outstanding loan amount, defendant was operating as insurer outside of its authority under chapter 634 -- No merit to defendant's argument that it cannot be insurer because license as motor vehicle service agreement company prevents it from simultaneously being insurer where defendant's answer to complaint refers to “gap insurance contract” and policy refers to “gap protection” and “gap addendum” throughout -- Because defendant was acting as insurer pursuant to Insurance Code, county court erred in dismissing for lack of jurisdiction

14 Fla. L. Weekly Supp. 977b

Insurance -- Automobile -- Final judgment entered in favor of insurer in action against glass service shop

14 Fla. L. Weekly Supp. 745a

Attorney's fees -- Insurance -- Settlement -- Error to find there was no enforceable settlement agreement between medical provider and insurer for payment of attorney's fees to provider's current and former counsel where there was agreement regarding amount of fees and all that remained to be performed was mere formality of executing releases by both law firms

14 Fla. L. Weekly Supp. 724a

Attorney's fees -- Insurance -- Personal injury protection -- Voluntary dismissal -- Granting of motion to award trial-preparation expenses after voluntary dismissal is discretionary

14 Fla. L. Weekly Supp. 211a

Attorney's fees -- Insurance -- Personal injury protection -- Timeliness of motion -- Trial court erred in applying standard requiring that motion for attorney's fees be filed within reasonable time after entry of final judgment rather than bright-line rule requiring service of motion within 30 days of entry of final judgment or service of voluntary dismissal, as established by rule 1.525 -- Nevertheless, trial court's denial of motion for fees must be affirmed where final judgment has not been entered, voluntary dismissal has not been served, and parties' settlement agreement anticipates additional judicial labor to resolve matter of attorney's fees -- Medical provider is not precluded from timely filing motion for fees once final judgment is entered

14 Fla. L. Weekly Supp. 895b

Insurance -- Personal injury protection -- Attorney's fees -- Stipulated award

14 Fla. L. Weekly Supp. 1059a

Attorney's fees -- Insurance -- Personal injury protection -- Proposal for settlement -- No merit to arguments regarding ambiguity and bad faith in settlement offer -- Motion for fees filed 31 days afer filing of judgment was timely where 30th day fell on Sunday -- Motion for attorney's fees and costs granted

14 Fla. L. Weekly Supp. 842a

Attorney's fees -- Insurance -- Personal injury protection -- Proposal for settlement -- Error to deny insurer's motion for attorney's fees and costs on grounds that release contained in proposal for settlement was ambiguous as to whether acceptance of proposal would have extinguished potential uninsured or underinsured motorist claim where plain reading of entire proposal specifically limits release to actual case being litigated -- Appellate fees awarded to insurer

14 Fla. L. Weekly Supp. 877a

Attorney's fees -- Insurance -- Personal injury protection -- Prevailing insurer not entitled to fees under section 57.105, but is entitled to fees based on proposal for settlement filed in small claims PIP case

14 Fla. L. Weekly Supp. 1135a

Attorney's fees -- Insurance -- Personal injury protection -- Proposal for settlement -- Due to use of phrase “but not limited to” in general release, proposal for settlement is not sufficiently particular to meet requirements of rule 1.442 -- Motion to tax fees denied

14 Fla. L. Weekly Supp. 978b

Attorney's fees -- Insurance -- Personal injury protection -- Proposal for settlement -- Ambiguous proposal

14 Fla. L. Weekly Supp. 1100b

Attorney's fees -- Insurance -- Personal injury protection -- Proposal for settlement -- Denial -- Ambiguous proposal

14 Fla. L. Weekly Supp. 1101b

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- MRI -- Section 627.736(5)(b)(5) requires annual and cumulative calculation of MRI fee schedule adjusted annually on August 1 to account for previous year's changes ending on June 30 -- Statute does not impose penalty for submitting excessive bill, and submitting excessive bill does not bar claim -- Medical provider complied with requirement to submit itemized specification of charges by attaching completed CMS Form 1500 to demand letter -- No error in awarding attorney's fees to prevailing provider in declaratory judgment action

14 Fla. L. Weekly Supp. 1096a

Attorney's fees -- Insurance -- Personal injury protection -- Award of fees in favor of medical provider is reversed because underlying judgment in favor of provider has been reversed

14 Fla. L. Weekly Supp. 305c

Insurance -- Personal injury protection -- Attorney's fees -- Charging lien -- Where insurer had been placed on notice of claim by medical provider's former counsel for attorney's fees and costs pursuant to notice of charging lien prior to parties' entry into settlement agreement for payment of PIP benefits, settlement agreement did not absolve insurer of obligation to compensate provider's former counsel for reasonable fees and costs of representing provider prior to discharge

14 Fla. L. Weekly Supp. 1164c

Attorney's fees -- Insurance -- Personal injury protection -- Fees, costs, and prejudgment interest are awarded -- Expert witness is not entitled to compensation -- Objection to fees sought by second attorney, who did not appear at fee hearing, is sustained

14 Fla. L. Weekly Supp. 1149a

Attorney's fees -- Insurance -- Personal injury protection -- Amount

14 Fla. L. Weekly Supp. 893a

Attorney's fees -- Insurance -- Personal injury protection -- Amount

14 Fla. L. Weekly Supp. 645a

Attorney's fees -- Insurance -- Personal injury protection -- Justiciable issues -- Unsupported defense -- Attorney's fees are taxed against insurer and insurer's counsel for filing frivolous motion to dismiss for lack of standing based on alleged prior assignment to different medical provider where motion was not supported by allegations within four corners of complaint

14 Fla. L. Weekly Supp. 1135b

Attorney's fees -- Insurance -- Personal injury protection -- Justiciable issues -- Medical provider who knew or should have known it failed to submit bill to insurer prior to demand letter and that benefits were exhausted prior to suit

14 Fla. L. Weekly Supp. 23a

Attorney's fees -- Insurance -- Personal injury protection -- Justiciable issues -- Appeal of order vacating order that awarded section 57.105 fees to insurer upon finding that medical provider that filed suit two years after it had been notified that benefits were exhausted knew or should have known prior to filing suit that it did not have ripe, viable cause of action -- Abuse of discretion for successor judge to vacate predecessor's order awarding fees, based on desire for uniformity with alleged companion case, where provider demonstrated complete disregard for court's controlling precedent regarding exhaustion of benefits, there was no merit to contention that insurer waived exhaustion of benefits defense by raising defense in motion for summary judgment without having filed answer, and predecessor judge's finding that provider knew or should have known that claim was not supported by material facts or application of law was made in judgment that was not appealed and, therefore, is law of case

14 Fla. L. Weekly Supp. 588b

Attorney's fees -- Insurance -- Personal injury protection -- Justiciable issues -- Time for response to motion for section 57.105 attorney's fees is extended until after taking of depositions is concluded where documents on which motion for fees is based are inconsistent and could create confusion

14 Fla. L. Weekly Supp. 565a

Attorney's fees -- Insurance -- Personal injury protection -- Discovery -- Insurer's motion for attorney's fees for bringing action against medical provider to resolve discovery dispute is denied where provider withdrew claims that were subject of discovery requests before court action was brought

14 Fla. L. Weekly Supp. 1152c

Attorney's fees -- Insurance -- Personal injury protection -- Evidence -- Time records -- Where, due to inadequate time records kept by insured's counsel, there is confusion as to whether some work claimed by attorney was done by associate who bills at lower rate, disputed hours will be paid at lower rate -- Fee award is further reduced to compensate insurer for time required to address discrepancies in time records -- Expert witness fee, costs and prejudgment interest awarded

14 Fla. L. Weekly Supp. 821a

Attorney's fees -- Insurance -- Personal injury protection -- Expert witness -- Abuse of discretion to strike medical provider's attorney's fees expert and deny motion for fees in its entirety where there was some evidentiary support for fees in attorney's testimony regarding hourly rate and hours worked, and expert possessed educational requirements -- Any lack of experience on part of expert goes only to weight of expert's testimony, not admissibility

14 Fla. L. Weekly Supp. 500a

Insurance -- Personal injury protection -- Attorney's fees -- Discovery -- Attorney billing and time records

14 Fla. L. Weekly Supp. 176a

Attorney's fees -- Insurance -- Personal injury protection -- Proposal for settlement -- Nominal offer -- Although insurer may have had reasonable basis to conclude its exposure in case was nominal at time of making nominal settlement offer, such that offer was made in good faith, where basis for summary judgment was apparent to insurer long before parties engaged in eight months of protracted litigation, insurer's motion to tax attorney's fees and costs is denied

14 Fla. L. Weekly Supp. 1022a

Attorney's fees -- Insurance -- Personal injury protection -- Contingency risk multiplier -- Remand for specific findings of fact and conclusions of law to support application of 1.5 multiplier

14 Fla. L. Weekly Supp. 744b

Attorney's fees -- Insurance -- Personal injury protection -- Contingency risk multiplier -- Error to apply multiplier where testimony that neither medical provider's counsel nor its expert would have taken case except for prospect of multiplier and that relevant market dictated application of multiplier is insufficient to support conclusion that provider actually had difficulty obtaining counsel -- Time spent litigating entitlement to multiplier is not recoverable

14 Fla. L. Weekly Supp. 740a

Attorney's fees -- Insurance -- Personal injury protection -- Contingency risk multiplier -- Fee multiplier is not impermissible in PIP cases -- Error to apply contingency risk multiplier where there was no evidence except conclusory opinion of expert that multiplier was required for insured to obtain competent counsel at outset of case -- Where fee application is not wholly unsupported, remand for further proceedings is appropriate

14 Fla. L. Weekly Supp. 500b

Attorney's fees -- Insurance -- Personal injury protection -- Contingency risk multiplier -- Where medical provider presented evidence that provider's counsel was only local attorney willing to sue insurer and was not able to mitigate risk of nonpayment by payment of hourly fees or otherwise, that no attorney in circuit was willing to accept case without prospect of earning a multiplier, that case involved twelve affirmative defenses litigated aggressively, and that provider's likelihood of success at outset was at best 50% and more likely 25 - 40%, provider is entitled to 1.5 multiplier

14 Fla. L. Weekly Supp. 483a

Attorney's fees -- Insurance -- Personal injury protection -- Amount -- Hourly rate -- $350/hr is reasonable rate for most experienced and effective PIP plaintiff's attorney in two-county area, and $95/hr is reasonable rate for paralegal with extensive PIP and civil experience -- Contingency risk multiplier -- Where evidence established that competent counsel could not be obtained in like cases in community without multiplier despite medical provider's existing relationship with counsel, counsel was unable to mitigate risk of nonpayment, and chance of success at outset was even, multiplier of 2.0 is awarded

14 Fla. L. Weekly Supp. 476a

Attorney's fees -- Insurance -- Personal injury protection -- Amount -- Hourly rate -- $350/hr is reasonable rate for most experienced and effective PIP plaintiff's attorney in two-county area, and $95/hr is reasonable rate for paralegal with extensive PIP and civil experience -- Contingency risk multiplier -- Where evidence established that competent counsel could not be obtained in like cases in community without multiplier despite medical provider's existing relationship with counsel, counsel was unable to mitigate risk of nonpayment, and chance of success at outset was even, multiplier of 2.0 is awarded

14 Fla. L. Weekly Supp. 81a

Attorney's fees -- Insurance -- Contingency risk multiplier -- It is not appropriate to apply multiplier where there has been no testimony that insured had any difficulty retaining competent counsel in case -- Prejudgment interest, expert witness fees and costs awarded

14 Fla. L. Weekly Supp. 71b

Attorney's fees -- Insurance -- Personal injury protection -- Contingency risk multiplier -- Where medical provider was represented on purely contingent fee basis, relevant market requires contingency risk multiplier to obtain competent counsel in PIP cases, and likelihood of success for provider at outset of case was even, multiplier of 1.75 is awarded -- Costs and expert witness fees awarded

14 Fla. L. Weekly Supp. 529a

Attorney's fees -- Insurance -- Personal injury protection -- Contingency risk multiplier -- No error to award multiplier where record demonstrates relevant market required multiplier to obtain competent counsel -- Award of 2.0 multiplier was abuse of discretion where case involving equitable assignment was not novel or complex

14 Fla. L. Weekly Supp. 28b

Attorney's fees -- Insurance -- Personal injury protection -- Contingency risk multiplier -- Error to find that issue of missed independent medical examination made case complicated enough to justify multiplier where only benefits at issue were those accrued prior to scheduled IME -- Application of multiplier is not appropriate penalty for delay in paying benefits -- Difficulty of practicing PIP law and difficulty of case are factors that affect number of hours, not application of multiplier -- Error to find that multiplier was necessary for medical provider to obtain competent counsel where there is no record evidence to support conclusion that provider had difficulty finding competent counsel, and fact that counsel approached provider and there was pre-existing relationship between provider and counsel contradicts finding -- Although there is support for trial court's conclusion that insurer was arrogant in failing to timely pay benefits it legitimately owed with virtually no meaningful defense, multiplier is not to be used as punitive measure -- Length of time matter dragged on does not justify imposition of multiplier

14 Fla. L. Weekly Supp. 882b

Attorney's fees -- Insurance -- Personal injury protection -- Contingency risk multiplier -- Where insured's likelihood of success in PIP case involving numerous defenses including EUO no show issue was unlikely, insured's expert testified that he would not have taken case and only reason insured prevailed was attorney's tenacity and litigation skills, and insured's attorney attempted to mitigate risk of nonpayment by filing multiple summary judgment motions and accepting partial judgment on claim, multiplier of 2.5 is appropriate

14 Fla. L. Weekly Supp. 823a

Attorney's fees -- Insurance -- Personal injury protection -- Hours -- Abuse of discretion to award fees to insured's attorney for 20 hours less than insurer's expert testified was reasonable -- Error to calculate prejudgment interest from date other than date agreed upon by parties and to deny insured's motion for additional hearing time to consider time spent litigating issue of entitlement to fees -- Timeliness of motion -- No abuse of discretion in granting motion to enlarge time for filing motion for attorney's fees where attorney's affidavits established excusable neglect -- Contingency risk multiplier -- No abuse of discretion to award 2.0 multiplier where insured signed contingency fee agreement, and there was testimony that market required multiplier to secure competent counsel due to complexity of case and lack of competent counsel in market and that there was no way to mitigate risk of nonpayment

14 Fla. L. Weekly Supp. 803a

Attorney's fees -- Insurance -- Personal injury protection -- Alleged co-counsel for medical provider is not entitled to attorney's fees where attorney is independent of medical provider's counsel of record and did not file notice of appearance, sign any pleading, or attend any hearing or deposition and was totally unknown to opposing counsel or court until bill for fees was submitted after close of case

14 Fla. L. Weekly Supp. 523a

Insurance -- Automobile -- Cancellation -- Appeals -- Timeliness -- Insured's motion for rehearing was timely when measured by date of service rather than date of filing; therefore, appeal filed within 30 days of order on motion for rehearing was also timely filed -- Law of case doctrine did not preclude trial court from entering summary judgment on remand after entry of appellate order finding that neither party's motion for summary judgment should have been granted due to existence of factual issues where appellate court's statement was not decision on question of law, and record before trial court following remand was different from record on appeal -- Insured is estopped from arguing on appeal that disputed issues of fact regarding cancellation of policy exist that precluded entry of summary judgment for insurer where insured argued to trial court that no material issues of fact existed on that issue -- No error in denying insured's motion for rehearing seeking to amend complaint to plead promissory estoppel where insured could not have pled viable estoppel theory -- Attorney's fees -- Appellate -- Justiciable issues -- Motion for section 57.105 fees is denied for failure to afford safe harbor period to insured

14 Fla. L. Weekly Supp. 742a

Insurance -- Attorney's fees -- Appellate

14 Fla. L. Weekly Supp. 25a

Attorney's fees -- Insurance -- Personal injury protection -- Contingency risk multiplier -- Although there was conclusory testimony from medical provider's expert that expert would not have taken case but for prospect of multiplier and that market requires multiplier, in absence of testimony from provider regarding difficulty in obtaining competent counsel, Quanstrom requirement that relevant market requires multiplier to obtain competent counsel is not met -- Further, fact that provider had long-standing relationship with counsel tends to negate notion that provider had difficulty obtaining competent counsel in case -- Trial court's ruling that provider's counsel attempted to mitigate risk of nonpayment but was unable to do so is not supported by record where counsel did not provide meaningful evidence that provider was unable to pay hourly fee, counsel did not even attempt to obtain hourly fee from provider, and long-standing relationship between provider and counsel would justify long-standing retainer agreement -- In absence of express holding that multipliers cannot be applied in PIP cases, court declines to conclude that supreme court's decision in Sarkis case removes ability to seek multiplier in all PIP cases -- Hours -- Where provider prevailed on claim for only one of two dates of service at issue, trial court erred in deducting hours spent after entry of final summary judgment from fee award but failing to make further deduction for provider's losing claim -- No merit to argument that insurer waived issue by failing to seek rehearing of judgment awarding fees where court did not reserve jurisdiction on any issue and, therefore, neither objection nor motion for rehearing was necessary to challenge sufficiency of evidence

14 Fla. L. Weekly Supp. 668b

Insurance -- Personal injury protection -- Standing -- Assignment -- Document purporting to be an assignment was not binding on insurer where document was not signed and dated by provider, as specifically required by document -- Insurer did not waive defense of invalid assignment by waiting until 3 years after suit was filed to set hearing on motion for summary judgment where defense was raised in answer and amended answer, and insurer established that it originally received completely blank assignment form and waited until after provider produced more fully completed, but unexecuted, form in response to request for production before bringing motion for summary judgment before court

14 Fla. L. Weekly Supp. 919a

Insurance -- Personal injury protection -- Standing -- Assignment -- Dispute between insured and insurer -- Error to enter summary judgment finding insured executed valid assignment of benefits to medical provider where assignment is missing critical terms, including name of provider and insurer, and provider testified that he did not consider assignment complete without missing terms

14 Fla. L. Weekly Supp. 1170a

Insurance -- Personal injury protection -- Standing -- Assignment -- Validity -- “Consent to Treatment and Authorizations Guarantee” is assignment of benefits -- Pre-suit request for copy of declarations page, PIP log or information normally compiled therein, and policy must be honored by insurer -- Coverage -- Exhaustion of policy limits -- Priority of payments -- Hospital lien not recorded within ten days of insured's discharge from hospital was not timely recorded and should not have taken priority over medical provider's bills which were received by insurer prior to receipt of actual hospital bill

14 Fla. L. Weekly Supp. 485b

Insurance -- Personal injury protection -- Standing -- Assignment -- Validity -- Assignment not specifically naming doctors that treated insured and filed claim, but naming hospital where treatment was provided, is legally sufficient

14 Fla. L. Weekly Supp. 187b

Insurance -- Personal injury protection -- Standing -- Assignment -- Validity -- Language of assignment clearly and unambiguously shows intention of insured to assign PIP benefits to medical provider in exchange for medical services rendered -- Provider's provision of assignment to insured for his signature, treatment of insured, submission of bills to insurer, and filing of suit against insurer indicates intention of provider to accept assignment of benefits -- Assignment is valid despite absence of provider's signature and date of execution -- Insurer may lack standing to attack formation of assignment to which it was not party

14 Fla. L. Weekly Supp. 171a

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 calculation reveals insurer paid medical provider less than allowable amount for MRI -- No merit to argument that no CPI adjustment for 2002 was due because 2002 statute erroneously referred to nonexistent CPI for State of Florida where 2003 amendment clarified that payments were to be adjusted to CPI for south region -- No merit to arguments that assignment from insured is not valid and that provider failed to comply with disclosure and acknowledgment form and demand letter requirements

14 Fla. L. Weekly Supp. 170a

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 calculation reveals insurer paid medical provider less than allowable amount for MRI -- No merit to argument that no CPI adjustment for 2002 was due because 2002 statute erroneously referred to nonexistent CPI for State of Florida where 2003 amendment clarified that payments were to be adjusted to CPI for south region -- No merit to arguments that assignment from insured is not valid and that provider failed to comply with disclosure and acknowledgment form and demand letter requirements

14 Fla. L. Weekly Supp. 1043b

Insurance -- Personal injury protection -- Standing -- Assignment -- Equitable -- Where at time of emergency treatment insured was unable to sign Consent to Treatment and Authorizations Guarantee form because of injury to arm, and insured filed affidavit indicating his intention to assign benefits, trial court erred in failing to find equitable assignment

14 Fla. L. Weekly Supp. 1042a

Insurance -- Personal injury protection -- Summary judgment -- Opposing affidavit -- Error to refuse to consider opposing affidavit because it was not in court file because rule only requires that affidavit be served on opposing counsel two business days before hearing, and this was done -- Standing -- Assignment -- Document is not assignment or equitable assignment where document states that insured is still responsible for charges, and insured asserted in affidavit that he did not authorize medical provider to file suit against insurer and that he made payments to provider -- Error to enter summary judgment in favor of provider who was not assignee of insured on count for declaratory relief regarding insurer's failure to provide declarations page, policy and PIP log to provider presuit

14 Fla. L. Weekly Supp. 877b

Insurance -- Personal injury protection -- Standing -- Assignment -- Dispute between insured and insurer -- Where insured assigned PIP benefits to medical provider in assignment providing that it could only be revoked by written consent of provider, alleged revocation not signed by provider is invalid, and insured lacks standing to bring suit against insurer

14 Fla. L. Weekly Supp. 389b

Insurance -- Personal injury protection -- Standing -- Assignment -- Revocation -- Where insured assigned benefits to one of medical providers whose bills were subject of insured's suit against insurer and did not execute revocation of assignment until after filing suit, insured lacked standing to bring claim for that provider's services -- Partial summary judgment granted in favor of insurer

14 Fla. L. Weekly Supp. 810b

Insurance -- Personal injury protection -- Standing -- Assignment -- “Patient Authorization for Direct Payment without Assignment” contained inconsistent language and created doubt as to whether document was valid assignment -- Error to enter summary judgment in favor of provider

14 Fla. L. Weekly Supp. 984a

Insurance -- Personal injury protection -- Standing -- Assignment -- Where assignment was made to corporate entity distinct from plaintiff medical provider, there is no equitable assignment to plaintiff, and plaintiff lacks standing to bring suit

14 Fla. L. Weekly Supp. 769a

Insurance -- Personal injury protection -- Standing -- Assignment -- Equitable -- Where insured filed affidavit stating that he was minor at time of accident, that medical condition prevented him from signing assignment at emergency room, and that it was and is his intent to assign PIP benefits to emergency room doctors, there is evidence of equitable assignment sufficient to defeat insurer's motion for summary judgment

14 Fla. L. Weekly Supp. 305d

Insurance -- Personal injury protection -- Arbitration -- Motion to dispense with arbitration is denied where it is not clear that facts as to fee-splitting defense are undisputed

14 Fla. L. Weekly Supp. 584b

Insurance -- Personal injury protection -- Arbitration -- Enforcement of decision

14 Fla. L. Weekly Supp. 656a

Arbitration -- Award -- Enforcement -- Where parties informed trial court that they had settled dispute after service of arbitrator's decision but failed to file proposed judgment or settlement agreement or request trial de novo within twenty days after service of decision, court is required to enter judgment in accordance with decision

14 Fla. L. Weekly Supp. 102a

Insurance -- Personal injury protection -- Arbitration -- Where parties failed to timely request trial de novo, final judgment is entered on arbitrator's decision

14 Fla. L. Weekly Supp. 98a

Insurance -- Personal injury protection -- Arbitration -- Trial de novo -- Timeliness of request -- Even if arbitrator announced what decision would be at arbitration proceeding, time period to seek trial de novo did not begin until service of written decision -- Where insurer served motion for trial de novo before service of written decision, parties failed to timely make request for trial de novo, and court is required to enter judgment in accordance with decision

14 Fla. L. Weekly Supp. 1062a

Insurance -- Personal injury protection -- Attorney's fees -- Arbitration -- By stipulation, binding arbitration is set on issue of contingency risk multiplier and costs

14 Fla. L. Weekly Supp. 856a

Insurance -- Homeowners -- Appraisal award -- Confirmation -- Denial -- Where parties opted to use voluntary appraisal process established in insurance policy to resolve dispute as to amount of loss, appraisals were conducted, and amount of loss was set and paid, there is no need or legal basis for court to grant motion to confirm appraisal award

14 Fla. L. Weekly Supp. 855a

Insurance -- Homeowners -- Appraisal award -- Confirmation -- Denial -- Where parties opted to use voluntary appraisal process established in insurance policy to resolve dispute as to amount of loss, appraisals were conducted, and amount of loss was set and paid, there is no need or legal basis for court to grant motion to confirm appraisal award

14 Fla. L. Weekly Supp. 317a

Insurance -- Personal injury protection -- Application -- Misrepresentations -- Insurer that failed to return premiums to insured in timely manner waived right to raise material misrepresentation defense

14 Fla. L. Weekly Supp. 138a

Insurance -- Personal injury protection -- Application -- -Misrepresentations -- Error to enter summary judgment in favor of insured where insurer's defenses raised disputed issues of fact as to whether insured made misrepresentations or false statements on application or knew of false statements yet allowed them to be made, whether false statements would have affected coverage or amount of premium, whether misrepresentation is legally material to loss, and whether insurer waived right to rescind policy by not reimbursing premium

14 Fla. L. Weekly Supp. 98b

Insurance -- Personal injury protection -- Material misrepresentation on application -- Signature on non-business use statement -- Insured did not, as matter of law, drive her vehicle for business use, delivery, or for a commercial purpose where she worked as nurse's assistant who traveled to her patients' residences to care for them, but did not transport patients in her vehicle

14 Fla. L. Weekly Supp. 16a

Insurance -- Personal injury protection -- Application -- Misrepresentation -- Error to find that insurer's only remedy for material misrepresentation on application for PIP policy was prospective cancellation because retroactive right to rescission of PIP policy under section 627.409 was abrogated by passing of Florida Automobile Reparations Act, which mandated certain types of no fault insurance coverage for all drivers -- Precedent case law construes section 627.409 as applying to PIP policies, and there is absence of express legislative intent in Act abrogating remedy of rescission -- However, judgment in favor of insured is affirmed -- Failure to disclose licensed family member on application was not material misrepresentation because insurer would still have issued policy, albeit at higher premium, if additional driver had been disclosed, and claim does not relate to undisclosed driverWITHDRAWN at14 Fla. L. Weekly Supp. 360b

14 Fla. L. Weekly Supp. 1018b

Insurance -- Personal injury protection -- Application -- Misrepresentations -- Failure to disclose licensed driver of household over age 14 -- Rescission -- Where insured failed to disclose that nephew resided in household, and misrepresentation altered premium, insurer could rescind policy as defense based on material misrepresentation -- Waiver -- Error to enter final summary judgment based on finding that insurer waived right of rescission by waiting unreasonable time, 14 months after examination under oath, to cancel policy where there is no evidence in record that insurer continued to bill or accept payment from insured after learning of material misrepresentation -- Moreover, material issues of fact exist as to when insured was notified of policy's rescission and whether misrepresentation regarding nephew. who lived with insured for a year and half but who was not residing with insured at time of application or at time of EUO. was material

14 Fla. L. Weekly Supp. 360b

Insurance -- Personal injury protection -- Application -- Misrepresentation -- Error to find that insurer's only remedy for material misrepresentation on application for PIP policy was prospective cancellation because retroactive right to rescission of PIP policy under section 627.409 was abrogated by passing of Florida Automobile Reparations Act, which mandated certain types of no fault insurance coverage for all drivers -- Precedent case law construes section 627.409 as applying to PIP policies, and there is absence of express legislative intent to abrogate remedy of rescission -- However, judgment in favor of insured is affirmed -- Although premium charge for failure to list additional driver may constitute material misrepresentation, where failure to disclose additional driver was only misrepresentation made, insurer would still have issued policy at minimally higher premium if additional driver had been disclosed, claim does not relate to undisclosed driver, and there was seven-month delay in returning premium after discovery of misrepresentation, failure to disclose is not material so as to void coverage

14 Fla. L. Weekly Supp. 189b

Insurance -- Personal injury protection -- Application -- Misrepresentations -- Where insurer did not refund premium, insurer had ability to investigate application for defects at any time after application was completed but chose not to do so, and insurer failed to disclose or allege misrepresentation defense until after claim had already been denied defeats, partial summary judgment on material misrepresentation defense is granted in favor of medical provider -- Insurer's responses to interrogatories cannot be considered in opposition to motion for summary judgment where responses were never filed with court or identified as summary judgment evidence

14 Fla. L. Weekly Supp. 134a

Insurance -- Personal injury protection -- Application -- Misrepre-sentations -- Error to grant summary judgment in favor of insurer on affirmative defense of material misrepresentation by listing as unlicensed a spouse who had restricted driver's license where policy's failure to define “driver's license” created issue of material fact as to interpretation of term -- Although trial court denied motion to amend original answer and affirmative defenses, which asserted defense of misrepresentation by failure to list all household residents, to assert misrepresentation by failure to disclose spouse's licensure, because denial of motion to amend was without prejudice, court was within its right to reconsider and allow amended affirmative defense in considering motion for summary judgment

14 Fla. L. Weekly Supp. 570a

Insurance -- Personal injury protection -- Application -- Material misrepresentations -- Insurer's remedy of rescission for material misrepresentation in application for PIP policy is irreconcilable with mandatory requirements of No-Fault Law and was abolished thereby -- Insurer cannot avoid liability on ground that policy did not exist at time of loss because it was cancelled ab initio due to insured's failure to list son with restricted license as member of household -- Question certified whether cancellation of no fault insurance policy can be effective ab initiio in light of mandatory requirements imposed by Florida No Fault Law

14 Fla. L. Weekly Supp. 868b

Insurance -- Personal injury protection -- Application -- Misrepresentations -- Where only sworn affidavit to be considered on defense of material misrepresentation is that of insured, summary judgment is granted in favor of medical provider

14 Fla. L. Weekly Supp. 410b

Insurance -- Automobile -- Application -- Misrepresentations -- Summary judgment -- Factual issues -- Where evidence submitted by insurer regarding alleged material misrepresentation of failing to list household resident over age 15 on application does not clearly and conclusively establish that material misrepresentation occurred which affected risk assumed by insurer but, rather, conflicting evidence requires weighing of answers and credibility of witnesses, trial court erred in entering summary judgment in favor of insurer

14 Fla. L. Weekly Supp. 498b

Insurance -- Personal injury protection -- Application -- Material misrepresentations -- Business use -- Travel to lunch -- Insurer's motion for final summary judgment is denied where examination under oath in which insured admitted that accident occurred while driving to lunch from work is inadmissible and if admissible does not establish absence of genuine issues of fact, insurer has not provided evidence that all premiums were returned to insured, insurer's motion fails to identify where definition of “business use” is found in documents, insurer failed to present evidence that insured used vehicle for anything related to employment other than to commute to work which is considered personal use, and effect of insurer admitting all admissions in medical provider's request for admissions is to admit provider's entitlement to PIP benefits, interest and attorney's fees

14 Fla. L. Weekly Supp. 232a

Insurance -- Personal injury protection -- Exhaustion of benefits -- Discovery -- PIP log -- Where insurer denied payment of medical bill on ground that PIP benefits were exhausted, provider was entitled to pre-suit production of PIP log to enable it to determine the date benefits were exhausted and the date that provider's bill was received

14 Fla. L. Weekly Supp. 516a

Insurance -- Personal injury protection -- Appeals -- Non-final order -- Order granting motion for summary judgment, which does not actually enter judgment for party, is non-final non-appealable order -- Attorney's fees -- Appellate -- Medical provider is entitled to award of appellate attorney's fees where appeal commenced by insurer was dismissed without decision on merits