Volume 16

16 Fla. L. Weekly Supp. 1149b

Online Reference: FLWSUPP 1612WALT

Insurance -- Workers' compensation -- First party bad faith action -- Discovery -- Work product -- Attorney-client privilege -- Comments in workers' compensation adjuster's notes regarding communications between carrier and its attorney discussing management of underlying workers' compensation claim and how to defend it before workers' compensation court are redacted from documents produced before delivery to plaintiff

16 Fla. L. Weekly Supp. 140b

Online Reference: FLWSUPP 162ALVAR

Civil procedure -- Insurance -- Summary judgment -- Error to fail to consider opposing affidavit when deciding issues related to damages on motion for summary judgment

16 Fla. L. Weekly Supp. 1050a

Online Reference: FLWSUPP 1611KROE

Insurance -- Proposal for settlement -- Motion to compel enforcement of settlement agreement is denied where entry of final summary judgment terminated proposal for settlement prior to plaintiff's acceptance of proposal 

16 Fla. L. Weekly Supp. 240a

Online Reference: FLWSUPP 163MURRA

Insurance -- Commercial property -- No merit to insurer's claim that business's recovery for new property damaged in hurricane is limited to costs of repair or replacement where clauses relied upon by insurer are limited by their terms to valuation of used property, and separate clause provides for valuation of new property at cost price to insured plus freight charges and assembly costs actually incurred

16 Fla. L. Weekly Supp. 212a

Online Reference: FLWSUPP 163FINAL

Insurance -- Personal injury protection -- Continuance -- Denial -- Error to deny motion for continuance of hearing on motion for summary judgment to allow medical provider to complete discovery and file deposition transcripts in opposition to summary judgment

16 Fla. L. Weekly Supp. 222b

Online Reference: FLWSUPP 163HODGE

Insurance -- Personal injury protection -- Peer review report -- Civil procedure -- Error to strike peer review report and doctor's affidavit which was attached to and made part of defendant's affidavit in opposition to plaintiff's motion for summary judgment -- Error to exclude peer review doctor as witness solely on ground that he conducted peer review that did not comply with section 627.736 -- Errors were harmless

16 Fla. L. Weekly Supp. 572b

Online Reference: FLWSUPP 166SANTA

Insurance -- Personal injury protection -- Stay -- Case is stayed pending resolution of appellate case, and insurer is required to escrow disputed benefits during stay

16 Fla. L. Weekly Supp. 596a

Online Reference: FLWSUPP 166HERAR

Insurance -- Personal injury protection -- Standing -- Assignment -- Where only assignment of benefits for treatment of named insured's minor child in existence at time of filing suit was signed by child's adult sister, medical provider did not have valid assignment and, therefore, did not have standing to file suit -- Provider's motion to amend complaint to attach assignment is denied where neither assignment signed by sister nor later assignment signed by named insured after suit was filed was valid assignment -- Motion to dismiss granted

16 Fla. L. Weekly Supp. 618b

Online Reference: FLWSUPP 167OVALL

Insurance -- Personal injury protection -- Standing -- Assignment -- Remand for trial on merits pursuant to district court of appeal's reversal of summary judgment which was erroneously entered despite ambiguity of assignment which caused issues of material fact to remain in dispute

16 Fla. L. Weekly Supp. 702a

Online Reference: FLWSUPP 168CONTI

Insurance -- Personal injury protection -- Reimbursement by insurer of commercial vehicle -- Where insured of PIP carrier was injured in accident while driving taxicab which was insured through commercial motor vehicle policy, PIP carrier is entitled to reimbursement of PIP benefits pursuant to section 627.7405, which allows for reimbursement to PIP carriers of private passenger vehicles by insurer of commercial vehicles involved in accident -- No merit to argument that taxicab is not commercial motor vehicle -- By terms of PIP statute, right of reimbursement remains applicable notwithstanding section 627.733(1)(b), which excludes taxicabs from security requirements of No-Fault Law

16 Fla. L. Weekly Supp. 868a

Online Reference: FLWSUPP 169STAT3

Insurance -- Personal injury protection -- Reimbursement by insurer of commercial vehicle

16 Fla. L. Weekly Supp. 469a

Online Reference: FLWSUPP 165DISCO

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

16 Fla. L. Weekly Supp. 1173a

Online Reference: FLWSUPP 1612MARU

Insurance -- Personal injury protection -- Pretrial exhibit list using overly broad “any and all” language is stricken

16 Fla. L. Weekly Supp. 103a

Insurance -- Personal injury protection -- No merit to argument that insurer was required to pay 10% penalty not just on benefits due, but on benefits plus interest

16 Fla. L. Weekly Supp. 854b

Online Reference: FLWSUPP 169LEVY

Insurance -- Personal injury protection -- Notice of loss -- Disclosure and acknowledgment form -- Where medical provider used self-generated D&A form rather than standard form adopted by the Department of Financial Services, and insured did not sign D&A form on initial date of treatment, provider did not provide insurer with notice of covered loss

16 Fla. L. Weekly Supp. 93a

Insurance -- Personal injury protection -- Notice of loss -- Disclosure and acknowledgment form -- Nothing in sections 627.736(4) or (5) suggests that D&A form is written notice of covered loss or that failure to provide form precludes payment to medical provider -- No merit to argument that section 627.736(5)(e) is rendered useless in absence of remedy for insurer for not providing form where statute serves purpose of insuring informed consent of patient to services rendered -- Motion for rehearing denied

16 Fla. L. Weekly Supp. 92b

Insurance -- Personal injury protection -- Notice of loss -- Disclosure and acknowledgment form -- Nothing in sections 627.736(4) or (5) suggests that D&A form is written notice of covered loss or that failure to provide form precludes payment to medical provider -- No merit to argument that section 627.736(5)(e) is rendered useless in absence of remedy for insurer for not providing form where statute serves purpose of insuring informed consent of patient to services rendered -- Motion for rehearing denied

16 Fla. L. Weekly Supp. 37b

Insurance -- Personal injury protection -- Notice of loss -- Disclosure and acknowledgment form -- Insurer did not waive right to raise affirmative defense of failure to submit D&A form by failing to issue explanation of benefits

16 Fla. L. Weekly Supp. 176a

Online Reference: FLWSUPP 162TYSON

Insurance -- Personal injury protection -- Notice of loss -- Disclosure and acknowledgment form -- Medical provider that did not furnish D&A form to insurer failed to provide written notice of covered loss -- Insurer is not estopped from asserting D&A form defense by initialing paying claims and then denying further payment based on independent medical examination -- Medical provider opposing motion for summary judgment concerning failure to provide D&A form must present counter-evidence sufficient to reveal genuine issue of material fact, not merely assert that issue exists

16 Fla. L. Weekly Supp. 351a

Online Reference: FLWSUPP 164MITIA

Insurance -- Personal injury protection -- Notice of loss -- Disclosure and acknowledgment form is legally sufficient where form lists service as “physical therapy” and attached HCFA form and medical records list actual CPT codes rendered

16 Fla. L. Weekly Supp. 867a

Online Reference: FLWSUPP 169LOPEZ

Insurance -- Personal injury protection -- Notice of loss -- Disclosure and acknowledgment form that listed “initial visit” as services rendered on first date of treatment substantially complied with statutory D&A form requirement where CMS-1500 form and medical records fully listing specific therapies rendered were submitted with D&A form

16 Fla. L. Weekly Supp. 772a

Online Reference: FLWSUPP 168LYNAM

Insurance -- Personal injury protection -- Notice of loss -- Acknowledgment and disclosure form -- Sufficiency -- D&A form describing services as “evaluation new patient & therapy” was sufficient to describe services that included physical therapy evaluation, manual therapy, ultrasound and E-Stim -- Medical provider was not required to list all four therapy services individually on form

16 Fla. L. Weekly Supp. 347a

Online Reference: FLWSUPP 164BISTL

Insurance -- Personal injury protection -- Notice of loss -- Disclosure and acknowledgment form on which medical provider wrote “Consult/Procedure” and to which provider attached bills did not set forth services actually rendered and, therefore, did not provide insurer with notice of loss

16 Fla. L. Weekly Supp. 754a

Online Reference: FLWSUPP 168BLACK

Insurance -- Personal injury protection -- Notice of loss -- Disclosure and acknowledgment form -- Where medical provider was given notice that D&A form, which lacked list of services actually rendered, was so deficient as to not put insurer on notice of covered loss, provider was required to correct deficiency before statements sent to insurer for subsequent dates of treatment could legally put insurer on notice of loss -- Provider's concern that insurer would refuse to pay any bills regardless of resubmission of properly completed D&A form was premature and unwarranted

16 Fla. L. Weekly Supp. 857a

Online Reference: FLWSUPP 169ELLER

Insurance -- Personal injury protection -- Notice of loss -- Disclosure and acknowledgment form -- Medical provider's submission of D&A form that did not contain description of medical services rendered did not permanently forfeit provider's right to be paid for medical services -- Provider's resubmission of properly completed D&A form constitutes substantial compliance with statutory D&A form requirement -- No merit to argument that insurer is only required to pay for services rendered within 35 days of receipt of resubmitted D&A form where at time resubmission was received insured had completed all treatment and all statements of charges had been submitted to insurer on timely basis

16 Fla. L. Weekly Supp. 755a

Online Reference: FLWSUPP 168YOUN2

Insurance -- Personal injury protection -- Notice of loss -- Disclosure and acknowledgment form -- PIP statute does not allow insurer to raise deficiency of D&A form as defense after payment of claim -- No merit to argument that even if insurer can raise deficient D&A form as defense, payment of claim waived defense as to incompleteness of form -- Both waiver and estoppel would prevent insurer from raising defense that form was deficient because fax copy rather than original was sent to insurer where insurer gave permission for fax and paid claim -- Question certified: Does section 627.736(4)(b) allow an insurer to assert at any time, including after payment of the claim or after the 30-day time period for payment set forth in subsection (4)(b), that a claim violates any of the requirements set forth in subsection (5)

16 Fla. L. Weekly Supp. 1155b

Online Reference: FLWSUPP 1612ROO2

Insurance -- Personal injury protection -- Notice of loss -- Disclosure and acknowledgment form that described services as “consult, exam, x-rays, therapy, biofreeze, hot pk” was not deficient for failing to specifically list all services performed or for listing consult service not reflected in medical notes -- Even if D&A form did not list services provided, insurer would continue to be liable for services rendered after initial date of service

16 Fla. L. Weekly Supp. 175c

Online Reference: FLWSUPP 162LAHOD

Insurance -- Personal injury protection -- Notice of loss -- Disclosure and acknowledgment form -- Medical provider that provided insurer with self-generated D&A form that lacked physician's affirmations, failed to identify services provided and was not standard form promulgated by Department of Financial Services did not provide insurer with notice of covered loss -- Insurer did not waive defective D&A form defense by asserting in explanation of benefits that denial of claim was based on peer review/independent medical examination

16 Fla. L. Weekly Supp. 1081d

Online Reference: FLWSUPP 1611LAZA

Insurance -- Personal injury protection -- Notice of loss -- Disclosure and acknowledgment form -- Use of self-generated D&A form that fails to contain required language of standard form promulgated by Department of Financial Services failed to place insurer on notice of covered loss -- No merit to argument that defective D&A form only invalidates claim for initial date of service

16 Fla. L. Weekly Supp. 683a

Online Reference: FLWSUPP 167OSHEA

Insurance -- Personal injury protection -- Notice of loss -- Disclosure and acknowledgment form requirement applies only to first date of service and failure to submit form is not fatal to entire claim

16 Fla. L. Weekly Supp. 773a

Online Reference: FLWSUPP 168EBNER

Insurance -- Personal injury protection -- Disclosure and acknowledgment form -- Sufficiency -- Failure to comply with requirement to submit sufficient D&A form for initial date of service is fatal to medical provider's entire claim -- Listing of CPT codes on D&A form does not satisfy requirement to describe services actually rendered -- Patient's signing of treatment records does not satisfy requirement that patient countersign D&A form attesting to fact that services described were actually rendered -- D&A form signed by physician one day after treatment was rendered is deficient where statute requires that provider sign form before patient countersigns form -- Motion for summary judgment granted

16 Fla. L. Weekly Supp. 355a

Online Reference: FLWSUPP 164VICTO

Insurance -- Personal injury protection -- Notice of loss -- Disclosure and acknowledgment form -- No merit to insurer's claim that medical provider forfeited right to benefits by providing D&A form that failed to define actual services provided where D&A form with attached CMS 1500 and notes for treatment substantially complied with statute and placed insurer on notice of actual services provided; there is no prejudice to insurer, which conceded that treatment was reasonable, related and necessary; D&A form is not condition precedent to filing suit; insurer did not cite defective D&A form in explanation of benefits, and provider submitted second D&A form that described actual services provided

16 Fla. L. Weekly Supp. 1155a

Online Reference: FLWSUPP 1612PIER

Insurance -- Personal injury protection -- Notice of loss -- Disclosure and acknowledgment form -- Where medical provider submitted self-generated D&A form that transcribed D&A form adopted by Office of Insurance Regulation verbatim except for state seal and Office's name at top of form, form substantially complied with section 627.736(5)(e) and provided notice of covered loss

16 Fla. L. Weekly Supp. 347b

Online Reference: FLWSUPP 164MONGA

Insurance -- Personal injury protection -- Notice of loss -- Disclosure and acknowledgment form -- Where it is undisputed that PIP policy had effective date well before sunset of PIP statute, D&A form requirement applies even though statute had sunset and was not in effect at time of initial date of service -- No merit to argument that defects in D&A form can be overlooked where bills and records are sent contemporaneously -- Further, resubmission of D&A form with changes made to description of services after form was signed does not comply with requirement that patient attest that services were actually rendered -- No merit to argument that defective D&A form affects only first date of service; form is prerequisite to billing -- Summary judgment entered in favor of insurer

16 Fla. L. Weekly Supp. 444a

Online Reference: FLWSUPP 165VILLA

Insurance -- Personal injury protection -- Notice of loss -- Disclosure and acknowledgment form requirement applies to initial date of service only

16 Fla. L. Weekly Supp. 433b

Online Reference: FLWSUPP 165SCHUL

Insurance -- Personal injury protection -- Notice of loss -- Disclosure and acknowledgment form -- Description of service provided as “chiropractic treatment” on D&A form does not substantially comply with statutory requirement -- Noncompliant D&A form only allows insurer to withhold payment for initial date of service where medical provider complied with all statutory requirements for claims for subsequent treatment

16 Fla. L. Weekly Supp. 114b

Insurance -- Personal injury protection -- Notice of loss -- Disclosure and acknowledgment form that failed to identify services actually rendered did not provide notice of covered loss -- No merit to argument that failure to provide properly completed D&A form impacts only initial date of service and not entire claim

16 Fla. L. Weekly Supp. 918a

Online Reference: FLWSUPP 1610GAIT

Insurance -- Personal injury protection -- Independent medical examination -- Failure to attend -- Trial court erred in entering summary judgment in favor of insurer based on insured's failure to attend second, chiropractic IME after insurer terminated benefits based on earlier IME performed by medical doctor -- Whether request to attend chiropractic IME was reasonable is at best question of fact precluding summary judgment where IME could have no effect on benefits because benefits were already terminated and insured received no chiropractic benefits

16 Fla. L. Weekly Supp. 338a

Online Reference: FLWSUPP 164MADRI

Insurance -- Personal injury protection -- Independent medical examination -- Failure to appear -- Where insured provided excuse for nonappearance at IMEs and cooperated with insurer by attending examination under oath, factual issue exists as to whether insured unreasonably refused to submit to IME -- Defendant's motion for partial summary judgment denied

16 Fla. L. Weekly Supp. 199b

Online Reference: FLWSUPP 162FIGEU

Insurance -- Personal injury protection -- Independent medical examination -- Failure to attend -- Notice -- Where insurer that received representation letter from insured's attorney specifically requesting notice of IME failed to send notice of IME to attorney, insured had no obligation to attend IME -- No merit to argument that insurer was not required to provide notice to attorney where representation letter and IME notice sent to insured crossed in mail; insurer was required to provide notice to attorney once it received representation letter

16 Fla. L. Weekly Supp. 953a

Online Reference: FLWSUPP 1610TUCK

Insurance -- Personal injury protection -- Independent dental examination -- Refusal to submit to exam -- Provision of PIP statute governing location of independent medical examinations did not apply where insured's PIP benefits had been exhausted at time insurer requested IME, and only med pay coverage was available to pay dental bills -- Where policy does not restrict IME location, insurer did not act unreasonably in requiring insured to attend IME in location other than city and county of residence -- Where it is undisputed that insured traveled to IME location but then refused to submit to exam, and insured previously appeared for IME and then refused to allow IME to be performed, refusal was unreasonable

16 Fla. L. Weekly Supp. 271a

Online Reference: FLWSUPP 163MALAV

Insurance -- Personal injury protection -- Explanation of benefits -- Compliance with insurer's request in EOB for legible, identifiable office notes was condition precedent to suit for PIP benefits -- Insurer was entitled to ask for and obtain documents even if medical provider contends that documents had already been submitted

16 Fla. L. Weekly Supp. 682a

Online Reference: FLWSUPP 167SALGA

Insurance -- Personal injury protection -- Explanation of benefits -- Letter which suspended benefits due to independent medical examination and stated that some or all charges were not reasonable, but which did not identify which specific charges were not reasonable and did not itemize each charge received and identify why it was not paid, was not legally compliant EOB

16 Fla. L. Weekly Supp. 595a

Online Reference: FLWSUPP 166KEEN

Insurance -- Personal injury protection -- Explanation of benefits -- Where it is undisputed that insurer wrongfully failed to provide EOB to medical provider, provider is entitled to nominal damages and reasonable attorney's fees and costs

16 Fla. L. Weekly Supp. 576b

Online Reference: FLWSUPP 166PLANT

Insurance -- Personal injury protection -- Explanation of benefits -- Where insurer breached contract by failing to provide EOB within thirty days of receipt of bills, medical provider is awarded nominal damages of $1.00, attorney's fees and costs

16 Fla. L. Weekly Supp. 663a

Online Reference: FLWSUPP 167PAUL

Insurance -- Personal injury protection -- Explanation of benefits -- Failure to provide -- Letter stating that claim is under investigation is not rejection triggering duty to provide EOB -- No merit to argument that bills were automatically rejected 30 days after receipt -- Insurer's response to demand letter rejecting entire claim is clear rejection that triggered duty to provide EOB -- There is no requirement that EOB provide detail as to why items are rejected, although EOB at issue does specify reason for rejection

16 Fla. L. Weekly Supp. 439a

Online Reference: FLWSUPP 165JOSEP

Insurance -- Personal injury protection -- Explanation of benefits -- Failure to provide -- Neither insurer's letter advising that claim is under investigation nor failure to remit payment within 30 days of receipt of claim were rejections of claim triggering requirement to provide EOB -- Rather, insurer's response to demand letter is clear rejection that triggered EOB requirement -- Where response to demand letter stated that entire claim was denied, no further detail was required to satisfy EOB requirement of providing itemized specification

16 Fla. L. Weekly Supp. 103b

Insurance -- Personal injury protection -- Explanation of benefits -- Duty to provide -- Question certified: When an insurer does not pay a portion of a claim or reject a claim within 30 days, does it, pursuant to Florida Statute §627.736(4)(b), have to provide an itemized specification of each item that the insurer had reduced, omitted, or declined to pay and any information that the insurer desires the claimant to consider related to the medical necessity of the denied treatment or explain the reasonableness of the related charge?

16 Fla. L. Weekly Supp. 871a

Online Reference: FLWSUPP 169NUTEC

Insurance -- Personal injury protection -- Examination under oath -- Where claimant voluntarily appeared at EUO, made admissions regarding fraud by treating physicians, and thereafter terminated EUO, claimant's actions constitute refusal to cooperate -- Claimant's refusal to cooperate is not excused by fact that he had no duty to submit to EUO which was scheduled more than 30 days after insurer's receipt of notice of claim where claimant voluntarily appeared for EUO

16 Fla. L. Weekly Supp. 106b

Insurance -- Personal injury protection -- Examination under oath -- Failure to attend -- Insurer did not waive EUO no-show defense by failing to state defense on explanation of benefits where failure to attend EUO could not have been cured even if insurer had given notice

16 Fla. L. Weekly Supp. 947b

Online Reference: FLWSUPP 1610EMIL

Insurance -- Personal injury protection -- Examination under oath -- Where insured did not appear for EUO of which he had notice and knowledge, insurer's motion for partial summary judgment is granted

16 Fla. L. Weekly Supp. 897b

Online Reference: FLWSUPP 169JEUNE

Insurance -- Personal injury protection -- Examination under oath -- Failure to appear -- Where there was no contradictory evidence offered to establish confusion by staff or attorneys of law firm representing insured regarding notice of EUO sent by insurer, insurer's motion for summary judgment based on failure to appear for EUO is granted

16 Fla. L. Weekly Supp. 982a

Online Reference: FLWSUPP 1610ROBE

Insurance -- Personal injury protection -- Examination under oath -- Where insurer received notice of representation from insured's attorney prior to sending EUO request directly to insured, failure to attend EUO was not unreasonable

16 Fla. L. Weekly Supp. 198a

Online Reference: FLWSUPP 162FONSE

Insurance -- Personal injury protection -- Examination under oath -- Failure to attend -- Where fact question exists as to whether insured's attorney received proper notice of EUOs and whether insured's failure to attend EUOs rose to level of material breach, insurer's motion for final summary judgment based on unreasonable failure to attend two EUOs is denied

16 Fla. L. Weekly Supp. 295a

Online Reference: FLWSUPP 164CRUZ2

Insurance -- Personal injury protection -- Examination under oath -- Failure to attend -- Where insurer sent letter suspending benefits as of date of independent medical examination and scheduled insured to attend EUO concerning medical bills incurred before IME cutoff date, 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

16 Fla. L. Weekly Supp. 783a

Online Reference: FLWSUPP 168JONES

Insurance -- Personal injury protection -- Examination under oath -- Failure to attend -- Elderly insured -- Evidence demonstrates that insurer failed to adhere to code of ethics requiring exercise of extraordinary care when dealing with elderly clients in its dealings with elderly insured who failed to attend two unilaterally scheduled EUOs -- Insurer waived right to right to assert EUO no-show defense by acting as if there was no breach from EUO no-shows when it thereafter scheduled two independent medical examinations, to which insured submitted

16 Fla. L. Weekly Supp. 960b

Online Reference: FLWSUPP 1610JOSE

Insurance -- Personal injury protection -- Examination under oath -- Failure to attend -- Where insured has presented competent evidence that due to misrouting of notice of EUO insured's attorney did not become aware of EUO until he received letter denying benefits, and insured has otherwise cooperated with insurer's claim processing request, insurer's motion for summary judgment based on EUO no-show defense is denied

16 Fla. L. Weekly Supp. 1048a

Online Reference: FLWSUPP 1611BAEZ

Insurance -- Personal injury protection -- Declaratory judgment -- Coverage -- Where insured willfully and materially breached policy by failing to submit to examination under oath despite insurer's numerous attempts over course of year to accommodate insured in setting EUO, and insurer is prejudiced by insured's failure to cooperate by securing and giving evidence because insurer has evidence that indicates accident was staged, insurer is permitted to avoid all coverage and has no duty to indemnify or defend insured for any suit arising out of accident

16 Fla. L. Weekly Supp. 866a

Online Reference: FLWSUPP 169BUERG

Insurance -- Personal injury protection -- Examination under oath -- Insured forfeited rights under policy where she refused to answer material questions during EUO required by PIP policy, prematurely terminated EUO, and failed to respond to correspondence indicating that she should contact insurer to continue EUO

16 Fla. L. Weekly Supp. 814a

Online Reference: FLWSUPP 169CHAVE

Insurance -- Personal injury protection -- Discovery -- Medical records of nonparties -- Appeals -- Certiorari -- Order to produce independent medical examination and peer review reports of nonparties meets threshold jurisdictional requirement for writ of certiorari where disclosure of reports will cause irreparable harm that cannot be corrected on appeal -- Insurer has standing to challenge subpoena served on its non-party expert witness -- Motion for appellate attorney's fees that fails to identify source of entitlement to fee award is denied -- Reply to response to motion to dismiss petition for writ of certiorari is unauthorized pleading -- Order to show cause issued

16 Fla. L. Weekly Supp. 817a

Online Reference: FLWSUPP 169TAVER

Insurance -- Personal injury protection -- Discovery -- Medical records of nonparties -- Appeals -- Certiorari -- Order to produce independent medical examination and peer review reports of nonparties and expert's financial information meets threshold jurisdictional requirement for writ of certiorari where disclosure of reports and financial information will cause material injury that cannot be corrected on appeal -- Requirement to disclose medical records of nonparties without notice to nonparties required by section 456.057(7) violated law -- Error to compel production of expert's financial information without finding unusual or compelling circumstances requiring production -- Discovery order quashed

16 Fla. L. Weekly Supp. 911a

Online Reference: FLWSUPP 1610ROSA

Insurance -- Personal injury protection -- Discovery -- Billing statements -- Appeals -- Certiorari -- Where medical provider did not claim that requested documents were privileged or confidential, but merely that discovery was overbroad, provider has not established departure from essential requirements of law or shown how production would cause irreparable harm that could not be remedied on appeal -- Petition denied

16 Fla. L. Weekly Supp. 109a

Insurance -- Personal injury protection -- Demand letter -- Sufficiency -- Demand letter that contained claim for services provided by four different medical providers yet included assignment of benefits to only one provider was sufficient where letter sufficiently advised insurer that it could have paid claim by issuing payment to assignee provider for its bills and payment to insured for three remaining providers' bills -- Demand letter is insufficient as to provider whose claim includes sums not yet overdue

16 Fla. L. Weekly Supp. 588a

Online Reference: FLWSUPP 166LEVY

Insurance -- Personal injury protection -- Notice of loss -- Disclosure and acknowledgment form met statutory requirements despite listing services rendered as “chiro treatment, x-rays” where HCFA listing services and CPT codes was attached to D&A form -- Demand letter was not insufficient for failing to account for partial payment made by insurer where check for partial payment was an offer to settle which was rejected by medical provider -- Demand letter that stated total amount billed and amount that constituted 80% of those bills and that included copy of HCFA forms and billing ledger was sufficient

16 Fla. L. Weekly Supp. 579b

Online Reference: FLWSUPP 166ROSAR

Insurance -- Personal injury protection -- Demand letter -- Sufficiency -- Demand letter is not substantially compliant with statute where letter references single date of service but attached HCFA form is for two dates of service, and letter demands payment for “original amount” that is neither original amount billed for either date of service alone nor amount billed for both dates combined -- Motion to dismiss granted

16 Fla. L. Weekly Supp. 770a

Online Reference: FLWSUPP 168DIAZ

Insurance -- Personal injury protection -- Demand letter -- Premature -- Insurer waived notice requirement and is estopped from raising issue of premature notice where insurer admitted that presuit notice requirement had been met and did not file any affirmative defense specifically pleading the failure to comply with pre-suit notice requirements -- Motion for rehearing is granted and directed verdict entered in favor of insurer is reversed

16 Fla. L. Weekly Supp. 1156a

Online Reference: FLWSUPP 1612ROOS

Insurance -- Personal injury protection -- Notice of loss -- Disclosure and acknowledgment form -- Where original D&A form mailed to insurer contained only signature of treating physician, and when notified of that fact, physician mailed copy of D&A form to insured for his signature and thereafter submitted signed copy to insurer, D&A form satisfied statutory requirements -- No merit to argument that entire case must be dismissed because medical provider concedes that one billing entry on initial bill is in error -- Where there is issue of material fact as to what is owed for another billing entry, provider's motion for summary judgment cannot be fully granted

16 Fla. L. Weekly Supp. 952a

Online Reference: FLWSUPP 1610SMIT

Insurance -- Personal injury protection -- Demand letter with attached ledger was sufficient to comply with statute

16 Fla. L. Weekly Supp. 267b

Online Reference: FLWSUPP 163JEAN

Insurance -- Personal injury protection -- Demand letter -- Sufficiency -- Demand letter to which was attached itemized statement that set forth name of medical provider who rendered treatment and each exact amount, date of treatment, and type of benefits claimed to be due, and which demanded full amount of benefits claimed to be due was legally sufficient -- Further, where insurer failed to provide provider with any response asserting that demand letter was not in compliance with statutory requirements and failed to raise alleged insufficiency as affirmative defense, insurer waived defense

16 Fla. L. Weekly Supp. 513b

Online Reference: FLWSUPP 166HINES

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

16 Fla. L. Weekly Supp. 264a

Online Reference: FLWSUPP 163BUITR

Insurance -- Personal injury protection -- Explanation of benefits -- Response to presuit demand letter did not satisfy statutory requirement for insurer to provide EOB

16 Fla. L. Weekly Supp. 345a

Online Reference: FLWSUPP 164DIAS

Insurance -- Personal injury protection -- Insurer paying claim demanded in presuit demand letter must fully reimburse postal costs when reimbursement is requested by claimant

16 Fla. L. Weekly Supp. 135a

Online Reference: FLWSUPP 162PEACH

Insurance -- Personal injury protection -- Deductible -- Although named insured could not elect deductible to apply to plaintiff who is covered under PIP policy but is not named insured or resident dependent relative, plaintiff could separately elect deductible for himself -- Where plaintiff's election of deductible is shown by signature on deductible election provision, and policy is not ambiguous, insurer was correct in applying deductible to plaintiff's medical claims

16 Fla. L. Weekly Supp. 628a

Online Reference: FLWSUPP 167BROW2

Insurance -- Personal injury protection -- Coverage -- Error to enter summary judgment in favor of medical provider where there remain disputed issues of material fact as to claimant's relationship to and residency with named insured -- Attorney's fees award must also be reversed

16 Fla. L. Weekly Supp. 974a

Online Reference: FLWSUPP 1610ATKI

Insurance -- Personal injury protection -- Coverage -- Passenger residing with person who owns motor vehicle must first look to household member's PIP policy for coverage -- However, because failure of household member to have required insurance on vehicle does not bar injured passenger from seeking coverage under driver's policy, to prevail on summary judgment insurer must show existence of household member's policy, not merely that household member owns vehicle that should have been insured

16 Fla. L. Weekly Supp. 349b

Online Reference: FLWSUPP 164LOPES

Insurance -- Personal injury protection -- Coverage -- Passenger -- Ownership of vehicle registered in state -- Where passenger owned a vehicle which was registered in Florida and required to have insurance on date of accident, passenger must seek PIP benefits from insurer of her own vehicle -- No merit to argument that insurer has burden to prove operability of vehicle

16 Fla. L. Weekly Supp. 205a

Online Reference: FLWSUPP 162GARC2

Insurance -- Personal injury protection -- Coverage -- Claimant who failed to maintain insurance on own vehicle -- Where claimant injured as passenger failed to maintain PIP insurance on own vehicle and failed to provide any evidence supporting claim that PIP policy covering vehicle in which she was injured inured to claimant's benefit, final summary judgment is entered in favor of insurer -- Inoperable vehicle -- No merit to argument that insurer had burden to prove claimant's vehicle was operable, that claimant was true and beneficial owner of vehicle and that vehicle is vehicle to which statutory requirement to maintain security for vehicles applies where claimant did not place insurer on notice that she was asserting any of those defenses

16 Fla. L. Weekly Supp. 594a

Online Reference: FLWSUPP 166LAURI

Insurance -- Personal injury protection -- Withdrawal of benefits -- Medical report -- Valid report for withdrawal of PIP benefits must be based on physical examination performed by reporting physician or physician who conducted independent medical examination, not physical examination by treating physician

16 Fla. L. Weekly Supp. 590b

Online Reference: FLWSUPP 166BUENO

Insurance -- Personal injury protection -- Withdrawal of benefits -- Medical report -- Valid report for purposes of withdrawal of PIP benefits may be supported by independent medical examination conducted at request of insurer, but not by physical examination by treating physician

16 Fla. L. Weekly Supp. 513c

Online Reference: FLWSUPP 166PRINC

Insurance -- Personal injury protection -- Withdrawal of benefits -- Valid report for purposes of withdrawal of benefits must be based on physical examination of insured performed by person preparing report or review of physical examination of insured performed at request of insurer -- No error in refusing to consider peer review report based on review of physical examination performed by treating physician or in entering summary judgment for medical provider

16 Fla. L. Weekly Supp. 213b

Online Reference: FLWSUPP 163DEREN

Insurance -- Personal injury protection -- Withdrawal of benefits -- Reasonable proof -- Where trial court was correct in not admitting peer review report, albeit for wrong reasons, decision is upheld

16 Fla. L. Weekly Supp. 1036a

Online Reference: FLWSUPP 1611MALP

Insurance -- Personal injury protection -- Withdrawal of benefits -- Valid report -- No error in finding that peer review report was not valid report supporting withdrawal of benefits where report was based on incomplete medical records, did not attach the records reviewed, and conflicted with report of prior independent medical examination

16 Fla. L. Weekly Supp. 1078a

Online Reference: FLWSUPP 1611PAIZ

Insurance -- Personal injury protection -- Withdrawal of benefits -- Valid report -- Reconsideration of order granting final summary judgment in favor of medical provider due to untimeliness of records review affidavit is denied where insurer has presented no evidence as to why it did not attempt to secure affidavit until day it was due, and affidavit offers only conclusory opinion that injuries are not causally related to accident -- Moreover, affidavit by physician who did not personally examine insured or review examination of insured is not valid report for purposes of denying or withdrawing PIP benefits

16 Fla. L. Weekly Supp. 446a

Online Reference: FLWSUPP 165AMAD2

Insurance -- Personal injury protection -- Withdrawal of benefits -- Medical report issued by peer review physician does not raise issue of material fact to preclude summary judgment as to any bill for treatment pre-dating independent medical examination where there is no factual basis to support opinion, reporting physician did not examine insured or base report on examination of physician who performed IME, and reporting physician failed to set forth basis for opinions expressed -- Report is further deficient because it conflicts with affidavit of IME physician, who concluded that further treatment was not necessary but did not opine that pre-IME bills were unnecessary, and because it was obtained in contemplation of litigation

16 Fla. L. Weekly Supp. 1133c

Online Reference: FLWSUPP 1612GALA

Insurance -- Personal injury protection -- Withdrawal of benefits -- Valid report -- Physician preparing report for purposes of withdrawal of benefits does not have to personally examine insured; it is sufficient that physician has reviewed treatment records -- No error in considering peer review report and affidavit prepared after records review in ruling on motion for summary judgment

16 Fla. L. Weekly Supp. 1133a

Online Reference: FLWSUPP 1612ABAC

Insurance -- Personal injury protection -- Withdrawal of benefits -- Valid report -- Physician preparing report for purposes of withdrawal of benefits does not have to personally examine insured; it is sufficient that physician has reviewed treatment records -- No error in considering peer review report and affidavit prepared after records review in ruling on motion for summary judgment

16 Fla. L. Weekly Supp. 1133a

Online Reference: FLWSUPP 1612ABAC

Insurance -- Personal injury protection -- Withdrawal of benefits -- Valid report -- Physician preparing report for purposes of withdrawal of benefits does not have to personally examine insured; it is sufficient that physician has reviewed treatment records -- No error in considering peer review report and affidavit prepared after records review in ruling on motion for summary judgment

16 Fla. L. Weekly Supp. 392a

Online Reference: FLWSUPP 165AMADO

Insurance -- Personal injury protection -- Withdrawal of benefits -- Reasonable proof -- Trial court did not err in finding that peer review affidavit based solely on records of treating physician and not supported by independent medical examination is not legally sufficient to support withdrawal of benefits

16 Fla. L. Weekly Supp. 388b

Online Reference: FLWSUPP 165PERDO

Insurance -- Personal injury protection -- Withdrawal of benefits -- Valid report to support withdrawal of benefits must be based on physical examination performed by reporting physician or physician who conducted independent medical examination, not physical examination by treating physician which does not factually support conclusion of report's author that treatment was not reasonable, related or necessary

16 Fla. L. Weekly Supp. 137a

Online Reference: FLWSUPP 162PERDO

NOT FINAL VERSION OF OPINION
Subsequent Changes at 16 Fla. L. Weekly Supp. 388b

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Withdrawal -- Insurer may not withdraw payment of a treating physician without consent of injured person unless the insurer first obtains a valid report signed by “the physician examining the injured person” -- The physical examination underlying a “valid report” cannot be the physical examination of the injured person's treating physician, but must be performed either by the reporting physician or by a physician who performed an independent medical examination -- Valid report cannot be a “paper IME” based merely on review of treatment records

16 Fla. L. Weekly Supp. 767a

Online Reference: FLWSUPP 168LAHIT

Insurance -- Personal injury protection -- Withdrawal of benefits -- Motion for summary judgment alleging that insurer is not entitled to dispute reasonableness, relatedness or necessity of medical bills because it failed to obtain report by physician who performed physical examination of insured is denied where there remains factual issue as to whether insurer, which failed to make any payment for dates at issue but never denied charges, had terminated or withdrawn benefits

16 Fla. L. Weekly Supp. 389a

Online Reference: FLWSUPP 165VALIE

Insurance -- Personal injury protection -- Withdrawal of benefits -- Notice -- Insurer is not required to provide insured with notice that it will not pay for medical expenses after physician who conducted independent medical examination determines that further treatment would not to be reasonable, related or necessary -- Error to find that cutoff of benefits following IME was effective on date insurer sent notice of cutoff rather than date IME physician determined and notified insurer that further treatment would not be reasonable, related or necessary

16 Fla. L. Weekly Supp. 194b

Online Reference: FLWSUPP 162BERGE

Insurance -- Personal injury protection -- Provider who is licensed orthopedic doctor under chapter 459 is not required to provide additional sworn statement or affidavit verifying credentials -- Accordingly, provider's failure to comply with insurer's request for verification form does not relieve insurer of liability for claim

16 Fla. L. Weekly Supp. 1158b

Online Reference: FLWSUPP 1612ORTH

Insurance -- Personal injury protection -- Notice of loss -- Disclosure and acknowledgment form -- Where insured who was unaware of PIP coverage on initial date of treatment advised medical provider that there was no PIP coverage, provider could not and did not provide services upon which PIP claim could be based and was under no duty to have insured execute D&A form on initial date of treatment -- Further, provider's failure to submit bills to insurer within 35 days of treatment is not fatal to claim where insured gave provider wrong insurance information -- Provider's acts of having insured sign and return D&A form when PIP coverage was discovered, signing of returned form, and immediate submission of form and medical bills to insurer create issue of fact that precludes summary judgment

16 Fla. L. Weekly Supp. 100a

Insurance -- Personal injury protection -- Coverage -- Summary judgment -- Insurer disclaiming reliance on peer review and independent medical examination obtained prior to denial of claim and opposing motion for summary judgment based on peer review obtained only days before summary judgment hearing -- Affidavit and peer review prepared solely for purpose of litigation, to defeat motion for summary judgment, is untrustworthy and inadmissible -- Alternatively, affidavit and peer review are stricken because peer review was not obtained before denying PIP claim -- While insurer may obtain valid report in support of denial of benefits more than thirty days after receipt of claim, insurer may not wait until after it has denied claim to obtain report -- Summary judgment granted in favor of medical provider

16 Fla. L. Weekly Supp. 317a

Online Reference: FLWSUPP 164EXPLO

Insurance -- Personal injury protection -- Declaratory judgment -- Although legislature intended that new fee schedule that allows PIP insurers to limit reimbursement to 80% of 200% of Medicare Part B fee schedule rather than paying 80% of reasonable expenses would apply retroactively, application of new fee schedule to medical services under PIP contract that was in effect prior to effective date of amended PIP statute would be unconstitutional -- Medical provider that has assignment of rights and benefits under policies has standing to raise constitutional issue

16 Fla. L. Weekly Supp. 763a

Online Reference: FLWSUPP 168FERNA

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Because amendment to PIP statute giving insurer option to pay charges at 200% of applicable Medicare Part B Fee Schedule is procedural in nature, amendment operates prospectively and applies to all policies in effect on or after January 1, 2008

16 Fla. L. Weekly Supp. 332a

Online Reference: FLWSUPP 164TUOME

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable charges -- Treating physician's affidavit that charge at issue has been largely unchanged in eight years of practice and that other insurance companies have paid the charge when submitted was sufficient to shift to defendant the burden of showing that genuine issue of fact exists -- Evidence that insurer determined allowable charge based on Medicare Part B fee schedule is not sufficient to raise disputed issue of fact as to reasonableness of fees charged by medical provider in non-Medicare context -- Provider's motion for summary judgment is granted

16 Fla. L. Weekly Supp. 632a

Online Reference: FLWSUPP 167PETER

Insurance -- Personal injury protection -- Summary judgment -- Opposing affidavit -- Sufficiency -- Peer review physician's affidavit is insufficient where affidavit failed to make any showing of affiant's competency to act as PIP medical expert by complying with record-keeping requirement, failed to specify which medical records and insurance forms physician reviewed, identified the records reviewed as those of a person other than insured, and offered little if any explanation for affiant's opinions -- Conclusory statements that peer review physician saw no justification for use of heating pad or for “other bills” were insufficient to support finding that material fact regarding reasonableness or necessity of treatment is at issue -- Order granting summary judgment in favor of medical provider is affirmed

16 Fla. L. Weekly Supp. 232a

Online Reference: FLWSUPP 163UNITE

Insurance -- Personal injury protection -- Denial of benefits -- Where insurer obtained independent medical examination report opining that further treatment of insured was not reasonable, related or medically necessary and subsequently obtained peer review report opining that none of medical care received by insured was reasonable, related or necessary, trial court correctly granted summary judgment in favor of insured for treatment prior to IME since peer review report was not obtained prior to denial of benefits

16 Fla. L. Weekly Supp. 882a

Online Reference: FLWSUPP 169POWEL

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Necessity -- Summary judgment -- Severe impeachment -- Where insurer has not shown how facts brought out on impeachment of medical expert mean treatment was not necessary, and has only offered speculation that facts might mean treatment was not necessary, insurer has failed to establish severe impeachment of expert sufficient to defeat motion for summary judgment on issue of medical necessity

16 Fla. L. Weekly Supp. 374a

Online Reference: FLWSUPP 165HARPE

Insurance -- Personal injury protection -- Error to enter summary judgment in favor of medical provider where provider's affidavit asserting that all bills were reasonable and affidavit of insurer's medical expert asserting that charge was above usual and reasonable fee charged for service created genuine issue of material fact -- Discovery -- Depositions -- Expert witness fee -- Order granting expert witness fee to treating physician for deposition testimony is affirmed where insurer failed to provide appellate court with transcript of hearing on motion for expert witness fee -- Attorney's fees -- Appellate fees awarded to insurer

16 Fla. L. Weekly Supp. 392b

Online Reference: FLWSUPP 165CRUZ

Insurance -- Personal injury protection -- Evidence -- Peer review report -- Error to strike report where relevant records had already been filed by medical provider

16 Fla. L. Weekly Supp. 296a

Online Reference: FLWSUPP 164PERE2

Insurance -- Personal injury protection -- Denial of benefits -- Where insurer denied benefits for treatment subsequent to independent medical examination, and three years after denial of claim and two years after commencement of litigation, the insurer obtained peer review report opining that none of treatment rendered by medical provider was reasonable, related or necessary, trial court did not err in striking peer review report

16 Fla. L. Weekly Supp. 258a

Online Reference: FLWSUPP 163ALARC

Insurance -- Personal injury protection -- Withdrawal of benefits -- Where insurer notified insured that it was refusing to pay benefits for any care after date of independent medical examination, but insured continued treatment nonetheless and submitted last set of bills after discharge from treatment; insurer, upon receipt of last bills, failed to make any payments, including payment for care that occurred prior to IME; and, on date suit was filed, insurer did not possess peer review report opining that some of treatment was not medically necessary or related, denial of benefits could not have occurred later than date insured filed suit -- Peer review report obtained after denial of benefits is inadmissible -- Question certified whether expert testimony based on a physician's report that was not first obtained by the insurer before PIP benefits were withdrawn or denied in violation of the statutory predicate under § 627.736(7)(a), Fla. Stat. (2003) is admissible to support an insurer's legal defense on medical necessity and relatedness in an action for PIP benefits? -- Demand letter -- Where no payments were made, demand letter that failed to specify amount due at 80% and take deducible into account but to which bills were attached substantially complied with statute

16 Fla. L. Weekly Supp. 199c

Online Reference: FLWSUPP 162SOTEL

Insurance -- Personal injury protection -- Withdrawal of benefits -- Peer review report based upon review of treating physician's records and independent medical examination conducted by doctor not licensed under same chapter as treating physician does not constitute valid report for purposes of denying or withdrawing PIP benefits

16 Fla. L. Weekly Supp. 199a

Online Reference: FLWSUPP 162HODGE

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Summary judgment -- Physician's report is legally insufficient to defeat medical provider's motion for summary judgment on issue of whether medical bills are reasonable, related and medically necessary where report is based solely on review of records of treating physician and is not supported by independent medical examination

16 Fla. L. Weekly Supp. 22a

Insurance -- Personal injury protection -- Withdrawal of benefits -- Reasonable proof -- Physician's report is not valid report for purposes of denying or withdrawing PIP benefits where report is based solely on review of records of treating physician and is not supported by independent medical examination -- Order granting summary judgment in favor of medical provider is affirmed

16 Fla. L. Weekly Supp. 179b

Online Reference: FLWSUPP 162FERNA

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Summary judgment is granted in favor of medical provider where affidavit of physician is sufficient to establish that fees charged were reasonable and necessary, and insurer did not file any opposing affidavit

16 Fla. L. Weekly Supp. 959a

Online Reference: FLWSUPP 1610SARA

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary treatment -- Affidavit of peer review physician opining that treatment was not reasonable, related or necessary is not sufficient to defeat motion for partial summary judgment where opinion is conclusory and not based on full review of treatment records -- Partial summary judgment granted in favor of medical provider

16 Fla. L. Weekly Supp. 352a

Online Reference: FLWSUPP 164JOHNS

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary treatment -- Where medical provider has filed affidavit of physician opining that MRI was related and necessary to diagnose insured's injuries, insurer has not filed any opposing evidence, and insurer's adjuster testified in deposition that insurer was not disputing that MRI was related and necessary, there is no genuine issue of material fact, and provider's motion for summary judgment as to reasonableness, relatedness and necessity of treatment is granted

16 Fla. L. Weekly Supp. 293b

Online Reference: FLWSUPP 164RAMAL

Insurance -- Personal injury protection -- Expert witness -- Striking -- No abuse of discretion in striking insurer's expert witness on issue of independent medical examination where there is working relationship between insurer and expert, and expert repeatedly refused to produce subpoenaed copies of IME/peer review reports and failed to comply with order compelling production -- No error in directing verdict in favor of medical provider where sole issue was whether MRI was medically necessary and insurer failed to impeach testimony of physician who ordered MRI, present countervailing expert medical testimony, or present other evidence that would have created direct conflict with provider's evidence -- Trial court did not impermissibly judge credibility of provider's expert in entering directed verdict since there was no conflicting evidence to refute provider's expert medical testimony

16 Fla. L. Weekly Supp. 981b

Online Reference: FLWSUPP 1610GODF

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary treatment -- Summary judgment -- Affidavits submitted by insurer which state opinions regarding adequacy of medical provider's records do not create genuine issue of material fact as to reasonableness, relatedness or medical necessity of treatment -- Inadequacy of record keeping is not lawful basis for nonpayment of PIP benefits -- Partial summary judgment granted in favor of provider

16 Fla. L. Weekly Supp. 37a

Insurance -- Personal injury protection -- Coverage -- Priority -- Hospital lien -- Because hospital that failed to timely file lien was unsecured creditor until lien was filed, medical provider that submitted bill to insurer before hospital filed lien established priority claim to payment -- Notice of loss -- Claim form -- Where provider put universal provider identification number rather than professional license number in box 31 of claim form, provider failed to give notice of claim to insurer -- Insurer did not waive box 31 affirmative defense by failing to provide explanation of benefits detailing reason payment was denied

16 Fla. L. Weekly Supp. 958a

Online Reference: FLWSUPP 1610MORA

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Overdue bills -- Request for documentation -- Where insurer made timely request for additional documentation regarding claims and received no response from medical provider, claims were not overdue at time of filing suit and lawsuit is premature

16 Fla. L. Weekly Supp. 678a

Online Reference: FLWSUPP 167TOFFA

Insurance -- Personal injury protection -- Coverage -- Medical bills -- MRI -- Summary judgment is granted in favor of insurer where prior to suit insurer tendered all amounts due for MRI bill, plus interest, penalty, and postage as calculated under PIP statute in effect at time PIP policy was executed

16 Fla. L. Weekly Supp. 533a

Online Reference: FLWSUPP 166AFO

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- MRI -- PIP statute does not authorize insurer to utilize Medicare's Hospital Outpatient Prospective Payment System limitations or any other limitations not expressly described in section 627.736(5)(a)2.f, (a)3 and (a)4 when determining amounts due for MRI services provide in non-emergency, non-hospital setting

16 Fla. L. Weekly Supp. 964d

Online Reference: FLWSUPP 1610CABA

Insurance -- Personal injury protection -- Coverage -- PIP statute provides for payment of 80% of applicable amount reimbursable under workers' compensation fee schedule

16 Fla. L. Weekly Supp. 108a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Lawfully rendered treatment -- Treatment is not rendered unlawful by failure to obtain county occupational license

16 Fla. L. Weekly Supp. 473a

Online Reference: FLWSUPP 165BELVI

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Lawfully rendered treatment -- No merit to claim that medical provider rendered unlawful treatment because it did not have active massage establishment license at time massage therapy was rendered where rule defines massage establishment as site where therapy is rendered by massage therapist, and insured's therapy was rendered by chiropractor

16 Fla. L. Weekly Supp. 687a

Online Reference: FLWSUPP 167DOR

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Lawfully rendered services -- Patient Self Referral Act -- Medical provider who referred insured to pain management clinic of which provider is sole shareholder violated Patient Self Referral Act, and pain clinic is barred from claiming entitlement to PIP benefits -- No merit to argument that only insured has standing to assert that services are not payable due to fact that they were not lawfully rendered

16 Fla. L. Weekly Supp. 503a

Online Reference: FLWSUPP 166SILA

Insurance -- Personal injury protection -- Coverage -- Withdrawal of benefits -- Retroactive notice of withdrawal -- Effective date of cessation of benefits was date of independent medical examination that resulted in opinion that no further treatment would be reasonable, related or necessary, not date two weeks later when insurer generated letter withdrawing benefits

16 Fla. L. Weekly Supp. 17b

NOT FINAL VERSION OF OPINION
Subsequent Changes at 16 Fla. L. Weekly Supp. 503a

Insurance -- Personal injury protection -- Coverage -- Withdrawal of benefits -- Retroactive notice of withdrawal -- Insurer was required to provide notice of termination of benefits to insured and medical provider -- Where insured continued receiving medical treatment from provider in two-week period between independent medical examination and receipt of notice of termination of benefits effective on date of IME, and neither insured nor provider made attempt to contact insurer to determine results of IME, there is genuine issue of material fact as to whether notification was sent in reasonable time and whether medical treatment rendered after IME was reasonable, related and necessary -- Error to enter summary judgment in favor of provider

16 Fla. L. Weekly Supp. 182a

Online Reference: FLWSUPP 162TAPLI

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Injury caused by physical contact with motor vehicle -- Where insured injured knee and ankle when he slipped in ditch four feet away from vehicle while carrying brush to wood chipper attached to rear of vehicle, incident did not involve contact with vehicle and lacks necessary causal relation between injury and automobile to warrant coverage -- Later pain experienced by insured while exiting vehicle was continuation from initial injury and does not qualify as separate injury for purposes of determining coverage

16 Fla. L. Weekly Supp. 964e

Online Reference: FLWSUPP 1610KALY

Insurance -- Personal injury protection -- Summary judgment -- Exhaustion of policy limits -- Factual issues preclude summary judgment

16 Fla. L. Weekly Supp. 973a

Online Reference: FLWSUPP 1610AGTE

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Exhaustion of policy limits -- Once benefits have been exhausted, medical provider is not entitled to recover unless it can show that insurer acted in bad faith in denying claim -- Denial of claim based on insufficiencies in disclosure and acknowledgment form cannot be in bad faith where there is case law which supports denial

16 Fla. L. Weekly Supp. 179a

Online Reference: FLWSUPP 162RIVER

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Exhaustion of policy limits -- Where PIP benefits were exhausted, and there is no allegation that insurer acted in bad faith, insurer has no liability for further benefits -- Insurer was not required to escrow funds pending resolution of contested claim

16 Fla. L. Weekly Supp. 92a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Exhaustion of policy limits -- Insurer is not required to set aside reserve for disputed claim and, in absence of bad faith, insurer is not liable for benefits once benefits have been exhausted

16 Fla. L. Weekly Supp. 1125a

Online Reference: FLWSUPP 1612PROG

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Exhaustion of policy limits -- Error to enter summary judgment in favor of medical provider where benefits had been exhausted, and there was no finding of bad faith on part of insurer -- Error to rely on English Rule for priority of payments

16 Fla. L. Weekly Supp. 323a

Online Reference: FLWSUPP 164NORTH

Insurance -- Personal injury protection -- Notice of loss -- Disclosure and acknowledgment form -- Insurer is not authorized to raise deficiency in D&A form after payment of initial bill or raise deficiency as defense to refuse payment of subsequent bills where neither the insured nor the medical provider were notified of deficiency before payment of initial bill -- Provider was not required to submit corrected claim form within 35 days of insurer's notice that claim was denied due to deficient claim form

16 Fla. L. Weekly Supp. 782b

Online Reference: FLWSUPP 168GRIFF

Insurance -- Personal injury protection -- Venue -- Medical provider had right to elect to pursue action against foreign insurer in county where provider's principal place of business is located as that is place where cause of action for nonpayment of PIP benefits accrued in absence of any agreement as to place of payment -- Transfer of venue for convenience of parties would be improper where no affidavits or other sworn proof was submitted in support of motion

16 Fla. L. Weekly Supp. 341c

Online Reference: FLWSUPP 164ROBIN

Insurance -- Personal injury protection -- Cause of action for nonpayment of PIP benefits accrued in county which is site of foreign insurer's sole Florida office to which medical provider submitted its claim -- No merit to argument that cause of action accrued in county in which provider maintains office to which payment was due to be sent -- Motion to transfer venue granted

16 Fla. L. Weekly Supp. 1129a

Online Reference: FLWSUPP 1612HYMA

Insurance -- Personal injury protection -- Denial of benefits -- Valid report -- No merit to argument that valid report is not required where insurer denies PIP benefits rather than reducing or withdrawing benefits -- Peer review report need not be based on physical examination performed by reporting physician to be valid report

16 Fla. L. Weekly Supp. 1028c

Online Reference: FLWSUPP 1611ROWE

Insurance -- Personal injury protection -- Coverage -- Denial -- Failure to maintain patient logs is not valid legal basis for insurer to deny payment of medical bills

16 Fla. L. Weekly Supp. 951b

Online Reference: FLWSUPP 1610BALI

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Exhaustion of policy limits -- Absent showing of bad faith or irregularity in manner in which bills were processed by insurer, neither insured nor medical provider/assignee can bring claim for benefits, statutory interest, or penalties where policy limits are exhausted and insurer has satisfied its contractual duties to insured -- Insurer had no duty to escrow benefits pending resolution of contested claim

16 Fla. L. Weekly Supp. 622a

Online Reference: FLWSUPP 167RICHA

Insurance -- Personal injury protection -- Penalty for overdue benefits should be imposed only on benefits themselves, not on interest accrued on benefits

16 Fla. L. Weekly Supp. 181a

Online Reference: FLWSUPP 162WELLE

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Nerve conduction testing -- Where medical provider performed NCV but did not perform needle electromyography procedure, insurer properly reimbursed provider using Participating Physician Fee Schedule for Medicare Part B -- Motion for summary judgment on duty of insurer to provide payment for services not listed in coding system on date of service is denied where disputed issue of material fact exists as to whether CPT code is valid CPT code or was deleted from coding system prior to date of service

16 Fla. L. Weekly Supp. 762b

Online Reference: FLWSUPP 168BOUGH

Insurance -- Personal injury protection -- Confession of judgment -- Where medical provider did not list March 4, 2004, date of service in first amended complaint, provider later listed date in bill of particulars, and provider subsequently filed second amended complaint that omitted date, second amended complaint superseded earlier pleading, and payment of March 4, 2004, bill did not constitute confession of judgment

16 Fla. L. Weekly Supp. 948b

Online Reference: FLWSUPP 1610DASO

Insurance -- Personal injury protection -- Conditions precedent -- Mediation is not condition precedent to filing suit for PIP benefits -- Prevailing medical provider is entitled to award of attorney's fees

16 Fla. L. Weekly Supp. 1188a

Online Reference: FLWSUPP 1612PREM

Insurance -- Personal injury protection -- Coverage -- Version of PIP statute in effect at time PIP policy was executed, which provided for payment of 80% of reasonable charges, rather than version in effect at time of treatment, which provides for payment of 80% of 200% of Medicare fee schedule, is applicable where statutory change is substantive, policy states that insurer will pay 80% of medical expenses and does not define reasonable expenses in relation to Medicare fee schedule, and insurer did not issue endorsement expressing election to pay based on Medicare fee schedule

16 Fla. L. Weekly Supp. 1185a

Online Reference: FLWSUPP 1612CORK

Insurance -- Personal injury protection -- Coverage -- Version of PIP statute in effect at time PIP policy was executed, which provided for payment of 80% of reasonable charges, rather than version in effect at time of treatment, which provides for payment of 80% of 200% of Medicare fee schedule, is applicable where statutory change is substantive, and statement in policy that insurer “will pay in accordance with Florida Motor Vehicle No-Fault Law, as amended” does not clearly and unambiguously provide that insured has expressly consented to future statutory changes

16 Fla. L. Weekly Supp. 1088b

Online Reference: FLWSUPP 1611LYNN

Insurance -- Personal injury protection -- Coverage -- Version of PIP statute in effect at time PIP policy was executed, which provided for payment of 80% of reasonable charges, rather than version in effect at time of treatment after expiration of policy, which provides for payment of 80% of 200% of Medicare Part B fee schedule, is applicable

16 Fla. L. Weekly Supp. 1079a

Online Reference: FLWSUPP 1611GARO

Insurance -- Personal injury protection -- Coverage -- Policy issued during statutory gap period -- 2008 PIP statute revised and amended all policies, including policy issued during statutory gap period created by sunsetting of PIP statute, to incorporate new PIP statute -- Insurer was within rights to pay benefits pursuant to fee schedule established in 2008 statute

16 Fla. L. Weekly Supp. 1074a

Online Reference: FLWSUPP 1611PUER

Insurance -- Personal injury protection -- Coverage -- Policy issued during statutory gap period -- Where reenacted PIP statute expressly provided that reenacted law was effective January 1, 2008, and expressed legislative intent that changes be applied immediately to all claims arising after its enactment, insurer properly paid claim for treatment that occurred after January 1, 2008, at 80% of Medicare Part B fee schedule as provided for in reenacted statute -- Change in reimbursement fee schedule did not amount to unconstitutional impairment of contract, since any right to PIP benefits did not vest until insured suffered covered accident and sought treatment, which was after effective date of reenacted statute

16 Fla. L. Weekly Supp. 1068b

Online Reference: FLWSUPP 1611MART

Insurance -- Personal injury protection -- Coverage -- Policy issued during statutory gap period -- Where reenacted PIP statute expressly provided that reenacted law was effective January 1, 2008, and expressed legislative intent that changes be applied immediately to all claims arising after its enactment, insurer properly paid claim for treatment that occurred after January 1, 2008, at 80% of Medicare Part B fee schedule as provided for in reenacted statute -- Change in reimbursement fee schedule did not amount to unconstitutional impairment of contract, since any right to PIP benefits did not vest until insured suffered covered accident and sought treatment, which was after effective date of reenacted statute

16 Fla. L. Weekly Supp. 777a

Online Reference: FLWSUPP 168MAJOR

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Determination of applicable PIP statute is based on date of treatment and accident, not when policy was issued

16 Fla. L. Weekly Supp. 972b

Online Reference: FLWSUPP 1610BUIT

Insurance -- Personal injury protection -- Coverage -- Version of PIP statute in effect at time PIP policy was executed, which provided for payment of 80% of reasonable charges, rather than version of statute in effect at time of treatment, which provides for payment of 80% of 200% of Medicare fee schedule, is applicable where statutory change is substantive, policy does not define what is reasonable expense, and insurer did not issue endorsement expressing election to pay based on Medicare fee schedule -- Motion to amend final judgment to reflect payment at Medicare fee schedule is denied

16 Fla. L. Weekly Supp. 668b

Online Reference: FLWSUPP 167DAQUI

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory amendment altering amount paid to medical providers under PIP statute operates prospectively and applies to all policies in effect on or after January 1, 2008

16 Fla. L. Weekly Supp. 668a

Online Reference: FLWSUPP 167BROW3

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary services -- Statutory amendment reviving previously repealed No-Fault Law does not apply to insurance policy periods that expired before January 1, 2008 -- Where accident occurred during policy period that expired before January 1, 2008, insured is entitled to 80% of charges for reasonable, related and necessary services despite fact that treatment at issue was provided after January 1

16 Fla. L. Weekly Supp. 463a

Online Reference: FLWSUPP 165FORES

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Law in effect at time of execution of PIP contract controls rights and liabilities of parties, irrespective of fact that plaintiff is medical provider/assignee rather than insured

16 Fla. L. Weekly Supp. 965a

Online Reference: FLWSUPP 1610GABA

Insurance -- Personal injury protection -- Coverage -- Version of PIP statute in effect at time PIP policy was executed, which provided for payment of 80% of reasonable charges, rather than version of statute in effect at time of treatment after expiration of policy, which provides for payment of 80% of Medicare fee schedule, is applicable -- Amendment at issue is not remedial amendment but substantive amendment that should not be applied retroactively

16 Fla. L. Weekly Supp. 963a

Online Reference: FLWSUPP 1610KELL

Insurance -- Personal injury protection -- Coverage -- Version of PIP policy in effect at time of execution of policy, which provided for payment of 80% of reasonable medical expenses, rather than version in effect at time of treatment, which provides for payment of 80% of Medicare fee schedule, is applicable

16 Fla. L. Weekly Supp. 962b

Online Reference: FLWSUPP 1610BURC

Insurance -- Personal injury protection -- Coverage -- Version of PIP policy in effect at time of execution of policy, which provided for payment of 80% of reasonable medical expenses, rather than version in effect at time of treatment, which provides for payment of 80% of Medicare fee schedule, is applicable

16 Fla. L. Weekly Supp. 960c

Online Reference: FLWSUPP 1610OCAN

Insurance -- Personal injury protection -- Coverage -- Determination of applicable PIP statute is based on date of accident and treatment, not date policy was issued

16 Fla. L. Weekly Supp. 870b

Online Reference: FLWSUPP 169VERNE

Insurance -- Personal injury protection -- Coverage -- Version of PIP statute in effect at time PIP policy was executed, which provides for payment of 80% of reasonable charges, rather than version of statute in effect at time of treatment after expiration of policy, which provides for payment of 80% of Medicare fee schedule, is applicable -- Statutory amendment at issue is not remedial amendment but substantive amendment that should not be applied retroactively

16 Fla. L. Weekly Supp. 862a

Online Reference: FLWSUPP 169COFFE

Insurance -- Personal injury protection -- Coverage -- 2007 version of PIP statute, which provides for payment of 80% of reasonable charges, rather than 2008 version of statute in effect at time of treatment, which provides for payment of 80% of Medicare fee schedule, is applicable where policy expired prior to January 1, 2008

16 Fla. L. Weekly Supp. 680a

Online Reference: FLWSUPP 167MCKEN

Insurance -- Personal injury protection -- Coverage -- Medical expenses incurred during statutory “gap period” -- No merit to medical provider's argument that no statute applies to services rendered during “gap period” created by sunsetting of PIP statute where original policy contained PIP coverage which was revived and amended to continue in effect after “gap period” -- Provisions of PIP statute in effect at time policy went into effect applies to bills accrued during “gap period”

16 Fla. L. Weekly Supp. 677a

Online Reference: FLWSUPP 167ALPER

Insurance -- Personal injury protection -- Coverage -- Version of PIP statute in effect at time PIP policy was executed, which provided for payment of 80% of reasonable charges, rather than version of statute in effect at time of treatment after expiration of policy, which provides for payment of 80% of Medicare fee schedule, is applicable

16 Fla. L. Weekly Supp. 505a

Online Reference: FLWSUPP 166ORELL

Insurance -- Personal injury protection -- Affirmative defenses -- Striking -- Fraud -- Error to strike affirmative defenses of fraud where insurer alleged all essential elements of fraud and defenses were not redundant, repetitive, sham or frivolous pleading -- Insurer listed inconsistencies between medical bills and insured's statements regarding treatment received, stated reason for insurer's belief that acts or omissions in claim for benefits were misleading, and claimed that insurer's reliance on misrepresentations caused damage in form of expense of litigating case

16 Fla. L. Weekly Supp. 315a

Online Reference: FLWSUPP 164CHIRO

Insurance -- Personal injury protection -- Declaratory judgment -- Where medical provider has no treatment records for procedures billed to insurer, court concludes that provider did not perform procedures and improperly billed insurer in false and misleading manner -- Where provider has no record of performing or interpreting x-rays on date reflected in bill, court concludes that provider did not perform x-rays for which it billed insurer -- Where provider's records do not establish that myofascial release billed under one CPT code was performed to separate region of insured's body than chiropractic manipulation billed for same date of service under different CPT code, provider improperly billed for myofascial release and used modifier indicating that procedures were performed to different regions of body in false and misleading manner -- Because bills were not properly completed, insurer is deemed not to have received notice of bills and does not owe benefits for bills

16 Fla. L. Weekly Supp. 505b

Online Reference: FLWSUPP 166BETAN

Insurance -- Personal injury protection

16 Fla. L. Weekly Supp. 630a

Online Reference: FLWSUPP 167ADAMS

Insurance -- Personal injury protection -- Withdrawal of benefits -- Valid medical report -- PIP statute does not require physician preparing peer review report supporting withdrawal of benefits to examine insured or to state that every medical record has been examined

16 Fla. L. Weekly Supp. 633b

Online Reference: FLWSUPP 167LAFRA

Insurance -- Personal injury protection -- Withdrawal of benefits -- Peer review report which states that reporting physician examined records from insured's treating physician as well as those of two physicians who performed independent medical examinations was valid report to support withdrawal of benefits

16 Fla. L. Weekly Supp. 592a

Online Reference: FLWSUPP 166MARK

Insurance -- Personal injury protection -- Lost wages -- Holidays -- PIP insurer that is liable for lost wages is not obligated to pay for holiday when insured was paid by employer for holiday

16 Fla. L. Weekly Supp. 1081a Online Reference: FLWSUPP 1611CRNA Insurance -- Personal injury protection -- Legislative intent -- Affidavit of congressman, which does not assist court in determining legislative…

16 Fla. L. Weekly Supp. 223b

Online Reference: FLWSUPP 163PERAL

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Exhaustion of policy limits -- There is no requirement for insurer to reserve benefits for payment of disputed claims -- Absent showing of bad faith, insurer is not liable for benefits, including interest, once benefits have been exhausted

16 Fla. L. Weekly Supp. 470a

Online Reference: FLWSUPP 165PEMBR

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Exhaustion of policy limits -- Where there was no bad faith on part of insurer, insurer was not required to reserve benefits to pay bill which was denied due to incomplete claim form

16 Fla. L. Weekly Supp. 364a

Online Reference: FLWSUPP 164MCCOR

Insurance -- Personal injury protection -- Coverage -- Exhaustion of policy limits -- In absence of showing of bad faith, exhaustion of benefits extinguished any interest of insured and medical provider/assignee in benefits -- There is no requirement that insurer set aside reserve fund for claims that are reduced or denied

16 Fla. L. Weekly Supp. 444b

Online Reference: FLWSUPP 165LEMA

Insurance -- Personal injury protection -- Independent medical examination -- Failure to attend -- Where insured failed to attend IME that was condition precedent to filing suit, medical provider may not pursue benefits, even for treatment rendered and billed before IME date -- No merit to arguments that policy that is more stringent than statute in requiring submission to IME as condition precedent to suit is invalid, that there was no notice of IME because certified mail was returned, that insurer waived IME no-show defense by failing to cite failure to attend IME on explanation of benefits, that policy conditions precedent are not applicable to claimant who is not named insured, that failure to attend IME bars recovery for subsequent treatment but is not condition precedent to entire suit, that notice which states insured may forfeit rights under policy by failing to attend IME rather than affirmatively stating that rights will be forfeited is insufficient, and that appearance at examination under oath is partial compliance that precludes summary judgment for failure to attend IME

16 Fla. L. Weekly Supp. 665a

Online Reference: FLWSUPP 167KING

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory amendment altering amount paid to medical providers under PIP statute operates prospectively and applies to all policies in effect on or after January 1, 2008

16 Fla. L. Weekly Supp. 261b

Online Reference: FLWSUPP 163MOLIN

Insurance -- Personal injury protection -- Complaint -- Amendment -- Denial -- Motion to amend complaint to add cause of action for insurer's failure to provide explanation of benefits is denied where alleged breach was not identified in demand letter

16 Fla. L. Weekly Supp. 114a

Insurance -- Personal injury protection -- Notice of loss -- Claim form contained sufficient information to put insurer on notice of loss -- Notice requirements in policy do not supersede statutory notice requirements

16 Fla. L. Weekly Supp. 110b

Insurance -- Personal injury protection -- Notice of loss -- HCFA claim forms to which outside billing agent has affixed physician's stamped signature are substantially complete where absence of signature is not material to defeat claim, and affidavit of physician provides that he authorized billing company to affix his signature -- Placement of physician's license number in wrong box on claim form is materially compliant with statute

16 Fla. L. Weekly Supp. 193a

Online Reference: FLWSUPP 162MABRY

Insurance -- Personal injury protection -- Notice of loss -- Claim form -- Where medical provider mistakenly indicated on CMS 1500 claim forms that treatment was not related to automobile accident, claim forms were not complete as to material provisions, and insurer was not provided with notice of covered loss -- No merit to argument that insurer was provided with notice of loss despite error because medical reports attached to claim forms referred to automobile accident -- Later submission of corrected claim forms did not provide notice of loss where corrected claim forms were not provided within 35 days of dates of service

16 Fla. L. Weekly Supp. 341a

Online Reference: FLWSUPP 164HERRA

Insurance -- Personal injury protection -- Claim form -- Despite misplacement of license number in box 33 instead of box 31, claim form was substantially complete and accurate -- Insurer's motion for summary judgment denied

16 Fla. L. Weekly Supp. 464b

Online Reference: FLWSUPP 165DORSA

Insurance -- Personal injury protection -- Claim form -- Professional license number -- Omission of professional license number from claim form constitutes failure to provide notice of claim -- Failure to list omission of license number on explanation of benefits did not waive defense of lack of notice of claim

16 Fla. L. Weekly Supp. 575c

Online Reference: FLWSUPP 166BALDW

Insurance -- Personal injury protection -- Claim form -- Where medical provider first submitted CMS 1500 form lacking professional license number, and more than 35 days after date of service provider resubmitted form with license number, failure to submit statutorily compliant form within 35 days of date of service is fatal to claim

16 Fla. L. Weekly Supp. 928c

Online Reference: FLWSUPP 1610GORD

Insurance -- Personal injury protection -- Notice of loss -- HCFA form -- Physician's license number -- Error to grant summary judgment in favor of insurer on ground that initial HCFA form submitted by medical provider did not include physician's professional license number -- License number was not material element of bills where insurer knew license number, there was no evidence or suspicion of fraud, and there was no indication that insurer even considered possibility that physician was not properly licensed -- Even if license number was material, provider substantially complied with notice requirements when it resubmitted HCFA with license number included

16 Fla. L. Weekly Supp. 620a

Online Reference: FLWSUPP 167ALMOR

Insurance -- Personal injury protection -- Notice of loss -- HCFA form -- Medical license number -- Omission of medical provider's license number from HCFA form was not material element of notice of loss where form was filled out properly as to all provisions except license number, provider was licensed, there was no indication that insurer even considered possibility that provider was not properly licensed, and provider's license number was easily obtained from Department of Health website

16 Fla. L. Weekly Supp. 1061c

Online Reference: FLWSUPP 1611LAGE

Insurance -- Personal injury protection -- Notice of loss -- Claim form -- Medical provider that failed to include professional license number on CMS 1500 forms failed to put insurer on notice of covered loss -- Provider cannot recover for resubmitted claim forms that were corrected to include professional license number where forms were untimely submitted more than 35 days after dates of service

16 Fla. L. Weekly Supp. 666a

Online Reference: FLWSUPP 167PANDY

Insurance -- Personal injury protection -- Notice of loss -- CMS-1500 claim forms that contain incorrect date of accident failed to provide insurer with notice of covered loss -- Insurer may raise defense of lack of notice of loss at any time -- Where notice of loss was not provided, bills did not become overdue, and demand letters were premature -- Further, demand letters containing incorrect date of accident were invalid and failed to satisfy condition precedent to filing suit

16 Fla. L. Weekly Supp. 396a

Online Reference: FLWSUPP 165LEADB

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- CPT coding -- No merit to argument that trial court erred in considering deposition of insurer's coding expert in opposition to motion for summary judgment because insurer violated rule 1.510(c) by failing to specifically designate deposition transcript as evidence to oppose motion for summary judgment where notice of filing transcript 19 days prior to summary judgment hearing was appropriate and sufficient notice satisfying intent of rule -- Further, even if transcript was not properly before court, where provider's motion for summary judgment did not negate allegation that CPT codes at issue had been unbundled, denial of summary judgment was proper -- Where insurer denied payment for CPT codes for unbundled services and paid benefits for simultaneously billed bundled service code that included those other services, statutory obligation to contact provider to discuss change in coding was not triggered

16 Fla. L. Weekly Supp. 1161d

Online Reference: FLWSUPP 1612VILS

Insurance -- Personal injury protection -- Coverage -- Medicare Part A fee schedule -- Where Medicare fee schedule entirely excludes payment for medically necessary service, insurer is nonetheless obligated to pay for that service by use of other fee determinations provided by PIP law, such as usual and customary charges or workers' compensation fee schedule

16 Fla. L. Weekly Supp. 1160c

Online Reference: FLWSUPP 1612FEIJ

Insurance -- Personal injury protection -- Limitation of actions -- Where action for breach of PIP contract was filed more than five years after breach occurred when benefits claimed by last set of medical bills submitted to insurer became overdue, action is barred by statute of limitations -- Demand letter did not toll running of statute of limitations where letter was untimely served after expiration of limitations period

16 Fla. L. Weekly Supp. 1036b

Online Reference: FLWSUPP 1611ZAYA

Insurance -- Personal injury protection -- Appeals -- Timeliness -- Where trial court entered final order dismissing amended complaint pursuant to plaintiff's notice of voluntary dismissal and denying plaintiff's motion to vacate final judgment that had been subject of prior appeal, plaintiff did not file a motion for rehearing or appeal of that order but reasserted motion to vacate during hearing on defendant's entitlement to attorney's fees, and trial court entered second order denying motion to vacate that did not meaningfully alter or amend prior order, appeal filed within thirty days of second order denying motion to vacate but five months after first order denying motion was not timely filed -- No merit to argument that first order denying motion was legal nullity that court lacked jurisdiction to issue because plaintiff had taken voluntary dismissal before order was issued

16 Fla. L. Weekly Supp. 1067b

Online Reference: FLWSUPP 1611FRAN

Insurance -- Personal injury protection -- Striking of affirmative defense

16 Fla. L. Weekly Supp. 956a

Online Reference: FLWSUPP 1610VASQ

Insurance -- Personal injury protection -- Answer and affirmative defenses -- More definite statement is ordered as to which bills or services insurer alleges fail to follow CPT codes, which services it alleges were upcoded, and which bills it alleges were not timely submitted -- Affirmative defenses alleging that medical provider has charged unreasonable and excessive fee and billed for services not rendered are denials of allegations of complaint, not affirmative defenses, and are stricken

16 Fla. L. Weekly Supp. 472a

Online Reference: FLWSUPP 165ADRIE

Insurance -- Personal injury protection -- Examination under oath -- Failure to attend -- Where insurer failed to schedule EUOs within 30 days of receiving notice of claim and did not have reasonable proof that it was not responsible for payment of claim, insured's failure to attend EUOs did not give insurer right to deny benefits -- Insured had no duty to attend second set of EUOs scheduled after insurer cut off benefits based on failure to attend independent medical examinations -- Insured's failure to attend IMEs did not give insurer right to deny benefits where all dates of service predate missed IMEs -- Notice of loss -- Where insurer received bills 32 days after start of treatment but 41 days after accident, question of whether provider failed to properly notify insurer of existence of claim or withheld notice of loss is question of fact for jury -- Affidavit of peer review physician swearing to “best of his knowledge” is defective, but may be corrected -- Hearing on motion for summary judgment on issue of reasonableness, relatedness and necessity of treatment is continued to address whether peer review affidavit that is not based on all medical records should be stricken where insurer claims that records allegedly omitted from review were not furnished by provider

16 Fla. L. Weekly Supp. 456a

Online Reference: FLWSUPP 165RODRI

Insurance -- Personal injury protection -- Accord and satisfaction -- Where in response to demand letter insurer sent explanation of benefits listing reduced amounts it was allowing for charges and check for reduced amounts which conspicuously contained language indicating that payment was in full and final payment of PIP benefits, and medical provider negotiated check and had no further contact with insurer about reduced amounts paid, accord and satisfaction of charges at issue occurred

16 Fla. L. Weekly Supp. 781a

Online Reference: FLWSUPP 168BAPTI

Insurance -- Personal injury protection -- Accord and satisfaction -- Conspicuous statement -- Where full and final payment language in insurance draft for reduced amount of claim was located in the “pay to order” section of draft, not at heading of draft, and was in the same size font as surrounding text, and full and fair language in accompanying explanation of benefits was also in same size font as surrounding text, neither draft nor EOB contained conspicuous statement that draft was tendered as full satisfaction of claim -- Medical provider's endorsement and cashing of draft did not give rise to accord and satisfaction precluding action for unpaid portion of bills

16 Fla. L. Weekly Supp. 97b

Insurance -- Personal injury protection -- Accord and satisfaction -- Where medical provider cashed draft tendered by insurer that contained conspicuous notation that draft was for “full/final PIP payment,” insured's claim was unliquidated and subject to bona fide dispute, and amount was tendered in good faith, final judgment is rendered in favor of insurer

16 Fla. L. Weekly Supp. 1068a

Online Reference: FLWSUPP 1611APER

Insurance -- Personal injury protection -- Affirmative defenses -- Accord and satisfaction -- Where medical provider has submitted affidavit attesting that provider's acceptance of insurer's check for reduced payment was not intended as full and final settlement of provider's entire claim, factual issue exists as to intent to effectuate accord and satisfaction, and summary judgment is precluded

16 Fla. L. Weekly Supp. 1171a

Online Reference: FLWSUPP 1612MART

Insurance -- Personal injury protection -- Accord and satisfaction -- Conspicuous statement -- Where writing stating that check was full and final payment for PIP benefits was in capital letters, but writing was in smaller font than other writing on check and was included among two other lines of similar font, and writing was not in contrasting color or set off by any symbol or mark that would call attention to language, language is not conspicuous in relation to whole of instrument -- Insurer's motion for final summary judgment denied

16 Fla. L. Weekly Supp. 722a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 17 Fla. L. Weekly Supp. 327a

Online Reference: FLWSUPP 168UBEDA

Insurance -- Personal injury protection -- Demand letter -- Premature sending of demand letter before claim was overdue is deficiency that could not be cured by sending second demand letter while lawsuit was pending -- Premature demand letter is deficiency which necessitates abatement or voluntary dismissal

16 Fla. L. Weekly Supp. 979a

Online Reference: FLWSUPP 1610JAIM

Insurance -- Personal injury protection -- Misrepresentations -- By proceeding with claim as if no material misrepresentation existed, insurer waived right to assert that defense

16 Fla. L. Weekly Supp. 854a

Online Reference: FLWSUPP 169GIBBS

Insurance -- Personal injury protection -- Med Pay -- Insurer that paid benefits from Med Pay coverage after receipt of demand letter was not required to pay interest, penalty, and postage

16 Fla. L. Weekly Supp. 593a

Online Reference: FLWSUPP 166GODOY

Insurance -- Personal injury protection -- Mediation -- Failure to appear -- Sanctions -- Neither medical provider's attorney nor staff member of law firm can be representative of provider when mediation order requires provider's appearance at mediation, even if provider has given purported representative full authority to settle case -- Dismissal is not warranted where provider offered some legal argument to support conduct and complied with mediation order after motion for sanctions was filed -- Attorney's fees awarded as sanction

16 Fla. L. Weekly Supp. 951b

Online Reference: FLWSUPP 1610BALI

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Exhaustion of policy limits -- Absent showing of bad faith or irregularity in manner in which bills were processed by insurer, neither insured nor medical provider/assignee can bring claim for benefits, statutory interest, or penalties where policy limits are exhausted and insurer has satisfied its contractual duties to insured -- Insurer had no duty to escrow benefits pending resolution of contested claim

16 Fla. L. Weekly Supp. 622a

Online Reference: FLWSUPP 167RICHA

Insurance -- Personal injury protection -- Penalty for overdue benefits should be imposed only on benefits themselves, not on interest accrued on benefits

16 Fla. L. Weekly Supp. 388a

Online Reference: FLWSUPP 165LEVIN

Torts -- Negligence -- Insured's action against insurer for breach of duty to ensure adequacy of policy limits -- Error to dismiss complaint where four corners of complaint set forth elements of duty of care, breach of that duty, causation and damages and attached documents demonstrating that insurer raised insured's policy limits on personal property and loss of use every year while limits on residence, personal liability and medical payments to others remained the same could support claim that insurer acted as insured's agent and owed duty of care

16 Fla. L. Weekly Supp. 763c

Online Reference: FLWSUPP 168STEVE

Insurance -- Personal injury protection -- Insolvent insurers -- Florida Insurance Guaranty Association Act -- Motion to dismiss PIP case pursuant to provision of FIGA prohibiting commencement or continuation of action against insolvent insurer is denied where insurer was subject of order of rehabilitation, not order of liquidation -- Insurer that is subject to order of rehabilitation is not “insolvent insurer” as defined by FIGA

16 Fla. L. Weekly Supp. 391a

Online Reference: FLWSUPP 165PITAL

Insurance -- Personal injury protection -- Insolvent insurers -- Florida Insurance Guaranty Association Act -- No error in granting summary judgment in favor of medical provider that submitted bill to insurer that was in rehabilitation and later became insolvent where provider complied with requirements of PIP law, and bill appears be covered claim under FIGA Act -- Other bills that FIGA covered and on which it asserts it exhausted policy limits were gratuitous and should not be counted against policy limit -- FIGA's immunity does not extend to breach of contract actions

16 Fla. L. Weekly Supp. 390a

Online Reference: FLWSUPP 165DANIE

Insurance -- Personal injury protection -- Insolvent insurer -- Florida Insurance Guaranty Association Act -- No error in granting summary judgment in favor of medical provider that submitted bill to insurer that was in rehabilitation and later became insolvent where provider complied with requirements of PIP law, and bill appears be covered claim under FIGA Act -- Other bills that FIGA covered and on which it asserts it exhausted policy limits were gratuitous and should not be counted against policy limit -- FIGA's immunity does not extend to breach of contract actions

16 Fla. L. Weekly Supp. 413b

Online Reference: FLWSUPP 165NIEVE

Insurance -- Personal injury protection -- Coverage -- Claimant who failed to maintain insurance on own vehicle -- Inoperable vehicle -- Evidence -- Abuse of discretion to exclude, on grounds of insufficiency, insurer's evidence of prevailing weather conditions in area, proffered to rebut claimant's assertion that inclement weather rendered own vehicle inoperable and thus exempt from requirement to maintain PIP coverage -- Factual questions about contents of evidence go to weight to be given evidence, not its admissibility

16 Fla. L. Weekly Supp. 821a

Online Reference: FLWSUPP 169RODRI

Insurance -- Personal injury protection -- Coverage -- Insured occupying vehicle not covered by policy -- Where at time of accident insured was driving vehicle owned by insured's resident wife who is named insured under policy, and policy excludes coverage for named insured while occupying vehicle owned by named insured and not covered under policy, insurer does not owe PIP benefits to insured or medical provider/assignee

16 Fla. L. Weekly Supp. 961a

Online Reference: FLWSUPP 1610BUCK

Insurance -- Personal injury protection -- Judicial notice -- Motion to take judicial notice of Medicare schedule and workers' compensation schedule is denied -- Provision of PIP statute allowing consideration of evidence of federal and state fee schedules applicable to “automobile and other insurance coverages” does not include Medicare which is social welfare legislation, not insurance program -- Insurer has failed to demonstrate that workers' compensation schedule is material

16 Fla. L. Weekly Supp. 575b

Online Reference: FLWSUPP 166LAUR2

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Evidence -- Judicial notice is taken of Medicare Part B Fee Schedule and Workers' Compensation Fee Schedule

16 Fla. L. Weekly Supp. 335a

Online Reference: FLWSUPP 164SAYLE

Insurance -- Personal injury protection -- Judicial notice -- Medicare Part B Participating Physician Fee Schedule and Workers' Compensation Fee Schedule are relevant and shall be admissible at trial

16 Fla. L. Weekly Supp. 870a

Online Reference: FLWSUPP 169OAKLA

Insurance -- Personal injury protection -- Examination under oath is admissible under recorded recollection exception to hearsay rule

16 Fla. L. Weekly Supp. 947a

Online Reference: FLWSUPP 1610EMI2

Insurance -- Personal injury protection -- Examination under oath -- Proper remedy for failure to satisfy condition precedent of submission to EUO which includes questions calling for narrative answer is dismissal without prejudice to satisfy condition precedent, not summary judgment

16 Fla. L. Weekly Supp. 305b

Online Reference: FLWSUPP 164DAVIS

Insurance -- Personal injury protection -- There is no legal duty presuit for insurer to provide insured or its assignee with copies of PIP policy, declarations page or PIP log

16 Fla. L. Weekly Supp. 230a

Online Reference: FLWSUPP 163QUINO

Insurance -- Personal injury protection -- There is no legal duty presuit for insurer to provide insured or its assignee with copies of PIP policy, declarations page or PIP log

16 Fla. L. Weekly Supp. 175b

Online Reference: FLWSUPP 162EDOUA

Insurance -- Personal injury protection -- Section 627.4137 requires insurer to provide copy of PIP policy and declarations page upon presuit request by medical provider -- Providing documents to insured's attorney did not satisfy insurer's obligation to furnish documents to provider

16 Fla. L. Weekly Supp. 164b

Online Reference: FLWSUPP 162DOAN

Insurance -- Personal injury protection -- Discovery -- Insurer's presuit discovery of facts is not limited to five areas of inquiry listed in section 627.736(6)(b) -- Insurer is entitled to presuit discovery of all documents and information requested from medical provider with exception of items seeking any and all information evidencing what provider billed to and accepted from Medicare, Medicaid, workers' compensation, and private healthcare insurers as payment for CPT codes at issue -- Provider ordered to produce for depositions all persons involved in determination, selection, and utilization of CPT Codes and charges associated therewith as reflected in claim forms submitted to insurer, as well as information or documentation evidencing what provider billed to and accepted from any and all PIP insurers during specified period

16 Fla. L. Weekly Supp. 443a

Online Reference: FLWSUPP 165GONZA

Insurance -- Personal injury protection -- Discovery -- Medical records of nonparties -- Reports of independent medical examinations of other claimants conducted by medical expert for insurer are discoverable in PIP case -- IME reports are not patient medical records and, when properly redacted, no privacy law would prohibit their discovery

Cert. dismissed without addressing merits, 18 Fla. L. Weekly Supp. 162c.

16 Fla. L. Weekly Supp. 732b

Online Reference: FLWSUPP 168LOUI2

Insurance -- Personal injury protection -- Discovery -- Medical records of nonparties -- Statute requiring doctor performing independent medical examination to maintain copies of all examination reports and payment records for past three years does not require doctor to produce reports and records -- If production is required by statute, trial court erred in compelling discovery of medical records of nonparties who did not receive notice of disclosure

16 Fla. L. Weekly Supp. 732a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 16 Fla. L. Weekly Supp. 732b

Online Reference: FLWSUPP 168LOUIS

Insurance -- Personal injury protection -- Discovery -- Appeals -- Where appellate court granted insurer's petition for writ of certiorari challenging discovery order without affording medical provider opportunity to present argument in opposition to petition, motion for rehearing is granted and order granting petition is vacated -- All lower court proceedings are stayed pending disposition of petition

16 Fla. L. Weekly Supp. 728b

Online Reference: FLWSUPP 168COOPE

Insurance -- Personal injury protection -- Discovery -- Medical records of nonparties -- Error to compel insurer's medical expert to produce copies of all independent medical examinations and peer reviews performed in past three years on nonparties without providing notice of disclosure to nonparties

16 Fla. L. Weekly Supp. 401c

Online Reference: FLWSUPP 165CHERY

Insurance -- Personal injury protection -- Discovery -- Medical records of nonparties -- Because purpose of statutory requirement that physicians who conduct independent medical examinations maintain copies of all examination reports and payment records for three years was not to accommodate discovery requests but to improve IME reports, IME physician should not be required to produce records -- Even if statute requires IME physician to produce reports and payment records, trial court erred in compelling disclosure of records of nonparties who did not receive notice of disclosure

16 Fla. L. Weekly Supp. 35a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 16 Fla. L. Weekly Supp. 732a

Insurance -- Personal injury protection -- Discovery -- Error to compel physician who conducted independent medical examination to disclose IME and peer review reports for past three years without notice to nonparty PIP plaintiffs

16 Fla. L. Weekly Supp. 476a

Online Reference: FLWSUPP 165BLANC

Insurance -- Personal injury protection -- Discovery -- Medical records of nonparties -- With proper discovery safeguards and limitations in place, objections to production of reports of independent medical examinations performed by IME physician for insurer prior to and subsequent to IMEs of insured are overruled where requested discovery falls within purview of PIP statute requiring IME physician to maintain records and does not seek information recognized as medical record or confidential information of other claimants

16 Fla. L. Weekly Supp. 779b

Online Reference: FLWSUPP 168KERSA

Insurance -- Personal injury protection -- Discovery -- Failure to comply -- Sanctions -- Default -- Where insurer has repeatedly failed to comply with court orders compelling discovery and orders to pay sanctions imposed for noncompliance, default is entered in favor of insured

16 Fla. L. Weekly Supp. 626b

Online Reference: FLWSUPP 167SMIT2

Insurance -- Personal injury protection -- Discovery -- Failure to comply -- Sanctions -- Error to impose discovery sanctions on insurer without prior notice and without making express findings of bad faith or egregious conduct -- Order granting discovery sanctions is quashed where trial court found that attorney's six-month delay in filing motion for relief from admissions that occurred due to neglect of prior counsel did not result in prejudice to medical provider, and two prior discovery violations that occurred under prior counsel could not serve as predicate for invoking court's inherent authority to sanction improper conduct as deterrent to future misconduct

16 Fla. L. Weekly Supp. 98a

Insurance -- Personal injury protection -- Discovery -- Subpoena duces tecum seeking production at trial of all payment records of physician for peer reviews performed during past three years is quashed where there exists no method to effectively protect privacy rights of nonparty patients involved, and there are less burdensome and less intrusive methods of obtaining financial information to be used to show bias of physician

16 Fla. L. Weekly Supp. 303a

Online Reference: FLWSUPP 164MICHE

Insurance -- Personal injury protection -- Discovery -- Medical records of nonparties -- Error to compel insurer's expert witness to produce reports of all IME and peer reviews performed in past three years without notice to non-party personal injury patients

16 Fla. L. Weekly Supp. 233a

Online Reference: FLWSUPP 163MITCH

Insurance -- Personal injury protection -- Discovery -- Medical records of nonparties -- Insurer's expert witness should not be required to produce reports of all independent medical examinations and peer reviews performed in past three years -- Even if production is required, trial court departed from essential requirements of law by requiring production without notice to non-party personal injury patients

16 Fla. L. Weekly Supp. 336a

Online Reference: FLWSUPP 164VELA

Insurance -- Personal injury protection -- Discovery -- Medical records of nonparties -- Subpoena duces tecum seeking reports of all IMEs and peer reviews performed by insurer's expert witness within past three years and financial documents reflecting payments to expert is beyond scope of discovery and violates HIPPA -- Amendment to PIP statute requiring physicians to retain records for three years has no relevance to appropriate scope of discovery, which is defined by Rules of Civil Procedure

16 Fla. L. Weekly Supp. 963b

Online Reference: FLWSUPP 1610GILF

Insurance -- Personal injury protection -- Discovery -- Medical provider's motion to compel discovery of transcript of examination under oath is denied without prejudice to renew motion if it becomes apparent that insurer intends to use transcript

16 Fla. L. Weekly Supp. 577a

Online Reference: FLWSUPP 166GONZA

Insurance -- Personal injury protection -- Discovery -- Transcript of examination under oath -- Motion to compel insurer to produce EUO transcript is granted where transcript goes to heart of insurer's defense that services were not rendered -- Mediation is ordered, and motion to set trial is granted

16 Fla. L. Weekly Supp. 333a

Online Reference: FLWSUPP 164CAPEN

Insurance -- Personal injury protection -- Discovery -- Documents -- Motion to compel disclosure of documents showing how information from other medical insurers was used to determine appropriateness of services and all NCCI edits that form basis of nonpayment is granted

16 Fla. L. Weekly Supp. 1065a

Online Reference: FLWSUPP 1611BART

Insurance -- Personal injury protection -- Discovery -- Database program -- Medical provider is instructed to subpoena third-party owner of database/auditing system used to reduce bills at issue to obtain information on database program that is not in possession of insurer -- If information is not produced by insurer or owner, testimony from owner's agents or employees may not be heard at trial

16 Fla. L. Weekly Supp. 47a

Insurance -- Personal injury protection -- Declaratory judgment -- Insurer is obligated to furnish copy of compulsory medical examination reports, transcript of examination under oath, and non-privileged portions of PIP file to insured -- Insurer erroneously applied deductible to benefits owed to insured -- Insurer is obligated to compensate insured for lost wages and mileage associated with attendance at CMEs and EUO -- Insured was justified in returning checks tendered by insurer that reflected erroneous application of deductible and contained notation that they were “full and final payment”

16 Fla. L. Weekly Supp. 441a

Online Reference: FLWSUPP 165CENTU

Insurance -- Personal injury protection -- Discovery -- Claim notes and transcribed statement are subject to production

16 Fla. L. Weekly Supp. 669a

Online Reference: FLWSUPP 167ROBIN

Insurance -- Personal injury protection -- Discovery -- Documents -- Work product privilege -- Adjuster's file and initial claim investigation form are protected by work product privilege -- Medical provider has not established undue hardship in preparation for trial necessitating invasion of privilege

16 Fla. L. Weekly Supp. 201a

Online Reference: FLWSUPP 162JOSEP

Insurance -- Personal injury protection -- Discovery -- Physician-patient privilege -- Medical records received by insurer from other medical providers for claim are not protected by physician-patient privilege where plaintiff medical provider is entitled to records through assignment of benefits -- Further, assignment at issue includes specific authorization for provider to receive medical records -- Work product privilege -- Where descriptions of claim file, adjuster notes and investigation material in amended privilege log are not specific enough to determine whether documents are privileged, any work product privilege is waived -- Claims files, adjuster notes and investigation material created prior to date of demand letter are not protected by work product or attorney-client privileges

16 Fla. L. Weekly Supp. 1029c

Online Reference: FLWSUPP 1611JARA

Insurance -- Personal injury protection -- Discovery -- Medical records of nonparties -- Error to compel insurer's medical expert to produce copies of all independent medical examinations and peer reviews performed on nonparties in year in which expert performed IME or peer review on insured without providing notice of disclosure to nonparties

16 Fla. L. Weekly Supp. 1137a

Online Reference: FLWSUPP 1612UNIT

Insurance -- Personal injury protection -- Discovery -- Medical records of nonparties -- Trial court departed from essential requirements of law by compelling insurer's medical expert to produce conclusions in all independent medical examinations and peer reviews performed in past three years on nonparties after redaction of medical history, exam description, and identifying biographical information, without cost of labor

16 Fla. L. Weekly Supp. 1138b

Online Reference: FLWSUPP 1612CACE

Insurance -- Personal injury protection -- Discovery -- Independent medical examinations and peer reviews -- Error to compel insurer's medical expert to disclose IMEs and peer reviews prepared at request of insurer for past three years

16 Fla. L. Weekly Supp. 931a

Online Reference: FLWSUPP 1610COMP

Insurance -- Personal injury protection -- Discovery -- Medical records of nonparties -- Error to compel insurer's medical expert to disclose independent medical examination and peer reviews performed in past three years on nonparties without notice to nonparties

16 Fla. L. Weekly Supp. 1016a

Online Reference: FLWSUPP 1611 FALC NOT FINAL VERSION OF OPINION
Subsequent Changes at 17 Fla. L. Weekly Supp. 79a

Appeals -- Certiorari -- Discovery order -- Insurance -- Independent medical examinations and peer reviews prepared by insurer's expert witness for six months prior to examination of insured

16 Fla. L. Weekly Supp. 851a

Online Reference: FLWSUPP 169ROBER

Insurance -- Personal injury protection -- Discovery -- Failure to comply -- Sanctions -- Motion to strike insurer's pleadings is granted where insurer's six-year pattern of withholding discovery and misleading court and medical provider on ultimate issue of pattern of taking unwarranted PPO reductions was willful, deliberate and contumacious; insurer has been previously sanctioned; conduct was not wholly attributable to insurer's attorney; delays prejudiced provider through expenditure of undue time and expense; there is no justification for noncompliance, and noncompliance created significant problems of judicial administration

16 Fla. L. Weekly Supp. 976b

Online Reference: FLWSUPP 1610DUNC

Insurance -- Personal injury protection -- Discovery -- Failure to comply -- Sanctions -- Where insurer has violated four discovery orders, been monetarily sanctioned and remains in contumacious disregard of court's order to provide discovery regarding expert witness, witness is stricken

16 Fla. L. Weekly Supp. 782a

Online Reference: FLWSUPP 168TORRE

Insurance -- Personal injury protection -- Discovery -- Failure to comply -- Sanctions -- Expert witness is stricken as sanction for insurer's repeated failure to provide discovery regarding other cases in which expert has testified by deposition or at trial

16 Fla. L. Weekly Supp. 826a

Online Reference: FLWSUPP 169RIOS

Insurance -- Personal injury protection -- Discovery -- No abuse of discretion in striking insurer's expert witness on basis that witness failed to comply with order compelling better answers to interrogatories

16 Fla. L. Weekly Supp. 265a

Online Reference: FLWSUPP 163CARPE

Insurance -- Personal injury protection -- Discovery -- Interrogatories -- Insurer's use of expert witness -- Insurer is only required to answer interrogatories regarding number of times expert has testified for lawyers or law firm representing insurer, fee charged for examination of insured, and number of occasions in last three years that expert has examined other persons insured by insurer -- Remaining question regarding identity of all cases within last three years in which expert has testified at trial or in deposition and approximation of expert's involvement as expert witness must be directed to expert in deposition

16 Fla. L. Weekly Supp. 1079b

Online Reference: FLWSUPP 1611SAND

Insurance -- Personal injury protection -- Discovery -- Relationship of insurer and medical expert -- Insurer is ordered to produce copies of 1099's paid to compensate expert for performing independent medical examinations and peer reviews for three years prior to and three years subsequent to date of peer review in case and claim numbers of any IMEs or peer reviews performed by expert during that period where relationship of insurer to expert is discoverable, and record is devoid of evidence to support claim of undue burden -- Insurer waived objections that discovery sought was overly broad and burdensome by failing to timely respond to request to production, and failed to substantiate objection in any manner

16 Fla. L. Weekly Supp. 374a

Online Reference: FLWSUPP 165HARPE

Insurance -- Personal injury protection -- Error to enter summary judgment in favor of medical provider where provider's affidavit asserting that all bills were reasonable and affidavit of insurer's medical expert asserting that charge was above usual and reasonable fee charged for service created genuine issue of material fact -- Discovery -- Depositions -- Expert witness fee -- Order granting expert witness fee to treating physician for deposition testimony is affirmed where insurer failed to provide appellate court with transcript of hearing on motion for expert witness fee -- Attorney's fees -- Appellate fees awarded to insurer

16 Fla. L. Weekly Supp. 1029a

Online Reference: FLWSUPP 1611DELC

Insurance -- Personal injury protection -- Discovery -- Appeals -- Petition for writ of certiorari seeking review of order compelling answers to interrogatories is denied where insurer's claim of irreparable harm is based on speculation that insurer will not able to answer interrogatories, medical provider will move to strike insurer's expert, provider's motion will be granted, and insurer will be left without a defense -- Moreover, insurer acknowledges that issue can be reviewed on plenary appeal

16 Fla. L. Weekly Supp. 638a

Online Reference: FLWSUPP 167HAMIL

Insurance -- Personal injury protection -- Discovery -- Admissions -- Trial court erred in denying motion for relief from technical admissions and entering summary judgment in favor of medical provider based on admissions where insurer sought to withdraw technical admissions three months before motion for summary judgment was filed, record contained sufficient evidence to create issue of disputed fact, and provider has not shown that it would be prejudiced by withdrawal of technical admissions

16 Fla. L. Weekly Supp. 1157a

Online Reference: FLWSUPP 1612GRAN

Insurance -- Personal injury protection -- Discovery -- Depositions -- Medical provider's objections to subpoena duces tecum requiring production at deposition of documents reflecting fee schedule, relationship with billing company, sharing of facilities or equipment, correspondence regarding billing procedures and fees, and documents relating to treatment and billing for insured are overruled

16 Fla. L. Weekly Supp. 595b

Online Reference: FLWSUPP 166CADEA

Insurance -- Personal injury protection -- Discovery -- Expert witness fee -- Treating physician who stands to benefit directly from PIP claim as owner and employee of medical provider is not entitled to expert witness fee for deposition testimony -- Issue in determining whether expert is entitled to fee is whether expert is allied with party, not whether expert will give opinion testimony

16 Fla. L. Weekly Supp. 104b

Insurance -- Personal injury protection -- Discovery -- Depositions -- Expert witness fee -- Treating physician is not entitled to expert witness fee for deposition testimony regarding facts surrounding treatment of insured -- Question certified: Is a treating physician who has brought an action seeking payment of personal injury protection benefits, entitled to be paid an “expert witness” fee when deposed by the defendant insurance carrier regarding the facts surrounding the treatment of the patient?

16 Fla. L. Weekly Supp. 221b

Online Reference: FLWSUPP 163OSBOU

Insurance -- Personal injury protection -- No error in finding demand letter sufficient or in ordering insurer to pay expert witness fee as condition of deposing treating physician

16 Fla. L. Weekly Supp. 590a

Online Reference: FLWSUPP 166TORO

Insurance -- Personal injury protection -- Discovery -- Deposition of insurer's litigation adjuster shall take place in county where adjuster does business and lives

16 Fla. L. Weekly Supp. 771a

Online Reference: FLWSUPP 168SANCK

Insurance -- Personal injury protection -- Discovery -- Depositions -- Sanctions are imposed on insurer for failing to bring claim notes to deposition

16 Fla. L. Weekly Supp. 1158a

Online Reference: FLWSUPP 1612GRA2

Insurance -- Personal injury protection -- Discovery -- Depositions -- Expert witness fee -- Treating physician is not entitled to expert witness fee for deposition testimony, especially where physician is owner of medical provider that filed suit

16 Fla. L. Weekly Supp. 1143a

Online Reference: FLWSUPP 1612TELU

Insurance -- Personal injury protection -- Independent medical examination -- Failure to attend -- Error to find that insured's lack of notice of IME is valid reason for failure to attend IME where insured was represented by counsel, and counsel received valid notice of IME -- Discovery -- Depositions -- Expert witness fee -- Error to require insurer to pay expert witness fees to depose treating physicians

Cert. denied. 36 Fla. L. Weekly D54b.

16 Fla. L. Weekly Supp. 416a

Online Reference: FLWSUPP 165DIXON

Insurance -- Personal injury protection -- Discovery -- Depositions -- Corporate representative -- Fact that insurer named pre-litigation adjuster as person with most knowledge of claim in response to interrogatories did not mean adjuster is corporate representative designated to testify at deposition, especially where there is nothing to indicate that adjuster would have knowledge of affirmative defenses sought in notice of deposition -- Error to require adjuster to appear for deposition as insurer's corporate representative

16 Fla. L. Weekly Supp. 195b

Online Reference: FLWSUPP 162BENIT

Insurance -- Personal injury protection -- Default -- Where insurer who was provided notice of motion for default and reasonable amount of time to respond to motion has failed to respond, default is entered against insurer

16 Fla. L. Weekly Supp. 402a

Online Reference: FLWSUPP 165GONZ4

Insurance -- Personal injury protection -- Deductible -- Where insurer received bills in excess of PIP deductible from other medical providers before it received plaintiff medical provider's bills, but statute of limitations had run on bills from other providers, deductible is applicable to plaintiff medical provider's bills

16 Fla. L. Weekly Supp. 99a

Insurance -- Personal injury protection -- Declaratory judgment -- Failure to provide explanation of benefits results in breach of contract -- Letter denying claim that did not include all dates of service is legally insufficient EOB -- Assignee medical provider is entitled to copy of PIP policy and declarations page -- Insurer's obligation to provide policy and declarations page presuit is not satisfied by furnishing documents to insured's attorney

16 Fla. L. Weekly Supp. 450a

Online Reference: FLWSUPP 165BALON

Insurance -- Personal injury protection -- Declaratory judgment -- Medical provider's petition for declaratory relief seeking only advisory opinion as to sufficiency of disclosure and acknowledgment form submitted by provider is dismissed

16 Fla. L. Weekly Supp. 260a

Online Reference: FLWSUPP 163TORRE

Insurance -- Personal injury protection -- Declaratory action -- Petition that only seeks advisory opinion as to whether disclosure and acknowledgment form was properly completed does not state proper cause of action for declaratory relief

16 Fla. L. Weekly Supp. 946a

<Online Reference: FLWSUPP 1610 JEAN NOT FINAL VERSION OF OPINION
Subsequent Changes at 17 Fla. L. Weekly Supp. 352a

Insurance -- Personal injury protection -- Coverage -- Declaratory judgment -- Complaint seeking determination that plaintiff is entitled to insurance coverage is dismissed where plaintiff failed to satisfy condition precedent of submission to examination under oath, and bona fide dispute does not yet exist since coverage has not yet been denied

16 Fla. L. Weekly Supp. 246a

Online Reference: FLWSUPP 163DIREC

Torts -- Civil theft -- Fraudulent insurance claims -- Patient brokering -- Kickbacks -- Deceptive and unfair trade practices -- Insurer's action against medical provider, alleging provider committed civil theft and violated various state statutes by billing for medical services that were rendered by a health care provider to whom defendant referred his patients for range of motion and muscle testing -- Motion to dismiss civil theft count based on statute providing that civil theft statute does not impose civil liability regarding provision of health care at licensed facility or care provided by appropriately licensed personnel in any setting in which such personnel are authorized to practice is denied, as statute does not apply to civil theft claim based on defendant's billing practices -- Fraud count was plead with sufficient specificity to withstand motion to dismiss -- Motion to dismiss count for unjust enrichment denied, as deficiencies raised by defendant can be resolved through discovery -- Deceptive and unfair trade practices -- Motion to dismiss claim brought pursuant to Florida Deceptive and Unfair Trade Practices Act on ground that FDUTPA expressly does not apply to any person or activity regulated by the Florida Department of Insurance is denied -- Department of Insurance has no direct authority to regulate provider's alleged deceptive treatment or billing practices that gave rise to instant litigation -- Count alleging negligent billing practices is dismissed, without prejudice, and plaintiff provided leave to amend -- Count against codefendant alleging fraud was plead with requisite particularity and specificity -- Motion to dismiss this count is denied

16 Fla. L. Weekly Supp. 217b

Online Reference: FLWSUPP 163LOUIS

Insurance -- Personal injury protection -- Costs -- Expert witness fee -- No abuse of discretion in granting expert witness fees for lawyer who testified as expert as to reasonable attorney's fees despite claim that case was not exceptional case and testimony was not burdensome

16 Fla. L. Weekly Supp. 138b

Online Reference: FLWSUPP 162ESTRA

Insurance -- Personal injury protection -- Jurors -- Challenge -- Cause -- Error to refuse request to excuse juror whose statements showed that she would be biased against insurer and could not accept that insurer had right to hire independent doctor to dispute reasonableness of treatment -- Error to refuse to excuse second juror whose statements indicated that she would be biased against insurer -- Juror's statement, “I think I will give it a fair trial,” did not overcome reasonable doubt of her impartiality -- Continuance -- Denial -- No abuse of discretion in denying request to continue trial to afternoon due to unavailability of insurer's expert witness on reasonableness, relatedness and necessity of charges where insurer did not show due diligence in securing witness's presence despite trial court's clear expression of time at which witness needed to appear, and case had been pending for several years before several judges -- Moreover, there was no prejudice to insurer in omission of witness's testimony since trial court indicated that on cross-examination of medical provider's witnesses insurer had elicited legally sufficient impeachment to show that charges may not have been reasonable, related or necessary

16 Fla. L. Weekly Supp. 240a

Online Reference: FLWSUPP 163MURRA

Insurance -- Commercial property -- No merit to insurer's claim that business's recovery for new property damaged in hurricane is limited to costs of repair or replacement where clauses relied upon by insurer are limited by their terms to valuation of used property, and separate clause provides for valuation of new property at cost price to insured plus freight charges and assembly costs actually incurred

16 Fla. L. Weekly Supp. 608a

Online Reference: FLWSUPP 167CASTE

Insurance -- Personal injury protection -- Cancellation of policy -- Nonpayment of premium -- Trial court erred in granting motion for summary judgment on issue of whether policy had lapsed due to nonpayment of premium where insurer failed to attach documents referenced in motion and motion was supported only by affidavit -- Further, where motion was filed one month after complaint was filed, there was not enough discovery completed or evidence available for trial court to determine whether there was genuine issue of material fact

16 Fla. L. Weekly Supp. 753a

Online Reference: FLWSUPP 168GREEN

Insurance -- Personal injury protection -- Coverage -- Cancelled policy -- Where insured had notice of additional premium due on PIP policy and opportunity to pay premium and maintain policy but failed to do so, policy was cancelled prior to date of accident, and accident is not covered loss

16 Fla. L. Weekly Supp. 948c

Online Reference: FLWSUPP 1610KIRK

Insurance -- Homeowners -- Cancellation -- Notice to mortgagee -- Uncontroverted affidavit of insurer's operations manager setting forth proof of mailing notice of cancellation of policy to mortgagee more than ten days before cancellation sustains insurer's burden to show compliance with notice requirement where policy provides that proof of mailing will be sufficient proof of notice

16 Fla. L. Weekly Supp. 1149b

Online Reference: FLWSUPP 1612WALT

Insurance -- Workers' compensation -- First party bad faith action -- Discovery -- Work product -- Attorney-client privilege -- Comments in workers' compensation adjuster's notes regarding communications between carrier and its attorney discussing management of underlying workers' compensation claim and how to defend it before workers' compensation court are redacted from documents produced before delivery to plaintiff

16 Fla. L. Weekly Supp. 513a

Online Reference: FLWSUPP 166BEST

Insurance -- Automobile -- Appeals -- Absence of transcript -- Without transcript it is not possible to determine whether trial court erred by allowing insurer to bring court stenographer to trial -- No abuse of discretion in allowing claims adjuster to testify and excluding from evidence letter informing insured that his premiums were paid up to date

16 Fla. L. Weekly Supp. 131a

Online Reference: FLWSUPP 162MESA

Insurance -- Automobile -- Dismissal of action for breach of contract and declaratory relief against insurer that failed to pay vehicular sales tax for stolen vehicle prior to purchase of replacement vehicle and based sales tax payment on value of replacement vehicle rather than stolen vehicle -- Appeals -- Record -- Sufficiency -- Where transcript of hearing below is unavailable because there was no court reporter present, insured did not prepare statement of evidence, record neither reveals arguments presented to trial court nor reasoning applied by court in granting insurer's motion to dismiss, and there is no record of motion to dismiss other than brief notation in court minutes, record is insufficient to support determination that trial court erred

16 Fla. L. Weekly Supp. 1160b

Online Reference: FLWSUPP 1612PAUL

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

16 Fla. L. Weekly Supp. 705b

Online Reference: FLWSUPP 168RUMBO

Insurance -- Personal injury protection -- Attorney's fees -- No abuse of discretion in awarding attorney's fees to medical provider for time spent litigating motion to disqualify provider's counsel from participating in fee hearing -- Defense of motion was litigation over entitlement to fees

16 Fla. L. Weekly Supp. 1122a

Online Reference: FLWSUPP 1612ESPA

Insurance -- Personal injury protection -- Attorney's fees -- Motion to enforce settlement agreement -- Trial court did not err in finding that insured was not entitled to attorney's fees for filing motion to enforce settlement agreement where there is no showing that insurer's payment of settlement proceeds and additional interest was direct result of motion to enforce settlement, attorney's fees and costs for declaratory action that resulted in settlement were included in settlement, insurer never contested settlement and, although insured was on notice that payment of settlement proceeds could be delayed by insurer's counsel moving offices, insurer did not attempt to communicate with insurer's counsel before filing motion to enforce settlement

16 Fla. L. Weekly Supp. 731b

Online Reference: FLWSUPP 168HURTA

Insurance -- Personal injury protection -- No error in entering final judgment for medical provider and awarding attorney's fees where insurer refused to issue draft without endorsement which it admits is unenforceable

16 Fla. L. Weekly Supp. 531a

Online Reference: FLWSUPP 166SIEGF

Insurance -- Personal injury protection -- Attorney's fees -- Where medical provider withdrew all bills for service to insured on morning of day of hearing on insurer's verified petition for pure bill of discovery/motion for discovery and motion for good cause, but hearing proceeded as scheduled, insurer is entitled to attorney's fees for appearance at hearing and court reporter fees for certificates of nonappearances

16 Fla. L. Weekly Supp. 864b

Online Reference: FLWSUPP 169BRIGA

Insurance -- Personal injury protection -- Attorney's fees -- Proposal for settlement -- Where nominal offer of settlement was made without knowledge of exhaustion of benefits defense on which insurer prevailed, but instead was based on other defenses on which medical provider prevailed, offer bore no relationship to realistic assessment of liability under facts known to insurer's counsel at time offer was made and was not made in good faith -- Motion for attorney's fees and costs denied

16 Fla. L. Weekly Supp. 915a

Online Reference: FLWSUPP 1610GUZM

Insurance -- Personal injury protection -- Denial of benefits -- Valid medical report -- Although trial court erred in striking peer review because it was not procured within 30 days of notice of claim, decision in favor of insured is affirmed based on insurer's failure to obtain valid medical report prior to denial of claim -- No error in denying insurer's request to review insured's retainer agreement where there was no formal discovery request for production of agreement

16 Fla. L. Weekly Supp. 689a

Online Reference: FLWSUPP 167BLOME

Insurance -- Personal injury protection -- Attorney's fees -- Amount of reasonable attorney's fees determined -- Expert witness fees, costs and prejudgment interest awarded

16 Fla. L. Weekly Supp. 1102a

Online Reference: FLWSUPP 1611 JOHN

Insurance -- Personal injury protection -- Attorney's fees -- Amount -- Costs, expert witness fee and prejudgment interest awarded

16 Fla. L. Weekly Supp. 465b

Online Reference: FLWSUPP 165DELES

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

16 Fla. L. Weekly Supp. 342b

Online Reference: FLWSUPP 164GARCI

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

16 Fla. L. Weekly Supp. 342a

Online Reference: FLWSUPP 164ISOT

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

16 Fla. L. Weekly Supp. 341b

Online Reference: FLWSUPP 164CARUS

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

16 Fla. L. Weekly Supp. 340a

Online Reference: FLWSUPP 164ALFON

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

16 Fla. L. Weekly Supp. 337a

Online Reference: FLWSUPP 164MATEO

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

16 Fla. L. Weekly Supp. 335c

Online Reference: FLWSUPP 164RABAD

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

16 Fla. L. Weekly Supp. 335b

Online Reference: FLWSUPP 164PARRA

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

16 Fla. L. Weekly Supp. 515b

Online Reference: FLWSUPP 166 DUCHA

Insurance -- Personal injury protection -- Attorney's fees -- Prevailing medical provider

16 Fla. L. Weekly Supp. 189a

Online Reference: FLWSUPP 162GUTIE

Insurance -- Personal injury protection -- Attorney's fees -- Proposal or settlement -- Attorney's fees are awarded under offer of judgment statute where case was dismissed with prejudice for failure to comply with discovery orders -- There is no language in case law or section 768.79 suggesting that attorney's fees may only be awarded if judgment is made on merits of case

16 Fla. L. Weekly Supp. 635a

Online Reference: FLWSUPP 162ANDE2

Insurance -- Personal injury protection -- Appeals -- Issues not raised below -- Appellate court will not consider issues on standing and entitlement to attorney's fees not raised below -- Standing -- Alter ego -- Physician/assignee who is sole shareholder of medical provider cannot utilize alter ego doctrine to attain standing to sue in own name for medical provider's services -- Attorney's fees -- Judiciable issues -- No merit to claim that trial court erred in assessing section 57.105 fees against physician after stating that assignment of benefits presented justiciable issues upon which physician could have reasonably believed he could prevail where transcript reveals that trial court never determined that assignment presented justiciable issues

16 Fla. L. Weekly Supp. 956b

Online Reference: FLWSUPP 1610BUIS

Insurance -- Personal injury protection -- Attorney's fees -- Justiciable issues -- Where insurer asserted in answer that it did not issue policy to insured and notified medical provider and its attorney of name of proper carrier, insurer is entitled to award of attorney's fees and costs -- Where provider's attorney was not acting in good faith, provider and attorney shall be jointly and severally responsible for fees and costs

16 Fla. L. Weekly Supp. 768c

Online Reference: FLWSUPP 168MORAL

Insurance -- Personal injury protection -- Attorney's fees -- Justiciable issues -- Attorneys fees and costs are awarded to insurer under section 57.105 where medical provider filed suit against wrong corporate entity

16 Fla. L. Weekly Supp. 188a

Online Reference: FLWSUPP 162MEJIA

Insurance -- Personal injury protection -- Attorney's fees -- Justiciable issues -- Where at time of filing suit attorney for medical provider had actual and constructive knowledge that any claim by provider for PIP benefits had been extinguished by prior settlement months earlier, insurer's attorney's fees are assessed against attorney

16 Fla. L. Weekly Supp. 920a

Online Reference: FLWSUPP 1610ORTI

Insurance -- Personal injury protection -- Attorney's fees -- Justiciable issues -- Error to deny award of attorney's fees to insurer where medical provider pursued suit for six months after discovery despite sworn discovery asserting lack of coverage due to expiration of policy prior to accident

16 Fla. L. Weekly Supp. 768d

Online Reference: FLWSUPP 168MUNOZ

Insurance -- Personal injury protection -- Attorney's fees -- Justiciable issues -- Where summary judgment was granted in favor of insurer based on invalid demand letter, insurer is entitled to award of attorney's fees pursuant to section 57.105(1)(a)

16 Fla. L. Weekly Supp. 196b

Online Reference: FLWSUPP 162WADE

Insurance -- Personal injury protection -- Attorney's fees -- Justiciable issues -- Where prior to filing complaint medical provider and its attorney were provided with explanations of benefits putting them on notice that benefits had been exhausted, and prior to voluntary dismissal provider and attorney were provided with PIP log reflecting payments up to policy limits, provider and attorney knew or should have known that claim when initially presented was not justiciable -- Attorney's fees and costs awarded to insurer