Volume 17

17 Fla. L. Weekly Supp. 1207a

Online Reference: FLWSUPP 1712FIRS

Insurance -- Title -- Action by property owner against title insurer, alleging liability under title policy for loss incurred due to power company's exercise of easement rights undisclosed in title search -- Irrespective of failure of title search to disclose easement and owner's repeated requests that title insurer confirm absence of easement, where owner had knowledge of existence and location of power lines on property, owner is charged as matter of law with knowledge of power company's easement rights prior to issuance of title insurance policy and is deemed to have agreed to easement -- Final summary judgment is granted in favor of insurer

17 Fla. L. Weekly Supp. 773a

Online Reference: FLWSUPP 1709NEVI

Insurance -- Settlement -- Enforcement -- Error to rule on cross-motions to enforce settlement without conducting evidentiary hearing and taking evidence -- Neither unsworn statements of counsel nor documents attached as exhibits to motions and memoranda are evidence

17 Fla. L. Weekly Supp. 179e

Online Reference: FLWSUPP 1703BEWE

Insurance -- Personal injury protection -- Attorney's fees -- Proposal for settlement -- Ambiguity -- Proposal for settlement was sufficiently clear to allow medical provider to make informed decision about what rights would be exercised or extinguished by signing proposal -- In absence of transcript of fee and cost hearing, appellate court is unable to evaluate claim that evidence was insufficient to justify award of entire amount of fees and costs requested by insurer

17 Fla. L. Weekly Supp. 108a

Online Reference: FLWSUPP 1702POE

Insurance -- Property -- Venue -- Citizens Property Insurance Corporation is a governmental entity entitled to assert home venue privilege in Leon County, irrespective of its failure to assert privilege in other cases -- Sword-wielder exception is inapplicable where complaint seeks to recover compensatory damages resulting from alleged breach of contract between Citizens and plaintiff and does not allege violation of fundamental constitutional right -- Second Circuit in Leon County has jurisdiction and is appropriate forum

17 Fla. L. Weekly Supp. 1211b

Online Reference: FLWSUPP 1712HENN

Insurance -- Property -- Conditions precedent -- Abatement -- Insured's alleged failure to comply with policy conditions prior to filing suit is defense to suit, not basis for abatement of suit -- Motion to abate and motion for protective order are denied

17 Fla. L. Weekly Supp. 715b

Online Reference: FLWSUPP 1708CUST

Small claims -- Pretrial conference -- Continuance -- Limitation -- Small claims rules prohibit setting pretrial conference more than 50 days after filing action

17 Fla. L. Weekly Supp. 719a

Online Reference: FLWSUPP 1708BRIZ

Insurance -- Personal injury protection -- Venue -- Forum non conveniens -- Where named insured and his injured child reside in Collier County, all medical services at issue were provided at facility in Collier County, and only nexus to Palm Beach County is location of medical provider's attorney's office, motion for change of venue is granted

17 Fla. L. Weekly Supp. 215a

Online Reference: FLWSUPP 1703JON2

Insurance -- Personal injury protection -- Venue -- Forum non conveniens -- Where insurer has failed to show through sworn testimony or statements how it is inconvenienced or prejudiced by medical provider's selection of venue, motion to transfer venue is denied

17 Fla. L. Weekly Supp. 92a

Online Reference: FLWSUPP 1702DEXT

Insurance -- Personal injury protection -- Private cause of action for violation of section 627.736 -- Legislature did not intend for violations of PIP statute to give rise to private cause of action -- Trial court erred in denying motion to dismiss with prejudice and imposing fines for violation of PIP statute

17 Fla. L. Weekly Supp. 122a

Online Reference: FLWSUPP 1702WITK

Insurance -- Personal injury protection -- Standing -- Admissions -- Medical provider's motion for summary judgment as to standing is granted where provider relies on insurer's admission that it has standing and, despite entry of an agreed order allowing insurer relief from admissions and notice of provider's intent to rely on admission, insurer has not filed motion to amend admission as to standing

17 Fla. L. Weekly Supp. 465b

Online Reference: FLWSUPP 1706CHAU

Insurance -- Personal injury protection -- Settlement -- Enforcement -- Insurer's motion to enforce settlement is denied where insurer tendered settlement check containing “full and final settlement” notation which was not mentioned in settlement negotiations

17 Fla. L. Weekly Supp. 820a

Online Reference: FLWSUPP 1709IMLE

Criminal law -- Post conviction relief -- Ineffective assistance of counsel -- Where defense counsel did not discuss allegations in police report with defendant or elicit defendant's recitation of facts and circumstances surrounding arrest, and but for these failures of counsel defendant would not have entered plea of nolo contendere to DUI charge, motion to withdraw plea and/or for post conviction relief is granted

17 Fla. L. Weekly Supp. 1123a

Online Reference: FLWSUPP 1711COMM

Insurance -- Personal injury protection -- Reimbursement -- Commercial carrier -- Insurer of owner of commercial motor vehicle is obligated to reimburse PIP insurer for all no-fault benefits paid on behalf of insured notwithstanding lack of PIP coverage in commercial vehicle policy

17 Fla. L. Weekly Supp. 138b

Online Reference: FLWSUPP 1702POLY

Insurance -- Personal injury protection -- Notice of loss -- Disclosure and acknowledgment form -- Medical provider substantially complied with D&A form requirement -- Insurer cannot raise deficiency of D&A form as defense after payment of claim

17 Fla. L. Weekly Supp. 190b

Online Reference: FLWSUPP 1703PERL

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 encouraging the reporting of fraud

17 Fla. L. Weekly Supp. 132a

Online Reference: FLWSUPP 1702TRAP

Insurance -- Personal injury protection -- Notice of loss -- Disclosure and acknowledgment form -- Where insurer failed to provide any evidence in opposition to medical provider's assertion that it provided two D&A forms which contained all services rendered on initial date of service, there is no genuine issue of fact precluding entry of partial summary judgment on affirmative defense of invalid D&A form -- Even if some services rendered were missing from forms, attachment of HCFA forms or medical bills would render D&A forms compliant -- Further, any material defect in D&A form would only result in non-payment for initial date of service

17 Fla. L. Weekly Supp. 199b

Online Reference: FLWSUPP 1703FORB

Insurance -- Personal injury protection -- Notice of loss -- Disclosure and acknowledgment form -- Failure to submit D&A form constitutes failure to provide notice of covered loss -- Providers of diagnostic services are exempt from requirement to obtain insured's countersignature on D&A form, but are not exempt from requirement to submit form

17 Fla. L. Weekly Supp. 1027b

Online Reference: FLWSUPP 1710BAR2

Insurance -- Personal injury protection -- Notice of loss -- Disclosure and acknowledgment form -- Failure to provide properly completed D&A form is not equivalent to no notice of covered loss -- D&A form is not condition precedent to payment of medical bills -- Where medical provider is clinic or medical institution, D&A form requirement only applied to initial date of service, irrespective of number of different medical professionals at facility who rendered subsequent treatment

17 Fla. L. Weekly Supp. 472a

Online Reference: FLWSUPP 1706GARR

Insurance -- Personal injury protection -- Notice of loss -- Disclosure and acknowledgment form -- Failure of medical clinic to provide D&A form satisfactory to insurer does not bar claim for initial visit or subsequent visits of insured for treatment related to same accident -- Because PIP policy and PIP statute incorporated therein do not make provision of sufficient D&A form necessary condition precedent to PIP claims, failure to provide form cannot constitute material breach of PIP contract -- No merit to argument that requirement for D&A form applies to initial visit to each medical professional employed by medical clinic who is licensed under different chapter; statute only requires one form from clinic or medical institution

17 Fla. L. Weekly Supp. 1001b

Online Reference: FLWSUPP 1710MONG

Insurance -- Personal injury protection -- Provider can properly furnish an insurer with written notice of the fact of a covered loss and of the amount of the same under section 627.736(4)(b) even if it fails to submit valid Disclosure & Acknowledgment form as required under section 627.736(5)(e) -- Trial court erred in entering judgment in favor of insurer on ground that D&A form submitted by provider, which did not indicate the services provided, was invalid

17 Fla. L. Weekly Supp. 1001a

Online Reference: FLWSUPP 1710DINK

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Notice of loss -- Provider can properly furnish an insurer with written notice of the fact of a covered loss and of the amount of the same under section 627.736(4)(b) even if it fails to submit valid Disclosure & Acknowledgment form as required under section 627.736(5)(e) -- Trial court erred in entering judgment in favor of insurer on ground that D&A form submitted by provider, which listed services provided as “Consult/Procedure” and attached HCFA forms detailing line item charges for services performed on the date of treatment, was invalid

17 Fla. L. Weekly Supp. 876a

Online Reference: FLWSUPP 1710LUCE

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Notice of loss -- Although Disclosure and Acknowledgment form submitted by provider which did not list or identify services rendered did not meet requirements of statute, it was sufficient to place insurer on notice of a covered loss -- Moreover, insurer waived defective D&A form by not addressing it in explanation of benefits and by paying bills, albeit at reduced rate -- Submission of D&A form is not condition to right to enforce a claim for payment -- Error to enter summary judgment in favor of insurer

17 Fla. L. Weekly Supp. 207a Online Reference: FLWSUPP 1703WROB Insurance -- Personal injury protection -- Notice of loss -- Disclosure and acknowledgment form -- PIP statute does not require…

17 Fla. L. Weekly Supp. 213a

Online Reference: FLWSUPP 1703AQUI

Landlord-tenant -- Eviction -- Notice -- Defects -- Three-day notice is fatally defective for giving less than three business days to pay or vacate, for failing to address co-tenant, and for failing to give five additional days for responding to notice served by certified mail -- Due to fatally defective notice and landlord's failure to terminate rental agreement prior to filing eviction action, there was no requirement for tenant to deposit rent into court registry -- Complaint dismissed without leave to amend

17 Fla. L. Weekly Supp. 1030b

Online Reference: FLWSUPP 1710FERN

Insurance -- Personal injury protection -- Independent medical examination -- Failure to attend -- Where it is undisputed that insured received notices of two IMEs and failed to attend IMEs without providing reason, excuse or explanation, final summary judgment is entered in favor of insurer

17 Fla. L. Weekly Supp. 986a

Online Reference: FLWSUPP 1710LAZO

Insurance -- Personal injury protection -- Coverage -- Medical benefits -- Denial -- Error to grant summary judgment in favor of provider on sclaim based on insurer's failure to provide explanation of benefits, as neither insured nor its assignee has private right of action against insurer for failure to provide EOB

17 Fla. L. Weekly Supp. 249a

Online Reference: FLWSUPP 1704LUZJ

Insurance -- Personal injury protection -- Explanation of benefits -- Failure to provide -- PIP statute does not provide private right of action against insurer for failing to provide EOB to insured

17 Fla. L. Weekly Supp. 42b

Online Reference: FLWSUPP 1701CAST

Insurance -- Personal injury protection -- Explanation of benefits -- Failure to provide -- Where medical provider, as assignee of insured, was on notice of insurer's suspension of benefits pursuant to independent medical examination cut-off prior to providing treatment to insured, insurer was not required to provide EOBs for claims submitted by provider

17 Fla. L. Weekly Supp. 272a

Online Reference: FLWSUPP 1704ADDI

Insurance -- Personal injury protection -- Declaratory judgment -- Insurer is obligated to provide insured with transcript of examination under oath

17 Fla. L. Weekly Supp. 216a

Online Reference: FLWSUPP 1703GODF

Insurance -- Personal injury protection -- Examination under oath -- Failure to attend -- Insurer's failure to notify insured or medical provider of alleged failure to appear at EUO prior to filing of lawsuit constituted waiver of defense -- Omnibus insured was not required to attend EUO under policy requiring named insured to submit to EUO

17 Fla. L. Weekly Supp. 929a

Online Reference: FLWSUPP 1710BLAN

Insurance -- Personal injury protection -- Discovery -- Depositions -- Expert witness fees -- No error in granting expert witness fees for deposition testimony of treating physicians where physicians were asked to provide opinions on subjects not pertaining to treatment of insured, and one physician was asked to give opinion concerning other physician's treatment -- Examination under oath -- Failure to attend -- No error in denying insurer's motion for summary judgment on issue of non-attendance at EUO where questions of fact existed as to whether insured received notice of EUO -- Evidence -- Hearsay -- Exceptions -- Business records -- EUO notice is hearsay, and trial court did not abuse its discretion in determining that testimony of adjuster was not competent to authenticate EUO notice or establish routine business practice necessary to admit notice as business record -- No abuse of discretion in excluding testimony of EUO department employee not listed in insurer's last timely filed pre-trial catalog -- In absence of any competent admissible evidence that EUO notice was sent to insured, trial court properly granted directed verdict for insured

17 Fla. L. Weekly Supp. 828b

Online Reference: FLWSUPP 1709OSOR

Insurance -- Personal injury protection -- Examination under oath -- Failure to attend -- Where insurer attempted to deliver EUO notice to insured at incorrect address provided in application for benefits and in policy, insurer made proper attempt to provide notice, and insured's failure to attend EUO is breach of condition precedent

17 Fla. L. Weekly Supp. 827a

Online Reference: FLWSUPP 1709PER2

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Examination under oath -- PIP statute does not contain provision making insured's attendance at EUO a condition of coverage -- Policy provision making EUO a condition precedent to payment of no-fault benefits conflicts with statutory requirements and is invalid

17 Fla. L. Weekly Supp. 202a

Online Reference: FLWSUPP 1703GOME

Insurance -- Personal injury protection -- Examination under oath -- Failure to attend -- Insured's obligation to attend EUO does not shift to medical provider merely because insured assigned benefits to provider -- Insurer may not enforce policy provision requiring that assignee submit to EUO

17 Fla. L. Weekly Supp. 198a

Online Reference: FLWSUPP 1703DIA3

Insurance -- Personal injury protection -- Examination under oath -- Failure to attend -- Medical provider/assignee was not required to attend EUO to assert right to PIP benefits

17 Fla. L. Weekly Supp. 225a

Online Reference: FLWSUPP 1703HART

Insurance -- Personal injury protection -- Examination under oath -- Failure to appear -- Where insured received notice of and unreasonably refused to attend two EUOs, insured's breach of PIP policy relieves insurer of any obligation to pay benefits -- No merit to argument that insurer waived EUO no-show defense by failing to list it on explanation of benefits where failure to attend EUO could not have been cured even if listed on EOB

17 Fla. L. Weekly Supp. 27a

Online Reference: FLWSUPP 1701HANS

Insurance -- Personal injury protection -- Demand letter was sufficient although it contained two bills that were in excess of what was in dispute in suit

17 Fla. L. Weekly Supp. 463b

Online Reference: FLWSUPP 1706BOOK

Insurance -- Personal injury protection -- Demand letter is insufficient where letter does not specify exact services and amounts claimed to be due, and insurer's explanation of review attached to letter states amount that conflicts with amount claimed in demand letter -- Motion to dismiss is granted

17 Fla. L. Weekly Supp. 386b

Online Reference: FLWSUPP 1705NELS

17 Fla. L. Weekly Supp. 118a

Online Reference: FLWSUPP 1702DERO

Insurance -- Personal injury protection -- Demand letter is sufficient where, although letter stated differing amounts claimed, insurer's correspondence demonstrates that it was provided information it needed to know exact amount of overdue claim and amount required to resolve claim without litigation

17 Fla. L. Weekly Supp. 123b

Online Reference: FLWSUPP 1702QUIN

Insurance -- Personal injury protection -- Demand letter sent to wrong carrier -- Medical provider's request to abate lawsuit to allow it to re-submit demand letter sent to wrong carrier and PIP contact is granted

17 Fla. L. Weekly Supp. 716a

Online Reference: FLWSUPP 1708BRAM

Insurance -- Personal injury protection -- Demand letter -- Sufficiency -- Waiver -- Where insurer stamped “Treated as Demand” on demand letter that contained inaccurate policy or claim number, wrote correct claim number on letter and sent medical provider letter stating that it had reviewed claim and demand letter and had decided to pay additional amount on claim, insurer waived defense of deficient demand letter

17 Fla. L. Weekly Supp. 1047a

Online Reference: FLWSUPP 1710DEME

Insurance -- Personal injury protection -- Demand letter -- Sufficiency -- Statutory requirement to provide copy of insurer's notice withdrawing payment and itemized plan for future treatment in demand letter only applies where medical provider seeks to obtain authorization for future treatment despite insurer's termination of benefits, not where provider only seeks payment for treatment already rendered

17 Fla. L. Weekly Supp. 38b

Online Reference: FLWSUPP 1701ARIA

Insurance -- Personal injury protection -- Demand letter -- Medical provider failed to provide “itemized statement” required by PIP statute where provider attached to demand letter HCFA forms that included charges in excess of amount sought in letter, and neither letter nor HCFA forms identified which charges and dates of service provider contends were paid and which remained due and owing -- Insurer's motion for summary judgment is granted

17 Fla. L. Weekly Supp. 124b

Online Reference: FLWSUPP 1702PEDR

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

17 Fla. L. Weekly Supp. 327a

Online Reference: FLWSUPP 1705UBED

NOT FINAL VERSION OF OPINION
Subsequent Changes at 18 Fla. L. Weekly Supp. 32a

Insurance -- Personal injury protection -- Demand letter -- Premature demand letter sent before claim was overdue failed to satisfy condition precedent to filing PIP suit -- Deficiency could not be cured by sending second demand letter while suit was pending -- Premature demand letter is deficiency that requires abatement or voluntary dismissal and refiling of action

17 Fla. L. Weekly Supp. 982b

Online Reference: FLWSUPP 1710ORTE

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Demand letter sent by assignee to insurer prior to insured's revocation of assignment apprising insurer that litigation would ensue for non-payment of PIP benefits for treatment given to insured was sufficient to notify insurer of impending lawsuit for nonpayment of PIP benefits and to provide insurer with opportunity to settle case or pay benefits without incurring attorneys' fees and costs -- Error to grant summary judgment pfor insurer on insured's complaint, filed after assignment was revoked and provider voluntarily dismissed its complaint, for failure to provide presuit notice required by statute

17 Fla. L. Weekly Supp. 741a

Online Reference: FLWSUPP 1709BUEN

Insurance -- Personal injury protection -- Error to grant insurer's motion for summary judgment based upon provider's failure to serve presuit demand letter, a condition precedent to filing of suit, where insurer did not move to dismiss initial complaint on this basis, provider subsequently served insurer with a demand letter, insurer refused to pay in response to the demand letter, provider filed amended complaint alleging compliance with condition precedent, and insurer did not raise demand letter issue in its motion to dismiss amended complaint or in its affirmative defenses to the amended complaint

17 Fla. L. Weekly Supp. 234a

Online Reference: FLWSUPP 168DEVOR

Insurance -- Personal injury protection -- Demand letter -- Presuit demand letter that requests amount in excess of amount insurer is required to pay under PIP statute and Medicare Part B schedules is invalid -- Failure to serve additional explanation of benefits when insurer pays additional amount in response to demand letter does not create cause of action for breach of contract or specific performance

17 Fla. L. Weekly Supp. 475a

Online Reference: FLWSUPP 1706GARC

Insurance -- Personal injury protection -- Where insurer determined to pay claim in full in response to demand letter, insurer was required to include $250 statutory penalty in its payment and make payment to attorney who submitted demand letter, not medical provider

17 Fla. L. Weekly Supp. 1033b

Online Reference: FLWSUPP 1710ROS2

Insurance -- Personal injury protection -- Demand letter that failed to account for deductible was deficient and failed to satisfy condition precedent to suit

17 Fla. L. Weekly Supp. 877a

Online Reference: FLWSUPP 1710GENE

Insurance -- Personal injury protection -- Coverage -- Where injured party claimed PIP benefits as a resident relative of the insured, and insurer obtained an affidavit from insured stating that on date of accident, claimant did not live with her and was not her relative, second affidavit in which insured contradicted her first affidavit was not sufficient to create genuine issue of material fact, particularly given insured's statement in her deposition that she had not read her second affidavit and her concession, when pressed at deposition, that original affidavit was correct -- No error in granting insurer's motion for summary judgment

17 Fla. L. Weekly Supp. 819a

Online Reference: FLWSUPP 1709BAYO

Insurance -- Personal injury protection -- Coverage -- Nurse practitioner -- PIP statute requires that reimbursement for services performed by nurse practitioner be determined in accordance with participating physicians fee schedule of Medicare Part B without reference to limitations on nurse practitioners contained in Code of Federal Regulations

17 Fla. L. Weekly Supp. 335b

Online Reference: FLWSUPP 1705SAGE

NOT FINAL VERSION OF OPINION
Subsequent Changes at 18 Fla. L. Weekly Supp. 173a

Insurance -- Personal injury protection -- Withdrawal or denial of benefits -- Valid medical report

17 Fla. L. Weekly Supp. 163b

Online Reference: FLWSUPP 1703ACUN

Insurance -- Personal injury protection -- Withdrawal of benefits -- Valid report for withdrawal of PIP benefits does not have to be issued by physician who has personally examined insured; it may be based on reporting physician's review of examination and treatment records of insured

17 Fla. L. Weekly Supp. 163a

Online Reference: FLWSUPP 1703ESCO

Insurance -- Personal injury protection -- Withdrawal of benefits -- Valid report for withdrawal of PIP benefits does not have to be issued by physician who has personally examined insured; it may be based on reporting physician's review of examination and treatment records of insured

17 Fla. L. Weekly Supp. 81b

Online Reference: FLWSUPP 1702RABA

Insurance -- Personal injury protection -- Withdrawal of benefits -- Valid report for withdrawal of PIP benefits does not have to be based upon physical examination conducted by physician preparing report; it may be based on physical examination performed by treating physician or independent medical examination

17 Fla. L. Weekly Supp. 516a

Online Reference: FLWSUPP 1707URBA

Municipal corporation -- Code enforcement -- Building code -- Keeping vacant unsecured structure -- Due process -- Notice -- Where city sent notices of code enforcement proceedings to property owner at correct address by certified mail and posted notice on property, due process was satisfied irrespective of property owner's actual receipt of notices -- Appeals -- Mitigation of fine -- Appeal of mitigation order does not confer jurisdiction to review underlying enforcement order and initial fine -- No merit to argument that fine is excessive and unfair where fine lies within range of fines prescribed by legislature -- There was no denial of due process at mitigation hearing where special master gave property owner notice and full hearing -- In mitigation proceeding, special master was not required to consider three factors code enforcement board is required to consider in levying fine -- Further, property owner waived issue of special master's failure to consider three factors by failing to raise specific objection during mitigation hearing

17 Fla. L. Weekly Supp. 1035a

Online Reference: FLWSUPP 1710DARI

Insurance -- Personal injury protection -- Venue -- Motion to dismiss PIP suit for improper venue is denied where venue is proper in county where medical provider/assignee maintains home billing office from which bills are generated, maintained and mailed and at which payments are due, processed and recorded

17 Fla. L. Weekly Supp. 821a

Online Reference: FLWSUPP 1709DESA

Insurance -- Personal injury protection -- Medical expenses -- Insurer entitled to summary judgment on provider's claim for payment where provider did not submit bills within 35 days of date provider was first put on notice that patient might have PIP coverage through policy of his mother, with whom he resided

17 Fla. L. Weekly Supp. 1187a

Online Reference: FLWSUPP 1712CANA

Insurance -- Personal injury protection -- Standing -- Assignment -- Despite insurer's half-hearted efforts to raise standing issue in timely manner, trial court abused its discretion by failing to address standing issue when raised in open court prior to trial and during post-trial hearing -- Withdrawal of benefits -- Independent medical examination -- Error to conclude that date of IME cutoff letter, rather than date of IME, is date for termination of benefits -- Notice of loss -- Disclosure and acknowledgment letter -- No error in limiting impact of deficient D&A form to disallowing claim for first date of treatment and awarding payment for subsequent dates of treatment

17 Fla. L. Weekly Supp. 1012a

Online Reference: FLWSUPP 1710PONS

Insurance -- Personal injury protection -- Error to enter summary judgment for medical provider based on technical admissions where insurer responded to request for admissions prior to hearing on motion for summary judgment, and record is replete with evidence contradicting technical admissions

17 Fla. L. Weekly Supp. 1177b

Online Reference: FLWSUPP 1712VALD

Insurance -- Personal injury protection -- Reasonable, related, and necessary medical treatment -- Summary judgment -- Opposing affidavit -- Error to fail to consider peer review affidavit because it was not obtained prior to denial of benefits -- Medical report is not condition precedent to complete denial or partial reduction of claims

17 Fla. L. Weekly Supp. 1183a

Online Reference: FLWSUPP 1712LEZA

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Expert witness -- Error to exclude testimony of peer review doctor on ground that peer review report was invalid because it was obtained post-suit

17 Fla. L. Weekly Supp. 1184a

Online Reference: FLWSUPP 1712MARC

NOT FINAL VERSION OF OPINION
Subsequent Changes at 18 Fla. L. Weekly Supp. 740a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Denial of benefits -- Valid medical report -- Error to disregard affidavit offered in opposition to insured's motion for summary judgment on ground that it was not supported by physical examination of insured -- Appellate court is unable to consider insured's argument that affirmance is warranted because affidavit is insufficient on other grounds where affidavit is not part of record on appeal

17 Fla. L. Weekly Supp. 1184b

Online Reference: FLWSUPP 1712GONZ

Insurance -- Personal injury protection -- Denial of benefits -- Valid medical report -- Trial court erred in not considering affidavit and peer review report offered in opposition to insured's motion for summary judgment on ground that peer review was not supported by independent medical examination of insured -- Production of valid report is not required to deny benefits, only to withdraw already commenced payments

17 Fla. L. Weekly Supp. 94b

Online Reference: FLWSUPP 1702DONE

Insurance -- Personal injury protection -- Summary judgment -- Opposing affidavit -- Where trial court entered summary judgment in favor of medical provider upon finding that affidavit of physician who conducted independent medical examination was defective, and appellate court held that insurer should have been allowed to correct technical deficiencies in affidavit and instructed trial court to consider affidavit, trial court erred in deviating from appellate mandate by not considering amended affidavit because it found insurer failed to provide notice of intent to rely on affidavit in opposition to motion for summary judgment

17 Fla. L. Weekly Supp. 40a

Online Reference: FLWSUPP 1701LIBE

Insurance -- Personal injury protection -- Summary judgment -- Independent medical examination report that is not sworn or certified cannot be considered by court in opposition to medical provider's motion for summary judgment -- Insured's attachment of IME report to her affidavit in support of summary judgment did not waive requirement that report be sworn or certified -- Withdrawal of benefits -- Valid report -- Where IME opinion obtained prior to withdrawal of benefits states that additional/future chiropractic care would not be reasonable, related or necessary but does not address massage therapy that insured was receiving, denial of PIP benefits for massage therapy provided after IME cut-off date was breach of policy 

17 Fla. L. Weekly Supp. 57a

Online Reference: FLWSUPP 1701GARC

Insurance -- Personal injury protection -- Summary judgment -- Medical provider's motion for summary judgment is granted where evidence attached to motion establishes prima facie case, insurer's opposing affidavit was technically and materially deficient, and insurer has not produced amended or corrected affidavit despite being given an extension of time to do so

17 Fla. L. Weekly Supp. 326a

Online Reference: FLWSUPP 1705CARL

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Summary judgment -- Opposing affidavits -- Error to refuse to consider independent medical examination and peer review on ground that the two doctors' affidavits contradicted one another where insurer provided arguably credible explanation for the seeming discrepancy between the affidavits -- Moreover, peer review report served to supplement the IME with its corresponding evidence, not contradict it -- Trial court erred in finding that failure of insurer to provide plaintiff with explanation of benefits provided plaintiff with independent cause of action for breach of contract

17 Fla. L. Weekly Supp. 43b

Online Reference: FLWSUPP 1701GOLD

Insurance -- Personal injury protection -- Coverage -- Policy issued during statutory gap period -- Where PIP policy was executed during statutory gap period when there was no PIP statute, policy language requiring that medical expenses be paid at 80% of reasonable charges controls reimbursement

17 Fla. L. Weekly Supp. 329b

Online Reference: FLWSUPP 1705GON2

Insurance -- Personal injury protection -- Coverage -- Reasonable, related and necessary treatment -- Summary judgment -- Peer review -- Error to enter summary judgment in favor of insured after striking peer review report because it was not supported by physical examination conducted by physician signing peer review

17 Fla. L. Weekly Supp. 990a

Online Reference: FLWSUPP 1710CARU

Insurance -- Personal injury protection -- Summary judgment -- Peer review report -- No merit to claim that medical records referenced in peer review affidavit were not authenticated where insured provided records to insurer during discovery and relied on same records to present her claim -- Where affidavit that corrected all technical deficiencies in original stricken affidavit was attached to insurer's motion for reconsideration of order granting summary judgment, judgment in favor of insured is reversed and case is remanded for consideration on merits -- Motion for entry of mandate or order directing clerk to return file to lower court denied

17 Fla. L. Weekly Supp. 991a

Online Reference: FLWSUPP 1710LOPE

Insurance -- Personal injury protection -- Valid peer review report is required as prerequisite only to withdraw benefits that were previously provided, not to deny them from the inception -- Trial court erred in striking peer review and granting summary judgment in favor of provider

17 Fla. L. Weekly Supp. 927a

Online Reference: FLWSUPP 1710BEAD

Insurance -- Personal injury protection -- Denial of benefits -- Valid medical report -- Trial court erred in striking affidavit and peer review report offered in opposition to medical provider's motion for summary judgment on ground that peer review must be supported by physical examination of insured -- Discovery -- Depositions -- Expert witness fees -- No error in determining that treating physician was entitled to expert witness fees for his deposition testimony

17 Fla. L. Weekly Supp. 1078b

Online Reference: FLWSUPP 1711OSOR

Insurance -- Personal injury protection -- Coverage -- Medical benefits -- Reasonable, related, and medically necessary treatment -- Summary judgment -- Opposing affidavit -- Error to grant summary judgment in favor of provider without considering insurer's peer review affidavit -- Peer review was not invalid because it was based on review of treating physician's records rather than on independent medical examination

17 Fla. L. Weekly Supp. 892b

Online Reference: FLWSUPP 1710VEGA

Insurance -- Personal injury protection -- Coverage -- Medical benefits -- Reasonable, related, and necessary treatment -- Summary judgment -- Opposing affidavit -- Error to refuse to consider peer review report on ground that it was not based on independent medical examination

17 Fla. L. Weekly Supp. 1058a

Online Reference: FLWSUPP 1711JULI

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Denial of benefits -- Valid medical report -- Error not to consider peer review affidavit submitted by insurer's expert on grounds that expert did not personally examine insured or that affidavit was not obtained prior to denial of claim -- No merit to argument that affidavit was properly not considered because documents it referenced were not attached to it where documents were clearly enumerated in affidavit and were already on file in case -- If trial court found affidavit to be conclusory, it should have given insurer opportunity to correct that technical deficiency

17 Fla. L. Weekly Supp. 520a

Online Reference: FLWSUPP 1707MONT

NOT FINAL VERSION OF OPINION
Subsequent Changes at 18 Fla. L. Weekly Supp. 501aInsurance -- Personal injury protection -- Summary judgment -- Opposing affidavit -- Although trial court erred in refusing to consider peer review affidavit because it was not obtained prior to denial of medical bills, grant of summary judgment in favor of medical provider is affirmed under tipsy coachman doctrine because affidavit is conclusory, is based on unauthenticated and unattached documents, and conflicts with report of independent medical examination performed by same physician VACATED. Revised Opinion at FLWSUPP 1806MONT.]

17 Fla. L. Weekly Supp. 745a

Online Reference: FLWSUPP 1709REGI

Insurance -- Personal injury protection -- Denial of benefits -- Valid medical report -- Error to hold that peer review was not valid report supporting denial of claim for PIP benefits because insurer did not also conduct independent medical examination -- Demand letter was premature where amount demanded for two MRIs on HCFA claim form exceeded allowable amount under PIP statute, insurer never received notice of exact amount owed, and amount owed was not overdue when medical provider subsequently sent demand letter -- Even if demand letter were not premature, letter was invalid where amounts listed in letter still did not accurately reflect allowable amounts under statute

17 Fla. L. Weekly Supp. 742a

Online Reference: FLWSUPP 1709ALFO

Insurance -- Personal injury protection -- Claimant's failure to attend examination under oath does not preclude recovery of benefits under policy at issue where claimant was not named insured or resident spouse, but an omnibus insured -- Reasonable, related, and necessary treatment -- Trial court erred by ruling that insurer could not deny or reduce claims without a “valid report” based on a physical examination -- Insurer may rely on report obtained pursuant to section 627.736(7)(a) even when report is obtained more than thirty days after claim was submitted and is not required to obtain a physical examination to reduce or deny payment of services that are not reasonable, related, or necessary -- Error to refuse to consider opinion of insurer's expert, who conducted paper review of provider's treatment records for claimant -- Trial court's award of attorney's fees to provider must be reversed in view of appellate court's reversal of underlying judgment -- Provider entitled to appellate attorney's fees on EUO issue on which provider prevailed

17 Fla. L. Weekly Supp. 417a

Online Reference: FLWSUPP 1706PINO

Insurance -- Personal injury protection -- Opposing affidavit -- Peer review -- Abuse of discretion to refuse to consider peer review report submitted in opposition to motion for summary judgment on basis that report that found some treatment prior to independent medical examination was not reasonable, related or necessary conflicted with IME report that found that further treatment would not be reasonable, related or necessary where IME report did not discuss prior treatments -- Error to deny insurer's request to correct deficiency in peer review affidavit which failed to list databases relied upon in reaching conclusions regarding challenged treatments -- Withdrawal of benefits -- Notice -- Abuse of discretion to find that cutoff of benefits following IME was effective on date insurer sent notice of cutoff rather than date on which IME physician determined further treatment would not be reasonable, related or necessary

17 Fla. L. Weekly Supp. 890a

Online Reference: FLWSUPP 1710BEND

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary treatment -- Summary judgment -- Opposing affidavit -- Insurer was not barred from submitting affidavit of independent medical examiner in defense of provider's motion for summary judgment although examination did not take place until after insured had completed all treatment -- Depositions -- Expert witness fees -- Treating physician entitled to expert witness fees for deposition taken pursuant to rule 1.390 -- Award of attorney's fees to prevailing provider reversed in light of appellate court's reversal of final judgment in provider's favor

17 Fla. L. Weekly Supp. 1062a

Online Reference: FLWSUPP 1711MCFA

Insurance -- Personal injury protection -- Summary judgment -- Opposing affidavit -- Abuse of discretion to refuse consideration of opposing affidavit attached to motion for rehearing following grant of summary judgment where affidavit would have raised genuine issue of material fact had it been filed and served concurrently with motion for summary judgment, and compelling and exigent circumstances explain late filing of affidavit -- Such circumstances exist where insurer's failure to attach affidavit to notice of filing affidavit in opposition to summary judgment was due to clerical error, and when medical provider was notified of missing affidavit, provider led insurer to believe that it did have affidavit

17 Fla. L. Weekly Supp. 987a

Online Reference: FLWSUPP 1710MCFA

NOT FINAL VERSION OF OPINION
Subsequent Changes at 17 Fla. L. Weekly Supp. 1062aInsurance -- Personal injury protection -- Coverage -- Medical benefits -- Summary judgment -- Opposing affidavit -- Trial court abused its discretion in refusing to consider insurer's expert's affidavit, included with insurer's motion for rehearing following grant of summary judgment in favor of provider, where affidavit would have raised genuine issue of material fact had it been filed and served concurrently with opposing party's motion for summary judgment and compelling or exigent circumstances explained late filing of affidavit

17 Fla. L. Weekly Supp. 694a

Online Reference: FLWSUPP 1708HERR

Insurance -- Personal injury protection -- Summary judgment -- Opposing affidavit -- Sufficiency -- Where peer review affidavit submitted by insurer in opposition to motion for partial summary judgment on issue of reasonableness, relatedness and necessity of treatment refers to documents that are not part of record and are not attached to affidavit, and physician who performed peer review failed to review insured's complete medical records, medical provider's evidence on issue stands uncontroverted -- Partial summary judgment is entered in favor of provider

17 Fla. L. Weekly Supp. 519a

Online Reference: FLWSUPP 1707ELIS

Insurance -- Personal injury protection -- Error to enter summary judgment in favor of medical provider where there were competing reports from insured's physician and physician who performed independent medical examination regarding reasonableness, relatedness and necessity of medical bills -- Further, whether benefits should have been withdrawn as of date of IME or as of date of cut-off letter is issue for jury

17 Fla. L. Weekly Supp. 1030a

Online Reference: FLWSUPP 1710RAM2

Insurance -- Personal injury protection -- Summary judgment is granted as to reasonableness, relatedness and necessity of medical services provided prior to independent medical examination where physician who conducted IME concluded that no further care would be medically necessary as of date of IME -- Summary judgment is denied as to necessity of post-IME care

17 Fla. L. Weekly Supp. 981a

Online Reference: FLWSUPP 1710ROD3

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Withdrawal of benefits -- Insurer has right to request independent medical examination for sole purpose of withdrawing authorization for future medical treatment -- Date of valid IME report is date on which insurer may withdraw PIP benefits, not date of notification of suspension of benefits letter -- Because IME report and IME physician's affidavit raised genuine issue of material fact as to whether medical bills incurred between date of IME report and date of suspension letter were for reasonable, related, and necessary treatment, trial court erred in granting summary judgment in favor of provider for those bills

17 Fla. L. Weekly Supp. 78a

Online Reference: FLWSUPP 1702TEJA

Insurance -- Personal injury protection -- Summary judgment -- Opposing affidavit -- Error to strike affidavit of physician that demonstrated personal knowledge, admissible facts and competence to testify -- Error to exclude peer review report where reporting physician indicated that he reviewed the notes of four chiropractors and the examination notes from two medical doctors -- Error to enter summary judgment in favor of insured where affidavits presented genuine factual disputes regarding damages and reasonableness, necessity and relatedness of medical treatment -- Appellate court declines to review partial summary judgment order regarding demand notice where notice of appeal indicates that insurer was appealing final summary judgment for medical benefits, and partial summary judgment was not attached to notice

17 Fla. L. Weekly Supp. 162a

Online Reference: FLWSUPP 1703REST

Insurance -- Personal injury protection -- Summary judgment -- Trial court, in ruling on insured's motion for summary judgment, erred in making inference in favor of insured that, because independent medical examination report indicated no further treatment was necessary, all prior treatment must have been necessary

17 Fla. L. Weekly Supp. 978a

Online Reference: FLWSUPP 1710ROJA

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Whether treatment after certain date was reasonable, related, and necessary was fact question to be decided by jury in the face of contrary affidavits -- Trial court erred in refusing to consider affidavit of peer review physician on ground that report was obtained after suit was filed -- New trial required

17 Fla. L. Weekly Supp. 248b

Online Reference: FLWSUPP 1704GON2

Insurance -- Personal injury protection -- Coverage -- Reasonable, related and necessary services -- Summary judgment -- In entering summary judgment in favor of medical provider on issue of reasonableness, relatedness and necessity of services, trial court erred in declining to consider peer review because it was not based on independent medical examination -- Where insurer failed to argue to trial court that medical provider's affidavit did not establish that accident occurred, insurer failed to preserve issue for appeal

17 Fla. L. Weekly Supp. 81a

Online Reference: FLWSUPP 1702CARR

Insurance -- Personal injury protection -- Coverage -- Reasonable, related and necessary treatment -- Summary judgment -- Peer review -- Error to enter summary judgment in favor of medical provider after refusing to consider opposing affidavit prepared by peer review physician who reviewed examination and treatment records of insured, but did not personally examine insured

17 Fla. L. Weekly Supp. 702a

Online Reference: FLWSUPP 1708SER2

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary expenses -- Affidavit of physician who conducted independent medical examination report which attempts to incorporate attached IME report, but fails to state proper foundation for admissibility under exception to hearsay rule, is legally insufficient -- Court defers ruling on dates of service after IME cutoff to allow insurer to obtain legally sufficient affidavit and enters summary judgment for medical provider as to dates of service prior to cutoff

17 Fla. L. Weekly Supp. 1230a

Online Reference: FLWSUPP 1712SA

INInsurance -- Personal injury protection -- Abatement -- Premature suit is abated to afford medical provider opportunity to submit new demand letter and insurer opportunity to pay sum demanded

17 Fla. L. Weekly Supp. 660a

Online Reference: FLWSUPP 1708ADVA

Insurance -- Personal injury protection -- Coverage -- MRI -- PIP statute does not authorize insurer to utilize special rule for imaging services in U.S. Code, hospital outpatient prospective payment system or any other Medicare restrictions or limitations not expressly described in section 627.736(5)(a)2.f, 3 and 4 when determining amounts due for MRI services provided in non-emergency, non-hospital setting since January 1, 2008

17 Fla. L. Weekly Supp. 458b

Online Reference: FLWSUPP 1706AFO

Insurance -- Personal injury protection -- Coverage -- Magnetic resonance imaging -- Insurers are not authorized by section 627.736(5)(a)2.f., 3 or 4 to cap amount of PIP benefits paid for MRI services provided in non-emergency, non-hospital setting by applying Medicare hospital outpatient prospective payment system or any other Medicare restriction or limitations not specified in subsections of PIP statute

17 Fla. L. Weekly Supp. 368aOnline Reference: FLWSUPP 1705AFOInsurance -- Personal injury protection -- Coverage -- Magnetic resonance imaging -- Insurers are not authorized by section 627.736(5)(a)2.f., 3 or 4…

17 Fla. L. Weekly Supp. 1037a

Online Reference: FLWSUPP 1710AQUI

Insurance -- Personal injury protection -- Coverage -- Where provision of 2008 PIP statute allowing insurer to limit reimbursement to 80% of 200% of Medicare fee schedule is permissive, policy language providing that insured will pay 80% of reasonable expenses controls reimbursement

17 Fla. L. Weekly Supp. 1227b

Online Reference: FLWSUPP 1712TEP

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- MRI -- Where Medicare Part B participating physicians fee schedule is only fee schedule specifically identified in PIP statute, that schedule and not Medicare's Hospital Outpatient Prospective Payment System fee schedule should be used by insurers when calculating payment for MRI services under PIP statute

17 Fla. L. Weekly Supp. 1110a

Online Reference: FLWSUPP 1711POWE

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 PIP statute when determining amounts due for MRI services provided to PIP insured in non-emergency, non-hospital setting since January 1, 2008

17 Fla. L. Weekly Supp. 194b

Online Reference: FLWSUPP 1703BRAV

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- MRI -- Requirement that insurer pay “allowable amount” under Medicare Part B participating physicians fee schedule allows insurer to apply Outpatient Prospective Payment System cap which is expressly incorporated into “allowable amount” under fee schedule

17 Fla. L. Weekly Supp. 46a

Online Reference: FLWSUPP 1701BARA

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- MRI -- Requirement that insurer pay “allowable amount” under Medicare Part B participating physicians fee schedule does not require insurer to pay full or highest amount listed under fee schedule for MRI -- Insurer may pay lesser amount calculated under fee schedule pursuant to Outpatient Prospective Payment System

17 Fla. L. Weekly Supp. 1039a

Online Reference: FLWSUPP 1710AQU2

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- MRI -- PIP insurer cannot pay benefits in accordance with permissive fee limitations of 2008 version of PIP statute where policy language requires payment of 80% of reasonable charges -- PIP statute does not authorize insurer to utilize Medicare's Outpatient Prospective Payment System to calculate permissive limitations

17 Fla. L. Weekly Supp. 855b

Online Reference: FLWSUPP 1709HARR

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- MRI -- Insurer's motion for summary judgment on ground that provider failed to render services/engaged in illegal patient broker and/or fee splitting and billed in excess of amounts permitted by statute denied

17 Fla. L. Weekly Supp. 1124b

Online Reference: FLWSUPP 1711LAMO

Insurance -- Personal injury protection -- Coverage -- Where policy issued after enactment of 2008 version of PIP statute provides that insurer will pay 80% of reasonable expenses for medical services and does not indicate that insurer was going to limit reimbursement to 200% of allowable amount under Medicare fee schedule as permitted by 2008 statute, policy terms control reimbursement

17 Fla. L. Weekly Supp. 697a

Online Reference: FLWSUPP 1708FENN

Insurance -- Personal injury protection -- Coverage -- Policy issued during statutory gap period -- Where PIP policy was executed during statutory gap period when there was no PIP statute, policy language requiring that insurer pay 80% of medical expenses controls reimbursement -- Policy language stating that insurer “will pay in accordance with No-Fault Act” is meaningless or ambiguous where at time of policy inception there was no Florida Motor Vehicle No-Fault Act in effect

17 Fla. L. Weekly Supp. 686a

Online Reference: FLWSUPP 1708VOLP

Insurance -- Personal injury protection -- Coverage -- Where language of PIP policy which expressly states that insurer will pay 80% of reasonable expenses is not in conflict with 2008 PIP statute allowing insurer to pay in accordance with Medicare fee schedule, policy language controls reimbursement

17 Fla. L. Weekly Supp. 685a

Online Reference: FLWSUPP 1708GABL

Insurance -- Personal injury protection -- Coverage -- Where provision of 2008 PIP statute allowing insurer to limit reimbursement to 80% of 200% of Medicare fee schedule is permissive, policy language providing that insured will pay 80% of reasonable expenses controls reimbursement

17 Fla. L. Weekly Supp. 1259b

Online Reference: FLWSUPP 1712PLOP

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Because provision of PIP statute providing that insurer may limit reimbursement to 80% of Medicare Part B fee schedule is permissive and not mandatory, where contract provides that insurer will pay in accordance with No-Fault Act 80% of reasonable charges for necessary medical services and does not indicate that insurer was going to limit payments as permitted by statute, insurer is required to pay 80% of reasonable expenses

17 Fla. L. Weekly Supp. 1228a

Online Reference: FLWSUPP 1712COMP

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Policy language requiring that insurer pay claim at 80% of reasonable expenses for medically necessary care controls over permissive language of PIP statute allowing reduced reimbursement rates

17 Fla. L. Weekly Supp. 470a

Online Reference: FLWSUPP 1706MONT

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Because provisions of PIP statute providing that insurer may limit reimbursement to 80% of Medicare Part B fee schedule is permissive and not mandatory, where contract provides that insurer shall pay 80% of reasonable expenses of medically necessary treatments and does not indicate that insurer was going to limit payments as permitted by statute, insurer is required to pay 80% of reasonable expenses

17 Fla. L. Weekly Supp. 10b

Online Reference: FLWSUPP 1701GONZ

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Exhaustion of policy limits -- Trial court correctly entered summary judgment in favor of insurer where PIP coverage was exhausted prior to medical provider sending demand letter, and there is no allegation or evidentiary showing of bad faith -- Explanation of benefits -- Requirement to send EOB was not triggered where benefits had been exhausted

17 Fla. L. Weekly Supp. 55b

Online Reference: FLWSUPP 1701TRUJ

Insurance -- Personal injury protection -- Coverage -- Priority -- Hospital lien -- Hospital that failed to comply with requirement to file verified claim of lien within ten days after patient was discharged was unsecured creditor until it perfected lien by filing claim, at which time it became secured creditor subject to priority payment -- Medical provider/assignee has no standing to challenge hospital's failure to perfect lien and insurer's payments to hospital -- Further, provider/assignee is bound by insured's request that insurer pay hospital bill prior to paying provider -- Insurer was not required to reserve benefits for disputed claim

17 Fla. L. Weekly Supp. 479a

Online Reference: FLWSUPP 1706SCHO

Insurance -- Personal injury protection -- Coverage -- Exhaustion of policy limits -- Bad faith -- Insurer's reliance on controlling case law, subsequently overruled on appeal, to deny claim based on failure to provide disclosure and acknowledgment form cannot be deemed bad faith that would permit insurer to be held responsible for claim despite exhaustion of benefits -- Insurer's destruction of original claim documents after scanning, including any D&A form that medical provider submitted, does not demonstrate bad faith or establish spoliation of evidence where medical provider retained duplicate D&A form that it could have provided to insurer to resolve matter before benefits were exhausted and could use in prosecution of case -- Even if documents revealed that insurer had received D&A form, subsequent exhaustion of benefits vitiates any liability of insurer for mistakenly not paying claim

17 Fla. L. Weekly Supp. 1121b

Online Reference: FLWSUPP 1711HARV

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Exhaustion of policy limits -- Where insurer did not act in bad faith in down-coding CPT codes and applying negotiated PPO adjustment, and payment sent after receipt of demand letter seeking balance of reduced claims exhausted benefits, there can be nothing further due and owing from insurer -- No merit to argument that medical provider's failure to deposit check sent in response to demand letter means benefits have not been exhausted

17 Fla. L. Weekly Supp. 1115c

Online Reference: FLWSUPP 1711SILV

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Exhaustion of policy limits -- Where PIP benefits were exhausted by payment of medical bills, including untimely bill of medical equipment provider, and there is no allegation that insurer acted in bad faith, insurer is not liable for payment of additional charges

17 Fla. L. Weekly Supp. 386a

Online Reference: FLWSUPP 1705HARKInsurance -- Personal injury protection -- Coverage -- Exhaustion of policy limits -- Partial summary judgment is entered in favor of insurer where no benefits or damages are or will be due and owing as benefits are exhausted and medical provider has withdrawn or dismissed claims

17 Fla. L. Weekly Supp. 9c

Online Reference: FLWSUPP 1701MART

Insurance -- Personal injury protection -- Trial court erred in withholding from jury evidence that insured was pregnant at time of accident where pregnancy materially affected how medical provider was able to treat insured's condition, and failure to fully understand reasons for provider's initial limited treatment of insured may have caused jury to conclude treatment was not reasonable -- Error to grant insurer's motion for directed verdict as to reasonableness of provider's bills where insured had submitted evidence that bills were reasonable

17 Fla. L. Weekly Supp. 1178b

Online Reference: FLWSUPP 1712BARC

Insurance -- Personal injury protection -- Summary judgment -- Opposing affidavit -- Sufficiency -- Error to exclude peer review affidavit filed in opposition to medical provider's motion for summary judgment where no physical examination was required, and challenge to reasonableness, relatedness and medical necessity of treatment does not require valid medical report under section 627.736(4)(b)

17 Fla. L. Weekly Supp. 984b

Online Reference: FLWSUPP 1710MART

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Denial of benefits -- Valid medical report -- Trial court erred in failing to consider peer review report/affidavit because it was acquired after PIP lawsuit had been filed by provider where case involved denial of benefits rather than withdrawal of benefits -- Fact that insurer chose to pay only one bill and then, after further investigation, decided to reject payment of others as unreasonable, unrelated, and not medically necessary, does not require that case be classified as one involving withdrawal -- Error to find that peer review report/affidavit was not valid because it was based on review of treating physician's examination, diagnosis, and treatment records rather than on independent medical examination

17 Fla. L. Weekly Supp. 980b

Online Reference: FLWSUPP 1710PORR

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Denial -- Valid medical report -- Error to strike peer review report on ground that it was untimely and was based on treating physician's records rather than on independent medical examination -- Florida law does not require insurer to file peer review within thirty days from date of notice of loss to establish or contest reasonable, related, and necessity of PIP claim; instead thirty-day period is provision for insurer to avoid interest and attorney's fees

17 Fla. L. Weekly Supp. 162b

Online Reference: FLWSUPP 1703ROMO

Insurance -- Personal injury protection -- Denial of benefits -- Peer review -- To deny payment of PIP benefits, insurer is not required to provide valid report mandated by section 627.736(7)(a)

17 Fla. L. Weekly Supp. 980a

Online Reference: FLWSUPP 1710APOL

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Denial -- Valid medical report -- Error to exclude peer review testimony because peer review was generated after denial of benefits -- Statute relied upon by trial court applies when insurer withdraws already-commenced payments for treatments made by provider, not when payment is denied

17 Fla. L. Weekly Supp. 416a

Online Reference: FLWSUPP 1706MART

Insurance -- Personal injury protection -- Denial of benefits -- Valid medical report -- Error to determine that medical report contesting reasonableness, relatedness and necessity of treatment must be obtained within thirty days and before insured filed suit -- Trial court further erred in determining that claim not paid before suit is filed was automatically denied

17 Fla. L. Weekly Supp. 379b

Online Reference: FLWSUPP 1705PAUL

Insurance -- Personal injury protection -- Neither medical provider nor insured knowingly submitted false or misleading statements -- Examination under oath -- Where insurer rescheduled EUO after insured's failure to appear at first EUO, operative date of alleged breach of duty to attend EUO is date insured failed to appear at rescheduled EUO -- Duty to submit to EUO is condition precedent to suit, but does not fall under purview of duty to cooperate under policy -- Insured did not have duty to cooperate after insurer denied claim -- Insurer was provided with written notice of covered loss

17 Fla. L. Weekly Supp. 617b

Online Reference: FLWSUPP 1708BERG

NOT FINAL VERSION OF OPINIONSubsequent changes at 17 Fla. L. Weekly 997aInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Overdue bills -- Request for documentation -- Where insurer's notice requesting documentation to verify that medical provider was eligible to receive payments for PIP benefits was not request for information within scope of section 627.736(6)(b), provider was not required to respond to request and time for payment of benefits was not tolled -- Where services were lawfully provided, supervised and presecribed by licensed physician, provider is entitled to benefits

17 Fla. L. Weekly Supp. 382b

Online Reference: FLWSUPP 1705FORG

Insurance -- Personal injury protection -- Delay in payment -- Request for information or documentation -- Sufficiency -- Non-specific statement printed on each explanation of benefits inviting medical provider to submit whatever documentation or information provider would guess is necessary in response to insurer's rejection of claim was insufficient to demand additional documentation needed to process claim and toll time for payment of claim

17 Fla. L. Weekly Supp. 1269a

Online Reference: FLWSUPP 1712CILL

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- CPT coding -- National Correct Coding Initiative is incorporated in Florida PIP law as part of Medicare pay system -- Where medical provider improperly unbundled services when billing, neither insured nor insurer was obligated to pay provider for unbundled amounts

17 Fla. L. Weekly Supp. 1235a

Online Reference: FLWSUPP 1712DWFI

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- CPT coding -- National Correct Coding Initiative -- PIP statute does not permit insurer to rely on NCCI edits to bar claim -- Insurer may, nonetheless, raise affirmative defense of unbundling of CPT codes as this raises issue of medical necessity -- Where there exists genuine issue of material fact as to whether treatment involved circumstances in which unbundling is appropriate, summary judgment on unbundling issue is precluded

17 Fla. L. Weekly Supp. 1116b

Online Reference: FLWSUPP 1711LLAN

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- CPT coding -- Where medical provider improperly filed claim for CPT code for unbundled service, insurer properly paid benefits for simultaneously billed bundled service code that included denied unbundled service

17 Fla. L. Weekly Supp. 990b

Online Reference: FLWSUPP 1710BELL

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Notice of loss -- Errors and omissions -- Name and address of facility where services were rendered, if different from that of entity submitting form -- Even if failure to complete box 32 on HCFA form can be deemed a material omission, it was cured by amended and properly completed form subsequently submitted by provider, which was received by insurer well before initiation of litigation

17 Fla. L. Weekly Supp. 886a

Online Reference: FLWSUPP 1710BARR

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Notice of loss -- Insured failed to put insurer on notice of claim for services rendered by emergency room physician where bills were not properly submitted to insurer and where no demand letter was sent for payment of emergency room physician's bills -- Error to enter directed verdict for plaintiff on this issue -- Disclosure and acknowledgment form must be executed at time of initial medical services upon which claim for PIP benefits is based -- Entity which only provided reading and interpretations of diagnostic services is not exempt from D&A requirement -- Error to enter directed verdict in favor of plaintiff on issue of D&A form -- Reasonable, related, and necessary treatment -- Error to enter directed verdict on issue of whether bills were reasonable, related, and necessary where evidence was conflicting

17 Fla. L. Weekly Supp. 1126a

Online Reference: FLWSUPP 1711HENR

Insurance -- Personal injury protection -- Coverage -- Version of PIP statute in effect at time PIP policy was executed rather than version in effect at time of treatment, which provides for payment of 200% of Medicare and/or workers' compensation fee schedule, is applicable where statutory change affects substantive rights

17 Fla. L. Weekly Supp. 33b

Online Reference: FLWSUPP 1701AMAD

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 or Workers' Compensation fee schedules with effective date of January 1, 2008, does not affect insured's substantive contract rights, amendment applies to policy that went into effect before January 1, 2008, where assignment of benefits and medical services occurred after January 1, 2008 -- Question certified

17 Fla. L. Weekly Supp. 1113a

Online Reference: FLWSUPP 1711PINE

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- CPT coding -- Reduced fee schedule in 2008 PIP statute providing for payment of 200% of Medicare Part B fee schedule cannot be applied to payment of benefits under policy issued in 2007, prior to effective date of statute -- Even if 2008 statute were applicable, insurer cannot deny payment for CPT code recognizable under Medicare Part B fee schedule on grounds that Medicare's National Correct Coding Initiative provides that code cannot be billed on same date as another code billed by medical provider where PIP statute forbids insurer from applying utilization limits -- No merit to argument that NCCI is payment limitation rather than utilization limitation

17 Fla. L. Weekly Supp. 1112b

Online Reference: FLWSUPP 1711DOMI

Insurance -- Personal injury protection -- Coverage -- Reduced fee schedule in 2008 PIP statute cannot be applied to payment of benefits under policy issued in 2007, prior to effective date of statute -- Even if 2008 statute were applicable, insurer is required to pay 80% of medical expenses in accordance with plain language of policy rather than limiting payment in accordance with permissive language of 2008 statute

17 Fla. L. Weekly Supp. 1111a

Online Reference: FLWSUPP 1711HERRInsurance -- Personal injury protection -- Coverage -- Fee schedule in 2008 version of PIP statute is inapplicable where policy was issued prior to effective date of 2008 PIP statute, and plain language of policy required defendant to pay 80% of reasonable expenses rather than limiting payment in accordance with permissive language of 2008 PIP statute

17 Fla. L. Weekly Supp. 592b

Online Reference: FLWSUPP 1707SAN2

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 Part B 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 -- Question certified

17 Fla. L. Weekly Supp. 591a

Online Reference: FLWSUPP 1707FRAY

Insurance -- Personal injury protection -- Coverage -- 2007 PIP statute in effect at time policy was executed, which provides for payment of 80% of reasonable charges, rather than 2008 PIP statute in effect at time of treatment, which provides for payment of 80% of 200% of Medicare Part B fee schedule, is applicable where statutory change impairs vested rights

17 Fla. L. Weekly Supp. 478a

Online Reference: FLWSUPP 1706SUAR

Insurance -- Personal injury protection -- Coverage -- 2007 PIP statute that was in effect at time policy was executed and policy language requiring that medical expenses be paid at 80% of reasonable charges, rather than 2008 PIP statute which provides for reduced payment, is applicable

17 Fla. L. Weekly Supp. 475c

Online Reference: FLWSUPP 1706WEIN

Insurance -- Personal injury protection -- Coverage -- 2007 PIP statute in effect at time policy was issued, rather than 2008 PIP statute which was in effect at time of treatment and which provides for reduced payment, is applicable where express language of 2008 statute forbids application to policy which had expired prior to effective date of statute, and statutory change is substantive and may not be applied retroactively

17 Fla. L. Weekly Supp. 469b

Online Reference: FLWSUPP 1706CAZE

Insurance -- Personal injury protection -- Coverage -- Reduced fee schedule in 2008 PIP statute cannot be applied to payment of benefits under policy issued in 2007, prior to effective date of statute

17 Fla. L. Weekly Supp. 701a

Online Reference: FLWSUPP 1708PARR

Insurance -- Personal injury protection -- Coverage -- Policy issued during statutory gap period -- Language of policy issued during time when there was no PIP statute in effect, which provides for payment of 80% of reasonable charges, rather than PIP statute in effect at time of treatment, which provides for payment 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

17 Fla. L. Weekly Supp. 699a

Online Reference: FLWSUPP 1708MUSC

NOT FINAL VERSION OF OPINION
Subsequent Changes at 17 Fla. L. Weekly Supp. 1042b

Insurance -- Personal injury protection -- Coverage -- Policy issued during statutory gap period -- Language of policy issued during time when there was no PIP statute in effect, which provides for payment of 80% of reasonable charges, rather than PIP statute in effect at time of treatment, which provides for payment 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

17 Fla. L. Weekly Supp. 596a

Online Reference: FLWSUPP 1707BURG

Insurance -- Personal injury protection -- Coverage -- Policy issued during statutory gap period -- Where PIP policy was executed during statutory gap period when there was no PIP statute, policy language requiring that insurer pay 80% of medical expenses controls reimbursement -- 2008 amendment to PIP statute to provide for payment of 200% of Medicare and/or workers' compensation fee schedules cannot be applied retroactively to policy executed prior to effective date of amendment where statutory change is substantive, and policy does not clearly and unambiguously provide that insured has expressly consented to incorporate future statutory changes into policy

17 Fla. L. Weekly Supp. 43a

Online Reference: FLWSUPP 1701MOMO

Criminal law -- Speedy trial -- Where defendant did not waive right to speedy trial, and state did not file information until well after speedy trial had expired, defendant is entitled to immediate discharge, and state is not entitled to recapture period -- Further, defendant is entitled to discharge because he filed notice of expiration of speedy trial, but hearing on motion was not held, and defendant was not brought to trial within fifteen days of filing notice

17 Fla. L. Weekly Supp. 35a

Online Reference: FLWSUPP 1701RIVE

Insurance -- Personal injury protection -- Coverage -- Policy issued during statutory gap period -- Where reenacted PIP statute provided that reenacted law was effective January 1, 2008, and expressly provided that any PIP policy in effect on or after that date would be deemed to incorporate provisions of reenacted law, insurer properly paid claim for treatment that occurred after January 1, 2008, at 80% of 200% of Medicare fee schedule as provided for in reenacted statute -- Change in reimbursement fee schedule did not amount to unconstitutional impairment of contract because new law had been enacted, although it was not yet effective, when policy was executed, and policy contemplated that it would incorporate applicable changes in no-fault law

17 Fla. L. Weekly Supp. 21a

Online Reference: FLWSUPP 1701WALS

Insurance -- Personal injury protection -- Coverage -- Where insurance policy in effect for insured during gap period between sunsetting of PIP statute and passage of new PIP law did not include PIP coverage, summary judgment is entered in favor of insurer in suit for PIP benefits for accident that occurred during gap period

17 Fla. L. Weekly Supp. 1261a

Online Reference: FLWSUPP 1712CRAI

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Version of PIP statute in effect at time PIP policy was executed rather than version in effect at time of treatment, which provides for reduced payment, is applicable where statutory change is substantive

17 Fla. L. Weekly Supp. 1035b

Online Reference: FLWSUPP 1710MYRT

Insurance -- Personal injury protection -- Coverage -- 2007 PIP statute that was in effect at time policy was executed requiring that medical expenses be paid at 80% of reasonable charges, rather than 2008 PIP statute which provides for reduced payment, is applicable

17 Fla. L. Weekly Supp. 1031a

Online Reference: FLWSUPP 1710AWOO

Insurance -- Personal injury protection -- Coverage -- 2007 PIP statute in effect at time policy was executed rather than 2008 PIP statute in effect at time of treatment controls reimbursement where statutory change is substantive change and impairs vested rights

17 Fla. L. Weekly Supp. 845a Online Reference: FLWSUPP 1709EXAN Insurance -- Personal injury protection -- Coverage -- Version of PIP statute in effect at time policy was executed, rather…

17 Fla. L. Weekly Supp. 842a

Online Reference: FLWSUPP 1709BURT

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 200% of Medicare fee schedule, controls reimbursement -- Statutory amendment at issue is not remedial amendment but substantive amendment that should not be applied retroactively -- Question certified

17 Fla. L. Weekly Supp. 824a

Online Reference: FLWSUPP 1709APOP

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 -- Question certified

17 Fla. L. Weekly Supp. 823a

Online Reference: FLWSUPP 1709ECHA

Insurance -- Personal injury protection -- Coverage -- 2008 version of PIP statute, which incorporates Medicare fee schedule and states that all PIP policies in effect on or after effective date of statute are deemed to incorporate its provisions, does not apply to treatment rendered subsequent to effective date of statute when loss occurred and policy expired prior to effective date of statute -- Question certified

17 Fla. L. Weekly Supp. 394b

Online Reference: FLWSUPP 1705SOLO

Insurance -- Personal injury protection -- Coverage -- Medical expenses incurred during statutory “gap period” -- Insurer correctly applied MRI fee schedule contained in 2007 PIP statute, which was in effect at time policy was issued, to MRI rendered during “gap period” created by sunsetting of PIP statute

17 Fla. L. Weekly Supp. 389a

Online Reference: FLWSUPP 1705BATI

Insurance -- Personal injury protection -- Coverage -- Version of PIP statute in effect at time of treatment, which provides for payment of 80% of 200% of Medicare Part B fee schedule, rather than version in effect at time policy was executed, which provided for payment of 80% of reasonable charges, is applicable where there is no requirement in PIP statute that insurer amend policy to specifically reference 2008 statute before applying Medicare fee schedule and, if there was such a requirement, both 2008 statute and policy unequivocally provide for incorporation of statutory fee schedule provisions, 2008 statute retains requirement that charges be reasonable and only gives option to pay charges pursuant to Medicare fee schedule, and legislature pronounced statute to be remedial and curative in nature -- Question certified

17 Fla. L. Weekly Supp. 296a

Online Reference: FLWSUPP 1704SUAR

Insurance -- Personal injury protection -- Coverage -- 2007 PIP statute, which provides for payment of 80% of reasonable charges, rather than 2008 PIP statute in effect at time of treatment, which provides for reduced payment, is applicable where statutory change is substantive and impairs vested rights

17 Fla. L. Weekly Supp. 292b

Online Reference: FLWSUPP 1704MODI

NOT FINAL VERSION OF OPINION
Subsequent Changes at 17 Fla. L. Weekly Supp. 389aInsurance -- Personal injury protection -- Coverage -- Version of PIP statute in effect at time of treatment, which provides for payment of 80% of 200% of Medicare Part B fee schedule, rather than version in effect at time policy was executed, which provided for payment of 80% of reasonable charges, is applicable -- Question certified whether the fee schedules included in the legislature's January 1, 2008 reenactment/revision to the Florida no-fault law apply to policies which were in effect on or after January 1, 2008

17 Fla. L. Weekly Supp. 1042b

Online Reference: FLWSUPP 1710MUSC

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- 2007 PIP statute that was in effect at time policy was executed, rather than 2008 PIP statute which provides for reduced payment, is applicable -- Question certified

17 Fla. L. Weekly Supp. 226a

Online Reference: FLWSUPP 1703DORS

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

17 Fla. L. Weekly Supp. 223a

Online Reference: FLWSUPP 1703FAZI

Insurance -- Personal injury protection -- Coverage -- PIP policy, which provides for payment of 80% of reasonable charges, rather than version of PIP statute in effect at time of treatment, which provides for payment of 80% of 200% of Medicare Part B fee schedule, is applicable where no PIP statute was in effect at time of policy execution, statutory change is substantive, and contract language stating that if contract fails to comply with insurance laws it is amended to comply with laws is insufficient to demonstrate clear and unambiguous consent to incorporate amendments to PIP statute

17 Fla. L. Weekly Supp. 222b

Online Reference: FLWSUPP 1703LYNN

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 -- Question certified

17 Fla. L. Weekly Supp. 221b

Online Reference: FLWSUPP 1703AYAL

Insurance -- Personal injury protection -- Coverage -- PIP policy, which provides for payment of 80% of reasonable charges, rather than version of PIP statute in effect at time of treatment, which provides for payment of 80% of 200% of Medicare Part B fee schedule, is applicable where no PIP statute was in effect at time of policy execution and statutory change is substantive and impairs vested rights

17 Fla. L. Weekly Supp. 197a

Online Reference: FLWSUPP 1703JOHN

Insurance -- Personal injury protection -- Coverage -- Version of PIP statute in effect at time of treatment, which provides for payment of 80% of 200% of Medicare Part B fee schedule, rather than version in effect at time PIP policy was executed, which provided for payment of 80% of reasonable charges, is applicable where legislature pronounced statute to be remedial and curative, changes are procedural in nature and do not affect substantive rights, medical provider/assignee had no vested rights regarding policy until 2008 date of service, and 2008 statute retains requirement that charges be reasonable and only gives option to pay charges pursuant to Medicare fee schedule -- Question certified

17 Fla. L. Weekly Supp. 196a

Online Reference: FLWSUPP 1703DOMI

Insurance -- Personal injury protection -- Coverage -- Version of PIP statute in effect at time of treatment, which provides for payment of 80% of 200% of Medicare Part B fee schedule, rather than version in effect at time PIP policy was executed, which provided for payment of 80% of reasonable charges, is applicable where legislature pronounced statute to be remedial and curative, changes are procedural in nature and do not affect substantive rights, medical provider/assignee had no vested rights regarding policy until 2008 date of service, 2008 statute retains requirement that charges be reasonable and only gives option to pay charges pursuant to Medicare fee schedule, and statement in policy that insurer “will pay in accordance with Florida Motor Vehicle No-Fault Law, as amended” clearly and unambiguously expresses intent of parties that any subsequent amendments to PIP statute were to become part of controlling document and govern reimbursements -- Question certified

17 Fla. L. Weekly Supp. 34b

Online Reference: FLWSUPP 1701OMEG

Insurance -- Personal injury protection -- Coverage -- Where reenacted PIP statute expressly provided that 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

17 Fla. L. Weekly Supp. 916a

Online Reference: FLWSUPP 1710THOM

Insurance -- Personal injury protection -- Accord and satisfaction -- No error in denying insurer's motion for summary judgment on affirmative defense of accord and satisfaction and granting medical provider's competing motion for summary judgment where insurer did not show that provider agreed that check tendered for payment of PIP benefits was in full payment of all claims, and insurer offered nothing to refute provider's affidavit indicating that there was no agreement between parties that check was in full payment and in accord and satisfaction

17 Fla. L. Weekly Supp. 1042a

Online Reference: FLWSUPP 1710ANDR

Insurance -- Personal injury protection -- Complaint -- Premature -- PIP suit is abated to allow medical provider to submit amended demand letter to insurer

17 Fla. L. Weekly Supp. 984a

Online Reference: FLWSUPP 1710ABRE

Jurisdiction -- County court -- Insurance -- Torts -- Count asserting claim against insurer for failure to pay personal injury protection benefits was within jurisdiction of county court -- However, second count seeking damages for bodily injury resulting from automobile accident alleged damages in excess of jurisdictional limits of county court -- Trial court should have entered order on defendant's motion to sever and motion to transfer before entering order on plaintiff's motion for final judgment and motion for entitlement to fees and costs -- Remand for further proceedings

17 Fla. L. Weekly Supp. 1145a

Online Reference: FLWSUPP 1711MURR

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Emergency services and care -- Exhaustion of benefits -- Hospital lien -- PIP insurers are required to reserve no less than $5,000 of PIP benefits to compensate physicians and dentists licensed under specified chapters who provide emergency services -- As of enactment of statute, this $5,000 reserve became an asset exempt from the Hospital Lien Law for 30 days after insurer receives notice of the accident, and exhaustion of benefits defense was not available to insurer, which exhausted benefits by paying entire benefit to hospital -- Insurer's motion for summary judgment denied

17 Fla. L. Weekly Supp. 1128a

Online Reference: FLWSUPP 1711ALBE

Insurance -- Personal injury protection -- Coverage -- Endorsement providing for non-statutory no-fault coverage, which by its terms became effective when no-fault statute expired during policy term and remained effective until first renewal on or after effective date, replaced policy provision requiring insurer to reimburse in accordance with no-fault law and controls reimbursement for accident occurring after enactment of 2008 version of no-fault statute -- No merit to argument that 2008 no-fault statute controls reimbursement of medical expenses incurred after renewal of policy where accident occurred when endorsement controlled

17 Fla. L. Weekly Supp. 1045a

Online Reference: FLWSUPP 1710MASS

Insurance -- Personal injury protection -- Declaratory judgment -- Coverage -- Demand letter was not required prior to filing complaint seeking declaration as to PIP coverage but not seeking to recover benefits -- Injury to insured that occurred when loading ramp fell off bed of pickup truck while insured was backing lawnmower out of truck bed is loss covered under PIP policy

17 Fla. L. Weekly Supp. 1172a

Online Reference: FLWSUPP 1712DVAL

NOT FINAL VERSION OF OPINION
Subsequent Changes at 19 Fla. L. Weekly Supp. 617a

Insurance -- Personal injury protection -- Affirmative defenses -- Amendment -- In small claims case, trial court did not err in striking affirmative defense and denying leave to amend it on first day of trial, particularly as to defense of fraud that insurer repeatedly denied that it was alleging or pleading -- No merit to claim that trial court erred in refusing to allow reading of deposition of unavailable witness where there was no limitation on reading of deposition imposed

17 Fla. L. Weekly Supp. 885a

Online Reference: FLWSUPP 1710SANC

Insurance -- Personal injury protection -- Coverage -- Where undisputed facts showed that accident in which claimant was injured occurred approximately two and a half hours before contract of insurance was obtained, provider could not establish that contract of insurance existed that would cover loss -- Doctrines of waiver and estoppel do not apply to create insurance coverage which was non-existent at time of accident

17 Fla. L. Weekly Supp. 126a

Online Reference: FLWSUPP 1702ACEV

Insurance -- Personal injury protection -- Conditions precedent -- Mediation is not condition precedent to filing suit for PIP benefits

17 Fla. L. Weekly Supp. 125c

Online Reference: FLWSUPP 1702DARB

Insurance -- Personal injury protection -- Affirmative defense of payment which fails to set forth facts on which its conclusions are based is legally insufficient -- Conditions precedent -- Mediation -- Claims for PIP benefits are not subject to pre-suit mediation requirements of section 627.745 -- Answer and affirmative defenses stricken

17 Fla. L. Weekly Supp. 589a

Online Reference: FLWSUPP 1707ALME

Insurance -- Personal injury protection -- Examination under oath -- Failure to attend -- Where insured failed to attend EUO or provide reason for non-attendance, summary judgment is entered in favor of insurer -- Attendance at EUO is condition precedent to recovery under PIP policy, not condition subsequent to recovery

17 Fla. L. Weekly Supp. 468a

Online Reference: FLWSUPP 1706ALEN

Insurance -- Personal injury protection -- Examination under oath is condition precedent to maintenance of action to recover PIP benefits

17 Fla. L. Weekly Supp. 387a

Online Reference: FLWSUPP 1705LANG

Insurance -- Personal injury protection -- Complaint -- Amendment -- Where defendant insurer knew at all times whether or not insured who had paid premiums to an entity under insurer's brand was its customer but failed to disclose that medical provider was addressing wrong corporate entity until answer to complaint, and neither insurance card nor explanation of benefits lists entity that insurer now argues is true insurer, motion for leave to amend complaint to name correct insurer is granted

17 Fla. L. Weekly Supp. 386c

Online Reference: FLWSUPP 1705MONT

Insurance -- Personal injury protection -- Complaint -- Amendment -- Where defendant insurer knew at all times whether or not insured who had paid premiums to an entity under insurer's brand was its customer, but failed to disclose that medical provider was addressing wrong corporate entity, and neither insurance card nor explanation of benefits lists entity that insurer now argues is true insurer, motion for leave to amend complaint to name correct insurer is granted

17 Fla. L. Weekly Supp. 997a

Online Reference: FLWSUPP 1710BERG

Original opinion a 17 Fla. L. Weekly Supp. 617b

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Notice of loss -- Provider who submitted properly completed HCFA claim form to insurer was not required to respond to insurer's “Notice to Produce Records Under F.S. 627.736(6),” which requested production of “documentation, including a completed Office of Insurance Regulation approved form (OIR-B1-1809), to verify that [provider] was in compliance with section 627.736(1)(a)” where notice did not request information which was within the scope of section 627.736(6)(b) -- Moreover, physician, an osteopathic physician licensed under chapter 459, was not an entity which was required to complete the OIR form requested by insurer

17 Fla. L. Weekly Supp. 874a

Online Reference: FLWSUPP 1710ROUS

Insurance -- Personal injury protection -- Notice of loss -- Bills not submitted on standard claim form -- Substantial compliance exception to statutory requirements for submitting PIP claims only applies once insured has met threshold requirement to submit claim on approved standardized form -- Waiver -- Where insured did not submit claim on standard form, requirement to issue explanation of benefits was not triggered, and failure to issue EOB did not waive insurer's right to raise affirmative defense of failure to provide notice of covered loss -- However, where complaint alleges performance of all conditions precedent, insurer's failure to deny allegation specifically and with particularity waived affirmative defense

17 Fla. L. Weekly Supp. 122b

Online Reference: FLWSUPP 1702FLOR

Insurance -- Personal injury protection -- Fraud -- Medical provider that submitted bill to insurer for x-ray that it did not perform as well as bills for treatment that it did provide is barred from any recovery of PIP benefits

17 Fla. L. Weekly Supp. 855b

Online Reference: FLWSUPP 1709HARR

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- MRI -- Insurer's motion for summary judgment on ground that provider failed to render services/engaged in illegal patient broker and/or fee splitting and billed in excess of amounts permitted by statute denied

17 Fla. L. Weekly Supp. 855a

Online Reference: FLWSUPP 1709HAR2

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- MRI -- Notice of loss -- Claim form which included name of facility and health care clinic number was sufficient -- MRI facility is not required to have professional license number and, accordingly, failure to include that number in Box 31 of claim form not basis for finding lack of notice

17 Fla. L. Weekly Supp. 477a

Online Reference: FLWSUPP 1706GALEInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Exhaustion of policy limits -- Where insurer denied payment of MRI facility's bill based on legal position that facility's failure to provide professional license number on bill failed to provide notice of loss, but only court to address issue has found that statutory requirement to place license number on bill does not apply to MRI facilities, insurer did not have reasonable proof that it was not responsible for payment so as to trigger tolling provision of PIP statute, and insurer is not relieved of liability for MRI facility's bill by exhaustion of benefits in payment of later-received bills of other providers

17 Fla. L. Weekly Supp. 718a

Online Reference: FLWSUPP 1708FUME

Insurance -- Personal injury protection -- Claim form -- Name and professional license number -- Omission of medical provider's name and professional license number from claim form constitutes failure to provide notice of covered loss

17 Fla. L. Weekly Supp. 209a

Online Reference: FLWSUPP 1703DIA2Insurance -- Personal injury protection -- Claim form -- Professional license number -- Where medical provider failed to include professional license number of individual provider who actually performed services billed on claim form, provider's bills are non-compensable

17 Fla. L. Weekly Supp. 208a

Online Reference: FLWSUPP 1703DIAZInsurance -- Personal injury protection -- Claim form -- Professional license number -- Where medical provider failed to include professional license number of individual provider who actually performed services billed on claim form, provider's bills are non-compensable

17 Fla. L. Weekly Supp. 1164a

Online Reference: FLWSUPP 1712NUBEInsurance -- Personal injury protection -- Coverage -- Medical expenses -- CPT coding -- Where there was conflicting testimony concerning whether videofluoroscopy machine used by medical provider was synonymous with cineradiography or videoradiography machines covered by CPT code applied by insurer, trial court erred in entering summary judgment finding that insurer applied correct code

17 Fla. L. Weekly Supp. 394a

Online Reference: FLWSUPP 1705WHITInsurance -- Personal injury protection -- Delay in payment -- Request for information or documentation -- Request in explanation of benefits for specific description of non-specific CPT code did not toll time for payment of benefits where claim form submitted to insurer lists description of code as “cervical pillow”

17 Fla. L. Weekly Supp. 854b

Online Reference: FLWSUPP 1709 JARBInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Claim form -- CPT coding -- National Corrective Coding Initiative edits apply to PIP claims -- Although provider submitted HCFA form which listed office visit code without required -25 modifier to indicate that it was distinct procedure from chiropractic manipulation performed on the same date, medical bill was nonetheless substantially compliant where provider's accompanying SOAP notes listed the office visit code with a -25 modifier

17 Fla. L. Weekly Supp. 1057a

Online Reference: FLWSUPP 1711JONEInsurance -- Personal injury protection -- Coverage -- Medical expenses -- CPT coding -- Evidence -- Error to exclude affidavit of insurer's non-physician expert regarding correctness of CPT code on claim form where PIP statute does not require that insurer refute medical provider's CPT code determination with physician's affidavit -- Where excluded affidavit and provider's deposition present material factual dispute regarding treatment billed as disputed CPT code, summary judgment and final judgment are reversed

17 Fla. L. Weekly Supp. 830c

Online Reference: FLWSUPP 1709VELEInsurance -- Personal injury protection -- Coverage -- Medical expenses -- CPT coding -- Where PIP statute requires compliance with Medicare's National Correct Coding Initiative, which provides that medical provider cannot bill lesser code separately on same date as provider bills bundled code that includes lesser code, insurer is not required to pay charge for lesser code

17 Fla. L. Weekly Supp. 826a

Online Reference: FLWSUPP 1709ALEXInsurance -- Personal injury protection -- Coverage -- Medical expenses -- CPT coding -- National Correct Coding Initiative is incorporated in Florida PIP law as part of Medicare pay system -- Where medical provider improperly unbundled services when billing, neither insured nor insurer was obligated to pay provider for unbundled amounts -- Question certified

17 Fla. L. Weekly Supp. 1029c

Online Reference: FLWSUPP 1710APONInsurance -- Personal injury protection -- Coverage -- Medical expenses -- CPT codes -- Unbundling

17 Fla. L. Weekly Supp. 1029a

Online Reference: FLWSUPP 1710CORTInsurance -- Personal injury protection -- Coverage -- Medical expenses -- CPT coding -- National Correct Coding Initiative is incorporated in Florida PIP law as part of Medicare pay system -- Where medical provider improperly unbundles services when billing for comprehensive treatment charge and component treatment charge, neither insurer that paid comprehensive treatment charge nor insured was obligated to pay for unbundled amount -- Question certified

17 Fla. L. Weekly Supp. 471b

Online Reference: FLWSUPP 1706VELEInsurance -- Personal injury protection -- Coverage -- Medical expenses -- CPT coding -- Where medical provider improperly filed claim for CPT code for unbundled service, insurer properly paid benefits for simultaneously billed bundled service code that included denied unbundled service

17 Fla. L. Weekly Supp. 466a

Online Reference: FLWSUPP 1706BADIInsurance -- Personal injury protection -- Coverage -- Medical expenses -- CPT coding -- National Correct Coding Initiative is incorporated in Florida PIP law as part of Medicare pay system -- Where medical provider improperly filed claims for CPT codes for comprehensive treatments and unbundled component services, insurer was not required to contact provider before paying benefits for comprehensive treatments and denying benefits for component services, as this did not constitute change in coding -- No merit to argument that, if bills were not payable under Medicare Part B due to unbundling, they should be paid under workers' compensation fee schedule -- Question certified

17 Fla. L. Weekly Supp. 28a

Online Reference: FLWSUPP 1701THOMInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Insurer properly denied payment for CPT code presented without modifier indicating it was separate from and separately compensable from another comprehensive CPT code charged the same day and paid by insurer

17 Fla. L. Weekly Supp. 1247a

Online Reference: FLWSUPP 1712APONInsurance -- Personal injury protection -- Coverage -- Medical expenses -- National Correct Coding Initiative edits, which bar physicians from administering certain services to patient on same day, are utilization limitations prohibited by PIP statute

17 Fla. L. Weekly Supp. 1246a

Online Reference: FLWSUPP 1712ARROInsurance -- Personal injury protection -- Coverage -- Medical expenses -- National Correct Coding Initiative edits, which bar physicians from administering certain services to patient on same day, are utilization limitations prohibited by PIP statute

17 Fla. L. Weekly Supp. 1245a

Online Reference: FLWSUPP 1712BGOMInsurance -- Personal injury protection -- Coverage -- Medical expenses -- National Correct Coding Initiative edits, which bar physicians from administering certain services to patient on same day, are utilization limitations prohibited by PIP statute

17 Fla. L. Weekly Supp. 1244a

Online Reference: FLWSUPP 1712BRITInsurance -- Personal injury protection -- Coverage -- Medical expenses -- National Correct Coding Initiative edits, which bar physicians from administering certain services to patient on same day, are utilization limitations prohibited by PIP statute

17 Fla. L. Weekly Supp. 1243a

Online Reference: FLWSUPP 1712ALIInsurance -- Personal injury protection -- Coverage -- Medical expenses -- CPT coding -- Unbundling -- Insurer cannot deny payment for CPT codes recognizable under Medicare Part B fee schedule on grounds that Medicare's National Correct Coding Initiative provides that codes cannot be billed on same day as each other where PIP statute forbids insurer from applying utilization limits -- No merit to argument that NCCI is payment limitation rather than utilization limitation

17 Fla. L. Weekly Supp. 1242b

Online Reference: FLWSUPP 1712HOLMInsurance -- Personal injury protection -- Coverage -- Medical expenses -- CPT coding -- Unbundling -- Insurer cannot deny payment for CPT codes recognizable under Medicare Part B fee schedule on grounds that Medicare's National Correct Coding Initiative provides that codes cannot be billed on same day as each other and cannot be billed on same day as another code billed by medical provider where PIP statute forbids insurer from applying utilization limits -- No merit to argument that NCCI is payment limitation rather than utilization limitation

17 Fla. L. Weekly Supp. 1242a

Online Reference: FLWSUPP 1712ROSAInsurance -- Personal injury protection -- Coverage -- Medical expenses -- CPT coding -- Unbundling -- Insurer cannot deny payment for CPT codes recognizable under Medicare Part B fee schedule on grounds that Medicare's National Correct Coding Initiative provides that codes cannot be billed on same day as each other and cannot be billed on same day as another code billed by medical provider where PIP statute forbids insurer from applying utilization limits -- No merit to argument that NCCI is payment limitation rather than utilization limitation

17 Fla. L. Weekly Supp. 1241a

Online Reference: FLWSUPP 1712FAVOInsurance -- Personal injury protection -- Coverage -- Medical expenses -- CPT coding -- Unbundling -- Insurer cannot deny payment for CPT codes recognizable under Medicare Part B fee schedule on grounds that Medicare's National Correct Coding Initiative provides that codes cannot be billed on same day as each other and cannot be billed on same day as another code billed by medical provider where PIP statute forbids insurer from applying utilization limits -- No merit to argument that NCCI is payment limitation rather than utilization limitation

17 Fla. L. Weekly Supp. 1240a

Online Reference: FLWSUPP 1712NRAMInsurance -- Personal injury protection -- Coverage -- Medical expenses -- CPT coding -- Unbundling -- Insurer cannot deny payment for CPT codes recognizable under Medicare Part B fee schedule on grounds that Medicare's National Correct Coding Initiative provides that codes cannot be billed on same day as each other and cannot be billed on same day as another code billed by medical provider where PIP statute forbids insurer from applying utilization limits -- No merit to argument that NCCI is payment limitation rather than utilization limitation

17 Fla. L. Weekly Supp. 1239a

Online Reference: FLWSUPP 1712OLIVInsurance -- Personal injury protection -- Coverage -- Medical expenses -- National Correct Coding Initiative edits, which bar physicians from administering certain services to patient on same day, are utilization limitations prohibited by PIP statute

17 Fla. L. Weekly Supp. 1238a

Online Reference: FLWSUPP 1712HERNInsurance -- Personal injury protection -- Coverage -- Medical expenses -- National Correct Coding Initiative edits, which bar physicians from administering certain services to patient on same day, are utilization limitations prohibited by PIP statute

17 Fla. L. Weekly Supp. 1237a

Online Reference: FLWSUPP 1712GOMEInsurance -- Personal injury protection -- Coverage -- Medical expenses -- National Correct Coding Initiative edits, which bar physicians from administering certain services to patient on same day, are utilization limitations prohibited by PIP statute

17 Fla. L. Weekly Supp. 590a

Online Reference: FLWSUPP 1707LOBIInsurance -- Personal injury protection -- Coverage -- Medical expenses -- CPT coding -- Insurer cannot deny payment for CPT code recognizable under Medicare Part B fee schedule on grounds that Medicare's National Correct Coding Initiative provides that code cannot be billed on same day as another code billed by medical provider where PIP statute forbids insurer from applying utilization limits -- No merit to argument that NCCI is payment limitation rather than utilization limitation

17 Fla. L. Weekly Supp. 589b

Online Reference: FLWSUPP 1707CAPOInsurance -- Personal injury protection -- Coverage -- Medical expenses -- CPT coding -- Insurer cannot deny payment for CPT code recognizable under Medicare Part B fee schedule on grounds that Medicare's National Correct Coding Initiative provides that code cannot be billed on same day as another code billed by medical provider where PIP statute forbids insurer from applying utilization limits -- No merit to argument that NCCI is payment limitation rather than utilization limitation

17 Fla. L. Weekly Supp. 137a

Online Reference: FLWSUPP 1702ADVAInsurance -- Personal injury protection -- Coverage -- Medicare Part B 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

17 Fla. L. Weekly Supp. 384a

Online Reference: FLWSUPP 1705LEIInsurance -- Personal injury protection -- Coverage -- Medical expenses -- CPT codes -- Neuromuscular reeducation -- Massage therapy -- Unbundling -- Insurer cannot deny payment for CPT codes for neuromuscular reeducation and massage therapy recognizable under Medicare Part B fee schedule on grounds that Medicare's National Correct Coding Initiative provides that neuromuscular reeducation and massage therapy codes cannot be billed on same day as another code billed by medical provider where insurer did not assert affirmative defense of unbundling, and PIP statute forbids insurer from applying utilization limits -- No merit to argument that NCCI is payment limitation rather than utilization limitation

17 Fla. L. Weekly Supp. 383b

Online Reference: FLWSUPP 1705TORRInsurance -- Personal injury protection -- Coverage -- Medical expenses -- CPT codes -- Myofacial release -- Massage therapy -- Unbundling -- Insurer cannot deny payment for CPT codes for myofacial release and massage therapy recognizable under Medicare Part B fee schedule on grounds that Medicare's National Correct Coding Initiative provides that myofacial release and massage therapy codes cannot be billed on same day as each other and myofacial release code cannot be billed on same day as another code billed by medical provider where insurer did not assert affirmative defense of unbundling, and PIP statute forbids insurer from applying utilization limits -- No merit to argument that NCCI is payment limitation rather than utilization limitation

17 Fla. L. Weekly Supp. 383a

Online Reference: FLWSUPP 1705CRUMInsurance -- Personal injury protection -- Coverage -- Medical expenses -- CPT codes -- Neuromuscular reeducation -- Massage therapy -- Unbundling -- Insurer cannot deny payment for CPT codes for neuromuscular reeducation and massage therapy recognizable under Medicare Part B fee schedule on grounds that Medicare's National Correct Coding Initiative provides that neuromuscular reeducation and massage therapy codes cannot be billed on same day as another code billed by medical provider where insurer did not assert affirmative defense of unbundling, and PIP statute forbids insurer from applying utilization limits -- No merit to argument that NCCI is payment limitation rather than utilization limitation

17 Fla. L. Weekly Supp. 465a

Online Reference: FLWSUPP 1706AYERInsurance -- Personal injury protection -- Coverage -- Medical expenses -- CPT coding -- Insurer erred in denying payment for claimed CPT code that appears on Medicare Part B durable medical equipment fee schedule

17 Fla. L. Weekly Supp. 693a

Online Reference: FLWSUPP 1708MORAInsurance -- Personal injury protection -- Where PIP insurer's notice that policy had been canceled prior to accident and would not cover any medical expenses related to accident constituted anticipatory breach of policy, insured and medical provider were not required to submit medical bills to insurer before filing suit

17 Fla. L. Weekly Supp. 731a Online Reference: FLWSUPP 1709RAMOInsurance -- Personal injury protection -- Coverage -- Medical expenses -- MRI -- Standing -- Trial court properly found that assignment…

17 Fla. L. Weekly Supp. 199a

Online Reference: FLWSUPP 1703QUI2Insurance -- Personal injury protection -- Demand letter sent to wrong carrier -- Where insurer responded to demand letter sent to wrong carrier three times without any mention of defect and insurer is related to wrong carrier, insurer had actual and imputed notice of medical provider's intent to initiate litigation and cannot avail itself of invalid demand letter defense -- Where insurer and wrong carrier named as defendant are sufficiently related, insurer knew that provider made clerical error in suing wrong carrier, and provider has moved to amend complaint to substitute insurer as defendant, defense that provider sued wrong carrier is moot

17 Fla. L. Weekly Supp. 121a

Online Reference: FLWSUPP 1702GABRInsurance -- Personal injury protection -- Affirmative defenses -- Motion to amend affirmative defenses by asserting 6 new defenses 36 months after initiation of PIP suit is denied where proposed amendment is untimely, and medical provider who has prepared for trial several times, attended mediation and numerous hearings and rejected several proposals for settlement would be prejudiced by amendment

17 Fla. L. Weekly Supp. 684a

Online Reference: FLWSUPP 1708DELGInsurance -- 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 -- Moreover, where tendered offer was less than amount that insurer represented as being payable pursuant to provider's usual and customary rates, tendered amount was not tendered in good faith

17 Fla. L. Weekly Supp. 703a

Online Reference: FLWSUPP 1708MIL3Insurance -- Personal injury protection -- Accord and satisfaction -- Motion for summary judgment on insurer's accord and satisfaction defense is denied where there exists factual issue as to whether bona fide dispute existed as to amounts owed or whether the parties even understood what amounts each claimed to be at issue

17 Fla. L. Weekly Supp. 1116a

Online Reference: FLWSUPP 1711RODEInsurance -- Personal injury protection -- Motion to dismiss or abate PIP suit refiled after voluntary dismissal, on ground that medical provider has not paid sanctions entered against its prior counsel in prior case -- Itemization of insurer's claim and payments made required

17 Fla. L. Weekly Supp. 10a Online Reference: FLWSUPP 1701GARR Insurance -- Personal injury protection UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. EDUARDO J.GARRIDO, D.C., P.A., a/a/o AUREA T. ABREU, Appellee.…

17 Fla. L. Weekly Supp. 1249c

Online Reference: FLWSUPP 1712PALEInsurance -- Personal injury protection -- Interest -- Where insurer paid benefits on 30th day after date of receipt of notice of loss, no interest was due -- No merit to arguments that interest began to accrue upon receipt of bills and that date of receipt of bills is counted in calculation of thirty-day period

17 Fla. L. Weekly Supp. 926a

Online Reference: FLWSUPP 1710BLAKInsurance -- Homeowners -- Examination under oath -- Noncompliant spouse -- Although husband who is not named in wife's homeowners policy and has permanently moved out of home is no longer additional insured under policy, husband was additional insured on date of burglary when he was residing in home, and he was required to attend EUO concerning burglary -- However, where policy does not require all insureds to submit to EUO as condition precedent to coverage, insurer cannot deny coverage to fully compliant wife based on husband's failure to attend EUO -- Insurer may deny claim of noncompliant husband

17 Fla. L. Weekly Supp. 352b

Online Reference: FLWSUPP 1705EVERInsurance -- Homeowners -- Venue -- Government agency -- Home venue privilege applies to homeowners' claims against Citizens Property Insurance Corporation for breach of contract and unjust enrichment, damages, and equitable relief -- Citizens did not waive venue privilege by failing to assert it in other cases -- Sword-wielder exception does not apply to case in which Citizens is simply a passive defendant -- Motion to transfer venue to county in which Citizens is headquartered is granted

17 Fla. L. Weekly Supp. 1222a

Online Reference: FLWSUPP 1712DIREInsurance -- Fraudulent claims -- Civil theft -- Violation of statute prohibiting filing of false or fraudulent insurance claims cannot form basis for civil theft claim -- Florida Deceptive and Unfair Trade Practices Act -- Insurer's claim against medical provider for filing fraudulent claim is excluded from application of FDUTPA

17 Fla. L. Weekly Supp. 682b

Online Reference: FLWSUPP 1708JEANInsurance -- Personal injury protection -- Coverage -- Passenger -- Spouse -- Owner of another vehicle not insured during “gap period” -- Where husband of insured was injured while passenger in wife's vehicle during statutory gap period when law did not require and husband did not have PIP coverage, husband qualifies for coverage under wife's policy as “any other person while occupying insured motor vehicle” and is not barred from coverage by exclusion for “owner of motor vehicle with respect to which security is required under Florida Motor Vehicle No-Fault Law” -- Res judicata -- Collateral estoppel -- Decision of different county court finding that husband is excluded from coverage does not bar contrary decision in this case where cases involve same claimant and insurer, but different medical providers and different claims

17 Fla. L. Weekly Supp. 1208a

Online Reference: FLWSUPP 1712HIGDInsurance -- Homeowners -- Coverage -- Exclusions -- Resident relative -- In wrongful death action by mother as representative of estate of deceased child against father who allowed child to ride helmetless on back of ATV driven by intoxicated person while at father's home, father's homeowners insurer seeks declaration that child is excluded from coverage as resident relative -- Where undisputed facts establish that, although parents had shared parental responsibility, mother was child's primary caregiver, child attended school in mother's home county, child's life centered around mother's home, and child did not have own room at father's home, child was resident of mother's home and is covered under father's homeowners policy -- No merit to argument that term “resident” is sufficiently ambiguous to be interpreted to find that child had dual residency at both father's and mother's homes -- Insurance exclusions must be narrowly construed and any ambiguity must be construed against insurer that drafted policy

17 Fla. L. Weekly Supp. 379a

Online Reference: FLWSUPP 1705GORDInsurance -- Personal injury protection -- Evidence -- CPT code manual and CPT assistant publication are both admissible through judicial notice, but effect of CPT assistant is not binding -- Physician testimony is relevant to determination of whether CPT coding is applicable to tests billed

17 Fla. L. Weekly Supp. 882a

Online Reference: FLWSUPP 1710STAR Insurance -- Personal injury protection -- Insured's action against insurer -- Civil procedure -- Insured's second amended complaint is nullity where it was filed without leave of court or written consent of insurer -- No error in granting summary judgment in favor of insurer on first amended complaint in which insured sought damages for insurer's failure to pay purported settlement amount, interest, and attorney's fees and costs and alleged that a certain letter from insured's counsel to insurer constituted a settlement agreement and “confession of judgment” -- Letter was, at best, an agreement to participate in settlement negotiations, and “an agreement to agree” is unenforceable as a matter of law -- Where parties did not enter into settlement agreement, and insurer never paid disputed claim, insurer did not confess judgment, and trial court properly granted summary judgment on confession of judgment issue

17 Fla. L. Weekly Supp. 164a

Online Reference: FLWSUPP 1703CABRInsurance -- Discovery -- Surveillance tape -- While insurer had right to depose insured prior to releasing surveillance tape of insured, trial court did not err in ordering insurer to release tape prior to deposing insured where court gave insurer ample opportunity to depose insured before releasing tape, but insurer delayed setting deposition to avoid releasing tape

17 Fla. L. Weekly Supp. 606a

Online Reference: FLWSUPP 1707DIAZInsurance -- Personal injury protection -- Coverage -- Medical expenses incurred during statutory “gap period” -- Insurer correctly applied MRI fee schedule contained in 2007 PIP statute, which was in effect at time policy was issued, to MRI rendered during “gap period” created by sunsetting of PIP statute -- Insurer has no legal duty to provide copy of PIP policy and declarations page upon pre-suit demand of medical provider/assignee -- Demand letter that demanded amount in excess of statutory MRI fee schedule is invalid

17 Fla. L. Weekly Supp. 337a

Online Reference: FLWSUPP 1705ASHInsurance -- Personal injury protection -- Discovery -- Medical records of nonparties -- Order compelling insurer's medical expert to appear for deposition with copies of all expert reports issued in previous three years, limited to his ultimate conclusions, is quashed in absence of finding of unusual and compelling circumstances

17 Fla. L. Weekly Supp. 171a

Online Reference: FLWSUPP 1703JEANInsurance -- Personal injury protection -- Discovery -- Medical records of nonparties -- Order compelling insurer's medical expert to produce independent medical examination and peer review reports issued in previous three years and to redact names and provide notice to nonparties whose records will be produced is quashed where order does not making finding of unusual or compelling circumstances as required by rule 1.280(b)(4)(A)(iii) and does not clearly delineate portions of reports that are discoverable

17 Fla. L. Weekly Supp. 170b

Online Reference: FLWSUPP 1703BOUCInsurance -- Personal injury protection -- Discovery -- Medical records of nonparties -- Statute requiring doctor performing peer review 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

17 Fla. L. Weekly Supp. 170a

Online Reference: FLWSUPP 1703JOSEInsurance -- Personal injury protection -- Discovery -- Medical records of nonparties -- Order compelling insurer's medical expert to produce redacted independent medical examination and peer review reports issued in previous three years is quashed where there was no finding of unusual or compelling circumstances as required by rule 1.280(b)(4)(A)(iii), and order would require disclosure of medical records of nonparties who did not receive notice of disclosure

17 Fla. L. Weekly Supp. 169b

Online Reference: FLWSUPP 1703COOPInsurance -- Personal injury protection -- Discovery -- Medical records of nonparties -- Order compelling insurer's medical expert to produce redacted independent medical examination reports issued in previous three years is quashed where there was no finding of unusual or compelling circumstances as required by rule 1.280(b)(4)(A)(iii), and order would require disclosure of medical records of nonparties who did not receive notice of disclosure

17 Fla. L. Weekly Supp. 338a

Online Reference: FLWSUPP 1705LARRInsurance -- Personal injury protection -- Discovery -- Medical records of nonparties -- Discovery order compelling physician who performed peer review to disclose medical records for nonparties who did not receive notice of disclosure is quashed

17 Fla. L. Weekly Supp. 338b

Online Reference: FLWSUPP 1705LOUIInsurance -- Personal injury protection -- Explanation of benefits -- Failure to provide -- Medical provider/assignee has no cause of action against insurer for failure to provide EOB -- Discovery -- Medical record of nonparties -- Error to require insurer's expert to provide independent medical examination and peer review reports of nonparties and strike expert as witness for refusal to provide reports

17 Fla. L. Weekly Supp. 42a

Online Reference: FLWSUPP 1701DELGInsurance -- Insured, who was claimant in case, was entitled to copy of policy under provisions of statute requiring insurer to provide copy of policy within 30 days of written request of claimant

17 Fla. L. Weekly Supp. 79a

Online Reference: FLWSUPP 1702FALCAppeals -- Recall of mandate -- Motion to recall mandate is granted where insurer did not receive opinion prior to issuance of mandate, and motion to recall was filed within term that mandate issued -- Motion for rehearing of opinion, which denied certiorari challenge to order overruling objections to discovery of independent medical examinations and peer reviews performed by insurer's expert, on ground that differing opinion has been rendered by another circuit court panel is denied

17 Fla. L. Weekly Supp. 622a

Online Reference: FLWSUPP 1708DUNCInsurance -- Personal injury protection -- Discovery -- Medical records of nonparties -- Statute requiring that physician preparing report at request of insurer maintain copies of all examination reports for three years does not require physician to produce reports -- Even if statute required expert to produce reports, order compelling disclosure of records without notice to nonparty patients would violate privacy rights of nonparties -- Abuse of discretion to strike expert witness in absence of finding that witness was in contempt or violated legitimate discovery order -- Trial court further erred in failing to consider deposition testimony of improperly stricken expert in ruling on motion for summary judgment -- Explanation of benefits -- Entry of summary judgment in favor of medical provider as to insurer's failure to provide EOB was error where there is no cause of action to enforce obligation to provide EOB

17 Fla. L. Weekly Supp. 1177a

Online Reference: FLWSUPP 1712JRODInsurance -- Personal injury protection -- Discovery -- Record of expert witness -- Error to order insurer's expert witness to produce redacted lists of HCFAs and evidence of income derived from examinations where record does not establish that ordered lists exist, and trial court did not announce any unusual or compelling circumstances to require expert to compile or produce nonexistent records or to produce financial and business records

17 Fla. L. Weekly Supp. 1085a

Online Reference: FLWSUPP 1711JRODInsurance -- Personal injury protection -- Discovery -- Error to compel insurer's medical expert to produce “redacted” lists of “all HCFA's to be produced for 2008” and evidence of income derived from the examinations at issue where record did not establish that the ordered “lists” existed and trial court did not announce any unusual or compelling circumstances requiring production of financial or business records

17 Fla. L. Weekly Supp. 1123c

Online Reference: FLWSUPP 1711HOLNInsurance -- Personal injury protection -- Discovery -- Expert witness -- Production of third party vendor's records of amounts paid by vendor to insurer's expert for conducting independent medical examinations for insurance companies in general is outside scope of permissible discovery where records will not show extent of financial relationship between expert and individual insurer -- Medical records of nonparties -- Peer reviews conducted by expert on nonparties may not be disclosed without notice to nonparties -- Exception allowing disclosure of medical records for statistical and scientific research is not applicable

17 Fla. L. Weekly Supp. 1127a

Online Reference: FLWSUPP 1711OROZInsurance -- Personal injury protection -- Discovery -- Expert witness -- Insurer's objections to interrogatories regarding ongoing financial relationship with its expert and expert's retention by insurer and third parties in other litigation are overruled -- For interrogatories concerning matters of which insurer claims it has no knowledge, insurer must obtain information from its attorney, agent or employee

17 Fla. L. Weekly Supp. 381a

Online Reference: FLWSUPP 1705REYEInsurance -- Personal injury protection -- Discovery -- Expert witness -- Medical provider is not required to show unusual and compelling circumstances to obtain discovery of expert witness's financial information from nonparty vendor that works as middleman scheduling and paying experts who perform peer reviews and independent medical examinations for insurer

17 Fla. L. Weekly Supp. 476a

Online Reference: FLWSUPP 1706ANGUInsurance -- Personal injury protection -- Discovery -- Interrogatories -- Relationship to expert witness -- Insurer's objections to interrogatories requesting information from insurer regarding expert's experience as expert witness, including percentage of work hours and income received from work as expert, frequency of testimony and extent of expert's relationship to insurer, are denied

17 Fla. L. Weekly Supp. 340a

Online Reference: FLWSUPP 1705COL2Insurance -- Personal injury protection -- Discovery -- Error to enter ex parte order compelling discovery where motion to compel did not allege complete failure of insurer to respond or object to request for discovery

17 Fla. L. Weekly Supp. 884a

Online Reference: FLWSUPP 1710CARBLandlord-tenant -- Eviction -- Notice -- Defects -- Assuming without deciding that three-day notice was defective, this could not form basis for dismissal of eviction action where tenant failed to pay rent into court registry -- Failure of tenant to pay rent into registry of court constitutes waiver of tenant's defenses other than payment -- Error to sua sponte dismiss eviction complaint and to deny landlord's motion for default final judgment

17 Fla. L. Weekly Supp. 830b

Online Reference: FLWSUPP 1709DESRInsurance -- Discovery -- All objections to discovery except attorney-client privilege and work product privilege are waived by insurer's failure to timely object -- Privilege objections will be waived if insurer fails to provide legally sufficient privilege log

17 Fla. L. Weekly Supp. 31a

Online Reference: FLWSUPP 1701GRA3Insurance -- 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

17 Fla. L. Weekly Supp. 653a

Online Reference: FLWSUPP 1708ROEBInsurance -- Discovery -- Depositions -- Subpoenas duces tecum for depositions of non-parties and their records custodians or persons most knowledgeable are quashed or limited where discovery is overbroad, burdensome and unlikely to lead to discoverable or admissible evidence

17 Fla. L. Weekly Supp. 416b

Online Reference: FLWSUPP 1706CRUZInsurance -- Personal injury protection -- Discovery -- Depositions -- Error to compel insurer's litigation adjuster to attend deposition in Miami-Dade County where insurer did not seek affirmative relief but merely asserted affirmative defenses

17 Fla. L. Weekly Supp. 1086a

Online Reference: FLWSUPP 1711USAAInsurance -- Discovery -- Depositions -- Location for deposition of insurance adjuster is restricted to county in which adjuster lives, works, and has her record place of business

17 Fla. L. Weekly Supp. 288a

Online Reference: FLWSUPP 1704BRO2Insurance -- Personal injury protection -- Discovery -- Depositions -- Where sole issue presented is applicability of fee schedule to medical bill, information sought from insurer's representative is immaterial and irrelevant, and representative's deposition is prohibited

17 Fla. L. Weekly Supp. 25a

Online Reference: FLWSUPP 1701WARNInsurance -- Personal injury protection -- Discovery -- Deposition of insurer's employees with knowledge of whether database used by insurer as index to establish amount to be paid for claims has been used in inconsistent and inappropriate manner is not relevant to issue of whether database is appropriate means of calculating amount to be paid for claims under insured's policy -- Motion for protective order granted

17 Fla. L. Weekly Supp. 34a

Online Reference: FLWSUPP 1701MORAInsurance -- Discovery -- Depositions -- Failure to attend -- Sanctions -- Where order compelling deposition provided for striking medical provider's pleadings if provider failed to appear for deposition, and provider failed to appear for deposition, pleadings are stricken

17 Fla. L. Weekly Supp. 595a

Online Reference: FLWSUPP 1707PRICInsurance -- Personal injury protection -- Discovery -- Depositions -- Expert witness fee -- Insurer is not required to pay expert witness fee to depose treating physician for purpose of discovering course of treatment of insured or facts related to physician's capacity as corporate representative

17 Fla. L. Weekly Supp. 301b

Online Reference: FLWSUPP 1704SCHEInsurance -- Personal injury protection -- Discovery -- Depositions -- Treating physicians are not entitled to expert witness fees for deposition testimony

17 Fla. L. Weekly Supp. 204a

Online Reference: FLWSUPP 1703RODRInsurance -- Personal injury protection -- Discovery -- Depositions -- Expert witness fee -- Treating physician is entitled to expert witness fee for deposition testimony

17 Fla. L. Weekly Supp. 125b

Online Reference: FLWSUPP 1702LAKIInsurance -- Personal injury protection -- Discovery -- Depositions -- Treating physician is not entitled to expert witness fee for deposition testimony

17 Fla. L. Weekly Supp. 1189a

Online Reference: FLWSUPP 1712KINGInsurance -- Personal injury protection -- Summary judgment -- Opposing affidavit -- Sufficiency -- Error to fail to consider peer review report filed in opposition to motion for summary judgment on ground that report was not factually supported by independent medical examination -- No error in prohibiting insurer's records custodian from testifying on late billing issue where no predicate was laid for custodian's testimony, and her affidavit stating that her review of file revealed that medical provider's bills were postmarked more than 75 days after first date of treatment did not address whether bills were included in earlier mailing and did not refute testimony of provider's records custodian that she sent bills in that earlier mailing -- Discovery -- Depositions -- Expert witness fees -- In absence of transcript of treating physician's deposition, appellate court cannot determine whether insurer asked for facts or opinions from physician and must affirm award of expert witness fees for deposition testimony

17 Fla. L. Weekly Supp. 1185a

Online Reference: FLWSUPP 1712RAYNInsurance -- Personal injury protection -- Summary judgment -- Opposing affidavit -- Trial court erred in finding affidavit of insurer's expert to be insufficient because it was not supported by independent medical examination -- No merit to argument that despite this error appellate court can still affirm ruling on grounds that technical deficiencies in affidavit made it insufficient to create genuine issue of material fact where affidavit was sufficient to preclude summary judgment despite deficiencies, and insurer should have been afforded opportunity to correct deficient affidavit at summary judgment -- Discovery -- Depositions -- Expert witness fees -- In absence of transcript or stipulated record of hearing, trial court's finding that treating physician testified as expert at deposition is affirmed -- Explanation of benefits -- Grant of summary judgment on claim that insurer did not provide EOB is reversed because there is no private right of action for failure to provide EOB

17 Fla. L. Weekly Supp. 1180b

Online Reference: FLWSUPP 1712LOPEInsurance -- Personal injury protection -- Denial of benefits -- Date of cut-off letter based on independent medical examination is not date through which insured is entitled to receive benefits as matter of law -- Question of appropriate date for suspension of benefits is issue for jury -- Discovery -- Depositions -- Expert witness fees -- No error in awarding expert witness fees for deposition of treating physician

17 Fla. L. Weekly Supp. 1082a

Online Reference: FLWSUPP 1711VELAInsurance -- Personal injury protection -- Discovery -- Depositions -- Trial court erred in requiring insurer to pay expert witness fee to take deposition of treating physician -- Summary judgment -- Opposing affidavit -- No error in finding that peer review affidavit and report was deficient where documents referenced in the report were not attached to the report -- No error in granting summary judgment in favor of provider on issue of reasonableness, relatedness, and necessity of medical treatment

17 Fla. L. Weekly Supp. 1079a

Online Reference: FLWSUPP 1711MAURInsurance -- Personal injury protection -- Discovery -- Depositions -- Treating physicians are entitled to expert witness fee for attending deposition -- Rule does not require finding that deposition occurred “in anticipation of litigation” before awarding fee to expert witness for attending deposition -- Notice of claim -- Provider did not fail to provide insurer with notice of loss by failing to have patient verify that medical provider rendered the treatment billed -- Medical provider cured any defect in notice by submitting disclosure and acknowledgment form prior to litigation which included claimant's and physician's signature and substantially complied with requirements of statute -- Summary judgment -- Opposing affidavit -- Trial court erroneously struck peer review because report was drafted after suit was filed or because it was not based on independent medical examination -- Peer review affidavit presents factual dispute precluding summary judgment in favor of provider

17 Fla. L. Weekly Supp. 739a

Online Reference: FLWSUPP 1709RICHInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Denial -- Peer review report which was not based on physical examination of patient was nonetheless sufficient to create material issue of fact precluding summary judgment in provider's favor -- Depositions -- Trial court did not err in requiring insurer to pay expert witness fee for deposition of treating physician

17 Fla. L. Weekly Supp. 737a

Online Reference: FLWSUPP 1709MORAInsurance -- Personal injury protection -- Denial of benefits -- Valid medical report -- Trial court erred in striking affidavit and peer review report offered in opposition to medical provider's motion for summary judgment on ground that peer review was not obtained within 30 days of receipt of bill and was not supported by physical examination of insured -- Discovery -- Depositions -- Expert witness fees -- No error in determining that treating physician was entitled to expert witness fees for his deposition testimony

17 Fla. L. Weekly Supp. 735a

Online Reference: FLWSUPP 1709LYNCInsurance -- Personal injury protection -- Withdrawal of benefits -- Valid report -- Report of insurer's expert was not required to be factually supported by physical examination of insured in order to constitute valid report creating genuine issue of material fact as to reasonableness, relatedness and necessity of treatment -- Discovery -- Depositions -- Expert witness fees -- No error in awarding expert witness fees for deposition testimony of treating physician

17 Fla. L. Weekly Supp. 733a

Online Reference: FLWSUPP 1709ULLOInsurance -- Personal injury protection -- Denial of benefits -- Valid medical report -- Trial court erred in striking affidavit and peer review report offered in opposition to medical provider's motion for summary judgment on ground that peer review must be supported by physical examination of insured -- Trial court erred in using date of letter suspending benefits based on independent medical examination to suspend benefits where insurer had proof as of date of IME that no further treatment would be reasonable, related or necessary -- Discovery -- Depositions -- Expert witness fees -- No error in determining that treating physician was entitled to expert witness fees for his deposition testimony

17 Fla. L. Weekly Supp. 522a

Online Reference: FLWSUPP 1707MILOInsurance -- Personal injury protection -- Withdrawal of benefits -- Notice -- Error to refuse to consider affidavit of physician who conducted independent medical examination due to insurer's failure to send notice of suspension of benefits -- Discovery -- Depositions -- Expert witness fee -- Where insurer sought to depose treating physician regarding medical treatment and care of insured, trial court did not err in granting motion to compel payment of expert witness fee

17 Fla. L. Weekly Supp. 414a

Online Reference: FLWSUPP 1706CASTInsurance -- Personal injury protection -- Reduction of benefits -- Valid medical report -- Error to exclude peer review report filed in opposition to summary judgment because it was not predicated on independent medical examination where report was supported by physician's review of insured's medical records -- Valid medical report is not condition precedent to denial or partial reduction of PIP claim, as opposed to withdrawal of benefits -- Discovery -- Depositions -- Expert witness fee -- Error to find that treating physician is expert witness entitled to expert witness fee for deposition testimony

17 Fla. L. Weekly Supp. 329a

Online Reference: FLWSUPP 1705DUNCInsurance -- Personal injury protection -- Discovery -- Depositions -- Expert witnesses -- Error to award expert witness fees for deposing treating physician -- Coverage -- Reasonable, related and necessary treatment -- Error to enter summary judgment in favor of insured after refusing to consider peer review affidavit because it was not based on independent medical examination and was obtained after insured filed suit

17 Fla. L. Weekly Supp. 163d

Online Reference: FLWSUPP 1703IBARInsurance -- Personal injury protection -- Withdrawal of benefits -- Valid medical report -- Physician preparing report for purposes of withdrawal of benefits does not have to personally examine insured -- Reporting physician can review another physician's examination and treatment records of insured -- Discovery -- Depositions -- Expert witness fee -- Error to require insurer to pay expert witness fee for deposition of treating physician deposed for purpose of discovering his course of treatment of insured

17 Fla. L. Weekly Supp. 1065b

Online Reference: FLWSUPP 1711SOCOInsurance -- Personal injury protection -- Witnesses -- Expert -- Abuse of discretion to deny insurer's request to take deposition of its sole expert witness to read to jury where trial court changed order in which cases would be heard and expert whose testimony was crucial was not available to testify until several days after new trial date

17 Fla. L. Weekly Supp. 972a

Online Reference: FLWSUPP 1710GINEInsurance -- Personal injury protection -- Discovery -- Depositions -- Circuit court did not depart from essential requirements of law by granting protective order precluding insured from taking deposition of an employee of insurer who potentially had information regarding reductions in insured's claims -- Reasoning behind payments made by insurance company is not relevant to suit for PIP benefits

17 Fla. L. Weekly Supp. 661a

Online Reference: FLWSUPP 1708ALIInsurance -- Personal injury protection -- Discovery -- Depositions -- Insurer may not inquire in deposition about CPT coding used by medical provider or identity of provider's coding consultant -- Insurer may not inquire about provider's compliance with various administrative rules, regulatory statutes, licensing requirements and medical standards -- Inquiry ends with determination that facility and treating physicians are properly licensed by state -- Insurer may discover contractual rates provider accepted from insured's health insurance carrier, but information will be deemed confidential -- Treating physician is entitled to expert witness fee for deposition testimony

17 Fla. L. Weekly Supp. 428b

Online Reference: FLWSUPP 1706PERSInsurance -- Default -- Vacation -- Denial -- No error in refusing to set aside default where insurer did not prove excusable neglect or undertake due diligence in seeking relief from default

17 Fla. L. Weekly Supp. 287a

Online Reference: FLWSUPP 1704LONGInsurance -- Personal injury protection -- Subrogation or reimbursement of PIP benefits -- Declaratory judgment -- Where neither insured nor insurer is in doubt as to rights or interpretation of statute controlling insurer's claim for subrogation or reimbursement of PIP benefits, insured's request for declaration of proper dollar amount that should be claimed is dismissed

17 Fla. L. Weekly Supp. 385a

Online Reference: FLWSUPP 1705ARTIInsurance -- Declaratory judgment -- Medical provider need not seek monetary damages in order to pursue declaratory relief as to amount of benefits recoverable

17 Fla. L. Weekly Supp. 572a

Online Reference: FLWSUPP 1707HIGGContracts -- Insurance -- Choice of law -- Claims under contract are governed by laws of state in which contract was executed

17 Fla. L. Weekly Supp. 181a

Online Reference: FLWSUPP 1703BAYFTorts -- Contracts -- Insurance -- Jurisdiction -- Non-residents -- Motion to dismiss filed by nonresident insurer whose codefendant/insured was involved in automobile accident in Florida that resulted in property damage to plaintiff's vehicle and to custom cabinets in vehicle and who, according to allegations of complaint, committed negligence per se by having an unlicensed adjuster perform appraisal of damages resulting from the accident and breached insurance contract by failing to pay for loss and damages caused by its insured -- Where pleadings indicate that insurer had only attenuated relationship with Florida, established only through fact that its insured traveled within state borders, it lacked sufficient minimum contacts with Florida such that it could reasonably anticipate being haled into court in Florida -- Insurer's motion to dismiss counts alleging breach of contractual obligation of good faith and fair dealing, bad faith claims handling, and negligence per se is granted

17 Fla. L. Weekly Supp. 746b

Online Reference: FLWSUPP 1709NATIInsurance -- Coverage -- Theft of covered vehicle -- Exclusions -- Where policy provided that insurer would pay for loss due to theft of covered automobile, and policy also contained an excluded driver endorsement that provided that provisions of policy did not apply while auto was being driven by person named in schedule of excluded drivers or operators, insurer properly denied coverage for damage caused when excluded driver stole insured vehicle -- Enforcement of insurance policy's excluded driver endorsement did not require evidence that insured consented to the vehicle's use by the excluded driver

17 Fla. L. Weekly Supp. 1005a

Online Reference: FLWSUPP 1710COLIInsurance -- Automobile liability -- Coverage -- Indemnification -- Action seeking declaration that insurer has duty to defend insured in suit brought by another carrier for injuries to its insured arising from operation of insured's vehicle by her daughter -- Where complaint brought by other insurance carrier alleges that insured is vicariously liable for injuries because she consented to daughter's use of her vehicle, and daughter is named excluded driver under policy which also excludes coverage for any claim for damages against named insured that is vicariously liable for excluded driver, there is no coverage for insured under allegations of complaint -- Argument that insurer has duty to defend insured against suit even when there is no possibility that insurer will be liable to indemnify insured is unfounded -- Trial court properly entered summary judgment in favor of insurer

17 Fla. L. Weekly Supp. 780a

Online Reference: FLWSUPP 1709JAMEInsurance -- Automobile -- Affirmative defenses -- Compromise and settlement -- Affirmative defense asserting that there was compromise and settlement before commencement of action is dismissed where defense is contradicted by attachment showing that insurer did not pay policy limits demanded in presuit demand letter until 3 ½ months after suit was filed -- Further, by time of insurer's alleged acceptance, offer had expired by its own terms or by passage of reasonable time and had been revoked by plaintiffs' filing of suit

17 Fla. L. Weekly Supp. 519b

Online Reference: FLWSUPP 1707LUNAInsurance -- Automobile -- Discovery -- No error in compelling insurer to produce transcript of insured's examination under oath concerning another accident where insurer's property damage manager testified in deposition that he mistakenly relied on file for other accident when responding to civil remedy notice in instant case involving damage to rental car driven by insured

17 Fla. L. Weekly Supp. 657a

Online Reference: FLWSUPP 1708DONInsurance -- Automobile -- Discovery -- Depositions -- Where insurer improperly refused to coordinate and set depositions of employees involved in adjustment and denial of claim prior to hearing on insurer's motion for summary judgment, motion to compel depositions is granted

17 Fla. L. Weekly Supp. 173b

Online Reference: FLWSUPP 1703HOWAInsurance -- Attorney's fees -- Timeliness of motion -- Motion for attorney's fees filed prior to entry of final judgment was timely filed

17 Fla. L. Weekly Supp. 958a

Online Reference: FLWSUPP 1710BREVInsurance -- Personal injury protection -- Standing -- Plaintiff, who filed lawsuit against insurer in his alleged representative capacity as “parent and guardian” of his injured daughter, had no right or standing to file lawsuit where daughter had reached age eighteen by the time the suit was filed -- Trial court should have dismissed action without prejudice -- Insurer did not waive issue of lack of standing by failing to plead it as an affirmative defense where issue was raised in motion for summary judgment -- Although plaintiff may be personally liable for daughter's covered medical bills, which she incurred as a minor child, this has no bearing on standing issue where father sued as daughter's parent and guardian and was not joined in suit in his individual capacity -- Attorney's fees -- Proposal for settlement -- Because appellate court is directing trial court to dismiss action without prejudice, dismissal will not function as an adjudication on the merits, and insurer is not entitled to award of attorney's fees pursuant to section 768.79

17 Fla. L. Weekly Supp. 1118b

Online Reference: FLWSUPP 1711BELIInsurance -- Attorney's fees -- Proposal for settlement

17 Fla. L. Weekly Supp. 878a

Online Reference: FLWSUPP 1710GLASInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Claim form -- Provider failed to comply with requirements imposed by statute, and accordingly failed to furnish insurer with notice of covered loss, where it omitted professional license number from claim form -- Deficiency may be asserted at any time, even after payment -- Insurer did not waive defense of lack of notice by partially paying bill and by giving sworn testimony that there were no problems with HCFA form -- Attorney's fees -- Proposal for settlement -- Insurer entitled to award of appellate attorney's fees pursuant to section 768.79 and rule 1.442, conditioned upon trial court determining that proposal for settlement was properly made and submitted and that insurer is otherwise entitled to these fees