Volume 19

19 Fla. L. Weekly Supp. 396b

Online Reference: FLWSUPP 1905ANDRInsurance -- Venue -- Forum non conveniens -- Insurer's motion to transfer venue is granted where medical provider claimed in complaint that it is domestic corporation with principal place of business in Volusia County, but insurer presented unrebutted evidence that provider's principal place of business is Hillsborough County, and provider argued that venue in Volusia is proper because its billing provider is located there, but did not submit affidavits in defense of its choice of venue or contest insurer's assertion that most witnesses live in Hillsborough County

19 Fla. L. Weekly Supp. 1053a

Online Reference: FLWSUPP 1913BIANInsurance -- Venue -- Forum non conveniens -- Trial court did not depart from essential requirements of law in denying without prejudice insurer's motion to transfer venue from Miami-Dade County to Hernando County where, although insurer alleged without dispute that more witnesses and documents were located in Hernando County, insurer, which was located in Miami-Dade County, cannot claim inconvenience or tactical disadvantage in forum selected by plaintiff

19 Fla. L. Weekly Supp. 905b

Online Reference: FLWSUPP 1911BIANInsurance -- Venue -- Appeals -- Petition for certiorari filed more than one year after entry of challenged order denying motion to transfer venue was untimely filed

19 Fla. L. Weekly Supp. 487a

Online Reference: FLWSUPP 1906DEXAInsurance -- Venue -- Motion to transfer venue or dismiss for forum non conveniens that is not sworn or accompanied by supporting affidavit is denied without prejudice to refiling with sworn proof

19 Fla. L. Weekly Supp. 260a

Online Reference: FLWSUPP 1904SKINInsurance -- Underinsured motorist -- In action for contractual subrogation of underinsured motorist benefits, requirement that insurer obtain release from its insured is not applicable -- Requirement exists, if at all, only in claims for equitable subrogation

19 Fla. L. Weekly Supp. 469c

Online Reference: FLWSUPP 1906VIEIInsurance -- Fourth amended third-party complaint against insurer is dismissed with prejudice -- Common law claim for contribution or indemnity is barred by economic loss rule, and insurance contract to which complaint refers pertains to real property that is not subject of litigation

19 Fla. L. Weekly Supp. 876a

Online Reference: FLWSUPP 1910ESGUInsurance -- Subrogation -- Plaintiff stating claim for contractual subrogation for property damage, not claim for equitable subrogation, is not required to obtain release of defendant from its insured before bringing claim

19 Fla. L. Weekly Supp. 293a

Online Reference: FLWSUPP 1904DGARInsurance -- Proposal for settlement -- Enlargement of time to respond

19 Fla. L. Weekly Supp. 407a

Online Reference: FLWSUPP 1905BAILInsurance -- Settlement agreement -- Enforcement -- Where insurer has not complied with terms of offer of judgment accepted by medical provider, motion to enforce settlement agreement is granted

19 Fla. L. Weekly Supp. 735a

Online Reference: FLWSUPP 1909DIRRInsurance -- Property -- Assignment -- “No assignment” clause in insurance policy did not prevent insured from assigning insurance proceeds to water removal service after loss -- Assignment is sufficient to confer standing on assignee -- Insured is not indispensable party to assignee's action against insurer -- No merit to insurer's assertions that complaint is insufficient or that attorney's fee demand by assignee is not valid

19 Fla. L. Weekly Supp. 725a

Online Reference: FLWSUPP 1909STRIInsurance -- Property -- Limitation of actions -- 2011 statutory amendment changing event for commencement of limitations period for claims for breach of property insurance contracts from date of breach by insurer to date of casualty loss does not apply retroactively to claim that arose in 2011 when insurer denied any further liability for damages that resulted from 2006 incident

19 Fla. L. Weekly Supp. 695a

Online Reference: FLWSUPP 1909ZUNIInsurance -- Property -- Appraisal -- Error to require assignee of insured to participate in appraisal where insurer failed to give assignee notice of its right to participate in mediation -- Insurer bears burden of proving notice was given; insured does not bear burden to show lack of notice

19 Fla. L. Weekly Supp. 892a

Online Reference: FLWSUPP 1910CRUMInsurance -- Personal injury protection -- Reimbursement by insurer of commercial vehicle -- Sedan used primarily, if not exclusively, in for-hire business that transports persons is commercial motor vehicle, not private passenger motor vehicle

19 Fla. L. Weekly Supp. 408d

Online Reference: FLWSUPP 1905CRUMInsurance -- Personal injury protection -- Reimbursement by insurer of commercial vehicle -- Sedan purchased for sole purpose of transporting persons and use in for-hire business is commercial motor vehicle, not private passenger motor vehicle

19 Fla. L. Weekly Supp. 750a

Online Reference: FLWSUPP 1909STATInsurance -- Personal injury protection -- Reimbursement by owner of commercial vehicle -- Patrol car sedan used primarily, if not exclusively, for police business is commercial motor vehicle, not private passenger vehicle

19 Fla. L. Weekly Supp. 1101a

Online Reference: FLWSUPP 1913IRODInsurance -- Personal injury protection -- Notice of loss -- Where affidavit of passenger injured in insured's vehicle indicated that passenger is owner of a motor vehicle and therefore would not be entitled to coverage under insured's PIP policy, and passenger did not withdraw affidavit until after suit was filed, PIP insurer did not receive notice of covered loss and 30-day period for payment of benefits did not begin to run until after suit was filed -- Suit is dismissed as premature

19 Fla. L. Weekly Supp. 308a

Online Reference: FLWSUPP 1905FRANInsurance -- Personal injury protection -- Jurisdiction -- Medical provider's filing of appeal of final judgment constituted abandonment of provider's post-trial motion for new trial and divested trial court of jurisdiction to consider motion

19 Fla. L. Weekly Supp. 758a

Online Reference: FLWSUPP 1910KABAInsurance -- Personal injury protection -- Independent medical examination -- Failure to attend -- Law does not require PIP insured to provide reason for cancelling IME in advance of scheduled exam, and failure to provide reason does not constitute unreasonable refusal to attend IME -- To prevail on affirmative defense of unreasonable refusal to attend IME, insurer must prove both that insured refused to attend IME and that refusal was unreasonable -- On remand insured may renew motion for summary judgment on ground that IME notices sent by vending company engaged by managing agent of insurer do not meet statutory requirement that IME notices be sent by insurer where record is unclear as to whether managing agent met definition of insurer at time it requested IME -- Unreasonable refusal to attend IME relieves insurer of liability not only for treatment provided after cutoff, but also for services rendered but not billed prior to cutoff

19 Fla. L. Weekly Supp. 969b

Online Reference: FLWSUPP 1912FIGUInsurance -- Personal injury protection -- Independent medical examination -- Failure to attend -- Where record contains evidence indicating disputed issue of material fact as to reasonableness of insured's failure to attend IMEs, order granting summary judgment in favor of insurer is reversed

19 Fla. L. Weekly Supp. 582a

Online Reference: FLWSUPP 1907GUMBInsurance -- Personal injury protection -- Independent medical examination -- Failure to attend -- Where insurer knew that insured was represented by counsel but failed to provide counsel with notice of IME or respond to counsel's request to reschedule IME, insured's failure to attend IME was not unreasonable

19 Fla. L. Weekly Supp. 142a

Online Reference: FLWSUPP 1902TROPInsurance -- Personal injury protection -- Examination under oath -- Failure to attend -- Attendance at EUO is not condition precedent to filing suit for PIP benefits -- However, unreasonable failure to attend EUO is affirmative defense to prospective PIP benefits -- Thirty-day claim investigation window during which EUOs must be scheduled is measured from date of insurer's receipt of medical bills, not date of receipt of notice of accident -- No merit to arguments that insured who is not policyholder has no duty to attend EUO or that insured's failure to attend is immaterial to medical provider/assignee's claim for benefits

19 Fla. L. Weekly Supp. 625a

Online Reference: FLWSUPP 1908ARRIInsurance -- Personal injury protection -- Examination under oath -- Failure to attend -- Attendance at EUO is not condition precedent to filing PIP suit for recovery of PIP benefits -- Error to enter summary judgment in favor of insurer based on ground of unreasonable refusal to attend EUO that was not pled as affirmative defense

19 Fla. L. Weekly Supp. 83b

Online Reference: FLWSUPP 1902SMALInsurance -- Personal injury protection -- Examination under oath -- EUO is not condition precedent to obtaining PIP benefits; it is condition subsequent, and failure to attend divests insured of future benefits -- Because insurer did not plead affirmative defense of breach of condition subsequent, insurer is precluded from relying on defense before trial court -- Even if insurer could amend pleadings to allege defense of breach of condition subsequent, defense is fatally flawed where requirement that insured submit to EUO without counsel renders EUO provision invalid -- Trial court correctly granted insurer's motion for summary judgment

19 Fla. L. Weekly Supp. 139a

Online Reference: FLWSUPP 1902LEMIInsurance -- Personal injury protection -- Disclosure and acknowledgment form -- Signature of medical professional who rendered treatment is not element of notice of covered loss, and lack of signature on D&A form may be cured -- Insurer who failed to notify medical provider of defect in D&A form is deemed to have waived objection to form -- Evidence -- Judicial notice -- Request for judicial notice of exhibits filed with provider's request for admissions already in court file is granted -- Request for judicial notice of documents not previously filed with court but filed with Florida Office of Insurance Regulation is denied

19 Fla. L. Weekly Supp. 685a

Online Reference: FLWSUPP 1909MGARInsurance -- Personal injury protection -- Expert witnesses -- Striking -- Abuse of discretion to strike insurer's two expert witnesses where medical provider received discovery as to both witnesses, and insurer's delay in designating which expert would testify at trial did not prejudice provider

19 Fla. L. Weekly Supp. 229a

Online Reference: FLWSUPP 1904JAIMInsurance -- Personal injury protection -- Discovery -- Admissions -- Abuse of discretion to deny insurer's request for relief from admissions where, although insurer lacked due diligence in seeking relief, record shows evidentiary conflict on admitted issue of medical necessity, and medical provider failed to show that it would be prejudiced if relief were granted since it had notice that insurer was contesting issue -- Error to enter summary judgment in favor of provider where record was replete with evidence contrary to admissions, and there was genuine factual dispute

19 Fla. L. Weekly Supp. 207a

Online Reference: FLWSUPP 1903AZADInsurance -- Personal injury protection -- Demand letter -- Insurer waived right to take issue with lack of specificity in demand letter by failing to advise medical provider of alleged defects in response to demand letter

19 Fla. L. Weekly Supp. 797a

Online Reference: FLWSUPP 1910MIDDInsurance -- Personal injury protection -- Demand letter -- Rulings on motions for summary judgment and partial summary judgment regarding sufficiency of demand letter were premature where discovery revealed material issue of fact and future discovery might reveal further disputed issues of material fact regarding insurer's alleged failure to include in demand letter explanations of benefits reflecting reduced payments made by insurer

19 Fla. L. Weekly Supp. 207b

Online Reference: FLWSUPP 1903PEREInsurance -- Personal injury protection -- Demand letter -- Where medical provider attached itemized statement to demand letter that set forth name of provider that rendered treatment and each exact amount, date of treatment and type of benefit claimed to be due, demand letter was sufficient -- Statute does not require that provider place PIP insurer on notice of exact amount owed or account for prior payments

19 Fla. L. Weekly Supp. 205a

Online Reference: FLWSUPP 1903VROSInsurance -- Personal injury protection -- Demand letter -- Where medical provider attached itemized statement to demand letter that set forth name of provider that rendered treatment and each exact amount, date of treatment and type of benefit claimed to be due, demand letter was sufficient -- Statute does not require that provider place PIP insurer on notice of exact amount owed or account for prior payments

19 Fla. L. Weekly Supp. 208a

Online Reference: FLWSUPP 1903BROOInsurance -- Personal injury protection -- Demand letter that cited wrong statutory subsection and misstated amount of time allowed for response was substantially compliant with statute where PIP insurer was given notice of what medical provider was seeking and suffered no prejudice by language in letter

19 Fla. L. Weekly Supp. 890a

Online Reference: FLWSUPP 1910RIVEInsurance -- Personal injury protection -- Demand letter -- Sufficiency -- Demand letter was not deficient for failing to state exact amount owed or account for prior payments by insurer -- Attachment of health insurance claim forms satisfied requirement to provide itemized statement

19 Fla. L. Weekly Supp. 382a

Online Reference: FLWSUPP 1905GASKInsurance -- Personal injury protection -- Demand letter -- PIP statute does not require that medical provider compute exact amount owed or reflect prior payments by insurer in demand letter -- Demand letter which included HCFA claim form that provided insurer with all information needed to properly process claim complied with statute despite failure to indicate exact amount owed and to account for prior payments

19 Fla. L. Weekly Supp. 289a

Online Reference: FLWSUPP 1904CHAMInsurance -- Personal injury protection -- Demand letter -- Attachment of CMS-1500 claim forms to demand letter satisfied statutory requirement for itemized statement -- Statute does not require that demand letter state exact amount owed or reflect prior payments made by insurer

19 Fla. L. Weekly Supp. 203a

Online Reference: FLWSUPP 1903ORENInsurance -- Personal injury protection -- Demand letter -- Where medical provider attached HCFA claim form to demand letter, demand letter was sufficient

19 Fla. L. Weekly Supp. 939a

Online Reference: FLWSUPP 1911OBRIInsurance -- Personal injury protection -- Demand letter that states exact amount due, name of medical provider, date of treatment, and type of benefit claimed is proper and complies with statute

19 Fla. L. Weekly Supp. 584b

Online Reference: FLWSUPP 1907JEUNInsurance -- Personal injury protection -- Demand letter -- Sufficiency -- Demand letter that sets forth amount demanded in bold font and to which medical provider's itemized billing ledger is attached satisfied statutory requirements for PIP demand letter

19 Fla. L. Weekly Supp. 571b

Online Reference: FLWSUPP 1907DORSInsurance -- Personal injury protection -- Coverage -- Reasonable proof within 30 days -- Where insurer had reasonable proof within 30 days of claim that it was not responsible for payment because claimant, who was not a named insured on policy covering vehicle involved in accident, was owner of other vehicles, payment on claims was not overdue -- Accordingly, presuit demand letter was invalid

19 Fla. L. Weekly Supp. 383a

19 Fla. L. Weekly Supp. 803b

Online Reference: FLWSUPP 1910BAYTInsurance -- Personal injury protection -- Demand letter -- Where demand letter stated incorrect date of accident and claim number, but claim forms and assignment attached to letter contained correct date of accident and policy number, demand letter substantially complied with statutory requirements by providing sufficient notice of covered loss

19 Fla. L. Weekly Supp. 731a

Online Reference: FLWSUPP 1909GARTInsurance -- Personal injury protection -- Demand letter -- Where medical provider submitted demand letter that erroneously listed medical service that was never billed and included amount for that service in total amount due and owing, and provider did not submit updated or corrected demand letter, but instead filed suit with complaint listing same erroneous amount, provider failed to satisfy condition precedent to filing suit -- Defective demand letter was not cured by post-suit notice of withdrawal of erroneously listed service

19 Fla. L. Weekly Supp. 659a

Online Reference: FLWSUPP 1908QUINInsurance -- Personal injury protection -- Demand letter -- Insurer waived issue of defective demand letter that failed to include assignment by failing to raise issue in response to letter -- Further, demand letter satisfied intent of PIP statute where deficiency did not affect processing of demand letter by insurer and served purpose of putting insurer on notice of intent to initiate litigation

19 Fla. L. Weekly Supp. 941a

Online Reference: FLWSUPP 1911TORRInsurance -- Personal injury protection -- Demand letter -- Presuit demand letter was deficient where all relevant forms were not attached to letter and amount due stated in letter did not match amounts in attached forms -- Second demand letter could not remedy initial demand letter where second letter was sent after suit was filed -- Even if second letter had been sent before suit was filed, letter was deficient for failing to include itemized statement specifying amount due and proof of assignment

19 Fla. L. Weekly Supp. 1033a

Online Reference: FLWSUPP 1912RICKInsurance -- Personal injury protection -- Demand letters that were sent before claims were overdue and failed to account for partial payments made by insurer failed to satisfy condition precedent to suit for PIP benefits

19 Fla. L. Weekly Supp. 1026a

Online Reference: FLWSUPP 1912MURPInsurance -- Personal injury protection -- Dismissal -- Res judicata bars PIP suit for claims that should have been filed in prior PIP case between same parties

19 Fla. L. Weekly Supp. 1098a

Online Reference: FLWSUPP 1913MARTInsurance -- Personal injury protection -- Coverage -- Passenger of insured vehicle whose parents own uninsured vehicle -- No merit to claim that minor passenger is not entitled to coverage under PIP policy covering vehicle he occupied at time of accident because parents with whom he resides own uninsured vehicle

19 Fla. L. Weekly Supp. 597a

Online Reference: FLWSUPP 1907VALIInsurance -- Personal injury protection -- Coverage -- Non-resident relative of insured -- Medical provider's assignor is not entitled to benefits under his stepfather's PIP policy where assignor is not named insured, does not reside with stepfather, and was not occupying vehicle insured under policy at time of accident -- Insurer did not waive right to deny coverage by paying other medical providers for services rendered to assignor where other payments are merely gratuitous

19 Fla. L. Weekly Supp. 926a

Online Reference: FLWSUPP 1911LAURInsurance -- Personal injury protection -- Coverage -- Non-owner of vehicle -- No error in entering directed verdict for insurer where there was no evidence presented as to how plaintiff, who was injured while driving cousin's vehicle. was covered by cousin's PIP policy

19 Fla. L. Weekly Supp. 663a

Online Reference: FLWSUPP 1908FRIEInsurance -- Coverage -- Medical expenses -- Claim -- Timeliness -- Where affidavit of medical provider's billing manager was sufficient to trigger presumption that bill at issue was timely mailed and was received by insurer, provider's motion for summary judgment is granted

19 Fla. L. Weekly Supp. 126a

Online Reference: FLWSUPP 1902GOLDInsurance -- Personal injury protection -- Coverage -- Where PIP policy provides that insurer will pay 80% of actual charge and does not reference permissive fee schedule of section 627.736(5)(a)2, insurer is not permitted to utilize permissive fee schedule in processing claim

19 Fla. L. Weekly Supp. 735c

Online Reference: FLWSUPP 1909VILLInsurance -- Personal injury protection -- Coverage -- Policy language regarding method of reimbursing claims controls over permissive statutory fee schedule not referenced in policy

19 Fla. L. Weekly Supp. 925a

Online Reference: FLWSUPP 1911NEGRInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Where policy provides that insurer will pay 80% of reasonable medical expenses and does not say that insurer will pay in accordance with permissive fee schedule of section 627.736(5)(a)2.f., insurer is not entitled to limit reimbursement to permissive statutory fee schedule -- Even if insurer is correct that PIP statute is incorporated into policy, resulting ambiguity regarding which method insurer would use to calculate reimbursement must be resolved in favor of insured to require that insurer pay greatest amount possible under policy language

19 Fla. L. Weekly Supp. 946b

Online Reference: FLWSUPP 1911SOUZInsurance -- Personal injury protection -- Coverage -- Permissive statutory fee schedule of section 627.736(5)(a)2 could not be applied where policy made no reference to permissive fee schedule

19 Fla. L. Weekly Supp. 894a

Online Reference: FLWSUPP 1910CURTInsurance -- Personal injury protection -- Coverage -- Permissive statutory fee schedule of section 627.736(5)(a)2 could not be applied where policy made no reference to permissive fee schedule

19 Fla. L. Weekly Supp. 893b

Online Reference: FLWSUPP 1910DARIInsurance -- Personal injury protection -- Coverage -- Permissive statutory fee schedule of section 627.736(5)(a)2 could not be applied where policy made no reference to permissive fee schedule

19 Fla. L. Weekly Supp. 893a

Online Reference: FLWSUPP 1910GOMEInsurance -- Personal injury protection -- Coverage -- Permissive statutory fee schedule of section 627.736(5)(a)2 could not be applied where policy made no reference to permissive fee schedule

19 Fla. L. Weekly Supp. 376a

Online Reference: FLWSUPP 1905MIRAInsurance -- Personal injury protection -- Coverage -- Permissive statutory fee schedule of section 627.736(5)(a)2 could not be applied where policy made no reference to permissive fee schedule

19 Fla. L. Weekly Supp. 127a

Online Reference: FLWSUPP 1902NEWBInsurance -- Personal injury protection -- Coverage -- Where insurer elected to reimburse medical provider pursuant to permissive statutory fee schedule and applied Outpatient Prospective Payment System cap, caps insurer cannot belatedly contest reasonableness of charge submitted by provider following decision by district court of appeal disallowing use of OPPS cap

19 Fla. L. Weekly Supp. 126b

Online Reference: FLWSUPP 1902GOSHInsurance -- Personal injury protection -- Coverage -- Where insurer elected to reimburse medical provider pursuant to permissive statutory fee schedule and applied Outpatient Prospective Payment System cap, insurer cannot belatedly contest reasonableness of charge submitted by provider following decision by district court of appeal disallowing use of OPPS cap -- Once insurer elected to use permissive fee schedule, reasonableness of charge became irrelevant and only issue is whether insurer correctly reimbursed provider under fee schedule

19 Fla. L. Weekly Supp. 1091a

Online Reference: FLWSUPP 1913GUERInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Conclusory affidavit filed in opposition to medical provider's motion for summary judgment did not severely impeach or create direct conflict with provider's evidence as to reasonableness of charges -- Presuit demand letters were not insufficient for failure to attach insurer's notices of withdrawal of authorization for any future benefits pursuant to independent medical examination where demand letters did not seek future benefits -- Further, insurer waived any defect by failing to advise provider of alleged deficiencies prior to suit

19 Fla. L. Weekly Supp. 595b

Online Reference: FLWSUPP 1907GARNInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Summary judgment -- Opposing affidavit -- Affidavit of actuary filed in opposition to provider's motion for partial summary judgment is insufficient to create issue of fact as to reasonableness of medical provider's charges where actuary merely compiled data to conclude that insurer's reimbursement at 200% of Medicare fee schedule or 100% of workers' compensation fee schedule was reasonable

19 Fla. L. Weekly Supp. 730b

Online Reference: FLWSUPP 1909MARRInsurance -- Personal injury protection -- Summary judgment -- Where insurer did not file affidavit or present any evidence to contradict medical provider's evidence that services provided to insured were reasonable, necessary and related to accident and that bill for services was reasonable in amount, provider is entitled to judgment as matter of law

19 Fla. L. Weekly Supp. 975a

Online Reference: FLWSUPP 1912CHAVInsurance -- Personal injury protection -- Summary judgment -- Trial court erred treating independent medical examination and peer review report as sworn statements for purposes of rule set forth by supreme court in Ellison v. Anderson that a party in summary judgment proceedings may not repudiate a prior sworn affidavit, deposition, or prior sworn testimony by using a subsequent sworn statement, and in refusing to consider IME and peer review report under Ellison rule based upon finding that there were contradictions between IME and report -- IME finding that insured needs no further treatment is not “bald repudiation” of peer review report opining that some prior treatment was not reasonable, related and necessary -- Error to enter summary judgment where affidavit of physician and attached peer review report and IME created genuine issue of material fact as to reasonableness, relatedness and necessity of treatment -- Trial court erred in ruling that insurer that rejected some of provider's bills was required to have valid medical report before denying payment

19 Fla. L. Weekly Supp. 882a

Online Reference: FLWSUPP 1910EVANInsurance -- Personal injury protection -- Insurer may not challenge medical necessity and relatedness of services for which it has already paid benefits

19 Fla. L. Weekly Supp. 487b

Online Reference: FLWSUPP 1906CAMBInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary expenses -- Summary judgment -- Medical provider's motion for final summary judgment is granted where affidavit of treating physician is sufficient to demonstrate absence of any genuine issue of material fact as to reasonableness, relatedness and medical necessity of treatment and reasonableness of charges, and opposing affidavit of peer review physician does not render opinion as to reasonableness, relatedness or necessity of treatment or reasonableness of charges for dates of service at issue -- Peer review affidavit is technically deficient where affidavit is not made on personal knowledge, affiant would not be able to set forth information in manner admissible in evidence, and affiant cannot show that he would be competent to testify on issue of reasonableness, relatedness and necessity of treatment

19 Fla. L. Weekly Supp. 215b

Online Reference: FLWSUPP 1903MORRInsurance -- Personal injury protection -- Coverage -- Reasonable charges -- Evidence that insurer paid more than amount medical provider accepts from Medicare for like services by paying 200% of Medicare fee schedule as provided for in PIP statute is not sufficient to prove that amount charged by provider was unreasonable -- Insurer improperly elected permissive fee schedule of PIP statute despite policy language requiring payment of 80% of reasonable charges and further reduced payments below even permissive fee schedule's minimum reimbursement by improperly applying outpatient prospective payment system cap

19 Fla. L. Weekly Supp. 202b

Online Reference: FLWSUPP 1903MAYEInsurance -- Personal injury protection -- Coverage -- Insurer is not permitted to apply permissive reimbursement limitations of PIP statute where policy requires payment of 80% of reasonable expenses

19 Fla. L. Weekly Supp. 202a

Online Reference: FLWSUPP 1903SYLVInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Medical provider's payment schedule is contrary to provision of PIP statute

19 Fla. L. Weekly Supp. 166e

Online Reference: FLWSUPP 1903PALMInsurance -- Personal injury protection -- Coverage -- Confession of error regarding use of Medicare fee schedule in 2008 PIP statute where policy specifies that insurer will pay 80% of necessary expenses

19 Fla. L. Weekly Supp. 136b

Online Reference: FLWSUPP 1902MILOInsurance -- Personal injury protection -- Coverage -- Where legislature expressed intent that 2008 PIP statute apply retroactively, but application of 2008 statute to calculate benefits adds new legal consequences to terms agreed upon at time of issuance of policy, which provided that payment of benefits would be in accordance with PIP statute “as amended,” retroactive application of statute is not constitutional -- Policy reference to PIP statute “as amended” refers to past amendments to PIP statute and does not incorporate future amendments to PIP statute into policy -- Even if “as amended” language was intended to incorporate future changes to PIP statute into policy, changes would be applicable only to extent that they do not conflict with specific method of calculating benefits provided in policy

19 Fla. L. Weekly Supp. 432a

Online Reference: FLWSUPP 1906MIAMInsurance -- Personal injury protection -- Coverage -- Policy issued during statutory gap period -- Retroactive application of 2008 version of PIP statute to policy issued prior to enactment of statute was unconstitutional infringement on parties' right to contract with one another where effect of application of 2008 statute was substantial reduction in coverage

19 Fla. L. Weekly Supp. 60a

Online Reference: FLWSUPP 1901TOMOInsurance -- Personal injury protection -- Coverage -- Where insurer elected to reimburse medical provider pursuant to permissive statutory fee schedule and applied Outpatient Prospective Payment System cap, insurer cannot belatedly contest reasonableness of charge submitted by provider following opinion by district court of appeal disallowing use of OPPS cap

19 Fla. L. Weekly Supp. 928a

Online Reference: FLWSUPP 1911KEITInsurance -- Personal injury protection -- Coverage -- Medical expenses -- MRI -- Where PIP policy provides that insurer will pay 80% of reasonable medical expenses, and statutory fee schedule limiting amount medical providers could charge for MRI services was automatically repealed through sunsetting after policy was issued but prior to insured's accident, insurer was not entitled to limit reimbursement under statutory fee schedule -- Insurer had no vested right or legitimate expectation in continuing statutory fee limitations beyond date of sunsetting where insurer knew of scheduled sunsetting before policy was issued

19 Fla. L. Weekly Supp. 51b

Online Reference: FLWSUPP 1901FULLInsurance -- Personal injury protection -- Coverage -- Medical provider's motion for partial summary judgment as to applicability of Medicare fee schedule is granted where Medicare fee schedule language was not included in policy, and prior explanation of benefits did not put medical provider on proper notice of intent to pay pursuant to that fee schedule

19 Fla. L. Weekly Supp. 854c

Online Reference: FLWSUPP 1910WALKInsurance -- Personal injury protection -- Coverage -- Lawfully rendered treatment -- Inadequacy of medical provider's record keeping is not lawful basis for nonpayment of PIP benefits -- Affirmative defense stricken

19 Fla. L. Weekly Supp. 373a

Online Reference: FLWSUPP 1905BRANCriminal law -- Driving under influence -- Speeding -- Search and seizure -- Field sobriety exercises -- Neither odor of alcohol emanating from vehicle and defendant's person, observation of “slightly” bloodshot eyes after officer removed defendant from vehicle, nor fact that defendant was driving at an estimated speed of 46 mph in a 35-mph zone provided the reasonable suspicion necessary to justify requesting that defendant perform field sobriety exercises -- Motion to suppress granted

19 Fla. L. Weekly Supp. 591b

Online Reference: FLWSUPP 1907VELAInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Lawfully rendered services -- Medical provider that is health care clinic, not massage establishment, and holds valid health care clinic license from Agency for Health Care Administration was not required to have massage establishment license in order to lawfully render massage services

19 Fla. L. Weekly Supp. 561b

Online Reference: FLWSUPP 1907SCHLInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Lawfully rendered services -- Despite being issued a clinic exemption by Agency for Health Care Administration, medical provider was not wholly owned by licensed physician where management company held equitable or security interest in provider, and sham owner did not have indicia of ownership -- Further, management company improperly exercised control over provider's treatment and business decisions in violation of statute governing chiropractic medicine -- Because provider's services were not lawfully rendered, they are not compensable under PIP statute

19 Fla. L. Weekly Supp. 52a

Online Reference: FLWSUPP 1901NORTInsurance -- Personal injury protection -- Coverage -- Exhaustion of policy limits -- Post-suit exhaustion of benefits -- Questions certified

19 Fla. L. Weekly Supp. 588a

Online Reference: FLWSUPP 1907MITEInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Exhaustion of policy limits -- Where medical provider timely filed claim for reasonable, related and medically necessary MRI covered under PIP policy, insurer failed to pay claim within 30 days, and, after paying later-received claims, insurer made partial payment to provider that exhausted policy limits, insurer deviated from statutorily mandated order of payment and is required to pay balance of provider's bill -- Where provider gave notice of assignment and claim against policy before subsequent assignees gave notice, payments to subsequent assignees are erroneous and gratuitous payments that cannot count against insured's PIP benefits

19 Fla. L. Weekly Supp. 22b

Online Reference: FLWSUPP 1901GALEInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Exhaustion of policy limits -- Where there was no binding legal authority as to whether inclusion of professional license number on claim form was required at time insurer denied medical provider's claim on that basis, insurer had reasonable proof to support denial of benefits and is not responsible for payment of claim after exhaustion of policy limits on other claims -- Trial court erred in not entering summary judgment in favor of insurer on exhaustion of benefits defense

19 Fla. L. Weekly Supp. 780a

Online Reference: FLWSUPP 1910SHIVInsurance -- Personal injury protection -- Exhaustion of policy limits -- Where PIP benefits were exhausted after insurer was served with complaint filed by insured, insured could not thereafter maintain suit for interest or attorney's fees on benefits that were denied prior to exhaustion of benefits -- Error to enter summary judgment in favor of insured

19 Fla. L. Weekly Supp. 413a

Online Reference: FLWSUPP 1905BOGRInsurance -- Personal injury protection -- Exhaustion of policy limits -- Where there was no binding legal authority as to whether inclusion of professional license number on claim form was required at time insurer denied claim on that basis, insurer had reasonable proof to support denial of benefits and is not responsible for payment of claim after exhaustion of policy limits on other claims

19 Fla. L. Weekly Supp. 1090a

Online Reference: FLWSUPP 1913ARANInsurance -- Personal injury protection -- Coverage -- Exhaustion of policy limits -- In absence of any evidence of bad faith or manipulated payments, where benefits were exhausted in payment of other medical providers after plaintiff medical provider filed suit, insurer is entitled to summary judgment

19 Fla. L. Weekly Supp. 1087a

Online Reference: FLWSUPP 1913HOOKInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Exhaustion of policy limits -- Insurer is not responsible for disputed amounts after exhaustion of policy limits where there is no evidence of bad faith, improper conduct, or improper manipulation by insurer

19 Fla. L. Weekly Supp. 388a

Online Reference: FLWSUPP 1905BOYKInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Bill in excess of customary charges -- Medical provider who offers discount to patients who render payment on date services are provided did not violate statutory requirement that charges to PIP insurer not exceed amount provider customarily charges for like services

19 Fla. L. Weekly Supp. 436a

Online Reference: FLWSUPP 1906THOMInsurance -- Personal injury protection -- Evidence -- No abuse of discretion in permitting medical provider to argue to jury that insurer should not be permitted to withdraw benefits retroactively based on independent medical examination; prohibiting insurer from arguing that insured was indemnified in event that treatment was found to be not reasonable and provider sued insured; allowing evidence that other providers refused to accept insured's insurance; allowing evidence of insurer's alleged failure to act in good faith; and allowing evidence that insurer provides benefits for spiritual healing when there no benefits for spiritual healing were being sought

19 Fla. L. Weekly Supp. 746a

Online Reference: FLWSUPP 1909MAUGInsurance -- Personal injury protection -- Coverage -- Emergency services -- Exhaustion of policy limits -- Where insurer is mandated by statute to reserve $5,000 for emergency medical service providers, and medical provider within that classification filed claim within 30 days of insurer's receipt of notice of loss as required by statute, insurer is liable for claim despite exhaustion of policy limits -- Fact that provider filed claim with incorrect claim number is not defense to payment of claim -- PIP insurer's liability for claim is not affected by fact that claim was submitted to and paid by secondary insurer after rejection by PIP insurer

19 Fla. L. Weekly Supp. 948a

Online Reference: FLWSUPP 1911SAINInsurance -- Personal injury protection -- Coverage -- Emergency services -- Deductible -- Because insurer is mandated by statute to reserve $5,000 for emergency medical service providers, insurer should not have applied claim filed by medical provider within that classification to deductible

19 Fla. L. Weekly Supp. 947

aOnline Reference: FLWSUPP 1911WATTInsurance -- Personal injury protection -- Coverage -- Emergency services -- Deductible -- Because insurer is mandated by statute to reserve $5,000 for emergency medical service providers, insurer should not have applied claim filed by medical provider within that classification to deductible

19 Fla. L. Weekly Supp. 979a

Online Reference: FLWSUPP 1912ANTEInsurance -- Personal injury protection -- Denial of claim -- Valid medical report -- There was no requirement that peer review report offered to support denial of medical provider's claim comply with statutory requirements for valid report in support of withdrawal of benefits or that report be obtained by insurer before denial, and trial court erred in rejecting report filed in opposition to summary judgment for failure to meet those requirements -- Trial court also erred in rejecting peer review physician's affidavit as technically or legally insufficient where affidavit and attached report, which opined that treatment was not reasonable, related, and necessary because it was duplicative or unsubstantiated and which detailed the bases for this opinion, raised doubt as to existence of issues of fact -- Abuse of discretion to fail to grant insurer's motion for relief from technical admissions where motion was timely, answer and other filings contradict technical admissions, and provider did not establish prejudice

19 Fla. L. Weekly Supp. 323a

Online Reference: FLWSUPP 1905GARRInsurance -- Personal injury protection -- Denial of benefits -- Insurer was not required to obtain valid report prior to denial of benefits -- Examination under oath -- Notice -- No abuse of discretion in refusing to admit affidavit of corporate representative that conflicted with prior deposition testimony of litigation adjuster with regard to EUO notice sent to insured

19 Fla. L. Weekly Supp. 159a

Online Reference: FLWSUPP 1903PIERInsurance -- Personal injury protection -- Denial of benefits -- Necessity of valid medical report

19 Fla. L. Weekly Supp. 129a

Online Reference: FLWSUPP 1902FRANInsurance -- Personal injury protection -- Delay in payment -- Request for information or documentation -- Medical provider's response to request for complete medical file, asserting that medical file had been previously provided to insurer, was insufficient where not all documents in file had been previously provided -- Further, provider's partial response to request for documentation was insufficient for failing to include sworn statement required by statute -- Due to incomplete response to request for documentation, medical bills were not overdue at time suit was filed and claim is premature

19 Fla. L. Weekly Supp. 174a

Online Reference: FLWSUPP 1903GONZInsurance -- Personal injury protection -- Answer -- Amendment -- Abuse of discretion to deny insurer leave to file amended answer to assert statutory defense of late billing where amendment would not be futile, insurer had not previously amended answer, medical provider was not prejudiced by fact that motion to amend was not calendared prior to summary judgment hearing, and amendment will not cause delay because case must be set for trial due to reversal and remand on another issue

19 Fla. L. Weekly Supp. 14b

Online Reference: FLWSUPP 1901LIMAInsurance -- Personal injury protection -- Coverage -- By including language in PIP policy that provides for both payment of 80% of reasonable expenses and limitation of reimbursement to 80% of 200% of Medicare fee schedule, insurer has created ambiguity that must be resolved in favor of insured

19 Fla. L. Weekly Supp. 1023b

Online Reference: FLWSUPP 1912HOLLInsurance -- Personal injury protection -- Affirmative defenses -- Motion to strike affirmative defenses is denied where defenses are consistent with amended admissions

19 Fla. L. Weekly Supp. 653b

Online Reference: FLWSUPP 1908HORNInsurance -- Personal injury protection -- Coverage -- Summary judgment -- Factual issues -- Where there exist disputed issues of material fact as to whether insurer paid medical provider correct amount under Medicare Part B fee schedule as required by PIP statute, it would be inappropriate to grant insurer's motion for summary judgment

19 Fla. L. Weekly Supp. 841b

Online Reference: FLWSUPP 1910CURAInsurance -- Personal injury protection -- Damages -- Insured's action against insurer to recover for bills for treatment which was necessitated by automobile accident and which was provided by now-deceased physician whose estate has never laid claim to medical bills -- Summary judgment entered in favor of insurer in absence of competent evidence that plaintiff continued to be liable for medical bills -- In absence of proof of damages, breach of contract action against insurer cannot stand

19 Fla. L. Weekly Supp. 423a

Online Reference: FLWSUPP 1906JOSEInsurance -- Personal injury protection -- Coverage -- Summary judgment -- Factual issues -- Error to grant summary judgment in favor of insurer where there was conflicting deposition testimony as to whether claimant resided with insured on date of accident

19 Fla. L. Weekly Supp. 380a

Online Reference: FLWSUPP 1905MONTInsurance -- Personal injury protection -- Examination under oath -- Failure of insured to attend EUO does not bar payment of PIP benefits

19 Fla. L. Weekly Supp. 924a

Online Reference: FLWSUPP 1911LUCIInsurance -- Personal injury protection -- Examination under oath -- Insured's attendance at EUO is not condition precedent to coverage under PIP policy

19 Fla. L. Weekly Supp. 536b

Online Reference: FLWSUPP 1907ABDUInsurance -- Personal injury protection -- Coverage -- Denial of benefits -- False or misleading statement relating to claim or charges -- Trial court erred in ruling that insurer could not assert affirmative defense that medical provider knowingly submitted false or misleading statements relating to claim or charges without first obtaining adjudication of guilt of insurance fraud from Department of Financial Services -- Explanation of benefits -- Error to grant summary judgment in favor of provider on claim for failure to provide EOB and find that provider is entitled to attorney's fees on issue, as there is no private cause of action for failing to provide EOB

19 Fla. L. Weekly Supp. 865b

Online Reference: FLWSUPP 1910GASSInsurance -- Personal injury protection -- Claims -- Timeliness -- Where medical provider timely submitted notice of initiation of treatment to insurer, time for submission of all charges, not just charges for first treatment, was extended from 35 days to 75 days -- Partial summary judgment granted in favor of provider

19 Fla. L. Weekly Supp. 789d

Online Reference: FLWSUPP 1910BALDInsurance -- Personal injury protection -- Notice of loss -- Claim form that contains correct name of medical provider but omits provider's professional license number is substantially complete and accurate and provided insurer notice of covered loss

19 Fla. L. Weekly Supp. 1092a

Online Reference: FLWSUPP 1913LEMIInsurance -- Personal injury protection -- Coverage -- Medical expenses -- CPT coding -- Medical provider's motion for partial summary judgment is denied where there is genuine issue of material fact as to whether bills which failed to utilize correct CPT code for service rendered placed insurer on notice of covered loss and were overdue within meaning of PIP statute

19 Fla. L. Weekly Supp. 212a

Online Reference: FLWSUPP 1903JONEInsurance -- Personal injury protection -- Mileage to attend independent medical examination -- Insured has not adequately pled cause of action for breach of PIP policy based on insurer's inadvertent reimbursement of mileage for IME attendance from available PIP benefits where there is no proof that insured sustained any damages -- Correction of oversight by insurer after action was filed does not constitute confession of judgment where insured has failed to prove necessary damages element of cause of action

19 Fla. L. Weekly Supp. 374a

Online Reference: FLWSUPP 1905ESTIInsurance -- Personal injury protection -- Affirmative defenses -- Amendment -- Motion to amend answer to add affirmative defenses of failure to timely bill for one date of service and failure to satisfy conditions precedent relating to demand letter and examination under oath is denied -- Insurer has previously amended affirmative defenses twice and has admitted in discovery that all bills were timely received, that there were no errors or defenses with regard to demand letter, and that insured cooperated in investigation of claim

19 Fla. L. Weekly Supp. 617a

Online Reference: FLWSUPP 1908VALEInsurance -- Personal injury protection -- Affirmative defenses -- Amendment -- New trial is required following district court of appeal ruling that appellate division of circuit court properly found that it was within trial court's discretion to strike insurer's defense of fraud on morning of trial, but that circuit court's affirmance was based on incorrect factual assumption -- On remand trial court should resolve any issue involving amended pleadings though application of small claim rules or any rules of civil procedure invoked -- Where final judgment is vacated, insurer's request for offer of judgment appellate fees and medical provider's request for prevailing party appellate fees are denied

19 Fla. L. Weekly Supp. 395a

Online Reference: FLWSUPP 1905FRIEInsurance -- Personal injury protection -- Affirmative defenses -- Amendment -- Motion to amend affirmative defenses is denied where insurer was aware of defenses over a year prior to filing original answer and medical provider would be prejudiced by allowing amendments -- No merit to affirmative defense asserting that claim should have been included in prior litigation where demand letter for claim was sent after prior litigation was dismissed and, therefore, claim was not ripe at time that litigation was pending

19 Fla. L. Weekly Supp. 489a

Online Reference: FLWSUPP 1906MGONInsurance -- Personal injury protection -- Examination under oath -- Failure to attend EUO is condition subsequent to payment of PIP benefits that may be raised as affirmative defense -- Insurer waived ability to assert EUO no-show defense where EUOs requested were outside thirty-day period during which attendance is mandatory

19 Fla. L. Weekly Supp. 613a

Online Reference: FLWSUPP 1908AUGUInsurance -- Personal injury protection -- Affirmative defenses -- Amendment -- Where insurer knew that insured lived with family member covered under another insurance policy four years before filing answer and five years before filing motion to amend affirmative defenses to assert coverage defense based on that fact, and insurer's failure to assert defense resulted in insured being barred from initiating claim against other insurance carrier, prejudice to insured outweighs what may have otherwise have been deemed abuse of discretion in denying motion to amend

19 Fla. L. Weekly Supp. 1063a

Online Reference: FLWSUPP 1913PEARInsurance -- Appeals -- Nonfinal orders -- Certiorari review of nonfinal order denying or striking demand for jury trial is inappropriate -- Petition denied

19 Fla. L. Weekly Supp. 1098b

Online Reference: FLWSUPP 1913MCKIInsurance -- Personal injury protection -- Action by medical provider against PIP insurer alleging underpayment of PIP benefits is dismissed for lack of jurisdiction where provider was included in settlement class of class action involving same claims that resulted in final order and judgment in which insurer is among released parties and which established class action court's exclusive and continuing jurisdiction of all matters relating to class action

19 Fla. L. Weekly Supp. 819a

Online Reference: FLWSUPP 1910EVERInsurance -- Homeowners -- Breach of contract claim alleging that insurer failed to pay under “Ordinance or Law” provision of policy and related claim for declaratory action are dismissed with prejudice where second amended complaint did not plead that homeowner has become liable for, or had actually incurred, any additional costs due to enforcement of ordinance or law

19 Fla. L. Weekly Supp. 543a

Online Reference: FLWSUPP 1907SCHIInsurance -- Homeowners -- Class action -- Certification -- Motion for certification of class in action against property insurer that failed to pay general contractor's overhead and profit as part of actual cash value claims is denied -- Plaintiff has failed to prove numerosity where evidence of class size is speculative and over-inclusive, plaintiff has provided no proof that joinder of each class member is impracticable, and ascertaining putative class members would require protracted individual inquiries -- Plaintiff has failed to satisfy commonality requirement where putative common questions would depend on individual facts of each policy and claim -- Typicality is lacking where record lacks evidence that plaintiff made ACV claim, proof of plaintiff's claim would not necessarily prove any other putative class member's claim, and insurer has unique defenses to plaintiff's claim -- Adequacy requirement is not met where record demonstrates that plaintiff lacks knowledge of status and factual basis for his claim or claims of putative class members and is incapable of prosecuting or controlling litigation, and that counsel demonstrated extreme lack of diligence and unprecedented lack of communication with putative class members -- Failure to seek class certification until more than five years after case commenced further renders plaintiff and counsel inadequate -- Predominance requirement of rule 1.220(b)(3) is not met where plaintiff has not demonstrated existence of industry-wide “three trades rule” that would be applicable to all members of putative class -- Multitude of individual issues and inquiries required demonstrates that class action would be unmanageable

19 Fla. L. Weekly Supp. 877b

Online Reference: FLWSUPP 1910PEREInsurance -- Personal injury protection -- Exclusions -- Insured injured while occupying vehicle owned by named insured and not covered by policy -- Where policy unambiguously provided that benefits would be excluded “to the named insured or any relative while occupying a motor vehicle of which the named insured is the owner and which is not insured under this insurance,” insured was not entitled to coverage for injuries sustained while she was occupying vehicle owned by her husband and her mother, who was a named insured under the policy at issue, where that vehicle was not covered under the policy -- Fact that insured was temporarily separated from her husband at time of accident does not change result -- Moreover, policy of insurance unambiguously defines “owner” as one who holds “legal title,” and plaintiff has never disputed that mother fell within that definition

19 Fla. L. Weekly Supp. 297b

Online Reference: FLWSUPP 1904VARGInsurance -- Personal injury protection -- Coverage -- Insured occupying vehicle owned by named insured and not covered by policy

19 Fla. L. Weekly Supp. 629a

Online Reference: FLWSUPP 1908PRIVInsurance -- Homeowners -- Excess liability -- Coverage -- Exclusions -- Business pursuits exception in homeowners and excess liability policies applies to action against insured for alleged conduct of advertising psychic services on internet which, while allegedly intentional and criminal, fell squarely within natural range and scope of his business pursuits for company that provides psychic hotlines -- Allegations of intentional and criminal acts also fall within policy provisions excluding coverage for intentional acts -- Provision of insurance for intentional torts or criminal acts would be contrary to Florida common law and public policy -- Summary judgment granted in favor of insurer

19 Fla. L. Weekly Supp. 587a

Online Reference: FLWSUPP 1907WALDInsurance -- Discovery -- Privilege -- Work product -- After in camera inspection, trial court determines that insurer's internal emails, computer report, and majority of activity log and correspondence were prepared in contemplation of litigation and are protected by work product privilege -- Other pages of activity log and correspondence are not privileged, and mere placement in claims file does not make them so -- Where it is not clear if photographs of vehicle were taken in anticipation of litigation or in ordinary course of business, evidentiary hearing will be required to resolve issue -- Documents allegedly related to another lawsuit are not privileged where some documents related to instant suit and others related to other suits involving same accident

19 Fla. L. Weekly Supp. 12a

Online Reference: FLWSUPP 1901BULLInsurance -- Personal injury protection -- Discovery -- Work product privilege -- Petition for writ of certiorari challenging order requiring insurer to produce adjuster notes generated up until receipt of statutory pre-suit demand letter is granted -- Trial court erred in ordering production without first reviewing privilege log, individually analyzing work product objections, and conducting in camera inspection -- Order compelling production of matters claimed to be work product presents required potential for irreparable harm

19 Fla. L. Weekly Supp. 72b

Online Reference: FLWSUPP 1902RUES

19 Fla. L. Weekly Supp. 131a

Online Reference: FLWSUPP 1902ADONInsurance -- Personal injury protection -- Discovery -- Insurer's interrogatories and requests to produce are limited as to time and scope

19 Fla. L. Weekly Supp. 951c

Online Reference: FLWSUPP 1911PADGInsurance -- Discovery -- Explanation of benefits -- Motion for reconsideration of order compelling production of all EOBs generated by insurer for CPT code at issue within geozip three months prior to and three months after date of service is denied -- Insurer waived all objections to requested discovery by failing to respond or request extension of time while discovery request was pending -- Further, materials sought are reasonably calculated to lead to discovery of admissible evidence regarding reasonableness of charges -- Extension of time to provide discovery is granted

19 Fla. L. Weekly Supp. 874a

Online Reference: FLWSUPP 1910PASTInsurance -- Personal injury protection -- Discovery -- Medical provider's motion to limit discovery of payments received by medical provider from HMOs, PPOs, and self-pay patients is granted where legislature has defined minimum statutory reimbursement as 200% of Medicare Part B fee schedule, and evidence of payments received by provider that are less than that amount are irrelevant to issue of reasonableness of charges -- Further, court will not permit insurer to abandoned its position, maintained throughout litigation, that it had properly limited reimbursement under permissive fee schedule of section 627.736(5)(a)2

19 Fla. L. Weekly Supp. 1030a

Online Reference: FLWSUPP 1912TAMPInsurance -- Discovery -- Insurer is permitted discovery as to whether medical provider is wholly owned by licensed healthcare practitioner

19 Fla. L. Weekly Supp. 1029a

Online Reference: FLWSUPP 1912TAM2Insurance -- Discovery -- Insurer is permitted discovery as to whether medical provider is wholly owned by licensed healthcare practitioner

19 Fla. L. Weekly Supp. 378b

Online Reference: FLWSUPP 1905HUBEInsurance -- Personal injury protection -- Discovery -- Independent medical examiner -- Objections to discovery request seeking information on extent of IME practice of physician who performed independent medical examination on insured are overruled

19 Fla. L. Weekly Supp. 294a

Online Reference: FLWSUPP 1904CUEVInsurance -- Personal injury protection -- Discovery -- Interrogatories -- Insurer's motion for more complete answers to interrogatories demanding information regarding services rendered to insured by other medical providers, composition of provider's practice, and reimbursement sources and litigation over past three years is denied -- Request for information on amounts accepted for CPT codes at issue is limited to payments received from Medicare in previous three months -- Motion to require production of pleadings, trial and deposition transcripts, documentation evidencing that charges are in accordance with various guidelines, and contracts with any private health insurance entities is denied -- Request for advertising materials is limited to three months

19 Fla. L. Weekly Supp. 847b

Online Reference: FLWSUPP 1910MOISInsurance -- Discovery -- Failure to comply -- Sanctions -- Trial court denies motion for reconsideration of order striking insurer's witnesses and pleadings where insurer violated numerous orders to provide discoverable impeachment evidence relating to its witnesses as well as order requiring filing of pretrial stipulation -- Claim that medical provider's pleadings are nullity because provider's co-counsel never filed notice of appearance is refuted by docket -- Final judgment entered

19 Fla. L. Weekly Supp. 875a

Online Reference: FLWSUPP 1910CASTInsurance -- Discovery -- Claims file privilege -- Following in camera inspection, all documents in claims file are protected by claims file privilege until issue of coverage is resolved

19 Fla. L. Weekly Supp. 944a

Online Reference: FLWSUPP 1911HHOLInsurance -- Personal injury protection -- Discovery -- Admissions -- Amendment -- Where, although medical provider has relied on insurer's admissions for one year, case has not been set for trial or come up for summary judgment hearing and discovery remains to be completed, request to amend admissions to be consistent with affirmative defenses is granted

19 Fla. L. Weekly Supp. 479a

Online Reference: FLWSUPP 1906POZOInsurance -- Personal injury protection -- Discovery -- Depositions -- Insurer is not permitted to take depositions of treating physicians at this time where adjuster testified in his deposition that denial of payment for medical bills was based in part on insured's failure to cooperate and attend examination under oath

19 Fla. L. Weekly Supp. 125b

Online Reference: FLWSUPP 1902MPIEInsurance -- Discovery -- Depositions -- Insurer is entitled to take depositions of medical provider's billing and records custodian and corporate representative prior to provider taking deposition of insurer's corporate representative to ensure that all relevant issues are developed prior to taking insurer's representative's deposition so that representative could be prepared for deposition

19 Fla. L. Weekly Supp. 287a

Online Reference: FLWSUPP 1904LAPOInsurance -- Discovery -- Depositions -- Sequence

19 Fla. L. Weekly Supp. 173a

Online Reference: FLWSUPP 1903RUESInsurance -- Personal injury protection -- Discovery -- Surveillance videos -- Error to compel insurer to produce surveillance video prior to having opportunity to depose subjects of video -- Where insurer intends to use surveillance video as evidence, insurer should have disclosed existence of video in discovery rather than masking video's existence by only disclosing existence of “investigative report” -- Medical provider's counsel had responsibility to act promptly to prevent undue delays in scheduling depositions

19 Fla. L. Weekly Supp. 358a

Online Reference: FLWSUPP 1905ADVAInsurance -- Personal injury protection -- Discovery -- Insurer's motion to compel deposition of person with most knowledge of reasonableness of charges is denied -- Reasonableness of charges is immaterial since insurer used schedule to reimburse medical provider

19 Fla. L. Weekly Supp. 586b

Online Reference: FLWSUPP 1907LABRInsurance -- Personal injury protection -- Discovery -- Depositions -- Expert witness fee -- Treating physician is not entitled to expert witness fee for his deposition testimony

19 Fla. L. Weekly Supp. 799a

Online Reference: FLWSUPP 1910BROCInsurance -- Personal injury protection -- Summary judgment -- Opposing affidavit -- Peer review -- Trial court properly excluded insurer's expert's peer review affidavit, offered in opposition to motion for summary judgment, based on failure of expert to maintain required medical and financial records involving PIP examinations for three years, and court properly required expert to produce business records under rule 1.280 since exceptional circumstances warranted production -- However, because medical provider confessed error on this issue, appellate court reverses -- Trial court correctly found that cutoff date for PIP benefits is date insurer sent written notice of suspension of benefits to insured, not date insurer obtained report of independent medical examination -- No error in finding that treating physician is entitled to expert witness fee

19 Fla. L. Weekly Supp. 779a

Online Reference: FLWSUPP 1910ORTEInsurance -- Personal injury protection -- Discovery -- Depositions -- Issue of whether treating physician is entitled to expert witness fee for deposition testimony is not ripe where insurer did not proceed with deposition after trial court required payment of fee -- Independent medical examination -- Trial court erred in finding that effective date of IME cutoff letter was date letter was sent rather than date IME was conducted -- Further, since PIP statute does not require that insurer send IME cutoff letter to insured's attorney, trial court erred in extending IME cutoff date due to failure to provide cutoff letter to attorney -- Error to enter summary judgment in favor of provider on affirmative defense that expenses incurred after date of IME were not reasonable, related and necessary -- Error to enter summary judgment in favor of provider on affirmative defense of late billing where there was conflict in evidence as to whether bills were actually sent and received

19 Fla. L. Weekly Supp. 51c Online Reference: FLWSUPP 1901FEIJ Insurance -- Personal injury protection -- Discovery -- Depositions -- Physician who is plaintiff in PIP action is not entitled to expert witness fee for deposition testimony MANUEL V. FEIJOO, MD and MANUEL V. FEIJOO MD, PA a/a/o JUAN ACOSTA, Plaintiff, v. STATE FARM FIRE & CASUALTY CO., Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Small Claims Division. Case No. 11-4929 SP 25 (04). October 6, 2011. Nuria Saenz, Judge. Counsel: Kenneth B. Schurr, for Plaintiff. Michael Cabrera, for Defendant. ORDER DENYING PLAINTIFF'S MOTION FOR AWARD OF EXPERT WITNESS FEES TO MANUEL V. FEIJOO, MD THIS CAUSE came before the Court on the issue of expert witness fees for Dr. Manuel V. Feijoo's deposition and the Court having reviewed the court file and applicable case law, it is therefore, ORDERED AND ADJUDGED that Plaintiff's Motion for Award of Expert Witness Fees to Dr. Manuel V. Feijoo is Denied as Dr. Feijoo is a party (one of the Plaintiffs) in this action. * * *

19 Fla. L. Weekly Supp. 383b

Online Reference: FLWSUPP 1905YMONInsurance -- Discovery -- Depositions -- Medical provider shall take deposition of insurer's corporate representative prior to insurer taking any depositions

19 Fla. L. Weekly Supp. 145a

Online Reference: FLWSUPP 1902ORTIInsurance -- Personal injury protection -- Delay in payment -- Request for information or documentation -- Where medical provider made no response to insurer's request for information and documentation, summary judgment is entered in favor of insurer -- No merit to provider's argument that summary judgment is inappropriate at this time because provider was precluded from asking claims adjuster in deposition whether insurer had regular practice of requesting additional information where there is no evidence or formal claim that defendant engaged in unfair trade practice or improperly utilized request mechanism

19 Fla. L. Weekly Supp. 407b

Online Reference: FLWSUPP 1905WOLMInsurance -- Default -- Vacation -- Insurer's motion to vacate default is granted where insurer demonstrated excusable neglect in failing to appear at pre-trial conference, asserted meritorious defenses and acted with due diligence to vacate default, and medical provider failed to appear at hearing on motion to vacate default despite being granted leave to appear telephonically

19 Fla. L. Weekly Supp. 974a

Online Reference: FLWSUPP 1912DOMIInsurance -- Default -- Vacation -- Abuse of discretion to refuse to set aside defaults and default final judgments -- Calendering error by legal assistant to insurer's counsel constituted excusable neglect -- Trial court also erred in entering default final judgments without holding jury trial on damages and in awarding attorney's fees and costs without holding evidentiary hearing

19 Fla. L. Weekly Supp. 1005b

Online Reference: FLWSUPP 1912PACHInsurance -- Coverage -- Deductible -- Error to enter summary judgment in favor of insurer claiming that medical provider's bill fell within deductible where there is disputed issue of material fact as to whether two bills received by insurer prior to provider's bill were compensable and, therefore, should have been applied to deductible

19 Fla. L. Weekly Supp. 667c

Online Reference: FLWSUPP 1908WINDDeclaratory judgments -- Insurance -- Personal injury protection -- Torts -- Fraud -- Action by insurer against medical provider alleging that provider's failure to collect deductible and co-payment from insured constituted fraudulent conduct absolving insurer of liability for payment of medical bills -- Declaratory judgment -- Insurer has failed to state cause of action for declaratory relief where it seeks declaration regarding uncollected amounts that insurer would never be responsible for paying -- Common law fraud -- Insurer cannot state claim for common law fraud against provider where insurer's reliance on misrepresentation that provider had collected deductible and co-payment would have caused no damage to insurer, and provider has no relationship with insurer that would give rise to duty to disclose -- Statutory fraud -- Section 627.736(4)(h) absolves insurer from its payment obligations if insured person has committed fraud, but does not provide remedy for insurer claiming fraud by provider -- Section 817.234(7)(a) provides punishment for provider fraud proven in criminal proceeding, but does not create private cause of action against provider -- Provisions of PIP statute absolving insurer from payment of claim to person who knowingly submits false or misleading statement and for treatment not lawfully rendered provide affirmative defenses in PIP suit, but do not create private causes of action against provider -- Neither does insurer have private cause of action based on alleged violations of administrative rules -- Fraudulent inducement -- Where insurer cannot claim it relied on any misrepresentation in entering into insurance contract, fraudulent inducement claim cannot be maintained -- Breach of contract claim cannot be sustained against provider as assignee where insurer failed to attach assignment to complaint or otherwise indicate that provider/assignee assumed obligations under contract

19 Fla. L. Weekly Supp. 213a

Online Reference: FLWSUPP 1903CHARInsurance -- Personal injury protection -- Examination under oath -- Declaratory judgment -- Insured was not required to attend EUO

19 Fla. L. Weekly Supp. 169a

Online Reference: FLWSUPP 1903HERMInsurance -- Personal injury protection -- Declaratory judgment -- No error in granting insurer's motion for summary judgment on count seeking declaration concerning provider's presuit entitlement to copy of declarations page and policy on remand following appellate court's reversal of prior summary judgment in favor of provider on that count -- No error in granting insurer's motion to set aside provider's notice of voluntary dismissal without prejudice of this count

19 Fla. L. Weekly Supp. 777a

Online Reference: FLWSUPP 1910MESAInsurance -- Personal injury protection -- Declaratory judgment -- Demand letter -- Trial court erred in concluding that medical provider cured failure to provide presuit demand letter by providing demand letter after complaint for declaratory relief was filed -- Issue of whether medical expenses were reasonable, related and necessary should not be subject of declaratory action -- Remand with directions to vacate orders on motions for summary judgment and order awarding final declaratory judgment in favor of provider and dismiss action based on failure to serve presuit demand letter

19 Fla. L. Weekly Supp. 1055a

Online Reference: FLWSUPP 1913SMASInsurance -- Personal injury protection -- Declaratory judgment -- Conditions precedent -- Demand letter was not required where action sought declaration regarding PIP coverage, not money damages for PIP benefits

19 Fla. L. Weekly Supp. 749a

Online Reference: FLWSUPP 1909ARTIInsurance -- Personal injury protection -- Declaratory judgment -- Case or controversy -- Medical provider may seek declaratory relief as to amount of benefits recoverable irrespective of exhaustion of benefits -- Coverage -- Provider has right to receive benefits under reimbursement rate set by Medicare Part B fee schedule without application of Outpatient Prospective Payment System or any other methodology not authorized by PIP statute

19 Fla. L. Weekly Supp. 217a

Online Reference: FLWSUPP 1903CABRInsurance -- Personal injury protection -- Standing -- Assignment -- Insured who assigned all benefits under policy to medical provider did not have standing to bring declaratory judgment action seeking declaration of coverage under policy

19 Fla. L. Weekly Supp. 218b

Online Reference: FLWSUPP 1903SILVInsurance -- Complaint -- Motion to amend complaint to correct typographical error is granted and motion for summary judgment based solely on that error is denied

19 Fla. L. Weekly Supp. 1069b

Online Reference: FLWSUPP 1913GOODInsurance -- Personal injury protection -- Class action -- Motion for leave to belatedly opt out of class action -- Where insurers defending class action sent notice of class action to medical providers who were litigating against insurers in county court, but did not give notice of class action to attorneys representing providers in county court actions until after judgment had been entered in class action, prevailing equities are with providers -- Motion to opt out is granted

19 Fla. L. Weekly Supp. 357c

Online Reference: FLWSUPP 1905PACAInsurance -- Homeowners -- Sinkhole damage -- Bad faith failure to settle claim -- Insurer is entitled to summary judgment on homeowners' bad faith action where, after homeowners filed civil remedy notice based on insurer's denial of claim for sinkhole damage, insurer withdrew denial, demanded appraisal and paid appraisal award

19 Fla. L. Weekly Supp. 262a

Online Reference: FLWSUPP 1904HUNTInsurance -- Bad faith failure to settle claim -- Summary judgment is entered for insurer on bad faith claim where plaintiff did not obtain judgment against insurer for breach of contract -- Further, plaintiff's civil remedy notice is invalid due to lack of definitive cure amount

19 Fla. L. Weekly Supp. 938a

Online Reference: FLWSUPP 1911URSUInsurance -- Homeowners -- Bad faith failure to settle

19 Fla. L. Weekly Supp. 17a

Online Reference: FLWSUPP 1901SNICInsurance -- Automobile -- Action by glass shop against insurer of limousine service for cost of windshield replacement -- Where record shows that owner of damaged vehicle was not employee or agent of insured limousine service, vehicle owner did not have authority to assign benefits to glass shop, and shop did not have standing to bring suit against insurer -- Final judgment in favor of insurer is affirmed

19 Fla. L. Weekly Supp. 667a

Online Reference: FLWSUPP 1908CHERInsurance -- Automobile -- Affirmative defenses -- Reservation of defenses -- Provision of claims administration statute requiring insurer to make written reservation of defenses does not apply to first party property damage claim against insurer

19 Fla. L. Weekly Supp. 385a

Online Reference: FLWSUPP 1905HERNInsurance -- Attorney's fees -- Insurer is entitled to award of attorney's fees as sanction for medical provider's dilatory tactics and failure to comply with court orders

19 Fla. L. Weekly Supp. 200a

Online Reference: FLWSUPP 1903TRUDInsurance -- Automobile -- Attorney's fees -- Proposal for settlement -- Post-judgment proposal to settle attorney' fees claim, served for purpose of locking down a basis to argue entitlement to attorney's fees for time spent litigating attorney's fees -- Complaint clearly recited that plaintiff sought fees pursuant to section 627.428, and Florida Supreme Court has held that fees incurred in litigating the amount of attorney's fees is not included within that statute

19 Fla. L. Weekly Supp. 210a

Online Reference: FLWSUPP 1903PARIInsurance -- Personal injury protection -- Attorney's fees -- Proposal for settlement -- Good faith -- Nominal settlement offer was made in good faith where all available PIP benefits had been exhausted by confession of judgment payment

19 Fla. L. Weekly Supp. 481b

Online Reference: FLWSUPP 1906SYLVInsurance -- Attorney's fees -- Proposal for settlement -- Motion to enlarge time to respond to insurer's proposal for settlement is granted

19 Fla. L. Weekly Supp. 392b

Online Reference: FLWSUPP 1905DELRInsurance -- Proposal for settlement -- Enlargement of time to respond

19 Fla. L. Weekly Supp. 380b

Online Reference: FLWSUPP 1905VEILInsurance -- Proposal for settlement -- Enlargement of time to respond

19 Fla. L. Weekly Supp. 377a

Online Reference: FLWSUPP 1905CABAInsurance -- Proposal for settlement -- Extension of time for response

19 Fla. L. Weekly Supp. 213c

Online Reference: FLWSUPP 1903BRAZInsurance -- Proposal for settlement -- Enlargement of time for response to proposal

19 Fla. L. Weekly Supp. 213b

Online Reference: FLWSUPP 1903CBRAInsurance -- Proposal for settlement -- Enlargement of time for response to proposal

19 Fla. L. Weekly Supp. 513a

Online Reference: FLWSUPP 1907GARCInsurance -- Personal injury protection -- Attorney's fees -- Reversal of underlying judgment on appeal

19 Fla. L. Weekly Supp. 75a

Online Reference: FLWSUPP 1902SMITInsurance -- Personal injury protection -- Attorney's fees -- No error in denying insured's request for attorney's fees where insured prevailed in declaratory action determining that PIP coverage existed but no monetary damages were awarded because PIP benefits had been exhausted by workers' compensation lien

19 Fla. L. Weekly Supp. 888a

Online Reference: FLWSUPP 1910BACAInsurance -- Attorney's fees -- Counsel for medical provider is entitled to attorney's fees and costs for post-judgment work related to collection activities and proving entitlement to fees and costs

19 Fla. L. Weekly Supp. 802a

Online Reference: FLWSUPP 1910CUNIInsurance -- Personal injury protection -- Attorney's fees -- Reversal of underlying judgment requires reversal of fee award

19 Fla. L. Weekly Supp. 534a

Online Reference: FLWSUPP 1907ROMEInsurance -- Personal injury protection -- Attorney's fees -- Confession of judgment -- Where insurer's payment of claim was not unilateral decision catalyzed by initiated suit but was instead prompted by medical provider's filing of second demand letter rectifying defect in first demand letter and by provider's representations that it would not seek attorney's fees if insurer paid claim pursuant to second demand letter, trial court erred in finding that payment constituted confession of judgment entitling provider to award of attorney's fees

19 Fla. L. Weekly Supp. 806a

Online Reference: FLWSUPP 1910MORIInsurance -- Personal injury protection -- Attorney's fees -- Appellate -- Award of partial appellate fees to insured is conditioned on trial court determining that insured is prevailing party in underlying case -- Appellate court reverses its conclusion that, due to absence of order awarding fees from appellate record, it did not have jurisdiction to review trial court's fee award in insured's favor upon reversing underlying judgment where court has jurisdiction to address issue due to consolidation of cases for appeal

19 Fla. L. Weekly Supp. 865a

Online Reference: FLWSUPP 1910HODAInsurance -- Attorney's fees -- Medical provider is not entitled to award of attorney's fees as prevailing party in action against insurer where provider recovered exact amount of insurer's presuit offer after trial

19 Fla. L. Weekly Supp. 806a

Online Reference: FLWSUPP 1910MORIInsurance -- Personal injury protection -- Attorney's fees -- Appellate -- Award of partial appellate fees to insured is conditioned on trial court determining that insured is prevailing party in underlying case -- Appellate court reverses its conclusion that, due to absence of order awarding fees from appellate record, it did not have jurisdiction to review trial court's fee award in insured's favor upon reversing underlying judgment where court has jurisdiction to address issue due to consolidation of cases for appeal

19 Fla. L. Weekly Supp. 393a

Online Reference: FLWSUPP 1905PEYTInsurance -- Attorney's fees -- Discovery -- Expert witnesses -- Insurer's failure to comply with order to provide plaintiff with its fee expert's affidavit prejudiced plaintiff in preparation for fee hearing -- Expert is stricken

19 Fla. L. Weekly Supp. 1097b

Online Reference: FLWSUPP 1913GASSInsurance -- Attorney's fees -- Discovery

19 Fla. L. Weekly Supp. 598a

Online Reference: FLWSUPP 1907PROCInsurance -- Personal injury protection -- Attorney's fees -- Discovery -- Sanctions -- Where insurer's counsel intentionally and knowingly withheld documents and information that had been legally and timely requested in discovery, including name of expert witness, and refused to cooperate in setting hearing on motion to compel before day of hearing on motion for attorney's fees and costs, insurer's expert is precluded from testifying -- Amount -- Contingency risk multiplier of 2.0 is appropriate where evidence established that there is no attorney in Northwest Florida who would handle PIP cases without expectation of multiplier, and case involving novel issues created exceptional risk for medical provider whose chances of success were even at best at outset

19 Fla. L. Weekly Supp. 402a

Online Reference: FLWSUPP 1905WOODInsurance -- Personal injury protection -- Attorney's fees -- Contingency risk multiplier -- Expert testimony is sufficient to establish that medical provider would have difficulty finding competent counsel without possibility of multiplier; provider is not required to testify to actual difficulty confronted -- Multiplier of 2.0 is justified where attorney was not able to mitigate risk of nonpayment, fee arrangement was pure contingency fee arrangement, underlying claims were relatively small, attorney recovered full amount demanded plus interest, insurer was “purpose-driven” opponent seeking to establish precedent regarding need for perfect disclosure and acknowledgment form, and likelihood of success at outset was 50% -- Costs -- Travel time for expert witness is not compensable -- Question certified

19 Fla. L. Weekly Supp. 319b

Online Reference: FLWSUPP 1905LEVYInsurance -- Personal injury protection -- Attorney's fees -- Contingency risk multiplier -- No merit to argument that multiplier cannot be applied when party seeking multiplier fails to personally testify that she had difficulty obtaining competent counsel -- Expert testimony demonstrating that market required multiplier in order to obtain competent counsel was sufficient to support application of multiplier despite fact that insured did not testify that she had actual difficulty in obtaining competent counsel

19 Fla. L. Weekly Supp. 338a

Online Reference: FLWSUPP 1905AFFIInsurance -- Attorney's fees -- Trial court lacked jurisdiction to award attorney's fees to co-counsel for medical provider where provider's other attorney settled case on behalf of provider and entered voluntary dismissal stating that each party would bear own attorney's fees and costs, and co-counsel, who was unaware of settlement, did not assert claim for fees prior to entry of dismissal

19 Fla. L. Weekly Supp. 50c

Online Reference: FLWSUPP 1901MOREInsurance -- Personal injury protection -- Attorney's fees -- Application for attorney's fees and costs filed by attorney who voluntarily withdrew from representation is denied where attorney failed to file notice of charging lien prior to entry of final judgment -- Even if notice of charging lien had been filed, attorney who was employed pursuant to contingency fee agreement and voluntarily withdrew from representation prior to occurrence of contingency forfeited all rights to compensation

19 Fla. L. Weekly Supp. 220a

Online Reference: FLWSUPP 1904GERVInsurance -- Personal injury protection -- Attorney's fees -- Appellate -- Voluntarily dismissed appeal -- Medical provider/appellee's failure to file motion for appellate fees prior to insurer's voluntary dismissal of its appeal and failure to specify any basis for fee award in untimely motion for fees requires denial of request for appellate fees -- De minimis nature of appellate efforts by provider also compels denial of request for appellate fees

19 Fla. L. Weekly Supp. 86a

Online Reference: FLWSUPP 1902JHINInsurance -- Attorney's fees -- Appellate -- Timeliness of motion -- Motion to tax appellate attorney's fees, which was filed with answer brief, was timely filed

19 Fla. L. Weekly Supp. 1006a

Online Reference: FLWSUPP 1912MGAInsurance -- Personal injury protection -- Attorney's fees -- Appellate -- Prevailing insured is not entitled to award of appellate attorney's fees under section 627.428 where action was for declaratory judgment as to coverage and did not seek money damages

19 Fla. L. Weekly Supp. 973a

Online Reference: FLWSUPP 1912LARAInsurance -- Personal injury protection -- Dismissal -- Error to dismiss statement of claim with prejudice as being barred by res judicata or collateral estoppel based on voluntary dismissal of prior litigation where voluntary dismissal of prior litigation was not referenced in claim or attachments to claim -- Award of appellate attorney's fees to prevailing medical provider is automatically conditioned, by controlling, precedent on provider ultimately prevailing with recovery on policy

19 Fla. L. Weekly Supp. 71a

Online Reference: FLWSUPP 1902ASPIInsurance -- Personal injury protection -- Attorney's fees -- Amount -- No abuse of discretion in awarding $25 per hour rate increase to medical provider's attorney where decision was supported by competent substantial evidence in form of expert testimony -- Appellate fees -- Justiciable issues -- Appellate attorney's fees are awarded to provider where insurer's decision to appeal rate increase was not supported by facts or law

19 Fla. L. Weekly Supp. 802c

Online Reference: FLWSUPP 1910FMERInsurance -- Personal injury protection -- Attorney's fees -- Appellate -- Where insurer's appeal was dismissed without decision on merits, medical provider is entitled to award of appellate attorney's fees

19 Fla. L. Weekly Supp. 806a

Online Reference: FLWSUPP 1910MORIInsurance -- Personal injury protection -- Attorney's fees -- Appellate -- Award of partial appellate fees to insured is conditioned on trial court determining that insured is prevailing party in underlying case -- Appellate court reverses its conclusion that, due to absence of order awarding fees from appellate record, it did not have jurisdiction to review trial court's fee award in insured's favor upon reversing underlying judgment where court has jurisdiction to address issue due to consolidation of cases for appeal

19 Fla. L. Weekly Supp. 354a

Online Reference: FLWSUPP 1905MCWAInsurance -- Personal injury protection -- Attorney's fees -- Appeals -- Law of the case -- Exceptions -- In view of intervening decision by higher court holding that PIP statute does not authorize private cause of action for failure to send explanation of benefits and that it is error to award fees for non-existent EOB count, strict adherence to law of the case, which had established that provider who prevailed on claim that insurer breached contract for failing to provide EOB, would result in manifest injustice, precluding appellate review on issue of entitlement to attorney's fees and costs -- Accordingly, court's second order awarding attorney's fees to provider is reversed

19 Fla. L. Weekly Supp. 397a

Online Reference: FLWSUPP 1905RAMGInsurance -- Personal injury protection -- Attorney's fees -- Amount -- Reasonable hourly rate and hours reasonably expended determined -- Costs, expert witness fees and prejudgment interest awarded

19 Fla. L. Weekly Supp. 392a

Online Reference: FLWSUPP 1905SRBULandlord-tenant -- Eviction -- Notice -- Failure to issue three-day notice -- Dismissal without leave to amend

19 Fla. L. Weekly Supp. 378a

Online Reference: FLWSUPP 1905MAURInsurance -- Personal injury protection -- Attorney's fees -- Amount -- Expert witness fees, costs and prejudgment interest awarded

19 Fla. L. Weekly Supp. 1027b

Online Reference: FLWSUPP 1912WALTInsurance -- Attorney's fees -- Amount

19 Fla. L. Weekly Supp. 1023a

Online Reference: FLWSUPP 1912WALKInsurance -- Attorney's fees -- Amount

19 Fla. L. Weekly Supp. 359a

Online Reference: FLWSUPP 1905DENIInsurance -- Personal injury protection -- Declaratory judgments -- Coverage -- Default final judgment is entered finding that insurer has no duty to afford PIP, bodily injury liability or property damage coverage to insured or third party claimants and no duty to provide insured with defense to any litigation or claims relating to three accidents where insured materially breached policy by failing to cooperate with insurer during its investigation of accidents

19 Fla. L. Weekly Supp. 46a

Online Reference: FLWSUPP 1901EVANInsurance -- Personal injury protection -- Standing -- Where assignment of PIP benefits at inception of case was to treating physician as individual, not to plaintiff that is corporate entity, plaintiff lacked standing to bring suit -- Lack of standing could not be cured by plaintiff registering physician's name as fictitious name after suit was filed

19 Fla. L. Weekly Supp. 190a

Online Reference: FLWSUPP 1903CHRIInsurance -- Personal injury protection -- Standing -- Assignment -- Where insured assigned benefits to medical providers, insured had no standing to bring suit against insurer for providers' bills -- Insured who lacked standing when complaint was filed did not later obtain standing when providers revoked assignments and reassigned benefits to insured

19 Fla. L. Weekly Supp. 202c

Online Reference: FLWSUPP 1903HIGDInsurance -- Personal injury protection -- Standing -- Assignment -- Insured must execute separate assignment of benefits to medical provider for each claim in which benefits are sought -- Provider with assignment from insured's prior accident but no assignment from current accident did not have standing at time suit was filed -- Provider's motion for abatement is denied and summary judgment is entered in favor of insurer

19 Fla. L. Weekly Supp. 164a

Online Reference: FLWSUPP 1903VANDInsurance -- Personal injury protection -- Standing -- Assignment -- No error in entering summary judgment in favor of insurer based on lack of standing of plaintiff medical center where insured assigned benefits to individual doctor and record does not contain evidence showing assignment from doctor to medical center or affidavit showing that doctor and medical center are same business entity

19 Fla. L. Weekly Supp. 581a

Online Reference: FLWSUPP 1907JOHNInsurance -- Personal injury protection -- Standing -- Assignment -- Where assignment fails to name medical provider as assignee, ambiguity in assignment precludes summary judgment on standing issue -- Demand letter -- Where statute of limitations has not run out and insurer does not allege that there is insufficient time remaining in limitations period to cure any defect in demand letter, proper remedy for defective demand letter would be dismissal without prejudice, and summary judgment on issue is not warranted -- Motion for summary judgment is, therefore, treated as motion to dismiss -- Demand letter is not defective for failing to attach copy of independent medical examination report on which insurer relied to withdraw future benefits and itemized statement of future treatment claimed to be reasonable and necessary where letter demanded payment for services already rendered -- Demand letter is not defective for demanding more than amount claimed in complaint

19 Fla. L. Weekly Supp. 1027a

Online Reference: FLWSUPP 1912LANDInsurance -- Arbitration -- Where parties did not request trial de novo within deadline for such request, trial court must enter judgment in accordance with arbitrator's decision

19 Fla. L. Weekly Supp. 85a

Online Reference: FLWSUPP 1902HINCNOT FINAL VERSION OF OPINION
Subsequent Changes at 19 Fla. L. Weekly Supp. 86aInsurance -- Property -- Appraisal -- Where insured elected to participate in mediation for resolution of disputed property insurance claim, but parties were unsuccessful in resolving claim, insured was authorized by administrative rule to proceed with litigation without being subjected to loss appraisal process -- Trial court did not err in denying motion to dismiss or to stay and compel appraisal

19 Fla. L. Weekly Supp. 138b

Online Reference: FLWSUPP 1902ROLLInsurance -- Personal injury protection -- Application -- Misrepresentations -- Insurer abandoned right to deny coverage based on insured's failure to list licensed son residing in household on policy when adjuster stated in deposition that she was not declaring material misrepresentation

19 Fla. L. Weekly Supp. 243a

Online Reference: FLWSUPP 1904URODInsurance -- Appeals -- Sanctions -- Motion for rehearing of opinion dismissing appeal as sanction for insurer's failure to file initial brief following four extensions of time is denied -- Appellate court is not required to afford opportunity to be heard prior to imposition of sanction of dismissal; rule only requires that court provide ten days' notice that sanction of dismissal may be imposed -- Motion to vacate opinion to allow parties to settle case is denied -- Parties do not need court's permission to reach settlement, and insurer has not met burden of showing equitable entitlement to extraordinary remedy of vacatur

19 Fla. L. Weekly Supp. 161a

Online Reference: FLWSUPP 1903RODR

NOT FINAL VERSION OF OPINION
Subsequent Changes at 19 Fla. L. Weekly Supp. 243aInsurance -- Personal injury protection -- Appeals -- Dismissal of appeal is warranted where appellate court has granted five motions for extension of time to file insurer's initial brief and warned when it granted fourth and fifth extensions that no further extensions would be granted and failure to comply with orders would result in dismissal of appeal, insurer thereafter filed motion to stay appeal pending resolution of another case on issue and filed motion seeking sixth extension of time for filing brief after motion for stay was denied, and insurer has misrepresented tolling effect of motion for stay and failed to advise court of issuance of now-controlling district court opinion

19 Fla. L. Weekly Supp. 143a

Online Reference: FLWSUPP 1902MORAInsurance -- Pleadings -- Amendment -- Insurer's motion to amend answer and affirmative defenses is denied where medical provider would be substantially prejudiced by amendment, and amendment is untimely

19 Fla. L. Weekly Supp. 214a

Online Reference: FLWSUPP 1903PETIInsurance -- Personal injury protection -- Accord and satisfaction -- Conspicuous statement -- Language stating that check was tendered as full and final payment of PIP benefits did not qualify as conspicuous statement required to discharge claim by accord and satisfaction where language consists of writing on body of check in smaller font than other writing on check, is included as part of two other lines in similar font, is not in contrasting color and is not set off by symbols or marks that call attention to language

19 Fla. L. Weekly Supp. 927a

Online Reference: FLWSUPP 1911VINCInsurance -- Personal injury protection -- Affirmative defenses -- Accord and satisfaction -- No error in denying insurer's motion for summary judgment on affirmative defense of accord and satisfaction where, although trial court initially erred in determining that conspicuousness of statement on checks was factual issue for jury, on reconsideration trial court correctly identified issue as decision for court and determined that statement was not conspicuous -- No error in denying insurer's subsequent motion for summary judgment on affirmative defense of common law accord and satisfaction where there was disputed issue of fact as to whether medical provider intended acceptance of checks to be in full satisfaction of any future claims -- Error to grant provider's motion for directed verdict where evidence permits differing inferences regarding provider's intent and, therefore, issue should have been submitted to jury

19 Fla. L. Weekly Supp. 879b

Online Reference: FLWSUPP 1910PUELInsurance -- Personal injury protection -- Affirmative defenses -- Accord and satisfaction -- No accord and satisfaction occurred when medical provider cashed check for reduced amount with notation that it was for full and final payment of PIP benefits where insurer knew prior to sending check that medical provider had assignment of benefits expressly requiring that any agreement to accept reduced amount be in writing and stating that any reduced payment, irrespective of accompanying language, would be cashed under protest and would not be accord and satisfaction