Volume 25

25 Fla. L. Weekly Supp. 182b

Online Reference: FLWSUPP 2502THOMInsurance -- Defendant was prejudiced in its preparation as result of plaintiff's failure to properly disclose witness as an expert in its witness list and as result of statement made by plaintiff's counsel to defense counsel at witness's deposition that witness was present in capacity as corporate representative, and not as an expert -- Motion for new trial granted

25 Fla. L. Weekly Supp. 826b

Online Reference: FLWSUPP 2509RESTVenue -- Small claims -- Motion to dismiss for improper venue and/or forum non conveniens denied -- Defendant failed to meet its burden of demonstrating why venue is improper or why case should be moved to a different forum where defendant failed to file timely affidavit in support of motion, as required by small claims rule and state statute -- Subsequent invocation of rules of civil procedure did not cure or give defendant a chance for second bite at raising affirmative defenses of improper venue and/or forum non conveniens

25 Fla. L. Weekly Supp. 561a

Online Reference: FLWSUPP 2506FELIInsurance -- Personal injury protection -- Venue -- Forum selection clause -- Where forum selection clause in PIP policy mandates that action against insurer be brought in county where covered person resided at time of accident, and there is no evidence that enforcement of clause would be unreasonable or unjust, PIP case brought in Sarasota County by assignee of insured who resided in Hillsborough County at time of accident is transferred to Hillsborough County

25 Fla. L. Weekly Supp. 550b

Online Reference: FLWSUPP 2506NELSInsurance -- Venue -- Mandatory venue selection clause

25 Fla. L. Weekly Supp. 42a

Online Reference: FLWSUPP 2501KNAPInsurance -- Uninsured motorist -- Evidence -- Expert -- Plaintiff's motion to exclude testimony of defendant's expert with regard to severity of impact in two rear-end collisions and inadequacy of those forces to create injuries claimed by plaintiff is granted -- Testimony will not assist trier of fact in understanding evidence or determining a fact in issue -- Further, there is insufficient scientifically reliable data on which to base certain of the opinions; methods used with respect to certain opinions are not product of reliable principles; and probative value of expert's opinions is substantially outweighed by danger of unfair prejudice

25 Fla. L. Weekly Supp. 125a

Online Reference: FLWSUPP 2501SIDIInsurance -- Settlement agreement -- Subrogation action for damages arising from home water leak -- Civil procedure -- Failure of insurer to attach to complaint the insurance policy at issue -- Motion to dismiss granted

25 Fla. L. Weekly Supp. 191a

Online Reference: FLWSUPP 2502HAYEInsurance -- Jurisdiction -- Plaintiff's notice of voluntary dismissal has deprived court of jurisdiction to entertain plaintiff's subsequently-filed motions for rehearing -- Where plaintiff's notice of voluntary dismissal was not received by court clerk until six minutes after commencement of hearing on insurer's motion for summary judgment, court had jurisdiction to proceed with hearing and render rulings finding motion for summary judgment moot in light of voluntary dismissal and granting insurer's ore tenus motion for sanctions

25 Fla. L. Weekly Supp. 149a

Online Reference: FLWSUPP 2502MCNUInsurance -- Small claims -- Summary disposition -- Circuit court recedes from prior decision holding that trial judge is permitted to reweigh evidence in support of or in opposition to motion for summary disposition under rule 7.135 and that trial court's decision on motion for summary disposition is reviewed by appellate panel under abuse of discretion standard -- De novo standard of review applies to orders on motions for summary disposition -- Summary disposition in favor of medical provider is affirmed

25 Fla. L. Weekly Supp. 617a

Online Reference: FLWSUPP 2507TAYLInsurance -- Personal injury protection -- Proposal for settlement -- Where insurer's proposal for settlement stated that offer for medical benefits and attorney's fees and costs was not severable, medical provider's attempt to accept only benefits portion of offer constituted rejection of proposal and was, instead, a counteroffer

25 Fla. L. Weekly Supp. 892a

Online Reference: FLWSUPP 2510FARMInsurance -- No-fault law -- Reimbursement -- Counties -- School boards -- Sovereign immunity -- Public school bus is included in definition of commercial motor vehicle, and insurer may pursue action for commercial right of reimbursement against school board as owner of vehicle and insurer of vehicle -- Sovereign immunity does not bar reimbursement claim -- Reimbursement awarded -- Defendants jointly and severally liable for full amount

Online Reference: FLWSUPP 2503CAMBInsurance -- Personal injury protection -- Request for information or documentation -- Where medical provider failed to respond to insurer's pre-suit request for written report of insured's condition, provider's claim was not overdue at time demand letter was sent and condition precedent to suit was not satisfied

25 Fla. L. Weekly Supp. 73a

Online Reference: FLWSUPP 2501OJEDInsurance -- Personal injury protection -- Discovery -- Depositions -- Where deposition testimony of insurer's litigation adjuster will have no bearing on issue of whether demand letter satisfied statutory condition precedent, and facts in adjuster's affidavit authenticating claim file and demand letter are not currently in dispute, requested deposition of adjuster is unnecessary prior to hearing on motion for summary judgment based on invalid demand letter

25 Fla. L. Weekly Supp. 942b

Online Reference: FLWSUPP 2511JPERInsurance -- Personal injury protection -- Presuit demand -- Insurer entitled to summary judgment as matter of law where provider failed to send statutorily compliant presuit demand letter -- Demand letter which misstated amount of claim by failing to account for insurer's partial payment did not satisfy requirements of statute

25 Fla. L. Weekly Supp. 178b

Online Reference: FLWSUPP 2502WOOLInsurance -- Personal injury protection -- Demand letter was sufficient to comply with statute -- Demand letter was not required to account for policy deductible

25 Fla. L. Weekly Supp. 473a

Online Reference: FLWSUPP 2505GRASInsurance -- Personal injury protection -- Demand letter -- Sufficiency -- PIP statute does not require that demand letter account for prior payments made by insurer or to state exact amount owed by insurer -- Duplicate billing for some CPT codes in demand letter does not render letter defective where insurer was fully aware that CPT codes were duplicates -- Insurer waived any deficiencies in demand letter by failing to raise issue before suit was filed -- Language in insurer's response to demand letter that purports to reserve right to raise any defenses concerning validity of letter is mere boilerplate and did not place provider on notice of issue with demand letter with any specificity

25 Fla. L. Weekly Supp. 808a

Online Reference: FLWSUPP 2509WILSInsurance -- Personal injury protection -- Demand letter -- Sufficiency -- PIP statute does not require that demand letter state exact amount owed by insurer -- Inclusion in demand letter of claim for one bill that insurer claims it did not receive does not render demand letter invalid

25 Fla. L. Weekly Supp. 756b

Online Reference: FLWSUPP 2508IVANInsurance -- Personal injury protection -- Demand letter -- Defects -- Failure to attach copy of insurer's notice withdrawing payment or itemized statement of type, frequency, and duration of future treatment claimed to be reasonable and medically necessary

25 Fla. L. Weekly Supp. 976a

Online Reference: FLWSUPP 2511ROQUInsurance -- Personal injury protection -- Demand letter which stated the named insured, copy of assignment, claim number, policy number, dates of service, amount billed, and amount claimed to be due and to which the plaintiff attached a copy of medical provider's itemized ledger substantially complied with requirements of statute -- Statute does not require plaintiff to include prior payments made by defendant in presuit demand letter or include the exact amount owed

25 Fla. L. Weekly Supp. 137b

Online Reference: FLWSUPP 2502PENRInsurance -- Personal injury protection -- Demand letter -- Trial court erred in entering summary judgment in favor of insurer on ground that demand letter was defective because the amount claimed to be due was greater than the amount shown on patient ledger -- Factual issue existed as to whether provider wrote off and/or waived portion of account balance owed by insured and the relevance of such an adjustment

25 Fla. L. Weekly Supp. 970b

Online Reference: FLWSUPP 2511CLEMInsurance -- Personal injury protection -- Demand letter -- Sufficiency -- Demand letter did not strictly or substantially comply with requirements of PIP statute where letter stated that $914.40 was owed by insurer while the attached ledger stated that zero was owed by insurer, and where amount claimed to be owed did not account for deductible or application of statutory fee schedule -- Insurer's motion for summary judgment on insufficiency of demand letter is granted

25 Fla. L. Weekly Supp. 192a

Online Reference: FLWSUPP 2502ESTEInsurance -- Personal injury protection -- Demand letter with enclosed ledger did not comply with statute where ledger reflected a zero balance

25 Fla. L. Weekly Supp. 910b

Online Reference: FLWSUPP 2510GORDInsurance -- Personal injury protection -- Coverage -- Passenger -- Owner of vehicle in state -- Notice of covered loss -- Insurer was not provided sufficient notice of a covered loss prior to suit where claimant failed to provide some evidence or proof that vehicle claimant owned was inoperable at time of accident -- Insurer's motion for final summary judgment based on insufficient notice of covered loss is granted

25 Fla. L. Weekly Supp. 199a

Online Reference: FLWSUPP 2502CASTInsurance -- Personal injury protection -- Coverage -- Owner of vehicle for which security was required by law -- Passenger who owned an operable vehicle registered in state and who had operated the vehicle during the registration period before making the conscious decision not to operate vehicle was required to maintain insurance on the vehicle continuously throughout the registration period, irrespective of whether vehicle continued to be driven -- Passenger not entitled to coverage for injuries sustained while riding in insured's vehicle

25 Fla. L. Weekly Supp. 364b

Online Reference: FLWSUPP 2504VDIAInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Medicaid Multiple Procedure Payment Rule does not limit use or duration of services and does not prevent insured from accessing any procedure -- Accordingly, insurer's application of MPPR is permitted under no-fault statute -- Insurer properly applied MPPR for the year in which services were rendered -- Section 627.736(5)(a)(3) has no language requiring “substitution” of 2007 Medicare Coding policies or payment methodologies

25 Fla. L. Weekly Supp. 367a

Online Reference: FLWSUPP 2504LONYInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Civil procedure -- Voluntary dismissal -- Notices of Withdrawal of charges for certain CPT codes -- Insurer's allegation of fraud was insufficient basis for striking provider's motion to withdraw all charges for certain CPT codes, which notices were filed prior to plaintiff obtaining any affirmative relief -- Rule 1.420 affords plaintiff the absolute right to dismiss entire claim or any part thereof so long as notice is timely served, and court cannot take into account a plaintiff's purported motive for filing a dismissal pursuant to this rule

25 Fla. L. Weekly Supp. 869b

Online Reference: FLWSUPP 2510DACOInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Withdrawal of benefits -- Valid report by physician licensed under same chapter as treating physician stating treatment was not reasonable, related, or medically necessary -- Trial court erred in granting summary judgment in favor of provider where insurer presented report of chiropractic physician and there was factual issue as to identity of treating physician for the services at issue

25 Fla. L. Weekly Supp. 375b

Online Reference: FLWSUPP 2504EPInsurance -- Personal injury protection -- Venue -- Forum selection clause -- Where forum selection clause in PIP policy mandates that action against insurer be brought in court in county where covered person lived at time of accident, and there is no evidence that enforcement of clause would be unreasonable or unjust, PIP case brought in Sarasota County by assignee of insured who resided in Hillsborough County at time of accident is transferred to Hillsborough County

25 Fla. L. Weekly Supp. 178a

Online Reference: FLWSUPP 2502WARRInsurance -- Personal injury protection -- Venue -- Forum selection clause -- Where forum selection clause in PIP policy mandates that action against insurer be brought in court in county where covered person resides, and there is no evidence that enforcement of clause would be unreasonable or unjust or that clause is invalid for fraud or overreaching, motion to dismiss PIP case brought in Volusia County by insured residing in Hillsborough County is granted

25 Fla. L. Weekly Supp. 197a

Online Reference: FLWSUPP 2502FIELInsurance -- Personal injury protection -- Venue -- Forum non conveniens -- Insurer's motion to transfer venue based on convenience of parties and witnesses is denied where insurer has not identified witnesses, explained nature or significance of witnesses' testimony, or demonstrated that venue selected by medical provider will cause substantial inconvenience and undue expense to insurer

25 Fla. L. Weekly Supp. 783a

Online Reference: FLWSUPP 2509LOPEInsurance -- Personal injury protection -- Claims -- Timeliness -- Trial court erred in holding that insurer waived right to contest timeliness of PIP bills by making partial payment on bills

25 Fla. L. Weekly Supp. 201a

Online Reference: FLWSUPP 2502CORRCivil procedure -- Insurance -- Summary judgment -- Supporting affidavit -- Insured's examination under oath may be used to support insurer's motion for summary judgment -- Plaintiff's motion to strike EUO is denied

25 Fla. L. Weekly Supp. 816b

Online Reference: FLWSUPP 2509WALFInsurance -- Personal injury protection -- Civil procedure -- Filings submitted in opposition to plaintiff's motion for summary judgment on issue of reasonableness, relatedness, and necessity of services provided were untimely -- Further, affidavit submitted by insurer failed to place plaintiff on notice of its intended use in support of insurer's opposition to plaintiff's motion for summary judgment on fee schedule limitations

25 Fla. L. Weekly Supp. 309a

Online Reference: FLWSUPP 2504CAMBInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Policy at issue clearly and unambiguously provided sufficient notice to insured and provider of insurer's election of permissive method of reimbursement where amendatory endorsement clearly provided that insurer would reimburse either 80% of actual charge or 80% of Medicare fee schedules, whichever was lesser -- Policy language does not state that insurer has ability to reimburse based on a reasonable amount, but instead describes insurer's method of determining whether treatment itself is reasonable

25 Fla. L. Weekly Supp. 910a

Online Reference: FLWSUPP 2510SZABInsurance -- Personal injury protection -- Coverage -- Medical benefits -- Statutory fee schedule -- Notice provided by insurer at time policy was renewed was sufficient to limit reimbursement to schedule of maximum charges -- Insurer complied with express directives of statute

25 Fla. L. Weekly Supp. 943c

Online Reference: FLWSUPP 2511LUGOInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules

25 Fla. L. Weekly Supp. 754b

Online Reference: FLWSUPP 2508OTERInsurance -- Personal injury protection -- Declaratory action -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous election by insurer -- PIP policy that provides for hybrid method of calculating reimbursement utilizing elements from both reasonable amount method and statutory fee schedule method of reimbursement and other elements not authorized by PIP statute does not clearly and unambiguously elect use of statutory fee schedules -- Insurer must calculate benefits pursuant to reasonable amount method of reimbursement

25 Fla. L. Weekly Supp. 108a

Online Reference: FLWSUPP 2501PWILNOT FINAL VERSION OF OPINION
Subsequent Changes at 25 Fla. L. Weekly Supp. 376aInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Where definition of “reasonable charge” in PIP policy is hybrid of factors found in reasonable amount method of reimbursement and provisions from fee schedule method of reimbursement, policy is ambiguous as to reimbursement method and did not specifically elect fee schedule method of reimbursement

25 Fla. L. Weekly Supp. 107d

Online Reference: FLWSUPP 2501PICAInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Where definition of “reasonable charge” in PIP policy is hybrid of factors found in reasonable amount method of reimbursement and provisions from fee schedule method of reimbursement, policy is ambiguous as to reimbursement method and did not specifically elect fee schedule method of reimbursement -- Approval of PIP policy form by Office of Insurance Regulation does not override requirement that policy provide insured with notice of election of one of two payment methodologies

25 Fla. L. Weekly Supp. 1047a

Online Reference: FLWSUPP 2512VILCInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous election by insurer -- Insurer's motion for summary judgment based on exhaustion of PIP benefits is denied where insurer has not presented sufficient evidence to demonstrate as matter of law that benefits were exhausted and were not exhausted in bad faith, and medical provider seeks declaration as to whether policy properly elected statutory fee schedule, not PIP benefits -- Where PIP policy does not clearly and unambiguously elect statutory fee schedule method of reimbursement, insurer is not lawfully authorized to pay claims using hybrid method described in policy and must use fact dependent method of section 627.736(5)(a)

25 Fla. L. Weekly Supp. 1038a

Online Reference: FLWSUPP 2512SEIJInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous election by insurer -- Declaratory action -- Motion to dismiss declaratory action seeking determination as to whether PIP policy clearly and unambiguously elects payment methodology is denied -- Fact that insured has available remedy through breach of contract action does not preclude declaratory relief

25 Fla. L. Weekly Supp. 840b

Online Reference: FLWSUPP 2509LAUEInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedule -- Clear and unambiguous election by insurer -- Policy at issue provided clear and unambiguous notice of insurer's intent to limit reimbursement to the schedule of maximum charges found in No-Fault Law

25 Fla. L. Weekly Supp. 831b

Online Reference: FLWSUPP 2509OSAInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedule -- Clear and unambiguous election by insurer -- Policy at issue provided clear and unambiguous notice of insurer's intent to limit reimbursement to the schedule of maximum charges found in No-Fault Law

25 Fla. L. Weekly Supp. 831a

Online Reference: FLWSUPP 2509PLANInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Policy adequately put insureds on notice that, if applicable, insurer would use Medicare coding policies and payment methodologies, including applicable modifiers, to determine reimbursement for claims involving medical services, supplies, and/or care -- Policy permitted insurer to reimburse provider below Medicare Part B fee schedule through application of Medicare's Multiple Procedure Payment Reduction

25 Fla. L. Weekly Supp. 820a

Online Reference: FLWSUPP 2509BELIInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous election by insurer -- Where definition of “reasonable charge” in PIP policy is hybrid of factors found in reasonable amount method of reimbursement and provisions from fee schedule method of reimbursement and policy also states that in no event will insurer pay more than 80% of schedule of maximum charges, policy is ambiguous as to reimbursement method and did not specifically elect fee schedule method of reimbursement -- Approval of PIP policy by Office of Insurance Regulation is not dispositive as to whether policy makes proper election for payment under permissive statutory fee schedules

25 Fla. L. Weekly Supp. 817a

Online Reference: FLWSUPP 2509AGUIInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous election by insurer -- PIP policy that states that in no event will insurer pay more than schedule of maximum charges clearly and unambiguously elects to limit reimbursement to statutory fee schedules -- Insurer's placement of notice of limitation to statutory fee schedules on declarations page when policy was renewed and use of policy form approved by Office of Insurance Regulation satisfies requirements of section 627.736(5)(a)5 and allows insurer to limit reimbursement to statutory fee schedules

25 Fla. L. Weekly Supp. 816c

Online Reference: FLWSUPP 2509PAGAInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous election by insurer -- PIP policy that provides that insurer will limit reimbursement of medical expenses to 80% of reasonable charge but in no event will pay more than 80% of schedule of maximum charges set forth in PIP statute clearly and unambiguously elects to limit payment based on statutory fee schedules

25 Fla. L. Weekly Supp. 807b

Online Reference: FLWSUPP 2509LOWEInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedule -- Clear and unambiguous election by insurer -- Policy at issue provided clear and unambiguous notice of insurer's intent to limit reimbursement to the schedule of maximum charges found in No-Fault Law

25 Fla. L. Weekly Supp. 807a

Online Reference: FLWSUPP 2509STOKInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedule -- Clear and unambiguous election by insurer -- Policy at issue provided clear and unambiguous notice of insurer's intent to limit reimbursement to the schedule of maximum charges found in No-Fault Law, including use of Medicare coding policies and payment methodologies

25 Fla. L. Weekly Supp. 640a

Online Reference: FLWSUPP 2507PANInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Policy at issue failed to reflect clear and unambiguous election by insurer to limit reimbursement to statutory fee schedules

25 Fla. L. Weekly Supp. 564a

Online Reference: FLWSUPP 2506ILIEInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Policy and endorsement form did not clearly and unambiguously invoke Medicare Fee Schedule Method as insurer's choice of particular method of calculating PIP benefits to exclusion of all others -- Insurer is not lawfully authorized to pay claims submitted under this policy and endorsement pursuant to hybrid method described in that policy and must instead use reasonable amount method described in statute 627.736(5)(a) -- Questions certified: (a) Whether Progressive's Insurance Policy and Endorsement Form A085 fail to clearly and unambiguously elect the Medicare Fee Schedule Method under the PIP statute's schedule of maximum charges as Progressive's exclusive method of calculating PIP benefits? and (b) Whether Progressive is prohibited from paying PIP claims submitted under the Insurance Policy and Endorsement Form A085 pursuant to the hybrid method described therein, and must instead pay such claims pursuant to the Reasonable Amount Method described in Section 627.736(5)(a) by default?

25 Fla. L. Weekly Supp. 556a

Online Reference: FLWSUPP 2506ALFOInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules

25 Fla. L. Weekly Supp. 554a

Online Reference: FLWSUPP 2506DUDLInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous election by insurer -- PIP policy that states that insurer will pay 80% of 200% of allowable amount under participating physician fee schedule of Medicare Part B clearly and unambiguously elects to limit reimbursement to permissive statutory fee schedule -- Policy containing general references to coding policies and procedures does not clearly elect use of multiple procedure rule to reduce payment below permissive statutory fee schedule

25 Fla. L. Weekly Supp. 537a

Online Reference: FLWSUPP 2506VJOHInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous election by insurer -- PIP policy that states that insurer will limit reimbursement to 80% of reasonable expenses but in no event will pay any amount in excess of 80% of schedule of maximum charges and makes specific reference to Medicare fee schedules clearly and unambiguously elects to limit reimbursement to permissive statutory fee schedules

25 Fla. L. Weekly Supp. 478a

Online Reference: FLWSUPP 2505SDIAInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous election by insurer -- Where definition of “reasonable charge” in PIP policy is hybrid of factors found in reasonable amount method of reimbursement and provisions from fee schedule method of reimbursement, policy is ambiguous as to reimbursement method and did not specifically elect fee schedule method of reimbursement -- Approval of PIP policy by Office of Insurance Regulation does not authorize insurer to utilize permissive statutory fee schedules

25 Fla. L. Weekly Supp. 474b

Online Reference: FLWSUPP 2505JANVInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous election by insurer -- Use of permissive statutory fee schedules to calculate reimbursement of PIP claims is only available when insurer has unambiguously elected use of fee schedules as exclusive form of reimbursement -- Neither approval of PIP policy by Office of Insurance Regulation nor incorporation of OIR sample form in policy is dispositive as to whether policy makes proper election for payment under statutory fee schedules -- Where definition of “reasonable charge” in PIP policy commingles factors found in reasonable amount method of reimbursement and provisions from fee schedule method of reimbursement, policy did not make clear and unequivocal election of fee schedule method of reimbursement

25 Fla. L. Weekly Supp. 386a

Online Reference: FLWSUPP 2504POWEInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous election by insurer -- PIP policy that states that insurer will pay reasonable charges and defines “reasonable charge” as amount determined by insurer pursuant to all factors discussed in section 627.736(5)(a) as well as No-Fault Act schedule of maximum charges does not clearly and unambiguously elect to limit reimbursement to permissive statutory fee schedules -- Compliance with Office of Insurance Regulation requirements for insurance and mere approval by OIR of policy form does not validate policy as complying with requirement that it provide unambiguous notice of intent to limit reimbursement to permissive statutory fee schedules

25 Fla. L. Weekly Supp. 384b

Online Reference: FLWSUPP 2504HANLInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous election by insurer -- PIP policy that states that insurer will pay reasonable charges and defines “reasonable charge” as amount determined by insurer pursuant to all factors discussed in section 627.736(5)(a) as well as No-Fault Act schedule of maximum charges does not clearly and unambiguously elect to limit reimbursement to permissive statutory fee schedules -- Compliance with Office of Insurance Regulation requirements for insurance and mere approval by OIR of policy form does not validate policy as complying with requirement that it provide unambiguous notice of intent to limit reimbursement to permissive statutory fee schedules

25 Fla. L. Weekly Supp. 381a

Online Reference: FLWSUPP 2504DTHOInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules

25 Fla. L. Weekly Supp. 363a

Online Reference: FLWSUPP 2504MARTInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Insurer did not properly elect permissive fee schedule method found in section 627.736(5)(a)(1) in its 9810A policy and, accordingly, improperly relied on the fee schedule methodology to limit reimbursement

25 Fla. L. Weekly Supp. 361a

Online Reference: FLWSUPP 2504SEWEInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Notice -- Policy which clearly states that it will be using schedule satisfies notice requirement

25 Fla. L. Weekly Supp. 297a

Online Reference: FLWSUPP 2503ARMAInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous election by insurer -- Where PIP policy states that in no event will insurer pay more than 80% of No-Fault Act schedule of maximum charges, and policy was approved by Office of Insurance Regulation, insurer has clearly and unambiguously elected to limit reimbursement to permissive statutory fee schedules

25 Fla. L. Weekly Supp. 295a

Online Reference: FLWSUPP 2503BOWEInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous election by insurer -- PIP policy that states that insurer will pay 80% of amount it deems reasonable, that insurer will consider multiple factors when calculating what reasonable amount will be and that in no event will insurer pay more than 80% of amounts listed in schedule of maximum charges clearly and unambiguously elects to limit reimbursement to permissive statutory fee schedules

25 Fla. L. Weekly Supp. 287a

Online Reference: FLWSUPP 2503STRIInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous election by insurer -- Where definition of “reasonable charge” in PIP policy is hybrid of factors found in reasonable amount method of reimbursement and provisions of fee schedule method of reimbursement, policy is ambiguous as to reimbursement method and did not specifically elect fee schedule method of reimbursement -- Approval of PIP policy by Office of Insurance Regulation is not dispositive as to whether policy makes proper election for payment under permissive statutory fee schedule

25 Fla. L. Weekly Supp. 285b

Online Reference: FLWSUPP 2503MELGInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous election by insurer -- Where PIP policy provides that insurer will pay 80% of reasonable medical expenses but also states that in no event will insurer pay more than schedule of maximum charges, and policy was approved by Office of Insurance Regulation, insurer may limit reimbursement to permissive statutory fee schedules -- No merit to argument that, by including language regarding payment of reasonable amount and language placing limitation on that amount, insurer failed to make clear and unambiguous election

25 Fla. L. Weekly Supp. 277a

Online Reference: FLWSUPP 2503MURIInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous election by insurer -- PIP policy that states that insurer will pay 80% of reasonable charge but in no event will insurer pay more than 80% of schedule of maximum charges clearly and unambiguously elects to limit reimbursement to permissive statutory fee schedules

25 Fla. L. Weekly Supp. 285a

Online Reference: FLWSUPP 2503GRASInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous election by insurer -- PIP policy and endorsement do not clearly and unambiguously elect use of permissive statutory fee schedules

25 Fla. L. Weekly Supp. 276a

Online Reference: FLWSUPP 2503BERNInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous election by insurer -- PIP policy that states that insurer will pay 80% of reasonable charge but in no event will insurer pay more than 80% of No-Fault Act schedule of maximum charges clearly and unambiguously elects to limit reimbursement to permissive statutory fee schedules

25 Fla. L. Weekly Supp. 273a

Online Reference: FLWSUPP 2503LDIAInsurance -- Personal injury protection -- Insurer is entitled to summary judgment determining that it has paid in compliance with Florida Statutes for medical services rendered, has not violated the statutes, and has not breached the policy of insurance sued upon -- Insurer's policy preserves and adheres to PIP statute's basic mandate that a carrier pay 80% of reasonable charges, contains a definition of a “reasonable charge” that is consistent with the nearly identical definition in the statute, and utilizes clear and unambiguous language in adopting PIP statute's permissive fee schedule limitation -- As a matter of law, insurer's 6126LS Endorsement which was approved by Office of Insurance Regulation, satisfies the requirement of giving notice of insurer's intention to limit reimbursement of medical expenses by applying the schedule of maximum charges -- Because insurer paid plaintiff the maximum amount as calculated pursuant to schedule of maximum charges, plaintiff is not entitled to payment of any additional PIP benefits for charges set forth in its bills -- Jurisdiction over propriety of insurer's notice rests with OIR, not with court

25 Fla. L. Weekly Supp. 272a

Online Reference: FLWSUPP 2503LEGEInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous election by insurer -- PIP policy and endorsement, when read together, clearly and unambiguously elect to limit reimbursement to permissive statutory fee schedules

25 Fla. L. Weekly Supp. 204a

Online Reference: FLWSUPP 2502MICKInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous election by insurer -- PIP policy that states that insurer will pay reasonable charges but in no event will pay more than 80% of No-Fault Act schedule of maximum charges clearly and unambiguously elects to pay in accordance with permissive statutory fee schedules -- Neither fact that policy also states that insurer will pay 80% of medical expenses incurred nor fact that policy references fee schedules in its definition of “reasonable charges” creates ambiguity

25 Fla. L. Weekly Supp. 188a

Online Reference: FLWSUPP 2502NOVOInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous election by insurer -- PIP policy providing that insurer will pay 80% of reasonable charges and also providing that in no event will insurer pay more than 80% of No-Fault Act schedule of maximum charges commingles language from “permissive” and “reasonableness” methods of reimbursement and does not provide clear and unambiguous notice of intent to limit reimbursement to permissive statutory fee schedule

25 Fla. L. Weekly Supp. 183a

Online Reference: FLWSUPP 2502GAMOInsurance -- Personal injury protection -- Policy form 9810.7 and amendatory endorsement did not clearly and unambiguously incorporate schedule of maximum charges -- Issues of reasonableness, relatedness, and medical necessity remain at issue

25 Fla. L. Weekly Supp. 86a

Online Reference: FLWSUPP 2501PRADInsurance -- Personal injury protection -- Coverage -- Medical expenses -- PIP policy does not clearly and unambiguously incorporate schedule of maximum charges

25 Fla. L. Weekly Supp. 61a

Online Reference: FLWSUPP 2501ABREInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Insurer failed to make clear and unambiguous election to utilized permissive statutory fee schedule to reimburse bills for medical services -- Policy language indicating that insurer would pay 80% of reasonable charges and also stating that insurer would not pay more than 80% of schedule of maximum charges created impermissible hybrid reimbursement methodology -- Further, PIP policy includes significant impermissible deviations from PIP statute that purport to allow insurer to rely on fee schedules not listed in statute and Medicare payment methodologies and policies to pay even less than minimum amount allowed under PIP statute and to provide for reductions in insured's coinsurance amount -- Approval of policy by Office of Insurance Regulation does not automatically validate legal sufficiency or enforceability of contents of policy

25 Fla. L. Weekly Supp. 51a

Online Reference: FLWSUPP 2501WILLInsurance -- Personal injury protection -- Coverage -- Medical expenses -- PIP policy that not only complies with notice provision of section 627.736(5)(a)5 but also clearly advises that in no event will insurer pay any amount above fee schedule amount provided sufficient notice of insurer's intent to limit reimbursement to permissive statutory fee schedule

25 Fla. L. Weekly Supp. 50a

Online Reference: FLWSUPP 2501CASAInsurance -- Personal injury protection -- Coverage -- Medical expenses -- PIP policy that not only complies with notice provision of section 627.736(5)(a)5 but also clearly advises that insurer will limit reimbursement to schedule of maximum charges provided sufficient notice of insurer's intent to limit reimbursement to permissive statutory fee schedule

25 Fla. L. Weekly Supp. 48a

Online Reference: FLWSUPP 2501JONEInsurance -- Personal injury protection -- Coverage -- Medical expenses -- PIP policy that not only complies with notice provision of section 627.736(5)(a)5 but also clearly advises that in no event will insurer pay any amount above fee schedule amount provided sufficient notice of insurer's intent to limit reimbursement to permissive statutory fee schedule

25 Fla. L. Weekly Supp. 46a

Online Reference: FLWSUPP 2501SBROInsurance -- Personal injury protection -- Coverage -- Medical benefits -- Statutory fee schedules -- Insurer made clear and unambiguous election to limit reimbursement based on various fee schedules where policy stated that in no event would it pay more than the amounts allowed in permissive payment methodology

25 Fla. L. Weekly Supp. 774a

Online Reference: FLWSUPP 2509SIASInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous election by insurer -- Insurer gave adequate notice of its election of fee schedules to limit its payments where policy included under “Limits” heading the provision that it would in no event “pay more than 80% of the following No-Fault Act ‘schedule of maximum charges' ” and immediately thereafter recited statutory language of the fee schedules -- Further, statute provides that policy form approved by Office of Insurance Regulation satisfies notice requirement -- Fact that policy definition of “reasonable charge” included consideration of not just fee schedules, but also factors such as usual and customary charges, payments accepted by provider, and reimbursement levels in community does not change result

25 Fla. L. Weekly Supp. 223a

Online Reference: FLWSUPP 2503GENOInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous election by insurer -- PIP policy that defines medical benefits as 80% of all reasonable expenses incurred but which also states that insurer will refuse to pay for medical benefits that are unreasonable or unnecessary and that any charges that exceed the maximum charges of permissive statutory fee schedule will be deemed unreasonable clearly and unambiguously elects to limit reimbursement to statutory fee schedule -- Trial court erred in finding policy language to be ambiguous

25 Fla. L. Weekly Supp. 659a

Online Reference: FLWSUPP 2507LAGOInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous election by insurer -- PIP policy that chooses to determine reasonable charge using fact-dependant analysis while also attempting to cap payment using schedule of maximum charges does not clearly and unambiguously elect to reimburse in accordance with permissive statutory fee schedules -- Approval of policy by Office of Insurance Regulation is not impenetrable proof that policy satisfies requirement to provide notice of election of fee schedule method of reimbursement

25 Fla. L. Weekly Supp. 837b

Online Reference: FLWSUPP 2509ROBIInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Because 2% reduction applied by Centers for Medicaid and Medicare Services to physician fee schedule payment amounts for CPT codes for chiropractic manipulation is explicit part of formula for calculating fee schedule payment amounts for those CPT codes, PIP insurer is entitled to apply 2% reduction in reimbursing for chiropractic services under PIP policy adopting statutory fee schedules -- July 1, 2014, removal of 2% reduction represents subsequent unforeseeable change in fee schedule and is not applicable to charges at issue

25 Fla. L. Weekly Supp. 109a

Online Reference: FLWSUPP 2501WELCInsurance -- Personal injury protection -- Coverage -- Medical expenses -- In provision of PIP statute allowing for use of alternate method of calculating reimbursement in event provider submits charge for an amount that is “less than the amount allowed under subparagraph 1.” and similar provision of PIP policy, “amount allowed under subparagraph 1.” is 80% of 200% of allowable amount under Medicare fee schedule, not 80% of fee schedule amount -- Where billed amount exceeds 80% of 200% of allowed amount under Medicare fee schedule, insurer was required to pay 80% of 200% of fee schedule amount, not 80% of billed amount

25 Fla. L. Weekly Supp. 874b

Online Reference: FLWSUPP 2510MAGOInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules

25 Fla. L. Weekly Supp. 390a

Online Reference: FLWSUPP 2504LEMOInsurance -- Personal injury protection -- Coverage -- Medical benefits -- Standing -- Assignment to provider of benefits under policy for services rendered and covered by PIP coverage under the insured's name was valid assignment -- Motion to dismiss for lack of standing denied

25 Fla. L. Weekly Supp. 361b

Online Reference: FLWSUPP 2504MATTInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Provider's suit against insurer not precluded by fact that amount due is de minimus -- Statutory fee schedules -- Policy clearly stated insurer's intent to limit payment pursuant to statutory fee schedules

25 Fla. L. Weekly Supp. 195c

Online Reference: FLWSUPP 2502ABREInsurance -- Personal injury protection -- Coverage -- Resident of household -- Daughter of insured was resident relative residing in her parents'/insureds' household at time of automobile accident, although she was also associated with her boyfriend's address at the time -- Factors considered include close kinship and fact that daughter maintained key to residence and enjoyed unrestricted use of her bedroom, entire house, and all of its utilities

25 Fla. L. Weekly Supp. 558a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 26 Fla. L. Weekly Supp. 871aOnline Reference: FLWSUPP 2506JSANInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Multiple Procedure Payment Reduction -- Clear and unambiguous election by insurer -- PIP policy containing general references to Medicare coding policies and procedures does not clearly elect use of Medicare MPPR rule to reduce payment below permissive statutory fee schedule

25 Fla. L. Weekly Supp. 553a

Online Reference: FLWSUPP 2506SGORInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Multiple Procedure Payment Reduction -- Clear and unambiguous election by insurer -- PIP policy containing general references to Medicare coding policies and procedures does not clearly elect use of Medicare MPPR rule to reduce payment below permissive statutory fee schedule

25 Fla. L. Weekly Supp. 122b

Online Reference: FLWSUPP 2501NESMInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous election by insurer -- Insurer that incorporated Medicare fee schedule into PIP policy and specifically referenced Multiple Procedure Payment Reduction may use MPPR to calculate reimbursement -- MPPR is payment methodology, not utilization limit

25 Fla. L. Weekly Supp. 751b

Online Reference: FLWSUPP 2508BOESInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Physician assistant reduction is Medicare payment limitation, not utilization limit prohibited by section 627.736(5)(a)3 -- Where PIP policy clearly and unambiguously states that insurer may utilize Medicare coding policies and payment methodologies to determine appropriate amount of reimbursement, insurer properly applied physician assistant reduction to reimburse for service that was provided by assistant rather than physician

25 Fla. L. Weekly Supp. 753a

Online Reference: FLWSUPP 2508PUENInsurance -- Personal injury protection -- Expert witnesses -- Insurer's expert is qualified to testify as expert on issue of reasonableness of MRI charge where expert relies on other charges and reimbursements to insurer for same service that are less than what medical provider charges, and expert has experience as radiologist and experience regarding medical charges

25 Fla. L. Weekly Supp. 5a

Online Reference: FLWSUPP 2501BARRInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Error to enter final summary judgment in favor of provider of issue of reasonableness of charges where affidavits in support of motion were conclusory and contradictory -- Insurer's motion for appellate attorney's fees granted, pending favorable outcome at trial on remand

25 Fla. L. Weekly Supp. 492a

Online Reference: FLWSUPP 2505CHRIInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Summary judgment -- Opposing affidavit filed by insurer does not preclude summary judgment in favor of medical provider on issue of reasonableness of MRI charge where opinion that nothing above 200% of Medicare fee schedule would ever be reasonable is not based upon sufficient facts or data and is not product of reliable principles and methods

25 Fla. L. Weekly Supp. 698b

Online Reference: FLWSUPP 2508HALLInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Summary judgment -- Opposing affidavit filed by insurer did not preclude summary judgment in favor of medical provider on issue of reasonableness of charges where affidavit asserts that reimbursement payment was reasonable because it met reimbursement level prescribed by Medicare Part B fee schedule, despite fact that fee schedule is not elected in PIP policy, and does not raise genuine issue of material fact as to reasonableness of charges

25 Fla. L. Weekly Supp. 559a

Online Reference: FLWSUPP 2506TULIInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Medical provider made prima facie showing of reasonableness of MRI charge by presenting affidavit testifying that it regularly received payment of its charge as reasonable and incorporating data from industry source placing its charge between 50th and 75th percentile of charges for service at issue in community -- Affidavit submitted by insurer in opposition to provider's motion for summary judgment did not meet Daubert standard where expert relied primarily on personal experience, offered opinion rooted in circular logic and conclusory statements, and included only Medicare reimbursement rates in his analysis

25 Fla. L. Weekly Supp. 551a

Online Reference: FLWSUPP 2506DUGAInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Medical provider made prima facie showing of reasonableness of charges by presenting affidavit testifying that charges were in line with prevailing charges of other providers in community and within range of usual and customary charges and reimbursement rates in community -- Affidavit submitted by insurer in opposition to provider's motion for summary judgment did not meet Daubert standard where expert relied primarily on personal experience, offered opinion rooted in conclusory statements, and included only Medicare reimbursement rates in his analysis

25 Fla. L. Weekly Supp. 912a

Online Reference: FLWSUPP 2510RESTInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Summary judgment -- Reasonableness of charges -- Opposing affidavit filed by insurer does not preclude summary judgment in favor of medical provider on issue of reasonableness of charges -- Affidavit opining that nothing in excess of 80% of 200% of Medicare fee schedules can ever be reasonable is inadmissible “pure opinion” based on nothing but expert's own experience

25 Fla. L. Weekly Supp. 554b

Online Reference: FLWSUPP 2506CHACInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Summary judgment -- Opposing affidavit filed by insurer does not preclude summary judgment in favor of medical provider on issue of reasonableness of charges where affiant has not established nexus to county in which services were provided and based opinion solely on reimbursements at his own facilities -- Fact that Medicare and health insurance reimburse less than amount billed by provider does not, by itself, create factual issue as to reasonableness of charges

25 Fla. L. Weekly Supp. 130a

Online Reference: FLWSUPP 2501MORAInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Summary judgment -- Medical provider met burden of proving that charges for MRI scans were reasonable by introducing bill, assignment of benefits, and affidavit of its owner/corporate representative -- Owner's affidavit is not insufficient for failing to address every reasonableness factor mentioned in PIP statute -- Opposing affidavit of non-expert that presents inadmissible lay opinion testimony and relies on inadmissible unauthenticated documents and settlement documents is insufficient to create genuine issue of material fact and avoid summary judgment -- Even if affiant were offered as expert, she is not competent to be expert witness where her opinions are not based on sufficient facts or data -- Fact that Medicare and health insurance pay less than amount billed by provider does not, by itself, create factual issue as to reasonableness of charges

25 Fla. L. Weekly Supp. 125b

Online Reference: FLWSUPP 2501VASSInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Summary judgment -- Where affidavit filed by insurer in opposition to summary judgment on issue of reasonableness of charges is conclusory and not based on sufficient facts or data, and insurer stipulated to relatedness and medical necessity of treatment in its discovery responses, final summary judgment is entered in favor of medical provider

25 Fla. L. Weekly Supp. 229a

Online Reference: FLWSUPP 2503MERIInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Trial court erred in granting summary judgment on reasonableness of provider's pricing where affidavit filed by insurer raised issues of material fact

25 Fla. L. Weekly Supp. 694a

Online Reference: FLWSUPP 2508BINGInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Trial court erred in holding that insurer was not permitted to challenge reasonableness of charges which insurer had initially paid based on Medicare Part B and Workers' Compensation fee schedules -- Although policy did not clearly and unambiguously give notice of insurer's election to limit payment based on statutory fee schedules, insurer was not barred from litigating reasonableness of charges, but was merely precluded from availing itself of fee schedule limitation

25 Fla. L. Weekly Supp. 693a

Online Reference: FLWSUPP 2508PINEInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Insurer that failed to elect to use fee schedule method of reimbursement in PIP policy is not precluded from litigating reasonableness of medical provider's bill under section 627.736(5)(a)1, but is merely precluded from availing itself of fee schedule limitation in section 627.736(5)(a)2 -- Under these circumstances, insurer is also entitled to engage in discovery on reasonableness of charges

25 Fla. L. Weekly Supp. 579b

Online Reference: FLWSUPP 2507ALLFInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Insurer did not waive opportunity to litigate reasonableness of provider's charge for MRI when its adjuster used computerized auto-pay process

25 Fla. L. Weekly Supp. 382c

Online Reference: FLWSUPP 2504HEREInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable charges -- Under PIP statute, if medical provider's charge is reasonable, insurer must pay that amount even if its own amount of proposed reimbursement might also be deemed reasonable -- Where provider's charges fall clearly within range of MRI charges for non-hospital settings in South Florida, charges are reasonable

25 Fla. L. Weekly Supp. 117b

Online Reference: FLWSUPP 2501ROJAInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Provider made prima facie showing that amount charged for MRI was reasonable by presenting medical bill for service at issue and testimony that patient received the treatment in question and through affidavit of owner and corporate representative, who had personal knowledge of valuation of services at issue and was personally familiar with company's billing practices, office procedures, collection practices, reimbursement trends for plaintiff's services, and charges in the community -- Affidavit of insurer's litigation adjuster, who was offered as fact witness, was insufficient to establish disputed issue of material fact as to reasonableness of charges

25 Fla. L. Weekly Supp. 91b

Online Reference: FLWSUPP 2501PADRInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Provider made prima facie showing of reasonableness of charges by presenting medical bill for the service at issue and testimony that the patient received the treatment in question -- Affidavit submitted by insurer in opposition to provider's motion for summary judgment did not meet Daubert standard where expert relied primarily on personal experience without explaining how experience led to opinion, why experience was sufficient basis for opinion, and how experience was reliably applied to facts

25 Fla. L. Weekly Supp. 89a

Online Reference: FLWSUPP 2501RIDIInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Summary judgment -- Opposing affidavit filed by insurer does not preclude summary judgment in favor of medical provider on issue of reasonableness of medical provider's charge where affidavit is self-serving, conclusory, devoid of sufficient facts or data, is based on inadmissible hearsay and lacks reliable principles -- Fact that Medicare, HMOs and PPOs pay less than amount billed by provider does not create factual issue as to reasonableness of charge

25 Fla. L. Weekly Supp. 580a

Online Reference: FLWSUPP 2507ALEXInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Insurer who based its payment to provider on statutory fee schedule, although insurance policy did not give notice of insurer's election to use fee schedule, was not precluded from litigating reasonableness of provider's bill for MRI -- Opposing affidavits submitted by provider and insurer raised genuine issue of material fact with respect to reasonableness of bill

25 Fla. L. Weekly Supp. 481a

Online Reference: FLWSUPP 2505RICAInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Affidavit of insurer's expert is sufficient to create triable issue of fact as to reasonableness of provider's charges -- Provider's motion for summary judgment is denied

25 Fla. L. Weekly Supp. 480a

Online Reference: FLWSUPP 2505POLOInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Affidavit of insurer's expert is sufficient to create triable issue of fact as to reasonableness of provider's charges -- Provider's motion for summary judgment is denied

25 Fla. L. Weekly Supp. 474a

Online Reference: FLWSUPP 2505COSTInsurance -- Personal injury protection -- Coverage -- Medical benefits -- Reasonableness of charges -- Provider presented prima facie case of reasonableness through affidavit of its corporate representative and owner -- Insurer created triable issue of fact sufficient to survive summary judgment through affidavit of its expert

25 Fla. L. Weekly Supp. 3a

Online Reference: FLWSUPP 2501CELEInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charge -- Insurer that failed to elect to use the fee schedule limitation in its policy was not precluded from litigating reasonableness of provider's bill under section 627.736(5)(a)1, but is merely precluded from availing itself of the fee schedule limitation in section 627.736(5)(a)2 -- Jury's finding that amount charged by provider for MRI was unreasonable and its determination of a reasonable amount was supported by evidence, and trial court reversibly erred in directing verdict in favor of provider

25 Fla. L. Weekly Supp. 860a

Online Reference: FLWSUPP 2510MUSEInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- When considering reasonableness of particular charge, trier of fact may consider evidence pertaining to Medicare fee schedules that are referenced by and incorporated into PIP statute -- Affidavit submitted by insurer in opposition to provider's motion for summary judgment was legally sufficient to create genuine issue of material fact as to reasonableness of amount charged for X-ray services at issue -- Trial court improperly applied Daubert admissibility standard to reject affidavit filed in opposition to motion for summary judgment -- Remand for further proceedings

25 Fla. L. Weekly Supp. 857a

Online Reference: FLWSUPP 2510GABLInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Trial court erred in entering summary judgment in favor of plaintiff on issue of reasonableness of charges where affidavit filed by plaintiff in support of motion was conclusory and failed to prove nonexistence of genuine issue of material fact -- Even if plaintiff's submission of medical bills satisfied its burden, entry of summary judgment was erroneous where affidavit of insurer's expert showed possible existence of disputed issue of material fact -- Trial court erred in excluding insurer's affidavit where affiant qualified as expert and affidavit contained analysis comparing amounts billed to reimbursement levels in community and various state and federal medical fee schedules that satisfied criteria that expert use generally accepted scientific method and that opinion be product of reliable principles and methods -- Trial court also erred in excluding affidavit on ground that affiant relied on Medicare fee schedules to analyze reasonableness of charges when insurer did not elect statutory fee schedule method of reimbursement in PIP policy -- Although Medicare fee schedule cannot be used to conclusively determine reasonable amount of charges, PIP statute provides that federal fee schedules are relevant factor in determining reasonableness of charges

25 Fla. L. Weekly Supp. 1040a

Online Reference: FLWSUPP 2512VALIInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous election by insurer -- PIP policy that states that insurer will pay 80% of medically necessary expenses does not elect to limit reimbursement to statutory fee schedules -- Reasonableness of charges -- Summary judgment -- Opposing affidavit filed by insurer does not preclude summary judgment in favor of medical provider on issue of reasonableness of charges where affidavit merely parrots statutory factors for determining whether charges are reasonable, is not supported by cognizable facts, sets forth conclusory opinion on reasonableness issue and excludes from consideration any charges above 200% of Medicare fee schedule -- Where parties to this action previously litigated reasonableness of provider's charges for same CPT codes to final judgment, doctrine of collateral estoppel precludes insurer from re-litigating reasonableness of charges

25 Fla. L. Weekly Supp. 1031a

Online Reference: FLWSUPP 2512ZALDInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous election by insurer -- PIP policy that states that insurer will pay 80% of medically necessary expenses does not elect to limit reimbursement to statutory fee schedules -- Reasonableness of charges -- Summary judgment -- Opposing affidavit filed by insurer does not preclude summary judgment in favor of medical provider on issue of reasonableness of charges where affidavit merely parrots statutory factors for determining whether charges are reasonable, is not supported by cognizable facts, sets forth conclusory opinion on reasonableness issue and excludes from consideration any charges above 200% of Medicare fee schedule -- Where parties to this action previously litigated reasonableness of provider's charges for same CPT codes to final judgment, doctrine of collateral estoppel precludes insurer from re-litigating reasonableness of charges

25 Fla. L. Weekly Supp. 124a

Online Reference: FLWSUPP 2501NOLAInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Collateral estoppel -- Motion to apply collateral estoppel to prevent insurer from litigating reasonableness of charge for particular CPT code is granted where same parties actively litigated identical issue in 15 prior cases, issue was critical part of each prior case, and insurer was given full and fair opportunity to litigate issue in prior cases

25 Fla. L. Weekly Supp. 279a

Online Reference: FLWSUPP 2503ROMAInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Summary judgment -- Medical provider met burden of proving that charges for MRI scans were reasonable by introducing bill, assignment of benefits, and affidavit of its owner/corporate representative -- Mere fact that insurer paid amount less than amount charged by medical provider does not create disputed issue of material fact precluding summary judgment -- Opposing affidavit of non-expert that presents inadmissible lay opinion testimony and relies on inadmissible unauthenticated documents and settlement agreements is insufficient to create genuine issue of material fact and avoid summary judgment -- Even if affiant were offered as expert, she is not competent to be expert witness where her opinions are not based on sufficient facts or data -- Fact that Medicare and other types of insurers pay less than amount billed by provider does not, by itself, create factual issue as to reasonableness of charges -- Where insurer has not elected in policy to reimburse in accordance with statutory fee schedules, evidence that limits maximum reasonable charge to amount equal to or less than 200% of Medicare fee schedule is not relevant or admissible

25 Fla. L. Weekly Supp. 509e

Online Reference: FLWSUPP 2506SJORInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges

25 Fla. L. Weekly Supp. 633a

Online Reference: FLWSUPP 2507RAYMInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related, and necessary treatment -- Summary judgment -- Affidavit of treating physician was sufficient to meet provider's burden of proof on issue of reasonableness, causal relationship, and necessity of treatment provided to insured -- Court cannot consider untimely filed deposition transcript of treating physician or other purported evidence offered in opposition to provider's motion for partial summary judgment -- Because defendant failed either to substantially impeach medical expert testimony of treating physician or present countervailing evidence from licensed physician, provider is entitled to summary judgment on reasonableness, relatedness, and necessity of treatment

25 Fla. L. Weekly Supp. 200a

Online Reference: FLWSUPP 2502GRANInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Medically necessary treatment -- Summary judgment -- Opposing affidavit does not preclude entry of summary judgment in favor of medical provider on issue of medical necessity of treatment provided after independent medical examination cutoff date where IME physician formed opinion that treatment was not necessary based solely on IME and did not review medical records relating to disputed treatment -- Even if affiant's opinion could properly be based on incomplete records, his conclusion that lack of improvement means that treatment was not medically necessary suggests that he did not apply statutory definition of medical necessity

25 Fla. L. Weekly Supp. 873a

Online Reference: FLWSUPP 2510NUNEInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Trial court did not err in granting provider's motions for summary judgment as to reasonableness of its charges -- Evidence presented in support of motions was legally sufficient to shift burden to insurer, and insurer did not carry its burden of showing genuine issue of material fact or triable issue -- Trial court erred in granting summary judgment in favor of provider as to relatedness and medical necessity of services rendered -- Insurer did not waive right to raise these issues by making partial payment of benefits prior to commencement of lawsuit

25 Fla. L. Weekly Supp. 872a

Online Reference: FLWSUPP 2510BRYAInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Trial court did not err in granting provider's motions for summary judgment as to reasonableness of its charges -- Evidence presented in support of motions was legally sufficient to shift burden to insurer, and insurer did not carry its burden of showing genuine issue of material fact or triable issue -- Trial court erred in granting summary judgment in favor of provider as to relatedness and medical necessity of services rendered -- Insurer did not waive right to raise these issues by making partial payment of benefits prior to commencement of lawsuit

25 Fla. L. Weekly Supp. 123b

Online Reference: FLWSUPP 2501CASTInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Relatedness and necessity of treatment -- Summary judgment -- Opposing affidavit filed by insurer does not preclude partial summary judgment in favor of medical provider on issues of relatedness and medical necessity of treatment where opinion of affiant who did not review insured's medical history, examination results, treatment plan or other clinical records is not based on sufficient facts or data

25 Fla. L. Weekly Supp. 292a

Online Reference: FLWSUPP 2503ESPIInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Summary judgment -- Opposing affidavit filed by insurer does not preclude summary judgment in favor of medical provider on issues of reasonableness of charges and relatedness and medical necessity of treatment where affidavit does not demonstrate relevance, is not based on sufficient data and personal knowledge, is based on conjecture and speculation, and raises issues not preserved through affirmative defenses

25 Fla. L. Weekly Supp. 307

aOnline Reference: FLWSUPP 2504ORDOInsurance -- Personal injury protection -- Trial court did not err in entering summary disposition in favor of medical provider on issue of reasonableness of charges where provider's evidence was legally sufficient to shift burden to insurer, affidavit of insurer's actuary was properly stricken, and affidavit of claims adjuster did not create triable issue -- Trial court erred in entering summary disposition in favor of provider on issue of medical necessity of treatment where adjuster's affidavit created triable issue regarding necessity

25 Fla. L. Weekly Supp. 120a

Online Reference: FLWSUPP 2501MCCAInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable of charges -- Related and necessary treatment -- Expert testimony -- Affidavits of treating physicians submitted by provider in support of motion for summary judgment were sufficient to establish prima facie case that treatment rendered was medically necessary and related to motor vehicle accident -- Opposing affidavits failed to meet three-pronged test set forth in section 90.702 -- Plaintiff presented prima facie case that its charge for treatment was reasonable through affidavit of treating physician, and affidavit of defendant's expert was legally insufficient to raise disputed issue of fact -- Provider's motion for summary judgment granted

25 Fla. L. Weekly Supp. 942a

Online Reference: FLWSUPP 2511MCNEInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Summary judgment -- Reasonableness of charges -- Trial court did not err in granting medical provider's motion for summary judgment on issue of reasonableness of charges where evidence in support of motion was sufficient to shift burden to insurer, and insurer did not meet burden to show genuine issue of material fact or triable issue as to reasonableness -- Relatedness and medical necessity of treatment -- Trial court erred in entering summary judgment in favor of provider on issues of relatedness and medical necessity of treatment upon concluding that insurer waived right to contest those issues by making partial payment of benefits before commencement of lawsuit

25 Fla. L. Weekly Supp. 507a

Online Reference: FLWSUPP 2506EMANInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Insurer's affidavit was sufficient to create genuine issues of material fact as to issues of relatedness and medical necessity of coverage, and it was error to enter summary judgment in favor of provider on these issues

25 Fla. L. Weekly Supp. 13a

Online Reference: FLWSUPP 2501SALAInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Trial court erred in entering summary judgment in favor of plaintiff on relatedness and necessity of treatment rendered to insured where affidavit submitted by insurer raised genuine issues of material fact

25 Fla. L. Weekly Supp. 85a

Online Reference: FLWSUPP 2501PJOSInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Related and necessary treatment -- Where insurer did not provide written statement disputing relatedness or necessity of treatment prior to motion for summary judgment but, instead, made numerous admissions that treatment was related and necessary, treatment is deemed related and necessary and insurer is estopped from conducting discovery on those issues

25 Fla. L. Weekly Supp. 905a

Online Reference: FLWSUPP 2510AMADInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Summary judgment -- Relatedness and necessity of treatment -- Medical provider's motion for summary judgment as to relatedness and necessity of treatment is granted where insurer admitted in response to interrogatories that treatment was related and necessary and further admitted that bills were paid in accordance with policy terms, exclusions and limitations

25 Fla. L. Weekly Supp. 148a

Online Reference: FLWSUPP 2502CHAMInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related, and necessary treatment -- Error to grant summary judgment in favor of provider on relatedness of treatment rendered after certain date where insurer's affidavit created genuine issue of fact -- No error in granting summary judgment in favor of provider on issue of relatedness of treatment provided prior to the specified date

25 Fla. L. Weekly Supp. 220a

Online Reference: FLWSUPP 2503SCOTInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related, and necessary treatment -- Affidavit submitted by insurer in opposition to provider's motion for summary judgment was sufficient to demonstrate existence of genuine issues of material fact as to reasonableness of medical bills and necessity of treatment, thereby precluding entry of summary judgment -- Insurer can challenge necessity of medical treatment at any time

25 Fla. L. Weekly Supp. 758b

Online Reference: FLWSUPP 2508SAAVInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Relatedness and necessity of charges -- Summary judgment -- Opposing affidavit filed by insurer does not preclude summary judgment in favor of medical provider on issues of relatedness and medical necessity of MRI charge where affidavit that is based solely on review of medical records either misstates or overlooks explicit findings in records -- Affidavit that was filed in support of original motion for summary judgment is admissible in support of amended motion for summary judgment

25 Fla. L. Weekly Supp. 424a

Online Reference: FLWSUPP 2505LAROInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary treatment -- Affidavit submitted by insurer in opposition to provider's motion for summary judgment was sufficient to create genuine issue of material fact as to issues of relatedness and medical necessity only

25 Fla. L. Weekly Supp. 507b

Online Reference: FLWSUPP 2506BENEInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Affidavit offered by insurer in opposition to provider's motion for summary judgment was insufficient to create factual issue where affiant focused on whether insurer paid a reasonable amount and whether that amount was reasonable under Medicare Part B fee schedule -- County court properly entered summary judgment in favor of provider on issue of reasonableness -- Relatedness and medical necessity -- Affidavit offered by insurer was sufficient to create genuine issue of material fact as to relatedness and medical necessity of services rendered by provider, with the exception of initial consultation -- Order granting partial summary judgment as to issues of relatedness and medical necessity reversed as to all services other than initial consultation

25 Fla. L. Weekly Supp. 158a

Online Reference: FLWSUPP 2502MEDEInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary treatment -- Affidavit by insurer's expert was sufficient to create factual issue as to necessity of chiropractic treatment for certain CPT codes where expert opined that these treatments were duplicative or redundant, as they achieved the same physiological effect -- Trial court erred in entering summary judgment in favor of provider with respect to these specific treatments -- Summary judgment in favor of provider affirmed with respect to all other charges

25 Fla. L. Weekly Supp. 816a

Online Reference: FLWSUPP 2509ALFOInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Provider established prima facie case that services provided were reasonable, related, and medically necessary, and defendant failed to establish existence of material fact on this issue -- Summary judgment granted

25 Fla. L. Weekly Supp. 123a

Online Reference: FLWSUPP 2501BESTInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Summary judgment entered in favor of provider on issues of medical necessity of treatment and reasonableness of charge

25 Fla. L. Weekly Supp. 122a

Online Reference: FLWSUPP 2501COLIInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Related and necessary treatment -- Summary judgment granted in favor of provider

25 Fla. L. Weekly Supp. 828a

Online Reference: FLWSUPP 2509DINGInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Nurse practitioner adjustment is Medicare payment methodology, not utilization limit prohibited by section 627.736(5)(a)3 -- Where PIP policy clearly and unambiguously states that insurer may utilize Medicare coding policies and payment methodologies to determine appropriate amount of reimbursement, insurer properly applied nurse practitioner adjustment to reimburse for service that was provided by nurse practitioner rather than physician

25 Fla. L. Weekly Supp. 988a

Online Reference: FLWSUPP 2511NOZIInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Non-massage therapies, performed by licensed massage therapist on behalf of non-LMT owned and duly licensed healthcare clinic, are reimbursable under statute's plain meaning where the therapies were medically necessary and related to underlying accident

25 Fla. L. Weekly Supp. 93a

Online Reference: FLWSUPP 2501MANEInsurance -- Personal injury protection -- Exhaustion of benefits -- By introducing some evidence that there may have been improperly paid claims and showing evidence of potential unlicensed and fraudulent activity by other providers whose claims were paid by insurer, plaintiff demonstrated genuine issues of fact as to whether benefits were exhausted by payment of invalid claims -- Plaintiff was not required to prove that insurer acted intentionally or with knowledge of any impropriety in its payments -- Insurer's motion for summary judgment on ground that benefits were exhausted is denied

25 Fla. L. Weekly Supp. 984a

Online Reference: FLWSUPP 2511CAMPInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Exhaustion of policy limits -- Where claims for PIP benefits were paid to insured's other medical providers in order in which compensability was established, thereby exhausting policy limits before plaintiff medical provider's claims were deemed compensable, final summary judgment is entered in favor of insurer -- Assignment of benefits does not provide plaintiff with standing to challenge insurer's determination that other providers' bills were reasonable, related and necessary

25 Fla. L. Weekly Supp. 832a

Online Reference: FLWSUPP 2509SAUVInsurance -- Personal injury protection -- Exhaustion of benefits -- Gratuitous payments -- Insurer's payments based on 200% of 2007 Non-Facility Limiting Charge of Medicare Fee Schedule were in good faith and appropriate based upon language of statute and, accordingly, were not gratuitous

25 Fla. L. Weekly Supp. 902a

Online Reference: FLWSUPP 2510KEITInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Exhaustion of policy limits -- Where insurer made payment to medical provider other than plaintiff that exhausted remainder of insured's PIP benefits, insurer had no further liability on unresolved pending claims irrespective of fact that medical provider that received final payment then returned portion of payment to insurer with expressed intent to preserve benefits for other medical providers -- What receiving medical provider does with insurer's payment is immaterial to insurer's liability under policy

25 Fla. L. Weekly Supp. 11a

Online Reference: FLWSUPP 2402LPERInsurance -- Personal injury protection -- Exhaustion of policy limits -- Trial court erred in finding that insurer that initially improperly reduced provider's charge by using Medicare Part B fee schedule could not later assert exhaustion of benefits as an affirmative defense in provider's action against it -- Absent bad faith, insurer's liability ended at policy limits -- Court rejects provider's argument that it can recover nominal damages when underlying claim has been obviated by exhaustion of benefits

25 Fla. L. Weekly Supp. 897c

Online Reference: FLWSUPP 2510SCUTInsurance -- Personal injury protection -- Coverage -- Medical expenses -- National Correct Coding Initiative edits are utilization limits -- Insurer's use of NCCI utilization edits to deny payment of PIP benefits amounted to bad faith claims adjusting -- Insurer may not use exhaustion of benefits as shield where claim was adjusted in bad faith

25 Fla. L. Weekly Supp. 1025a

Online Reference: FLWSUPP 2512DIZAInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Exhaustion of policy limits -- Bad faith -- Application of National Correct Coding Initiative edits -- Where at time PIP insurer denied reimbursement of billed CPT codes based upon NCCI edits there was binding authority holding that NCCI edits are utilization limits prohibited by PIP statute, insurer's application of NCCI edits was bad faith claims adjusting that exposes it to liability beyond policy limits

25 Fla. L. Weekly Supp. 103b

Online Reference: FLWSUPP 2501RPERNOT FINAL VERSION OF OPINION
Subsequent Changes at 25 Fla. L. Weekly Supp. 647bInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Exhaustion of policy limits -- Where PIP benefits were exhausted in payments to medical providers, and there is no evidence that gratuitous payments were made or that insurer acted in bad faith, no further benefits are due and owing

25 Fla. L. Weekly Supp. 366a

Online Reference: FLWSUPP 2504LYNCInsurance -- Personal injury protection -- Discovery -- Examination under oath -- Plaintiff's motion to exclude insured's examination under oath is granted, and insurer is excluded from using EUO at trial for any purpose based on insurer's having refused for over three years to produce EUO to plaintiff, although it is undisputed that insurer relied on EUO in support of its affirmative defense and ultimate denial of PIP claim

25 Fla. L. Weekly Supp. 365a

Online Reference: FLWSUPP 2504THEOInsurance -- Personal injury protection -- Coverage -- Emergency medical condition -- Insurer properly limited benefits to $2,500 where qualified provider had not determined that insured suffered emergency medical condition -- Fact that insurer paid additional benefits beyond $2,500 cap when it determined during litigation that it had utilized incorrect fee schedule in calculating reimbursement did not waive insurer's right to claim exhaustion of benefits

25 Fla. L. Weekly Supp. 226a

Online Reference: FLWSUPP 2503CORAInsurance -- Personal injury protection -- Coverage -- Emergency medical condition -- Confession of judgment -- Where medical provider failed to provide determination that insured had EMC at time it filed claim for PIP benefits, provider was not forced into litigation by insurer's failure to pay more than $2,500 in benefits, and trial court erred in finding that insurer's payment of additional benefits after provider supplied post-suit determination that insured had EMC constituted confession of judgment

25 Fla. L. Weekly Supp. 494a

Online Reference: FLWSUPP 2505FAITInsurance -- Personal injury protection -- Coverage -- Emergency medical condition -- In suit seeking PIP benefits is excess of $2,500, proof of determination of emergency medical condition is essential element of plaintiff medical provider's case -- Where no qualified medical provider has made determination that insured had emergency medical condition, and insurer had paid $2,500 in benefits on behalf of insured prior to filing of suit, insurer has no additional liability to provider -- Where provider ignored insurer's requests for information on whether emergency medical condition existed, claims never became overdue and demand letter was premature -- Insurer's motion for summary disposition is granted

25 Fla. L. Weekly Supp. 470a

Online Reference: FLWSUPP 2505AETIInsurance -- Personal injury protection -- Coverage -- Emergency medical condition -- Under amendments to PIP statute requiring PIP insurer to pay benefits up to $10,000 if qualified medical provider has determined that claimant had emergency medical condition and limiting reimbursement to $2,500 if qualified provider has determined that claimant did not have emergency medical condition, insurer properly limited benefits to $2,500 where qualified provider had not determined that insured suffered emergency medical condition -- No merit to argument that insurer was required to pay benefits up to $10,000 unless there was determination of absence of emergency medical condition -- Determination of emergency medical condition made and submitted to insurer after suit was filed was not sufficient to place insurer on notice of covered loss for benefits over $2,500 prior to suit being filed

25 Fla. L. Weekly Supp. 489a

Online Reference: FLWSUPP 2505CHARInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Declaratory action -- PIP policy, when read in conjunction with PIP statute limiting benefits to $2,500 in absence of determination of emergency medical condition and extending benefits to $10,000 when emergency medical condition has been determined to exist, is deemed to provide $2,500 in benefits that are subsumed in total aggregate of $10,000 in benefits when emergency medical condition is determined to exist, not total aggregate of $12,500 in benefits

25 Fla. L. Weekly Supp. 79a

Online Reference: FLWSUPP 2501PAULInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Emergency medical condition -- Insurer did not unreasonably limit reimbursement to $2500 in absence of determination by qualified provider that claimant had emergency medical condition -- Post-suit payment of additional benefits did not amount to confession of judgment

25 Fla. L. Weekly Supp. 49a

Online Reference: FLWSUPP 2501KRUIInsurance -- Personal injury protection -- Demand letter -- Medical provider was not required to submit demand letter as condition precedent to filing amended complaint to include charges for dates of service not mentioned in original complaint -- No merit to argument that demand letter is required where amendment alleges additional charges that were denied by insurer for reasons other than those given for denying charges that were subject of original complaint

25 Fla. L. Weekly Supp. 974a

Online Reference: FLWSUPP 2511PAPHInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous election by insurer -- Neither approval of PIP policy by Office of Insurance Regulation nor incorporation of OIR sample form in policy is dispositive as to whether policy makes proper election for payment under permissive statutory fee schedule -- Where definition of “reasonable charge” in PIP policy is hybrid of factors found in reasonable amount method of reimbursement and provisions from fee schedule method of reimbursement, policy is ambiguous as to reimbursement method and did not clearly and unambiguously elect fee schedule method of reimbursement

25 Fla. L. Weekly Supp. 915a

Online Reference: FLWSUPP 2510DPERInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Summary judgment is entered in favor of medical provider on issues of relatedness of treatment and medical necessity of certain treatments that are undisputed -- Issues of improper CPT coding and defective medical record keeping that were raised in affidavit of insurer's expert but were not pled as affirmative defenses are deemed waived -- Reasonableness of charges -- Opposing affidavit filed by insurer does not preclude summary judgment in favor of provider on issue of reasonableness of charges -- Affidavit opining that nothing in excess of 80% of 200% of Medicare fee schedules can ever be reasonable is inadmissible “pure opinion” based on nothing but expert's own experience

25 Fla. L. Weekly Supp. 229c

Online Reference: FLWSUPP 2503BRADInsurance -- Personal injury protection -- Trial court erred in denying insurer's timely-filed motion to amend affirmative defenses to add plaintiff's lack of standing to sue on bills incurred by another entity where there was no showing that plaintiff would be prejudiced, that insurer abused privilege to amend, or that amendments would be futile

25 Fla. L. Weekly Supp. 549a

Online Reference: FLWSUPP 2506SANCInsurance -- Personal injury protection -- Coverage -- Medical benefits -- Massage therapy -- Treatment provided by licensed massage therapist and billed under CPT code 97124 is not compensable under statutory changes that came into effect in 2013 -- Neither demand letter nor bill contained false and misleading statements by provider, as provider sought payment for specific codes that were rendered and that provider believed to be payable

25 Fla. L. Weekly Supp. 1039a

Online Reference: FLWSUPP 2512INTEInsurance -- Personal injury protection -- Coverage -- Conditions precedent -- Examination under oath -- Where both PIP statute and policy provide that EUO is condition precedent to receipt of benefits, neither insured who failed to appear at two scheduled EUOs nor medical provider/assignee is entitled to benefits irrespective of whether EUOs were set to occur within thirty days of insurer's receipt of bills

25 Fla. L. Weekly Supp. 897a

Online Reference: FLWSUPP 2510GIAMInsurance -- Personal injury protection -- Coverage -- Failure to attend examination under oath -- Provider/assignee not entitled to receive benefits where insured failed to attend EUO that PIP policy establishes as condition precedent to receipt of benefits

25 Fla. L. Weekly Supp. 980a

Online Reference: FLWSUPP 2511TURKInsurance -- Personal injury protection -- Coverage -- Lost wages -- Bodily injury “arising out of” ownership, maintenance or use of vehicle -- Plaintiff who was shot by police while he was occupying and using his car, which was parked in his driveway with the motor running, sustained bodily injury arising out of ownership, maintenance or use of vehicle is entitled to lost wage benefits

25 Fla. L. Weekly Supp. 308a

Online Reference: FLWSUPP 2504NELSInsurance -- Personal injury protection -- Affirmative defenses -- Amendment -- Abuse of discretion to deny insurer's motion to amend affirmative defenses to allege defense of fraud where discovery revealed that medical provider had submitted claims for services that were not performed -- Amendment one week before hearing would not have prejudiced provider, insurer had not previously sought leave to amend, and amendment would not be futile since fraud would invalidate provider's claim

25 Fla. L. Weekly Supp. 826a

Online Reference: FLWSUPP 2509WHITInsurance -- Personal injury protection -- Where provider filed complaint seeking damages in amount of $99, exclusive of interest, costs, and attorney's fees, and insurer thereafter tendered amount sought, with interest, and filed confession of judgment, insurer made valid confession of judgment, and court lacked jurisdiction to consider amended complaint seeking additional damages -- Defendant's motion for entry of final judgment granted -- Jurisdiction reserved on issue of attorney's fees

25 Fla. L. Weekly Supp. 545a

Online Reference: FLWSUPP 2506VALVInsurance -- Personal injury protection -- Complaint -- Amendment -- Agreed order to amend complaint to name correct insurance carrier as defendant -- Insurer agrees to waive any defect in presuit demand letter insofar as it was sent to wrong insurer

25 Fla. L. Weekly Supp. 92a

Online Reference: FLWSUPP 2501BORGInsurance -- Coverage -- Medical expenses -- Denial -- False and misleading statements on billing statements

25 Fla. L. Weekly Supp. 829a

Online Reference: FLWSUPP 2509ADAMInsurance -- Med pay -- Subrogation lien -- Declaratory judgments -- Amended complaint seeking declaration that any recovery of settlement proceeds by insurer under subrogation lien is required to be reduced by its pro rata share of attorney's fees and costs incurred by insured in recovering from tortfeasor fails to present bona fide, actual, or present need for declaration where collateral source statute clearly provides for reduction of lien by pro rata share of fees and costs and statute is not in conflict with subrogation clause in policy or letters from insurer asserting claim of lien under statute and policy -- Motion to dismiss is granted

25 Fla. L. Weekly Supp. 105a

Online Reference: FLWSUPP 2501NAVAInsurance -- Personal injury protection -- Service of process -- Failure to perfect within 120 days -- Motion to dismiss granted

25 Fla. L. Weekly Supp. 83a

Online Reference: FLWSUPP 2501NCHAInsurance -- Personal injury protection -- Provider's motion for relief from order granting defendant's motion for final judgment and related motion for sanctions is denied -- Filing of notice of voluntary dismissal without leave of court after hearing on motion for summary judgment had been completed did not deprive court of jurisdiction to enter written order granting summary judgment -- Plaintiff's allegations of fraud upon court, made over a year after entry of written final summary judgment, were improper/lacking any evidentiary basis, and not made

25 Fla. L. Weekly Supp. 555a

Online Reference: FLWSUPP 2506VALDInsurance -- Homeowners -- Water remediation -- Where insurer had notice of valid assignment to plaintiff water remediation company prior to issuance of payment to insured, insurer cannot rely on payment to insured to discharge debt owed to plaintiff

25 Fla. L. Weekly Supp. 840a

Online Reference: FLWSUPP 2509UNIVInsurance -- Insurer's complaint against water remediation company alleging fraudulent misrepresentation -- Because insurer relies on same information previously relied upon when it adjusted, negotiated and paid company's claim without issue, no triable fact issue exists -- Summary disposition granted

25 Fla. L. Weekly Supp. 866a

Online Reference: FLWSUPP 2510BLACInsurance -- Homeowners -- Water damage -- Contractor/assignee's action against insurer -- Order dismissing insurer's second amended compulsory counterclaim without prejudice was non-final, non-appealable order -- Second amended counterclaim alleging contractor violated Deceptive and Unfair Trade Practices Act was compulsory in nature where counterclaim arose from same aggregate of operative facts

25 Fla. L. Weekly Supp. 117a

Online Reference: FLWSUPP 2501CALZInsurance -- Homeowners -- Standing -- Motion for judgment on pleadings arguing that company that provided emergency water removal service on homeowners' property lacks standing to sue insurer because homeowners' mortgage company did not consent to assignment, as is required by policy, is denied -- Policy provision that restricts post-loss assignment of benefits is contrary to Florida law

25 Fla. L. Weekly Supp. 162a

Online Reference: FLWSUPP 2502MUMIInsurance -- Homeowners -- Standing -- Motion for summary judgment arguing that company that provided emergency water removal services on homeowner's property lacks standing to sue insurer because homeowner's mortgage holder did not consent to assignment of benefits, as is required by policy, is denied -- Policy provision that restricts post-loss assignment of benefits is contrary to Florida law

25 Fla. L. Weekly Supp. 662a

Online Reference: FLWSUPP 2507GERSInsurance -- Homeowners -- Coverage -- Water damage -- Emergency remedial measures -- Limitation of liability -- Email sent to insurer by water remediation company after work was completed, with invoice attached showing amount due in excess of policy cap for emergency remedial measures, was sufficient to meet policy requirement that insurer submit a “request” to exceed the cap, triggering 48-hour period within which insurer was required to approve or reject the request -- Because insurer failed to respond within 48 hours, claimant was entitled to exceed the cap up to the cost incurred for emergency measures necessary to protect property from further damages

25 Fla. L. Weekly Supp. 957a

Online Reference: FLWSUPP 2511VENIInsurance -- Homeowners -- Water damage -- Exclusions -- Loss caused by excess humidity and moisture originating in home's duct system was encompassed by endorsement excluding losses caused by discharge or overflow of water from within an air conditioning “system” -- Lack of definition of “system” did not create ambiguity, as duct work is undoubtedly part of air conditioning system

25 Fla. L. Weekly Supp. 894a

Online Reference: FLWSUPP 2510DAVIInsurance -- Homeowners -- Exclusions -- Marring exclusion in homeowners' policy excludes loss that occurred when object fell in home and caused damage to tile -- State courts have determined as matter of law that term “marring” is not ambiguous and includes dropped objects that fall and damage tile

25 Fla. L. Weekly Supp. 189a

Online Reference: FLWSUPP 2502BASTInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous election by insurer -- PIP policy that states that insurer will use schedule of maximum charges and CMS payment methodologies to calculate reimbursement clearly and unambiguously elects to pay in accordance with permissive statutory fee schedules -- Fact that policy also states that insurer will pay 80% of reasonable expenses incurred does not create ambiguity where policy specifies that insurer will find to be unreasonable any charge that exceeds charges set forth in PIP statute -- Fee schedule published by federal government is not hearsay, notwithstanding that it is now published on website rather than in Federal Register

25 Fla. L. Weekly Supp. 185a

Online Reference: FLWSUPP 2502HOLMInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous election by insurer -- PIP policy that states that insurer will use schedule of maximum charges and CMS payment methodologies to calculate reimbursement clearly and unambiguously elects to pay in accordance with permissive statutory fee schedules -- Fact that policy also states that insurer will pay 80% of reasonable expenses incurred does not create ambiguity where policy specifies that insurer will find to be unreasonable any charge that exceeds charges set forth in PIP statute -- Fee schedule published by federal government is not hearsay, notwithstanding that it is now published on website rather than in Federal Register -- Affidavit of medical provider's billing supervisor is insufficient to rebut affidavit of insurer's records custodian and copy of fee schedule on issue of whether insurer properly calculated reimbursement amount

25 Fla. L. Weekly Supp. 97a

Online Reference: FLWSUPP 2501PETIInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Insurer paid provider in conformity with Medicare Part B participating physician fee payment schedule, which was properly incorporated into policy -- Fee schedule published by federal government on CMS website is not hearsay -- Summary judgment in favor of insurer not precluded by outstanding discovery, assuming plaintiff acted diligently in obtaining discovery, where the outstanding discovery is not necessary to determination of issue before the court -- Plaintiff's motion to strike affidavit in support of motion for summary judgment is denied -- Affidavit of insurer's adjuster demonstrated adjuster's personal knowledge of claim, and the information contained in affidavit is admissible -- With respect to documents attached to affidavit, explanation of benefits and PIP medical detail list are hearsay, and defendant failed to lay predicate for admission of these documents under business records exception -- Defendant's motion for section 57.105 sanctions is denied

25 Fla. L. Weekly Supp. 187a

Online Reference: FLWSUPP 2502MCLEInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Medical provider seeking summary judgment on issue of reasonableness of charges has failed to meet burden to demonstrate nonexistence of question of material fact where supporting affidavit states that charges are reasonable “to reasonable degree of chiropractic probability” and offers no evidence that consideration was given to statutory reasonableness factors -- Insurer's motion to declare sections 90.702 and 90.704 unconstitutional is denied where insurer has not explained how its constitutional rights will be violated by implementation of those sections and, absent that information, court is unable to identify cognizable controversy on which to rule -- Question certified: Whether Florida Supreme Court's ruling in In re Amendments to the Florida Evidence Code intended to revert sections 90.702 and 90.704 (2013) to pre-Daubert standard or should trial courts continue to utilize those sections until decision on constitutionality of those sections is ruled upon

25 Fla. L. Weekly Supp. 36a

Online Reference: FLWSUPP 2501MCNEInsurance -- Workers' compensation -- Liability -- Intentional acts -- Duty to defend -- Insurer that provided workers' compensation and employer liability coverage to its insured had duty to defend its insured in suit brought against it by estate of deceased employee where complaint alleged sufficient facts to create potential coverage under policy -- Insurer failed to prove that allegations in every iteration of underlying complaints demonstrated that employer intended to cause harm to decedent or that any other policy exclusions relied upon by insurer to bar were a bar to coverage

25 Fla. L. Weekly Supp. 660a

Online Reference: FLWSUPP 2507NJONInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous election by insurer -- County court granted summary judgment in favor of medical provider determining that insurer's policy language did not properly elect reimbursement pursuant to statutory fee schedules at time when district court conflict on issue was pending resolution by Florida Supreme Court, and during pendency of insurer's motion for rehearing in county court supreme court ruled in favor of insurer, after which provider filed notice of voluntary dismissal without prejudice and insurer filed renewed motion for rehearing and motion to strike voluntary dismissal -- Notice of voluntary dismissal filed after entry of summary judgment is nullity and is stricken -- Renewed motion for rehearing is granted in light of supreme court decision and final judgment is entered in favor of insurer

25 Fla. L. Weekly Supp. 658a

Online Reference: FLWSUPP 2507AHMAInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous election by insurer -- County court granted summary judgment in favor of medical provider determining that insurer's policy language did not properly elect reimbursement pursuant to statutory fee schedules at time when district court conflict on issue was pending resolution by Florida Supreme Court, and during pendency of insurer's motion for rehearing in county court supreme court ruled in favor of insurer, after which provider filed notice of voluntary dismissal without prejudice and insurer filed renewed motion for rehearing and motion to strike voluntary dismissal -- Notice of voluntary dismissal filed after entry of summary judgment is nullity and is stricken -- Renewed motion for rehearing is granted in light of supreme court decision and final judgment is entered in favor of insurer

25 Fla. L. Weekly Supp. 656b

Online Reference: FLWSUPP 2507SMIKInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous election by insurer -- County court granted summary judgment in favor of medical provider determining that insurer's policy language did not properly elect reimbursement pursuant to statutory fee schedules at time when district court conflict on issue was pending resolution by Florida Supreme Court, and during pendency of insurer's motion for rehearing in county court supreme court ruled in favor of insurer, after which provider filed notice of voluntary dismissal without prejudice and insurer filed renewed motion for rehearing and motion to strike voluntary dismissal -- Notice of voluntary dismissal filed after entry of summary judgment is nullity and is stricken -- Renewed motion for rehearing is granted in light of supreme court decision and final judgment is entered in favor of insurer

25 Fla. L. Weekly Supp. 809a

Online Reference: FLWSUPP 2509SUNDInsurance -- Service of process -- Failure to perfect within 120 days -- Motion to dismiss suit for failure to perfect service of process on insurer within 120 days of filing statement of claim is denied where medical provider twice attempted service through Department of Financial Services, provider was successful within less than 60 days after 120-day time period for service, and statute of limitations would bar provider from refiling suit if it were dismissed

25 Fla. L. Weekly Supp. 413a

Online Reference: FLWSUPP 2505GAINInsurance -- Personal injury protection -- Discovery -- Trade secret -- Documents relied upon by insurer in rendering opinion on issue of reasonableness -- Trial court departed from essential requirements of law when it ordered insurer to produce documents that were claimed to be privileged without first conducting examination of documents or in camera inspection and without setting forth findings regarding trade secret status of information requested -- Court notes that insurer's request for confidentiality order as form of relief to guard against widespread dissemination of trade secret material is supported by caselaw

25 Fla. L. Weekly Supp. 393a

Online Reference: FLWSUPP 2504VASQInsurance -- Personal injury protection -- Discovery -- Trade secrets -- Billing and collections reports -- Where medical provider's billing and collections reports contain payment amounts from insurers with which provider maintains contracts and financial information on provider's business as a whole, reports are protected by trade secret privilege -- Where insurer has shown reasonable necessity for reports that contain information relevant to issue of reasonableness of provider's charge, provider is required to produce matrix reflecting amounts paid to it for CPT code at issue without identifying any particular insurer by name -- Insurer may apply for reconsideration of production of actual reports after matrix is produced

25 Fla. L. Weekly Supp. 811a

Online Reference: FLWSUPP 2509CALIInsurance -- Personal injury protection -- Discovery -- Admissions -- Insurer's motion for relief from technical violation of rule 1.370 is denied, as insurer has shown no excusable neglect surrounding its failure to timely respond to request for admissions -- Summary judgment is entered in favor of medical provider based on admissions regarding prior global settlement of all expired pre-suit demands

25 Fla. L. Weekly Supp. 836a

Online Reference: FLWSUPP 2509GMARInsurance -- Personal injury protection -- Discovery -- Insurer's motion for protective order regarding discovery related to proper application of policy deductible denied -- Although court previously entered parties' agreed order on plaintiff's motion to stay case pending supreme court's resolution of pending appeal in separate case, case at issue did not address whether insurer was required to apply policy deductible first against amount billed for services rendered prior to applying fee schedule, and neither agreed order nor motion for stay specifically indicated that supreme court's opinion would be dispositive

25 Fla. L. Weekly Supp. 497a

Online Reference: FLWSUPP 2506DSMIInsurance -- Personal injury protection -- Discovery -- Trial court departed from essential requirements of law by ordering provider to produce information claimed to be trade secret without conducting in camera inspection, weighing interests, making clear findings, and requiring appropriate protections -- Order also departed from essential requirements of law by requiring production of more material than the court orally ordered produced at hearing on motion to compel

25 Fla. L. Weekly Supp. 546b

Online Reference: FLWSUPP 2506BUTLInsurance -- Discovery -- Mold assessor -- Objections by corporate plaintiff to insurer's deposition duces tecum of its owner, a licensed mold assessor and licensed public adjuster, seeking disclosure of documentation of claims referral fees are overruled -- Given licenses held by owner and statutes governing the areas of those licenses, court finds that requests are relevant and may lead to discovery of admissible evidence

25 Fla. L. Weekly Supp. 135a

Online Reference: FLWSUPP 2502DSMIInsurance -- Personal injury protection -- Discovery -- Medical provider -- Trade secrets -- Trial court departed from essential requirements of law when it ordered information to be produced over provider's trade secret objections without first conducting in camera inspection, weighing interests, making clear findings, and requiring appropriate protections

25 Fla. L. Weekly Supp. 973d

Online Reference: FLWSUPP 2511HARVInsurance -- Personal injury protection -- Discovery -- Provider need not provide documents or information regarding payments received from secondary payers such as Medicaid, Medicare, and private insurance

25 Fla. L. Weekly Supp. 973c

Online Reference: FLWSUPP 2511AMARInsurance -- Personal injury protection -- Discovery -- Provider need not provide documents or information regarding payments received from secondary payers such as Medicaid, Medicare, and private insurance

25 Fla. L. Weekly Supp. 973b

Online Reference: FLWSUPP 2511CGONInsurance -- Personal injury protection -- Discovery -- Provider need not provide documents or information regarding payments received from secondary payers such as Medicaid, Medicare, and private insurance

25 Fla. L. Weekly Supp. 845a

Online Reference: FLWSUPP 2509OCALInsurance -- Personal injury protection -- Discovery -- Where insurer contests reasonableness of charges, medical provider's objections to discovery seeking agreements between provider and any third-party payors, amounts reimbursed by all other payors, and information regarding provider's internal cost structure are overruled

25 Fla. L. Weekly Supp. 648b

Online Reference: FLWSUPP 2507TORRInsurance -- Personal injury protection -- Discovery -- Objections to discovery seeking all agreements between medical provider and any third-party payors, information regarding amounts reimbursed by all other payors, information regarding persons who participated in setting provider's charge at issue in case and Medicare cost report are overruled -- Discovery requested is relevant to central issue of reasonableness of provider's charge

25 Fla. L. Weekly Supp. 909a

Online Reference: FLWSUPP 2510YROSInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Discovery -- Enforcement of court orders -- Usual and customary charges in community for particular CPT Code procedures sustained -- Striking of witnesses in the event insurer fails to produce Geo-Zip report as requested

25 Fla. L. Weekly Supp. 159a

Online Reference: FLWSUPP 2502STATInsurance -- Discovery -- Orders compelling production of “Geozip” Decision Point Analysis did not constitute departure from essential requirements of law that would cause irreparable injury that cannot be remedied on appeal from final judgment

25 Fla. L. Weekly Supp. 637a

Online Reference: FLWSUPP 2507CARMInsurance -- Personal injury protection -- Discovery -- Failure to comply -- Sanctions -- Attorney's fees -- Amount of attorney's fees to be awarded as sanction for insurer's failure to respond to discovery requests and violation of court orders requiring compliance with discovery requests

25 Fla. L. Weekly Supp. 1047c

Online Reference: FLWSUPP 2512THANInsurance -- Discovery -- Failure to comply -- Sanctions -- Court strikes insurer's pleadings as sanction for intentionally and knowingly violating three discovery orders, filing discovery responses that were insufficient and non-responsive, and repeatedly filing frivolous objections to discovery

25 Fla. L. Weekly Supp. 835a

Online Reference: FLWSUPP 2509GATHInsurance -- Personal injury protection -- Discovery -- Failure to comply -- Insurer cannot object to discovery request seeking factual basis for its denial that medical treatment was necessary or related to accident on ground of “burden shifting” -- Where insurer's objections hampered medical provider's ability to obtain appropriate responses to its discovery requests and delayed its ability to prepare case for resolution, monetary sanctions are imposed

25 Fla. L. Weekly Supp. 842a

Online Reference: FLWSUPP 2509GRANInsurance -- Personal injury protection -- Discovery -- Failure to comply -- Motion to strike insurer's expert witness is granted where insurer responded to court order directing it to file fully compliant responses to medical provider's expert interrogatories by filing unverified answers and amended answers, insurer did not file verified answers until two working days before trial, and answers contained inaccurate information -- Striking witness is justified where delay in answers has prejudiced provider's ability to prepare for trial, attorney's disobedience was willful and contumacious, attorney has previously been sanctioned for this conduct, there was no reasonable justification for noncompliance, and delay caused significant problems of judicial administration

25 Fla. L. Weekly Supp. 841a

Online Reference: FLWSUPP 2509JONEInsurance -- Personal injury protection -- Discovery -- Failure to comply -- Insurer's pleadings are stricken and default judgment is entered where insurer has repeatedly failed to comply with discovery requests and ignored orders compelling compliance with those requests; insurer's conduct was willful, deliberate and contumacious; insurer and its attorneys have previously been sanctioned for similar conduct; and insurer's conduct has prejudiced medical provider and created significant problem of judicial administration

25 Fla. L. Weekly Supp. 827b

Online Reference: FLWSUPP 2509TORRInsurance -- Discovery -- Failure to comply -- Sanctions -- Insurer that failed to provide deposition dates or appear for noticed deposition is ordered to pay attorney's fees and court reporting costs

25 Fla. L. Weekly Supp. 557a

Online Reference: FLWSUPP 2506FUEN

25 Fla. L. Weekly Supp. 550c

Online Reference: FLWSUPP 2506RAMOInsurance -- Discovery -- Failure to comply -- Sanctions -- By failing to lodge timely objections to discovery, insurer waived all objections to interrogatories and request to produce other than privilege and burdensomeness -- Insurer is directed to serve discovery responses without asserting objections other than privilege and burdensomeness

25 Fla. L. Weekly Supp. 484b

Online Reference: FLWSUPP 2505BARRInsurance -- Personal injury protection -- Discovery -- Failure to comply -- Sanctions -- Where insurer has plead frivolous defenses and engaged in pattern of conduct designed to thwart discovery evincing willful, contemptuous, and contumacious disregard of rules of civil procedure and court orders, insurer has previously been sanctioned for discovery violations, and insurer's conduct has prejudiced medical provider, insurer's pleadings are stricken with respect to issues of relatedness and medical necessity of charges -- Motion to strike insurer's pleadings with respect to issue of reasonableness of charges is denied

25 Fla. L. Weekly Supp. 674a

Online Reference: FLWSUPP 2507DERIInsurance -- Personal injury protection -- Discovery -- Failure to comply -- Sanctions -- Where medical provider had failed to comply with discovery requests and two court orders on discovery although information had been available to enable compliance, provider's conduct is found to be willful and contumacious -- Provider must pay insurer's reasonable attorney's fees incurred in attempting to obtain compliance with discovery requests and is precluded from raising any objection of burdensomeness

25 Fla. L. Weekly Supp. 634a

Online Reference: FLWSUPP 2507DUSSInsurance -- Personal injury protection -- Discovery -- Failure to comply -- Contempt -- Sanctions -- Motion for sanctions against insurer that violated four court orders relating to discovery, including order to produce documents related to global settlement which medical provider's reply to insurer's answer to complaint alleges included instant PIP claim and was breached by insurer -- Violations of orders not justified by fact that multiple law firms represented insurer -- Moreover, insurer and counsel have been previously sanctioned, insurer was involved in violations as evinced by corporate representative's denial of existence of documents regarding global settlement that insurer now admits exist, delay has prejudiced provider severely and created significant problems of judicial administration, and insurer has no reasonable justification for noncompliance -- Insurer and its corporate representative are found in contempt of court -- Claim that instant PIP claim was included in global settlement is found to be established -- Insurer is prevented from opposing claim of global settlement or opposing global settlement in any way

25 Fla. L. Weekly Supp. 629a

Online Reference: FLWSUPP 2507VOEGInsurance -- Personal injury protection -- Discovery -- Failure to comply -- Contempt -- Sanctions -- Motion for sanctions against insurer that violated four court orders relating to discovery, including order to produce documents related to global settlement which medical provider's reply to insurer's answer to complaint alleges included instant PIP claim and was breached by insurer -- Violations of orders not justified by fact that multiple law firms represented insurer -- Moreover, insurer and counsel have been previously sanctioned, insurer was involved in violations as evinced by corporate representative's denial of existence of documents regarding global settlement that insurer now admits exist, delay has prejudiced provider severely and created significant problems of judicial administration, and insurer has no reasonable justification for noncompliance -- Insurer and its corporate representative are found in contempt of court -- Claim that instant PIP claim was included in global settlement is found to be established -- Insurer is prevented from opposing claim of global settlement or opposing global settlement in any way

25 Fla. L. Weekly Supp. 626a

Online Reference: FLWSUPP 2507CRAWInsurance -- Personal injury protection -- Discovery -- Failure to comply -- Sanctions -- Motion for sanctions against insurer that violated two court orders to produce documents related to global settlement which medical provider's reply to insurer's answer to complaint alleges included instant PIP claim and was breached by insurer -- Violations of orders are not justified by fact that multiple law firms represented insurer -- Insurer and counsel have been previously sanctioned, insurer was involved in violations as evinced by corporate representative's denial of existence of documents regarding global settlement that insurer now admits exist, delay has prejudiced provider severely and created significant problems of judicial administration, and insurer has no reasonable justification for noncompliance -- Insurer and its corporate representative are found in contempt of court, and claim that instant PIP claim was included in global settlement is found to be established -- Insurer is prevented from opposing claim of global settlement or opposing global settlement in any way

25 Fla. L. Weekly Supp. 623a

Online Reference: FLWSUPP 2507ACQUInsurance -- Personal injury protection -- Discovery -- Failure to comply -- Sanctions -- Motion for sanctions against insurer that violated two court orders to produce documents related to global settlement which medical provider's reply to insurer's answer to complaint alleges included instant PIP claim and was breached by insurer -- Violations of orders are not justified by fact that multiple law firms represented insurer -- Insurer and counsel have been previously sanctioned, insurer was involved in violations as evinced by corporate representative's denial of existence of documents regarding global settlement that insurer now admits exist, delay has prejudiced provider severely and created significant problems of judicial administration, and insurer has no reasonable justification for noncompliance -- Insurer and its corporate representative are found in contempt of court, and claim that instant PIP claim was included in global settlement is found to be established -- Insurer is prevented from opposing claim of global settlement or opposing global settlement in any way

25 Fla. L. Weekly Supp. 619c

Online Reference: FLWSUPP 2507CTHOInsurance -- Personal injury protection -- Discovery -- Failure to comply -- Contempt -- Sanctions -- Motion for sanctions against insurer that violated four court orders relating to discovery, including order to produce documents related to global settlement which medical provider's reply to insurer's answer to complaint alleges included instant PIP claim and was breached by insurer -- Violations of orders not justified by fact that multiple law firms represented insurer -- Moreover, insurer and counsel have been previously sanctioned, insurer was involved in violations as evinced by corporate representative's denial of existence of documents regarding global settlement that insurer now admits exist, delay has prejudiced provider severely and created significant problems of judicial administration, and insurer has no reasonable justification for noncompliance -- Insurer and its corporate representative are found in contempt of court -- Claim that instant PIP claim was included in global settlement is found to be established -- Insurer is prevented from opposing claim of global settlement or opposing global settlement in any way

25 Fla. L. Weekly Supp. 676a

Online Reference: FLWSUPP 2507ANIDInsurance -- Discovery -- Admissions -- Failure to comply -- Response to request for admissions as to genuineness of insurer's explanations of review that admits genuineness to extent that EOR is exact copy of EOR produced by insurer in response to request for production related to subject accident, claimant, and treatment, not altered by medical provider in any way, and not claimed to be privileged was insufficient -- If there are extraneous materials on face of otherwise genuine correspondence, insurer shall specify that materials are not part of original correspondence but that correspondence is otherwise genuine

25 Fla. L. Weekly Supp. 675a

Online Reference: FLWSUPP 2507NIDEInsurance -- Discovery -- Admissions -- Failure to comply -- Response to request for admissions as to genuineness of insurer's explanations of review was not sufficient where insurer did not review each EOR and make determination as to whether each was or was not a genuine copy

25 Fla. L. Weekly Supp. 534a

Online Reference: FLWSUPP 2506RIVEInsurance -- Homeowners -- Discovery -- Failure to comply -- Sanctions -- Where depositions of plaintiffs were repeatedly deliberately delayed without any credible or reasonable justification, and law firm representing plaintiffs has evidenced pattern of litigation delays and failure to comply with court orders, monetary sanction to be paid by counsel personally is imposed, and law firm is referred to Florida Bar for discipline or investigation

25 Fla. L. Weekly Supp. 983b

Online Reference: FLWSUPP 2511JASMInsurance -- Discovery -- Depositions -- Failure to comply -- Insurer that failure to timely provide deposition dates and refused to appear for noticed deposition is sanctioned

25 Fla. L. Weekly Supp. 901a

Online Reference: FLWSUPP 2510KGORInsurance -- Discovery -- Depositions -- Provider's corporate representative -- Motion for protective order on ground that corporate representative already sat for deposition granted

25 Fla. L. Weekly Supp. 812a

Online Reference: FLWSUPP 2509ACALInsurance -- Personal injury protection -- Discovery -- Depositions -- Scope of inquiry for deposition of insurer's corporate representative will include prior global settlement of expired pre-suit demands -- Insurer has waived any objection to scope of inquiry by failing to comply with time frames for providing deposition dates and objections to scope of inquiry -- Insurer is compelled to produce claim file and information and documents related to settlement issue

25 Fla. L. Weekly Supp. 183b

Online Reference: FLWSUPP 2502GUERInsurance -- Personal injury protection -- Discovery -- Depositions -- Insurer's corporate representative -- Scope of inquiry

25 Fla. L. Weekly Supp. 69a

Online Reference: FLWSUPP 2501COLEInsurance -- Personal injury protection -- Discovery -- Depositions -- Scope of inquiry and documents to be produced at deposition of insurer's corporate representative

25 Fla. L. Weekly Supp. 973a

Online Reference: FLWSUPP 2511DRA2Insurance -- Personal injury protection -- Discovery -- Depositions -- Insurer's corporate representative -- Requested deposition is reasonably calculated to lead to discovery of admissible evidence, despite insurer's contention that policy was rescinded ab initio -- Motion to compel deposition granted

25 Fla. L. Weekly Supp. 546a

Online Reference: FLWSUPP 2506TERTInsurance -- Discovery -- Failure to comply -- Sanctions -- Where insurer notified medical provider at 4:30 p.m. on day before deposition date that its claims adjuster would not be able to attend deposition, motion to compel deposition is granted and attorney's fees are awarded to provider

25 Fla. L. Weekly Supp. 576a

Online Reference: FLWSUPP 2506SHIHInsurance -- Personal injury protection -- Discovery -- Depositions -- Expert witness fee -- Treating physician is not entitled to expert witness fee for his participation in and testimony at deposition where testimony was based solely on his experiences as treating physician of the claimant

25 Fla. L. Weekly Supp. 550a

Online Reference: FLWSUPP 2506GORDCivil procedure -- Insurance -- Discovery -- Depositions -- Expert witnesses -- Treating physician is deemed an expert witness under rule 1.390 and is entitled to expert witness fee for attending deposition

25 Fla. L. Weekly Supp. 382a

Online Reference: FLWSUPP 2504WAGNInsurance -- Personal injury protection -- Discovery -- Depositions -- Motion for protective order regarding deposition of pre-litigation adjuster is granted where insurer has pending motion for summary judgment on issue of whether medical provider submitted statutorily compliant demand letter -- If motion for summary judgment fails, protective order will be lifted

25 Fla. L. Weekly Supp. 86b

Online Reference: FLWSUPP 2501MOREInsurance -- Personal injury protection -- Discovery -- Depositions -- Motion to compel deposition of pre-litigation adjuster who made determination to reduce or deny medical provider's bills, rather than claims representative or litigation adjuster offered for deposition by insurer, is granted

25 Fla. L. Weekly Supp. 837a

Online Reference: FLWSUPP 2509JMATInsurance -- Personal injury protection -- Default -- Vacation -- Due diligence -- Motion to vacate default and set aside final judgment is denied where insurer was aware of default more than six weeks prior to filing motion to vacate -- Further, motion to vacate was not filed under oath or with supporting affidavits and should be summarily denied

25 Fla. L. Weekly Supp. 761b

Online Reference: FLWSUPP 2508CGOMInsurance -- Personal injury protection -- Stay of case pending Florida Supreme Court's resolution of issue of whether policy provided sufficient notice that insurer was electing to employ Medicare fee schedules for PIP claims did not preclude litigation of issue concerning proper application of policy deductible -- Amended motion for protective order from discovery relating to this issue denied

25 Fla. L. Weekly Supp. 112a

Online Reference: FLWSUPP 2501COOPInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous election by insurer -- PIP policy that states that insurer will determine to be unreasonable any charges that exceed schedule of maximum charges and will limit reimbursement to 80% of schedule of maximum charges provides notice that insurer will limit reimbursement to statutory fee schedule and allows insurer to apply Medicare payment methodologies, including Multiple Procedure Payment Reduction, to determine appropriate amount under fee schedule -- Deductible -- Insurer properly applied statutory fee schedule to bills before applying resulting amount to deductible

25 Fla. L. Weekly Supp. 95a

Online Reference: FLWSUPP 2501COLLInsurance -- Personal injury protection -- Deductible is to be applied to 100% of reasonable and necessary medical expenses -- Because reasonableness of charges was disputed, provider is not entitled to summary judgment on count alleging insurer improperly applied deductible to reduced charges rather than to 100% of provider's bill

25 Fla. L. Weekly Supp. 815a

Online Reference: FLWSUPP 2509CHANInsurance -- Personal injury protection -- Coverage -- Emergency services -- Deductible -- Insurer erred by applying claim from emergency service provider to deductible before earlier-received claim from hospital -- Insurer was required to apply all claims, including claim from emergency service provider, to deductible in order in which they were received -- Insurer waived right to challenge reasonableness of charge where corporate representative testified that insurer was not challenging reasonableness, relatedness, or medical necessity of services

25 Fla. L. Weekly Supp. 58a

Online Reference: FLWSUPP 2501SUMMInsurance -- Personal injury protection -- Deductible -- Insurer improperly processed medical bills by applying PIP deductible out of order to otherwise compensable bills -- Standing -- Failure to attach written assignment to complaint -- Insurer waived right to assert any defects in claim submitted by plaintiff or in presuit demand letter when it failed to give any notice to plaintiff regarding alleged deficiencies -- Plaintiff emergency room physician had standing to maintain action given laws on equitable assignment, real party in interest, and as the entity that statute sought to protect -- Insurer to pay balance remaining plus interest

25 Fla. L. Weekly Supp. 54b

Online Reference: FLWSUPP 2501SOLIInsurance -- Personal injury protection -- Coverage -- Emergency services -- Deductible -- Insurer improperly processed medical bills out of order by applying deductible to bill from emergency medical provider, which was third bill received, instead of applying deductible to first bill received -- Standing -- Assignment -- Insurer has waived any right to contest provider's standing based on provider's failure to attach assignment to demand letter where insurer did not apprise provider of deficiency when it received bill and subsequent demand letter, but instead applied bill to deductible -- Provider has standing as real party in interest where provider was required by law to treat insured, insured has not made claim for provider's services, and insurer issued explanation of benefits directly to provider -- As member of class of persons that legislature intended to protect by enacting section 627.736(4)(c) requirement that PIP insurers reserve benefits for emergency service providers, provider has standing to enforce that statute

25 Fla. L. Weekly Supp. 754a

Online Reference: FLWSUPP 2508GARCInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Deductible -- No merit to argument that insurer failed to produce competent, admissible evidence that insured elected deductible where adjuster's affidavit and exhibit attests that deductible is clear term of insured's PIP policy -- Insurer improperly reduced total amount billed by medical provider to compensable expenses before applying deductible, rather than applying deductible to total amount billed

25 Fla. L. Weekly Supp. 546c

Online Reference: FLWSUPP 2506IGNAInsurance -- Personal injury protection -- Coverage -- Emergency services -- Deductible -- Insurer erred by applying bill from emergency service provider to deductible despite fact that bills from other medical providers were received before that of emergency service provider -- All claims, including those of emergency service providers, are to be applied to PIP deductible in order that they are received

25 Fla. L. Weekly Supp. 114a

Online Reference: FLWSUPP 2501DENTInsurance -- Personal injury protection -- Deductible applies to actual amount payable by the insurer and does not apply to uncovered charges -- Insurer is not required to automatically apply PIP deductible to full, face amount of provider's bills before making any determination regarding propriety of bill amount or what billed items are allowed or covered under the insurance policy

25 Fla. L. Weekly Supp. 672a

Online Reference: FLWSUPP 2507BEAUInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Deductible -- Insurer that clearly and unambiguously elected statutory fee schedules in policy appropriately applied fee schedules to medical provider's charges before applying deductible to resulting amount

25 Fla. L. Weekly Supp. 663a

Online Reference: FLWSUPP 2507AMBRInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous election by insurer -- PIP policy that states that insurer will determine to be unreasonable any charges that exceed maximum charges set forth in PIP statute and will pay no more than 80% of 200% of allowable amount under Medicare Part B clearly and unambiguously elects single method of calculating PIP benefits -- Multiple Procedure Payment Reduction is payment modifier on which insurer is entitled to rely when reimbursing PIP claims, not utilization limit -- Deductible -- Insurer properly applied fee schedule reductions to medical provider's bills before applying deductible to resulting amount

25 Fla. L. Weekly Supp. 616b

Online Reference: FLWSUPP 2507HANSInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Deductible -- Insurer properly reduced medical bills to allowable amounts before applying deductible to resulting amounts

25 Fla. L. Weekly Supp. 563a

Online Reference: FLWSUPP 2506KUPInsurance -- Personal injury protection -- Deductible -- Insurer properly applied policy deductible to reasonable covered expenses calculated pursuant to fee schedules and was not required to apply deductible first against amount billed for services rendered before applying fee schedules

25 Fla. L. Weekly Supp. 372a

Online Reference: FLWSUPP 2504NEWBInsurance -- Personal injury protection -- Deductible -- Both PIP statute and PIP policy required insurer to apply deductible to 100% of expenses and losses prior to applying fee schedule reductions

25 Fla. L. Weekly Supp. 371a

Online Reference: FLWSUPP 2504MFERInsurance -- Personal injury protection -- Deductible -- Insurer properly applied policy deductible to reasonable covered expenses calculated pursuant to fee schedules and was not required to apply deductible first against amount billed for services rendered before applying the fee schedules -- Legislature's failure to enact proposed amendments to section 627.739(2) in 2016 did not illustrate Legislature's intent to disallow insurers from applying deductible to the “covered” amount

25 Fla. L. Weekly Supp. 283a

Online Reference: FLWSUPP 2503LROMInsurance -- Personal injury protection -- Deductible -- Where insurer failed to provide clear and unambiguous notice of election to utilize permissive statutory fee schedules as method of calculating reimbursement, insurer improperly reduced charges through application of fee schedules before applying deductible to reduced amount

25 Fla. L. Weekly Supp. 827c

Online Reference: FLWSUPP 2509MCKIInsurance -- Personal injury protection -- Standing -- Declaratory judgments -- Insured who assigned PIP benefits to medical providers has standing to bring declaratory action seeking coverage declaration

25 Fla. L. Weekly Supp. 103a

Online Reference: FLWSUPP 2501ROBIInsurance -- Personal injury protection -- Declaratory actions -- Motion to dismiss complaint seeking declaration as to whether insurer can combine both reasonable amount method of reimbursement and statutory fee schedule method of reimbursement into hybrid method of reimbursement is denied -- Existence of another remedy at law through action for breach of contract does not preclude judgment for declaratory relief

25 Fla. L. Weekly Supp. 161a

Online Reference: FLWSUPP 2502MATTInsurance -- Liability -- Coverage -- Declaratory judgment -- Plaintiff who was not listed as either named insured or additional insured in policies attached to first amended complaint and who failed to allege facts which could qualify the plaintiff as an insured or additional insured under express written language of policies, cannot state cause of action for declaratory judgment regarding additional insurance coverage available to the plaintiff under the policies -- Accordingly, count against insurer must be dismissed -- Further, complaint against insurer is prohibited by Florida's non-joinder statute, which requires that a person not insured under policy obtain a settlement or verdict against insured prior to bringing an action against insurer -- Because plaintiff is not named insured or additional insured under the policies at issue and has not obtained settlement or verdict against insured, dismissal with prejudice is warranted

25 Fla. L. Weekly Supp. 670b

Online Reference: FLWSUPP 2507LEEInsurance -- Personal injury protection -- Complaint -- Amendment -- Complaint naming incorrect insurance carrier as defendant is amended to name correct insurer -- Insurer waives any defect in demand letter to extent it was addressed to wrong carrier

25 Fla. L. Weekly Supp. 668b

Online Reference: FLWSUPP 2507KJOSInsurance -- Complaint -- Amendment -- Correction of name of defendant insurer

25 Fla. L. Weekly Supp. 17a

Online Reference: FLWSUPP 2501PULTInsurance -- Commercial general liability policy -- Defective construction -- Duty to defend -- Insurer had duty to defend contractor which was listed as additional insured on CGL policy issued to subcontractor where complaint sought damages from contractor based on property damage resulting from subcontractor's work -- If complaint alleges facts which create potential coverage under policy, insurer has obligation to defend -- Untimely notice of claim -- Insurer waived right to object to coverage on basis of untimely notice where insurer received notice of claim at least three times over the course of a year, and each time the claim was denied on grounds other than late notice -- Fact that no claim was directed against subcontractor is not determinative of whether allegations of underlying complaint were sufficient to trigger duty to defend -- Allegations of complaint were sufficient to establish an “occurrence” and “property damage” which potentially were covered by policy

25 Fla. L. Weekly Supp. 897b

Online Reference: FLWSUPP 2510WEGLInsurance -- Automobile -- Windshield repair or replacement -- Final judgment entered in favor of insurer in assignee's action to recover difference between amount tendered by insurer in payment of claim, which was less than amount reflected in assignee's invoice, and amount assignee contended it was due under terms of policy where assignee failed to present evidence proving the amount due under the policy at issue

25 Fla. L. Weekly Supp. 908a

Online Reference: FLWSUPP 2510EORTInsurance -- Automobile -- Windshield repair or replacement -- Prevailing competitive price -- Although policy did not define “prevailing competitive price,” limit of liability language in policy provided that the prevailing competitive price was the price insurer could secure from a competent and conveniently located repair facility -- Partial summary judgment in favor of plaintiff is appropriate where both parties agreed that plaintiff's repair facility was both competent and conveniently located to the insured at the time of loss

25 Fla. L. Weekly Supp. 922a

Online Reference: FLWSUPP 2510FERNInsurance -- Automobile -- Windshield replacement or repair -- Prevailing competitive price -- Discovery -- Depositions -- Insurer's corporate representative -- Scope of inquiry and documents required to be produced at deposition -- Plaintiff made sufficient showing that, in context of what prices are “prevailing” and “competitive,” information regarding relationship between insurer and certain business entities was likely to lead to admissible evidence -- Discussion of relevance-based and privilege-based objections, including insurer's claim of trade secret protection

25 Fla. L. Weekly Supp. 920a

Online Reference: FLWSUPP 2510BLUEInsurance -- Automobile -- Windshield replacement or repair -- Prevailing competitive price -- Discovery -- Depositions -- Insurer's corporate representative -- Scope of inquiry and documents required to be produced at deposition -- Plaintiff made sufficient showing that, in context of what prices are “prevailing” and “competitive,” information regarding relationship between insurer and certain business entities was likely to lead to admissible evidence -- Discussion of relevance-based and privilege-based objections, including insurer's claim of trade secret protection

25 Fla. L. Weekly Supp. 833a

Online Reference: FLWSUPP 2509JJOHInsurance -- Automobile -- Windshield repair -- Declaratory judgments -- Plaintiff has stated cause of action for declaratory relief in complaint seeking interpretation of term “cost to repair or replace” in policy and declarations that appraisal provision in policy is not applicable to claim for windshield repair, that appraisal in context of claim violates prohibitive cost doctrine, and that insurer failed to select disinterested appraiser -- Motion to dismiss and compel appraisal denied, as case presents issues of contract interpretation, coverage, and standing that are beyond determination of damages -- Windshield replacement and repair is not contemplated by appraisal provision of policy requiring appraiser to determine actual cash value and amount of loss, which are not relevant to cost to repair windshield

25 Fla. L. Weekly Supp. 789a

Online Reference: FLWSUPP 2509JWILInsurance -- Automobile -- Windshield replacement or repair -- Coverage -- Plain language of policy, construed strictly against insurer and giving every provision its full meaning and operative effect, dictates that whether insurer elects to pay directly for loss or repair or replace damaged parts under loss settlement provision of policy, the limit of coverage is actual cash value of the damaged parts as determined by considering, among other things, fair market value -- Because there was genuine issue of material fact regarding actual cash value of windshield replacements in the locality at issue, trial court erred in granting summary judgment in favor of insurer

25 Fla. L. Weekly Supp. 306b

Online Reference: FLWSUPP 2504LYONInsurance -- Automobile -- Error to enter summary judgment in favor of insurer in action by auto repair shop for additional repairs to insured's vehicle that were performed pursuant to shop's supplemental estimate after insurer paid benefits pursuant to its own estimate where repair shop was not bound by provision requiring pre-approval of all estimates, which was included in insurer's estimate but was not included in policy -- Further, summary judgment was precluded by outstanding issues of material fact with respect to whether insurer's estimate would fully pay for loss

25 Fla. L. Weekly Supp. 983a

Online Reference: FLWSUPP 2511JREYInsurance -- Automobile -- Jurisdiction -- County court -- No merit to argument that county court lacks subject matter jurisdiction over claim for property damage benefits because combination of all coverages available under policy, including PIP benefits not at issue, exceeds jurisdictional limits of county court -- Motion to dismiss is denied

25 Fla. L. Weekly Supp. 402c

Online Reference: FLWSUPP 2505DOUGInsurance -- Automobile -- Property damage -- Trial court erred in entering summary judgment in favor of insurer in action alleging insurer breached contract by denying coverage for damages sustained when “simulated convertible roof top” blew off vehicle based on policy's “normal wear and tear” exclusion where genuine issues of material fact existed as to cause of the loss

25 Fla. L. Weekly Supp. 368a

Online Reference: FLWSUPP 2504KUROInsurance -- Automobile -- Declaratory action -- Coverage -- Diminished value of repaired vehicle -- Insurer's contention that policy does not cover diminished value claim violates Florida Financial Responsibility Law, and any policy provisions that support that contention would be rendered invalid -- Where policy provides coverage for “all damages” to property and does not define damages or include specific exclusion for diminished value claims, insurer must provide coverage for diminished value claim

25 Fla. L. Weekly Supp. 382b

Online Reference: FLWSUPP 2504NODAInsurance -- Automobile -- Summary judgment in favor of insurer is precluded by factual questions as to whether rental car expenses arose as consequence of insurer's denial of coverage based on material misrepresentation and whether those damages should be covered under rental reimbursement provision of policy or as consequential damages under property damage provision of policy

25 Fla. L. Weekly Supp. 388a

Online Reference: FLWSUPP 2504FOUNInsurance -- Personal injury protection -- Demand letter -- Where insurer paid overdue claim within 30 days of receipt of demand letter but made check payable to medical provider rather than payee specified in demand letter, insurer is immune from suit pursuant to section 627.736(10)(d) -- Attorney's fees -- Confession of judgment -- Even if court did not find that insurer was immune from suit based on initial payment, re-issuance of payment to specified payee after 30-day grace period and on same day suit was filed would not be considered confession of judgment where insurer had already demonstrated intent to comply with policy obligations by issuance of original check, and provider was not forced to sue to receive benefits

25 Fla. L. Weekly Supp. 758a

Online Reference: FLWSUPP 2508ANDEInsurance -- Attorney's fees -- Sanctions -- Court awards attorney's fees as sanction for insurer's failure to timely file court-ordered response to medical provider's motion for attorney's fees and statement of attorney time and timely respond to request for statement of insurer's hours billed, necessitating filing of two motions

25 Fla. L. Weekly Supp. 670a

Online Reference: FLWSUPP 2507SANTInsurance -- Personal injury protection -- Attorney's fees -- Proposal for settlement -- Striking -- Because neither offer of judgment statute nor rule 1.442 applies to post-judgment proceedings, proposal for settlement served in attorney's fees proceeding is stricken

25 Fla. L. Weekly Supp. 830a

Online Reference: FLWSUPP 2509DUCKAttorney's fees -- Proposal for settlement -- Neither section 768.79 nor rule 1.442 applies to post-judgment proceedings following an adjudication on the merits -- Motion to strike plaintiff's proposal for settlement granted

25 Fla. L. Weekly Supp. 136a

Online Reference: FLWSUPP 2502TRUDAttorney's fees -- Proposal for settlement -- Trial court did not err in denying insured's claim for attorney's fees under section 768.79 based on insurer's rejection of insured's proposal for settlement of ongoing litigation over amount of attorney's fees awardable to insured under section 627.428 following insured's successful action against insurer -- Insured could not recover fees incurred in litigating amount of fees

25 Fla. L. Weekly Supp. 572a

Online Reference: FLWSUPP 2506SHRIInsurance -- Personal injury protection -- Attorney's fees -- Proposal for settlement -- Action brought by insured to determine whether alleged material misrepresentation precluded coverage was not civil action for damages within meaning of offer of judgment statute -- Section 627.428 does not provide basis for award of attorney's fees to insurer -- Insurer is entitled to award of costs under section 86.081, which allows award of costs in declaratory judgment actions as are equitable

25 Fla. L. Weekly Supp. 895a

Online Reference: FLWSUPP 2510LDAVInsurance -- Homeowners -- Attorney's fees -- Proposal for settlement -- Where court granted motion to dismiss homeowners' complaint against insurer, finding no coverage for loss, insurer is entitled to award of attorney's fees based on unambiguous proposals for settlement made in good faith to each homeowner

25 Fla. L. Weekly Supp. 91a

Online Reference: FLWSUPP 2501FRANAttorney's fees -- Insurance -- Personal injury protection -- Provider is entitled to attorney's fees incurred in action against insurer for failure to pay statutory penalty when it paid claim following receipt of plaintiff's demand letter -- Court rejects insurer's argument that penalty is not the recovery of insurance benefits under the policy that would trigger award of attorney's fees pursuant to section 627.428

25 Fla. L. Weekly Supp. 113a

Online Reference: FLWSUPP 2501ANSOInsurance -- Personal injury protection -- Med Pay -- Declaratory actions -- Motion to dismiss action seeking declaration as to whether insurer paid claims pursuant to hybrid method rather than reasonable amount method or statutory fee schedule, whether insurer was entitled to do so or was required to use either fee schedule or reasonable amount method, and whether insurer was entitled to rely on Multiple Procedure Payment Reduction is denied where complaint properly sets out matter for determination within contemplation of declaratory judgment statutes -- Declaratory judgment is not precluded merely because another adequate remedy is available -- Motion to strike medical provider's claim for attorney's fees and costs is denied where motion is premature when court has not yet entered judgment or decree that might entitle provider to fee award -- No merit to argument that recovery of attorney's fees and costs under section 627.428 is limited to cases in which plaintiff recovers benefits

25 Fla. L. Weekly Supp. 573b

Online Reference: FLWSUPP 2506RAMIInsurance -- Attorney's fees -- Proposal for settlement -- Nominal proposal for settlement was reasonable and made in good faith where medical provider filed suit against wrong insurance carrier -- Defendant carrier is entitled to recover attorney's fees and costs against provider that voluntarily dismissed suit

25 Fla. L. Weekly Supp. 490a

Online Reference: FLWSUPP 2505ARIEInsurance -- Attorney's fees -- Proposal for settlement -- Service by e-mail -- Where insurer's proposal for settlement was not served on medical provider by e-mail as required by rule 2.516, insurer failed to satisfy requirement of rule 1.442 that proposal be served on provider -- Furthermore, nominal proposal was not made in good faith where, although insurer ultimately prevailed, its likelihood of success was no more than 50-50 -- Insurer's motion for attorney's fees is denied

25 Fla. L. Weekly Supp. 503a

Online Reference: FLWSUPP 2506SALAInsurance -- Personal injury protection -- Attorney's fees -- Proposal for settlement -- Good faith -- Nominal offer -- Insurer's nominal offer was made in good faith where proposal for settlement was served after insurer had reviewed police report of accident at issue which showed that accident occurred prior to time coverage became bound and effective -- Trial court erred in denying insurer's motion for attorney's fees after jury returned verdict finding claimant was not insured at time of accident

25 Fla. L. Weekly Supp. 414a

Online Reference: FLWSUPP 2505MESAInsurance -- Personal injury protection -- Attorney's fees -- Proposal for settlement -- Insurer prevailing on ground that presuit demand letter was defective -- Trial court erred in denying insurer's motion for attorney's fees based on provider's rejection of proposed settlement without finding that proposal for settlement was not made in good faith

25 Fla. L. Weekly Supp. 291c

Online Reference: FLWSUPP 2503QUESInsurance -- Personal injury protection -- Attorney's fees -- Confession of judgment -- Although confession of judgment by payment of postage and statutory penalty is not generally recovery of PIP benefits that entitles a plaintiff to award of attorney's fees, insurer that incorporated requirement to pay penalty into PIP policy converted statutory obligation into contractual obligation -- Medical provider that obtained confession of judgment for contractually obligated penalty prevailed on claim for PIP benefits and is entitled to fee award under section 627.428

25 Fla. L. Weekly Supp. 909b

Online Reference: FLWSUPP 2510JSMIInsurance -- Personal injury protection -- Attorney's fees -- Postage and penalties -- Although final judgment awarding postage and statutory penalty is not generally recovery of PIP benefits that entitles plaintiff to award of attorney's fees, insurer that incorporated requirement to pay penalty into PIP policy converted statutory obligation into contractual obligation -- Medical provider that obtained judgment for contractually obligated penalty prevailed on claim for PIP benefit and is entitled to fee award under section 627.428

25 Fla. L. Weekly Supp. 903a

Online Reference: FLWSUPP 2510PEREInsurance -- Personal injury protection -- Attorney's fees -- Where insurer paid reduced amount on PIP claim in response to demand letter without paying statutory penalty and postage, forcing medical provider to file suit for penalty and postage, insurer's post-suit payment of penalty and postage is confession of judgment entitling provider to award of attorney's fees -- Because provisions of PIP statute are incorporated into every PIP policy, any penalties and damages provided for in statute become part of policy, and recovery of those penalties and damages entitles insured to attorney's fees under section 627.428

25 Fla. L. Weekly Supp. 900a

Online Reference: FLWSUPP 2510RODRInsurance -- Personal injury protection -- Attorney's fees -- Provider/assignee was entitled to award of attorney's fees incurred in obtaining payment of overdue statutory penalty and postage

25 Fla. L. Weekly Supp. 477a

Online Reference: FLWSUPP 2505MOREInsurance -- Personal injury protection -- Attorney's fees -- Postage and penalties -- Provider who filed suit to recover benefits and statutory postage and penalty after insurer responded to demand letter by paying reduced amount, without postage and penalty, was entitled to prevailing party attorney's fees based on insurer's in-suit confession of judgment that provider was entitled to payment for postage and penalty

25 Fla. L. Weekly Supp. 513g

Online Reference: FLWSUPP 2506BURKInsurance -- Personal injury protection -- Attorney's fees -- Where insurer declined to pay based on claim that insured made material misrepresentation in her policy application, trial court did not err in awarding attorney's fees and costs incurred in proving validity of policy

25 Fla. L. Weekly Supp. 84a

Online Reference: FLWSUPP 2501CHAVAttorney's fees -- Proposal for settlement -- Insurance -- Personal injury protection -- Insurer's nominal proposal for settlement, which included $1.00 for medical benefits and $1.00 for plaintiff's attorney's fees and costs, was made in good faith -- Insurer entitled to award of attorney's fees where plaintiff did not respond within required 30-day period and final summary judgment finding zero liability was entered in favor of insurer

25 Fla. L. Weekly Supp. 968b

Online Reference: FLWSUPP 2511BRACInsurance -- Small claims -- Offer of judgment -- Because section 768.79(1) provides that defendants may file offer of judgment in any civil action for damages but fails to provide a procedure for doing so, court has no discretion but to invoke Rule 1.442 in case filed under small claims rules

25 Fla. L. Weekly Supp. 495a

Online Reference: FLWSUPP 2505MONAInsurance -- Attorney's fees -- Offer of judgment -- Award of attorney's fees under offer of judgment statute requires either adjudication on merits or dismissal with prejudice -- Voluntary dismissal without prejudice does not trigger entitlement to attorney's fees under statute, even when statute of limitations had expired prior to entry of voluntary dismissal

25 Fla. L. Weekly Supp. 179a

Online Reference: FLWSUPP 2502PANInsurance -- Personal injury protection -- Attorney's fees -- Claim or defense not supported by material facts or applicable law -- Timeliness of motion -- Rule 1.525 requirement that motion for attorney's fees be filed within 30 days after judgment, if applicable to motion for sanctions under section 57.105, was satisfied where motion for sanctions was filed years before entry of judgment

25 Fla. L. Weekly Supp. 665b

Online Reference: FLWSUPP 2507BUCHInsurance -- Personal injury protection -- Attorney's fees -- Claim or defense not supported by material facts or applicable law -- Where insurer has provided no evidence that complaint in voluntarily dismissed action for PIP benefits was frivolous other than self-serving statement that benefits were correctly paid in accordance with policy endorsement and statutory fee schedules, insurer is not entitled to award of attorney's fees under section 57.105

25 Fla. L. Weekly Supp. 487a

Online Reference: FLWSUPP 2505OBANAttorney's fees -- Insurance -- Insurer is entitled to recover section 57.105 attorney's fees from inception of case where plaintiff and plaintiff's attorneys knew or should have known that lawsuit was not supported by material facts necessary to establish claim when initially filed, as claimant did not receive medical treatment within 14 days of accident giving rise to claim

25 Fla. L. Weekly Supp. 482b

Online Reference: FLWSUPP 2505LEIVInsurance -- Personal injury protection -- Attorney's fees -- Medical provider's notice of filing voluntary dismissal, which was filed after hearing on insurer's motion for summary judgment and after court entered final summary judgment in favor of insurer and which was never ratified by court, is legal nullity -- Proposal for settlement -- Where PIP policy limits were exhausted before provider filed suit, insurer's nominal proposal for settlement was good faith offer entitling insurer to attorney's fees and costs under offer of judgment statute -- Claim or defense not supported by material facts or applicable law -- Where insurer put provider on notice of binding precedent regarding exhaustion of benefits, and provider's decision to proceed with case was not good faith attempt to modify existing law, insurer is entitled to award of attorney's fees under section 57.105

25 Fla. L. Weekly Supp. 979c

Online Reference: FLWSUPP 2511WAGNInsurance -- Personal injury protection -- Demand letter -- Insurer's motion for summary judgment for failure to serve statutorily compliant demand letter is granted -- Medical provider's motion to abate and file “corrective” demand letter is denied -- Insurer was not required to plead entitlement to attorney's fees where it is seeking fees as sanction under section 57.105; insurer properly asserted claim for fees in motion

25 Fla. L. Weekly Supp. 970a

Online Reference: FLWSUPP 2511PROBInsurance -- Personal injury protection -- Attorney's fees -- Claim or defense not supported by material facts or applicable law -- Insurer that obtained summary judgment in PIP suit due to defective demand letter that failed to take into account prior partial payments made by insurer is entitled to award of attorney's fees under section 57.105

25 Fla. L. Weekly Supp. 139a

Online Reference: FLWSUPP 2502PANIAttorney's fees -- Justiciable issues -- Claim or defense unsupported by material facts or applicable law -- Insurance -- Personal injury protection -- Trial court's order awarding attorney's fees and costs in favor of insurer under section 57.105 lacked requisite findings -- Provider's motion for attorney's fees pursuant to section 627.428 denied

25 Fla. L. Weekly Supp. 14b

Online Reference: FLWSUPP 2501PANINOT FINAL VERSION OF OPINION
Subsequent Changes at 25 Fla. L. Weekly Supp. 139aAttorney's fees -- Justiciable issues -- Claim or defense unsupported by material facts or applicable law -- Insurance -- Personal injury protection -- Trial court's order awarding attorney's fees and costs in favor of insurer under section 57.105 lacked requisite findings -- Provider's motion for attorney's fees pursuant to section 627.428 denied

25 Fla. L. Weekly Supp. 182a

Online Reference: FLWSUPP 2502BONEInsurance -- Attorney's fees -- Discovery -- Billing records of opposing counsel -- If insurer disputes reasonableness of amount of time claimed by medical provider, it must produce timesheets of its own counsel for every stage of litigation