Volume 27

27 Fla. L. Weekly Supp. 373a

Online Reference: FLWSUPP 2704BEITInsurance -- Property -- Attorney's fees -- Where insureds filed voluntary dismissal of suit less than 24 hours before hearing on insurer's motion for summary judgment, to which insureds had offered no opposing evidence, dismissal was at stage of litigation equivalent to summary judgment, and insureds had no absolute right to voluntary dismissal -- Allowing insureds to avoid liability for attorney's fees and costs by strategic move of voluntarily dismissing suit on eve of summary judgment and re-filing action before another judge would be grossly inequitable -- Insurer's motion for final summary judgment is granted, and voluntary dismissal is stricken

27 Fla. L. Weekly Supp. 255a

Online Reference: FLWSUPP 2703PADRInsurance -- Property -- Coverage -- Conditions precedent -- Compliance with post-loss obligations -- Insureds who provided sworn proof of loss that stated the amount of damage to building and total loss were “to be determined” and who provided no records regarding repair expenses failed to satisfy conditions precedent requiring sworn proof of loss and estimate of claim prior to litigation -- Defendant's motion for final summary judgment granted

27 Fla. L. Weekly Supp. 417a

Online Reference: FLWSUPP 2704OCTEInsurance -- Property -- Coverage -- Insured's action against insurer, which was dismissed for failure to comply with court orders, is not dispositive of action against insurer by assignee of insured -- Plaintiff has separate right to prove that damage to property and services it provided are covered under policy -- Where insurer met its prima facie burden of proof as to affirmative defense that damage was not a covered loss under policy, and plaintiff generally disputed insurer's coverage determination but presented no affidavit or evidence supporting that position, summary judgment is entered in favor of insurer

27 Fla. L. Weekly Supp. 800a

Online Reference: FLWSUPP 2707PARKInsurance -- Personal injury protection -- Venue -- Forum selection clause -- Petition for writ of certiorari challenging order denying transfer of venue is granted -- Trial court departed from essential requirements of law in concluding that insurer failed to submit competent substantial evidence of insured's address sufficient to enforce mandatory forum selection clause establishing venue in county where insured lived at time of accident -- Policy, which was admitted at hearing as a business record, represented competent substantial evidence of insured's county of residence -- Order resulted in irreparable injury to insurer for which remedy on plenary appeal is insufficient

27 Fla. L. Weekly Supp. 802a

Online Reference: FLWSUPP 2709PARKInsurance -- Venue -- Appeals -- Mootness -- Vacation of appellate opinion -- Joint motion to vacate appellate opinion alleging that, as a result of the parties' settlement agreement, the appeal is moot and subject to dismissal -- Court denies motion where issues raised are likely to recur and appellate opinion rendered has precedential value -- Court also denies insured's individual motion to vacate or alternative motion for rehearing which alleged that insured's address contained in insurance policy is insufficient to establish insured's address at time of accident without further evidence that the address had not been updated before the accident -- Argument was already made and considered by the court

27 Fla. L. Weekly Supp. 889b

Online Reference: FLWSUPP 2710RODRInsurance -- Personal injury protection -- Continuance -- Pending discovery -- Denial -- Motion to continue summary judgment hearing to allow insurer to depose claimant is denied -- Insurer has had ample opportunity to depose claimant in seven years that case has been in litigation

27 Fla. L. Weekly Supp. 727a

Online Reference: FLWSUPP 2708JPERInsurance -- Personal injury protection -- Small claims -- Motion to invoke rules of civil procedure is granted -- Failure to invoke rule 1.442 would render meaningless provision of PIP statute making offer of judgment statute applicable

27 Fla. L. Weekly Supp. 838a

Online Reference: FLWSUPP 2709PIERInsurance -- Personal injury protection -- Voluntary dismissal without prejudice filed after trial court granted summary dismissal in favor of medical provider is nullity -- Fact that two years have passed between filing of motion for voluntary dismissal and hearing on motion to strike voluntary dismissal is inconsequential where voluntary dismissal is void -- Motion to strike is granted -- Where trial court granted final judgment in favor of medical provider, finding that insurer had not properly elected use of statutory fee schedules, insurer filed motion for rehearing and action was stayed pending resolution of issue by Florida Supreme Court which has now issued decision in Orthopedic Specialists determining that insurer's policy language was sufficient to elect use of fee schedules, renewed motion for rehearing is granted and judgment is entered in favor of insurer

27 Fla. L. Weekly Supp. 193a

Online Reference: FLWSUPP 2702GREEInsurance -- Personal injury protection -- Motion to amend answer and affirmative defenses to include counterclaim for declaratory relief and third-party claim against named insured, seeking declaration that PIP policy was void ab initio due to misrepresentation on application, is denied, as insurer can secure complete relief in breach of contract action -- Proposed counterclaim is untimely under rule 7.100 -- Proposed third-party complaint against named insured does not comply with rule 7.100(e) where it fails to state how named insured would be liable to insurer for any part of claim of plaintiff/medical provider, an assignee of an omnibus insured

27 Fla. L. Weekly Supp. 291a

Online Reference: FLWSUPP 2703MONKInsurance -- Personal injury protection -- Coverage -- Conditions precedent -- Examination under oath -- Failure to attend -- EUO notice sent to insured's attorney constitutes effective notice to insured -- Neither PIP statute nor policy requires insurer to give insured multiple opportunities to attend EUO -- No merit to argument that EUO scheduled more than thirty days after notice of loss was per se unreasonable where thirty-day period for investigation and payment of claim does not begin until insurer has received both notice of fact of loss and notice of amount of loss, and insurer did not receive medical provider's first bill providing notice of amount of loss until two months after insured had already failed to attend EUO

27 Fla. L. Weekly Supp. 980a

Online Reference: FLWSUPP 2711RPERInsurance -- Personal injury protection -- Examination under oath -- Failure to attend -- Where insurer's request for EUO was made more than 30 days after it received medical bills, request was untimely

27 Fla. L. Weekly Supp. 203a

Online Reference: FLWSUPP 2707NEWSInsurance -- Personal injury protection -- Examination under oath -- Failure to attend -- Insurer's request for EUO ninety days after receiving claim was untimely -- Partial summary judgment is granted in favor of medical provider on affirmative defense of failure to attend EUO

27 Fla. L. Weekly Supp. 667a

Online Reference: FLWSUPP 2708ARNAInsurance -- Personal injury protection -- Discovery -- Appeals -- Certiorari -- Petitions seeking certiorari review of orders that merely require in camera review of documents and do not order production of those documents to opposing party are dismissed as premature

27 Fla. L. Weekly Supp. 296a

Online Reference: FLWSUPP 2703DMARInsurance -- Personal injury protection -- Demand letter -- Sufficiency -- Demand letter with attached itemized statement complied with PIP statute -- No merit to claim that demand letter was premature because provider did not respond to insurer's request for documentation where explanation of reimbursement that disputed timeliness of bills but did not request any documentation regarding reasonableness charges or necessity of treatment is not valid request and, even if valid, request that was issued more than 30 days after receipt of bills was untimely -- No merit to claim that demand letter is premature because insurer did not receive bills for all charges demanded where it is only relevant that provider sent bills, not whether insurer received bills, and record shows that insurer did receive bills

27 Fla. L. Weekly Supp. 646b

Online Reference: FLWSUPP 2707PRADInsurance -- Personal injury protection -- Demand letter -- Demand letter defense is not appropriate for summary judgment where insurer raised invalid demand letter defense in initial answer, but failed to raise defense in second answer and filed notice of withdrawal of demand letter defense -- Insurer's motion for leave to amend affirmative defenses to include demand letter defense is denied without prejudice

27 Fla. L. Weekly Supp. 89a

Online Reference: FLWSUPP 2701ORTAInsurance -- Personal injury protection -- Demand letter -- Where demand letter was served upon incorrect corporate designee, summary judgment is entered in favor of insurer

27 Fla. L. Weekly Supp. 1049a

Online Reference: FLWSUPP 2712WATEInsurance -- Personal injury protection -- Demand letter -- Insured failed to comply with condition precedent to filing suit by serving demand letter before claims became overdue -- Because defective demand letter cannot be cured by passage of time, complaint must be dismissed without prejudice, not abated

27 Fla. L. Weekly Supp. 974a

Online Reference: FLWSUPP 2711RUBIInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Demand letter -- Sufficiency -- Demand letter is required to strictly comply with requirements of section 627.736(10) -- Where there are inconsistencies between amount demanded in letter and amount due reflected in attached ledger, letter does not strictly or substantially comply with statutory requirements -- Insurer did not waive defenses based on demand letter where insurer explicitly reserved right to raise additional defenses in response to letter -- Dismissal of action, not abatement, is appropriate remedy for deficient demand letter

27 Fla. L. Weekly Supp. 489a

Online Reference: FLWSUPP 2705MYRTInsurance -- Personal injury protection -- Demand letter -- Where demand letter failed to account for payment of 80% of charges by insurer, which constituted full amount demanded in letter, and after filing suit medical provider sought 100% of charges, letter does not satisfy condition precedent

27 Fla. L. Weekly Supp. 93a

Online Reference: FLWSUPP 2701SPIEInsurance -- Personal injury protection -- Demand letter -- Sufficiency -- PIP statute does not require that demand letter state exact amount owed by insurer -- Letter that identified provider and insured, stated that it was seeking medical benefits, and included an assignment of benefits and billing ledger that specified each date of service, service provided, and amount billed complied with statute

27 Fla. L. Weekly Supp. 62a

Online Reference: FLWSUPP 2701FOREInsurance -- Personal injury protection -- Demand letter -- Sufficiency -- PIP statute does not require that demand letter state exact amount owed by insurer

27 Fla. L. Weekly Supp. 1048a

Online Reference: FLWSUPP 2712MCFAInsurance -- Personal injury protection -- Demand letter -- Sufficiency -- By attaching itemized statement to demand letter, medical provider satisfied statutory condition precedent of section 627.736(10) -- PIP statute does not require that demand letter state exact amount owed by insurer -- Demand letter is not invalid for stating amount that differs from jurisdictional amount set forth in statement of claim of later-filed suit

27 Fla. L. Weekly Supp. 479a

Online Reference: FLWSUPP 2705IVIECriminal law -- Driving under influence -- Search and seizure -- Blood draw -- Consent -- Where defendant gave consent for blood draw, defendant's subsequent attempt to thwart testing of blood samples by withdrawing her consent after blood samples were taken was ineffective -- Motion to suppress is denied

27 Fla. L. Weekly Supp. 314c

Online Reference: FLWSUPP 2703EMILInsurance -- Personal injury protection -- Where PIP case was litigated to final judgment in favor of medical provider on sole issue of sufficiency of insurer's policy language to elect use of statutory fee schedules for reimbursement of PIP benefits, final judgment was reversed and remanded upon issuance of the Florida Supreme Court's opinion in Orthopedic Specialists, and provider raised issue regarding application of deductible only after appellate case was decided adversely to provider's position, motion to strike provider's motion for summary judgment on deductible issue is granted and summary judgment is entered in favor of insurer

27 Fla. L. Weekly Supp. 1050a

Online Reference: FLWSUPP 2712OLIVInsurance -- Personal injury protection -- Coverage -- Rental vehicle involved in accident outside of Florida -- Where claimant was involved in accident in rental vehicle driven by her resident relative outside of Florida, renter was not titled owner of vehicle, and vehicle was not subject of lease with option to purchase or security agreement, rental company is not required to provide PIP coverage to renter or passengers under PIP statute's limitations on coverage for accidents occurring outside state

27 Fla. L. Weekly Supp. 1008b

Online Reference: FLWSUPP 2712SAUVInsurance -- Personal injury protection -- Inconsistent jury verdict -- Trial court erred in denying insurer's objection to inconsistent verdict finding more treatments to be related and medically necessary than were shown in medical records -- Failure of trial court to send matter back to jury to correct verdict requires new trial

27 Fla. L. Weekly Supp. 127b

Online Reference: FLWSUPP 2702ETIENOT FINAL VERSION OF OPINION
Subsequent Changes at 27 Fla. L. Weekly Supp. 345aInsurance -- Personal injury protection -- Coverage -- Owner of vehicle for which security was required by law -- Trial court erred in ruling that vehicle owned by injured claimant did not have to be registered and insured at time of accident because vehicle was parked awaiting resale and was no longer being driven at that time -- Law required that security be maintained on vehicle that had been driven on roads of state continuously throughout registration or licensing period that extended through date of accident

27 Fla. L. Weekly Supp. 853a

Online Reference: FLWSUPP 2710PHERInsurance -- Personal injury protection -- Coverage -- Owner of vehicle for which security was required by law -- To prove policy exclusion for person who owned vehicle for which security was required by law, insurer was required to prove that vehicle was actually operated on roads of state during relevant registration period, not mere operability -- Error to enter summary judgment in favor of insurer where insurer failed to prove what registration period was during relevant time or that vehicle owned by claimant was actually operated during that period

27 Fla. L. Weekly Supp. 384a

Online Reference: FLWSUPP 2704CAMPInsurance -- Personal injury protection -- Coverage -- Owner of vehicle for which security was required by law -- Registration and security was not required for vehicle owned by claimant/passenger where claimant did not operate vehicle on roads of state prior to accident at issue -- Claimant was covered under insured's PIP policy

27 Fla. L. Weekly Supp. 73b

Online Reference: FLWSUPP 2701DAVIInsurance -- Personal injury protection -- Venue -- Forum selection clause

27 Fla. L. Weekly Supp. 831b

Online Reference: FLWSUPP 2709ZHERInsurance -- Personal injury protection -- Where parties stipulated that sole legal issue to be resolved in case is sufficiency of insurer's policy language to elect use of statutory fee schedules for reimbursement of PIP benefits, which issue has been resolved by Florida Supreme Court decision in Orthopedic Specialists, and medical provider raised unpled deductible issue only after appellate case was decided adversely to provider's position, motion to strike or exclude unpled issues is granted -- Final judgment is entered in favor of insurer

27 Fla. L. Weekly Supp. 316a

Online Reference: FLWSUPP 2703HANSInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Medicare fee schedule in place on March 1, 2014, applies for full 12-month period and is applicable to services rendered in February 2015 -- Where PIP policy provides that charge submitted for amount less than allowable amount under Medicare Part B fee schedule shall be paid in amount of charge submitted, insurer properly applied entire amount of charge to 200% of allowable amount under fee schedule and then subjected it to coinsurance provision of policy

27 Fla. L. Weekly Supp. 130a

Online Reference: FLWSUPP 2702JPERInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Election by insurer

27 Fla. L. Weekly Supp. 305a

Online Reference: FLWSUPP 2703PLATInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous election by insurer -- PIP policy that limits reimbursement to 200% of allowable amount under Medicare Part B fee schedules clearly and unambiguously elects to limit reimbursement to statutory fee schedules

27 Fla. L. Weekly Supp. 414a

Online Reference: FLWSUPP 2704GOLDInsurance -- Personal injury protection -- Where trial court granted final judgment in favor of medical provider, finding that insurer had not properly elected use of statutory fee schedules, and, while action was pending in district court of appeal, Florida Supreme Court issued decision in Orthopedic Specialists determining that insurer's policy language was sufficient to elect use of fee schedules, provider's argument on remand from district court of appeal that issue of alleged misapplication of deductible remains to be litigated and prevents entry of final judgment in favor of insurer is rejected -- Provider who prosecuted action to final adjudication on merits of sole issue presented to trial court abandoned any other claims it may have had and is prohibited from raising any other issue -- Final summary judgment is entered in favor of insurer

27 Fla. L. Weekly Supp. 781a

Online Reference: FLWSUPP 2709WELLInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous election by insurer -- PIP policy that stated that medical benefits would be limited to 80% of “following schedule of maximum charges” and then specifically referenced 200% of allowable amount under Medicare Part B fee schedule, clearly and unambiguously elected to limit reimbursement to permissive statutory fee schedule

27 Fla. L. Weekly Supp. 638a

Online Reference: FLWSUPP 2707ODONInsurance -- Personal injury protection -- Stay -- Denial -- Motion to stay PIP case pending resolution by Florida Supreme Court of certified question as to whether 2013 PIP statute permits insurer to limit payment to 80% of reasonable charges while also limiting payment to 80% of statutory fee schedule is denied where district court of appeal that certified question focused on whether language of the policy before it permitted both methods of reimbursement

27 Fla. L. Weekly Supp. 637a

Online Reference: FLWSUPP 2707NORTInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous election by insurer -- Motion to stay proceedings pending Florida Supreme Court's resolution of question certified by district court of appeal denied -- Because there are material differences between the certified question and the issue before the court in the instant case, it is clear that Florida Supreme Court's decision will not affect outcome of lawsuit

27 Fla. L. Weekly Supp. 593a

Online Reference: FLWSUPP 2707PHERInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous election by insurer -- PIP policy that expressly gives insurer discretion to alternate between reasonableness method and permissive statutory fee schedule method of reimbursement is ambiguous and fails to provide clear notice of election of fee schedule method of reimbursement -- Remand with instructions to enter summary judgment in favor of medical provider

27 Fla. L. Weekly Supp. 607a

Online Reference: FLWSUPP 2707ILIEInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous election by insurer -- Declaratory action -- Where PIP policy provides that insurer will determine to be unreasonable any charges that exceed maximum charges set forth in PIP statute and will limit reimbursement to 80% of schedule of maximum charges, trial court erred in determining that policy did not clearly and unambiguously elect statutory fee schedules and created hybrid methodology of calculating reimbursement -- Approval of policy by Office of Insurance Regulation is not mandatory for election of fee schedules to be valid -- Failure of policy to incorporate statutory language prohibiting utilization limits does not render policy ambiguous -- Statement of intent to utilize CMS coding policies does not render PIP policy ambiguous in absence of any evidence that utilizing coding policies violated statutory prohibition of utilization limits -- Remand to enter judgment for insurer

27 Fla. L. Weekly Supp. 562a

Online Reference: FLWSUPP 2706JOSEInsurance -- Personal injury protection -- Coverage -- Where there is conflict between PIP statute and policy regarding which Medicare fee schedule to use to determine amount of reimbursement, policy language that provides for higher amount of reimbursement controls

27 Fla. L. Weekly Supp. 899a

Online Reference: FLWSUPP 2710MONTInsurance -- Personal injury protection -- Provider's action against insurer -- Standing -- Corporations -- Medical provider that is administratively dissolved corporation may bring action for unpaid PIP benefits in its own name where action is necessary for provider to wind up its business

27 Fla. L. Weekly Supp. 897a

Online Reference: FLWSUPP 2710MAESInsurance -- Personal injury protection -- Provider's action against insurer -- Standing -- Corporations -- Medical provider that is administratively dissolved corporation may bring action for unpaid PIP benefits in its own name where action is necessary for provider to wind up its business

27 Fla. L. Weekly Supp. 433b

Online Reference: FLWSUPP 2705TRINInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Multiple Procedure Payment Reduction is coding policy/payment methodology and not utilization limit

27 Fla. L. Weekly Supp. 19a

Online Reference: FLWSUPP 2701LASAInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Multiple Procedure Payment Reduction is a coding policy/payment methodology and not an improper utilization limit -- Insurer was not prohibited from using Medicare coding policies and payment methdologies of the CMS and applicable modifiers where policy clearly and unambiguously elected statutory fee schedule, and plain language of policy met notice requirements of Virtual Imaging and policy complied with statutory notice provision

27 Fla. L. Weekly Supp. 289a

Online Reference: FLWSUPP 2703PERRInsurance -- 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, and pay no more than, 80% of 200% of allowable amount under Medicare Part B participating physicians fee schedule satisfies requirement to give “simple notice” of intent to utilize Medicare fee schedule -- Applying Multiple Procedure Payment Reduction is not utilization limit prohibited by PIP statute -- Affidavit filed by medical provider in support of argument that there are additional dates of service that were not reimbursed by insurer is insufficient to defeat summary judgment where there are no bills or medical records attached to verify claims made in affidavit, and affidavit contains hearsay allegations -- Summary judgment is entered in favor of insurer

27 Fla. L. Weekly Supp. 286a

Online Reference: FLWSUPP 2703COLSInsurance -- 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, and pay no more than, 80% of 200% of allowable amount under Medicare Part B participating physicians fee schedule satisfies requirement to give “simple notice” of intent to utilize Medicare fee schedule -- Applying Multiple Procedure Payment Reduction is not utilization limit prohibited by PIP statute -- Summary judgment is entered in favor of insurer

27 Fla. L. Weekly Supp. 93b

Online Reference: FLWSUPP 2701ANDRInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Multiple Procedure Payment Reduction -- Where PIP statute states that fee schedule or payment limitation to be used when using schedule of maximum charges may not be less than allowable amount under applicable schedule for 2007 Medicare Part B, and PIP policy states that applicable fee schedule or payment limitation will not be less than applicable schedule of Medicare Part B for 2007, insurer was not allowed to apply MPPR to result in reimbursement of less than amount allowed under 2007 Medicare Part B fee schedule

27 Fla. L. Weekly Supp. 998a

Online Reference: FLWSUPP 2712DUDLInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reimbursement -- Multiple Procedure Payment Reduction -- Insurance policy gave adequate notice of insurer's use of MPPR where policy clearly and unambiguously elected the use of Medicare coding policies and payment methodologies, which includes utilization of the MPPR method -- A specific reference to MPPR was not required -- MPPR should not be considered an improper utilization limit

27 Fla. L. Weekly Supp. 641b

Online Reference: FLWSUPP 2707LAWSInsurance -- Personal injury protection -- Coverage -- Medical expenses -- PIP policy and statute allow insurer who has elected statutory fee schedule method of reimbursement to apply Medicare Advanced Registered Nurse Practitioner payment methodology to charges -- Application of methodology does not result in utilization limit

27 Fla. L. Weekly Supp. 972a

Online Reference: FLWSUPP 2711POLLInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous election by insurer -- PIP policy that limits reimbursement to 80% of 200% of allowable amount under Medicare Part B fee schedule clearly and unambiguously elects to limit reimbursement to permissive statutory fee schedule -- Pursuant to terms of policy and section 627.736(5)(a) 1-3, insurer is permitted to utilize Medicare Multiple Procedure Payment Reduction to calculate reimbursement amounts so long as application does not result in utilization limit

27 Fla. L. Weekly Supp. 755a

Online Reference: FLWSUPP 2708ADAVInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Multiple Procedure Payment Reduction -- PIP statute establishes that allowable amount under 2007 Medicare fee schedule must be used to calculate reimbursement when it is higher than allowable amount under applicable year's Medicare fee schedule, but statute also permits that allowable amount to then be reduced by application of Medicare's MPPR

nline Reference: FLWSUPP 2701SIMMInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Trial court erred in concluding that insurer that improperly utilized statutory fee schedule which was not elected in policy when reimbursing PIP claim was precluded from litigating reasonableness of charges -- Further, trial court abused its discretion by granting summary judgment in favor of medical provider with relevant discovery pending

27 Fla. L. Weekly Supp. 433a

Online Reference: FLWSUPP 2705BELLInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Summary judgment -- Trial court did not err in applying Daubert standard to determine whether affidavit filed by insurer in opposition to summary judgment is admissible as expert testimony -- Insurer's affidavit regarding reasonableness of charges complied with section 627.736(5)(a) and rule 1.510(e) and was not conclusory -- Trial court erred in entering summary judgment in favor of medical provider

27 Fla. L. Weekly Supp. 934a

Online Reference: FLWSUPP 2711MUNOInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Summary judgment -- Trial court erred in rejecting affidavit of insurer filed in opposition to medical provider's motion for summary judgment on issue of reasonableness of charges on basis that affidavit referred to Medicare and workers' compensation fee schedules and HMO and PPO rates -- Affidavit that was not conclusory, indicated source of affiant's knowledge, contained evidence pertinent to statutory reasonableness factors, and was supported by exhibits was legally sufficient -- Motion for summary judgment should have been denied

27 Fla. L. Weekly Supp. 7a

Online Reference: FLWSUPP 2701BARRInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Summary judgment -- Error to enter summary judgment in favor of medical provider on issue of reasonableness of MRI charge where opposing affidavit filed by insurer created disputed issue of material fact -- Trial court erred in rejecting opinion of insurer's expert on basis that he referenced Medicare fee schedules in his affidavit when fee schedule method of reimbursement was not elected in policy

27 Fla. L. Weekly Supp. 677a

Online Reference: FLWSUPP 2708PAGAInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Summary judgment -- Trial court improperly rejected affidavit of insurer's adjuster for referring to Medicare fee schedules and negotiated contract rates -- Medicare and other fee schedules and negotiated contract rates are relevant to consideration of reasonableness of charges submitted for PIP benefits -- Affidavit that complied with requirements of rule 1.510(e) and was not conclusory was legally sufficient -- Reversed and remanded for further proceedings

27 Fla. L. Weekly Supp. 348a

Online Reference: FLWSUPP 2704TULIInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Trial court did not err in finding that affidavit of medical provider's owner met summary judgment burden on issue of reasonableness of MRI charge -- Trial court abused discretion by rejecting affidavit of insurer's expert where affiant explained how his experience led to his opinion on reasonableness of charge, why his experience provided sufficient basis for his opinion and how his experience is reliably applied to facts -- Error to enter summary judgment in favor of provider on reasonableness issue

27 Fla. L. Weekly Supp. 15a

Online Reference: FLWSUPP 2701ANGUInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Summary judgment -- Trial court did not abuse discretion in striking opposing affidavit of insurer's expert and did not err in entering summary judgment in favor of medical provider on issue of reasonableness of charges where affidavit of insurer's expert sets forth no specific elements that he considered in determining whether charges were reasonable and did not provide opinion on reasonableness of provider's charges, and affidavit of claims adjuster impermissibly offered opinion testimony from lay witness

27 Fla. L. Weekly Supp. 208a

Online Reference: FLWSUPP 2702LEONInsurance -- 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 affidavit is based on affiant's opinion that 200% of Medicare fee schedule is per se reasonable, not whether provider's charges are reasonable, and opinion is not based on sufficient facts or data and is not demonstrated to be product of reliable principles and methods -- Medicare fee schedule should not be used to determine reasonableness of charges where insurer has not elected use of fee schedules in policy

27 Fla. L. Weekly Supp. 675a

Online Reference: FLWSUPP 2708BEDOInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Summary judgment -- Affidavit of medical provider's operations manager was not sufficient to sustain provider's burden on motion for summary judgment on issue of reasonableness of charges where affidavit was conclusory and was not accompanied by documents referenced therein -- Even if burden for summary judgment shifted to insurer, trial court erred by rejecting opposing affidavit of adjuster where adjuster was qualified to opine as expert on reasonableness of charges, and her opinions were based on her experience and fee schedules -- Fact that adjuster referenced Medicare, HMO and PPO reimbursement rates does not invalidate her opinion -- Reversed and remanded

27 Fla. L. Weekly Supp. 3a

Online Reference: FLWSUPP 2701NAVAInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Summary judgment -- Trial court erred in excluding opposing affidavit filed by insurer on issue of reasonableness of charges for x-ray services in reliance on Daubert standard that Florida Supreme Court has declined to adopt -- Under appropriate standard, affidavit in form of pure opinion testimony and offering opinion based on clinical experience, examination of medical records, analysis of quality and quantity of experience involved, and on research on fee schedules and fee awards was legally sufficient to withstand summary judgment motion

27 Fla. L. Weekly Supp. 186a

Online Reference: FLWSUPP 2702AGUIInsurance -- 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 affidavit is conclusory and contains pure opinion that is based on nothing but affiant's own experience -- Relatedness and medical necessity of treatment -- Opposing affidavit does not preclude summary judgment on issues of relatedness and necessity of treatment where affidavit is conclusory and attempts to raise issues of sufficiency of records, unbundling/upcoding, and services not rendered that were not timely raised in affirmative defenses

27 Fla. L. Weekly Supp. 13a

Online Reference: FLWSUPP 2701ASTOInsurance -- Personal injury protection -- Standing -- Where complaint was originally filed in name of medical provider's employer contending that it was doing business as provider, but assignment of benefits was in name of provider only, trial court did not err in allowing amendment of complaint to name only provider as plaintiff -- Coverage -- Medical expenses -- Summary judgment -- Trial court did not err in finding that opposing affidavit filed by insurer did not preclude summary judgment in favor of provider on issue of necessity of reading and interpreting x-rays where affiant failed to identify why it was unnecessary to read and interpret x-rays once they had been taken -- Additionally, trial court correctly concluded that affidavit did not present genuine issue of material fact on issue of reasonableness of charges where affiant opined that fee schedule amounts were maximum reasonable charges, but insurer did not elect fee schedule method of reimbursement in policy

27 Fla. L. Weekly Supp. 125a

Online Reference: FLWSUPP 2702SOUZInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Summary judgment -- Trial court erred in allowing insurer to survive motion for summary judgment on issue of reasonableness of charges based on purported affidavits that were not properly notarized and in which affiant did not swear to contents of affidavits -- Jury verdict reversed and remanded with instructions to enter summary judgment in favor of medical provider

27 Fla. L. Weekly Supp. 993b

Online Reference: FLWSUPP 2712DIAZInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Summary judgment -- Opposing affidavits filed by insurer precluded summary judgment in favor of medical provider on issue of reasonableness of charges where affidavits created genuine issue of material fact

27 Fla. L. Weekly Supp. 225c

Online Reference: FLWSUPP 2703JRODNOT FINAL VERSION OF OPINION
Subsequent Changes at 27 Fla. L. Weekly Supp. 501aInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Summary judgment -- Opposing affidavit filed by insurer was sufficient to preclude summary judgment in favor of medical provider on issue of reasonableness of charges -- Affidavit was not conclusory and provided sufficient evidence to survive summary judgment

27 Fla. L. Weekly Supp. 223a

Online Reference: FLWSUPP 2703JAMEInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Summary judgment -- Trial court did not err in finding that medical provider met initial burden on summary judgment on issue of reasonableness of charges for reading MRI -- Affidavit of medical provider's operations and billing manager in support of motion for summary judgment is not deficient for failing to attach documents to support her conclusion that provider has been reimbursed by PIP insurers at 80% of billed amount where testimony was based on personal knowledge that affiant would necessarily possess in her position -- No abuse of discretion in ruling that opposing affidavit filed by insurer was insufficient to preclude summary judgment where “facts and data” relied upon in affidavit are limited to self-serving and anecdotal statements -- Insurer's belated constitutional challenge to section 90.702, arguing that it was denied procedural due process because trial court applied Daubert standard rather than Frye standard, is rejected where there is no fundamental error since insurer was not prevented from presenting expert witness's testimony; it presented testimony and that testimony, once presented, was rejected by trial court

27 Fla. L. Weekly Supp. 791b

Online Reference: FLWSUPP 2709CASTInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Summary judgment -- Error to strike insurer's expert affidavit and enter summary judgment on reasonableness issue

27 Fla. L. Weekly Supp. 790a

Online Reference: FLWSUPP 2709YRODInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Error to strike affidavit of insurer's expert

27 Fla. L. Weekly Supp. 789a

Online Reference: FLWSUPP 2709MOREInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Summary judgment -- Trial court erred in entering summary judgment in favor of medical provider on issue of reasonableness of charges where opposing affidavit filed by insurer, which relied on reimbursement schedules and managed care guides, sufficiently raised issue of material fact

27 Fla. L. Weekly Supp. 601b

Online Reference: FLWSUPP 2707PENAInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Summary judgment -- Trial court erred in rejecting opposing affidavit filed by insurer on basis that affiant relied on Medicare fee schedules, even if insurer failed to elect fee schedule method of reimbursement in PIP policy -- Where affidavit explained affiant's experience, how experience led to his opinion, provided basis for opinion and is reasonably applied to facts; and affidavit is not conclusory in nature, affidavit is sufficient to preclude summary judgment as to reasonableness of charges

27 Fla. L. Weekly Supp. 591b

Online Reference: FLWSUPP 2707ARODInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Summary judgment -- Trial court erred in rejecting opposing affidavit filed by insurer where medical provider did not make specific objection describing alleged defects in affidavit but simply made general arguments that Daubert standard should be applied to any expert affidavit -- Trial court abused discretion in rejecting affidavit where affidavit complied with rules, was not conclusory, and was not otherwise insufficient

27 Fla. L. Weekly Supp. 502a

Online Reference: FLWSUPP 2706PADRInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Trial court did not err in finding that affidavit of medical provider's owner met summary judgment burden on issue of reasonableness of CT scan charge -- Trial court abused discretion by rejecting affidavit of insurer's expert where affiant qualified as expert under Daubert standard -- References to Medicare, HMO and PPO rates do not invalidate affiant's opinion on reasonableness of charges -- Summary judgment is reversed

27 Fla. L. Weekly Supp. 501a

Online Reference: FLWSUPP 2706JRODInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Summary judgment -- Opposing affidavit filed by insurer was sufficient to preclude summary judgment in favor of medical provider on issue of reasonableness of charges -- Affidavit was not conclusory and provided sufficient evidence to survive summary judgment -- Trial court abused its discretion by disregarding affidavit under a Daubert analysis -- Conclusion that Medicare, HMO, and PPO reimbursements are not relevant to issue of reasonableness of charges is expressly contradicted by PIP statute

27 Fla. L. Weekly Supp. 498a

Online Reference: FLWSUPP 2706DECHInsurance -- Personal injury protection -- Appeals -- Where Florida Supreme Court receded from opinion determining that Frye standard was appropriate test to evaluate expert witness's qualifications after issuance of circuit court's opinion holding that trial court erred in applying Daubert standard but before time for rehearing had passed, circuit court must apply Daubert test in analysis on motion for rehearing -- Trial court abused its discretion in finding that affidavit of insurer's expert witness failed to meet Daubert standard where witness qualifies as expert on reasonableness of charges for x-ray and MRI services, witness used reliable principles and methods in making his determination of reasonableness, affidavit was based on sufficient facts and data, and affidavit applied principles and methods reliably to facts of case -- Further, trial court erred in rejecting affidavit on ground that Medicare rates are not applicable to issue of reasonableness of charges -- Summary judgment is reversed

27 Fla. L. Weekly Supp. 226a

Online Reference: FLWSUPP 2703DECHNOT FINAL VERSION OF OPINION
Subsequent Changes at 27 Fla. L. Weekly Supp. 498aInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Summary judgment -- Trial court erred in applying Daubert standard to determine that physician whose affidavit was filed by insurer in opposition to summary judgment did not qualify as expert witness -- Where insurer objected to application of Daubert standard below, and subsequent to entry of summary judgment the Florida Supreme Court decided that Frye standard is appropriate test in Florida courts, Frye standard applies in case -- Affiant is qualified as expert on issue of reasonableness of charges under Frye standard -- References to Medicare, HMO, and PPO rates do not invalidate affiant's opinion on reasonableness of charges -- Summary judgment is reversed

27 Fla. L. Weekly Supp. 221a

Online Reference: FLWSUPP 2703DURAInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Summary judgment -- Trial court did not abuse discretion in entering summary judgment in favor of medical provider on issue of reasonableness of charges where opposing affidavit filed by insurer was conclusory and unsupported by facts or data, and affiant was not qualified to render opinion on reasonableness issue as expert or as lay witness -- Trial court properly found that mere fact that Medicare, HMO, and PPO rates are less than amount billed by provider does not create factual issue as to reasonableness of charges

27 Fla. L. Weekly Supp. 856a

Online Reference: FLWSUPP 2710AVILInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Where PIP policy does not elect statutory fee schedule method of reimbursement, medical provider moving for summary judgment as to reasonableness of charges must show by summary judgment evidence that charges are reasonable -- Trial court erred in entering summary judgment on reasonableness issue based on erroneous belief that provider is always entitled, as matter of law, to be reimbursed no less than 80% of 200% of Medicare fee schedule

27 Fla. L. Weekly Supp. 646a

Online Reference: FLWSUPP 2707CONTInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Summary judgment -- Insurer's motion for summary judgment on issue of reasonableness of charges, based on testimony that on case-by-case basis medical provider sometimes offers discounts to cash patients paying for services at time they are rendered, is denied, as there is no evidence that provider has program, custom or policy of charging cash patients less

27 Fla. L. Weekly Supp. 679a

Online Reference: FLWSUPP 2708DUGAInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Summary judgment -- Trial court erred in holding that testimony of insurer's expert on issue of reasonableness of charges must be genuinely scientific to meet Daubert standard of admissibility -- Witness's testimony regarding pricing, based on his knowledge and experience, was sufficient to preclude entry of summary judgment in favor of medical provider

27 Fla. L. Weekly Supp. 506b

Online Reference: FLWSUPP 2706FIGUInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Summary judgment -- Trial court improperly granted summary judgment in favor of provider on issue of reasonableness of charges -- Expert affidavit submitted by insurer in opposition to provider's motion for summary judgment contained sufficient facts and data to support the opinions expressed, and opinions expressed by expert did not constitute impermissible “pure opinion” -- Whether applying Daubert or Frye standard to expert's affidavit, exclusion of affidavit was an abuse of discretion -- Affidavit was sufficient to create genuine issue of disputed fact -- Trial court's conclusion that a jury trial was not needed to determine whether charge was reasonable because reasonableness would encompass a range of pricing supplanted a jury trial on the true issue, which was whether amount billed was reasonable and, if not, what amount was reasonable -- Expert was permitted to base her opinion in part on Medicare Part B fee schedules, even if insurer failed to elect fee schedule limitation in its policy

27 Fla. L. Weekly Supp. 349a

Online Reference: FLWSUPP 2704POLLInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Error to enter summary judgment in favor of provider where there remain genuine issues of material fact as to reasonable reimbursement amounts for charges in dispute

27 Fla. L. Weekly Supp. 1008a

Online Reference: FLWSUPP 2712YAGMInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness, relatedness and necessity of charges -- Summary judgment -- Opposing affidavit filed by insurer precluded summary judgment in favor of medical provider on issues of reasonableness, relatedness and necessity of charges where affidavit created genuine issue of material fact on all issues raised -- Further support for reversal is found in trial court's expressed confusion over what issues and evidence were before court, which was not clarified

27 Fla. L. Weekly Supp. 649a

Online Reference: FLWSUPP 2707MJOSInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness, relatedness and necessity of treatment -- Summary judgment -- Opposing affidavit filed by insurer is sufficient to preclude summary judgment as to relatedness and medical necessity of treatments specifically discussed therein -- However, affiant's opinion that “all other CPT codes were not reasonable, related or medically necessary” does not preclude summary judgment as to those other treatments where affidavit fails to show that this conclusion is product of reliable principles or methods -- Insurer that failed to specify in PIP policy that it was electing statutory fee schedule method of reimbursement is not entitled to use that method -- Affidavit of insurer's expert that is conclusory and parrots exact charges allowed by insurer under Medicare fee schedule does not preclude summary judgment in favor of medical provider on issue of reasonableness of charges

Online Reference: FLWSUPP 2710GARAInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness and relatedness of treatment -- Summary judgment -- Opposing affidavits filed by insurer preclude summary judgment in favor of medical provider on issues of reasonableness of charges and relatedness of treatment where affidavits create genuine issues of material fact -- Contradiction between expert's affidavit and interrogatory responses filed by corporate representative who is not medical expert does not warrant striking affidavit

27 Fla. L. Weekly Supp. 534a

Online Reference: FLWSUPP 2706BASSInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness, relatedness and necessity of treatment -- Summary judgment -- Deposition and affidavit filed by insurer preclude summary judgment in favor of medical provider on issues of reasonableness, relatedness and necessity of treatment where affiant opined that treatment was not reasonable, medically necessary, or related to motor vehicle accident that occurred eleven months prior to initiation of treatment -- Opinion that treatment was not medically necessary inherently creates issue of fact as to reasonableness of charges for that treatment

27 Fla. L. Weekly Supp. 423a

Online Reference: FLWSUPP 2704LUCIInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Summary judgment -- Unrefuted opinions of physician employed by medical provider are sufficient to establish provider's prima facie case on issues of relatedness and necessity of treatment and reasonableness of charges -- Partial summary judgment is entered in favor of provider

27 Fla. L. Weekly Supp. 96a

Online Reference: FLWSUPP 2701MORAInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Related and medically necessary treatment -- Summary judgment is entered in favor of medical provider on issues of relatedness and medical necessity of treatment where provider's affidavit establishes prima facie case, insurer failed to file timely notice of intent to rely on filed summary judgment evidence in opposing motion for summary judgment, and insurer's motion for continuance to allow for late-filed notice was not supported by affidavit and merely asserted “clerical oversight” as reason for delay

27 Fla. L. Weekly Supp. 901a

Online Reference: FLWSUPP 2710CARBInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Relatedness and medical necessity of treatment -- Opposing affidavit filed by insurer stating that it is impossible for affiant to determine if insured's symptoms are result of accident due to passage of time between accident and treatment and that affiant cannot causally relate condition to accident, but not opining that any treatment was unrelated to accident or unnecessary, does not preclude summary judgment in favor of medical provider on issues of relatedness and medical necessity of treatment

27 Fla. L. Weekly Supp. 237a

Online Reference: FLWSUPP 2703EASTInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Relatedness and medical necessity of treatment -- Summary judgment -- Trial court abused discretion in denying insurer's request for continuance of summary judgment hearing on issues of relatedness and medical necessity of treatment to allow insurer to secure deposition of insured where insured's deposition was critical to resolving inconsistencies between physician's handwritten notes and typed reports on diagnosis and treatment, and insurer has made diligent efforts to secure insured's deposition

27 Fla. L. Weekly Supp. 137a

Online Reference: FLWSUPP 2702FORTInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related, and necessary treatment -- Insurer did not concede medical necessity and relatedness of provider's services by paying reduced reimbursement amount prior to suit

27 Fla. L. Weekly Supp. 127a

Online Reference: FLWSUPP 2702ENCAInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Trial court erred in finding that insurer could not contest relatedness and necessity of claim because it had partially paid claim -- Trial court also erred in rejecting affidavit regarding reasonableness of charges as conclusory

27 Fla. L. Weekly Supp. 123a

Online Reference: FLWSUPP 2702STORInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary treatment -- Trial court erred in entering summary judgment in favor of medical provider on issues of relatedness and necessity of second interpretation of x-rays that occurred after physical therapy had already been started and reasonableness of charges for second interpretation where opposing affidavits filed by insurer were sufficient to create genuine issues of material fact

27 Fla. L. Weekly Supp. 236a

Online Reference: FLWSUPP 2703JOHNInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Medical necessity of treatment -- Summary judgment -- Trial court erred in entering summary judgment in favor of medical provider on issue of necessity of treatment -- Fact that insurer paid charges did not bar insurer from contesting necessity in suit -- Deposition of insurer's claims representative not basis for granting summary judgment in favor of provider on issue of medical necessity

27 Fla. L. Weekly Supp. 235a

Online Reference: FLWSUPP 2703WATKInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Relatedness and medical necessity of treatment -- Summary judgment -- Trial court erred in concluding that insurer had waived right to contest relatedness and medical necessity of treatment by paying claim -- Insurer is entitled to contest relatedness and necessity at any time, claims representative's deposition testimony that insurer was not contesting relatedness and necessity “at this time” could not be construed as concession of those issues, and affidavit of insurer's expert raises disputed issues of fact on those issues -- Abuse of discretion to preclude insurer from deposing treating physician and insured based on holding that insurer had waived issues of relatedness and necessity

27 Fla. L. Weekly Supp. 234a

Online Reference: FLWSUPP 2703JEANInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Relatedness and medical necessity of treatment -- Summary judgment -- Trial court erred in concluding that insurer had waived right to contest relatedness and medical necessity of treatment by paying claim -- Insurer is entitled to contest relatedness and necessity at any time, claims representative's deposition testimony that insurer was not contesting relatedness and necessity “at this time” could not be construed as concession of those issues, and affidavit of insurer's expert raised disputed issues of fact on those issues -- Abuse of discretion to preclude insurer from deposing treating physician and insured based on holding that insurer had waived issues of relatedness and necessity

27 Fla. L. Weekly Supp. 129c

Online Reference: FLWSUPP 2702HEALInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Summary judgment -- Trial court erred in entering summary judgment where insurer raised genuine issue of material fact as to reasonableness of charges and relatedness and necessity of services -- Insurer may challenge reasonableness, relatedness and necessity at any time

Online Reference: FLWSUPP 2711CROCInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous election by insurer -- PIP policy that limits reimbursement to 80% of 200% of allowable amount under Medicare Part B fee schedule clearly and unambiguously elects to limit reimbursement to permissive statutory fee schedule -- Policy does not create unlawful hybrid payment methodology -- Insurer properly reimbursed medical provider using participating physicians fee schedule specified in policy rather than non-facility limiting charge

27 Fla. L. Weekly Supp. 726b

Online Reference: FLWSUPP 2708DRESInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Insurer properly reimbursed provider at 80% of 200% of participating physician's fee schedule for Medicare for Part B for 2007 rather than utilizing Medicare Limiting Charge -- Based on language of statute and terms of policy, when read as a whole, medical providers like plaintiff are to be reimbursed based on higher of the participating physician's fee schedule for Medicare Part B for the year in which the services, supplies, or care is rendered or the participating physician's fee schedule for 2007, whichever results in a higher reimbursement

27 Fla. L. Weekly Supp. 574a

Online Reference: FLWSUPP 2707HENDInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Manual therapy -- PIP statute's exclusion of coverage for massage does not exclude coverage for manual therapy performed by licensed massage therapist

27 Fla. L. Weekly Supp. 761a

Online Reference: FLWSUPP 2708YBROInsurance -- Personal injury protection -- Coverage -- Medical expenses -- CPT coding -- Unbundling -- Where notation within office visit report regarding manual muscle testing of hand is not “separate written report” and does not include documentation of strength of specific muscles tested, need for separate manual muscle testing or tests performed; manual muscle testing was included in physical examination portion of office visit performed on same date and is not separately compensable

27 Fla. L. Weekly Supp. 557b

Online Reference: FLWSUPP 2706BATIInsurance -- Personal injury protection -- Coverage -- Lawfully rendered services -- Plaintiff, a licensed health care facility permitted to provide follow up care and services, is entitled to reimbursement for services rendered by licensed massage therapist

27 Fla. L. Weekly Supp. 76a

Online Reference: FLWSUPP 2701MARTInsurance -- Personal injury protection -- Coverage -- Medical benefits -- Exclusions -- Massage -- Statutory bar to payment of medical benefits for massage does not apply to claim brought by incorporated licensed clinic for non-massage services -- Fact that clinic is a corporation owned solely by a licensed massage therapist is immaterial

27 Fla. L. Weekly Supp. 75a

Online Reference: FLWSUPP 2701TOLEInsurance -- Personal injury protection -- Coverage -- Medical benefits -- Exclusions -- Massage -- Statutory bar to payment of medical benefits for massage does not apply to claim brought incorporated licensed clinic for non-massage services -- Fact that clinic is a corporation owned solely by a licensed massage therapist is immaterial

27 Fla. L. Weekly Supp. 903b

Online Reference: FLWSUPP 2710GABLInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Lawfully rendered services -- Summary judgment -- Medical provider is not entitled to summary judgment on affirmative defense that services provided by certified chiropractic physicians' assistant were not lawfully rendered where provider introduced no evidence that supervising physicians were board certified as required by CCPA laws and regulations

27 Fla. L. Weekly Supp. 132b

Online Reference: FLWSUPP 2702AZMIInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Insurer was not relieved of its obligation to pay PIP benefits by insured's prior bodily injury settlement -- Medical provider, as assignee of insured, possessed subrogation right to benefits

27 Fla. L. Weekly Supp. 408a

Online Reference: FLWSUPP 2704MARZInsurance -- Personal injury protection -- Summary judgment is entered in favor of medical provider where insurer breached contract by failing to pay PIP claim within thirty days and failing to extend the payment period pursuant to section 627.736(4)(i)

27 Fla. L. Weekly Supp. 407b

Online Reference: FLWSUPP 2704CORDInsurance -- Personal injury protection -- Summary judgment is entered in favor of medical provider where insurer did not deny coverage until more than 90 days after receipt of claim

27 Fla. L. Weekly Supp. 406a

Online Reference: FLWSUPP 2704ALINInsurance -- Personal injury protection -- Declaratory judgments -- Coverage -- Where insurer did not deny coverage on PIP claim until almost 5 months after receipt of medical bills, insurer is liable for claim

27 Fla. L. Weekly Supp. 313b

Online Reference: FLWSUPP 2703JMARInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Provider entitled to summary judgment where insurer did not deny claim within 90 days of receipt -- Untimely filed notice of filing in opposition to summary judgment is not considered

27 Fla. L. Weekly Supp. 313a

Online Reference: FLWSUPP 2703MARZInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Provider entitled to summary judgment where insurer did not deny claim within 90 days of receipt -- Untimely filed notice of filing in opposition to summary judgment is not considered

27 Fla. L. Weekly Supp. 982a

Online Reference: FLWSUPP 2711TOREInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Exhaustion of policy limits -- Payment using 2007 Medicare Limiting Charge was proper and did not constitute gratuitous payment or bad faith -- Having exhausted benefits in payment of valid timely bills, insurer is not liable for further payments to medical provider

27 Fla. L. Weekly Supp. 408c

Online Reference: FLWSUPP 2704JOSEInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Exhaustion of policy limits -- Gratuitous payments -- Where insurer exhausted PIP benefits by making payment to another medical provider whose claim insureds had already settled and paid, payment of that claim was gratuitous payment and should not be considered to have been made against policy limits -- Summary judgment entered in favor of plaintiff medical provider

27 Fla. L. Weekly Supp. 828b

Online Reference: FLWSUPP 2709NGUYNOT FINAL VERSION OF OPINION
Subsequent Changes at 28 Fla. L. Weekly Supp. 323aInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Exhaustion of policy limits -- Payments using 2007 Medicare non-facility limiting charge were proper and did not constitute gratuitous payments or bad faith -- Having exhausted benefits in payment of valid timely bills, insurer is not liable for further payments to medical provider

27 Fla. L. Weekly Supp. 751a

Online Reference: FLWSUPP 2708KINGInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Exhaustion of policy limits -- Where insurer exhausted benefits in payment to other medical providers, and plaintiff's allegations of payment of invalid or untimely claims are not supported by record, summary disposition is entered in favor of insurer -- Plaintiff cannot raise defense of statute of limitations on behalf of insurer with respect to other providers' claims

27 Fla. L. Weekly Supp. 482a

Online Reference: FLWSUPP 2705MANDInsurance -- Personal injury protection -- Consistent with appellate mandate, summary judgment entered in favor of insurer regarding medical provider's failure to provide pre-suit documentation of emergency medical condition or respond to request for documentation and premature demand letter -- Provider's motion for attorney's fees and costs is denied

27 Fla. L. Weekly Supp. 463a

Online Reference: FLWSUPP 2705MJANInsurance -- Personal injury protection -- Coverage -- Emergency medical condition -- Where insurer paid full $2,500 in benefits available to insured who had not demonstrated diagnosis of emergency medical condition and requested documentation of EMC, and insurer paid additional benefits after suit had been filed and EMC documentation was provided, trial court erred in construing post-suit payment of benefits as confession of judgment -- Insurer was not liable for benefits above $2,500 until EMC documentation was provided -- Remand for entry of summary judgment in favor of insurer

27 Fla. L. Weekly Supp. 213a

Online Reference: FLWSUPP 2702JTIRInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Emergency medical condition -- Insurer entitled to summary disposition in its favor on provider's claim for payment of amounts over $2500 where insurer was not put on notice of any emergency medical condition prior to suit being filed

27 Fla. L. Weekly Supp. 215a

Online Reference: FLWSUPP 2702MTIRInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Emergency medical condition -- Insurer entitled to summary disposition in its favor on provider's claim for payment of amounts over $2500 where insurer was not put on notice of any emergency medical condition prior to suit being filed

27 Fla. L. Weekly Supp. 483a

Online Reference: FLWSUPP 2705ANDEInsurance -- Personal injury protection -- Attorney's fees -- Proposal for settlement -- Nominal offer -- Insurer had reasonable foundation for nominal offer where insurer had three independent bases upon which to prevail at summary judgment, including lack of emergency medical condition determination, failure to respond to request for documentation and invalid demand letter, and there were multiple favorable orders on EMC defense at time proposal for settlement was served -- Further, where appellate court granted motion for attorney's fees without objection and remanded case only for determination of amount of fees, ruling on entitlement to fees is binding on trial court -- Fact that insurer paid additional benefits upon receipt of post-suit EMC determination does not render proposal for settlement a nullity

27 Fla. L. Weekly Supp. 652a

Online Reference: FLWSUPP 2707LOHRInsurance -- Personal injury protection -- Coverage -- Emergency medical condition -- Sufficiency of EMC determination -- Statute providing for $10,000 in PIP benefits if licensed physician determined that insured has EMC does not require that physician that made determination state that physician reviewed insured's medical records, state that physician performed physical examination of insured, be medical provider who has billed insurer or whose bills insured has submitted to insurer, or produce EMC report within certain time after accident -- PIP statute does not allow insurer to challenge EMC determination -- Summary judgment entered in favor of medical provider

27 Fla. L. Weekly Supp. 1032a

Online Reference: FLWSUPP 2712MCKIInsurance -- Personal injury protection -- Coverage -- Emergency medical condition -- Where PIP policy provided that benefits were limited to $2,500 if a provider determined that injured person did not have an EMC, PIP insurer that did not have a determination that insured did not have an EMC was not permitted to limit benefits to $2,500 -- Insurer's limitation of benefits based on fact that medical records did not contain words “emergency medical condition” was erroneous under terms of policy, and also in light of fact that emergency room records submitted by medical provider indicated that providers qualified to make EMC determination treated the insured and advised her to immediately follow up with her primary care physician

27 Fla. L. Weekly Supp. 421a

Online Reference: FLWSUPP 2704LGONInsurance -- Personal injury protection -- Standing -- Assignment of benefits does not provide medical provider with standing to bring suit to recover cost of obtaining determination of insured's emergency medical condition as requested by insurer pursuant to section 627.736(6)(b) where insured could never be responsible for cost of documentation requested pursuant to section 627.736(6)(b), and benefits had been exhausted at time cost was incurred

27 Fla. L. Weekly Supp. 420a

Online Reference: FLWSUPP 2704AUGUInsurance -- Personal injury protection -- Standing -- Assignment of benefits does not provide medical provider with standing to bring suit to recover cost of obtaining determination of insured's emergency medical condition as requested by insurer pursuant to section 627.736(6)(b) where insured could never be responsible for cost of documentation requested pursuant to section 627.736(6)(b), and benefits had been exhausted at time cost was incurred

27 Fla. L. Weekly Supp. 764a

Online Reference: FLWSUPP 2708SANTInsurance -- 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 EMC and limiting reimbursement to $2,500 if qualified provider has determined that claimant did not have EMC, insurer properly limited benefits to $2,500 where qualified provider has not determined that insured suffered EMC -- No merit to argument that insurer was required to glean existence of EMC from facts that medical provider is hospital that provided “emergency services and care” and box indicating highest priority admission was checked on bill where provision of emergency services does not necessarily mean that condition of insured met criteria for EMC, and insurer's adjusters are not qualified to make EMC determinations under PIP statute -- Exhaustion of policy limits -- Insurer's payment of additional benefits up to $10,000 following receipt of EMC determination attached to provider's first demand letter exhausted PIP benefits -- Neither bad faith nor gratuitous payment exceptions apply to permit damages in excess of policy limits where there is no evidence of bad faith or that other claims paid by insurer were untimely or invalid -- Demand letters -- Provider's demand letters failed to satisfy condition precedent to suit where first letter demanded amount in excess of policy limits and fee schedule elected in policy, second letter failed to account for prior payment made in response to receipt of EMC determination, and both letters cannot be reconciled with amounts alleged in complaint and amended complaint -- Insurer's failure to respond to demand letters did not waive its right to assert invalid demand letters as affirmative defense -- Because demand for additional information as to whether insured had EMC tolled time for insurer to make any additional payments on provider's bill, additional payment made after receipt of EMC determination did not require payment of penalty or postage

27 Fla. L. Weekly Supp. 744b

Online Reference: FLWSUPP 2708FRANInsurance -- 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 EMC and limiting reimbursement to $2,500 if qualified provider has determined that claimant did not have EMC, insurer properly limited benefits to $2,500 until medical provider responded to insurer's request for information about whether insured had EMC -- Demand letter sent before EMC determination was produced and additional payment was due was premature and a nullity -- Because determination of EMC is not synonymous with provision of emergency services and care as defined in Florida Access to Emergency Services and Care Act and in workers' compensation statute, fact that insured was seen at emergency room after accident does not equal determination of EMC under PIP statute -- Moreover, neither court nor insurer can make EMC determination irrespective of the medical records provided to them

27 Fla. L. Weekly Supp. 654b

Online Reference: FLWSUPP 2707SANTInsurance -- Personal injury protection -- Coverage -- Emergency medical condition -- Where medical provider did not contest insurer's claim that it did not receive EMC determination prior to receipt of demand letter, and insurer paid full $2,500 of PIP benefits available when EMC determination has not been made, insurer did not breach PIP policy

27 Fla. L. Weekly Supp. 562b

Online Reference: FLWSUPP 2706THELInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Electrodes -- PIP insurer is not required to pay separate additional charge for electrodes used in conjunction with electrical muscle stimulation treatment where electrodes are not compensable under Medicare Part B fee schedule or workers' compensation fee schedule

27 Fla. L. Weekly Supp. 787a

Online Reference: FLWSUPP 2709FERRInsurance -- Personal injury protection -- Coverage -- Medical expenses -- False or misleading claim -- Trial court erred in entering summary judgment in favor of insurer where insurer failed to meet burden to show that medical provider knowingly or recklessly and with deliberate indifference filed false or misleading claim for more x-ray views than were performed -- Factual issue exists as to whether there were systemic improper billing practices or merely unknowing mistake on part of provider

27 Fla. L. Weekly Supp. 756a

Online Reference: FLWSUPP 2708CINTInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Dry hydrotherapy -- Where CPT code for dry hydrotherapy treatment is not delineated in physician's fee schedule for Medicare Part B, treatment was properly reimbursed in accordance with workers' compensation fee schedule notwithstanding fact that dry hydrotherapy may by reimbursable under Medicare Part B if underlying service performed is examined on an individualized basis

27 Fla. L. Weekly Supp. 4a

Online Reference: FLWSUPP 2701PEREInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Lawfully rendered services -- Insurer's motion for summary judgment was not legally insufficient for asserting that bills submitted for services performed by unlicensed physician were either unlawful or were knowingly false when submitted -- No abuse of discretion in denying medical provider's motions for rehearing of order granting summary judgment in favor of insurer where motions presented new evidence that provider had mistakenly identified wrong physician in bills but do not indicate that provider could not have discovered and submitted this evidence prior to summary judgment hearing -- Insurer did not waive right to deny claim based on false information by fact that corrected claim forms were later sent and insurer had made payment under policy prior to discovering false information

27 Fla. L. Weekly Supp. 80a

Online Reference: FLWSUPP 2701HERBInsurance -- Personal injury protection -- Overdue claim -- Interest, penalty, and postage -- Insurer who paid PIP benefits within 30 business days of receipt of demand letter is also obligated to pay 10% penalty, interest and postal costs

27 Fla. L. Weekly Supp. 835a

Online Reference: FLWSUPP 2709BATIInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Insurer's failure to pay claim within 30 days or even during 60-day investigation period allowed by section 627.736(4)(i) does not constitute acquiescence to claim or eliminate right to contest claim -- Licensed health care clinic may be reimbursed under PIP statute for non-massage services provided by licensed massage therapist

27 Fla. L. Weekly Supp. 837a

Online Reference: FLWSUPP 2709MARZInsurance -- Personal injury protection -- Insurer breached contract by failing to pay PIP claim within thirty days and failing to extend payment period pursuant to section 627.736(4)(i)

27 Fla. L. Weekly Supp. 189a

Online Reference: FLWSUPP 2702VALDInsurance -- Personal injury protection -- Motion for rehearing of order striking, as sham, insurer's pleadings in counterclaim against provider and entering summary judgment denied -- Final judgment is entered

27 Fla. L. Weekly Supp. 1036a

Online Reference: FLWSUPP 2712KAZUInsurance -- Personal injury protection -- Confession of judgment -- Where insurer confessed judgment for maximum jurisdictional amount demanded in statement of claim, motion for entry of confessed judgment is granted -- Demand letter for greater amount attached to statement of claim does not negate cause of action asserted so as to control over amount demanded in statement of claim and preclude entry of confessed judgment

27 Fla. L. Weekly Supp. 487a

Online Reference: FLWSUPP 2705NOBLInsurance -- Personal injury protection -- Where statement of particulars has balance well above amount pled in complaint and lists items as paid, more definite statement is required

27 Fla. L. Weekly Supp. 742b

Online Reference: FLWSUPP 2708PERNInsurance -- Personal injury protection -- Motion to amend complaint filed against wrong insurer to name correct insurer by interlineation is denied -- Medical provider may not substitute entirely new party as defendant -- Further, amendment would be futile since statute of limitations has expired and amendment would not relate back to complaint's original filing

27 Fla. L. Weekly Supp. 730a

Online Reference: FLWSUPP 2708ROSIInsurance -- Personal injury protection -- Complaint -- Amendment -- Motion to amend complaint to correct amount in controversy following confession of judgment for amount alleged in original complaint is granted, and motions to dismiss, enforce confession of judgment, and enter final judgment are denied -- Amount in controversy is merely allegation and is not dispositive of issue of damages, confession of judgment did not exhaust policy limits, and request to amend complaint is the first request by medical provider and comes early in litigation

27 Fla. L. Weekly Supp. 742a

Online Reference: FLWSUPP 2708CALOInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Multiple Procedure Payment Reductions -- PIP insurer may apply MPPR when reimbursing chiropractor for physical therapy services -- Insurer properly reimbursed code that is considered to be noncompensable bundled code by Medicare pursuant to workers' compensation fee schedule

27 Fla. L. Weekly Supp. 731a

Online Reference: FLWSUPP 2708BEAUInsurance -- Personal injury protection -- Coverage -- Chiropractic services -- Medicare fee schedule -- Private insurers are not entitled to the 2% reduction in payment for chiropractic treatment implemented by Medicare -- The 2% reduction is specifically reserved only for claims that Medicare is required to reimburse

27 Fla. L. Weekly Supp. 416a

Online Reference: FLWSUPP 2704VOLTInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Chiropractic services -- Multiple procedure payment reduction -- Chiropractic provider's challenge to insurer's use of MPPR to reduce amount it reimbursed provider below 200% of allowable amount under physicians fee schedule of Medicare Part B -- Where insurer's only basis for using MPPR is that it is a Medicare payment methodology, insurer was required to apply the payment method in the same manner as Medicare -- Since the MPPR only applies to services for which Medicare does not reimburse chiropractors, the MPPR cannot apply to chiropractors -- In other words, a reduction in reimbursement cannot be applied when no reimbursement is permitted for that service

27 Fla. L. Weekly Supp. 205a

Online Reference: FLWSUPP 2702HOLBInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Multiple Procedure Payment Reductions -- PIP insurer may apply MPPR when reimbursing chiropractor for physical therapy services -- No merit to argument that therapy services not rendered pursuant to therapy plan of care required by Medicare must be reimbursed at full fee schedule amount without application of MPPR -- Insurer properly reimbursed code that is considered to be noncompensable bundled code by Medicare pursuant to workers' compensation fee schedule

27 Fla. L. Weekly Supp. 544a

Online Reference: FLWSUPP 2706RAFFInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Initial services and care by qualified medical professional -- Where advanced registered nurse practitioner and supervising physician who provided initial services to insured failed to file required protocol of supervision with Board of Medicine, medical provider is not entitled to PIP benefits for initial care and services provided by ARNP -- Where there was no referral by physician for follow-up services by ARNP, insurer is not required to provide coverage for those services -- Affidavit filed in opposition to insurer's motion for summary judgment by registered chiropractic physician's assistant who is supervised by physician and who also provided services to insured on initial date of service is sufficient to preclude summary judgment as to services that affiant provided

27 Fla. L. Weekly Supp. 651a

Online Reference: FLWSUPP 2707SUNCInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Where PIP policy provided that charge submitted for amount less than amount allowed by schedule of maximum charges will be paid in amount of charge submitted, insurer was required to pay 100% of charge that was less than 200% of Medicare fee schedule, not 80% of that charge

27 Fla. L. Weekly Supp. 324a

Online Reference: FLWSUPP 2703LPHAInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Where PIP policy provides that charge submitted for amount less than 200% of allowable amount under Medicare Part B fee schedule shall be paid in amount of charge submitted, insurer was required to pay entire amount of charges that were less than 200% of allowable amount under fee schedule, not 80% of charge

27 Fla. L. Weekly Supp. 239a Online Reference: FLWSUPP 2703IRIZInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Where PIP policy provides that charge submitted for amount less…

27 Fla. L. Weekly Supp. 486a

Online Reference: FLWSUPP 2705RIVAInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Where PIP policy provides that charge submitted for amount less than amount allowed under fee schedule shall be paid in amount of charge submitted, insurer is required to pay full amount of charge that was less than allowed amount -- Insurer's affidavit in opposition to summary judgment is not considered where exhibits referenced in affidavit were not attached to copy filed with court -- Although affidavit with attached exhibits was served on medical provider by email, affidavit will not be considered where format of email did not comply with rule 2.516

27 Fla. L. Weekly Supp. 79a

Online Reference: FLWSUPP 2701LOPEInsurance -- Personal injury protection -- Where sole issue raised by medical provider in PIP case was whether insurer had sufficiently elected use of statutory fee schedules for reimbursement of PIP benefits, and only after Florida Supreme Court decision in Orthopedic Specialists regarding sufficiency of insurer's policy language to elect use of statutory fee schedules was decided adversely to provider's position did provider raise unpled issue of misapplication of deductible, motion to strike or exclude unpled issues is granted

27 Fla. L. Weekly Supp. 892b

Online Reference: FLWSUPP 2710TROGInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Affirmative defenses -- Withdrawal of claim -- Agreement whereby medical provider withdrew PIP claim based on prescription created by physician who was under investigation by insurer was not enforceable -- Where insurer intended agreement to invalidate all past and present claims based on physician's prescriptions and to require return of monies paid on past claims, but provider was under impression that signing agreement would resolve all issues with insurer, there was no meeting of minds -- Even if there were meeting of minds, there was no consideration exchanged for withdrawal of claim, inasmuch as insurer did not give or concede anything regarding pursuit of alleged prescription issues in exchange for provider's forbearance from pursuing claim -- Alternatively, insurer breached any agreement to stop investigating physician and provider when it reported physician to Department of Health and cannot thereafter ask court to enforce agreement against provider

27 Fla. L. Weekly Supp. 892b

Online Reference: FLWSUPP 2710TROGInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Affirmative defenses -- Withdrawal of claim -- Agreement whereby medical provider withdrew PIP claim based on prescription created by physician who was under investigation by insurer was not enforceable -- Where insurer intended agreement to invalidate all past and present claims based on physician's prescriptions and to require return of monies paid on past claims, but provider was under impression that signing agreement would resolve all issues with insurer, there was no meeting of minds -- Even if there were meeting of minds, there was no consideration exchanged for withdrawal of claim, inasmuch as insurer did not give or concede anything regarding pursuit of alleged prescription issues in exchange for provider's forbearance from pursuing claim -- Alternatively, insurer breached any agreement to stop investigating physician and provider when it reported physician to Department of Health and cannot thereafter ask court to enforce agreement against provider

27 Fla. L. Weekly Supp. 295a

Online Reference: FLWSUPP 2703MARLInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Timeliness of claim -- Explanation of reimbursement seeking proof of timeliness of billing is not valid request for documentation regarding reasonableness of charges or necessity of treatment under section 627.736(6)(b) -- Even if EOR was valid request for documentation, request sent more than 30 days after receipt of claim is untimely -- Medical provider had no obligation to respond to invalid request for documentation -- Where provider met burden of proving bills were timely mailed to insurer, provider's motion for summary judgment as to insurer's untimely billing defense is granted

27 Fla. L. Weekly Supp. 180a

Online Reference: FLWSUPP 2702ROSAInsurance -- Personal injury protection -- Affirmative defenses -- Failure to comply with recordkeeping standards of administrative rules not lawful basis for nonpayment of PIP benefits -- Motion to strike affirmative defense is granted

27 Fla. L. Weekly Supp. 321b

Online Reference: FLWSUPP 2703PHARInsurance -- Personal injury protection -- Affirmative defenses -- Amendment -- Insurer's motion for leave to amend answer and affirmative defenses to raise demand letter defense was untimely where case involves relatively small amount of money, case had been pending for 14 months at time motion was served, and insurer was unable to provide justification for delay -- Motion to amend was untimely; amendment to allege that demand letter was defective for failing to demand 100% of charges would be futile since letter does make that demand; and granting motion would prejudice medical provider by introducing new issues into litigation

27 Fla. L. Weekly Supp. 197b

Online Reference: FLWSUPP 2702DOWNInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Phrase “allowable amount under the applicable schedule of Medicare Part B for 2007,” as used in PIP statute, refers only to Medicare's participating physicians fee schedule, not to limiting charge

27 Fla. L. Weekly Supp. 209a

Online Reference: FLWSUPP 2702BARTInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Amount -- Medicare fee schedule -- Insurer cannot cap its payment of medical service by using workers' compensation fee schedule where, although allowable amount for service requires a determination on an individualized basis by Medicare contractor, the service at issue is reimbursable under Medicare Part B -- If insurer cannot determine an amount to be paid under Medicare Part B, then the statutory default mechanism is to resort to a “reasonableness” determination -- Question certified: When a PIP insurer has elected the Medicare fee schedule limitation permitted by Florida Statute §627.736(5)(a)1, which provides that the insurer may limit reimbursement to “200 percent of the allowable amount under [t]he participating physicians fee schedule of Medicare Part B,” and the “allowable amount” under the fee schedule is not specified in a general amount but instead must be determined on an individualized basis, is the PIP insurer entitled to limit the reimbursement to 200 percent of the workers' compensation fee schedule?

27 Fla. L. Weekly Supp. 558b

Online Reference: FLWSUPP 2706ASSOInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Exhaustion of policy limits -- Where insurer initially denied coverage for bills submitted by all medical providers based on alleged material misrepresentation, insurer abandoned material misrepresentation defense after plaintiff filed suit to recover PIP benefits, and insurer subsequently exhausted PIP benefits through payments to providers other than plaintiff, summary disposition is entered in favor of insurer -- Plaintiff's claim that insurer paid other providers' claims in excess of amount required by Medicare fee schedule does not create triable issue where there were $5,000 in additional unpaid claims that would be paid before plaintiff's bill was reached

27 Fla. L. Weekly Supp. 418a

Online Reference: FLWSUPP 2704CWILInsurance -- Personal injury protection -- Coverage -- Conditions precedent -- Examination under oath -- Where insured failed to attend properly noticed EUO, insured failed to satisfy condition precedent to coverage and medical provider is not entitled to PIP benefits -- Insurer did not waive right to notice EUO by scheduling EUO more than 30 days after receipt of provider's bills

27 Fla. L. Weekly Supp. 759a

Online Reference: FLWSUPP 2708BELMInsurance -- Personal injury protection -- Complaint -- Amendment -- Motion to amend complaint following confession of judgment for full jurisdictional amount alleged in original complaint is denied, and motion to enforce confession of judgment is granted -- Confession of judgment divested court of jurisdiction and allowing amendment would prejudice insurer

27 Fla. L. Weekly Supp. 341a

Online Reference: FLWSUPP 2704BERCInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Trial court erred in finding that affidavit of medical provider's owner met summary judgment burden on issue of reasonableness of charges where affidavit does not specifically outline methods affiant used to determine that charges were reasonable -- Trial court abused discretion by rejecting affidavit of insurer's expert where affiant explained how his experience led to his opinion on reasonableness of charges and why his experience provided sufficient basis for his opinion -- Error to enter summary judgment in favor of provider on reasonableness issue -- Trial court also erred in entering summary judgment on issue of timeliness of medical bill where insurer presented evidence to refute timely mailing of bill

27 Fla. L. Weekly Supp. 890a

Online Reference: FLWSUPP 2710SRODInsurance -- Personal injury protection -- Answer -- Amendment -- Addition of affirmative defense -- Insurer waived right to raise fraud defense where insurer was aware of purported fraud by medical provider, having filed Department of Health complaint alleging fraud before provider filed suit for PIP benefits, but insurer did not seek to allege defense of fraud during seven years of litigation -- Moreover, insurer abused privilege to amend answer by seeking to amend extremely late in proceedings, and provider would be severely prejudiced by belated proposed amendment -- Motion to amend answer is denied

27 Fla. L. Weekly Supp. 374a

Online Reference: FLWSUPP 2704DBREInsurance -- Property -- Limitation of actions -- Statute of limitations for breach of property insurance cause of action begins to run from date of loss, not date contract is breached

27 Fla. L. Weekly Supp. 830a

Online Reference: FLWSUPP 2709JOACInsurance -- Jurors -- Peremptory challenges -- Medical provider who requested peremptory challenge potentially to be used in selecting alternate juror, but who never attempted to exercise peremptory strike on alternate juror and affirmatively accepted jury panel at conclusion of jury selection, waived request for peremptory challenge -- Expert witnesses -- Trial court did not err in allowing insurer's expert witness to testify where provider's objection to testimony was untimely under pretrial order and provider did not show good cause why objection was untimely -- Even if objection was timely, testimony of accident reconstructionist satisfied Daubert standard where witness established his qualifications and opined on whether accident occurred as reported, not on whether accident could have caused insured's injuries -- Use of insured's examination under oath for impeachment purposes only did not violate pretrial order

27 Fla. L. Weekly Supp. 1044a

Online Reference: FLWSUPP 2712GURIInsurance -- Personal injury protection -- Interest -- Where insurer twice denied payment for PIP benefits to which insured was entitled because of medical provider's failure to submit signed report from initial evaluation, made partial payment of benefits once signed report was received and paid additional benefits after receipt of demand letter, insurer owes provider interest from date that it received initial written notice of covered loss -- Neither PIP statute nor policy requires provider to provide signed initial report as condition precedent to payment

27 Fla. L. Weekly Supp. 1047a

Online Reference: FLWSUPP 2712APERInsurance -- Insured's action against insurer -- Indispensable parties -- Insurer's motion to dismiss, for failure to join indispensable party, an action alleging breach of contract brought by a plaintiff who was one of two persons the policy named as covered and insured, is denied -- Failure to join a potential joint obligee is insufficient to dismiss instant litigation because of outstanding factual issues that must be determined, including whether the other named insured's interest is adverse to that of plaintiff's interest under an agency theory or whether the other named insured has any objection to case proceeding without him

27 Fla. L. Weekly Supp. 375a

Online Reference: FLWSUPP 2704ASCEInsurance -- Homeowners -- Where homeowners policy provides that insurer has 90 days to pay or deny insureds' reopened claim, and insureds filed suit for breach of contract only 18 days after providing insurer with notice of supplemental claim, lawsuit was premature -- Final summary judgment is entered in favor of insurer, which has paid amount of appraisal of supplemental claim plus interest

27 Fla. L. Weekly Supp. 525a

Online Reference: FLWSUPP 2706NUNEInsurance -- Homeowners -- Post-loss obligations -- Examination under oath -- Insurer's unpled defense that insured breached policy by failing to attend EUO was tried by consent and established by evidence -- Insurer entitled to directed verdict on this discrete issue -- Because considerable precedent at time of trial supported position that a carrier could not avoid payment unless failure to attend EUO caused prejudice, new trial granted at which jury will be instructed that insured materially breached contract by failing to appear for EUO and insured will be provided opportunity to show that breach of this post-loss obligation did not prejudice insurer

27 Fla. L. Weekly Supp. 312b

Online Reference: FLWSUPP 2703DPInsurance -- Health maintenance organizations -- Out-of-network provider or non-participating provider -- Record before court does not explain or justify HMO's late and reduced payment to provider -- Medical provider entitled to final judgment for balance of claim and interest

27 Fla. L. Weekly Supp. 773a

Online Reference: FLWSUPP 2708BENJInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Fraud -- Plaintiff who is broker and not 100% long-term lessee of x-ray machine is not entitled to recover charges -- Motion for summary judgment is entered in favor of insurer on fraud issues where plaintiff knowingly submitted false and misleading statements on claim form

27 Fla. L. Weekly Supp. 1003a

Online Reference: FLWSUPP 2712DELAInsurance -- Personal injury protection -- Coverage -- Motorized scooter -- Trial court erred in entering summary judgment in favor of insured who was injured while driving motorized scooter -- There was genuine issue of material fact as to whether scooter was “self-propelled vehicle” such that insured was barred from recovering under terms of PIP statute and policy that provide coverage only when insured is occupant of motor vehicle or not occupant of self-propelled vehicle at time of accident -- Although “self-propelled vehicle” is not defined in policy or statute, features of scooter suggest that it is self-propelled vehicle within ordinary meaning of that term where scooter has two wheels and 49cc motor, is used for transporting persons on roads, and lacks pedals permitting human propulsion

27 Fla. L. Weekly Supp. 303a

Online Reference: FLWSUPP 2703LRODInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Summary judgment -- Motion for summary judgment, requesting determination that nonresident insured with New Hampshire policy is not entitled to additional Florida PIP benefits for accident that occurred in Florida because he had not been in state for 90 days within 365 days prior to accident so as to be required to maintain PIP insurance under section 627.733, is denied -- Evidence -- Hearsay -- Because PIP policy is non-hearsay, unauthenticated copy of policy is admissible in support of motion for summary judgment without the necessity to lay a foundation for its admission as a business record -- Affidavit of claims specialist is admissible in support of motion for summary judgment, but portion of affidavit regarding claims note that relates conversation in which insured told another agent that he had only been in Florida for 3 weeks at time of accident is inadmissible double hearsay -- Business records exception is not applicable to claims note where affiant had no personal knowledge of conversation -- Admissions exception is not applicable to claims note where statements were made by nonparty insured and were not adopted by medical provider or injured claimant

27 Fla. L. Weekly Supp. 1051a

Online Reference: FLWSUPP 2712EMILInsurance -- Evidence -- Motion in limine -- Mere mention of claim handling process at trial would not be prejudicial or, if so, would not be so prejudicial that it could not be cured -- Motion in limine seeking to preclude any reference to insurer's claim handling procedures is denied without prejudice to making appropriate objection at trial -- Discussion of motions in limine

27 Fla. L. Weekly Supp. 122a

Online Reference: FLWSUPP 27021010Insurance -- Personal injury protection -- Evidence -- Deposition of expert witness -- Trial court abused its discretion in allowing insurer to admit deposition of physician as expert witness under rule 1.330 where physician's testimony did not include expert opinion but, rather, disputed factual issue regarding whether billed services were actually rendered, and insurer did not demonstrate that it exercised reasonable due diligence to procure physician's attendance at trial -- Fact that medical provider previously listed physician as expert witness for purpose of having expert witness fee paid for deposition did not invite error -- New trial required where erroneously admitted deposition was only evidence to support jury's finding that there were billed services that were not rendered

27 Fla. L. Weekly Supp. 293a

Online Reference: FLWSUPP 2703BUSAInsurance -- Personal injury protection -- Discovery -- Documents -- Motion to compel production of signed PIP deductible election form is denied where insurer states that it has no such form in its possession and Florida law does not require insurer to obtain such form

27 Fla. L. Weekly Supp. 861a

Online Reference: FLWSUPP 2710TORRInsurance -- Personal injury protection -- Discovery -- Failure to comply -- Sanctions -- Insurer was denied due process at hearing on motion to strike pleadings for failure to comply with discovery orders where insurer had only four days to prepare for hearing and could not obtain testimony of attorney responsible for discovery at time of alleged malfeasance four years earlier -- Kozel factor of whether attorney has previously been sanctioned was not met where attorneys representing insurer have been sanctioned in other cases but attorneys in case at bar have never been sanctioned -- Further, trial court erred in striking pleadings where medical provider's failure to prosecute was major cause for delay in case, not insurer's noncompliance with discovery orders, and less severe sanctions would have cured harm resulting from noncompliance

27 Fla. L. Weekly Supp. 857a

Online Reference: FLWSUPP 2710UNITInsurance -- Discovery -- Expert witnesses -- Order requiring insurer's expert witness to produce proof of current employment referenced in his expert witness affidavit is quashed -- Disclosure of non-party's personal employment contracts cannot be remedied on appeal and exceeds scope of discovery permitted under rule 1.280

27 Fla. L. Weekly Supp. 648a

Online Reference: FLWSUPP 2707TRUJInsurance -- Discovery -- Depositions -- Failure to comply -- Sanctions

27 Fla. L. Weekly Supp. 907a

Online Reference: FLWSUPP 2710TRUJInsurance -- Discovery -- Depositions -- Failure to appear -- Sanctions -- Where insurer failed to appear for three depositions and did not file or schedule motion for protective order prior to first two depositions, motion for sanctions is granted -- Motion for protective order is denied

27 Fla. L. Weekly Supp. 407a

Online Reference: FLWSUPP 2704JETIInsurance -- Discovery -- Depositions -- Failure to provide deposition dates and failure to appear for noticed deposition -- Sanctions

27 Fla. L. Weekly Supp. 422a

Online Reference: FLWSUPP 2704CASHInsurance -- Default -- Vacation -- Where insurer alleged that it failed to comply with order requiring response to complaint because deadline was not properly calendared due to “human error and administrative oversight” but failed to set forth facts explaining or justifying mistake or inadvertence, insurer failed to establish excusable neglect -- Further, where 6 months elapsed between filing second motion to vacate default and hearing on motion, insurer has not established due diligence in seeking to set aside default -- Motion to vacate is denied

27 Fla. L. Weekly Supp. 558a

Online Reference: FLWSUPP 2706JOHNInsurance -- Discovery -- Failure to comply with discovery and court orders -- Sanctions -- Striking of pleadings and entry of default judgment against insurer

27 Fla. L. Weekly Supp. 548a

Online Reference: FLWSUPP 2706SURIInsurance -- Personal injury protection -- Discovery -- Failure to comply -- Sanctions -- Insurer's pleadings are stricken and default judgment is entered in favor of medical provider where insurer violated numerous discovery orders, was placed on notice of seriousness of violations by numerous motions for sanctions, was directly responsible for violations by in-house counsel, and has offered no reason for violations; provider was prejudiced by loss of evidence and loss of right to pursue other parties who were identified in belated discovery after statute of limitations for action against them had expired; and violations have hampered administration of justice

27 Fla. L. Weekly Supp. 546a

Online Reference: FLWSUPP 2706PERSInsurance -- Personal injury protection -- Discovery -- Failure to comply -- Sanctions -- Default -- Where over course of more than seven years insurer has failed to comply with discovery rules and multiple court orders requiring discovery, insurer was unable to offer any credible explanation for continued failure to comply with orders, misconduct was not result of neglect or experience of attorney but is attributable to insurer's disobedience, insurer has previously been sanctioned multiple times by courts, delay prejudiced medical provider by causing it to incur more attorney's fees than claim itself, and delay has created significant problems of judicial administration, insurer's pleadings are stricken and default judgment is entered against insurer

27 Fla. L. Weekly Supp. 908a

Online Reference: FLWSUPP 2710SERRInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Where PIP policy provides that charge submitted for amount less than 200% of allowable amount under Medicare Part B fee schedule shall be paid in amount of charge submitted, insurer was required to pay entire amount of charges that were less than 200% of allowable amount under fee schedule, not 100% of those charges less 20% co-insurance obligation -- Deductible -- PIP statute requires that deductible be subtracted from total medical charges before applying permissive statutory fee schedule

27 Fla. L. Weekly Supp. 946b

Online Reference: FLWSUPP 2711DUMEInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Deductible -- Proper sequence

27 Fla. L. Weekly Supp. 178a

Online Reference: FLWSUPP 2702ROBEInsurance -- Personal injury protection -- Coverage -- Emergency services -- Deductible -- Insurer improperly processed bill of emergency service provider prior to bills received previously from providers not within that classification and, consequently, wrongly applied deductible to emergency service provider's bill -- Insurer proved that insured elected deductible notwithstanding absence of signed deductible election form

27 Fla. L. Weekly Supp. 66b

Online Reference: FLWSUPP 2701JARVNOT FINAL VERSION OF OPINION
Subsequent Changes at 27 Fla. L. Weekly Supp. 389aInsurance -- Personal injury protection -- Coverage -- Emergency services -- Deductible -- Insurer correctly prioritized bill submitted by emergency services provider within 30-day reserve period for bills from such priority providers and, as a result, paid bill out-of-order of receipt; and if deductible was actually elected, insurer properly applied deductible to plaintiff's bills

27 Fla. L. Weekly Supp. 536a

Online Reference: FLWSUPP 2706MOREInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Deductible -- Standing -- Medical provider whose initial gross bill failed to satisfy PIP deductible lacks standing to seek declaration that insurer improperly reduced its bill prior to application of deductible or to allege that reduction breached contract

27 Fla. L. Weekly Supp. 1053a

Online Reference: FLWSUPP 2712MCDOInsurance -- Personal injury protection -- Coverage -- Deductible -- Where medical provider's bill fell within deductible, irrespective of whether insurer reduced bills by application of statutory fee schedule prior to applying resulting sum to deductible or applied total bill to deductible, provider was not damaged by insurer's initial erroneous calculation of amount to be applied to deductible

27 Fla. L. Weekly Supp. 302a

Online Reference: FLWSUPP 2703PIECInsurance -- Personal injury protection -- Coverage -- Deductible -- Even if PIP insurer improperly reduced medical provider's bill through application of statutory fee schedule before applying deductible to charges, where it is undisputed that bill is less than PIP policy deductible, such that bill would not have been reimbursed by PIP insurer whether deductible was applied to 100% of bill or not, provider did not suffer any damages on which to base breach of contract action -- Declaratory action is dismissed -- There is no private right of action for violations of PIP statute

27 Fla. L. Weekly Supp. 389a

Online Reference: FLWSUPP 2704JARVInsurance -- Personal injury protection -- Coverage -- Emergency services -- Deductible -- All claims, including emergency services provider's priority claim, should be properly applied to deductible in order in which they are received -- Insurer erred in paying priority claim out of order of receipt and, as a result, applying it to deductible -- Court declines to certify question

27 Fla. L. Weekly Supp. 67a

Online Reference: FLWSUPP 2701PJARInsurance -- Personal injury protection -- Deductible -- Conflicting evidence as to whether insured elected deductible precludes entry of summary judgment on this issue

27 Fla. L. Weekly Supp. 763a

Online Reference: FLWSUPP 2708VVECInsurance -- Personal injury protection -- Coverage -- Deductible -- Where medical provider's bills fell within deductible, irrespective of whether insurer reduced bills by application of statutory fee schedule prior to applying resulting sum to deductible or applied total bills to deductible, provider was not entitled to reimbursement of PIP benefits -- Despite failure to provide deductible election form, insurer is entitled to summary judgment where insurer presented competent substantial evidence as to deductible amount, and provider did not provide any contrary evidence

27 Fla. L. Weekly Supp. 212a

Online Reference: FLWSUPP 2702MORRInsurance -- Personal injury protection -- Coverage -- Deductible -- Where insurer initially reduced medical provider's bills, which were the first claims received, pursuant to statutory fee schedule and denied claims because resulting amount was less than deductible; and after issuance of Florida Supreme Court opinion requiring that deductible be applied to 100% of a provider's bills, insurer applied deductible to 100% of charges in accordance with new precedent and again denied claims because charges were still less than deductible, summary judgment is entered in favor of insurer

27 Fla. L. Weekly Supp. 117a

Online Reference: FLWSUPP 2702BOUCInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Deductible -- PIP statute requires that deductible be applied to total amount of medical charges before applying statutory fee schedules

27 Fla. L. Weekly Supp. 834b

Online Reference: FLWSUPP 2709MDIAInsurance -- Property -- Declaratory actions -- Neither insurance code, case law, nor policy allows for declaratory action premised on breach of duty to adjust and provide coverage -- Claim for breach of duty to adjust against Citizens Property Insurance Corporation is barred by Citizens' statutory sovereign immunity

27 Fla. L. Weekly Supp. 314b

Online Reference: FLWSUPP 2703TRUJInsurance -- Personal injury protection -- Coverage -- Declaratory action -- Insured's motion for summary judgment as to affirmative defense of no coverage due to material misrepresentation is denied where no such affirmative defense has been raised, and evidence does not show that policy has been cancelled or voided -- Standing -- Notwithstanding fact that insured has assigned her benefits to medical providers, she has standing to pursue declaratory action seeking determination of coverage in light of insurer's alleged voiding of policy

27 Fla. L. Weekly Supp. 285a

Online Reference: FLWSUPP 2703CORTInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Declaratory action -- Action seeking determination as to whether policy language requires insurer to pay full amount of charge submitted when amount of charge is less than amount allowed under statutory fee schedules is appropriate declaratory action -- Neither fact that determination may affect amount of benefits owed nor fact that medical provider could have brought breach of contract action precludes declaratory action -- Pre-suit demand letter is not condition precedent to bringing declaratory action -- Motion to dismiss denied

27 Fla. L. Weekly Supp. 59a

Online Reference: FLWSUPP 2701HARRInsurance -- Personal injury protection -- Coverage -- Declaratory judgment -- Issue of whether policy language requires insurer to pay full amount of charges that are less than amount allowed under statutory fee schedules is appropriate for declaratory action -- Fact that adequate alternative remedy exists at law does not preclude declaratory action -- Motion to dismiss is denied

27 Fla. L. Weekly Supp. 408b

Online Reference: FLWSUPP 2704LANGInsurance -- Declaratory judgments -- Motion to dismiss action seeking coverage declaration, alleging failure to state cause of action and lack of standing by insured, who has assigned benefits to medical providers, is denied -- Discovery -- Insurer that failed to timely respond to discovery requests has waived all objections except privilege

27 Fla. L. Weekly Supp. 90a

Online Reference: FLWSUPP 2613DARDInsurance -- Coverage -- Conditions precedent -- Compulsory medical examination -- Where insurer repudiated insurance policy by suspending insured's benefits, insured has no duty to attend CME

27 Fla. L. Weekly Supp. 330a

Online Reference: FLWSUPP 2703SANTInsurance -- Personal injury protection -- Costs associated with requesst made pursuant to section 627.736(6)(b)

27 Fla. L. Weekly Supp. 892a

Online Reference: FLWSUPP 2710MRODInsurance -- Personal injury protection -- Confession of judgment -- Validity -- Confession of judgment is invalid for failing to indicate exact amount of PIP benefits and statutory interest for which insurer is confessing

27 Fla. L. Weekly Supp. 202a

Online Reference: FLWSUPP 2702CRUZInsurance -- Personal injury protection -- Where medical provider filed complaint seeking damages with maximum jurisdictional amount not to exceed $500, and insurer thereafter filed confession of judgment to maximum jurisdictional amount and stipulated to provider's entitlement to reasonable attorney's fees, insurer made valid confession of judgment and court lacks jurisdiction to consider amended complaint seeking additional damages

27 Fla. L. Weekly Supp. 283a

Online Reference: FLWSUPP 2703MEDIInsurance -- New trial is required where physician who performed compulsory medical examination intentionally made highly prejudicial remarks impugning integrity of plaintiff's counsel and violated order prohibiting him from criticizing plaintiff's treating physicians when he testified that treating physician erred in reading scan -- Defense counsel's questioning of plaintiff about whether she retained a lawyer before she sought medical treatment and closing argument commenting on insurer's wealth and ability to pay money also warrant new trial

27 Fla. L. Weekly Supp. 198a

Online Reference: FLWSUPP 2702IMPEInsurance -- Sanctions imposed on medical provider where provider failed to comply with court order requiring it to serve amended complaint naming correct insurer and improperly obtained order granting leave to belatedly comply with order requiring service of amended complaint through ex parte motion that was heard without notice to insurer

27 Fla. L. Weekly Supp. 1036b

Online Reference: FLWSUPP 2712MASSInsurance -- Complaint -- Amendment -- Where insurer confessed judgment based on jurisdictional limits in original complaint, court lacks jurisdiction to grant medical provider's motion to amend complaint to increase amount in controversy

27 Fla. L. Weekly Supp. 1031a

Online Reference: FLWSUPP 2712LICHInsurance -- Complaint -- Amendment -- Where insurer confessed judgment based on amount sought in original complaint and plaintiff accepted the confession of judgment by cashing the check, matter was settled, leaving nothing left for court to determine other than reasonable attorney's fees and costs -- Medical provider's motion to amend complaint is denied

27 Fla. L. Weekly Supp. 913a

Online Reference: FLWSUPP 2710JONGInsurance -- Complaint -- Amendment -- Motion to amend complaint to allege higher jurisdictional amount after insurer confessed judgment for minimal jurisdictional amount alleged in original complaint and first amended complaint is denied -- Amendment would prejudice insurer

27 Fla. L. Weekly Supp. 976a

Online Reference: FLWSUPP 2610CHAVInsurance -- Personal injury protection -- Provider's motion for leave to file amended reply which would interject new and inconsistent theory of recovery over five years into litigation, sought by provider after defendant had prevailed before the Florida Supreme Court on the sole issue pled and litigated in the case, is denied -- Motion to strike or exclude unpled issues is granted

27 Fla. L. Weekly Supp. 191a

Online Reference: FLWSUPP 2702BURGInsurance -- Personal injury protection -- Pleadings make clear that PIP case solely involved issue decided by Florida Supreme Court decision in Orthopedic Specialists regarding sufficiency of insurer's policy language to elect use of statutory fee schedules for reimbursement of PIP benefits -- Motion to strike or exclude deductible issue which was raised by medical provider only after appellate case was decided adversely to provider's position is granted

27 Fla. L. Weekly Supp. 1037b

Online Reference: FLWSUPP 2712FEIJInsurance -- Personal injury protection -- Cancellation of policy -- Notice -- Although insurer represented throughout discovery that one-page document was entire certificate of mailing of notice of cancellation of policy, when actual certificate was more than 300 pages long, and insurer destroyed complete document during litigation, motion to strike insurer's pleadings is denied -- Trial court is reluctant to find that destruction was malicious -- Even if destruction were inadvertent, document was relevant evidence material to insured's ability to counter insurer's cancellation defense, and insured was prejudiced by its destruction -- Certificate of mailing is stricken

27 Fla. L. Weekly Supp. 530a

Online Reference: FLWSUPP 2706NADEInsurance -- Property -- Bad faith claim -- Damages -- Partial summary judgment is entered in favor of insurer in action alleging bad faith handling of property insurance claim for damages based on public adjuster fees, interest on belated settlement payment issued in underlying breach of contract action and loss of enjoyment and use of property

27 Fla. L. Weekly Supp. 96b

Online Reference: FLWSUPP 2701JUSTInsurance -- Automobile -- Windshield repair -- Insurer has burden of proving that it paid “prevailing competitive price” and that repair shop's invoiced price exceeds “prevailing competitive price” at time of loss

27 Fla. L. Weekly Supp. 752a

Online Reference: FLWSUPP 2708SEEDInsurance -- Automobile -- Windshield replacement -- Prevailing competitive price -- Term “prevailing competitive price,” used in limit of liability clause in automobile insurance policy and described as “price we can secure from competent and conveniently located repair facility,” was ambiguous -- Even if policy were not ambiguous, plaintiff established prima facie case of breach of contract with supporting affidavits of repair facility's record custodian and experienced technician, who both testified the amounts charged on invoice reflected total price that is both prevailing and competitive in area in which services were provided -- Insurer failed to meet its burden to establish that amount sought was limited by terms of policy -- Corporate representative's affidavit which did not identify any methodology as to how prevailing competitive price was determined, provide any date relating to “prevailing” or “competitive” prices; did not provide any information as to why repair done and amount charged should not be considered prevailing competitive price, and used conclusory statements -- Plaintiff's motion for summary judgment granted

27 Fla. L. Weekly Supp. 28a

Online Reference: FLWSUPP 2701JENNInsurance -- Automobile -- Windshield repair -- Discovery -- Trade secrets -- Trial court erred in ordering insurer to disclose negotiated pricing and program pricing information where information is not relevant to claim of untimely payment -- Further, such pricing information is not relevant to issue of whether insurer paid “prevailing competitive price” required by policy, which is defined as price insurer can secure in competitive market, not price insurer can only obtain through non-open-market transaction -- Trial court also erred in requiring disclosure of information it determined to be trade secrets without providing safeguards

27 Fla. L. Weekly Supp. 560a

Online Reference: FLWSUPP 2706PETRInsurance -- Automobile -- Windshield replacement -- Discovery -- Depositions -- If insurer refuses to produce corporate representative able and willing to testify meaningfully about means of determining reimbursement for windshield replacement, it will be precluded from presenting evidence as to what it perceives to be “prevailing competitive price” -- Insurer must produce corporate representative to testify concerning range of prices charged in geographic area -- Documents -- As to discovery requests to which insurer claims trade secret and attorney-client privileges, insurer is ordered to deliver materials for in camera inspection to determine applicability of privileges

27 Fla. L. Weekly Supp. 327b

Online Reference: FLWSUPP 2703WOMAInsurance -- 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 motion to 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 requiring appraiser to determine actual cash value and amount of loss, which is not relevant to cost to repair windshield

27 Fla. L. Weekly Supp. 1043b

Online Reference: FLWSUPP 2712DAVIInsurance -- Automobile -- Windshield repair -- Appraisal -- Prohibitive cost doctrine -- Where repair shop contests insurer's motion to compel appraisal of windshield repair claim on grounds of prohibitive cost doctrine, evidentiary hearing is required on shop's ability to pay appraisal fees and costs, expected cost differential between appraisal and litigation, and whether cost differential is so substantial as to deter bringing claims

27 Fla. L. Weekly Supp. 1043a

Online Reference: FLWSUPP 2712MILLInsurance -- Automobile -- Windshield repair -- Appraisal -- Prohibitive cost doctrine -- Where repair shop contests insurer's motion to compel appraisal of windshield repair claim on grounds of prohibitive cost doctrine, evidentiary hearing is required on shop's ability to pay appraisal fees and costs, expected cost differential between appraisal and litigation, and whether cost differential is so substantial as to deter bringing claims

27 Fla. L. Weekly Supp. 1042b

Online Reference: FLWSUPP 2712KARLInsurance -- Automobile -- Appraisal -- Prohibitive cost doctrine -- Where plaintiff contests insurer's motion to compel appraisal of claim on grounds of prohibitive cost doctrine, evidentiary hearing is required on plaintiff's ability to pay appraisal fees and costs, expected cost differential between appraisal and litigation, and whether cost differential is so substantial as to deter bringing claims

27 Fla. L. Weekly Supp. 1042a

Online Reference: FLWSUPP 2712THOMInsurance -- Automobile -- Windshield repair -- Appraisal -- Prohibitive cost doctrine -- Where repair shop contests insurer's motion to compel appraisal of windshield repair claim on grounds of prohibitive cost doctrine, evidentiary hearing is required on shop's ability to pay appraisal fees and costs, expected cost differential between appraisal and litigation, and whether cost differential is so substantial as to deter bringing claims

27 Fla. L. Weekly Supp. 654a

Online Reference: FLWSUPP 2707CRODInsurance -- Automobile -- Coverage -- Rescission -- Where insurer's underwriting manual authorized policy recission if risk was materially misrepresented and unacceptable by rules of manual, insurer was not permitted to rescind policy of insured who failed to disclose new address that would have necessitated additional premium, but which did not constitute unacceptable risk or violate rules of underwriting manual

27 Fla. L. Weekly Supp. 452a

Online Reference: FLWSUPP 2705ZEROInsurance -- Automobile -- Repairs -- Trial court properly rendered final judgment in favor of insurer following non-jury trial in breach of contract action brought by repair shop/assignee after concluding that plaintiff failed to prove breach of contract or damages

27 Fla. L. Weekly Supp. 647b

Online Reference: FLWSUPP 2707KAUFInsurance -- Automobile -- Windshield repair -- Appraisal -- Plaintiff seeking declaration that appraisal in context of windshield repair claim violates prohibitive cost doctrine -- Evidentiary hearing to be conducted on issues of plaintiff's ability to pay appraisal fees and costs, expected cost differential between appraisal and litigation, and whether cost differential is so substantial as to deter bringing of claims

27 Fla. L. Weekly Supp. 66a

Online Reference: FLWSUPP 2701NBROInsurance -- Attorney's fees -- Sanctions award -- Amount

27 Fla. L. Weekly Supp. 232b

Online Reference: FLWSUPP 2703REGOInsurance -- Attorney's fees -- Proposal for settlement -- Error to deny motion for attorney's fees on ground that proposal for settlement did not strictly comply with rule 1.442 -- Proposal is unambiguous and, therefore, enforceable

27 Fla. L. Weekly Supp. 301a

Online Reference: FLWSUPP 2703NEWInsurance -- Attorney's fees -- Proposal for settlement -- Striking -- Proposal for settlement is not ambiguous for specifying one amount for damages and one amount for attorney's fees -- Court does not have authority to strike proposal that is not a pleading

27 Fla. L. Weekly Supp. 156a

Online Reference: FLWSUPP 2702YEARInsurance -- Property -- Appraisal -- Disinterested appraiser -- Public adjuster whose employer was retained on contingent fee basis by insureds, provided initial public adjustment of claim on behalf of insureds, and has fiduciary relationship with insureds as result of contract is not “disinterested” appraiser as required by policy

27 Fla. L. Weekly Supp. 882a

Online Reference: FLWSUPP 2710SANTInsurance -- Appraisal -- Disinterested appraiser -- Neither public adjuster who was hired as loss consultant for plaintiffs and produced estimate for plaintiffs prior to invocation of appraisal nor anyone affiliated with adjuster's firm satisfy policy appraisal provision's requirement for disinterested appraiser

27 Fla. L. Weekly Supp. 954a

Online Reference: FLWSUPP 2711GAINInsurance -- Homeowners -- Additional named insured under homeowners policy is not indispensable party to action concerning payment of benefits under policy

27 Fla. L. Weekly Supp. 1018a

Online Reference: FLWSUPP 2712BASCInsurance -- Homeowners -- Coverage -- Affidavit and report of insured's expert is insufficient to preclude entry of summary judgment in favor of insurer that denied coverage for alleged windstorm damage to roof where affidavit and report, which are conclusory and lack any supporting evidence or tests performed to support conclusions, fail to meet admissibility standards outlined in Gonzalez v. Citizens Property Insurance Corporation

27 Fla. L. Weekly Supp. 179a

Online Reference: FLWSUPP 2702MCHEInsurance -- Personal injury protection -- Attorney's fees -- Proposal for settlement -- Pending discovery is not cause to allow extension of time for medical provider to respond to proposal for settlement

27 Fla. L. Weekly Supp. 293b

Online Reference: FLWSUPP 2703QUINInsurance -- Attorney's fees -- Proposal for settlement -- Motion for enlargement of time to respond to insurer's proposal for settlement beyond 30-day period provided in rule is denied

27 Fla. L. Weekly Supp. 533a

Online Reference: FLWSUPP 2706BELLInsurance -- Homeowners -- Attorney's fees -- Prevailing party -- Where insurer made no payment on insured's claim because it valued damage to home at less than amount of deductible, insurer was unaware of any dispute as to valuation of damage until insured filed suit, and once suit was filed insurer invoked appraisal process and paid amount of appraised damage less deductible, insurer neither breached policy nor made confession of judgment -- Insured's motion for attorney's fees and costs is denied

27 Fla. L. Weekly Supp. 557a

Online Reference: FLWSUPP 2706MCKIAttorney's fees -- Insurance -- Prevailing party -- Amount

27 Fla. L. Weekly Supp. 925b

Online Reference: FLWSUPP 2711FELDInsurance -- Personal injury protection -- Attorney's fees -- Attorney who was discharged by medical provider before suit for PIP benefits was filed may not recover attorney's fees against insurer who ultimately settled suit with provider -- Section 627.428 precludes recovery of pre-suit fees, insurer did not act unreasonably so as to justify award of pre-suit fees, and charging lien does not compel insurer to pay pre-suit fees when attorney's work did not produce positive result for provider

27 Fla. L. Weekly Supp. 400a

Online Reference: FLWSUPP 2704WELCInsurance -- Personal injury protection -- Attorney's fees -- Proposal for settlement is not valid where complaint alleged both monetary and non-monetary claims -- Although medical provider did not formally plead claim for declaratory judgment, allegations of complaint indisputably demonstrate that provider was seeking declaration of its rights under statutory provisions allegedly violated by PIP insurer, and claim for declaration of rights was not subsumed within breach of contract claim -- Ambiguity -- Proposal language requiring provider to “fully settle and dismiss all direct claims and causes of action pled by or available to plaintiff” is ambiguous where language could extinguish provider's right to any portion of recovery in insured's bodily injury suit -- Further, nominal proposal was not made in good faith where issue of whether exhaustion of benefits after making a reduced payment that is later determined to be unlawful was proper was being hotly litigated at time insurer made offer, so that insurer only had 50% chance of prevailing on this issue at time of offer -- Insurer's motion for entitlement to attorney's fees is denied

27 Fla. L. Weekly Supp. 648b

Online Reference: FLWSUPP 2707PORTInsurance -- Discovery -- Depositions -- Protective order

27 Fla. L. Weekly Supp. 906a

Online Reference: FLWSUPP 2710MARSInsurance -- Personal injury protection -- Attorney's fees -- Justiciable issues -- Safe harbor period -- Argument that, under mailbox rule, medical provider had additional five days beyond safe harbor period of section 57.105 to dismiss action is without merit

27 Fla. L. Weekly Supp. 488a

Online Reference: FLWSUPP 2705SCHOAttorney's fees -- Insurance -- Claim or defense not supported by material facts or applicable law -- Where medical provider persisted in suit despite being repeatedly notified by insurer of error in pursuing action in Florida court when policy clearly required submission to arbitration upon election by insurer, insurer is entitled to attorney's fees -- Insurer can collect fees under section 57.105 in case filed in Florida court irrespective of fact that case involves claim that is controlled by New Jersey policy and New Jersey law

27 Fla. L. Weekly Supp. 95a

Online Reference: FLWSUPP 2701SAINInsurance -- Personal injury protection -- Attorney's fees -- Claim or defense not supported by material facts or applicable law -- Where medical provider failed to provide assignment of benefits to refute defense of lack of standing until after it voluntarily dismissed complaint, insurer is entitled to attorney's fees and costs

27 Fla. L. Weekly Supp. 744a

Online Reference: FLWSUPP 2708KMCDInsurance -- Personal injury protection -- Attorney's fees -- Claim or defense not supported by material facts or applicable law -- Motion for rehearing of order awarding attorney's fees and costs to insurer is denied

27 Fla. L. Weekly Supp. 743b

Online Reference: FLWSUPP 2708MCDOInsurance -- Personal injury protection -- Attorney's fees -- Claim or defense not supported by material facts or applicable law -- Where medical provider knew or should have known that pre-suit demand letter did not comply with statutory requirements and did not dismiss action within 21-day period following safe harbor period, insurer is entitled to attorney's fees and costs

27 Fla. L. Weekly Supp. 309a

Online Reference: FLWSUPP 2703HERNInsurance -- Personal injury protection -- Attorney's fees -- Claim or defense not supported by material facts or applicable law -- Insurer entitled to attorney's fees pursuant to section 57.105(1) where presuit demand letter did not strictly comply with statute, and plaintiff's attorney knew or should have known that demand letter was defective and failed to satisfy condition precedent to filing suit -- Demand letter did not strictly comply with statute where letter failed to account for prior partial payment made by insurer -- Costs -- Insurer also entitled to taxable costs pursuant to rule 1.420(d) where plaintiff voluntarily dismissed claim -- Waiver -- Insurer did not waive its defense pertaining to plaintiff's failure to strictly comply with presuit notice requirements by failing to raise the issue presuit where insurer raised affirmative defense of a defective demand letter in its answer and subsequent motions -- Affirmative defense was sufficiently specific to put plaintiff on notice

27 Fla. L. Weekly Supp. 898a

Online Reference: FLWSUPP 2710FRIEInsurance -- Personal injury protection -- Attorney's fees -- Claim or defense not supported by material facts or applicable law -- Insurer's motion for section 57.105 sanctions against medical provider who pursued action for PIP benefits despite being advised that benefits had been exhausted is denied where provider had arguable basis to believe that some payments made by insurer to other providers were gratuitous

27 Fla. L. Weekly Supp. 1039a

Online Reference: FLWSUPP 2712AGUIInsurance -- Homeowners -- Insurer violated section 627.70131(5)(a) by failing to pay or deny claim for homeowners insurance benefits within 90 days -- Where insurer confessed judgment by paying claim after suit was filed, plaintiff water remediation company is entitled to attorney's fees and costs

27 Fla. L. Weekly Supp. 1026a

Online Reference: FLWSUPP 2712LINIAttorney's fees -- Insurance -- Homeowners -- Motion to strike request for attorney's fees pursuant to section 627.428 in action brought by assignee of homeowners property insurance is stricken -- Attorney's fees in such actions have been controlled by section 627.7152(10) since May 24, 2019

27 Fla. L. Weekly Supp. 312a

Online Reference: FLWSUPP 2703MRHInsurance -- Health maintenance organizations -- Out-of-network or non-participating provider rate -- Inpatient emergency services provider -- Reduction of claim to “allowed amount” -- Because there was no contractual relationship between provider and HMO, rate of reimbursement was to be determined by section 641.513(5), which provides that reimbursement rate is lesser of provider's charges, the usual and customary provider charges in the community, or a charge mutually agreed upon by HMO and provider within 60 days of submittal of claim -- Because HMO failed to prove that “allowed amount” reduction of claim was agreed to by parties or the usual and customary charge in community, HMO was required to reimburse full amount of medical provider's charge -- HMO is also required to pay interest on overdue claim -- Provider entitled to attorney's fees and costs pursuant to section 641.28

27 Fla. L. Weekly Supp. 311a

Online Reference: FLWSUPP 2703RTInsurance -- Health maintenance organizations -- Out-of-network or non-participating provider -- Reimbursement rate -- Reduction of claim to “allowed amount” -- Because there was no contractual relationship between provider and HMO, rate of reimbursement was to be determined by section 641.513(5), which provides that reimbursement rate is lesser of provider's charges, the usual and customary provider charges in the community, or a charge mutually agreed upon by HMO and provider within 60 days of submittal of claim -- Because HMO failed to prove that “allowed amount” reduction of claim was agreed to by parties or the usual and customary charge in community, HMO was required to reimburse full amount of medical provider's charge -- HMO is also required to pay interest on overdue claim -- Provider entitled to attorney's fees and costs pursuant to section 641.28

27 Fla. L. Weekly Supp. 480a

Online Reference: FLWSUPP 2705GRAttorney's fees -- Insurance -- Expert witness fees -- Expert witness on reasonableness of attorney's fees is entitled to witness fee to be taxed as costs

27 Fla. L. Weekly Supp. 549a

Online Reference: FLWSUPP 2706DIAZInsurance -- Personal injury protection -- Attorney's fees -- Confession of judgment -- Where insurer paid benefits and interest in check that was sent to medical provider rather than payee identified in demand letter and was cashed in error by separate entity unaffiliated with provider, and payment did not include statutorily required postage and penalty, payment does not relieve insurer of its obligation to pay provider pursuant to notice of confession of judgment, and provider is entitled to award of attorney's fees -- Motion to enforce confession of judgment is granted

27 Fla. L. Weekly Supp. 785a

Online Reference: FLWSUPP 2709GOMEInsurance -- Personal injury protection -- Attorney's fees -- Charging lien -- Medical provider appeals final judgment determining that discharged attorney that formerly represented provider in action for PIP benefits that eventually ended in settlement was entitled to attorney's fees beyond amount of global settlement -- No merit to argument that attorney has statutory right, under section 627.428, to proceed against provider for attorney's fees rather than having fees capped by terms of settlement -- Statute is inapplicable to claim for fees pursuant to charging lien -- Remand for evidentiary hearing to determine apportionment of settlement between discharged attorney and successor attorney -- Trial court further erred by awarding expert witness fee and other costs incurred in prosecuting charging lien

27 Fla. L. Weekly Supp. 129a

Online Reference: FLWSUPP 2702MARQInsurance -- Attorney's fees -- Appellate attorney's fees granted contingent on finding that insurer filed valid proposal for settlement and satisfied requirements of proposal for settlement statute

27 Fla. L. Weekly Supp. 735b

Online Reference: FLWSUPP 2708DELOAttorney's fees -- Insurance -- Personal injury protection -- Amount

27 Fla. L. Weekly Supp. 734b

Online Reference: FLWSUPP 2708FERNAttorney's fees -- Insurance -- Amount

27 Fla. L. Weekly Supp. 270a

Online Reference: FLWSUPP 2703CITIInsurance -- Homeowners -- Appraisal -- Specific performance -- Jurisdiction -- Amount in controversy below $15,000 -- Circuit court has jurisdiction over insurer's action seeking specific performance of appraisal clause where, although amount in controversy does not exceed $15,000, section 26.012(2)(c) grants circuit courts subject matter jurisdiction in all cases in equity and contains no amount in controversy threshold -- Circuit court may not abdicate its jurisdiction by transferring case to county court -- Court rejects argument that a dispute over reasonableness of amount charged for completed mitigation services is not a “disagreement regarding the amount of covered loss” for purposes of appraisal provision -- Dispute is clearly over the amount of loss and within scope of appraisal provision regardless of whether loss had already been mitigated and “invoiced,” or was to be repaired in future and “estimated” -- Appraisal provision is not ambiguous -- Waiver -- Insurer's right to appraisal was not waived by filing lawsuit seeking appraisal as the filing of the lawsuit was obviously not inconsistent with the right of appraisal itself -- Insurer did not waive right to appraisal by failing to comply with section 627.7015(2) where insurer advised policyholder of the right to participate in mediation program -- Current version of section 627.7015(2) imposes no requirement that insurer notify an assignee -- Appraisal provision is not unconscionable merely because, given the costs of appraisal, assignee would allegedly recover far less for its services than it could have reasonably anticipated when it entered into contract with insureds

27 Fla. L. Weekly Supp. 88a

Online Reference: FLWSUPP 2701ESCAInsurance -- Attorney's fees -- Contingency risk multiplier of 1.5 awarded -- Expert witness fees -- Taxable costs -- Case involving denial of insurance coverage based on alleged material misrepresentation in application for insurance

27 Fla. L. Weekly Supp. 758a

Online Reference: FLWSUPP 2708PEREInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Condition precedent -- Provision of claimant's social security number to insurer -- Where insurer did not make specific denial of complaint's allegation that all conditions precedent had been met or file affirmative defense claiming failure to comply with condition precedent, trial court will not consider defense of failure to comply with condition precedent on motion for summary judgment -- Non-cooperation -- Claimants' failure to provide their social security numbers to insurer did not violate cooperation clause of PIP policy where clause does not require provision of social security numbers -- Speculative chance that insurer may be required to provide social security numbers to federal government if government seeks to recoup Medicare benefits paid on behalf of claimants does not support non-cooperation defense where there is no basis to assume that claimants are Medicare-eligible, and federal law does not require claimants to provide or even have social security numbers

27 Fla. L. Weekly Supp. 831a

Online Reference: FLWSUPP 2709DSInsurance -- Standing -- Assignment -- Document that assigns “benefits of insurance” to medical provider is valid assignment -- Insurer may not attack validity of assignment

27 Fla. L. Weekly Supp. 620a

Online Reference: FLWSUPP 2707MCCAInsurance -- Homeowners -- Insureds' assignment of benefits to repair service for repairs to insureds' homestead property did not violate homestead protection provisions of Florida Constitution -- Insurer's motion to dismiss assignee's action against it and alternative motion for summary judgment are denied

27 Fla. L. Weekly Supp. 360a

Online Reference: FLWSUPP 2704RUIZInsurance -- Appraisal -- Disinterested appraiser -- Financial interest in outcome -- Insured's selected appraiser was not disinterested as mandated by the policy where appraiser's employer was entitled to receive a percentage of the appraisal award pursuant to a contingency agreement between appraiser's employer and the insured -- One who has a direct financial interest in the outcome of a case is, by definition, not “disinterested” -- Court is convinced that previous appellate court decisions which held that a “contingent fee-appraiser” was qualified have been called into question by subsequent material changes to the Code of Ethics for Arbitrators in Commercial Disputes, which the prior holdings heavily relied upon

27 Fla. L. Weekly Supp. 682a

Online Reference: FLWSUPP 2708OCONInsurance -- Automobile -- Windshield repair -- Appraisal -- Trial court erred in denying motion to compel appraisal of claim for windshield repair on ground that request for appraisal was unclear or ineffective because it was accompanied by check for amount insurer deemed to be appropriate for services rendered -- Motion to compel appraisal should have been granted where valid appraisal agreement exists, disagreement as to amount of reimbursement raises appraisable issue, and insurer did not waive appraisal rights by sending check for claim while invoking appraisal rights prior to litigation

27 Fla. L. Weekly Supp. 674b

Online Reference: FLWSUPP 2708MCGICriminal law -- Stalking -- State presented sufficient evidence to permit jury to find that defendant willfully, maliciously, and repeatedly followed or harassed the victim -- Trial court, in granting defendant's post-verdict motion for judgment of acquittal, applied wrong standard when it failed to view evidence in light most favorable to state -- Remand for reinstatement of jury verdict of guilty and for sentencing

27 Fla. L. Weekly Supp. 736a

Online Reference: FLWSUPP 2708HAMMInsurance -- Automobile -- Windshield repair -- Appraisal -- Motion to dismiss repair shop's complaint or to compel appraisal is denied -- Appraisal provision in insurance policy violates public policy by purporting to eliminate plaintiff's right to recover attorney's fees and costs -- Provision is invalid and unenforceable due to lack of procedures and methodologies governing appraisal process and determinations of appraisers and umpire -- Even if provision were valid and enforceable, insurer waived right to compel appraisal by seeking to dismiss suit due to lack of standing, which position is inconsistent with appraisal remedy -- Even if insurer did not waive right to compel appraisal, disputed factual issues regarding whether assignor of repair shop who is not named insured knowingly and voluntarily waived right to access to courts and whether appraisal provision violates prohibitive cost doctrine prevent court from compelling appraisal before discovery and evidentiary hearing on those issues

27 Fla. L. Weekly Supp. 773c

Online Reference: FLWSUPP 2708LAVOInsurance -- Automobile -- Appraisal -- Prohibitive cost doctrine -- Inability of plaintiff to pay costs of appraisal can be element of invoking prohibitive cost doctrine, but it is not necessary element -- Where plaintiff has demonstrated that differential between relatively small amount of liquidated damages and significantly higher costs of appraisal would act as deterrent to bringing claim, evidence is sufficient for plaintiff to invoke prohibitive cost doctrine as defense to motion to compel appraisal

27 Fla. L. Weekly Supp. 754a

Online Reference: FLWSUPP 2708LINAInsurance -- Automobile -- Appraisal -- Prohibitive cost doctrine -- Inability of plaintiff to pay costs of appraisal can be element of invoking prohibitive cost doctrine, but it is not necessary element

27 Fla. L. Weekly Supp. 743a

Online Reference: FLWSUPP 2708ENRIInsurance -- Automobile -- Windshield repair -- Appraisal -- Prohibitive cost doctrine -- Where repair shop contests insurer's motion to compel appraisal of windshield repair claim on grounds of prohibitive cost doctrine, evidentiary hearing is required on shop's ability to pay appraisal fees and costs, expected cost differential between appraisal and litigation, and whether cost differential is so substantial as to deter bringing claims

27 Fla. L. Weekly Supp. 489b

Online Reference: FLWSUPP 2705FERNInsurance -- Automobile -- Windshield replacement -- Appraisal -- Motion to abate and compel appraisal of cost of windshield replacement is granted where appraisal clause is clear and unambiguous and provides simple informal appraisal process, issues are appropriate for appraisal, and insurer has not waived right to appraisal -- Appraisal does not violate prohibitive cost doctrine

27 Fla. L. Weekly Supp. 325a

Online Reference: FLWSUPP 2703STEWInsurance -- Automobile -- Windshield repair -- Appraisal -- Prohibitive cost doctrine -- Windshield repair shop is entitled to evidentiary hearing on applicability of prohibitive cost doctrine to insurer's request for appraisal -- Insurer is estopped from arguing against shop's request for hearing where insurer has successfully argued in other cases that evidentiary hearing was required

27 Fla. L. Weekly Supp. 314a

Online Reference: FLWSUPP 2703CARBInsurance -- Automobile -- Windshield repair -- Appraisal -- Prohibitive cost doctrine -- Where repair shop contests insurer's motion to compel appraisal of windshield repair claim on grounds of prohibitive cost doctrine, evidentiary hearing is required on issues of shop's ability to pay appraisal fees and costs, expected cost differential between appraisal and litigation, and whether cost differential is so substantial as to deter bringing claims

27 Fla. L. Weekly Supp. 71a

Online Reference: FLWSUPP 2701DRAPInsurance -- Personal injury protection -- Application -- Misrepresentations -- PIP policy application requesting “names of all drivers in household, names of all children and all persons that use vehicles” is ambiguous -- Where insured did not list household resident who has never been driver of vehicle, but did place insurer on notice of unlisted household resident by electing deducible for named insured and dependent resident relatives, insurer cannot rely on omission to rescind policy -- Insurer breached policy where it notified medical provider of coverage investigation under section 627.736(4)(i) but failed to pay claim within allotted additional 60 days -- Rescission -- Policy was not properly rescinded where insurer returned premiums 120 days after it learned of alleged misrepresentation but did not return policy fees until 694 days later and never paid interest on premiums and fees

27 Fla. L. Weekly Supp. 1046a

Online Reference: FLWSUPP 2712ACELInsurance -- Personal injury protection -- Coverage -- Application -- Material misrepresentation defense fails where application was ambiguous as to whether insured was required to disclose adult household resident who did not hold driver's license and had never driven insured vehicle -- Ambiguity could not be overcome by assertion that insurance agent explained to insured that he was required to list all persons in his household who are 15 years of age or older, whether licensed or not

27 Fla. L. Weekly Supp. 1040a

Online Reference: FLWSUPP 2712GARCInsurance -- Personal injury protection -- Coverage -- Application -- Material misrepresentation defense fails where application was ambiguous as to whether insured was required to disclose adult household resident who did not hold driver's license and had never driven insured vehicle -- Ambiguity could not be overcome by assertion that insurance agent explained to insured that she was required to disclose anyone living at the same address 14 years or older

27 Fla. L. Weekly Supp. 753a

Online Reference: FLWSUPP 2708ACELInsurance -- Personal injury protection -- Coverage -- Application -- Material misrepresentation defense fails where application was ambiguous as to whether insured was required to disclose adult household resident who did not hold driver's license and had never driven insured vehicle -- Ambiguity could not be overcome by assertion that insurance agent explained to insured that he was required to disclose all persons in household age 15 or older whether licensed or not

27 Fla. L. Weekly Supp. 392a

Online Reference: FLWSUPP 2704BLOOInsurance -- Personal injury protection -- Coverage -- Denial -- Waiver -- Insurer waived the ability to investigate or deny claim based on insured's alleged material misrepresentation because defendant violated PIP statute by failing to pay or deny the claim within 30 days and did not invoke the additional time limitation under section 627.736(4)(i)

27 Fla. L. Weekly Supp. 391a

Online Reference: FLWSUPP 2704CORBInsurance -- Personal injury protection -- Coverage -- Affirmative defenses -- Material misrepresentations on application -- Materiality -- Marital status and garaging address -- Listing of marital status as “single,” per agent's instruction after insured told agent she was “separated” was not a material misrepresentation in and of itself -- Claim that garaging location was misrepresented was refuted by insured's undisputed sworn testimony -- Further, insurer was itself in breach of policy at time it denied claims because it failed to notify claimant in writing within 30 days of date of claim that they were investigating the claim for fraud and failed to pay or deny claim within 90 days of claim being initiated -- Plaintiff's motion for partial summary judgment granted

27 Fla. L. Weekly Supp. 906b

Online Reference: FLWSUPP 2710CHAVInsurance -- Personal injury protection -- Rescission -- Misrepresentation on application -- Insurer did not properly rescind policy based on alleged material misrepresentation in insurance application where insurer did not notify claimant in writing within 30 days of submission of claim that claim was being investigated for suspected fraud -- Even if insurer provided timely notice as required by statute, insurer failed to pay or deny the claim at the end of 90-day extended period

27 Fla. L. Weekly Supp. 979a

Online Reference: FLWSUPP 2711MONTInsurance -- Personal injury protection -- Application -- Misrepresentations -- Where PIP policy application requests information for “Drivers,” insured was not required to disclose household member who did not drive insured vehicle -- Insurer may not rely on premium quote documents in support of claim that disclosure of additional household member would have resulted in increased premium where insurer claimed that documents were privileged during discovery -- Absent quote documents, there is no evidence that disclosure of household member would have resulted in higher premium -- Where insurer violated PIP statute by failing to pay or deny claim within 30 days, and did not invoke additional time available under section 627.736(4)(i), insurer waived ability to investigate or deny claim based on alleged material misrepresentation

27 Fla. L. Weekly Supp. 863a

Online Reference: FLWSUPP 2710MARRInsurance -- Appeals -- Absent transcript of hearing on motion for summary judgment, appellate court cannot determine whether issue raised on appeal was presented to trial court -- Affirmance is required

27 Fla. L. Weekly Supp. 132a

Online Reference: FLWSUPP 2702HINCInsurance -- Personal injury protection -- Appeals -- Timeliness -- Appeal filed more than thirty days after entry of final judgment is dismissed for lack of jurisdiction

27 Fla. L. Weekly Supp. 35a

Online Reference: FLWSUPP 2701PRUDInsurance -- Appeals -- Supplemental authority -- Response -- Rule 9.225 does not permit filing of response to notice of supplemental authority

27 Fla. L. Weekly Supp. 130b

Online Reference: FLWSUPP 2702ACEVInsurance -- Personal injury protection -- Coverage -- Lawfully rendered services -- Appeals -- Cross-appeals -- Interlocutory order denying summary judgment on insurer's affirmative defense of unlawfulness that was entered prior to entirely favorable summary judgment in favor of insurer may be cross -- appealed by insurer -- Insurer may raise defense that medical provider's license was unlawful under licensing statute and, therefore, provider is statutorily barred from seeking reimbursement for services rendered

27 Fla. L. Weekly Supp. 990a

Online Reference: FLWSUPP 2712GRIMInsurance -- Automobile -- Windshield repair -- Appraisal -- Appeals -- Certiorari -- Petition for writ of certiorari challenging trial court's order abating action for 120 days in order for parties to engage in appraisal process is denied -- Added time and expense of engaging in perhaps unnecessary and inappropriate appraisal does not rise to level of irreparable harm that justifies certiorari review -- Trial court's dismissal of count for declaratory relief does not result in irreparable harm where repair shop may yet prevail in some aspect of case that would render dismissal of action for declaratory relief moot

27 Fla. L. Weekly Supp. 383b

Online Reference: FLWSUPP 2704SMITInsurance -- Personal injury protection -- Application -- Misrepresentations -- Agency relationship between producer and insurer -- Clear agency relationship between producer and insurer was established where PIP insurer provided blank applications, a manual, and underwriting guidelines to producer in order for him to sell insurance to insured; insurer accepted business from producer once producer and insured signed application for its insurance; producer was assigned producer code that appeared on insured's application; and no limitations as to producer's authority were announced to insured

27 Fla. L. Weekly Supp. 425a

Online Reference: FLWSUPP 2704CLUCInsurance -- Personal injury protection -- Affirmative defenses -- Accord and satisfaction -- Insurer's check for reduced payment of bills with notation that it was “full and final” did not effect accord and satisfaction where there was nothing in record indicating existence of preexisting dispute between parties -- Further, “full and final” language on check in same size as surrounding text and not distinguished by contrasting type, font, or color does not amount to conspicuous statement -- Provider's motion for final summary judgment on defense is granted

27 Fla. L. Weekly Supp. 798e

Online Reference: FLWSUPP 2709CROSInsurance -- Homeowners -- Accord and satisfaction -- Trial court erred in entering summary disposition in favor of insurer based on accord and satisfaction where insurer's letter stating that payment had been limited to policy limit for mitigation costs because insurer was not notified of estimated mitigation costs and did not receive request to exceed policy limit was not clear and unequivocal expression of intent to discharge claim by subsequent endorsement of check for policy limit, and neither check nor letter contained conspicuous language