Volume 28

28 Fla. L. Weekly Supp. 82a

Online Reference: FLWSUPP 2801MCCUInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Nurse practitioners -- PIP insurer is not entitled to rely upon Medicare's 15% reduction to calculate amount of PIP benefits payable for non-hospital non-emergency health care services provided by nurse practitioner -- 2012 amendment to statute did not in any way alter or amend substantive requirements of first and second sentences of section 627.736(5)(a)(3) -- Question certified whether a PIP insurer is authorized to rely upon Medicare's “Nurse Practitioner (NP) and Clinical Nurse Specialist (CNS) Services Payment Methodology” to calculate amount of PIP benefits payable for health care services provided by a nurse practitioner to a PIP insured

28 Fla. L. Weekly Supp. 215a

Online Reference: FLWSUPP 2803KILGInsurance -- Attorney's fees -- Insurer should not be joined as party defendant on motion to enter final judgment for attorney's fees and costs in negligence action where insurer asserted denial of coverage and reservation of rights defenses and claimed attorney's fees award arose out of proposal for settlement that exceeded policy limits

28 Fla. L. Weekly Supp. 5b

Online Reference: FLWSUPP 2801FROMInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Cconfession of error -- Trial court erred in finding that insurer was not entitled to contest reasonableness of provider's bills after it initially erroneously used fee schedule not elected in policy to reduce and pay billed amounts

28 Fla. L. Weekly Supp. 29d

Online Reference: FLWSUPP 2801TORRInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Medical provider confesses that trial court erred in finding that insurer was not entitled to contest reasonableness of provider's bills after it initially erroneously used fee schedule not elected in policy to reduce and pay billed amounts

28 Fla. L. Weekly Supp. 234c

Online Reference: FLWSUPP 2803BELTInsurance -- Personal injury protection -- Affirmative defenses -- Fraud -- Staged accident -- Medical provider's motion for summary judgment as to affirmative defense of fraud is granted where insurer failed to file or identify any counter-evidence that would reveal existence of factual issue, and there is no evidence of any sworn statement by insured admitting to fraud or any court records establishing that insured committed fraud, but only the alleged fact that the driver of the other vehicle involved in the accident pled guilty to fraud

28 Fla. L. Weekly Supp. 185a

Online Reference: FLWSUPP 2803IRIZInsurance -- Personal injury protection -- Where district court of appeal held that circuit court in its appellate capacity departed from essential requirements of law by holding that PIP statute mandates that insurer must reimburse full amount billed when amount billed is less than maximum allowed under statutory fee schedule, circuit court remands matter to trial court with instructions to enter judgment consistent with DCA decision

28 Fla. L. Weekly Supp. 167a

Online Reference: FLWSUPP 2802COMPInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Chiropractic services -- Medicare fee schedule -- PIP insurer is not entitled to 2% reduction in payment for chiropractic treatment implemented by Medicare where 2% reduction is specifically reserved only for claims that Medicare is required to reimburse

28 Fla. L. Weekly Supp. 5a

Online Reference: FLWSUPP 2801KWILInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Medical provider confesses that trial court erred in finding that insurer was not entitled to contest reasonableness of provider's bills after it initially erroneously used fee schedule not elected in policy to reduce and pay billed amounts

28 Fla. L. Weekly Supp. 87a

Online Reference: FLWSUPP 2801PEREInsurance -- Personal injury protection -- Coverage -- Emergency medical condition -- Summary disposition is entered in favor of insurer where medical provider's proposed witness on sole remaining issue of whether insurer received emergency medical condition determination from provider has been stricken

28 Fla. L. Weekly Supp. 56a

Online Reference: FLWSUPP 2801TAERInsurance -- Personal injury protection -- Affirmative defenses -- Setoff -- Insurer's motion to amend affirmative defenses to add setoff defense claiming entitlement to setoff for money paid to insured in settlement of action against tortfeasor is denied -- Insurer is not entitled to setoff as matter of law where there is no possibility of double recovery by insured because, pursuant to section 627.736(3), insured could not have recovered any medical expenses from tortfeasor -- Further, under PIP statute, only tortfeasor is entitled to setoff for PIP benefits paid or payable -- Subrogation provision in policy does not give rise to setoff defense

28 Fla. L. Weekly Supp. 350a

Online Reference: FLWSUPP 2804COLOInsurance -- Personal injury protection -- Coverage -- Additional driver -- Nonresident relative who is named additional driver in parents' PIP policy and who was injured while driving modified golf cart/low speed vehicle owned by his employer while fulfilling his employment functions is not entitled to coverage under parents' policy -- While policy does not expressly define term “additional driver,” it is clear from policy read in total that term refers to those that live in same residence as named insured and/or drive insured vehicle -- Claimant's employer is required to maintain policy providing PIP coverage to persons injured while occupying golf cart

28 Fla. L. Weekly Supp. 524a

Online Reference: FLWSUPP 2806PERAInsurance -- Personal injury protection -- Stay -- Insurer's motion to stay PIP case based on claim that it did not receive emergency medical condition determination prior to suit being filed is denied -- Explanation of benefits that states that documentation is insufficient to support services billed but makes no mention of need for EMC determination was insufficient notice that insurer was requesting EMC determination -- Moreover, medical provider has offered evidence that EMC determination was provided to insurer prior to date of EOB, and insurer has had more than adequate time to consider EMC determination received post-suit

28 Fla. L. Weekly Supp. 463c

Online Reference: FLWSUPP 2806CUTTMunicipal corporations -- Code enforcement -- Unsafe structures -- Final order of city unsafe structures panel requiring demolition of property found to be 70% deteriorated and to present health, fire, and hazard problem is affirmed -- No merit to claim that panel failed to consider valuation criteria contained in city code -- Due process -- Notice -- Where property owner received notice that city building department was going to initiate demolition proceedings if he did not comply with requirement to obtain demolition or building permit within ten days and subsequent notices telling him to contact department for compliance information, but owner took no action in response to notices, owner cannot claim on appeal that he was surprised to learn of demolition recommendation at hearing before panel

28 Fla. L. Weekly Supp. 276a Online Reference: FLWSUPP 2804CAZOInsurance -- Personal injury protection -- Summary judgment -- Error to reject affidavit of expert on reasonableness of charges UNITED AUTOMOBILE…

28 Fla. L. Weekly Supp. 370a

Online Reference: FLWSUPP 2805SOLIInsurance -- Personal injury protection -- Error to strike affidavit of expert on reasonableness of charges

28 Fla. L. Weekly Supp. 370b

Online Reference: FLWSUPP 2805BUSTInsurance -- Personal injury protection -- Error to strike affidavit of expert on reasonableness of charges

28 Fla. L. Weekly Supp. 376a

Online Reference: FLWSUPP 2805SANTInsurance -- Personal injury protection -- Summary judgment -- Error to reject affidavit of expert on reasonableness of charges

28 Fla. L. Weekly Supp. 450a

Online Reference: FLWSUPP 2806ZENIInsurance -- Personal injury protection -- Summary judgment -- Error to reject affidavit of expert on reasonableness of charges

28 Fla. L. Weekly Supp. 453a

Online Reference: FLWSUPP 2806BARRInsurance -- Personal injury protection -- Summary judgment -- Error to reject affidavit of expert on reasonableness of charges

28 Fla. L. Weekly Supp. 453b

Online Reference: FLWSUPP 2806REVOInsurance -- Personal injury protection -- Summary judgment -- Error to reject affidavit of expert on reasonableness of charges and relatedness and medical necessity of treatment

28 Fla. L. Weekly Supp. 375a

Online Reference: FLWSUPP 2805MGONInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Accord and satisfaction -- Reasonableness of charges -- Trial court correctly rejected insurer's accord and satisfaction defense, ruling that insurer's partial payment did not meet the elements of accord and satisfaction under either common law or the Uniform Commercial Code -- Trial court abused its discretion by excluding insurer's conflicting affidavit on whether medical bills at issue were reasonable in price -- Taking excluded affidavit into account, it was error to grant summary judgment on issue of reasonableness

28 Fla. L. Weekly Supp. 465a

Online Reference: FLWSUPP 2806VDELInsurance -- Personal injury protection -- Summary judgment -- Error to reject affidavit of expert on reasonableness of charges and relatedness and medical necessity of treatment

28 Fla. L. Weekly Supp. 465b

Online Reference: FLWSUPP 2806GHENInsurance -- Personal injury protection -- Summary judgment -- Error to reject affidavit of expert on reasonableness of charges

28 Fla. L. Weekly Supp. 299a

Online Reference: FLWSUPP 2804BERMInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Expert testimony -- Where Frye standard was the law when insurer filed its initial brief arguing that trial court erred in discrediting its expert's affidavit, and Daubert standard was the law when medical provider's answer brief was filed, insurer did not waive right to argue that court erred in discounting affidavit under Daubert standard -- Abuse of discretion to exclude expert's affidavit on ground that her testimony is based on hearsay where expert relied on own extensive experience and did not become conduit for hearsay -- Trial court further abused its discretion by rejecting affidavit within summary judgment order without Daubert motion or hearing on affidavit's admissibility that would have afforded insurer the opportunity to amend affidavit

28 Fla. L. Weekly Supp. 433b

Online Reference: FLWSUPP 2806EVANInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous election by insurer -- Policy clearly and unambiguously elected to limit reimbursement payments to the schedule of maximum payments by stating that “we will limit reimbursement to, and pay no more than, 80 percent of ... schedule of maximum charges” -- No merit to medical provider's contention that insurer must elect either the reasonable charge method of calculation or the schedule of maximum charges method of calculation and that, because its policy includes both, insurer relied on an unlawful hybrid method of reimbursement calculation -- Trial court erred in entering summary judgment in favor of provider

28 Fla. L. Weekly Supp. 435a

Online Reference: FLWSUPP 2806VOSInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- “Clear and unambiguous election” standard set by Virtual Imaging was superceded by 2012 amendment to PIP statute -- In order to utilize statutory fee schedules, insurer was required only to give notice that it may limit reimbursement based on fee schedules -- Policy at issue gave legally sufficient notice that it may limit reimbursements based on applicable Medicare fee schedules

28 Fla. L. Weekly Supp. 165a

Online Reference: FLWSUPP 2802GOODInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Use of workers' compensation fee schedule to cap payment -- Motion for summary judgment on plaintiff's claim of underpayment denied -- 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 80 percent of the workers' compensation fee schedule?

28 Fla. L. Weekly Supp. 477a

Online Reference: FLWSUPP 2806CHARInsurance -- Personal injury protection -- Coverage -- PIP policy that is silent as to whether policy benefits are stackable is ambiguous and must be construed in favor of coverage and against insurer -- Trial court erred in relying on extrinsic evidence of PIP statute to give meaning to policy terms and conclude that policy is not ambiguous

28 Fla. L. Weekly Supp. 520a

Online Reference: FLWSUPP 2806HUGHInsurance -- Personal injury protection -- Demand letter -- Letter reflecting an amount claimed to be due that exceeded $2500 policy limits applicable where an insured has not been determined to have emergency medical condition was not invalid

28 Fla. L. Weekly Supp. 418a

Online Reference: FLWSUPP 2805DRAGInsurance -- Personal injury protection -- Demand letter that did not account for application of fee schedules elected in policy and included services for which payment was not yet due is invalid -- Case abated to allow medical provider to submit compliant demand letter

28 Fla. L. Weekly Supp. 239a

Online Reference: FLWSUPP 2803LDAVInsurance -- Personal injury protection -- Demand letter -- Defects -- Motion to abate PIP case to allow service of new demand letter is granted where error in original demand letter was first raised by insurer in its affirmative defenses and medical provider immediately moved to abate action -- Extension of time to respond to proposal for settlement is granted

28 Fla. L. Weekly Supp. 419b

Online Reference: FLWSUPP 2805MIAMInsurance -- Personal injury protection -- Demand letter -- Validity -- Plaintiff's pre-suit demand did not satisfy plain language of section 627.736(10) where policy was sufficient to elect the fee schedule payment methodology of section 627.736(5)(a) but demand letter did not account for application of the fee schedules; demand letter failed to provide insurer notice and an opportunity to avoid litigation; and demand included services for which payment was not yet due

28 Fla. L. Weekly Supp. 84a

Online Reference: FLWSUPP 2801AXEInsurance -- Personal injury protection -- Affirmative defenses -- Amendment -- Motion to amend affirmative defenses to assert defense regarding invalidity of demand letter is granted -- Argument that insurer waived demand letter defense by failing to raise issue before suit was filed is not ripe for consideration and is not supported by any record evidence

28 Fla. L. Weekly Supp. 236a

Online Reference: FLWSUPP 2803ALLIInsurance -- Personal injury protection -- Demand letter -- Sufficiency -- Demand letter was valid notwithstanding fact that it referenced incorrect claim number where insurer sustained no prejudice from error -- Demand letter that included itemized statement in form of original HICF substantially complied with section 627.736(10) -- Letter is not deficient for failing to indicate exact amount owed

28 Fla. L. Weekly Supp. 536b

Online Reference: FLWSUPP 2806MENEInsurance -- Personal injury protection -- Demand letter -- Sufficiency -- Demand letter for transportation costs did not satisfy requirements of section 627.736(10) where letter did not specify medical clinic to which insured traveled, dates of treatment for which he traveled, or exact amount due and owing -- Policy limits were properly exhausted

28 Fla. L. Weekly Supp. 536b

Online Reference: FLWSUPP 2806MENEInsurance -- Personal injury protection -- Demand letter -- Sufficiency -- Demand letter for transportation costs did not satisfy requirements of section 627.736(10) where letter did not specify medical clinic to which insured traveled, dates of treatment for which he traveled, or exact amount due and owing -- Policy limits were properly exhausted

28 Fla. L. Weekly Supp. 536b

Online Reference: FLWSUPP 2806MENEInsurance -- Personal injury protection -- Demand letter -- Sufficiency -- Demand letter for transportation costs did not satisfy requirements of section 627.736(10) where letter did not specify medical clinic to which insured traveled, dates of treatment for which he traveled, or exact amount due and owing -- Policy limits were properly exhausted

28 Fla. L. Weekly Supp. 538a

Online Reference: FLWSUPP 2806DRIVInsurance -- Personal injury protection -- Coverage -- Transportation costs -- Demand letter for transportation costs that failed to provide address of medical provider visited or dates of service and identified incorrect medical provider did not satisfy condition precedent to suit

28 Fla. L. Weekly Supp. 421a

Online Reference: FLWSUPP 2805BEAUInsurance -- Personal injury protection -- Coverage -- Denial of coverage based on alleged failure to appear at multiple examinations under oath -- Insurer was in breach of contract because insurer violated PIP statute by failing to pay or deny claim within 30 days and did not invoke the additional time limitation under section 627.736(4)(i)

28 Fla. L. Weekly Supp. 85a

Online Reference: FLWSUPP 2801PIERInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Condition precedent -- Examination under oath -- Where both PIP statute and policy provide that EUO is condition precedent to receipt of benefits and insured failed to appear at three scheduled EUOs, medical provider is not entitled to PIP benefits -- Insurer that scheduled EUOs to occur more than thirty days after receipt of provider's bills did not thereby waive right to notice EUO -- Further, where PIP policy contains “no action clause” that states that lawsuit against insurer is precluded until insured fully complies with all provisions of policy, policy bars suit until EUO requirement is met

28 Fla. L. Weekly Supp. 87b

Online Reference: FLWSUPP 2801DIREInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Exhaustion of policy limits -- Gratuitous payments -- Where PIP insurer paid claim to another medical provider in excess of what was required by policy and PIP statute, payment was gratuitous payment that did not exhaust PIP benefits -- Insurer owes payment for plaintiff provider's claim

28 Fla. L. Weekly Supp. 333a

Online Reference: FLWSUPP 2804PINEInsurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Collateral estoppel -- Where identical parties have previously litigated identical issue of reasonableness of medical provider's charges for same CPT codes, parties had full and fair opportunity to litigate issue and did litigate issue in prior proceedings, and issue is critical and necessary part of litigation, all elements necessary for application of doctrine of collateral estoppel are met -- It is immaterial that prior adjudications pertained to different accidents, patients, claims, causes of action, and assignments of benefits than present case -- No merit to argument that doctrine of collateral estoppel should not be applied because insurer believes that prior adjudications constituted error where insurer allowed those adjudications to become final without appeal -- No merit to argument that court is barred from applying doctrine of collateral estoppel because it was not raised in provider's reply, as rules and law did not permit provider to file reply asserting collateral estoppel -- Provider is entitled to judgment on reasonableness issue as matter of law

28 Fla. L. Weekly Supp. 429a

Online Reference: FLWSUPP 2805ALTAInsurance -- Personal injury protection -- Affirmative defenses -- Amendment -- Dilatoriness -- Sanctions -- Where insurer failed to notify medical provider of pre-suit exhaustion of policy limits until it filed motion to amend affirmative defenses to raise that issue over a year after suit was filed, insurer is granted leave to amend its affirmative defenses but is ordered to pay attorney's fees and costs that provider incurred as result of insurer's dilatory conduct

28 Fla. L. Weekly Supp. 282a

Online Reference: FLWSUPP 2804MATHInsurance -- Settlement agreement -- Enforcement -- Denial -- Appeals -- Order denying motion to enforce settlement agreement is not an appealable order and is not reviewable by certiorari

28 Fla. L. Weekly Supp. 411b

Online Reference: FLWSUPP 2805HERSInsurance -- Travel -- Attorney's fees -- Amount -- Requested award of $402,495 in attorney's fees for fraud in inducement claim and breach of contract claim on travel insurance policy that cost plaintiff $146.94 and provided maximum coverage of $2,260.86 is clearly unreasonable where case was neither novel nor complex and did not carry any far-reaching jurisprudential significance -- Claimed hours that are unnecessary, excessive and duplicative are not compensable -- Costs, expert witness fee, and prejudgment interest are awarded

28 Fla. L. Weekly Supp. 155a

Online Reference: FLWSUPP 2802HERRInsurance -- Venue -- Forum non conveniens -- Venue transferred from Miami-Dade County to Pinellas County where accident occurred, insured resides, insurer's office is located, and policy was issued -- Further, insurer's adjusters and representatives are located in county adjoining Pinellas County, and witnesses would be significantly inconvenienced by having to travel to Miami-Dade County

28 Fla. L. Weekly Supp. 405a

Online Reference: FLWSUPP 2805BARR

Insurance -- Personal injury protection -- Notice of loss -- Claim form that omits medical provider's professional license number is substantially complete and provided insurer notice of covered loss -- Insurer that made payment on claim without objecting to missing license number cannot argue that number was material element of claim

28 Fla. L. Weekly Supp. 142a

Online Reference: FLWSUPP 2802COLE

Insurance -- Personal injury protection -- Notice of loss -- Claim form that contains correct name of medical provider but omits provider's professional license number is substantially complete and accurate and provided insurer notice of covered loss -- No merit to argument that change in PIP statute from stating that providers “shall” include professional license number to stating that providers “must” provide professional license number changes standard for notice of loss from substantial compliance to strict liability

28 Fla. L. Weekly Supp. 353a

Online Reference: FLWSUPP 2804HALL

Insurance -- Personal injury protection -- Venue -- Medical provider is entitled to file suit in county where payment under policy is owed -- Forum selection clause that specifies that legal action “to determine coverage” under policy shall be filed and maintained in county where policy was issued is not applicable to venue of suit seeking benefits, not coverage -- Further, it would be unjust to enforce forum selection clause that is result of insurer's overwhelming bargaining power

28 Fla. L. Weekly Supp. 324b

Online Reference: FLWSUPP 2804KILG

Insurance -- Med pay -- Coverage -- Exhaustion of policy limits -- Insurer's total of $3500 payments did not exhaust benefits under policy providing $1000 med pay coverage and $2500 PIP coverage -- Med pay and PIP are separate and distinct coverages and, whether by mistake or otherwise, insurer's explanations of benefits allocated only $41.60 of payments to med pay coverage -- Corrected EOB issued after receipt of demand letter is not sufficient to “reallocate” payments to med pay coverage

28 Fla. L. Weekly Supp. 72a

Online Reference: FLWSUPP 2801JOHN

Insurance -- Personal injury protection -- Limitation of actions -- Motion for rehearing of order dismissing hospital's action against PIP insurer because complaint was filed after expiration of limitations period as measured from date of service is granted -- Critical date for determining whether statute of limitations has run is date on which insurer breached its duty to pay, not date of service -- Order granting motion to dismiss is set aside -- Complaint does not allege date on which hospital submitted bill to insurer, and hospital, unlike other medical providers, is not required to submit bill within 35 days of date of service

28 Fla. L. Weekly Supp. 479b

Online Reference: FLWSUPP 2806EMAR

Insurance -- Personal injury protection -- Jurisdiction -- Circuit court

28 Fla. L. Weekly Supp. 491a

Online Reference: FLWSUPP 2806DEAU

Insurance -- Venue -- Forum selection clause -- Motion for reconsideration of predecessor judge's denial of motion to dismiss based on mandatory forum selection clause is denied -- Predecessor judge did not commit clear legal error or abuse discretion in finding that compelling reason exists not to enforce clause where enforcement would send claims against one insurer in multi-party litigation to New York, resulting in inconsistent and simultaneous interstate litigation

28 Fla. L. Weekly Supp. 323a

Online Reference: FLWSUPP 2804NGUY

Insurance -- Reconsideration -- Claim that medical provider failed to open emails containing links to insurer's discovery response does not establish excusable neglect warranting reconsideration of, or relief from, judgment entered in favor of insurer based on exhaustion of policy limits

28 Fla. L. Weekly Supp. 60a

Online Reference: FLWSUPP 2801MERA

Insurance -- Homeowners -- Coverage -- Summary judgment -- Affidavit of insureds' public adjuster is insufficient to preclude entry of summary judgment in favor of insurer that disputes that damage to insureds' home was due to wind damage from hurricane where affidavit contains inconsistences as to address of property and dates of loss and inspection and is bereft of any discernable factually-based chain of underlying reasoning to support conclusory opinion that loss was caused by hurricane

28 Fla. L. Weekly Supp. 409a

Online Reference: FLWSUPP 2805PRID

Insurance -- Homeowners -- Coverage -- Exhaustion of policy limits -- Insurer that paid mold remediation claim up to policy limit of $10,000 fully satisfied its obligation under policy -- Summary judgment is entered in favor of insurer

28 Fla. L. Weekly Supp. 332a

Online Reference: FLWSUPP 2804ELIT

Insurance -- Homeowners -- Coverage -- Reasonable emergency measures -- Where homeowners policy provides that insurer will not pay more than $3,000 for reasonable emergency measures to protect property from further damage unless insurer provides approval within 48 hours of receipt of request to exceed that limit, insurer fully satisfied its obligation by paying $3,000 to plaintiff that did not submit request to exceed policy limit -- No merit to argument that insurer's failure to respond within 48 hours of receipt of invoice for completed work entitles plaintiff to additional benefits under policy provision that allows insured to exceed $3,000 limit if insurer fails to respond to request to exceed limit within 48 hours

28 Fla. L. Weekly Supp. 303a

Online Reference: FLWSUPP 2804PACE

Insurance -- Homeowners -- Venue -- Forum selection clause -- Mandatory forum selection clause in assignment of benefits from insured to assignee does not govern venue for breach of contract action brought by assignee against insurer -- Where there is no forum selection clause in insurance policy, venue is proper in county in which cause of action accrued, property is located, and insurer has business office -- Motion to transfer venue is denied

28 Fla. L. Weekly Supp. 237a

Online Reference: FLWSUPP 2803CATA

Insurance -- Homeowners -- Where insured's assignee met initial burden to prove that all-risk policy was in effect at time of loss, and insurer that denied coverage met burden to prove that loss fell within policy exclusion for damage caused by rain, burden of proof shifted back to assignee to prove that loss fell under exception to exclusion by establishing that rain entered home through peril-created opening -- Because assignee failed to present any evidence that would create genuine issue of material fact as to existence of peril-created opening in roof, summary judgment is entered in favor of insurer

28 Fla. L. Weekly Supp. 308a

Online Reference: FLWSUPP 2804SPEE

Insurance -- Property -- Coverage -- Based on property owner's deposition testimony that leak in closet at rental property persisted over five months and caused mold, claim falls squarely under policy exclusions for leakage of water that occurs over a period of time and fungus

28 Fla. L. Weekly Supp. 544b

Online Reference: FLWSUPP 2806IKON

Insurance -- Property -- Coverage -- Insurer did not breach policy by denying coverage where policy unambiguously excluded coverage for loss caused directly or indirectly by any type of fungus, mold, mildew or wet rot, and it was undisputed that loss was caused by mold, mildew, fungi or wet rot

28 Fla. L. Weekly Supp. 217a

Online Reference: FLWSUPP 2803LORE

Insurance -- Mortgage protection -- Standing -- Third-party beneficiaries -- Mortgagors do not have standing to bring claim for damages against insurer as third-party beneficiaries of lender-placed mortgage protection insurance policy where policy specifically excludes coverage for any interest that mortgagors may have in property -- Having insurable interest in property is insufficient to provide mortgagors with standing to pursue claim under policy as intended third-party beneficiaries where policy language demonstrates contrary intent -- Motion to dismiss is granted

28 Fla. L. Weekly Supp. 240a

Online Reference: FLWSUPP 2803ASAP

Insurance -- Coverage -- Burden of proof -- Policy -- Discussion regarding differences between “all-risks” and “named perils” policies -- Policy at issue is an “all-risk policy” where the covered perils are not named, but are instead defined by what is not covered -- “Naming” perils by saying what they are not does not trigger “named peril” burden -- Plaintiff is entitled to summary judgment on issue of coverage where insurer failed to allege an exclusion to all-risk policy as required

28 Fla. L. Weekly Supp. 331b

Online Reference: FLWSUPP 2804MONT

Insurance -- Personal injury protection -- Discovery -- Motion to compel production of medical records that do not pertain to medical provider's assignor is denied -- Pursuant to order to provide underwriting materials for “subject policy,” insurer must produce materials for policy under which claim was filed irrespective of whether it provides PIP coverage -- Failure to comply -- Sanctions -- Where privilege log filed by insurer in response to request that it produce items for inspection claimed privilege for items that do not exist, and improper privilege log caused unnecessary litigation, motion for sanctions for fraud on court is granted

28 Fla. L. Weekly Supp. 88b

Online Reference: FLWSUPP 2801GOOC

Insurance -- Personal injury protection -- Discovery -- Failure to comply -- Sanctions -- Where insurer that asserted exhaustion of benefits defense failed to produce requested PIP log that would reveal whether gratuitous payments had been made, sanctions are awarded in favor of medical provider notwithstanding fact that, once produced, log showed that benefits had been properly exhausted without any gratuitous payments

28 Fla. L. Weekly Supp. 34a

Online Reference: FLWSUPP 2801STOC

Insurance -- Homeowners -- Discovery -- Failure to comply -- Sanctions -- Insurer's answer and affirmative defenses are stricken, and default judgment is entered in favor of insureds where insurer has committed numerous discovery violations, intentionally failed to meet court-imposed deadlines, refused to comply with court-ordered sanctions, and exhibited abusive behavior toward witnesses, opposing counsel and court

28 Fla. L. Weekly Supp. 349a

Online Reference: FLWSUPP 2804SHUS

Insurance -- Personal injury protection -- Discovery -- Medical provider lacks standing to compel production of insured's application for insurance and deductible election form

28 Fla. L. Weekly Supp. 322b

Online Reference: FLWSUPP 2804NOZI

Insurance -- Personal injury protection -- Discovery -- Medical provider lacks standing to compel production of insured's application for insurance and deductible election form

28 Fla. L. Weekly Supp. 419a

Online Reference: FLWSUPP 2805ESTR

Insurance -- Discovery -- Failure to comply -- Sanctions

28 Fla. L. Weekly Supp. 354a

Online Reference: FLWSUPP 2804STEV

Insurance -- Personal injury protection -- Evidence -- Medical provider's motion in limine seeking to exclude documents insurer failed or refused to timely provide during pretrial discovery, including documents necessary to support insurer's affirmative defense that it had fully complied with its contractual obligations regarding payments due under policy -- Motion granted

28 Fla. L. Weekly Supp. 555a

Online Reference: FLWSUPP 2806SANT

Insurance -- Personal injury protection -- Discovery -- Depositions -- Motion for protective order barring medical provider from deposing insurer's corporate representative is granted where deposition testimony is not necessary to adjudicate issues of deficient demand letter and improper unbundling of CPT codes

28 Fla. L. Weekly Supp. 553b

Online Reference: FLWSUPP 2806WALD

Insurance -- Personal injury protection -- Discovery -- Depositions -- Motion for protective order preventing medical provider from deposing litigation adjuster regarding insurer's deficient demand letter defense is granted where insurer has already responded to four sets of discovery on purely legal issue of deficient letter, no additional discovery is needed on issue, and provider has already deposed insurer's corporate representative -- No merit to argument that provider needs to depose adjuster regarding waiver and estoppel where provider did not plead waiver and estoppel as to demand letter defense

28 Fla. L. Weekly Supp. 107a

Online Reference: FLWSUPP 2802GUAR

Insurance -- Personal injury protection -- Discovery -- Documents -- Insurer has standing to seek relief from order compelling production of its confidential materials in possession of third party with which it contracts to provide medical bill processing services and technology -- Subpoena for discovery of insurer's manuals and documentation regarding auditing of emergency medical conditions and evaluation of records for purpose of determining emergency medical conditions is unreasonable and oppressive in first-party breach of contract action and amounts to premature discovery in support of unripe and unpled bad-faith claim -- No merit to argument that insurer has not established irreparable harm warranting certiorari relief because third party could object to disclosure is without merit where trial court has already ordered third party to produce materials -- Petition for writ of certiorari is granted

28 Fla. L. Weekly Supp. 301a

Online Reference: FLWSUPP 2804GCAS

Insurance -- Property -- Discovery -- Depositions -- Plaintiff may take depositions of insurer's corporate representative and desk adjuster and ask questions seeking relevant non-privileged information and information regarding any documents in claims file that insurer intends to introduce into evidence -- Insurer must produce relevant non-privileged documents but is not required to produce entire claims file -- Court declines to give advisory opinion on objectionable question and documents; specific objections to questions and documents must be made in accordance with rules of civil procedure

28 Fla. L. Weekly Supp. 234a

Online Reference: FLWSUPP 2803PENA

Insurance -- Discovery -- Depositions -- Failure to appear -- Sanctions

28 Fla. L. Weekly Supp. 342b

Online Reference: FLWSUPP 2804WILS

Insurance -- Personal injury protection -- Default -- Vacation -- Excusable neglect -- Motion to vacate default is denied -- Insurer offered no explanation for its failure to respond to six items of correspondence regarding suit mailed to it by medical provider after complaint was served and its failure to appear for properly noticed hearing

28 Fla. L. Weekly Supp. 355a

Online Reference: FLWSUPP 2804ICON

Insurance -- Default -- Vacation -- Answer which was not filed until after 4:00 p.m. not basis for vacating order granting default which was entered earlier that same day -- Rule 1.500 allowed court to enter default where defendant failed to serve answer within 20 days and further provides that party may not plead or otherwise defend action after court has entered default -- Moreover, defendant did not establish excusable neglect or due diligence

28 Fla. L. Weekly Supp. 279a

Online Reference: FLWSUPP 2804AMBR

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Limitation of reimbursement to schedule of maximum charges -- Following 2012 amendment to PIP statute, insurer was only required to give simple notice of intent to reimburse using statutory fee schedules, rather than clear and unambiguous election required by Virtual Imaging -- Trial court did not err in finding that PIP policy providing that insurer would limit reimbursement to 80% of schedule of maximum charges complied with statutory notice requirements -- Multiple Procedure Payment Reduction is not impermissible utilization limit -- Deductible -- Insurer improperly applied deductible after reducing bills by application of statutory fee schedules

28 Fla. L. Weekly Supp. 525a

Online Reference: FLWSUPP 2806WIGG

Insurance -- Personal injury protection -- Res judicata does not bar medical provider's suit filed subsequent to settlement of earlier suit against insurer for treatment of same insured where earlier suit was based on insurer's contention that certain charges were not reasonable, necessary or related to accident while current suit concerns only whether deductible was misapplied -- Where including current claim about deductible in earlier suit would have required that provider anticipate legal precedent established by recent Florida Supreme Court decision regarding proper application of deductible, motion for summary disposition finding that provider is barred from seeking attorney's fee award in current suit by section 627.736(15), which requires that all PIP claims be brought in same action, is denied

28 Fla. L. Weekly Supp. 198a

Online Reference: FLWSUPP 2803CONT

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Deductible -- Trial court correctly found that deductible should have been applied to 100% of charges before reduction under statutory fee schedule -- Reasonableness of charges -- Summary judgment -- Trial court erred in rejecting opposing expert affidavit filed by insurer on issue of reasonableness of charges and entering summary judgment on issue in medical provider's favor -- Trial court improperly conducted Daubert analysis despite fact that provider did not timely challenge expert's compliance with section 90.702, and affidavit conformed to requirements for expert testimony

28 Fla. L. Weekly Supp. 536a

Online Reference: FLWSUPP 2806SOTO

Insurance -- Property -- Declaratory action against Citizens Property Insurance Corporation seeking declaration on coverage for benefits is not barred by Citizens' statutory sovereign immunity

28 Fla. L. Weekly Supp. 398a

Online Reference: FLWSUPP 2805DANY

Insurance -- MedPay -- Subrogation -- Declaratory action brought by insureds against whom insurer is asserting claim of subrogation for repayment of MedPay benefits from proceeds of settlement with tortfeasor -- Where contractual subrogation language does not expressly, clearly, and unequivocally address priority of reimbursement between insurer and insureds, common law made whole doctrine applies and preserves insureds' right of priority over insurer -- Insurer may not recover MedPay benefits paid on insureds' behalf from settlement proceeds until insureds are made whole -- Insureds are not entitled to final summary judgment where they have not proven that they have not been made whole -- No merit to claim that claimants in third-party insurance case can never be made whole as matter of law

28 Fla. L. Weekly Supp. 425a

Online Reference: FLWSUPP 2805HILC

Insurance -- Declaratory judgments -- Duty to attend examination under oath -- Motion to dismiss action seeking declaration regarding insured's duty to attend examination under oath during pandemic is denied

28 Fla. L. Weekly Supp. 479c

Online Reference: FLWSUPP 2806DIRE

Insurance -- Declaratory actions -- Complaint seeking advisory opinion on appropriateness of rescission of policy after policy was rescinded dismissed for lack of jurisdiction and for failure to state cause of action

28 Fla. L. Weekly Supp. 229a

Online Reference: FLWSUPP 2803HUFF

Insurance -- Complaint -- Failure to attach complete policy, including declarations page, to amended complaint seeking declaration that policy is void ab initio requires dismissal of amended complaint -- Insurer's request for entry of final default judgments against some codefendants is denied where other codefendants are actively defending action

28 Fla. L. Weekly Supp. 125a

Online Reference: FLWSUPP 2802DIRE

Insurance -- Declaratory actions -- Complaint for declaratory relief filed by insurer against eight defendants is deficient where complaint is drafted in manner in which each succeeding count incorporates by reference prior averments not attributed to any one defendant, requiring that defendants respond to claims against other unrelated defendants -- Further, complaint does not show doubt or uncertainty as to existence of some right, status, immunity, power or privilege and, accordingly, does not state cause of action for declaratory relief -- Motion to dismiss granted

28 Fla. L. Weekly Supp. 449b

Online Reference: FLWSUPP 2806CELT

Insurance -- Appeals -- Certiorari -- Non-final orders -- Denial of motion to consolidate -- Fact that denial of motion to consolidate cases will require maintenance of independent actions is not irreparable harm meriting certiorari review -- No abuse of discretion in denying motion to consolidate cases involving different patients, different allegations of medical necessity, different policies, and different exigencies justifying out-of-network claims

28 Fla. L. Weekly Supp. 336a

Online Reference: FLWSUPP 2804LEON

Insurance -- Personal injury protection -- Answer -- Amendment -- Insurer's motion to file amended answer to allege fraud defense is denied where motion is based on surveillance report that insurer obtained seven years ago, prior to filing of suit -- Denial of motion to amend answer is warranted where insurer has abused privilege to amend by seeking amendment extremely late in proceedings without justification, and medical provider will be severely prejudiced by proposed amendment

28 Fla. L. Weekly Supp. 338a

Online Reference: FLWSUPP 2804SCAS

Insurance -- Personal injury protection -- Answer -- Amendment -- Motion to amend answer to raise allegations of upcoding and deficient record-keeping is denied where proposed amendment is contrary to legislative intent to have those issues addressed and resolved prior to suit, medical provider will be severely prejudiced by amendment that would deprive it of opportunity to cure deficiencies in records and coding prior to suit, amendment would be futile, and insurer waived defenses and abused privilege to amend by failing to plead defenses known to it prior to suit during seven years of litigation

28 Fla. L. Weekly Supp. 328a

Online Reference: FLWSUPP 2804GARL

Insurance -- Personal injury protection -- Answer -- Amendment -- Motion to amend answer to raise allegations of upcoding and deficient record-keeping is denied where proposed amendment is contrary to legislative intent to have those issues addressed and resolved prior to suit, medical provider will be severely prejudiced by amendment that would deprive it of opportunity to cure deficiencies in records and coding prior to suit, amendment would be futile, and insurer waived defenses and abused privilege to amend by failing to plead defenses known to it prior to suit during six years of litigation

28 Fla. L. Weekly Supp. 239b

Online Reference: FLWSUPP 2803SLAS

Insurance -- Personal injury protection -- Complaint -- Amendment -- Motion to amend complaint following confession of judgment for full jurisdictional amount alleged in original complaint is denied -- Motion to enforce confession of judgment is granted

28 Fla. L. Weekly Supp. 356a

Online Reference: FLWSUPP 2804KOPE

Insurance -- Personal injury protection -- 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

28 Fla. L. Weekly Supp. 348a

Online Reference: FLWSUPP 2804PUEN

Insurance -- Personal injury protection -- Dismissal -- Confession of judgment -- Motions to dismiss, enforce confession of judgment, and enter final judgment are denied where insurer confessed judgment in amount less than upper limit of damages pled or unreduced policy limits, confession of judgment in response to original complaint was rendered nullity by fact that medical provider filed amended complaint as was its automatic right before insurer filed any responsive pleading to original complaint, and declaratory relief sought in amended complaint was not specifically related to damages sought in breach of contract count

28 Fla. L. Weekly Supp. 345a

Online Reference: FLWSUPP 2804JHERInsurance -- 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 -- Amount in controversy is merely allegation and is not dispositive of issue of damages, request to amend complaint is the first request by medical provider and comes early in litigation, and insurer did not tender payment until immediately before hearing on motion to amend that was held 90 days after it confessed judgment

28 Fla. L. Weekly Supp. 224a

Online Reference: FLWSUPP 2803DORE

Insurance -- Homeowners -- Coverage -- Interior damage due to windstorms -- Class action -- Certification -- Motion for certification of proposed class of insureds who submitted claims for interior damage to structure and/or contents and whose claims were denied on ground that there were no visible openings is denied -- Court cannot reasonably ascertain if an insured is a member of proposed class where determination necessitates an individualized claims analysis -- Inherently unique nature of windstorm claims also prevents plaintiffs from establishing numerosity and commonality -- Due to insurer's unique defenses to plaintiffs' claim for contents and differences in letter denying plaintiffs' claim and letters to other insureds containing similar terms, typicality is not established -- Class certification as action for declaratory relief under rule 1.220(b)(2) is improper where declaratory relief is not primary relief requested -- Plaintiffs have failed to establish commonality, predominance, and superiority requisites for class certification under rule 1.220(b)(3)

28 Fla. L. Weekly Supp. 548c

Online Reference: FLWSUPP 28062GLA

Insurance -- Automobile -- Windshield repair -- Policy provision limiting insurer's liability for windshield repair to prevailing competitive price means price that repair service would bring in competitive market, not price set in agreement between insurer and a particular provider or proposed rate not negotiated with any provider -- Plaintiff repair shop met initial burden to establish prevailing competitive price and proved breach of contract claims

28 Fla. L. Weekly Supp. 548b

Online Reference: FLWSUPP 2806GLAS

Insurance -- Automobile -- Windshield repair -- Evidence -- Expert testimony -- Proffered expert witness satisfies Daubert standard -- Motion to preclude expert witness is denied

28 Fla. L. Weekly Supp. 427a

Online Reference: FLWSUPP 2805ALLI

Insurance -- Claim form -- MRI provider not required to place professional license number in Box 31 of HCFA form

28 Fla. L. Weekly Supp. 420a

Online Reference: FLWSUPP 2805CANN

Insurance -- Automobile -- Coverage -- Conditions precedent -- Examination under oath -- Obligation to attend EUO as condition precedent to recovery of benefits remains with insured despite fact that she assigned benefits to windshield repair shop -- No merit to argument that assignee should be allowed to attend EUO in lieu of insured

28 Fla. L. Weekly Supp. 6a

Online Reference: FLWSUPP 2801TAMI

Insurance -- Automobile -- All-risk policy -- Coverage -- Mechanical failure -- Coverage for engine damage caused by contaminated diesel fuel was precluded by all-risk policy's exclusion for mechanical breakdown or failure

28 Fla. L. Weekly Supp. 292b

Online Reference: FLWSUPP 2804DENNAttorney's fees --

Insurance -- Prevailing party -- Where action against insurer for prejudgment interest resulted in order granting insurer's motion for summary judgment but awarding prejudgment interest to plaintiff, trial court erred in denying plaintiff's motion for award of attorney's fees under section 627.428(1)

28 Fla. L. Weekly Supp. 417a

Online Reference: FLWSUPP 2805PANA

Insurance -- Personal injury protection -- Attorney's fees -- Proposal for settlement -- Nominal offer -- Insurer that alleged that insured had willfully failed to attend examination under oath, and obtained judgment in its favor on that ground, had reasonable basis to conclude that it had limited risk -- Nominal offer was made in good faith

28 Fla. L. Weekly Supp. 371a

Online Reference: FLWSUPP 2805ISLA

Attorney's fees -- Prevailing party -- Unpaid wages -- Appeals -- Absence of transcript or record -- Affirmance of lower court ruling -- Fact that trial court found that plaintiff who sued for unpaid wages was not employee of defendant does not preclude award of attorney's fees in prevailing defendant's favor under section 448.08 -- Proposal for settlement -- No merit to arguments that nominal offer of settlement was made in bad faith and was ambiguous -- Trial court's determination as to amount of attorney's fees cannot be disturbed in absence of transcript of hearing on issue

28 Fla. L. Weekly Supp. 542a

Online Reference: FLWSUPP 2806CLAV

Insurance -- Personal injury protection -- Attorney's fees -- Confession of judgment -- Where insurer brought action for declaratory relief against insured and her medical providers seeking determination that it had no obligations under policy and ratifying its decision to rescind policy, and insurer voluntarily dismissed actions against providers after it obtained default judgment against insured, providers are not entitled to attorney's fees under section 627.428 -- Neither providers nor insured obtained any judgment or decree against insurer entitling them to recover fees under section 627.428 -- Voluntary dismissal from which providers did not receive any benefit is not functional equivalent of confession of judgment

28 Fla. L. Weekly Supp. 321a

Online Reference: FLWSUPP 2804DODD

Attorney's fees -- Insurance -- Personal injury protection -- Claim or defense not supported by material facts or applicable law -- Where benefits had been paid in full before medical provider filed suit for additional benefits, insurer is entitled to attorney's fees and costs -- Insurer who timely and properly filed motion for section 57.105 sanctions was not required to file second motion regarding entitlement to attorney's fees pursuant to rule 1.525

28 Fla. L. Weekly Supp. 71a

NOT FINAL VERSION OF OPINION
Subsequent Changes at FLWSUPP 2804DAVI

Online Reference: FLWSUPP 2801DODD

NOT FINAL VERSION OF OPINION
Subsequent Changes at 28 Fla. L. Weekly Supp. 321aAttorney's fees -- Insurance -- Personal injury protection -- Claim or defense not supported by material facts or applicable law -- Where benefits had been paid in full before medical provider filed suit for additional benefits, insurer is entitled to attorney's fees and costs -- Insurer who timely and properly filed motion for section 57.105 sanctions was not required to file second motion regarding entitlement to attorney's fees pursuant to rule 1.525

28 Fla. L. Weekly Supp. 27b

Online Reference: FLWSUPP 2801WILL

Attorney's fees -- Insurance -- Personal injury protection -- Discovery -- Appeals -- Certiorari -- Medical provider has not satisfied jurisdictional prerequisite for certiorari relief from order compelling production of unredacted portion of employment agreement between attorney and provider's parent company where it was within trial court's discretion to determine that agreement was relevant, and disclosure of limited information is insufficient to establish irreparable harm -- Further, certiorari relief cannot be granted based on order to disclose privileged document where provider did not assert attorney-client privilege below

28 Fla. L. Weekly Supp. 194b

Online Reference: FLWSUPP 2803FELD

Insurance -- Personal injury protection -- Attorney's fees -- Appeal of trial court's determination that predecessor attorney was not entitled to attorney's fee and costs for representation of insured in PIP action after successor attorney filed voluntary notice of dismissal providing that each party would bear own attorney's fees and costs -- Where uncontroverted evidence shows that predecessor attorney was involuntarily discharged and his lien for fees and costs was timely filed and perfected, thus surviving notice of voluntary withdrawal and lack of occurrence of contingency specified in retainer agreement, order denying entitlement to fees and costs is reversed

28 Fla. L. Weekly Supp. 143a

Online Reference: FLWSUPP 2802GUZM

Insurance -- Personal injury protection -- Attorney's fees -- Prevailing insured -- Award of fees and costs -- Contingency fee multiplier is appropriate in case involving benefits-exhausted defense in Tampa Bay area -- Contingency risk multiplier of 2.0 applied -- Discussion of Quanstrom factors

28 Fla. L. Weekly Supp. 98a

Online Reference: FLWSUPP 2802AGUZ

Insurance -- Personal injury protection -- Attorney's fees -- Trial court's application of contingency fee multiplier of 2.0 was supported by competent substantial evidence -- Appellate fees awarded pursuant to section 57.105

28 Fla. L. Weekly Supp. 156b

Online Reference: FLWSUPP 2802OLEC

Insurance -- Attorney's fees -- Amount

28 Fla. L. Weekly Supp. 340a

Online Reference: FLWSUPP 2804FATH

Attorney's fees -- Insurance -- Property -- Assignee of post-loss property insurance claim filed after enactment of section 627.7152(10) may recover attorney's fees only under section 57.105 -- Date that suit was filed, not date that assignment was signed, determines applicability of statute

28 Fla. L. Weekly Supp. 524b

Online Reference: FLWSUPP 2806MART

Insurance -- Personal injury protection -- Standing -- Assignment -- Insurer waived any right to contest medical provider's standing based on provider's failure to attach valid assignment of benefits to demand letter where insurer did not apprise provider of alleged deficiency in assignment when it received demand letter, but instead issued payment for additional benefits and interest -- Assignment correctly identifies sole owner of medical provider

28 Fla. L. Weekly Supp. 327a

Online Reference: FLWSUPP 2804WATE

Insurance -- Property -- Standing -- Action by assignee of property owner against insurer that issued policy to mortgagee of property -- Assignee who is not named insured can only proceed in action against insurer as third-party beneficiary of policy -- Assignee is not omnibus insured under policy -- Count 1 of complaint is dismissed where assignee is not named insured or omnibus insured and has not plead that it is third-party beneficiary of policy -- Alternative count asserting claim of implied equitable assignment of benefits is dismissed -- Assignee's action based on executed assignment of benefits precludes it from seeking equitable relief

28 Fla. L. Weekly Supp. 552a

Online Reference: FLWSUPP 2806BENN

Insurance -- Res judicata -- Insured's voluntary dismissal of previous suit against insurer, to which medical provider that is assignee of insured was not party, does not bar provider's suit against insurer

28 Fla. L. Weekly Supp. 215b

Online Reference: FLWSUPP 2803KIDZ

Arbitration -- Arbitrable issues -- Insurance -- Insurer's motion to compel arbitration in action brought by medical provider seeking compensation for services provided to insureds after insurer terminated agreement with provider is denied -- Court has jurisdiction to determine arbitrability of dispute where parties' agreement does not include clear and unmistakable evidence of agreement to submit arbitrability question to arbitrator -- No merit to insurer's claim that arbitration clause in terminated agreement requires arbitration of claims notwithstanding fact that dispute arose after termination of agreement and claims were not related to agreement

28 Fla. L. Weekly Supp. 427b

Online Reference: FLWSUPP 2805RUDO

Insurance -- Automobile -- Windshield repair -- Appraisal -- Where valid written agreement for appraisal exists and has not been waived, and issue in matter is amount of loss, compliance with appraisal provision is mandatory condition precedent to suit -- If appraiser is found to be partial, correct course of action is to permit appointment of another appraiser, not to invalidate appraisal provision -- Prohibitive cost doctrine is not applicable -- Motion to dismiss is granted

28 Fla. L. Weekly Supp. 425b

Online Reference: FLWSUPP 2805FLEU

Insurance -- Automobile -- Windshield replacement -- Appraisal -- Clear and unambiguous policy provision that provides simple and informal appraisal process for windshield replacement and was not waived by insurer is enforceable against assignee of insured -- Prohibitive cost doctrine is inapplicable to breach of contract action -- Motion to compel appraisal is granted

28 Fla. L. Weekly Supp. 422a

Online Reference: FLWSUPP 2805QUIN

Insurance -- Automobile -- Windshield replacement -- Appraisal -- Clear and unambiguous policy provision that provides simple and informal appraisal process for windshield replacement is enforceable against assignee of insured -- Prohibitive cost doctrine does not preclude appraisal where it has not been shown that cost of appraisal is prohibitively expensive as compared to cost of litigation -- Motion to dismiss is granted

28 Fla. L. Weekly Supp. 411a

Online Reference: FLWSUPP 2805PECO

Insurance -- Automobile -- Windshield replacement -- Appraisal -- Clear and unambiguous policy provision that provides simple and informal appraisal process for windshield replacement and was not waived by insurer is enforceable against assignee of insured -- Prohibitive cost doctrine -- Appraisal process is not invalid under prohibitive cost doctrine where process is not prohibitively costly and it has not been shown that any statutory right would not be vindicated by going through process -- Motion to compel appraisal is granted

28 Fla. L. Weekly Supp. 234b

Online Reference: FLWSUPP 2803MCCOInsurance -- Automobile -- Windshield repair -- Appraisal -- Motion to compel appraisal of windshield repair is granted -- Prohibitive cost doctrine is not applicable in breach of contract claim

28 Fla. L. Weekly Supp. 162a

Online Reference: FLWSUPP 2802HEAM

Insurance -- Automobile -- Windshield repair -- Appraisal -- Prohibitive cost doctrine is not applicable to automobile insurance policy's appraisal provision where breach of contract claim under insurance policy does not involve statutory right -- Furthermore, plaintiff erred in comparing cost of appraisal to amount in controversy; correct analysis under prohibitive cost doctrine is to compare cost of appraisal to cost of litigation -- Motions to enforce appraisal and to dismiss are granted

28 Fla. L. Weekly Supp. 551a

Online Reference: FLWSUPP 2806MAGA

Insurance -- Automobile -- Windshield repair -- Appraisal -- Prohibitive cost doctrine -- Repair shop is not entitled to evidentiary hearing on whether appraisal would be a prohibitive cost -- Prohibitive cost doctrine is not applicable to contractual appraisal clauses concerning state court breach of contract issue -- Demand for appraisal is granted, and case is dismissed for failure to fulfill appraisal condition precedent

28 Fla. L. Weekly Supp. 535a

Online Reference: FLWSUPP 2806MUSA

Insurance -- Automobile -- Windshield repair -- Appraisal -- Prohibitive cost doctrine -- Prohibitive cost doctrine is not applicable to appraisal provision where appraisal costs that were agreed to in policy and over which repair shop has significant control would not render shop unable to pursue claim -- Clear and unambiguous appraisal clause that does not violate statutory law and is not contrary to public policy is enforceable

28 Fla. L. Weekly Supp. 232b

Online Reference: FLWSUPP 2803ARZI

Insurance -- Automobile -- Windshield replacement -- Appraisal -- Unambiguous appraisal clause provides for easy, fair, efficient, and inexpensive means of determining reasonable cost of replacing windshield and does not violate statutory law or public policy -- Motion to compel appraisal is granted -- Insurer that promptly sent demand for appraisal after receipt of repair invoice did not waive its right to appraisal -- Prohibitive cost doctrine is not applicable in breach of contract claim

28 Fla. L. Weekly Supp. 407a

Online Reference: FLWSUPP 2805SPRI

Insurance -- Automobile -- Windshield replacement -- Appraisal -- Clear and unambiguous policy provision that provides simple and informal appraisal process for windshield replacement is enforceable against assignee of insured -- There is no basis for claim that insurer waived right to appraisal where insurer invoked appraisal provision at start of litigation -- Prohibitive cost doctrine is inapplicable to breach of contract action -- Further, affidavits submitted by plaintiff are insufficient to satisfy burden to show that cost of appraisal is prohibitively expensive as compared to cost of litigation -- If insurer's appraiser is found to be partial, correct course of action is to appoint another appraiser, not to invalidate appraisal provision -- No merit to argument that appraisal provision violates right of access to courts where agreement to appraisal provision relinquished that right -- Where plaintiff failed to satisfy condition precedent of appraisal, dismissal is required

28 Fla. L. Weekly Supp. 541a

Online Reference: FLWSUPP 2806DR

Insurance -- Automobile -- Windshield repair -- Motion to dismiss or stay case and compel appraisal is denied -- Allegations in amended complaint contain all necessary elements to support causes of action asserted

28 Fla. L. Weekly Supp. 528a

Online Reference: FLWSUPP 2806WATSInsurance -- Automobile -- Windshield repair -- Motion to compel appraisal granted

28 Fla. L. Weekly Supp. 161a

Online Reference: FLWSUPP 2802JEAN

Insurance -- Personal injury protection -- Application -- Misrepresentations -- Where insurer breached PIP policy and violated PIP statute by failing to pay or deny claim within 30 days of its initiation and did not invoke additional time period for investigation of claim, insurer's rescission of policy for alleged misrepresentation in application was improper

28 Fla. L. Weekly Supp. 157a

Online Reference: FLWSUPP 2802GREE

Insurance -- Personal injury protection -- Application -- Misrepresentations -- Where PIP insurer breached policy by failing to timely pay or deny claim and waited 85 days after learning of alleged material misrepresentation to invoke rescission right, insurer's overt acts of continuing to send out letters pursuant to PIP statute after learning of rescission right waived that right

28 Fla. L. Weekly Supp. 30a

Online Reference: FLWSUPP 2801BLOO

Insurance -- Personal injury protection -- Application -- Misrepresentations -- PIP insurer waived right to rescind policy for alleged material misrepresentation in application where insurer did not rescind policy upon learning that rescission right existed but, rather, continued to recognize the continued existence of policy by sending explanations of benefits and notice letters and breached policy by failing to pay or deny claim within thirty days or ask for more time to investigate claim under section 637.736(4)(i)

28 Fla. L. Weekly Supp. 79a

Online Reference: FLWSUPP 2801TAVI

Insurance -- Personal injury protection -- Application -- Misrepresentations -- Although PIP policy states that insurer has right to recompute premium based on subsequently obtained information and allow policy to continue, there is nothing in policy that requires insurer to exercise that right rather than rescind the policy -- Nothing in policy required insurer to afford insured an opportunity to pay additional premium before it could rescind policy for material misrepresentation that occurred when insured failed to disclose existence of licensed household resident

28 Fla. L. Weekly Supp. 403a

Online Reference: FLWSUPP 2805HARR

Insurance -- Personal injury protection -- Rescission of policy -- Material misrepresentations on application -- Omission of household member -- Insurer violated PIP statute by failing to pay or deny claim within 30 days and failed to invoke additional time limitation under section 627.736(4)(i) -- Rescission of policy was improper

28 Fla. L. Weekly Supp. 76a

Online Reference: FLWSUPP 2801GONZ

Insurance -- Application -- Misrepresentations -- Summary judgment -- Evidence -- Hearsay -- Exceptions -- Unsworn, unsigned telephonic statement of insured regarding residents of his household at time he completed insurance application is not admissible as summary judgment evidence under either business records exception or former testimony exception to hearsay rule -- To extent affidavits filed by insurer in support of summary judgment based on material misrepresentation defense rely on or quote from insured's statement, statements are stricken from record -- Insurer may not use insured's statement for any purpose at trial or summary judgment

28 Fla. L. Weekly Supp. 403b

Online Reference: FLWSUPP 2805MUNG

Insurance -- Personal injury protection -- Coverage -- Denial of coverage and rescission of policy based upon insured's alleged failure to list correct garaging address -- Insurer was in breach of contract and insurer's rescission of the policy was improper because insurer violated PIP statute by failing to pay or deny claim within 30 days and did not invoke the additional time limitation under section 627.736(4)(i)

28 Fla. L. Weekly Supp. 11a

Online Reference: FLWSUPP 2801ESCA

Insurance -- Personal injury protection -- Application -- Material misrepresentations -- Error to enter summary judgment in favor of medical provider on material misrepresentation defense where insurer identified summary judgment evidence from which jury could have concluded that insured made material misrepresentation regarding garaging location of vehicle in order to procure policy -- No error in entering summary judgment on issues of reasonableness, relatedness, and necessity of treatment where provider established prima facie case on issues and insurer presented no countervailing evidence

28 Fla. L. Weekly Supp. 487a

Online Reference: FLWSUPP 2806IMPE

Insurance -- Automobile -- Personal injury protection -- Application -- Misrepresentations -- Materiality -- Business use -- Evidence -- Examination under oath is admissible under exception to hearsay rule applicable to admission by party and statement by opposing party -- Policy was properly rescinded, and therefore void ab initio, based on misrepresentation on policy application regarding use of vehicle for business purposes or commercial use for ridesharing services

28 Fla. L. Weekly Supp. 483a

Online Reference: FLWSUPP 2806PETE

Insurance -- Automobile -- Personal injury protection -- Application -- Misrepresentations -- Materiality -- Garage address -- Evidence -- Examination under oath is admissible under exception to hearsay rule applicable to admission by party and statement by opposing party -- Policy was properly rescinded, and therefore void ab initio, based on insured's failure to disclose correct garaging address of insured vehicle

28 Fla. L. Weekly Supp. 480a

Online Reference: FLWSUPP 2806RROD

Insurance -- Automobile -- Personal injury protection -- Application -- Misrepresentations -- Materiality -- Regular operator of insured vehicle -- Policy was properly rescinded, and therefore void ab initio, based on insured's failure to disclose son as regular operator of insured vehicle

28 Fla. L. Weekly Supp. 424a

Online Reference: FLWSUPP 2805ROBE

Insurance -- Automobile -- Coverage -- Application -- Motion for reconsideration of order finding that insured's failure to disclose brother with whom she lives was material misrepresentation that entitled insurer to rescind insurance contract is denied -- Application was not ambiguous, and deposition of insurer's corporate representative was admissible evidence of materiality of misrepresentation

28 Fla. L. Weekly Supp. 509a

Online Reference: FLWSUPP 2806ETSC

Insurance -- Automobile -- Personal injury protection -- Application -- Misrepresentations -- Materiality -- Policy was properly rescinded, and therefore void ab initio, based on insured's failure to disclose his girlfriend as household member

28 Fla. L. Weekly Supp. 346a

Online Reference: FLWSUPP 2804ROBE

Insurance -- Automobile -- Application -- Misrepresentations -- Action for declaratory relief challenging rescission of policy for failure to disclose household member on application and seeking declaration that insured is entitled to PIP and property damage coverage -- Materiality -- Insurer was entitled to rescind policy based on insured's failure to disclose that she lived with her brother where insured failed to contradict insurer's claim that this disclosure would have caused insurer to issue policy at higher premium rate, misrepresentation -- Insurer was not required to provide an affidavit in addition to deposition testimony to establish the materiality of misrepresentation -- Instruction to provide information for “all persons age 14 or older residing with Applicant (licensed or not)” unambiguously required insured to disclose brother

28 Fla. L. Weekly Supp. 473b

Online Reference: FLWSUPP 2806OPEN

Insurance -- Appeals -- Stay -- Motion to stay appeal pending Florida Supreme Court decision is denied where policies at issue in cases are distinguishable

28 Fla. L. Weekly Supp. 473a

Online Reference: FLWSUPP 2806STAS

Insurance -- Appeals -- Stay -- Motion to stay appeal pending Florida Supreme Court decision is denied, as policies at issue in cases are distinguishable

28 Fla. L. Weekly Supp. 454a

Online Reference: FLWSUPP 2806ARZU

Insurance -- Personal injury protection -- Appeals -- Non-final orders -- Order granting motion to amend complaint to include claim for bad faith is not reviewable by certiorari where order does not result in irreparable harm that cannot be addressed on plenary appeal -- No merit to argument that order departed from essential requirements of law because it was entered after insurer confessed judgment -- Confession of judgment did not moot amount of damages that could be awarded to medical provider

28 Fla. L. Weekly Supp. 375a

Online Reference: FLWSUPP 2805MGON

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Accord and satisfaction -- Reasonableness of charges -- Trial court correctly rejected insurer's accord and satisfaction defense, ruling that insurer's partial payment did not meet the elements of accord and satisfaction under either common law or the Uniform Commercial Code -- Trial court abused its discretion by excluding insurer's conflicting affidavit on whether medical bills at issue were reasonable in price -- Taking excluded affidavit into account, it was error to grant summary judgment on issue of reasonableness

28 Fla. L. Weekly Supp. 374a

Online Reference: FLWSUPP 2805RUIZ

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Accord and satisfaction -- Reasonableness of charges -- Trial court correctly rejected insurer's accord and satisfaction defense, ruling that insurer's partial payment did not meet the elements of accord and satisfaction under either common law or the Uniform Commercial Code -- Trial court abused its discretion by excluding insurer's conflicting affidavit on whether medical bills at issue were reasonable in price -- Taking excluded affidavit into account, it was error to grant summary judgment on issue of reasonableness

28 Fla. L. Weekly Supp. 277a

Online Reference: FLWSUPP 2804RAMO

Insurance -- Personal injury protection -- Affirmative defenses -- Accord and satisfaction -- Where there was no dispute regarding amount of medical provider's bill prior to insurer's having issued check for partial payment, there could be no common law accord and satisfaction -- Conspicuous statement -- Check for partial payment did not contain conspicuous statement required for statutory accord and satisfaction where check included phrase stating that it was full and final payment of PIP benefits in all capitals on payee line, but phrase is not set off from other text by heading, size, type, font, color or symbols -- Trial court correctly found that partial payment was not accord and satisfaction