Volume 4

4 Fla. L. Weekly Supp. 380a Insurance -- Personal injury protection -- Wrongful withholding of benefits -- Appellate court must assume lower court decided factual issues correctly where party seeking reversal for insufficiency of evidence failed to provide transcript of proceedings before lower court or stipulated statement of facts as substitute for transcript -- Summary judgment was properly granted in favor of insurer as matter of law where plaintiff never provided insurer with medical bills at issue prior to filing lawsuit -- Insurer has no obligation to pay benefits to insured until thirty days after claimant supplies proof that covered loss occurred and proof of amount of loss

4 Fla. L. Weekly Supp. 97a Insurance -- Plaintiff had no standing to prosecute claim against insurer where plaintiff had effectively transferred all of her interests and rights in case to medical provider

4 Fla. L. Weekly Supp. 381a

Insurance -- Personal injury protection -- Attorney's fees -- Insured's action against insurer -- Where jury found insured entitled to $1000 in damages for his medical bills, but insured recovered nothing because policy had $2000 deductible, insured was not entitled to award of attorney's fees

4 Fla. L. Weekly Supp. 218a

Attorney's fees -- Insurance -- Personal injury protection -- Voluntary dismissal of insurer's counterclaim constituted an adjudication on the merits where insurer had voluntarily dismissed initial suit raising similar claims and involving same transaction -- Because adjudication on the merits occurred with voluntary dismissal of insurer's counterclaim, judgment was, in effect, entered for insured, precluding insurer from relitigating the issue and allowing insured to retain benefits previously paid -- Insured entitled to recover attorney's fees incurred in defense of counterclaim

4 Fla. L. Weekly Supp. 226a

Attorney's fees -- Insurance -- Insured entitled to attorney's fees incurred in defending judgments entered in his favor against insurer's motions to have judgments set aside and fees incurred in collecting, executing or obtaining satisfaction of judgments -- Contingency risk multiplier applies to defense of post-judgment motions to have judgments set aside, but does not apply to time expended in furtherance of execution, collection or satisfaction of judgments -- Insured awarded costs, expert witness fees, and interest

4 Fla. L. Weekly Supp. 325b

Insurance -- Attorney's fees -- Insured seeking award of attorney's fees and costs following resolution of insured's suit against insurer for unpaid medical bills -- Insured not entitled to fee award for counsel's presuit activity of filing earlier lawsuit which was voluntarily dismissed -- Multiplier of 1.75 applied to fee award -- Insured's attorney entitled to fee award for time spent arguing for application of a multiplier

4 Fla. L. Weekly Supp. 805a

Insurance -- Personal injury protection -- Attorney's fees -- Contingency multiplier -- Time and labor -- Plaintiff may obtain attorney's fees for litigating entitlement to attorney's fees, but not for litigating the amount of the fee -- Establishing entitlement to the use of a multiplier is an entitlement issue in which the client retains an interest -- Issues of multiplier, prejudgment interest, and market rate found to be issues of entitlement -- Time and labor -- Duplication of effort -- Where the billing statements of co-counsel are consistent with efforts to properly coordinate activities to save time and maximize the talents of each attorney to better represent the client, there is no duplication of effort and the attorneys made efficient use of their time and labor -- Novelty of issues -- Where a case involves several novel issues, which if supported by the facts will result in losing the case, the time spent is justified -- An attorney's requested hourly rate that is well within the range of fees charged in the community for similar work and by attorneys of similar skill and reputation is reasonable -- Contingency risk multiplier -- A multiplier is appropriate in cases where the insurance company contests a PIP case and the court finds that it would have been difficult if not impossible for PIP plaintiff to get proper legal representation on a contested PIP case without a contingency contract, and that attorneys of skill and reputation would not accept such cases without a contingency fee multiplier -- Where co-counsel shared the work and risk and testified they could not have achieved the same results without working as a team, they should share the same multiplier -- Expert witness fees -- Court has no discretion to deny the attorney expert witness fees -- Prejudgment interest on attorney's fees and costs shall accrue from the date of resolution of the case

4 Fla. L. Weekly Supp. 668a

Attorney's fees -- Insurance -- Personal injury protection -- Contingency risk multiplier -- After assessment of pertinent factors, case merits application of risk multiplier of 1.5, despite lack of complexity of legal issues -- Evidence supports plaintiff's argument that relevant marketplace limits ability of litigants of plaintiff's financial strata to hire competent counsel for PIP suits of this nature without incentive of risk multiplier

4 Fla. L. Weekly Supp. 663a

Attorney's fees -- Insurance -- Attorney's fees awarded to insured who prevailed in suit against insurer arising out of delay in payment of personal injury protection benefits -- Fees for legal assistant work disallowed on ground that no testimony was introduced directly or through expert witnesses concerning those fees -- Application of 1.5 contingency risk multiplier is appropriate under circumstances -- Hourly rate of $250 deemed appropriate in view of attorneys' knowledge, skill and experience -- Plaintiff may not recover for attorney time spent as result of plaintiff's own misconduct, acts of omission or lack of cooperation, or for time attorneys spent litigating whether contingency risk multiplier should be factored into fee award -- Court declines to award fees for hired attorney's fees expert

4 Fla. L. Weekly Supp. 490a

Attorney's fees -- Insurance -- Personal injury protection -- Insured awarded attorney's fees incurred in action against insurer -- Number of hours claimed is reasonable -- Issues involved were somewhat novel and complex in that insurer raised defense that insured had made material misrepresentations in insurance application by failing to disclose resident relatives and defense that insured made material misrepresentations when applying for benefits -- Market rate applicable to case is that charged in community for cases concerning principally tort and contract issues -- Application of contingency risk multiplier of 2.0 is appropriate under circumstances -- Insured entitled to award of fees incurred in litigating issue of entitlement to attorney's fees -- Issue of whether or not multiplier should be used is ``entitlement'' issue -- Insured entitled to award of prejudgment interest on attorney's fees from date of entitlement -- Where insurer entered into settlement with insured for benefits and interest on specified date, but failed to pay settlement amount within twenty days, insurer is required to pay additional interest on full settlement amount as penalty for delay

4 Fla. L. Weekly Supp. 788b

Insurance -- Automobile -- Physical damage -- Assistance and cooperation -- Where policy did not specifically list the giving of a statement as a condition precedent to filing a lawsuit or give notice to insured that he must deliver a statement prior to legal action, insured at no time prior to filing the suit refused to submit a written or sworn statement, and insured waited on two occasions for insurer's representative to call him for the requested statement, insured did comply with the cooperation requested in the investigation of his claim -- By its own conduct, insurer waived right to assert breach of cooperation clause as defense to coverage

4 Fla. L. Weekly Supp. 438c

Insurance -- Personal injury protection -- Trial court erred in finding that insured had validly assigned rights under policy to medical providers where plain language of policy prohibited assignment without written consent of insurer, and record revealed that insurer had not given written consent

4 Fla. L. Weekly Supp. 165a

Insurance -- Personal injury protection -- Motion to dismiss insured's breach of contract claim against insurer on ground that dispute should be resolved through binding arbitration is denied -- Statute providing for arbitration of disputes between insurer and any person providing medical services or supplies does not apply to dispute between insured and insurer -- Insurer failed to prove existence of any assignment of PIP benefits from insured to health care providers -- Motion to dismiss claim for declaratory relief on issue of whether policy provides PIP coverage for chiropractic treatment is denied

4 Fla. L. Weekly Supp. 762a

Arbitration -- Insurance -- Personal injury protection -- Insurer waived right to arbitrate dispute with medical services provider by filing answer, affirmative defenses, and demand for jury trial

4 Fla. L. Weekly Supp. 632a

Criminal law -- Driving under influence -- Argument -- Prosecutor's remark to jury asking ``How can you even equate the honesty of law enforcement officers to that of the defendant,'' patently improper -- Prosecutor may never attempt to sway jury to believe the testimony of police officers merely because they are police officers -- Reversal not required where error not preserved for appeal by objection and argument not so egregious as to constitute fundamental error

4 Fla. L. Weekly Supp. 571a

Arbitration -- Insurance -- Personal injury protection -- Statute requiring insurers to include within each PIP policy a provision offering arbitration as an option for dispute resolution does not require mandatory binding arbitration of all disputes between medical providers and insurers -- Binding arbitration not required absent an agreement between medical provider and insurer in which they specifically contract for arbitration of dispute or an assignment in which medical provider has made specific reference to statute and its arbitration option, thus evidencing an intent to arbitrate

4 Fla. L. Weekly Supp. 567a

Arbitration -- Insurance -- Personal injury protection -- Statute requiring insurers to include within each PIP policy a provision offering arbitration as an option for dispute resolution does not require mandatory binding arbitration of all disputes between medical provider assignees and insurers -- Assignee of PIP benefits may not be compelled to arbitrate dispute with insurer where assignee is neither party to insurance contract nor an intended third party beneficiary, unless insured has agreed to binding arbitration as condition to recovery -- Motion to dismiss assignee's suit and to compel arbitration is denied

4 Fla. L. Weekly Supp. 509c

Arbitration -- Insurance -- Personal injury protection -- Statute requiring insurers to include within each PIP policy a provision offering arbitration as an option to dispute resolution does not provide for mandatory arbitration -- Assignee of policy which did not contain a provision requiring arbitration of claims between insurer and insured was not required to submit to binding arbitration

4 Fla. L. Weekly Supp. 130a

Arbitration -- Insurance -- Personal injury protection -- Dispute between insurer and medical services provider who has accepted assignment of benefits was required to be resolved by arbitration under terms of policy -- Although no written assignment of benefits had been made, trial court could infer the existence of valid assignment from fact that medical services provider presented its bill to insurer and requested that payment be made directly to provider rather than insured -- Order granting motion to dismiss and to compel arbitration is affirmed

4 Fla. L. Weekly Supp. 377a

Insurance -- Personal injury protection -- Applicant for insurance was required to disclose name of fiancee who was living with him at time of application and who was not registered owner of a vehicle -- Insurer was justified in denying coverage for injuries sustained by fiancee in accident that occurred while she was operating vehicle where omission of fiancee's name from application prevented insurer from investigating fiancee's driving record, and insurer would not have issued policy had it discovered fiancee's poor driving record -- Questions on application were not ambiguous with respect to requirement that applicant disclose names of anyone living in household who was not registered owner of a vehicle -- Applicant not required to disclose fiancee's name in response to request for ``Names of All Licensed Drivers and/or Drivers of Vehicle'' where fiancee's license was suspended at time of application and she did not at that time drive the insured vehicle -- Insurer not required to rescind policy in order to deny coverage for fiancee's injuries