Volume 6

6 Fla. L. Weekly Supp. 486d

Insurance -- Uninsured motorist -- Owner of vehicle who was listed as insured on declarations page of policy and who was injured while riding as a passenger in insured vehicle due to negligence of her boyfriend, who was co-owner of vehicle and also listed as an insured on the policy, was not entitled to UM coverage -- Vehicle which was being operated by one of the named insureds could not meet policy definition of ``uninsured auto'' -- Section 627.727(3), which provides that term ``uninsured motorist vehicle'' shall, subject to terms and conditions of coverage, be deemed to include insured motor vehicle when the liability insurer excludes liability coverage to a nonfamily member whose operation of an insured vehicle results in injuries to the named insured does not compel coverage in instant case in which boyfriend was a named insured

6 Fla. L. Weekly Supp. 50b

Insurance -- Subrogation -- Third party claim -- Defendant in action involving subrogation claim for insurance benefits paid by insurer could not bring third party claim against insured in absence of claim for indemnity -- Because third party claim against insured was improperly joined, misjoinder occurred -- Misjoinder is grounds to sever improperly joined third party claim, rather than grounds for dismissal -- Third party defendant's motions for judgment on pleadings and dismissal denied

6 Fla. L. Weekly Supp. 402a

Insurance -- Subrogation -- Torts -- Comparative negligence -- Joint and several liability -- Pursuant to section 768.81, tortfeasor was jointly and severally liable for total damages paid by automobile insurer to its insured, notwithstanding fact that tortfeasor was found only 50% responsible for causing or contributing to accident, where damages were less than $25,000 -- Error to enter judgment against tortfeasor for only 50% of damages

6 Fla. L. Weekly Supp. 399f

Insurance -- Personal injury protection -- Civil procedure -- Error to treat insured's Motion in Limine Regarding Points of Law as motion for summary judgment

6 Fla. L. Weekly Supp. 577a

Insurance -- Personal injury protection -- Insured claiming PIP benefits seeking to preclude orthopedic specialist from testifying on issues relating to the propriety of insurer's termination of payments for chiropractic treatment -- Physician is not prohibited from testifying concerning propriety of chiropractic treatment -- Orthopedic specialist will be permitted to offer opinions on issue of whether amounts claimed would constitute reasonable expenses for necessary services within meaning of statute and on related issues

6 Fla. L. Weekly Supp. 47a

Insurance -- Personal injury protection -- Action in which medical provider initially sought payment of PIP benefits that had already been paid and subsequently amended complaint to seek only statutory interest on late paid benefits, and attorney's fees -- Where insurer asserts that it paid medical provider more than was actually due, and that any overage paid should be used to offset any interest due, action should proceed as traditional action for damages in which single judgment is to be obtained, and any sums recovered by medical provider would be subject to setoff process -- Whether setoff is affirmative defense or counterclaim does not determine whether single judgment, or separate judgments, should be entered -- Independent judgments should not be entered on medical provider's amended complaint and insurer's counterclaim asserting setoff -- Issues remaining for trial are whether medical provider is entitled to reimbursement for sums paid, and if so, how much

6 Fla. L. Weekly Supp. 265b

Insurance -- Personal injury protection -- Competing claims by insurer for lost wages and by health care provider for amount of lien -- Interpleader -- Attorney's fees -- Health care provider which had lien for medical services and counterclaimed for entire amount of its lien in interpleader action filed by insurer, on ground that interpleader amounted to a ``settlement'' which interfered with its lien, lost its right to appeal circuit judge's dismissal of its counterclaim with prejudice because notice of appeal was filed nine months past deadline, and because provider appealed circuit court order to the circuit court -- Where the only thing at stake after dismissal of counterclaim was the $10,000 fund which insurer was liable for under its policy with insured, and both provider and insured claimed entitlement to all or part of that fund, the same thing, debt or stake was claimed by both defendants -- Insurer stood in position of indifference because, at time of interpleader, insurer had not incurred any liability other than that which was capped at the amount of its policy -- No error in trial court's finding that insurer was entitled to recover attorney's fees from interpleaded fund where record supported finding that insurer had total disinterest in stake and did nothing to cause conflicting claims

6 Fla. L. Weekly Supp. 295b

Insurance -- Personal injury protection -- Motion for judgment on pleadings in which defendant asserts that plaintiff failed to join health care provider as indispensable party denied -- Case should not be dismissed for failure to join indispensable party if dismissal would end plaintiff's claim, and the only claimed prejudice is potential for subsequent litigation by the missing party

6 Fla. L. Weekly Supp. 439a

Insurance -- Personal injury protection -- Insurer's motion for summary judgment on basis of insured's unreasonable refusal to attend compulsory medical examination is denied based upon finding that record does not conclusively establish that insured's failure to attend two scheduled medical examinations was unreasonable -- Issue of fact remains as to whether insured's alleged lack of transportation excused his failure to attend first examination and whether insured received notice of second examination -- Fact that notice was received by insured's counsel not basis for granting summary judgment in favor of insurer

6 Fla. L. Weekly Supp. 293a

Contracts -- Settlement agreement -- Insurance -- Personal injury protection -- Health care provider/assignee seeking to enforce settlement agreement which insurer sought to void after discovering that it was not the appropriate insurer for the loss at issue -- Plaintiff did not detrimentally rely upon insurer's mistake where plaintiff knew that another company was a potential insurer but chose to pursue its claim only against defendant, and defendant rescinded settlement agreement only six days after settlement negotiations and before any payment had been made, leaving plaintiff with an opportunity to present its claim to the appropriate insurer -- Judgment entered in favor of defendant

6 Fla. L. Weekly Supp. 55a

Insurance -- Personal injury protection -- Third-party beneficiaries -- Language in policy stating that insurer would pay benefits to ``or on behalf of'' injured person did not make medical service provider an intended third party beneficiary of insurance contract -- Medical services provider who did not receive assignment of benefits from insured did not have standing to sue insurer for payment

6 Fla. L. Weekly Supp. 328c

Insurance -- Personal injury protection -- Error to grant summary judgment based on finding that it was reasonable to require wage verification form before payments commenced under section 627.736(4)

6 Fla. L. Weekly Supp. 443b

Insurance -- Personal injury protection -- Statute allows for 10% interest per year on overdue benefits -- Insured entitled to additional 12% interest on settlement proceeds where insurer did not tender settlement amounts within 20 days of written settlement

6 Fla. L. Weekly Supp. 793a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 7 Fla. L. Weekly Supp. 63a

Insurance -- Personal injury protection -- Insurer may not reduce bills submitted on behalf of insured on ground that treatment was not medically necessary unless it obtains reasonable proof that it does not owe benefits within thirty days of receipt of bills

6 Fla. L. Weekly Supp. 780a

Insurance -- Personal injury protection -- Insurer not entitled to reduce amount of PIP benefits without an independent medical examination or showing that insured failed to perform a condition precedent -- Insurer will not be permitted to escape or reduce liability by alleging that a purported fee review, which was conducted to determine reasonable amount for specified treatment given geographical locale, allows insurer to unilaterally reduce amount of required PIP benefits -- Unless it can be shown that insured has failed to perform some condition precedent, insurer must obtain an independent medical examination before PIP benefits are withdrawn, reduced or denied

6 Fla. L. Weekly Supp. 471a

Insurance -- Personal injury protection -- Insurer may defend a PIP claim on the merits even when it does not have reasonable proof in its possession, within thirty days of receiving a claim, that it is not responsible for payment of the claim -- Such claim is, however, overdue, and insured will be entitled to statutory interest and attorney's fees as provided by law

6 Fla. L. Weekly Supp. 470a

Insurance -- Personal injury protection -- Error to enter summary judgment awarding disputed medical benefits to insured on ground that insurer failed to make payment or furnish reasonable proof supporting denial within thirty days of receipt of bill -- Whether treatment was medically necessary is element for insurer to prove at trial -- Although failure to pay benefits or furnish reasonable proof to support denial within thirty days may subject insurer to attorney's fees and interest, statute does not create any greater penalty -- Remand with instructions that case be set for trial

6 Fla. L. Weekly Supp. 234b

Insurance -- Personal injury protection -- Confession of judgment -- Motion for summary judgment claiming that insurer confessed judgment by paying disputed medical bill after lawsuit was filed denied, where insurer may have paid the claim within 30-day review period -- An insurer does not confess a judgment upon payment of PIP claim within statutory 30-day period, even if theory of anticipatory repudiation permits premature filing of lawsuit -- Issue of whether insurer paid the medical bill before or after expiration of statutory 30-day review period remains unresolved

6 Fla. L. Weekly Supp. 289a

Insurance -- Personal injury protection -- Plaintiff who owned no motor vehicle which provided No-Fault benefits, resided with no relatives that owned a motor vehicle, and was not, according to jury verdict, a resident of Florida on date of accident was not an insured or omnibus insured under contract in question

6 Fla. L. Weekly Supp. 564a

Insurance -- Personal injury protection -- Coverage -- Pedestrian who did not come into contact with motor vehicle which struck and fatally injured her companion and who was not physically injured not entitled to coverage for psychological counseling

6 Fla. L. Weekly Supp. 481a

Insurance -- Personal injury protection -- Coverage -- Non-resident

6 Fla. L. Weekly Supp. 625b

Insurance -- Personal injury protection -- Coverage -- Nexus between injury and use of motor vehicle -- Insured who was sprayed by crop duster as he rode as passenger in motor vehicle was entitled to coverage under terms of insurance policy

6 Fla. L. Weekly Supp. 752b

Insurance -- Personal injury protection -- For purposes of PIP benefits, an individual is the same as his or her fictitious name/sole proprietorship -- Trial court properly found individual who was sole employee/owner of towing business which he operated under fictitious name was entitled to PIP coverage under policy insuring tow truck, notwithstanding insurer's contention that business, not individual, was owner of truck

6 Fla. L. Weekly Supp. 779a

Insurance -- Personal injury protection -- Insurer entitled to summary judgment on claim alleging insurer wrongfully refused to pay medical bills insured incurred for treatment rendered by health care provider -- Section 627.736(5)(b) (1998) is clear and unambiguous in requiring that PIP bills be furnished only by provider directly to carrier within thirty (30) days of date of service, which date is measured by postmark on envelope in which bills are transmitted -- Health care provider did not submit ``Notice of Initiation'' to insurer which would extend time within which insurer might be responsible for payment of bills for services rendered -- Medical bills, which were not sent to insurer within 30 days of date services were rendered, were untimely pursuant to statute and insurer is relieved of its obligation to pay these bills

6 Fla. L. Weekly Supp. 236b

Insurance -- Personal injury protection -- Plaintiff who acknowledges that he is seeking declaration concerning his rights under insurance policy as policy relates to 30-day review and independent medical examination requirements under section 627.736(7) is not entitled to summary judgment because claim for lost wages, which is the only claim remaining, is not implicated by IME requirement

6 Fla. L. Weekly Supp. 722a

Insurance -- Personal injury protection -- Insurer, as condition precedent to reducing medical charges and/or defending lawsuit for benefits, must first obtain report from a physician with the same level of licensure as the treating physician, stating that the charges are excessive -- Question certified: In a claim for personal injury protection benefits disputing the amount charged by the treating physician, is it a condition precedent, pursuant to F.S. 627.732(7)(a), that the insurer first obtain a report from a physician licensed under the same chapter as the treating physician, stating that the charge is excessive?

6 Fla. L. Weekly Supp. 733a

Insurance -- Personal injury protection -- Insurer liable for payment of bill for nerve testing, plus statutory interest and attorney's fees, where payment was denied thirty-five days after bill was received, and insurer did not have reasonable proof establishing that it was not responsible for payment of bill within thirty days of receipt

6 Fla. L. Weekly Supp. 109a

Insurance -- Personal injury protection -- Error to enter summary judgment in favor of insurer based on payment of insured's bills within 30 days -- Termination letter was repudiation of contract giving rise to cause of action -- Insurer's contention that even if they exercise right to deny further benefits they should still be permitted to take 30 days to evaluate any additional bills is rejected

6 Fla. L. Weekly Supp. 354b

Insurance -- Personal injury protection -- Independent medical examination -- Insured's refusal to submit to two IMEs was unreasonable and without proper justification where IME was scheduled at doctor's office that was between three and five miles from insured's residence, insured did not provide adequate notice of intent to refuse to submit to IME, and reasons given by insured for refusal to submit to IME were arbitrary and insufficient to justify noncompliance -- Because there were no qualified physicians within municipal limits of insured's residence, insurer was entitled to schedule IME outside insured's residence in a location reasonably accessible to insured -- Insured's untimely attempt to raise issue of doctor's office being located in what he was told was high crime area is ineffectual -- Insurer is not obligated to pay for medical bills which were received after insured's first scheduled IME because insured unreasonably refused to appear for two properly scheduled independent medical examinations

6 Fla. L. Weekly Supp. 469b

Insurance -- Personal injury protection -- Action against insurer after coverage was denied for failure of injured party to attend independent medical examinations -- Notice of initial and rescheduled independent medical examinations sent to plaintiff's counsel was sufficient -- No error in entering summary judgment in favor of insurer

6 Fla. L. Weekly Supp. 790a

Insurance -- Personal injury protection -- Coverage -- Claim for PIP benefits by plaintiff, who was injured after colliding with automobile while riding bicycle, from driver of automobile which was covered by PIP policy -- Summary judgment for defendant driver proper where there remain no disputed issues of material fact as to whether plaintiff is entitled to PIP coverage under driver's PIP policy -- Jury found that plaintiff was not resident of state at time of accident per section 672.736(4)(d)4 where defense was permitted to submit evidence of plaintiff's illegal alien status -- Question certified: Is the fact that a person entered and remains in the United States illegally as an undocumented or ``illegal'' alien relevant to a determination of whether that person is a ``resident of this state,'' as the term is used in F.S. 627.736(4)(d)4? If so, is such evidence nonetheless inadmissible because ``its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, [or] misleading the jury,'' per F.S. 90.403?

6 Fla. L. Weekly Supp. 720a

Insurance -- Personal injury protection -- Amount and date of services in dispute -- More definite statement

6 Fla. L. Weekly Supp. 258a

Insurance -- Personal injury protection -- Coverage -- Ownership, maintenance or use of vehicle -- Insured who was denied coverage for injury allegedly sustained while she was arranging luggage in vehicle while in the process of preparing to drive vehicle and transport luggage stated cause of action for breach of contract -- Arranging luggage once it is inside automobile is indispensable accessory use of automobile and one that is closely connected to routine transportation of travelers and their baggage -- Error to dismiss insured's complaint with prejudice

6 Fla. L. Weekly Supp. 444a

Insurance -- No fault -- Insurer's motion for summary judgment granted -- Question certified: Is coverage under a no-fault policy of insurance barred 1) if the insured refuses to attend or complete an examination under oath, and/or 2) if the insured fails to provide written documentation to support his claim, and/or 3) if the insured files suit on the policy prior to complying with the terms and conditions of the policy of insurance, if the policy provisions require, at a minimum, compliance with these three criteria as conditions precedent to coverage?

6 Fla. L. Weekly Supp. 508a

Venue -- Insurance -- Maritime insurance -- Suit brought by owners of damaged vessel after defendants suggested plaintiffs accepted less compensation for their losses than is covered under policy limits due to exchange rate -- Forum selection clause in policy cannot operate as the sole basis for Florida to exercise personal jurisdiction over an objecting non-resident defendant -- Service of suit clause in which underwriters agree ``to submit to suit in any court of competent jurisdiction within the United States'' does not foreclose transfer to another jurisdiction where the interest of justice and convenience of witnesses would be served by such transfer -- Factors weigh in favor of defendant's motion to dismiss for forum non conveniens where case involves dispute between non-U.S. resident and foreign entity; claim arose from accident which befell a foreign-flagged vessel, owned by a non-U.S. citizen, with damage and repair both occurring in Europe; insurance policy was entered into by non-U.S. citizen and foreign-based entity; there are no allegations that law of more appropriate forum would be unreasonably detrimental to either party; and alternative forum is adequate

6 Fla. L. Weekly Supp. 280a

Jurisdiction -- Insurance -- Action alleging insurer breached insurance contract by refusing to pay full amount of insured damages sustained by plaintiffs as result of dismasting of their vessel in international waters and subsequent repair of vessel in Europe, and by misrepresenting that the insurance contract is an indemnity policy, thereby casting initial burden for payment upon the plaintiffs -- Motion to dismiss for forum non conveniens denied -- Complaint dismissed without prejudice on ground that plaintiff failed to plead residency requirements

6 Fla. L. Weekly Supp. 624a

Insurance -- Insured who had assigned rights under policy to health care provider lacked standing to sue insurer for interest on payments made by insurer

6 Fla. L. Weekly Supp. 792b

Insurance -- Personal injury protection -- Affirmative defense of exhaustion of benefits waived by failure to include defense in pleadings -- Interest at statutory rate owed for bills which were partially paid more than thirty days after receipt by insurer -- Plaintiff's motion for summary judgment concerning reduction of charges granted

6 Fla. L. Weekly Supp. 791a

Insurance -- Personal injury protection -- Interest -- When an insurer pays PIP benefits for medical services more than thirty (30) days after receipt of demand for payment, interest commences on first day after receipt of demand

NOTE: Order and judgments in this case voided upon finding of lack of standing. 7 Fla. L. Weekly Supp. 686a

6 Fla. L. Weekly Supp. 721b

Insurance -- Personal injury protection -- Insurance company is required to obtain a report of a physician who conducted an independent medical examination of insured prior to reducing or denying a medical bill -- Report of physician based only upon a records review does not meet the actual examination requirement of section 627.736(7)(a) -- Insurer breached policy by denying payment of bills based on peer review and reducing bills without IME -- Interest accrues on overdue payments from date bill is received through date payment is made

6 Fla. L. Weekly Supp. 720e

Insurance -- Personal injury protection -- Independent medical examination should have been scheduled in municipality in which insured resides under circumstances

6 Fla. L. Weekly Supp. 573c

Insurance -- Error to terminate no fault insurance benefits based on insured's refusal to submit to independent medical examination -- With regard to first scheduled examination, insured was never notified by insurer of its decision to utilize a particular entity to perform an independent medical examination and did not inform insured that she was required to comply with the request made by that entity for an IME -- First IME was not scheduled in municipality where insured resided or where insured was receiving treatment -- With regard to second scheduled examination, it was not unreasonable for insured to become confused as to where and when she was to submit to IME in view of conflicting communications -- Medical bills, penalties, and interest awarded to assignee

6 Fla. L. Weekly Supp. 396c

Insurance -- Homeowners -- Subrogation -- Insurer seeking to recover from manufacturer of air conditioning unit and local servicing and maintenance company the amounts it paid to its insured as result of damage caused by leaking unit -- Trial court properly entered summary judgment in favor of manufacturer where there was no evidence that manufacturer was negligent, and insurer's investigation resulted in specific determination that responsibilities for the occurrence lay solely with installer

6 Fla. L. Weekly Supp. 48b

Insurance -- Health -- Health maintenance organizations -- Provider of medical services seeking payment of unpaid medical bills from defendant who is member of HMO -- Section 641.315(3), which provides that no provider of services may maintain an action at law against a subscriber of HMO to collect money owed to such provider by HMO, does not provide a jurisdictional threshold -- Because statute is not a jurisdictional requirement, motion to dismiss is denied, without prejudice to asserting statute as affirmative defense

6 Fla. L. Weekly Supp. 553a

State attorneys -- Subpoenas -- Privacy -- Motion to quash subpoena duces tecum issued at request of investigator for Department of Insurance, Division of Insurance Fraud and requiring production of financial institution records -- State's interest in conducting an effective criminal investigation into allegations of theft on part of movant is compelling state interest, issuance of subpoena duces tecum was least intrusive means employed to achieve that interest, and subpoena was reasonably calculated to obtain information relevant to ongoing criminal investigation -- Prior judicial approval of such a subpoena is not required -- Motion to quash subpoena and motion for permanent injunction is denied

6 Fla. L. Weekly Supp. 522a

Insurance -- Personal injury protection -- Plaintiff, who referred and scheduled appointment for insured at magnetic resonance imaging facility that actually performed MRI services, is not entitled to recover PIP benefits under section 627.736 for two MRI scans provided to insured -- Plaintiff is not a ``physician, hospital, clinic, or other person or institution lawfully rendering treatment'' to insured, and plaintiff provided no treatment or meaningful service to insured that would qualify it as a health care provider entitled to payment of PIP benefits under section 627.736 -- Charge of $2,200 by plaintiff above $800 charged by MRI facility for MRI services, or $1,100 charged by plaintiff over and above MRI facility's usual, customary and standard charge for MRI services constitutes a kickback, rebate or split-fee arrangement within meaning of section 817.505 which prohibits patient brokering -- Plaintiff's activities constitute clear violation of statute which prohibits patient brokering and split-fee arrangements -- Split fee arrangement that exists between plaintiff and MRI facility is contrary to public policy of state and expressly prohibited by patient brokering statute -- Payment of insured's PIP benefits to plaintiff under section 627.736 would be contrary to public policy of state -- Questions certified to Fourth District Court of Appeal: Whether an entity that refers and coordinates the scheduling of a patient's MRI (or other diagnostic testing) to and with a facility that actually performs and provides all the MRI (or other diagnostic testing) services is entitled to payment of PIP benefits under section 627.736 for the MRI services provided to the patient/insured by the third-party facility -- Whether an entity that refers and coordinates the scheduling of a patient's MRI (or other diagnostic testing) to and with a facility that actually performs and provides all the MRI (or other diagnostic testing) services, and then bills the patient's insurer for those MRI (or other diagnostic testing) services at a markup of between 150-375% of the charges of that actual provider of the services, is engaged in activity that constitutes patient brokering and a split-fee arrangement contrary to the public policy of this state and in violation of section 817.505

6 Fla. L. Weekly Supp. 500a

Criminal law -- Solicitation of false and fraudulent insurance claim -- Statute making it unlawful to solicit business in or about hospitals, sanatoriums, or any private institutions, upon private property, in public institutions, in any public place, upon public streets, for the purpose of making motor vehicle tort claims or claims for personal injury protection benefits does not apply to telephone solicitation -- Motion to dismiss is granted on all counts except the single count in which it was alleged that defendant physically presented themselves at private residence to solicit business

6 Fla. L. Weekly Supp. 489a

Jurisdiction -- Nonresidents -- Contracts -- Marine insurance -- Foreign association which provided policies of insurance with respect to vessel owned by plaintiff, a foreign shipping company, lacks requisite minimum contacts to justify exercise of personal jurisdiction and is not engaged in ``substantial and not isolated'' business activity which would provide basis for exercise of general jurisdiction -- Section 626.906, Florida Statutes, which is part of Florida's Unauthorized Insurers Process Law, cannot provide basis for jurisdiction because it only applies to policies issued for delivery to Florida residents, a circumstance not present in instant case -- Defendant's use of correspondents in several of Florida's ports and act of sending surveyors to examine damage after vessel was brought into Florida port following casualty not sufficient to establish specific jurisdiction over defendant -- Contacts by insurer resulting from issuing of letters of undertaking when casualty may have arisen in Florida or elsewhere in the United States to stand in place of vessel on behalf of owner not sufficient to establish minimum contacts -- Venue -- Even if jurisdiction existed, action would be dismissed for lack of proper venue given venue provision in foreign maritime code which was incorporated into hull and machinery policy and which mandates that venue for resolution of dispute is in Sweden, the country where defendant is located and where insurance was issued

6 Fla. L. Weekly Supp. 16a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 6 Fla. L. Weekly Supp. 155c

Insurance -- Automobile -- Exclusions -- Rental vehicles -- Where parties had stipulated that rental by insured was for three day period and that insured was on vacation, additional facts concerning whether three day rental constituted rental for regular use, which would have constituted exception to stipulation, are speculations not affecting court's ability to grant summary judgment -- Summary judgment determining insurance coverage in favor of insured affirmed -- Attorney's fees -- No error in awarding attorney's fees to insured, because there was an acquiescence when insured continued to prosecute his claim for fees -- Although claim for attorney's fees under ``applicable Florida statute'' does not appear to be adequate pleading, insurer had notice that attorney's fees were sought, and it took no steps to further inquire or move for more definite pleading

6 Fla. L. Weekly Supp. 185a

Insurance -- Personal injury protection -- Insurer does not breach contract with insured by failing to pay for medical expenses deemed to be unreasonable, unnecessary, or unrelated to accident -- Insurer's contractual obligation to defend and indemnify the insured if the provider sues for outstanding bills is enforceable

6 Fla. L. Weekly Supp. 68a

Insurance -- Error to order discovery after cause was dismissed upon insurer's motion to refer claim to arbitration

6 Fla. L. Weekly Supp. 583a

Insurance -- Personal injury protection -- Insured's action against insurer -- Discovery requests through which insured sought to discover nature of relationship between insurer, the medical records review company which schedules independent medical examinations, and the physician who conducted independent medical examination of insured -- Type of discovery sought by insured is permissible -- Insurer failed to demonstrate that it would suffer irreparable injury that cannot be remedied on appeal if it complies with discovery order entered by court -- Petition for writ of certiorari dismissed

6 Fla. L. Weekly Supp. 738a

Insurance -- Personal injury protection -- Insured's action against insurer -- Discovery -- Order requiring insurer to provide insured with amount of money it paid to its independent medical examiner over three-year period did not constitute departure from essential requirements of law -- Order does not go beyond scope of permissible discovery -- Discovery granted by trial court not so oppressive or burdensome as to constitute a departure from essential requirements of law

6 Fla. L. Weekly Supp. 451a

Civil procedure -- Discovery regarding defendant insurer's relationship with expert witness and a record review company is permissible, provided that discovery is not unduly burdensome, overbroad and is reasonably calculated to lead to discovery of admissible evidence

6 Fla. L. Weekly Supp. 592a

Insurance -- Personal injury protection -- Action against insurer which refused to pay medical bills on ground that they were not necessary or reasonable -- Discovery -- Insured seeking to take deposition of corporate representative with the most knowledge concerning her claim and insurer's affirmative defenses to first amended complaint -- Trial court did not depart from essential requirements of law or abuse its discretion when it granted defendant's motion for protective order where plaintiff had already deposed two other corporate representatives, including a claims superintendent and the claims representative assigned to her claim

6 Fla. L. Weekly Supp. 450a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 6 Fla. L. Weekly Supp. 592a

Insurance -- Action against insurer which refused to pay medical bills on ground that they were not necessary or reasonable -- Discovery -- Because adequate record was not provided, court unable to determine whether trial court departed from essential requirements of law by denying a motion for rehearing of court's decision to grant protective order preventing deposition of a corporate representative with the most knowledge concerning plaintiff's claim and defendant's affirmative defenses, where plaintiff had already deposed two other corporate representatives, including claims superintendent and claims representative

6 Fla. L. Weekly Supp. 6a

Insurance -- Personal injury protection -- Discovery -- Depositions -- Appeals -- Certiorari review is proper where injury caused by discovery order on review would be irreparable on plenary review -- Insured may depose representative of medical billing review agency and obtain through discovery copies of non-privileged documents in agency's possession based upon insurer's indication that it may call representative of agency as lay or rebuttal witness to testify regarding agency's transmission of documents and based upon fact that agency was entity responsible for selecting, retaining, and compensating the two doctors who reviewed insured's records and/or examined insured, and whose recommendations ultimately resulted in insurer's denial of insured's PIP benefits -- Insurer may not shield agency from discovery regarding lay witness matters simply because it no longer intends to call agency to testify at trial as expert witness -- Trial court departed from essential requirements of law by not considering agency in its capacity as lay witness, by precluding insured from deposing agency representative regarding lay witness matters, and by precluding insured from obtaining through discovery non-privileged documents from agency

6 Fla. L. Weekly Supp. 606b

Insurance -- Error to enter summary judgment in favor of insurer where there was question of material fact as to whether insured was, under terms of policy, totally disabled during periods for which he made claim

6 Fla. L. Weekly Supp. 160a

Insurance -- Personal injury protection -- Declaratory judgment action in which insured sought determination whether her recovery of PIP benefits was subject to $2000 deductible that had been elected by her husband -- Error to grant summary judgment in favor of insurer where there existed factual issue as to whether agency relationship existed between wife and husband -- Spouses are not necessarily agents for one another for purposes of procuring insurance

6 Fla. L. Weekly Supp. 675a

Insurance -- Coordination of benefits between primary personal injury protection insurer and secondary HMO provider, with insured contending PIP benefits should have been used to pay her lost earnings and HMO, as secondary provider, should pay all of her medical expenses -- Statutes do not require PIP carriers to coordinate PIP benefits with HMO coverage -- Insurer complied with PIP statutes and indisputably sent insured a notice approved by Department of Insurance -- Caselaw requiring insurer to apportion benefits between PIP and medical payments coverage of an insured's automobile policy, so that insured could derive maximum benefits from the policy, not applicable to instant case involving policy which did not contain medical payments coverage -- Even if insured had completed an application for lost wages benefits or specifically requested that PIP insurer apportion her benefits between lost wages and medical payments, insurer was obligated by law to utilize PIP funds first for insured's hospital bills -- Trial court erred in granting summary judgment in favor of insured

6 Fla. L. Weekly Supp. 554a

Insurance -- Action alleging breach of insurance contract; seeking determination regarding coverage for investigation expenses incurred by insureds and determination whether plaintiffs are additional insureds under policy; and seeking civil remedies as to unfair claim settlement practices, illegal dealings in premiums, false statements and entries, and unlawful cancellation -- Motion to dismiss count seeking civil remedy as to false statements and entries is granted -- Count for declaratory relief on coverage issue not premature, although no formal complaint had been filed against plaintiffs arising out of incident in question, where plaintiffs alleged in their complaint that they received a demand letter threatening litigation from counsel of allegedly injured person -- Breach of contract claim can be heard at same time as declaratory relief claims -- Civil remedy claims under section 624.155(1)(a) are not bad faith claims and are not dependent on a prior determination of coverage -- Private right of action exists under section 627.4133 for unlawful cancellation -- Insurer's contention that count seeking coverage for investigation costs should be dismissed because insurer's duty to investigate was discretionary and because plaintiffs voluntarily incurred the investigation expenses without insurer's consent is rejected -- Insurer's discretion is subject to concepts of good faith and fair dealing which are implicit in all insurance contracts -- Where complaint alleges that attorney representing the estate, widow, and five children of one of the individuals killed in incident at issue formally demanded that he and his experts be allowed to investigate scene and gather evidence, insurer was on notice that possible lawsuit was imminent, and factual issue exists as to whether insurer failed to exercise its discretion to investigate in good faith -- With regard to policy provision prohibiting insureds from voluntarily making a payment, assuming an obligation, or incurring expenses without insurer's consent, term ``voluntarily'' is ambiguous and should be interpreted liberally in plaintiffs' favor -- Factual issues exist as to whether plaintiffs voluntarily incurred investigation expenses in view of possibility that they may have been subject to sanctions, including default, if they did not preserve evidence -- Motion to dismiss or abate counts other than count seeking remedy as to false statements and entries is denied

6 Fla. L. Weekly Supp. 467a

Insurance -- Cancellation of policy -- Action against insurer which refused to pay claim for stolen vehicle on ground that policy had been canceled -- Evidence presented by insured was sufficient to create jury issue as to whether or not insured actually received notice of cancellation which insurer contended it had mailed

6 Fla. L. Weekly Supp. 394a

Insurance -- Subrogation -- Leased vehicles -- Insurer seeking subrogation from entity which leased automobile to its insured -- Insurer may not raise for first time on appeal its contention that, according to ruling by First District Court of Appeal, single limit policy in effect at time of accident did not absolve automobile lessor of responsibility as the owner of vehicle under dangerous instrumentality doctrine -- Summary judgment in favor of lessor affirmed

6 Fla. L. Weekly Supp. 535b

Insurance -- Automobile -- Subrogation -- Insurer's action for reimbursement of money paid for property damage as result of intersection collision occurring when defendant, whose view while sitting at stop sign was obscured, moved through intersection -- Error to rule in favor of defendant on ground that insured saw defendant's vehicle moving through intersection in sufficient time to stop and avoid the accident -- Because insured had the right of way and defendant had duty to stop at stop sign, look for oncoming traffic, and yield the right of way, insured should not have been found 100% at fault for the accident

6 Fla. L. Weekly Supp. 542a

Insurance -- Automobile -- Subrogation -- Damages resulting when insured vehicle was struck by following vehicle after insured driver stopped when he saw defendant's car backing onto road -- Undisputed testimony that insured stopped when he saw defendant backing out of private driveway onto through street constituted prima facie evidence that defendant violated statute prohibiting driver from backing without interfering with other traffic -- Violation of strict liability statute makes a finding of at least some degree of negligence compulsory -- Trial court erred in entering judgment in favor of defendant on ground that third driver, by following too closely, caused the accident

6 Fla. L. Weekly Supp. 427a

Insurance -- Automobile -- Offer of settlement -- Covered and noncovered claims -- Action against insurer which rejected offer of settlement of personal injury and property damage claims and which then, without informing deceased insured's representative, reached an agreement to settle only property damage claims -- Where insurer which received offer of settlement for property damage and bodily injury claims, a part of which was covered under policy and a part of which was not, insurer owed various duties to its insured pursuant to common law of Florida, including duty to advise insured of settlement opportunity; to advise as to probable outcome of litigation; to warn of possibility of excess judgment; to notify insured that portions of claim were not covered under policy and the reason for insurer's rejection of claim; and to advise insured that insured may want to seek advice of independent counsel for portion of claim not covered by policy -- Insurer failed to fulfill its duty to provide deceased insured's representative, within a reasonable time, an explanation in writing of the basis in the policy for denial of claim or for the offer of a compromise settlement

6 Fla. L. Weekly Supp. 200b

Insurance -- Automobile -- Rule against splitting causes of action does not apply to resolve insured's breach of insurance contract claim based on insurer's refusal to honor declaratory judgment finding insurer owed coverage to insured where applying the rule would result in injustice and unfairness -- It is fundamentally offensive to concepts of fairness and justice that insurer could refuse to honor a declaratory judgment finding that it owed coverage to its insured on basis that insured did not liquidate damages during declaratory judgment proceeding

6 Fla. L. Weekly Supp. 398b

NOT FINAL VERSION OF OPINION
Subsequent Changes at 6 Fla. L. Weekly Supp. 480d

Attorney's fees -- Insurance -- Personal injury protection -- Trial court should not have awarded attorney's fees for time spent filing or pursuing provider's suit against insurer in view of statutory requirement that parties submit to binding arbitration -- Costs -- Expert witness fee should not have been awarded where time required for preparation and testifying was not burdensome

6 Fla. L. Weekly Supp. 673a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 7 Fla. L. Weekly Supp. 90g

Attorney's fees -- Insurance -- Personal injury protection -- Language of complaint was sufficient to apprise insurance carrier of insured's claim for attorney's fees under no-fault law

6 Fla. L. Weekly Supp. 722b

Insurance -- Personal injury protection -- Arbitration award finding medical services were not necessary, resulting in decision in favor of insurer, is confirmed, and judgment entered for insurer -- Attorney's fees -- Insurer's motion for attorney's fees denied -- Question certified: Does the prevailing party standard for obtaining attorney's fees in F.S. §627.736(5) violate Article I, Section 9, of the Florida Constitution?

6 Fla. L. Weekly Supp. 353a

Insurance -- Personal injury protection -- Attorney's fees -- Insured waived any objection to insured's claim for attorney's fees where insured's complaint and subsequent motion for attorney's fees and costs put insurer on notice as to claim for attorney's fees, and insurer failed to object to motion for attorney's fees until day of evidentiary hearing -- Motion for attorney's fees granted

6 Fla. L. Weekly Supp. 535a

Attorney's fees -- Insurance -- Personal injury protection -- Complaint which referenced attorney's fees and the statute under which recovery was sought gave defendant sufficient notice that fees were being sought

6 Fla. L. Weekly Supp. 314a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 6 Fla. L. Weekly Supp. 479d

Attorney's fees -- Insurance -- Personal injury protection -- Statute requires that medical provider who renders treatment covered by PIP insurance may be paid directly if insured has countersigned invoice, bill, or claim form -- Phrase ``signature on file,'' typed on form in place designated for insured's signature does not suffice -- Where provider never presented a signed form or assignment before filing suit, although it had a properly executed assignment of benefits which it did not share with insurer until three months into litigation, trial court erred in awarding attorney's fees to provider

6 Fla. L. Weekly Supp. 351a

Insurance -- Personal injury protection -- Attorney's fees -- Attorney for health care provider, who was ultimately successful in arbitration, is entitled to compensation for pursuing an entitlement to litigate where attorney abandoned that pursuit and proceeded to arbitrate following subsequent controlling precedent -- It was reasonable for health care provider to commence litigation to enforce its right to payment, to propound discovery, and to maintain a position adverse to arbitration until Third District Court of Appeals issued ruling that health care providers must arbitrate assigned PIP claims -- It was reasonable to abandon that litigation rather than waste time of parties and trial court by holding a hearing, where trial court would have ordered arbitration and been required to stay the proceedings if plaintiff had pursued entitlement to litigate and required trial court to rule

6 Fla. L. Weekly Supp. 335a

Insurance -- Personal injury protection -- Attorney's fees -- Where insured brought action against insurer for balance of medical bills which had not been paid because they allegedly exceeded usual and customary charges, and insurer filed third-party complaint against medical services providers which was dismissed when providers agreed to write off the balance due and to refrain from seeking payment from insured, insurer's motion to dismiss insured's complaint was prematurely granted on basis of mootness because controversy over insured's entitlement to attorney's fees was still live -- If assignments were properly executed and in effect at time suit was filed, insured lacked standing because a statutory procedure for binding arbitration controlled the dispute -- If there were no assignments in existence at time complaint was filed, insured would be entitled to attorney's fees because subsequent agreements between medical providers and insurer were, in effect, a settlement of the dispute over the alleged overcharged bills

6 Fla. L. Weekly Supp. 99b

Attorney's fees -- Insurance -- Personal injury protection -- Health care providers not entitled to attorney's fees where the only actions taken by counsel were letters to insurers advising them of overdue bill and demanding arbitration, to which insurers responded by paying bills

6 Fla. L. Weekly Supp. 24a

Attorney's fees -- Insurance -- Personal injury protection -- Insured who filed action against insurer for damages claiming that insurer failed to provide timely full payment of all treatments is entitled to attorney's fees, because the bills were not timely paid -- Although insurer paid the amount owed within 30 days of learning it had mistakenly assumed the doctor's bill was for one treatment rather than two, ample evidence existed to allow insurer to make full payment of bill supplied by doctor with minimal inquiry where insured submitted physician's medical report which clearly stated that insured had two distinct injuries with application for benefits -- Remand for determination of reasonable amount of attorney's fees that should be awarded for both trial and appellate phases of litigation

6 Fla. L. Weekly Supp. 403a

Attorney's fees -- Insurance -- Personal injury protection -- Where insurer made payments to various medical providers after insured's suit against insurer had been dismissed, and trial court entered nunc pro tunc order vacating dismissal, insured was entitled to recover attorney's fees and costs pursuant to section 627.428

6 Fla. L. Weekly Supp. 469a

Attorney's fees -- Insurance -- Personal injury protection -- Plaintiff entitled to reasonable attorney's fees where insurer initially claimed that it was not provided sufficient information prior to filing of lawsuit to determine whether insured was a covered person, but failed to deliver checks until 43 days after it conceded that it was obligated to pay plaintiff's PIP claim

6 Fla. L. Weekly Supp. 572a

Insurance -- Personal injury protection -- Under applicable law, assignees were prevailing parties and were entitled to attorney's fees where payments were made to assignees after commencement of arbitration

6 Fla. L. Weekly Supp. 723a

Insurance -- Attorney's fees

6 Fla. L. Weekly Supp. 721a

Insurance -- Personal injury protection -- Attorney's fees

6 Fla. L. Weekly Supp. 373a

Insurance -- Personal injury protection -- Attorney's fees -- No abuse of discretion in amount of attorney's fees awarded to insured after settlement of dispute over bill for chiropractic treatment -- Competent substantial evidence supports determination that 70 hours was reasonable number of hours expended and that $300 was reasonable hourly rate -- No abuse of discretion in trial court's determination that contingency risk multiplier of 2.5 was appropriate -- Whether trial court abused its discretion by awarding expert witness fees and by including presuit attorney's fees in calculating award not preserved for appellate review

6 Fla. L. Weekly Supp. 797a

Insurance -- Personal injury protection -- Attorney's fees -- Insured's motion to strike insurer's proposal for settlement/demand for judgment is granted -- Insurer may not file an effective offer of settlement in a first-party lawsuit for benefits under PIP policy -- Inclusion of insured's attorney's fees in offer diminishes protection afforded insured and provides additional basis for striking offer

6 Fla. L. Weekly Supp. 777a

Insurance -- Offer of settlement -- Attorney's fees -- Florida Statutes, section 627.428 which exclusively grants an award of attorney's fees to successful insureds who are forced to sue their insurer does not directly conflict with section 768.79 which gives defendant insurers opportunity to be awarded their attorney's fees if their offer of judgment, which must be made in good faith, is rejected and resulting award is less the 75% of offer of settlement if plaintiff prevails -- Motion to strike insurer's proposal for settlement denied -- If the insured prevails in any amount, insured, despite a less favorable award than offer of judgment, is nevertheless entitled to fees and costs incurred prior to time when offer of judgment was made, which will need to be compared to insurer's entitlement and, if necessary, appropriate set-offs made

6 Fla. L. Weekly Supp. 723b

Insurance -- Personal injury protection -- Attorney's fees -- Plaintiff's motion to strike insured's proposal for settlement, pursuant to section 768.79 is granted -- Offer of judgment statute does not apply to PIP case

6 Fla. L. Weekly Supp. 711b

Insurance -- Personal injury protection -- Attorney's fees -- Plaintiff's motion to strike insured's proposal for settlement, which identified section 768.79 as the legal basis for the proposal, is granted -- Offer of judgment statute does not apply to PIP case

6 Fla. L. Weekly Supp. 645a

Attorney's fees -- Insurance -- Personal injury protection -- Motion to assess attorney's fees and costs by insurer, who made offer of settlement in action brought by insured to recover PIP benefits for three medical tests performed in connection with automobile accident, granted -- Motion was timely filed where, pursuant to Rule 1.442(a), motion was made within 30 days after return of verdict in jury trial -- Rule 1.442(a) supersedes statute providing that court shall determine entitlement to attorney's fees upon motion made within 30 days after entry of judgment -- Defendant's offer of settlement did not have to include actual fees and costs incurred by plaintiff as of date of offer -- Section 627.428 does not preclude award of attorney's fees to insurer under section 768.79 -- There is no direct conflict between two statutes -- Section 768.79 and Rule 1.442 give court discretion to disallow award of costs and attorney's fees if it determines that offer was not made in good faith -- Plaintiff failed to prove that defendant's offer was made in bad faith, where defendant engaged in discovery by obtaining plaintiff's medical records and deposing her treating physician prior to filing its proposal of settlement, and defendant made nominal offer based on physician's testimony that tests in question were not necessary -- There was reasonable foundation for nominal offer of $1.00

6 Fla. L. Weekly Supp. 512b

Insurance -- Attorney's fees -- Offer of judgment -- Insurer entitled to attorney's fees and costs pursuant to its offer of judgment

6 Fla. L. Weekly Supp. 291d

Insurance -- Personal injury protection -- Attorney's fees -- Offer of judgment statute does not apply to insured's first party action against PIP insurer -- Motion to strike insurer's Proposal for Settlement based on applicability of section 627.428 granted

6 Fla. L. Weekly Supp. 180b

Insurance -- Personal injury protection -- Attorney's fees -- Proposal for settlement/offer of judgment statute does not apply to actions for PIP benefits -- Question certified -- Motion for attorney's fees filed by prevailing insurer whose proposal for settlement was rejected by insured is denied -- Fact that motion to strike insurer's proposal for settlement/offer of judgment was not filed until after jury verdict does not alter court's decision regarding award of attorney's fees to insurer

6 Fla. L. Weekly Supp. 179b

Insurance -- Personal injury protection -- Attorney's fees -- Offer of judgment -- Insured's motion to strike insurer's proposal for settlement, which cited section 768.79 as legal basis for proposal, is granted -- Offer of judgment statute does not apply to actions brought pursuant to section 627.736

6 Fla. L. Weekly Supp. 17d

Attorney's fees -- Justiciable issues -- Error to limit attorney's fee award to attorney's contractual rate -- Perez-Borroto v. Brea does not apply in awarding attorney's fees pursuant to §57.105 -- Appellant entitled to reasonable attorney's fees in both county and appellate levels, even though appellee confessed error

6 Fla. L. Weekly Supp. 399a

Insurance -- Prejudgment interest -- Error to award prejudgment interest on attorney's fee awards against Florida Insurance Guaranty Association

6 Fla. L. Weekly Supp. 181b

Insurance -- Personal injury protection -- Attorney's fees -- Where medical provider whose bill was partially unpaid unilaterally elected to write off the balance after insured filed suit against insurer and insurer made time-consuming discovery requests involving provider and members of his staff, the benefit insured obtained was, at best, a collateral consequence of litigation against insurer and independent of any act constituting an admission or confession of judgment which would entitle insured to an award of attorney's fees -- Insured's motion for entitlement to attorney's fees denied as to claims for medical services and/or treatment for which charges have been written off -- Jurisdiction reserved to award reasonable attorney's fees and costs pending settlement or adjudication in favor of insured as to amounts paid for medical services which insured alleged to have been reasonable and necessary

6 Fla. L. Weekly Supp. 72a

Attorney's fees -- Insurance -- Insured not entitled to award of attorney's fees as prevailing party in action against insurer where insured recovered after trial the exact amount of insurer's pre-suit offer

6 Fla. L. Weekly Supp. 609a

Insurance -- Personal injury protection -- Discontinuation of benefits after independent medical examination -- Where insured prevailed in action against insurer, and insured's expert witness testified that he expected to be paid for his testimony, trial court properly awarded expert witness fee to insured -- Attorney's fees -- Insured sufficiently pled entitlement to attorney's fees -- Evidence insufficient to support fee award where insured's attorney failed to submit sworn affidavit or testify as to how much time he spent on the case -- Remand for evidentiary hearing on attorney's fees issue

6 Fla. L. Weekly Supp. 604b

Attorney's fees -- Insurance -- Personal injury protection -- Insured's complaint, although imperfectly pled, gave insurer sufficient notice of cause of action for attorney's fees under no-fault law where complaint alleged that insurer failed to pay benefits in accordance with Florida Automobile Reparations Reform Act, further alleged that plaintiff had to retain counsel in order to compel payment of benefits and was entitled to recover reasonable attorney's fees for prosecution of action, and requested attorney's fees in ``WHEREFORE CLAUSE,'' which demanded court costs, attorney's fees, and other reasonable relief

6 Fla. L. Weekly Supp. 155c

Insurance -- Automobile -- Exclusions -- Rental vehicles

6 Fla. L. Weekly Supp. 102b

Insurance -- Attorney's fees and costs -- Insured prevailing in action against insurer

6 Fla. L. Weekly Supp. 790b

Insurance -- Attorney's fees -- Prevailing party -- Plaintiff entitled to attorney's fees as prevailing party pursuant to attorney's fees provision set forth in section 627.736(4), Florida Statutes, where defendant paid claims prior to arbitration hearing but after plaintiff filed lawsuit and demand for arbitration -- Defendant cannot avoid liability for attorney's fees by paying claims after suit is filed

6 Fla. L. Weekly Supp. 640a

Attorney's fees -- Insurance -- Motion for attorney's fees and costs arising from underlying insurance dispute in which insured's claim for property damage to her truck was denied, insurer completely denied coverage under insured's policy, and insurer voided policy based upon position that insured had made material misrepresentations on her application for insurance -- Hours spent by attorney were reasonable and necessary -- Time spent was devoted to legal research, drafting of pleadings, keeping client informed of proceedings, and pursuing settlement discussions with insurer -- Testimony of insurer's expert witnesses that less time should have been spent is not persuasive -- Fees for litigating entitlement to attorney's fees -- While it appeared that defense agreed that it owed a fee, there were issues of entitlement as to prejudgment interest, multiplier, attorney's fees after entry of judgment, and market rate -- Half of hours spent after plaintiff obtained settlement, including half of hours spent at hearing, will be allowed as litigation over entitlement to attorneys fees for purely legal issues -- Allowing an enhanced fee by use of multiplier is a benefit to insured/client -- Litigation concerning amount of hours is not compensable -- Novelty, complexity and required skill -- Case involved somewhat novel legal issues, and time spent by plaintiff's counsel on legal research was not excessive -- Market rate for fees in community -- Plaintiff has requested hourly rate which falls within range of hourly fees charged in community by lawyers of reasonable comparable skill, experience and reputation performing similar services as those performed by plaintiff's counsel -- While amount involved was small, amount was substantial to plaintiff who was involved in year long dispute over damaged truck that was vital to her business and had to experience having her claims denied by her insurance company -- Results obtained, including vindication that insurance company was wrong and settlement, were excellent -- Contingent risk multiplier -- Application of contingency risk multiplier to lodestar is within sound discretion of court and is appropriate -- Plaintiff was not obligated to pay any fee absent a court award, and it would have been difficult if not impossible for plaintiff to get proper legal representation on facts of case without use of contingency contract and possibility of fee multipliers -- Attorneys of skill and reputation similar to plaintiff's counsel are not eager to pursue and will not accept contested insurance cases with voided policies and go to trial without possibility of multiplier -- Contingency risk multiplier is appropriate where success at outset was unlikely -- Fact that insurer chose to settle after suit cannot now support position that risk to plaintiff was not great at outset -- Expert witness fees -- Plaintiff entitled to expert witness fee where expert witness expected to be paid for his time in preparing and testifying in fee hearing -- Prejudgment interest -- Plaintiff entitled to prejudgment interest on attorney's fees and costs from date of resolution of case -- Prejudgment interest on attorney's fees and costs shall accrue at rate of 10% from date on which coverage was resolved by entry of judgment and date plaintiff obtained settlement -- Attorney's fees and interest will be awarded in merged total with post-judgment interest then accruing on merged total

6 Fla. L. Weekly Supp. 512c

Insurance -- Attorney's fees -- Amount

6 Fla. L. Weekly Supp. 113e

Insurance -- Personal injury protection -- Error to enter summary judgment in favor of insurer in action brought by vehicle passenger on ground that passenger failed to submit to sworn statement prior to filing suit where there was factual issue as to whether passenger was informed of alleged requirement contained in automobile owner's PIP policy

6 Fla. L. Weekly Supp. 753e

NOT FINAL VERSION OF OPINION
Subsequent Changes at 7 Fla. L. Weekly Supp. 239i

Insurance -- Personal injury protection -- Once made, an assignment of insured's interest in PIP benefits to a medical provider is irrevocable -- Although mutual revocations of assignments authorized by the assignment itself and/or subject insurance policies have been recognized, unilateral revocations of assignment in instant case were invalid

6 Fla. L. Weekly Supp. 114a

Insurance -- Personal injury protection -- Error to grant summary judgment in favor of medical services provider in action to collect benefits which insurer had paid directly to its insured after it received provider's bill where there was disputed issue of material fact as to whether insurer received only an unsigned billing form or whether it also received assignment of benefits form

6 Fla. L. Weekly Supp. 720b

Insurance -- Personal injury protection -- Plaintiff is equitable assignee of PIP benefits under policy at issue -- Factual issue exists as to whether there are outstanding interest payments owed on bills which were paid prior to benefits being exhausted -- Motion for summary judgment denied

6 Fla. L. Weekly Supp. 574a

Insurance -- Personal injury protection -- Insurer did not waive its right to contest medical provider's standing by entering into stipulation effecting a partial settlement which limited remaining issues to services rendered after IME cutoff and a nerve conduction study -- Motion to dismiss on ground that no assignment was attached to the complaint is denied -- For purposes of motion to dismiss court is obliged to accept allegations that insured executed an assignment of benefits in favor of plaintiff where those allegations are not negated by the document filed with the court

6 Fla. L. Weekly Supp. 794a

Insurance -- Personal injury protection -- Health care provider who did not have effective assignment of benefits from insured lacked standing to bring action against insurer -- Document purporting to be assignment of benefits is merely a direction to pay, and does not constitute an assignment of insured's rights to sue under subject insurance policy -- Insurer's motion for summary judgment granted

6 Fla. L. Weekly Supp. 679a

Insurance -- Personal injury protection -- De facto or implied assignment of benefits -- Medical provider's act of submitting a bill for diagnostic testing with the insured/patient's permission, through an authorization for direct payment -- Summary judgment inappropriate where unresolved material issue of fact remains

6 Fla. L. Weekly Supp. 328d

Insurance -- Arbitration -- Insurer waived right to demand arbitration by litigating over two years before making arbitration demand

6 Fla. L. Weekly Supp. 720d

Insurance -- Personal injury protection -- Defendant waived right to arbitration by refusing to arbitrate

6 Fla. L. Weekly Supp. 20a

Insurance -- Personal injury protection -- Arbitration -- Insurer did not waive its right to arbitrate claim disputes arising between itself and medical service provider by making offer of judgment and requesting independent medical examination -- Conduct did not constitute inconsistent acts which would result in waiver of right to arbitrate -- Reversible error to dismiss insured's action against insurer to enforce payment of PIP benefits and to direct parties to proceed with arbitration, because assignment of benefits which gave rise to right to arbitrate was revoked prior to claims dispute between insurer and medical service provider and prior to insurer's request for arbitration -- Because assignment had expired, statutory and policy provisions requiring binding arbitration of claims disputes between medical service provider and insurer no longer applied -- Revocation of assignment afforded insured right to bring legal action to recover PIP benefits

6 Fla. L. Weekly Supp. 661a

Insurance -- Personal injury protection -- Arbitration -- Insurer's motion to compel arbitration of dispute with health care provider denied -- Regardless of whether arbitration is dictated by section 627.736(5), which has been held unconstitutional by district court of appeal, or required by a contract provision that is, in turn, required by the statute, it is the mandatory nature of the arbitration that violates provider's due process rights -- Arbitration provision in instant contract was product of mutual mistake as to the law applicable to the agreement because each party was contracting in accordance with and pursuant to section 627.736(5), which the parties mistakenly assumed was valid -- Reformation of agreement to delete arbitration provision is appropriate -- Estoppel -- Provider not estopped to oppose arbitration by fact that it initially sought to compel arbitration -- By initially seeking to compel arbitration under facially valid statute, provider did nothing more nor less than what appeared to be required by statute

6 Fla. L. Weekly Supp. 680a

Arbitration -- Insurance -- Trial court properly ruled that insurer was not entitled to arbitrate dispute with medical provider where suit was brought by provider as insured's attorney-in-fact, not as assignee -- Authorization form signed and executed by insured created an attorney-in-fact relationship between provider and insured and expressly excluded the intent to create an assignment -- Even if an assignment were created by authorization document, binding provider to arbitration is violation of due process -- Attorney's fees -- Provider's motion for attorney's fees and costs for time spent defending appeal granted -- Amount to be determined by trial court on remand

6 Fla. L. Weekly Supp. 101b

Insurance -- Personal injury protection -- Arbitration -- Dispute between insurer and medical service provider must be referred to arbitration unless parties have waived arbitration -- Issue of waiver may be determined only by evidentiary hearing on motion to stay pending arbitration -- Declaratory judgments -- Count for declaratory relief seeking determination as to whether insurer may deny PIP benefits based solely upon paper review of insured's medical records dismissed -- In view of decision of circuit court sitting in its appellate capacity holding that denial decision could not be based solely on paper review, no uncertainty on issue exists in circuit

6 Fla. L. Weekly Supp. 27b

Insurance -- Personal injury protection -- Arbitration -- Error to deny insurer's motion to dismiss and compel arbitration of medical provider's dispute involving medical bills submitted directly to insurer for treatment of insured -- Medical provider who accepts assignment of benefits is required to arbitrate a disputed claim for PIP medical benefits -- Medical provider may not avoid arbitration of such dispute merely by raising claim for declaratory relief -- Issue of whether insurer has lost right to contest particular covered benefits because it allegedly failed to obtain an independent medical examination is arbitrable, even though medical provider seeks declaratory relief -- Section 86.02 does not create declaratory relief as sole and exclusive remedy

6 Fla. L. Weekly Supp. 648a

Insurance -- Personal injury protection -- Insurer challenging reasonableness of medical provider's charges for treatment/testing performed on named insured in action by medical provider as assignee of insured -- Florida Statutes, section 627.736, does not require a report from a medical expert when insurer pays only that portion of charge which is reasonable -- Matter is properly in binding arbitration -- Fact that insurer does not have report from medical expert in case where only issue is whether charges of medical provider are reasonable does not render claim non-arbitrable -- Motion to amend complaint denied

6 Fla. L. Weekly Supp. 612a

Insurance -- Personal injury protection -- Dispute between medical services provider and insurer -- Arbitration -- Where insurer denied payment for electrodiagnostic procedures performed by assignee after neurologist who reviewed insured's medical records found that the amount of diagnostic testing was medically unnecessary; assignee filed suit alleging breach of contract and seeking declaration that statute requires an actual physical examination by a physician prior to denial of claimed medical bills; and insurer responded by filing motion to compel arbitration, trial court erred when it denied arbitration and entered final declaratory judgment -- Valid written agreement existed requiring application of arbitration code, and arbitration was not waived -- Arbitrable issues -- Whether diagnostic testing was reasonable and necessary was arbitrable claim -- Filing of count for declaratory relief was merely an attempt to avoid arbitration of legitimate claims by raising a coverage issue based upon the lack of a hands-on physical examination prior to denying benefits -- Trial court erred as matter of law in finding section 627.736(7)(a) ambiguous and in interpreting the statute to require a physical independent medical examination

6 Fla. L. Weekly Supp. 354a

Insurance -- Personal injury protection -- Arbitration -- Dispute between health care provider and insurer -- Court is required to follow Third District's ruling in Orion Ins. Co. v. Magnetic Imaging System, 696 So.2d 475 (Fla. 3d DCA 1997), which held that section 627.736(5) was constitutional and necessarily compelled arbitration -- Motion for rehearing denied

6 Fla. L. Weekly Supp. 353b

Insurance -- Personal injury protection -- Arbitration -- Dispute between health care provider and insurer -- Section 627.736(5), Florida Statutes, validly and clearly compels arbitration -- Motion to stay arbitration and vacate order compelling arbitration denied

6 Fla. L. Weekly Supp. 725b

Insurance -- Personal injury protection -- Where health care provider had insured sign one document that said it was not an assignment and simultaneouslysign a second document that said it was an assignment, the two documents canceled each other out, making both a nullity -- Insurer's motion to dismiss health care provider's suit granted -- Arbitration -- Unilateral sending of arbitration package which contained an arbitration demand, named the plaintiff's arbitrator, and included a discovery package and a proposed order setting arbitration did not constitute the commencement of arbitration proceeding for purposes of triggering section 627.736(5) -- Arbitration proceeding does not effectively commence unless and until the insurer acknowledges the arbitration demand -- Insurer's payment of bill thereafter is not functional equivalent of a confession of judgment

6 Fla. L. Weekly Supp. 356b

Insurance -- Personal injury protection -- Arbitration -- Where insurer refuses to pay certain bills based on its belief that treatment is not covered under policy, insurer's motion to dismiss and to compel arbitration denied -- When the insurer flatly denies that certain treatment is covered, insured retains ability to contest that decision in court of law -- Because section 627.736(5) states that providers ``may charge only a reasonable amount,'' the term ``claims dispute'' as used in arbitration statute contemplates only disputes in which insurer agrees that certain treatment is covered, but disputes the reasonableness of dollar amount being charged for that treatment

6 Fla. L. Weekly Supp. 720c

Insurance -- Personal injury protection -- Arbitration

6 Fla. L. Weekly Supp. 573b

Arbitration -- Insurance -- Personal injury protection -- Statute mandating binding arbitration of disputes between medical providers and insurers is unconstitutional as a denial of medical provider's due process rights -- Statute does not violate right of access to courts

6 Fla. L. Weekly Supp. 593a

Insurance -- Personal injury protection -- Action against insurer which discontinued payment of benefits after independent medical examiner advised insurer that injuries were not related to automobile accident -- Trial court did not err in finding relevant the testimony of an orthopedic doctor who treated insured prior to date benefits were cut off and who testified regarding medical treatment, future treatment needs, and permanency of insured's condition -- Claim that testimony was cumulative not preserved for appeal where insurer did not object at trial to introduction of doctor's testimony -- Filing of motion for protective order to prevent deposition before trial not sufficient to preserve right to appellate review when the deposition is introduced at trial -- No abuse of discretion in excluding portion of deposition in which insurer's counsel asked physician questions regarding whether he was paid to attend deposition and how much he was paid -- Claim that trial court erred in preventing insurer from questioning insured as to whether she had filed third party lawsuit after doctor changed cause of injury in her medical records was not preserved for review where insurer did not make proffer -- Ruling was not a clear abuse of discretion -- Insurer cannot complain that trial court erred in refusing to advise jury on statutes governing no-fault law and IME cut-offs where insurer made no attempt to introduce evidence relating to IME cut-offs -- Attorney's fees -- Error to award 2.0 multiplier without making specific findings