Volume 7

7 Fla. L. Weekly Supp. 338a

Insurance -- Uninsured motorist -- New trial -- Improper impeachment of plaintiff's expert witness, in and of itself, does not warrant new trial on liability -- With regard to assertion that expert witness for defendant committed perjury, counsel for plaintiffs impeached witness in this regard and as such there was no prejudice to plaintiffs -- Argument -- Defense counsel's improper remarks about plaintiff being personal injury plaintiff's attorney, throughout trial, were improper appeals to jury's emotion, bias and prejudices, and cumulative effect of counsel's conduct pervaded trial and resulted in plaintiff being denied fair trial -- Even if evidence submitted by plaintiff in his case in chief may not have been particularly strong, and defendant may have prevailed had counsel's remarks been omitted, it cannot be said as mater of law that comments had no effect on jury's verdict -- Motion for new trial granted

7 Fla. L. Weekly Supp. 506b

Contracts -- Torts -- Claims for breach of contract, trespass and conversion properly dismissed with prejudice as to party which was clearly the agent of its disclosed principal -- Plaintiff not third-party beneficiary of insurance policy

7 Fla. L. Weekly Supp. 251a

Insurance -- Personal injury protection -- Action against insurer by plaintiff who was injured while riding as passenger on Yamaha Elite 125 scooter which was struck by automobile owned and operated by insured, a non-resident -- Error to find in favor of plaintiff -- In absence of proof that non-resident was physically present within state for more than 90 days during preceding 365 days, non-resident not required to have PIP coverage, and PIP claim would not be valid -- Yamaha Elite 125 scooter is self-propelled vehicle within meaning of PIP statute

7 Fla. L. Weekly Supp. 163a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 7 Fla. L. Weekly Supp. 251a

Insurance -- Personal injury protection -- Action against insurer by plaintiff who was injured while riding as passenger on Yamaha Elite 125 scooter which was struck by automobile owned and operated by insured, a non-resident -- Error to find in favor of plaintiff -- In absence of proof that non-resident was physically present within state for more than 90 days during preceding 365 days, non-resident not required to have PIP coverage, and PIP claim would not be valid -- Yamaha Elite 125 scooter is self-propelled vehicle within meaning of PIP statute

7 Fla. L. Weekly Supp. 686a

Insurance -- Personal injury protection -- Jurisdiction -- Plaintiff lacked standing to bring cause of action for payment of PIP benefits as assignee of insured, given lack of evidence supporting existence of assignment of benefits from insured to plaintiff at time lawsuit was filed -- As such, court lacks subject matter jurisdiction to entertain claim and must dismiss action -- No merit to argument that insurer waived issue of standing because it was not plead as affirmative defense -- Defense of lack of subject matter jurisdiction may be raised at any time -- Legal conclusion arises from stipulation of parties to limit issues to how much, if any, interest is owed by insurer and, as such, plaintiff may not rely on stipulation to bind or circumscribe court in its determination of standing -- No merit to argument that Final Judgment and Dismissal with Prejudice of the appeal put an end to issue of assignment and standing -- When a court lacks subject matter jurisdiction, all judgments and orders entered in action are void

7 Fla. L. Weekly Supp. 145a

Insurance -- Personal injury protection -- Insured's action against insurer arising from insurer's reduction of certain medical bills -- Court rejects insurer's contention that insured has no damages because policy contains an indemnification clause stating that insurer will defend and indemnify the insured in the event insured is sued by medical provider for a bill which insurer has determined to be unreasonable, unnecessary, or unrelated to automobile accident in question -- Florida law does not require that insured be sued by medical provider prior to filing suit against PIP insurer -- Notwithstanding existence of an indemnification clause, insured who is entitled to payment of bills and who could be liable for the balance of the bill properly states claim for damages under both section 627.736 and the insurance contract

7 Fla. L. Weekly Supp. 509c

Insurance -- Personal injury protection -- Medical malpractice -- Unnecessary diagnostic testing -- Presuit notice requirements of Chapter 766 apply to third-party complaint filed by PIP carrier against treating physician alleging liability under section 766.111

7 Fla. L. Weekly Supp. 436d

Insurance -- Personal injury protection -- Independent medical examination

7 Fla. L. Weekly Supp. 578b

Insurance -- Personal injury protection -- Medical provider/assignee's action against insurer -- Venue -- Forum non conveniens -- Motion to change venue can be predicated solely on allegations evident on face of complaint -- No abuse of discretion in granting motion to change venue to Hillsborough County where complaint alleged that provider submitted bill to insurer for MRI performed on insured, exhibits attached to complaint indicated that provider's office was in Hillsborough County and that insured lived in that county; and the only allegation which placed venue in county in which complaint was filed was that insurer maintains agents who transact business in that county -- Insurer did not waive right to raise issue of forum non conveniens by appearing in matter where insurer contemporaneously filed motion for change of venue based on forum non conveniens and an answer and affirmative defenses also raising issue of forum non conveniens -- Evidentiary hearing not required where party moving for change of venue relies solely on record -- Provider was given notice and opportunity to be heard before trial court ruled on motion

7 Fla. L. Weekly Supp. 582a

Insurance -- Personal injury protection -- Medical provider/assignee's action against insurer -- Venue -- Forum non conveniens -- No abuse of discretion in transferring venue from Orange County based on forum non conveniens where, in answers to interrogatories and response to insurer's request for admissions, plaintiff stated that accident occurred, insured resided, and medical treatment was rendered in Polk County, and that working address for employee, officer, director, or owner with most knowledge of bills at issue was located in Hillsborough County

7 Fla. L. Weekly Supp. 745b

Insurance -- Personal injury protection -- HCFA form submitted by medical provider which contained insured's name, address and telephone number; claim number assigned by insurer; fact that claim was related to automobile accident; nature of service provided by medical provider, and bill for provider's service was sufficient to serve as written notice of a covered loss and amount of loss -- Upon receipt of HCFA form, burden was on insurer to authenticate claim within thirty days; if insurer could not prove it was not responsible for payment, it should have paid claim within thirty days of date of receipt of HCFA form -- Because insurer failed to obtain any proof it was not responsible, plaintiff is now entitled to statutory interest and attorney's fees and costs -- Argument that written notice of covered loss did not occur until receipt of no-fault application is not supported by case law or reasonable interpretation of statute

7 Fla. L. Weekly Supp. 626a

Insurance -- Personal injury protection -- Where decedent was covered by policy of automobile insurance which included $10,000 in no-fault coverage, with $2,000 deductible, insurer appropriately paid to estate $5,000 death benefit, and then $3,000 balance of available coverage as against hospital/medical expenses -- Argument that statutory $5,000 death benefit is separate and distinct from mandated $10,000 in coverage rejected -- Neither a creative application of deductible, nor any rule of law arguably requiring a liberal interpretation of No-Fault Act, can mandate a result of more than $3,000 in benefits being payable once death benefit is paid

7 Fla. L. Weekly Supp. 661a

Insurance -- Personal injury protection -- Insurer is not required to obtain written report of physician licensed under same chapter as insured's medical provider before paying amount less than that billed by medical provider on ground that charges exceeded usual and customary charges -- Section 627.736(5), rather than sections 627.736(1)(a) or 627.736(7), applies where insured's medical condition is not at issue -- Court recedes from its prior ruling in Progressive Speciality Insurance Company v. Biomedical Trauma Association, Inc., to extent it conflicts with ruling in instant case

7 Fla. L. Weekly Supp. 620b

Insurance -- Personal injury protection -- Insurer, who seeks to reduce amount paid for medical treatment based upon unreasonableness of charge, need not obtain a report from physician licensed under same chapter as treating physician stating that treatment was not reasonable, related or necessary, before paying claim at amount less than amount billed -- Where medical providers were paid substantial portion of claims in timely fashion and only a portion of bill was denied because it was determined that charges exceeded reasonable and customary charges for particular geographic region, report is not required

7 Fla. L. Weekly Supp. 591a

Insurance -- Personal injury protection -- Before insurer reduces medical charges and/or defends lawsuit for benefits, insurer must obtain report from physician stating that charges are excessive -- Requirement that report be obtained applies to any nonpayment of medical benefit due to finding that services were not reasonable, related, or necessary, including a reduction of benefits based upon finding that medical charges were in excess of usual and customary rates

7 Fla. L. Weekly Supp. 546b

Insurance -- Personal injury protection -- In claim for PIP benefits in which insurance carrier has withdrawn, reduced or denied further benefits, it is condition precedent under section 627.736(7)(a) that insurer obtain report by a physician licensed under the same chapter as the treating physician stating that the treatment was not reasonable, related, or necessary in order for an insurance carrier to defend a suit for reduction, withdrawal or denial of further payments on grounds of reasonableness, necessity, or relationship -- Court's ruling applies to ``usual and customary'' reductions -- Explanation of Benefits will not substitute for medical report required by statute

7 Fla. L. Weekly Supp. 807a

Insurance -- Personal injury protection -- Insurer, who refused to pay total amounts contained in bills submitted by healthcare providers and only paid what it deemed to be reasonable charges for medically necessary services, is entitled to summary judgment on claim seeking payment of PIP benefits as there is complete absence of any material issues of fact -- Insurer does not breach its insurance contract by refusing to pay for all, as opposed to only reasonable health care services provided to insured -- Insured is removed from jeopardy and cannot suffer damages as matter of law where enforceable contractual obligation upon insurer is created by correspondences from insurer to insured agreeing to defend and indemnify insured in event any cause of action is brought by healthcare provider against insured for outstanding bills

7 Fla. L. Weekly Supp. 687a

Insurance -- Personal injury protection -- Insurer does not breach insurance contract with the insured by refusing to pay for all, as opposed to only the reasonable, health care services provided to insured -- Correspondences from insurer to insured, agreeing to defend and indemnify insured if any cause of action is brought by healthcare provider against insured for outstanding bills, creates enforceable contractual obligation -- As such, insured is removed from jeopardy and cannot suffer damages as matter of law

7 Fla. L. Weekly Supp. 546a

Insurance -- Personal injury protection -- Motion for summary judgment granted as plaintiff has no cause of action for breach of contract when insurer contends that it has paid all reasonable expenses submitted and has promised to defend and indemnify plaintiff should plaintiff be pursued by any health care provider for balance resulting from insurer's determination that amount of submitted charge was unreasonable -- Attorney's fees -- Motion for partial summary judgment and to determine entitlement to attorney's fees denied except as to interest issues -- A report, as described in Section 627.736(7), Florida Statutes, is not required before insurer can defend based upon contention that amount of charges at issue is unreasonable -- Issues surrounding reasonableness of amount of charges are governed by Section 627.736(5), Florida Statutes, which contains no similar ``report requirement''

7 Fla. L. Weekly Supp. 803a

Insurance -- Personal injury protection -- In accordance with denial of insurer's motion for summary judgment based on non-compliance with Section 627.736(5)(b), grant of plaintiffs' summary judgment motion, and court's holding that Section 627.736(5)(b) is unconstitutional as violative of plaintiffs' rights of due process, equal protection, and access to courts, insurer shall pay to insured and healthcare provider amount of billed charges for medical treatment rendered for injuries insured sustained in motor vehicle accident, interest, and reasonable attorney's fees

Reversed and remanded at 27 Fla. L. Weekly D321a
District Court opinion approved at 30 Fla. L. Weekly S197b

7 Fla. L. Weekly Supp. 301a

Insurance -- Personal injury protection -- Error to grant summary judgment on action to collect medical bills after medical benefits under policy were exhausted, because claim for statutory damages, including attorney's fees, was still available to insured -- Although insured cannot recover any more benefits, she may be able to prove that at time suit was filed insurer was in violation of statute and therefore would be entitled to statutory damages, including attorney's fees

7 Fla. L. Weekly Supp. 688a

Insurance -- Personal injury protection -- Insurer's motion for summary judgment on claim for payment of MRIs performed on insured by agent of corporate person denied -- Assertion that first sentence of Section 627.736(5) establishes standing requirement for presentation of valid PIP claims misapplies effect of words in that sentence -- Nothing in Florida law requires licensure of corporate person to provide medical services through use of agent, nor is there any evidence in record that indicates that services performed by corporate person or its agent were unlawful or unlawfully rendered

7 Fla. L. Weekly Supp. 694a

Insurance -- Personal injury protection -- Role of insured's treating physician in dispute between insured and insurer relating to bills submitted by treating physician was that of fact witness, not expert witness, and accordingly, treating physician is not entitled to payment of expert witness fee -- Motion to compel deposition of treating physician without expert witness fee granted

7 Fla. L. Weekly Supp. 541a

Insurance -- Personal injury protection -- Insurer, who denied claim for medical expense pursuant to provision of insurance policy which permits insurer to decide unilaterally what treatment is reasonable and medically necessary and to deny payment, not entitled summary judgment on claim for payment of PIP benefits -- Policy provision directly contravenes purpose of PIP statute to provide swift and virtually automatic payment of benefits and to discourage companies from contesting valid claims -- Policy provision leaves insureds powerless to challenge insurer's decision as to what medical care is medically necessary, exposing insureds to lawsuits, judgments and subsequent harmful credit consequences -- Enforcing policy provision would create adversarial relationship between medical care providers and patients and inevitably will have chilling effect on willingness of medical providers to treat persons injured in motor vehicle accidents -- Policy provision violates no-fault act as insurance companies cannot impose requirements that are more onerous than those specified in PIP statute -- Argument that plaintiff will sustain no damages as result of wrongful non-payment fails because provision to indemnify insured by providing legal representation in lawsuits filed against them by medical care providers ignores harmful consequences to an insured's credit history and financial future caused by mere filing of credit driven lawsuit -- Notwithstanding insurer's payment of any judgment obtained by medical care provider, insured's credit history will reflect untimely payment and subsequent judgment -- Court rejects argument that insurer's promise to defend insured should his medical care provider sue him for non-payment is sufficient as matter of law to establish insured cannot be damaged and therefore has no cause of action

7 Fla. L. Weekly Supp. 613a

Insurance -- Personal injury protection -- Insurer refusing to pay medical bill based on determination that charges were not reasonable, necessary and related to subject accident -- Only way an insurer may legally make unilateral decision as to whether medical expense is reasonable, necessary or related is for it to provide indemnification for medical expenses up to policy limits, and /or provide unqualified defense to insured if sued, even if such defense exceeds policy limits -- Defense promised by defendant is anything but unqualified where contract provision purports to protect insured from any claim or law suit filed by medical provider, but explanation of that protection indicates that such protection is subject to limits of insured's coverage -- Further, there is no insurance regulation providing protection for insured and no evidence that insurer secured releases from medical providers

7 Fla. L. Weekly Supp. 542b

Insurance -- Insurer's motion for summary judgment granted as to health care provider who submitted $1,500 bill for services which were performed in his office by third party without his supervision, direction or control and for which third party billed provider $100

7 Fla. L. Weekly Supp. 466a

Insurance -- Personal injury protection -- PIP insurer is not prevented from defending claim for benefits on merits because it obtained written report from a reviewing physician 40 days after receiving notice of medical provider's claim, rather than 30 days after -- 30-day provision in Section 627.736(4) determines when interest accrues, not when an insurer loses any right to deny payment for unnecessary and unrelated testing -- Medical provider's motions for summary judgment denied -- PIP insurer entitled to attorney's fees and costs

7 Fla. L. Weekly Supp. 414a

Insurance -- Personal injury protection -- Insurer is precluded from defending claim for PIP benefits on basis that medical bill in question was not reasonable, related or medically necessary because insurer failed to obtain, within 30 days after receipt of application for benefits, medical report providing reasonable proof that insurer is not responsible for payment -- There is no issue to be tried on reasonableness and necessity of medical bill at issue -- Insured entitled to partial summary judgment

7 Fla. L. Weekly Supp. 389a

Insurance -- Personal injury protection -- No error in awarding insured's medical provider the balance of a bill after finding that insurer did not obtain physician's report, as required by statute, prior to reducing payment to medical provider -- When basis for nonpayment to medical provider is that treatment was not reasonable, related or necessary, physician's report is required prior to insurer reducing, withdrawing, or denying benefits -- There is no practical difference between reducing rather than withdrawing or denying benefits

7 Fla. L. Weekly Supp. 324b

Insurance -- Personal injury protection -- PIP insurer refusing to pay insured's medical bills on ground that medical treatment was not related, reasonable, or necessary must obtain reasonable proof that it is not responsible within thirty days of receiving written notice of the fact of a covered loss and the amount of the loss -- Issue of reasonableness of insured's medical bills should not have been presented to jury where insurer obtained report that bills were not reasonable or necessary more than thirty days after bills were submitted to insured's adjuster

7 Fla. L. Weekly Supp. 292a

Insurance -- Personal injury protection -- When insurer fails to pay expenses of insured's treating physicians within 30 days of their submission and without reasonable proof establishing that insurer is not responsible for payment, insurer is not precluded from disputing propriety of charges -- Insured's motion for partial summary judgment asserting that, by failing to timely pay expenses without adequate justification, insurer was precluded from contesting charges denied

7 Fla. L. Weekly Supp. 760a

Insurance -- Personal injury protection -- Insurer complied with statutory and contractual obligations when it timely paid medical provider eighty percent of charges for all reasonable and necessary medical services and agreed to defend and indemnify insured if provider pursued insured for any unpaid balance -- Record showed that insured did not suffer damages from insurer's reduction of payments to medical provider, and there was no evidence that insurer had breached its promise to defend and indemnify insured in the event provider attempted to collect unpaid balance -- Insured not denied right to access to court in connection with breach of contract claims where insured did not suffer any damages, an essential element of a breach of contract claim -- Insured cannot maintain cause of action for breach of contract for potential damages -- Insurer's company policy of not paying for unreasonable or unnecessary expenses and its provision to defend and indemnify insured if insured is sued for unpaid charges is not contrary to statutory or case law

Certiorari denied for failure to establish threshold requirements for certiorari relief at 27 Fla. L. Weekly D88b
District Court opinion quashed at 28 Fla. L. Weekly S287a

7 Fla. L. Weekly Supp. 552a

Insurance -- Personal injury protection -- Insurer failed to present any evidence to refute reasonableness of medical bills of chiropractor and of neurologist and orthopedic surgeon to whom insured was referred by chiropractor -- Plaintiff entitled to directed verdict as to each bill -- Argument -- Expressions of personal opinion as to credibility of witness or personal knowledge of facts is fundamentally improper -- Defense counsel's improper character attacks, expression of personal views and opinions which were not supported by evidence, and improper appeals to jury's emotion, bias and prejudices had cumulative effect of denying plaintiff a fair trial -- New trial required as to medical expenses not encompassed by plaintiff's motion for directed verdict

7 Fla. L. Weekly Supp. 424b

Insurance -- Personal injury protection -- Release

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 -- Court disagrees with insured's contention that section 627.736(7)(a), providing that insurer, before withdrawing payment of benefits, must obtain a report from a physician licensed under the same chapter as the treating physician, whose report states that treatment is not reasonable, necessary or related, should be interpreted to include reduction of bills by an insurance company -- Question certified: Must an insurance company, who seeks to reduce bills for medical treatment, pursuant to Section 627.736(1)(a), first obtain a report from a physician licensed under the same licensing chapter as the treating physician stating that the bills for treatment are not reasonable, pursuant to Section 627.736(7)(a), Florida Statues?

7 Fla. L. Weekly Supp. 713a

Insurance -- Personal injury protection -- Error to enter summary judgment in favor of insurer on ground that insured unreasonably refused to attend two independent medical examinations -- There was genuine issue of material fact regarding whether failure to attend IMEs amounted to unreasonable refusal given evidence that insurer sent notice of scheduled IMEs to insured's counsel, but that insured had recently moved and could not be contacted by counsel

7 Fla. L. Weekly Supp. 654b

Insurance -- Personal injury protection -- Error to grant summary judgment in favor of insurer based upon insured's failure to attend two scheduled independent medical examinations where genuine issues of material fact remain as to whether insured unreasonably refused to attend IMEs of which she claimed she had no notice

7 Fla. L. Weekly Supp. 596a

Insurance -- Personal injury protection -- Medical pay benefits -- Error to enter summary judgment in favor of insurer, which terminated coverage based on insured's refusal during independent medical examination to answer questions posed physician, where there was factual issue concerning whether insured unreasonably refused to participate in IME

7 Fla. L. Weekly Supp. 438b

Insurance -- Personal injury protection -- Error to grant summary judgment in favor of insurer based on insured's unreasonable refusal to submit to independent medical examination where record demonstrates existence of material facts in dispute regarding circumstances surrounding insured's failure to attend IME

7 Fla. L. Weekly Supp. 151a

Insurance -- Personal injury protection -- Appeal from summary judgment for insurer holding that insured's refusal to submit to independent medical examination unless insurer provided written assurances that insured's right of privacy would be maintained by insurer was unreasonable based upon finding that insured does not have right of privacy regarding IME, pursuant to Section 455.667, Florida Statutes, and that, pursuant to Klipper v. Government Employees Ins. Co., insured did not have right to set additional conditions for IME -- Reversible error to rely on Klipper to determine that, because insured did not have right to set additional conditions on IME, insured's refusal to submit to IME was unreasonable -- Although county court relied upon Section 455.667, Florida Statutes (1997), instead of Section 455.241, Florida Statutes, (1996), which was in effect at time PIP contract was executed, error harmless because relevant provision regarding confidentiality of patient records when examination is procured by third party are identical -- Where insured gave insurer written authorization to obtain her medical records when she submitted her PIP application, but did not give authorization to obtain or discuss her medical condition or records to independent vendor that arranged and scheduled IME on behalf of insurer, summary judgment was based upon improper application of law because neither statute nor terms of insured's policy gave insurer right to allow independent vendor to obtain insured's medical records -- Because summary judgment was based upon improper application of law, summary judgment for insurer must be reversed

7 Fla. L. Weekly Supp. 49a

Insurance -- Personal injury protection -- Insurer remains liable for medical bills from heath care provider that were received prior to first scheduled independent medical examination where insurer failed to either pay medical bills at full 80% pursuant to terms of policy and section 627.736, Florida Statutes, or establish that it had reasonable proof that it was not responsible for payment of these medical bills -- Insured entitled to partial summary judgment on these bills -- Court reserves jurisdiction to determine whether insurer is liable for all medical bills received prior to second IME based upon jury's determination of whether insured reasonably refused to attend scheduled IME -- Issue of whether insured unreasonably refused to attend scheduled IMEs is question of fact for jury -- If jury finds that insured's failure to attend scheduled IMEs was not unreasonable, court reserves jurisdiction to determine whether insurer is liable of any and all medical bills that it received on behalf of insured, where defendant failed to obtain report from physician in same licensing chapter as treating physician in order to establish that it was not responsible for payment of any medical or diagnostic bills -- Attorney's fees -- Plaintiff entitled to prevailing party attorney's fees and costs and court reserves jurisdiction to determine amount of reasonable fees and costs

7 Fla. L. Weekly Supp. 181b

Insurance -- Personal injury protection -- Collateral estoppel -- Trial court erred in finding that plaintiffs were collaterally estopped from claiming PIP benefits by jury verdict in previous suit in which plaintiffs sought uninsured motorist benefits and in which jury found that accident was not legal cause of loss, injury, or damage sustained by plaintiffs -- Issues and claims in UM suit were too disparate from issues and claims in PIP suit for collateral estoppel to apply -- Jury in UM suit was concerned with future medical expenses, permanent injury, and any accompanying damages for pain and suffering, disability, disfigurement, and loss of consortium and was not asked to render any opinion as to whether past medical expenses were incurred as result of the accident

7 Fla. L. Weekly Supp. 775a

Insurance -- Personal injury protection

7 Fla. L. Weekly Supp. 434a

Insurance -- Leased vehicles -- Rental car company seeking indemnity from drivers listed on rental agreement and driver to whom vehicle was loaned and who was cited for accident in which rental car and another automobile struck by rental car were damaged

7 Fla. L. Weekly Supp. 543a

Insurance -- Personal injury protection -- Delay in payment of benefits -- Interest -- Based on plain meaning and intent of Section 627.736(4), insurer is required to pay interest on all payments made more than thirty days after bills were submitted -- Waiver of interest -- Any waiver of interest insurer obtained from medical provider is nullity since medical provider has no legal standing to waive benefit -- Only person with authority to waive payment of interest would be insured, since statute clearly states that benefits paid pursuant to statute are for benefit of insured

7 Fla. L. Weekly Supp. 289a

Insurance -- Personal injury Protection -- Interest -- Insured not entitled to interest on payments for chiropractic services rendered after insurer discontinued chiropractic benefits, because insurer obtained timely report from appropriate physician before terminating chiropractic benefits, and therefore had reasonable proof it was not responsible for payment -- Because insurer had reasonable proof as required by statute, no payments were overdue and insured could not be entitled to interest on overdue payments pursuant to no-fault statute -- Even if case continued to trial and plaintiff proved services rendered by treating chiropractor were necessary, insurer still would have complied with requirements of no-fault statute before terminating chiropractic benefits -- No-fault statute only provides for interest if insurer fails to comply with statute by having reasonable proof that it is not responsible for payment within 30 days of being furnished with notice of loss and amount of loss

7 Fla. L. Weekly Supp. 505b

Insurance -- Personal injury protection -- Denial of benefits based upon physician's report that treatment was not reasonable, related, or necessary -- Report need not be based upon actual physical examination of patient -- Statute requires interest on late payments to accrue from date bill is received by insurer

7 Fla. L. Weekly Supp. 214a

Insurance -- Personal injury protection -- Interest -- Where insurer paid certain bills for medical services rendered to insured beyond thirty-day period provided in section 627.736(4)(b), interest on overdue payments by insurer for PIP benefits commences on first day after submission of bills -- Question certified: When an insurer pays PIP benefits for medical services more than thirty (30) days after submission, does interest commence on the first day after submission or the thirty-first day after submission?

7 Fla. L. Weekly Supp. 279a

Insurance -- Health -- Coverage -- Preexisting conditions -- Motion for summary judgment asserting insured had preexisting condition which precludes coverage under policy -- Incontestability clause does not bar insurer from denying liability on ground that policy contains preexisting condition limitation which precludes coverage -- Argument that denial of coverage is barred by incontestability clause because of insurer's failure to initiate litigation to deny coverage based on preexisting condition is misplaced -- Insurer is allowed to deny coverage for losses due to preexisting condition where evidence shows that loss occurred prior to expiration of two year incontestability period, and that preexisting condition was undisclosed -- Waiver -- There is no support for argument that because insurer failed to address issue of preexisting conditions in prior summary judgment motion, it waived right to file present motion -- When the lower court's grant of summary judgment to an insurer is reversed based on holding that applicant's responses to questions on applications were not misstatements warranting rescission, on remand insurer is not prevented from litigating its other bases for denying coverage -- Insurer entitled to summary judgment as there is no evidence of existence of any material fact

7 Fla. L. Weekly Supp. 357b

Insurance -- Evidence -- Policy language regarding insurer's right to refuse to pay medical expenses it deems to be unreasonable or unnecessary -- Plaintiff's motion in limine granted

7 Fla. L. Weekly Supp. 74a

Insurance -- Personal injury protection -- Endorsement in PIP policy which provides that insurer is entitled to refuse to pay medical expenses it deems to be unreasonable or unnecessary is without force or effect to extent that policy purports to authorize insurer to refuse to pay medical expenses that would be properly payable under Section 627.736 -- Indemnification -- Endorsement provision which provides that insurer will pay resulting defense costs and any resulting judgment against insured if insured is sued by medical services provider because insurer refused to pay medical expenses deemed unreasonable or unnecessary does not entitle insurer to summary judgment -- To extent that endorsement purports to substitute indemnification for insurer's obligation to pay insured's related, reasonable and necessary medical expenses under Section 627.736, endorsement runs afoul of section 627.418(1) and does not vary insurer's statutory duties

7 Fla. L. Weekly Supp. 456a

Insurance -- Liability -- Record shows there is no duty to defend and no coverage to third party under insurance policy at issue -- Third party is not an insured under the policy -- Allegations claiming liability for negligence arising out of assault or battery fall within assault or battery exclusion of general liability policy at issue

7 Fla. L. Weekly Supp. 34b

Declaratory judgments -- Insurance -- Commercial general liability insurer has no duty to defend underlying liability case -- Under policy's automobile exclusion, there is no coverage for underlying liability case

7 Fla. L. Weekly Supp. 734a

Civil procedure -- Insurance -- Uninsured motorist -- Florida Rules of Civil Procedure and Florida statutes govern discovery in an uninsured motorist action after suit has been commenced for uninsured motorist benefits

7 Fla. L. Weekly Supp. 583a

Insurance -- Personal injury protection -- Discovery -- Financial information -- Opposing party's experts -- Plaintiff is entitled to information from insurer regarding relationship between insurer and its named experts -- If insurer is unable to provide information, plaintiff must comply with requirements set forth in Elkins v. Syken before trial court can order experts to produce business records and 1099's related to their relationship with insurer -- Trial court departed from essential requirements of law when it required experts to disclose business records and 1099's without first giving experts an opportunity to respond to interrogatories or be deposed as set forth in Elkins and rule 1.280

7 Fla. L. Weekly Supp. 806b

NOT FINAL VERSION OF OPINION
Subsequent Changes at 8 Fla. L. Weekly Supp. 42d

Insurance -- Discovery -- Request for production -- Interrogatories

7 Fla. L. Weekly Supp. 322b

Insurance -- Personal injury protection -- Petition for writ of certiorari to prevent deposition of insurer's claims adjuster, contending that medical provider's lawsuit to collect PIP benefits became moot once insurer confessed judgment by tendering full liquidated sum sought by medical provider -- Medical provider permitted to depose insurer's claims adjuster for sole purpose of determining date on which insurer received subject claim so that proper calculation of interest can be made or agreed to by parties or, failing agreement, so that it can be determined by trial court -- Upon such determination, further examination of claim's adjuster will be unnecessary as final payment will render claims for declaratory relief moot

7 Fla. L. Weekly Supp. 805a

Insurance -- Personal injury protection -- Deductibles -- Plaintiff who seeks PIP benefits under policy of insurance issued to his wife, named insured, is subject to deductible applicable to named insured and dependent relatives by definition of named insured in policy of insurance -- Section 627.739, which provides that named insured may elect a deductible to apply to named insured alone or to named insured and dependent relatives residing in same household, does not contravene named insured policy provision or operate to exclude plaintiff as named insured because plaintiff is not named by name in policy declaration -- It would seem incongruous to treat spouse different than ``dependent relatives residing in same household''

7 Fla. L. Weekly Supp. 167a

Insurance -- Automobile -- Subrogation -- Damages -- Towing, storage, and rental expenses are recoverable where a pleasure vehicle has been totally destroyed by a tortfeasor -- Trial court erred in denying recovery of those expenses on ground that damages were limited to fair market value of vehicle at time of accident -- Remand for determination as to the reasonableness of the amount of damages claimed by insurer

7 Fla. L. Weekly Supp. 392a

Insurance -- Automobile -- Medpay -- Where medpay section of policy defined term ``vehicle'' as a vehicle ``covered under liability section'' of policy, liability section clearly limited coverage to a vehicle listed on declarations page, trial court erred in ruling that policy provided medpay coverage for injuries to passenger on motorcycle which was not listed on policy's declarations page

7 Fla. L. Weekly Supp. 615a

Insurance -- Automobile -- Limitation of actions -- Seatbelt endorsement in automobile insurance policy constitutes medical payments benefits and, consequently, five-year personal injury protection statute of limitations applies

7 Fla. L. Weekly Supp. 11a

Insurance -- Automobile -- Cancellation of policy -- Agency -- Apparent authority -- Where agent, in compliance with insurer's application process, completed an inspection report and took photographs of vehicle, coverage was bound by insurer, but policy was subsequently canceled because photographs of vehicle that were submitted with application were not clear; and insured, upon receipt of cancellation notice, took vehicle to agency where a second set of photographs were taken and where agent allegedly told insured to ignore the cancellation notice and that coverage would remain in effect, whether agent's conduct imposed liability for subsequent accident upon insurer depends upon whether insurance agency was an agent of insurer and whether employees of the agency acted with apparent authority to bind insurer -- Genuine issues of material fact remain where agent testified that the agency which employed her had authority to bind insurer once an application was completed, but insurer's corporate officer stated that agency was required to obtain authorization either by fax or telephone before insurer could be bound, broker agreement stated that broker must obtain written authorization from underwriter in order to accept or bind coverage for insurer, and application contained provision in bold print directly above insured's signature stating that agent had no authority to bind company without first obtaining confirmation

7 Fla. L. Weekly Supp. 703a

Insurance -- Cancellation of policy -- Evidence -- Hearsay -- Business records -- Error to permit insurer to introduce into evidence a notice of cancellation with insured's name and address on it and a computer-generated log purporting to show that notice had been sent where insurer's witness did not prepare the documents, was not records custodian, and did not know usual procedure for preparing documents -- No merit to insured's claim that there is higher standard of proof that insurer has to meet to establish that cancellation notice has been sent -- Statute providing that postal proof of mailing or certified or registered mailing of notice of cancellation shall be sufficient proof of notice does not mandate certified or registered mail as exclusive way of mailing notice of cancellation

7 Fla. L. Weekly Supp. 728a

Insurance -- Automobile -- Private passenger automobile insurer who wishes to charge an additional premium according to section 627.7282 must set policy's cancellation within 45 days of issuance of the notice of additional premium due -- Upon cancellation of private passenger automobile policy, insurer must make gross instead of net refund of unearned premiums, which means that refund must include agent's unearned commission -- Cancellation of policy results in creation of debt of unearned premium, and interest is owed by company on that debt if not immediately paid

7 Fla. L. Weekly Supp. 389b

Attorney's fees -- Insurance -- Personal injury protection -- Time spent arguing for application of multiplier relates to amount of attorney's fees, not to entitlement -- Fees awarded on multiplier issue reversed

7 Fla. L. Weekly Supp. 242a

Insurance -- Personal injury protection -- Medical bills -- Denial of coverage on ground that insured failed to attend independent medical examination, which insured contended had been canceled -- Attorney's fees -- Insured entitled to PIP benefits for medical bills he submitted to insurer before the first scheduled independent medical examination -- Any error arising from trial court's failure to grant insurer's request for jury trial was harmless -- Because determination of whether a condition precedent has been met is a legal issue, and trial court found that under totality of circumstances the overwhelming evidence indicated that insured's failure to appear at IMEs was reasonable, judgment was correctly entered in favor of insured -- Insured, as prevailing party, entitled to attorney's fees and costs

7 Fla. L. Weekly Supp. 806a

Insurance -- Personal injury protection -- Attorney's fees -- Insurer is entitled to recover attorney's fees and costs from medical provider who filed action for failure to pay PIP benefits and/or failure to make payments within thirty days where medical provider failed to undertake reasonable pre-suit investigation which would have revealed that all benefits due were paid and policy limits exhausted some nine months prior to filing of action -- While parties are not required to have absolute verification of merits of their claims or to eliminate every possible defense before filing suit, they cannot ignore information for which notice is readily available to them upon reasonable investigation

7 Fla. L. Weekly Supp. 240a

Insurance -- Personal injury protection -- Attorney's fees -- Insurer has thirty days after being furnished written notice of fact of a covered loss and amount of the loss to make payment -- Suit filed by third party against PIP insurer was premature where filed prior to expiration of thirty-day period and did not state cause of action because payment of benefits was not yet overdue -- Error to award attorney's fees and expert's fees to plaintiff -- Record does not support conclusion that filing of suit was catalyst for payments

7 Fla. L. Weekly Supp. 299b

Attorney's fees -- Insurance -- Personal injury protection -- Delay in payment of benefits -- Insurer did not wrongfully withhold benefits where it was provided incorrect and incomplete information which made it appear that there was no coverage for the claims presented -- Record shows that insurer made numerous attempts to verify coverage for claimants involved in the accident at issue -- No statutory basis for attorney's fees where insurer did not wrongfully withhold benefits

7 Fla. L. Weekly Supp. 352a

Insurance -- Personal injury protection -- Attorney's fees -- Offer of settlement -- Motion to strike insurer's proposal for settlement denied -- Court cannot find any legally compelling reason why offer of settlement is not valid in PIP cases

7 Fla. L. Weekly Supp. 509a

Attorney's fees -- Insurance -- Personal injury protection -- Offer of judgment -- Section 768.79 creates mandatory right to attorney's fees once statutory requirements have been met, unless trial court finds offer was not made in good faith -- Although trial court failed to make finding of bad faith, it appears it denied attorney's fees based on concern that insurer's offer of $250 was insufficient -- Record supports determination that insurer, based on its investigation, felt it had no liability and simply made $250 offer to cover filing costs of lawsuit and to encourage settlement, which constitutes sufficient good faith basis for offer -- Remand for determination of reasonable attorney's fees and costs

7 Fla. L. Weekly Supp. 251b

Attorney's fees -- Offer of judgment -- Insurance -- Personal injury protection -- Acceptance of offer of judgment silent as to fees does not preclude accepting party from pursuing statutory or other entitlement to fees -- Trial court abused its discretion in declining to award attorney's fees to insured

7 Fla. L. Weekly Supp. 804b

Insurance -- Personal injury protection -- Settlement -- Offer -- Motion to strike insurer's proposal of settlement denied as offer of judgment statute applies to PIP cases the same as in all civil actions in which one party seeks damages from another party -- Because offer of judgment statute applies to PIP actions, its companion rule of civil procedure, Rule 1.442, must necessarily apply, even though Small Claims rule 7.020(a), which identifies which Rules of Civil Procedure will necessarily apply in all small claims cases does not include Rule 1.442 -- Acceptance of proposal -- Enlargement of time -- Plaintiff's request for enlargement of time to accept insurer's proposal of settlement granted -- Because parties have agreed to extend time period until court rules on plaintiff's motions, even though thirty-day period has expired, plaintiff need not show excusable neglect for court to enlarge

7 Fla. L. Weekly Supp. 270a

Attorney's fees -- Offer of judgment -- Insurance -- Personal injury protection -- Motion to strike insurer's proposal for settlement filed pursuant to rule 1.442 and section 768.79 granted -- Attorney's fees provisions of section 768.79 do not apply to actions to enforce PIP claims, which are governed by specific provisions of section 627.428

7 Fla. L. Weekly Supp. 215a

Insurance -- Personal injury protection -- Attorney's fees -- Motion to strike offer of judgment served pursuant to section 768.79 denied -- Action to recover PIP benefits, which clearly states that it is action for money damages, is included within scope of section 768.79, which covers all civil actions for damages -- Section 627.736.(8), which incorporates attorney fee provision of section 627.428, does not conflict with section 768.79

7 Fla. L. Weekly Supp. 212a

Insurance -- Personal injury protection -- Attorney's fees -- Offer of judgment -- Offer of judgment statute, which provides that either plaintiff or defendant in civil lawsuit for damages can recover its attorney's fees and costs, conflicts with PIP statute, which provides that only insureds and not insurers can recover their attorney's fees and costs, when both statutes are attempted to be applied to PIP lawsuit -- Conflict must be resolved in favor of PIP statute -- If insurer files offer of judgment in PIP case, insured my procedurally move to strike offer without having to wait for unfavorable judgment or for insurer to attempt to seek attorney's fees and costs pursuant to its offer of judgment -- To allow insurer to file an offer of judgment in PIP case and to delay ruling when insured moves to strike offer of judgment would have chilling effect upon insured's pursuit of statutory right to PIP benefits

7 Fla. L. Weekly Supp. 91d

Attorney's fees -- Justiciable issues -- Insurance -- Personal injury protection -- Dispute between medical provider and insurer arising from insurer's withholding of percentage of amounts due pursuant to federal law because of provider's failure to supply completed W-9 form -- Applicability of IRS regulations and justification for insurer's noncompliance with express provisions of state statute requiring it to pay provider's invoice, even though ultimately resolved by county court in favor of insurer, were justiciable issues of law precluding a finding that action was frivolous -- Alternatively, provider correctly argued to county court that insurer had failed to plead entitlement to fees

7 Fla. L. Weekly Supp. 297a

Insurance -- Personal injury protection -- Attorney's fees -- Interest -- Where defendant insurer agreed in writing to pay plaintiff's attorney's fees and delivered payment more than 20 days after making such agreement, plaintiff's counsel entitled to statutory 12% interest on settlement proceeds from date defendant agreed in writing to pay attorney's fees to date of delivery of attorney fees check -- Attorney's fees awarded for preparation of motion to tax additional attorney fees based on 1.5 hours expended and $200 per hour -- Requested hourly rate falls within range of fees charged within community for similar difficult and complex work as relates to specific issues in case

7 Fla. L. Weekly Supp. 710a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 7 Fla. L. Weekly Supp. 777a

Attorney's fees -- Insured entitled to recover attorney's fees incurred in successfully defending certiorari petition filed by insurance carrier -- Appellate court unable to review underlying factual issues that were argued in support of or in opposition to insured's motion for protective order against taking of attorney's deposition given lack of transcript of proceedings below or proper substitute

7 Fla. L. Weekly Supp. 98b

Insurance -- Attorney's fees -- Section 627.428, which provides for attorney's fees where insured prevails in action against insurer, does not apply to instant case in which insured's only cause of action, if any, was on behalf of medical provider to whom benefits had been assigned

7 Fla. L. Weekly Supp. 150a

Attorney's fees -- Insurance -- Fees awarded to insured's assignee -- Contingency risk multiplier not appropriate in instant case

7 Fla. L. Weekly Supp. 627b

Insurance -- Personal injury protection -- Assignment -- Priority of payments -- Insurer may not randomly select order in which it will pay or apply medical expenses to a deductible -- Insurer improperly applied health care provider's charges to deductible rather than hospital charges which were received prior to health care charges, based upon belief that it was in best of interest of insured to pay hospital bill which might potentially impose lien on insured's property -- Once insured assigned his right to benefits to medical providers, his interests were no longer insurer's concern and insurer became merely a holder of funds which were subject to competing claims -- Where there were competing claims among persons claiming assignment of benefits, insurer should have paid benefits and applied deductible based upon order in which it received medical bills -- Under facts of case, receipt of actual copy of signed assignment was not required before insurer applied deductible -- Insurer may not raise payment of its policy limits as defense to erroneous method of applying the deductible -- Decision establishing rights of assignee regarding priority of payments made by insurer does not impose judgment exceeding insured's policy limits

7 Fla. L. Weekly Supp. 87a

Insurance -- Personal injury protection -- Assignment of benefits to health care provider -- Evidence -- Insurer's senior claims representative was not competent to authenticate health insurance claim forms signed by insured and forwarded to insurer by insured's medical providers -- Forms were not admissible under business records exception to hearsay rule because forms were completed by medical providers, not by insurer -- Insurer's claims representative was not custodian of the forms or otherwise qualified to testify as to the method of preparation and reliability of the forms -- Error to grant summary judgment in favor of insurer on ground that insured was deprived of standing by de facto assignment where that determination was based in part on inadmissible evidence

7 Fla. L. Weekly Supp. 343a

Insurance -- Personal injury protection -- Assignment -- Standing -- Plaintiff, by having assigned her benefits to healthcare providers, did not have standing to file action for payment of bills from healthcare providers -- Insurer's motion for directed verdict granted, and cause dismissed without prejudice

7 Fla. L. Weekly Supp. 695a

Insurance -- Personal injury protection -- Assignment -- Document titled ``Assignment and Instruction for Direct Payment to Doctor'' which was signed by insured was unqualified assignment of benefits, and, therefore, insured lacks standing to assert claim for charges arising from treatment or services rendered by medical provider/assignee -- Fact that insured remains responsible to assignee for any amounts not paid by insurer does not act as limitation of qualification on rights being assigned to assignee -- Letter from assignee to assignor/insured requesting that its bill be included in PIP suit did not constitute revocation of assignment or unqualified assignment back to insured -- Insurer entitled to partial summary judgment with prejudice only as to standing or ability of insured to pursue claim for recovery of charges from subject medical provider

7 Fla. L. Weekly Supp. 414b

Insurance -- Personal injury protection -- Assignment -- Insured, as matter of law, lacks standing to bring action to recover payment for medical bills -- Policy language requiring written consent by insurer to an assignment does not bar assignment of after-loss claims -- Further, insurer treated assignment as being valid and operative by making payments to medical provider on insured's claim, even though assignment was undated and blank as to provider and insurer -- Fact that insured remains liable to medical providers to extent that insurer does not pay all of providers' bills, does not give insured sufficient stake in outcome of litigation, which does not encompass more than permissible extent of first party PIP benefits

7 Fla. L. Weekly Supp. 211b

Insurance -- Assignment -- Standing -- Insured has standing to bring cause of action because assignment of benefits signed by insured is qualified assignment in that insured remains financially responsible for payment of provider's charges -- Dismissal or remand for arbitration not required because there has been reassignment of benefits to insured -- Insured has consent of assignee to bring cause of action where reassignment of benefits was executed prior to filing of action -- Because insured remains fully responsible for all charges incurred with medical provider, she has both legitimate interest in matter sufficient to warrant asking court to entertain it and sufficient interest at stake in controversy which will be affected by outcome of litigation to vest her with standing to maintain cause of action

7 Fla. L. Weekly Supp. 239i

NOT FINAL VERSION OF OPINION
Subsequent Changes at 7 Fla. L. Weekly Supp. 435b

Insurance -- Personal injury protection -- Arbitration -- Dispute between insurer and medical providers to whom insured had assigned rights under policy -- Revocation of assignment -- Where insured had assigned rights under policy to medical providers, but providers authorized revocation of the assignments by signing revocations, and where revocations were received prior to notification of a claims dispute, section 682.02 of Florida Arbitration Code, which provides that written agreement to arbitrate is irrevocable, does not apply

7 Fla. L. Weekly Supp. 435b

Insurance -- Personal injury protection -- Insured who assigned benefits to medical care providers who agreed to accept the assignment lacked standing to bring suit against insurer -- Lack of standing at time suit was filed not cured by revocation of assignments after suit was filed

7 Fla. L. Weekly Supp. 777b

Insurance -- Personal injury protection -- No error in denying insurer's motion to abate and compel arbitration of actions filed by medical provider as attorney in fact for insureds -- If authorization form executed by insured were limited power of attorney, arbitration is not required under statute or policy -- If authorization is found to be assignment, statutory provision requiring arbitration between insurers and medical services providers when medical service providers receive assignment of benefits has been held unconstitutional -- Insurer's argument regarding impairment of obligation of contract fails because unconstitutional statutory provision specifically directed that all PIP insurance policies include mandatory arbitration provision, and insurer admitted that contractual provision was placed in its policy only after the statutory provision so directed it to be placed

7 Fla. L. Weekly Supp. 766a

Arbitration -- Insurance -- Personal injury protection -- Medical provider's action against insurer -- Statute requiring mandatory arbitration for all disputes between insurer and medical provider assignees and which requires a prevailing party standard to apply with regard to attorney's fees is unconstitutional -- Error to enter stay of litigation and compel parties to proceed to arbitration -- Attorney's fees -- Third party who claims policy coverage by assignment from insured may recover prevailing party attorney's fees under section 627.428 -- In case at issue, assignee's motion for appellate attorney's fees is provisionally granted, subject to assignee ultimately prevailing in entire action below and subject to trial court determining that provider is entitled to attorney's fees under section 627.428(1) -- Provider, as prevailing party, entitled to have costs taxed in its favor if it timely files motion with lower tribunal within thirty days of issuance of mandate

7 Fla. L. Weekly Supp. 765a

Arbitration -- Insurance -- Personal injury protection -- Medical provider's action against insurer -- Statute requiring mandatory arbitration for all disputes between insurer and medical provider assignees and which requires a prevailing party standard to apply with regard to attorney's fees is unconstitutional -- Error to enter stay of litigation and compel parties to proceed to arbitration -- Attorney's fees -- Third party who claims policy coverage by assignment from insured may recover prevailing party attorney's fees under section 627.428 -- In case at issue, assignee's motion for appellate attorney's fees is provisionally granted, subject to assignee ultimately prevailing in entire action below and subject to trial court determining that provider is entitled to attorney's fees under section 627.428(1) -- Provider, as prevailing party, entitled to have costs taxed in its favor if it timely files motion with lower tribunal within thirty days of issuance of mandate

7 Fla. L. Weekly Supp. 390a

Insurance -- Personal injury protection -- Arbitration -- No controversy remains to be determined by appellate court on issue of constitutionality of section 627.736(5) in view of Florida Supreme Court's recent ruling -- Insurer's motion to compel arbitration was not frivolous because at time motion was made, there was conflict as to constitutionality of arbitration in PIP benefit cases -- Insurer did not waive coverage defenses by moving to compel arbitration

7 Fla. L. Weekly Supp. 193a

Insurance -- Personal injury protection -- Arbitration -- Complaint by medical provider for payment of PIP insurance benefits -- Insurer's amended motion to compel arbitration and dismiss complaint denied -- Section 627.736(5), Florida Statutes, is unconstitutional based upon determination that section 627.736(5) arbitrarily requires medical providers who have accepted assignment of benefits to arbitrate claims disputes while insureds enjoy benefit of resolving claims disputes with insurers by way of civil litigation

7 Fla. L. Weekly Supp. 1a

Insurance -- Personal injury protection -- Arbitration -- No abuse of discretion in finding that insured assigned PIP benefits to medical providers based upon evidence that insured signed form authorizing medical providers to file for and receive payment for medical benefits, that insured received services from providers but was not required to pay at time of service, that providers submitted forms to insurer for direct payment, and that all parties treated insured's signature as an assignment up to the point a claim dispute arose -- Once assignment is made and a claim dispute arises, assignment is irrevocable and insured no longer has standing to argue that no assignment occurred -- Court rejects insured's contention that the only method for assigning PIP benefits is a direct counter-signature on the actual invoice submitted to the insurer -- Section 627.736(5) may be constitutionally applied to order arbitration of dispute between medical provider and insurer -- Insurance policy language at issue provided separate and independent basis to enforce arbitration -- Arbitrable issues -- Trial court appropriately found that arbitrators should determine whether, under facts before them, the medical benefits at issue were causally related to either or both accidents and whether such medical services were reasonable and necessary

7 Fla. L. Weekly Supp. 729a

Insurance -- Personal injury protection -- Where medical provider filed demand for arbitration after insurer failed to pay charges within thirty days, and insurer tendered full payment of disputed benefits subsequent to receipt of demand for arbitration, medical provider is entitled to award of reasonable fees and costs arising out of arbitration -- Question certified whether Florida Supreme court's decision in Nationwide Mutual Fire Insurance Company v. Pinnacle Medical, Inc., which declared unconstitutional the arbitration provisions of section 627.736(5) applies retroactively to pending claims for statutory attorney's fees and costs where medical provider/assignee demanded arbitration prior to Pinnacle and insurer tendered full payment of benefits together with statutory interest, also after Pinnacle

7 Fla. L. Weekly Supp. 62a

Arbitration -- Attorney's fees -- Motion for summary judgment as to entitlement to attorney's fees and costs on underlying arbitration proceeding granted where defendant agreed to settle disputed claim immediately after plaintiff demanded arbitration -- Prevailing party definition of Section 627.736(b)(c)(1)-(3), Florida Statutes, does not apply when confession of judgment is made prior to arbitration award -- Payment of claim is functional equivalent to confession of judgment or verdict in favor of plaintiff for purposes of awarding attorney's fees

7 Fla. L. Weekly Supp. 473a

Insurance -- Personal injury protection -- Affirmative defenses -- Material misrepresentation -- Insured entitled to summary judgment on claim for PIP benefits because her failure to list her boyfriend who lived in her home on application for PIP insurance was not material misrepresentation -- Because insured's boyfriend, although he was resident of her household, was not a relative, did not drive her vehicle, had his own policy of insurance, was not involved in subject accident, and was not making claim against insurance company with respect to subject accident, misrepresentation by insured was not material either to the acceptance of risk or to hazard assumed by insurer -- In order to have been material, misrepresentation would have had to have been related to risk or hazard assumed -- Failure to list boyfriend on application could only serve to preclude coverage for claim by boyfriend under insured's policy

7 Fla. L. Weekly Supp. 659a

Insurance -- Automobile -- Error to enter summary judgment in favor of insurer which provided comprehensive coverage for truck which was stolen from in front of insured's home on ground that insured made material misrepresentation on policy application by failing to list name of niece who was licensed driver living at insured's home -- Record failed to reveal that omission of niece's name from application was related to risk or hazard of truck being stolen, and no evidence was presented that theft arose out of niece's use of vehicle -- Whether or not insured falsely represented material facts that induced insurer to issue a policy, solely in reliance on those facts, presents questions of fact to be resolved by jury

7 Fla. L. Weekly Supp. 231a

Insurance -- Appeals -- Non-final order denying motion to strike insurer's proposal for settlement made pursuant to rule 1.442 and section 768.79 -- Section 768.79 applies to all civil actions for damages -- Order does not create material harm irreparable by post-judgment appeal -- Petition for review dismissed

7 Fla. L. Weekly Supp. 212b

Insurance -- Personal injury protection -- Insurer not entitled to summary judgment on insured's claim for loss of future earning capacity over his remaining working life, under his PIP policy -- Contractual language limiting loss of earning capacity benefit to amounts which are realized ``during the time that the insured is not able to work'' either does not apply, or is ambiguous -- In cases of insurance contract ambiguity, court construes in favor of coverage