Volume 8

8 Fla. L. Weekly Supp. 711a

Insurance -- Uninsured motorist -- Presumption of negligence attributed to underinsured driver whose vehicle rear-ended plaintiff's vehicle was not overcome -- Stop made by plaintiff was at a time, place, and location where it could have been reasonably expected, and following driver, by his own admission, could have avoided accident had he traveled safe distance behind plaintiff -- Plaintiff's motion for summary judgment granted

8 Fla. L. Weekly Supp. 193a

Insurance -- Uninsured motorist -- Court's prior order granting emergency motion to stay execution of judgment was not intended to act as stay against Insurance Commissioner taking action against insurer as provided by statutes authorizing revocation of certificate of authority for failure to satisfy judgment for period of more than sixty days

8 Fla. L. Weekly Supp. 827a

Insurance -- Settlement agreement -- Where parties entered into a settlement agreement and reached a meeting of minds as to essential terms of agreement, policy limits demanded were tendered by insurer in timely fashion, only dispute arose from claimants' objection to indemnification language in releases provided by insurer, but claimants' counsel never gave insurer the opportunity to amend releases, summary judgment is entered in favor of insurer -- Claimants are ordered to execute general release in form previously provided to and agreed to by claimants' counsel

Reversed at 27 Fla. L. Weekly D2188a

8 Fla. L. Weekly Supp. 485b

Insurance -- Fire -- Surplus lines carrier and unauthorized insurer -- Security -- Bond or deposit of cash or securities into court registry -- Amount

8 Fla. L. Weekly Supp. 514a

Insurance -- Time to respond to proposal for settlement

8 Fla. L. Weekly Supp. 44a

Insurance -- Personal injury protection -- Collection agency cannot pursue action against insurer under section 627.736

8 Fla. L. Weekly Supp. 197a

Insurance -- Personal injury protection -- Insurer's right of reimbursement against insurer or owner of commercial motor vehicle -- 1991 Ford sedan driven by plaintiff, though being used as taxi cab, is not commercial vehicle as defined in Section 627.732, Florida Statutes, and thus insurer is not entitled to reimbursement pursuant to Section 627.7405, Florida Statutes

8 Fla. L. Weekly Supp. 839a

Hospitals -- Health Maintenance Organizations -- Insurance -- Hospital claim of lien -- Action by hospital to pursue liens against patient's personal injury protection and uninsured motorist coverage rather than submitting bills to patient's health insurance carrier where express terms of participating provider agreement between hospital and carrier provide that hospital will accept payment from carrier as payment in full for covered services -- Coordination of benefits provision of health insurance policy operates as between health insurance carrier and insured only, not as vehicle for hospital to circumvent express terms of contract to accept payment from carrier as payment in full -- Hospital waived statutory right to pursue its liens by entering into participating provider agreement with health insurance carrier -- Medicare and Medicaid statutes, which provide that payment may not be made for any item or service to the extent that payment is made or can reasonably be expected to be made by automobile, liability or no fault insurance, are inapplicable -- No merit to claim that because participating provider contract does not contain express language modifying or limiting hospitals' statutory hospital lien rights, silence must result in upholding lien claims as if there were no health insurance coverage -- Contract read in pari materia with Florida HMO Act provision that HMO subscriber is not liable to medical provider for any services for which the HMO is liable supports conclusion that hospital has no right to recourse against patient except for applicable co-payments and deductibles for covered services or fees for services not covered by health insurance policy -- Liens invalidated by HMO Act

See 9 Fla. L. Weekly Supp. 380a

8 Fla. L. Weekly Supp. 531a

Insurance -- Personal injury protection -- Venue -- Insurer's claim that allowing medical provider to maintain suit in Orange County would promote forum shopping by provider seeking to avoid being compelled to arbitration in Hillsborough County under ruling in Orion Insurance Co. v. Magnetic Imaging Systems, Inc. lacks merit since the supreme court's decision in Nationwide Mut. Fire Ins. Co. v. Pinnacle Medical, Inc. held the mandatory arbitration provision in section 627.736(5), Florida Statutes, to be unconstitutional -- Record does not reflect any evidence demonstrating how insurer would be inconvenienced or burdened by litigating action in Orange County -- Order transferring venue reversed

8 Fla. L. Weekly Supp. 406a

Civil procedure -- Insurance -- Personal injury protection -- Where court previously held that medical provider lacked standing because assignment of benefits to medical provider was not supported by valid consideration where it held insured personally liable to provider in event provider did not collect from insurer and also made insured personally liable for interest for any balance owed 45 days after service, medical provider could not subsequently amend the assignment and then file amended complaint basing its standing allegations upon the amended assignment -- Standing is determined by facts in existence at time of filing of original complaint -- Motion for clarification and to allow plaintiffs' amended complaint to stand is denied

8 Fla. L. Weekly Supp. 169a

Insurance -- Personal injury protection -- Civil procedure -- In ruling on motion to dismiss, trial court is confined to allegations found within four corners of complaint -- Trial court erred in conducting evidentiary hearing and treating matter as motion for summary judgment

8 Fla. L. Weekly Supp. 571b

Insurance -- Personal injury protection -- Discovery -- Insurer is ordered to produce certain documents, photographs, and surveillance films and to respond to interrogatories

8 Fla. L. Weekly Supp. 350a

Insurance -- Personal injury protection -- Trial court correctly held that insured had standing to sue insurer for failure to timely pay medical bills submitted by health care provider for treatment of injuries sustained in covered accident where there was no evidence of assignment of medical benefits to health care provider, and insured had not even signed claim form through which assignment was allegedly made -- Where insurance policy allows amendments to policy only by endorsement signed by an executive officer or by revision to policy form to give broader coverage without extra charge, trial court erred in concluding that letter sent to insured by insurer after accident, promising to indemnify insured if sued by his health care provider for unpaid bills, amounted to amendment to policy since letter was signed by claims representative, was addressed only to insured and did not amend policy form, and does not afford greater coverage -- Insurer could not modify policy to remove insured's standing to sue where insured's right to PIP benefits resulting from covered accident had vested

8 Fla. L. Weekly Supp. 503b

Insurance -- Personal injury protection -- Insurer's failure to investigate medical claims is not excused by fact that it did not have a medical authorization from claimant since insurer had alternative means of obtaining needed information through section 627.736(6)(b), Florida Statutes -- Whether notice of claim is deemed the insurer's receipt of Accord Automobile Loss Notice and health insurance claims forms or when insurer received at least six claims from or on behalf of claimant, it was sufficient as a matter of law -- Notice having been given, thirty days having passed, there being no provision for tolling the 30-day period, payment not having been made nor denial of coverage having occurred within the 30 days, partial summary judgment is granted and affirmative defense that complaint is barred by failure to provide adequate and timely notice which prejudiced insurer is stricken

8 Fla. L. Weekly Supp. 608b

Insurance -- Personal injury protection -- Insurer was not required to have report authored by a physician in order to reduce payments to a medical provider -- Remand for new trial

8 Fla. L. Weekly Supp. 411b

Insurance -- Personal injury protection -- No error in granting summary judgment in favor of insurer in action by insured for payment of PIP benefits for charges which insurer had denied as not reasonable or necessary where insurer had advised insured that it would defend and indemnify insured should any legal action be brought to recover the unpaid charges -- Insurer complied with its contractual obligation when it denied payment of benefits it deemed unreasonable or unnecessary -- Record contained no evidence of damage to insured, who has not been pursued for unpaid charges or suffered related adverse consequences, and there was no evidence that insurer has breached promise to defend and indemnify insured

8 Fla. L. Weekly Supp. 398a

Insurance -- Personal injury protection -- Summary judgment motion based on medical provider's lack of standing to bring action for PIP benefits granted where insured executed document purporting to be assignment of benefits to medical provider and on same date executed another document stating that his benefits were not being assigned to medical provider -- Legal effect of two documents was that documents canceled each other out making both a nullity -- Insurer not entitled to summary judgment on ground that charges for performing an MRI were not medically necessary as matter of law and therefore no benefits are payable where affidavit of treating doctor stating that, based upon his care and treatment of insured, MRI was reasonable and necessary created genuine issues of material fact as to necessity of MRI

8 Fla. L. Weekly Supp. 160a

Insurance -- Personal injury protection -- Action against insurer by plaintiffs who, while rollerblading, were struck by a vehicle operated by insured -- Assignments given by plaintiffs to medical provider did not deprive plaintiffs of right to sue insurer where plaintiffs remained liable to provider for any amounts not covered by the assignments, any amounts insurer might refuse to pay, and attorney's fees and costs -- Where plaintiff stated in her application for benefits that vehicle owned by her was inoperable and swore in her interrogatory answers that car was ``not operable and not insured,'' fact that insurer learned that car was registered in the two years preceding the accident, although with an expired decal on it, did not rise to level of reasonable proof that plaintiff was not entitled to PIP benefits -- With regard to second plaintiff, there was no factual basis to believe that she was related to first plaintiff -- On remand, court to enter judgment in favor of plaintiffs upon proper motion

8 Fla. L. Weekly Supp. 505a

Insurance -- Personal injury protection -- Weight training through personal trainer was necessary palliative treatment for claimant who suffered permanent nerve damage as a result of a motor vehicle accident -- No merit to argument that a service must lead to a cure to be compensable under No-Fault Act -- Palliative care is available under No-Fault Act upon a showing of permanency -- Evidence -- Expert testimony is not needed to establish the reasonableness of charges and necessity of medical treatment -- Necessity is determined from the claimant's perspective

Additional ruling in this case at 8 Fla. L. Weekly Supp. 649c

8 Fla. L. Weekly Supp. 868a

Insurance -- Personal injury protection -- Dispute between medical provider and insurer -- Notice of initiation of treatment creates an additional thirty days for medical provider to submit bills to insurer for initial examination and treatment only, not all bills for services rendered

8 Fla. L. Weekly Supp. 245b

Insurance -- Personal injury protection -- Complaint for PIP benefits and declaratory relief based on medical treatment provided by medical provider to insured for injuries sustained in automobile related accident -- Section 627.736(5)(b) which requires medical providers to submit to insurer the bill for medical treatment rendered to insured within 30 days of providing treatment, is constitutional as written and as applied -- Access to courts -- Regarding argument that statute violates medical providers' access to courts, provider has complete access to the court to recover from insured and/or insurer, assuming provider complies with notice requirements of statute -- Pursuant to (5)(b), no one is denied access to court; instead, access is merely regulated by billing requirements of that section -- Due process -- As to due process argument that statute makes unreasonable and arbitrary distinction for emergency service providers by not requiring these providers to bill insurer within 30 days of providing services, distinction between emergency service providers and other medical service providers bears reasonable relationship to legislative concerns of stopping practice of ``bulk billing'' by providers and making insurer aware of commencement of treatment -- Impairment on contracts -- Freedom to contract is not totally denied since only medical provider's failure to comply with notice requirements of statute will excuse payment of services rendered by medical provider

8 Fla. L. Weekly Supp. 262a

Insurance -- Personal injury protection -- Preferred provider rates -- Section 627.736(a) provides exclusive means by which an insurance company can pay preferred provider rates on Florida personal injury protection automobile coverage -- An insurance company cannot, by artifice of erecting a buffer or middleman avoid the mandate of statute -- Full PIP benefits of 80% of reasonable and necessary medical expenses must be paid by insurer if insurer does not comply with all requirements of statute

8 Fla. L. Weekly Supp. 246b

Insurance -- Personal injury protection -- Medical bills -- Reduction -- Insurer had no privity of contract and no standing to reduce medical bills submitted by medical provider for treatment of insured, pursuant to contract in which insurer was not a party or ``Third Party Payor'' as defined by contract -- Insurer could not reduce plaintiff's medical bills as it did not have a preferred provider policy as required by statute -- Section 627.736(10) allows a specific method for insurers to take Preferred Provider reductions, and insurer's failure to follow this methodology prohibits the taking of preferred provider reductions

8 Fla. L. Weekly Supp. 735c

Insurance -- Personal injury protection -- Plaintiff is not entitled to recover PIP benefits for MRI provided to insured, where plaintiff does not perform necessary medical services and is not a ``physician, hospital, clinic, or other person or institution lawfully rendering treatment to an injured person for a bodily injury covered by PIP insurance''

8 Fla. L. Weekly Supp. 250a

Insurance -- Personal injury protection -- Coverage -- Denial -- Reasonable and necessary expenses -- Medical provider/assignee is entitled to be paid for medical bill submitted to insurer prior to exhaustion of benefits under policy if the charges were reasonable and necessary, even though all benefits under the policy were subsequently exhausted -- Insurer may seek to recover against medical provider that insurer wrongfully paid

8 Fla. L. Weekly Supp. 229b

Insurance -- Personal injury protection -- Action against insurer by assignee of PIP benefits, claiming that insurer, who made payments on subsequently submitted bills until limits of PIP coverage had been exhausted, failed to timely pay assignee's claim -- Summary judgment improper where material issues of fact remain as to whether assignee was notified of reason for denial, whether insurer had reasonable proof of its nonresponsibility for bill, and whether the way assignee's bill was handled is standard operating procedure used by insurer and insurance industry

8 Fla. L. Weekly Supp. 209b

Insurance -- Personal injury protection -- Coverage -- Unreasonable charge -- Reasonable proof -- Insured entitled to summary judgment on claim for benefits where there remains no disputed material facts as to whether insurer had reasonable proof that amounts charged by health care provider were unreasonable, and insurer failed to obtain physician's report required by statute, which is condition precedent to refusing payment of treating physician -- Insurer, as matter of law, did not have reasonable proof that charges submitted by health care provider for medical products he dispensed to insured were unreasonable -- Excess of policy limits -- Insurer not entitled to summary judgment on ground that insured cannot recover because policy limits available to insured had been exhausted -- Insured is an aggrieved party who is capable of receiving benefits as awarded by court for outstanding interest on payments owed on bills of health care provider which were not paid prior to benefits being exhausted -- Insurer entitled to partial summary judgment regarding its liability for medical benefits in excess of policy limits -- Interest -- Insured entitled to 10% interest on overdue amount owed to health care provider from date insurer received bill until date benefits were exhausted

8 Fla. L. Weekly Supp. 143b

Insurance -- Personal injury protection -- Insurer not precluded from challenging medical bills on grounds that they were not reasonable, related or necessary simply because it did not obtain reasonable proof to support a denial within thirty days of receipt -- Where jury found that bills were not related to accident, trial court erred in denying insurer's motion for judgment in accordance with verdict on ground that insurer did not obtain independent medical examination or other reasonable proof until after thirty-day period

8 Fla. L. Weekly Supp. 204a

Insurance -- Personal injury protection -- Sanctions -- Motion for sanctions based on conduct of insured's treating physician in withholding, concealing or disposing of relevant evidence that would go to possible defense that insured's injuries and treatment were not related to accident in issue -- Sanctions granted -- Motion for sanctions based on conduct of insured's counsel in denying requests for admissions and forcing insurer to file motions for partial summary judgment to eliminate issues, and in circumventing rules of civil procedure by engaging in ex parte discovery with insurer's retained expert -- Sanctions granted -- A trial court has inherent authority to sanction destruction of evidence, even in absence of order determining that evidence must be preserved or produced in discovery -- Courts have inherent power to assess attorney's fees against counsel for litigating in bad faith

8 Fla. L. Weekly Supp. 203a

Insurance -- Personal injury protection -- Insured alleging insurer wrongfully failed to pay bills of medical provider in accordance with insurance policy and Florida No-fault Statute -- Motion to strike medical provider as witness granted where medical provider engaged in pattern of withholding, concealing, or disposing of relevant evidence that would go to possible defense that insured's injuries and treatment were not related to accident in issue -- Medical provider should not be permitted to testify in support of claim that his bills were reasonable, necessary and related to subject accident -- Insurer has been irreparably prejudiced by conduct of medical provider because insurer is essentially thwarted from investigating and developing defense that any necessity for insured's treatment arose from prior medical conditions rather than subject accident

8 Fla. L. Weekly Supp. 607a

Insurance -- Personal injury protection -- Independent medical examination -- Medical report based on an IME is not required for an insurer to deny PIP benefits to an insured

8 Fla. L. Weekly Supp. 593b

Insurance -- Personal injury protection -- Independent medical examination -- Where insurer had express notice that insured was represented by counsel, counsel specifically requested notice of any action by insurer and advised insured to disregard communications unless these originated from him, insurer notified insured of IME through letter from its agent, which was a claims evaluation company unknown to insured, and insurer failed to advise counsel of the IME, insured's failure to attend IME was attributable to insurer and not an unreasonable refusal under section 627.736(7)(b), Florida Statutes

County court order at 8 Fla. L. Weekly Supp. 114b

8 Fla. L. Weekly Supp. 114b

Insurance -- Personal injury protection -- Insured did not, under circumstances, forfeit rights to PIP benefits by failing to attend two scheduled medical examinations -- As matter of law, having been advised that insured was represented by counsel, insurer should have sent notices scheduling medical examinations to insured's counsel -- Absent such communication, insured's failure to attend examination cannot be deemed to have been unreasonable -- Notices at issue were confusing on their face because they originated from an entity with whom insured had no connection, were addressed to ``You/Your client,'' and cited technical-legal authorities, making it more difficult for ordinary person to understand -- Insurer did not refute record evidence that insured was confused by notices and, in absence of confusion, would have attended scheduled exams

Final Summary Judgment affirmed at 8 Fla. L. Weekly Supp. 593b

8 Fla. L. Weekly Supp. 601b

Insurance -- Personal injury protection -- Directed verdict -- No error in entertaining motion for directed verdict which was not renewed at close of all evidence where insurer made motion after insured rested his case, and trial court expressed intent to reserve ruling on motion until end of trial -- Error to set aside verdict in favor of insured, where insured presented substantial evidence from which jury could have concluded that insured had not received notification of independent medical examination and therefore did not unreasonably fail to attend IME -- Error to impose extreme sanction of directed verdict upon finding that insured gave false testimony regarding prior accidents where record does not establish that insured engaged in willful, repeated, and pervasive misconduct or that he attempted to defraud the court, but instead demonstrates that insured stated that he did not recall making statements in deposition in prior case

8 Fla. L. Weekly Supp. 542a

Insurance -- Personal injury protection -- Setting aside of clerk's default which was rendered 19 days after service and without notice affirmed -- Denial of motion to reopen the evidence based upon setting aside of clerk's default affirmed where counsel failed to proffer testimony he sought to introduce -- Independent medical examination -- Error to direct verdict against insured in action for PIP benefits for unreasonable failure to appear at IME where there was no evidence of refusal to submit to IME -- Evidence established that insured had to work at time of first IME; insured missed second IME due to delay at work, transportation problems, and physical therapy; and insured called after second missed IME and was told that she could reschedule -- Reasonableness of insured's conduct was question of fact for jury -- Insured's motion for attorney's fees granted

8 Fla. L. Weekly Supp. 323a

Insurance -- Personal injury protection -- Dispute between medical provider and insurer -- Standing -- Absent assignment, medical service provider lacks standing to claim PIP benefits -- No merit to argument that by failing to pay within thirty days insurer is precluded from asserting lack of standing -- Insurer promptly paid insured for same bill that is now claimed by medical services provider

8 Fla. L. Weekly Supp. 144a

Insurance -- Personal injury protection -- Insurer not responsible for paying for medical services rendered prior to date on which insured failed to attend her independent medical examination where bills for payment for such services were not submitted until after the date insured failed to attend IME

8 Fla. L. Weekly Supp. 164a

Insurance -- Personal injury protection -- Error to enter summary judgment in favor of insurer where genuine issues of material fact remain as to whether insured's failure to attend independent medical examinations in unincorporated part of county was unreasonable and intentional -- Amended statute permitting IME to be conducted in municipality in which insured is receiving treatment or in location ``reasonably accessible to the insured'' not basis for trial court's ruling where events at issue occurred prior to effective date of amendment -- Under applicable statute, IME could have been scheduled in either the city where insured resided or in the city in which he was receiving treatment

8 Fla. L. Weekly Supp. 653a

Landlord-tenant -- Eviction -- Noncompliance with lease -- Action to evict tenant from student housing complex for allegedly breaching lease by failing to report drug use by housemates -- Landlord failed to establish that tenant breached lease provision where evidence of drug use was found in two of townhouse's bedrooms, which were not the tenant's or under tenant's care, custody or control -- Landlord presented no evidence to tie tenant to evidence of marijuana use in common area of townhouse given facts that tenant was asleep in his own locked bedroom at time drug evidence was discovered, did not know housemates before they moved into townhouse, and rarely socialized with housemates -- Eviction based on nothing but ``guilt by association'' dismissed

8 Fla. L. Weekly Supp. 733a

Insurance -- Personal injury protection -- Action by insured for lost wage claim denied by insurer because it had exhausted the PIP benefits under policy in payment to medical provider -- Insured, not insurer, had the right to reapportion her claim for PIP benefits -- Insurer acted improperly and breached insurance contract by negotiating medical benefits claim with medical provider which did not have an assignment of benefits rather than negotiating with insured -- Insurer ordered to pay insured amount of claim paid to medical provider plus prejudgment interest

8 Fla. L. Weekly Supp. 159b

Insurance -- Personal injury protection -- Error to enter summary judgment in favor of insured in action seeking payment of certain medical bills where jury had found in prior lawsuit that insured had unreasonably refused to attend second independent medical examination, so that factual issue existed in instant case as to whether PIP benefits had been waived -- Further, insured's prior direction to insurer not to pay the bills in question created question of fact as to whether insurer was responsible for those bills, and substantial question of fact exists as to what, if anything, is owed

8 Fla. L. Weekly Supp. 501a

Insurance -- Personal injury protection -- Section 627.736 does not require HCFA form to be countersigned by insured if medical provider has accepted an assignment of benefits

8 Fla. L. Weekly Supp. 500b

Insurance -- Personal injury protection -- Statute provides that health care provider providing treatment covered by PIP insurance may be paid directly if insured countersigns medical bills -- Where insured and health care provider failed to comply with statute by failing to comply with guidelines of authorized claim form requiring signature by both insured and health care provider, insurer has not been furnished with notice of amount of a covered loss and 30-day period in which insurer must authenticate claim has not begun to run -- Phrase ``signature on file'' typed in signature box does not satisfy statutory requirement to countersign bill or claim form

8 Fla. L. Weekly Supp. 851a

Insurance -- Personal injury protection -- Section 627.736 does not require HCFA form to be countersigned by insured if medical provider has accepted an assignment of benefits

8 Fla. L. Weekly Supp. 570a

Insurance -- Personal injury protection -- Dismissal -- Assignment -- Attachment of assignment of benefits by provider claiming PIP benefits pursuant to an assignment is not required by Rule 1.130 -- Provider's allegation of standing by way of assignment must be taken as true for purposes of insurer's motion to dismiss -- Motion for summary judgment based on provider's lack of standing denied where provider's allegation of assignment is taken as true and insurer presented no evidence supporting motion

8 Fla. L. Weekly Supp. 637b

Insurance -- Nonjoinder of insurer in action against insured -- Counterclaim against insurer asserting coverage issues which are totally unrelated to any other claims in the action is dismissed

8 Fla. L. Weekly Supp. 846b

Insurance -- Personal injury protection -- Preferred provider rates -- Insurer could not reduce benefits paid to insured's assignee to PPO rates as it did not have a PPO policy as required by statute

8 Fla. L. Weekly Supp. 847b

Insurance -- Personal injury protection -- Plaintiff is not entitled to recover PIP benefits for MRI services provided to insured, where plaintiff does not perform necessary medical services and is not a ``physician, hospital, clinic, or other person or institution lawfully rendering treatment to an injured person for a bodily injury covered by PIP insurance''

8 Fla. L. Weekly Supp. 361a

Insurance -- Personal injury protection -- Medical payments -- Plaintiff, which referred and scheduled appointment for insured at MRI facility that actually performed MRI services, is not ``physician, hospital, clinic, or other person or institution lawfully rendering treatment'' to insured that would qualify it as a healthcare provider entitled to payment of PIP or MPC benefits under section 627.736 -- Plaintiff's activities in referring patients to MRI service and billing insurer more than 400% more than actual charge by service provider constitute clear violation of patient brokering statute and underlying public policy prohibiting patient brokering and split-fee arrangements such as that between plaintiff and MRI provider -- Plaintiff not entitled to payment of PIP or MPC benefits under insured's policy under section 627.736 because such payment would be contrary to public policy of state -- Summary judgment granted in favor of insurer and jurisdiction retained to consider insurer's counterclaim for recovery of monies previously paid to plaintiff

8 Fla. L. Weekly Supp. 737a

Insurance -- Personal injury protection -- Limitation of actions -- Statute of limitations did not begin to run on date insurer provided notice that it would no longer pay PIP benefits since plaintiff had no medical expenses unpaid by insurer on that date -- As each new date of medical service after insurer's notice resulted in plaintiff incurring additional expenses, another five-year limitations period commenced for that date of service -- Motion for summary judgment granted as to expenses incurred on date of service more than five years prior to filing of suit and denied as to expenses incurred on dates of service less than five years prior to filing of suit

8 Fla. L. Weekly Supp. 634a

Insurance -- Liability -- Torts -- Settlement -- Plaintiff was not entitled to recover damages from employer's liability insurer based on injuries plaintiff sustained in work-related employment where plaintiff had already received lump sum payment of workers' compensation benefits from same insurer and had executed full release of employer and insurer from any further liability for workers' compensation benefits -- Immunity from tort liability afforded employer by statute is also enjoyed by workers' compensation insurer -- Obligation under policy to pay non-workers' compensation damages for which employer was liable when such recovery is permitted by state law did not obligate insurer to pay personal injury judgment in view of state law making workers' compensation plaintiff's exclusive remedy -- Insurer's motion for judgment on pleadings is granted

8 Fla. L. Weekly Supp. 859a

Insurance -- Personal injury protection -- Venue in contract case is not limited to county where accident occurred -- Service upon insurer in PIP case is proper in any county in state -- Motion to dismiss denied

8 Fla. L. Weekly Supp. 95a

Insurance -- Uninsured motorist -- Insured's action against insurer -- Insurer's motion to set aside judgment and motion to conform judgment to policy limits denied -- Civil procedure -- Service of process -- Insurer abandoned its argument that default and final judgment were void as matter of law because process was served on insurance commissioner -- Default -- Record refutes insurer's claim that it was not provided notice of application for default -- Even if clerk's default were vacated, final judgment, which was entered after trial on issues of liability and damages, would not be affected -- Insurer received adequate notice of trial, and its failure to appear and defend itself was direct result of its own actions -- Relief from judgment -- Fraud -- Actions of plaintiff's counsel in requesting court to enter judgment in excess of policy limits does not constitute fraud, misrepresentation, or misconduct which would warrant relief from judgment under rule 1.540(b) -- Defendant not entitled to relief from judgment based on mistake or inadvertence -- Insurer's actions in instant case constituted gross negligence barring it from relief

Reversed and remanded at 27 Fla. L. Weekly D44a (On Motion for Rehearing at 27 Fla. L. Weekly D1149a)

8 Fla. L. Weekly Supp. 736c

Insurance -- Personal injury protection -- Action against insurer for denying full payment of medical bill -- Insurer complied with requirements of statute in reducing amount bill by obtaining reasonable proof that it was not responsible for the amount billed -- Where insurer complied with statute, no payment was overdue and insured could not be entitled to statutory interest on unpaid portion of bill -- Final judgment entered in favor of insurer

8 Fla. L. Weekly Supp. 199d

Insurance -- Personal injury protection -- Delay in payment of benefits -- Interest

8 Fla. L. Weekly Supp. 199b

Insurance -- Personal injury protection -- Delay in payment of benefits -- Interest

8 Fla. L. Weekly Supp. 251a

Insurance -- Personal injury protection -- Interest -- Partial summary judgment granted as to issue of statutory interest -- Plaintiff entitled to summary judgment as matter of law on unpaid medical bills which defendant admits should have been paid, and to statutory interest

8 Fla. L. Weekly Supp. 217a

Contracts -- Health maintenance organizations -- HMO subscriber did not demonstrate error in trial court's decision that, although a medical provider provided a service covered by subscriber's HMO, billed its services to his HMO, and received customary payment from HMO, it was not a contract provider statutorily barred from billing the subscriber for services covered by his HMO -- Balance billing by non-contract providers is not contrary to public policy -- Where patient testified that he did not recall executing financial agreement with medical provider and undisputed evidence showed that agreement was signed after administration of medication shortly before surgery, lack of capacity to contract was established

8 Fla. L. Weekly Supp. 363a

Insurance -- General commercial liability -- Exclusions -- Insurer had no duty to defend and indemnify insured where policy included assault and battery exclusion, regardless of fact that plaintiff who was injured in assault on insured's premises pled in negligence, asserting that insured failed to provide adequate security -- Insurer's motion for summary judgment granted

8 Fla. L. Weekly Supp. 606a

Insurance -- Personal injury protection -- Prejudicial error occurred when defendant's expert witness gave improper response to hypothetical question and testified to matters outside his expert medical knowledge -- Law unclear whether evidence of separate lawsuit is proper in PIP claim -- Allowing evidence of impairment rating not proper when its only purpose is to suggest separate litigation -- New trial required

8 Fla. L. Weekly Supp. 578c

Landlord-tenant -- Eviction -- Standing -- Manager of apartment building who is not attorney licensed to practice in Florida has no standing to bring eviction action in his own name or to represent corporate landlord -- Furthermore, failure to join both lessees is fatal in action for possession of premises

8 Fla. L. Weekly Supp. 859b

Insurance -- Personal injury protection -- Medical bills -- Reduction -- Usual and customary charges -- Discovery -- Trade secrets -- Defendant had adequate notice that plaintiff was challenging its improper objections to supplemental discovery requests -- Further, defendant seems to be attempting to assert trade secret privilege on behalf of unidentified nonparty to lawsuit -- Motion for protective order or for continuance of hearing on plaintiff's amended motion to compel denied

8 Fla. L. Weekly Supp. 651b

Insurance -- Discovery -- Relationship between insurer and physician retained to perform physical examinations on behalf of insurer -- Motion to compel response to interrogatories granted<

8 Fla. L. Weekly Supp. 735b

Insurance -- Discovery -- Order compelling discovery regarding MRI interpretation services

8 Fla. L. Weekly Supp. 736a

Insurance -- Discovery -- Order permitting discovery relating to MRI -- Attorney's fees and costs awarded

8 Fla. L. Weekly Supp. 42d

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

8 Fla. L. Weekly Supp. 818a

Insurance -- Personal injury protection -- Discovery -- Denial of medical provider's motion to compel response to interrogatories seeking information as to the financial relationship between insurer and the physician who performed independent medical examination that resulted in termination of benefits to provider constituted departure from the essential requirements of law -- Fact that insurer has not named IME physician as its expert has no relevance since it is physician's role in case, rather than title of expert, that determines relevance of the information sought -- Writ of certiorari granted

8 Fla. L. Weekly Supp. 71a

Civil procedure -- Insurance -- Personal injury protection -- Error to enter order striking insurer's pleadings for failure to comply with discovery orders where there was no express determination as to whether insurer's actions were willful and deliberate, and there was no showing of prejudice to insureds

8 Fla. L. Weekly Supp. 506a

Insurance -- Discovery -- Sanctions -- Plaintiff ordered to pay $100 to defendant's attorney -- Plaintiff ordered to produce sign-in sheets for all dates of treatment for insured or affidavit indicating that they are not available -- If plaintiff fails to comply with order, case will be dismissed with prejudice

8 Fla. L. Weekly Supp. 650b

Insurance -- Motion to extend discovery to trial granted -- Expert witness fees -- Reasonable hourly rate

8 Fla. L. Weekly Supp. 453b

Insurance -- Civil procedure -- Discovery -- Sanctions -- Plaintiff's motion for sanctions denied, but substance of motion will be reconsidered in determining attorney's fees and costs if plaintiff prevails in its claim -- Motion to compel production granted -- Motion to compel production of documents already provided denied -- Motion to compel better answers to interrogatories denied in part -- Defendant insurance company ordered to list every individual, corporation, or other entity who has obtained services of doctors on its behalf to perform independent medical examinations in the last twelve months in two counties

8 Fla. L. Weekly Supp. 848a

Insurance -- Discovery -- Motion to compel insurer to produce contract granted -- Contract is not trade secret -- Court agrees to in camera inspection of any portion of contract that insurer asserts is privileged -- Motion to compel response to interrogatory is granted but limited to production of information in insurer's possession

8 Fla. L. Weekly Supp. 571c

Civil procedure -- Discovery -- Insurance -- Relationship to company that sold or supplied computer program utilized to review, reduce or deny medical bills; materials used by training personnel to explain to its adjusters the use of the software; names and job titles of defendant's training personnel in certain area and within certain time period who were knowledgeable on use of computer program -- Motion to compel insurer to answer interrogatories granted

8 Fla. L. Weekly Supp. 651a

Insurance -- Personal injury protection -- Discovery -- Interrogatories -- Requests for production -- Order compelling discovery related to computer program insurer used to review, reduce, or deny medical bills

8 Fla. L. Weekly Supp. 660b

Insurance -- Personal injury protection -- Discovery -- Depositions -- Role of plaintiff's treating physician in dispute between insured and insurer relating to payment of treating physician's bills was not that of expert witness, and accordingly, treating physician is not entitled to payment of expert witness fee -- Motion to compel deposition without payment of expert fee granted and treating physician's motion for protective order denied

8 Fla. L. Weekly Supp. 635b

Insurance -- Personal injury protection -- Insured's action against insurer -- Role of plaintiff's treating physician in case is that of fact witness, not expert witness -- Physician not entitled to payment of expert witness fee -- Motion to compel deposition of treating physician without expert fee granted

8 Fla. L. Weekly Supp. 114a

Insurance -- Personal injury protection -- Insured's action against insurer -- Plaintiff's treating physician not entitled to payment of expert witness fee -- Role of physician in case at issue was that of fact witness -- Motion to compel deposition of treating physician without expert witness fee granted

8 Fla. L. Weekly Supp. 650c

Civil procedure -- Discovery -- Sanctions -- Where defendant insurance company which was noticed for deposition duces tecum of its person with most knowledge failed to file a motion for protective order, and person with most knowledge appeared at deposition without claims notes and was, therefore, unable to answer standard questions on events of the claim, plaintiff was unable to conduct meaningful deposition -- Motion to compel granted -- Defendant to pay costs of transcript and costs associated with upcoming deposition -- Any motion for protective order must be filed and scheduled to be heard before deposition

8 Fla. L. Weekly Supp. 392a

Insurance -- Discovery -- Depositions -- Expert witness fee -- Witness to testify at deposition regarding medical treatment provided to insured and/or billing provided to insurer for services provided insured is entitled to expert witness fee as his qualifications fulfill requirements of Rule 1.390(a) -- Witness entitled to compensation for time spent away from his medical practice to give testimony -- If travel is required as result of deposition being scheduled anywhere other than witness's office, defendant must pay witness for his portal to portal time, both to and from location of deposition

8 Fla. L. Weekly Supp. 867a

Insurance -- Personal injury protection -- Discovery -- Insurer may take deposition of chiropractor whom medical provider claims did not treat insured, but insurer is ordered to pay expert witness fee for his deposition testimony if it is determined that chiropractor did not treat insured

8 Fla. L. Weekly Supp. 464a

Contracts -- Insurance -- Coverage -- Promissory estoppel -- Based on theory of promissory estoppel, insured is entitled to payment of medical bills incurred after telephone conversation with insurer wherein, by mutual mistake, insurer and insured agreed that benefits would be extended to certain date -- Plaintiff proved by clear and convincing evidence action for promissory estoppel where insurer made definite and substantial promise, insured detrimentally relied on that promise and continued to seek medical treatment, and insurer should have reasonably expected the promise to induce reliance on part of insured -- Unclean hands -- There exists bona fide dispute between parties, and neither party has come to court with unclean hands

8 Fla. L. Weekly Supp. 862b

Attorneys -- Disqualification -- Conflict of interest -- Insurance -- Neither attorney who previously represented insurer, nor his current associate and law firm, are disqualified from representing plaintiff in personal injury protection claim against insurer -- Instant case is factually distinctive from other PIP cases -- Discovery will eliminate any advantage that attorney may have due to prior representation of insurer -- Sufficient time has passed since attorney was associated with firm that represented insurer that attorney has no prejudicial advantage in current case

8 Fla. L. Weekly Supp. 862a

Attorneys -- Disqualification -- Conflict of interest -- Insurance -- Attorney who previously represented insurer is not disqualified from representing plaintiffs in personal injury protection claims against insurer where there is no specific transaction in which attorney represented insurer and in which attorney is now attempting to represent a plaintiff, and there is no showing by insurer of substantial relationship between the PIP cases it must defend and matters or causes of action wherein attorney previously represented the insurer

8 Fla. L. Weekly Supp. 861c

Attorneys -- Disqualification -- Conflict of interest -- Insurance -- Attorney who previously represented insurer is not disqualified from representing plaintiffs in personal injury protection claims against insurer where there is no specific transaction in which attorney represented insurer and in which attorney is now attempting to represent a plaintiff, and there is no showing by insurer of substantial relationship between the PIP cases it must defend and matters or causes of action wherein attorney previously represented the insurer

8 Fla. L. Weekly Supp. 861b

Attorneys -- Disqualification -- Conflict of interest -- Insurance -- Attorney who previously represented insurer is not disqualified from representing plaintiffs in personal injury protection claims against insurer where there is no specific transaction in which attorney represented insurer and in which attorney is now attempting to represent a plaintiff, and there is no showing by insurer of substantial relationship between the PIP cases it must defend and matters or causes of action wherein attorney previously represented the insurer

8 Fla. L. Weekly Supp. 847c

Attorneys -- Disqualification -- Conflict of interest -- Insurance -- Motion to disqualify is denied

8 Fla. L. Weekly Supp. 841a

Attorneys -- Disqualification -- Conflict of interest -- Insurance -- Cases brought under section 627.736 are not substantially related just because they are brought under same statute

8 Fla. L. Weekly Supp. 321b

Insurance -- Personal injury protection -- PIP insurer fulfilled its duty to pay legitimately payable hospital expenses when it apportioned PIP benefits between two hospital bills -- Insurer was not under duty to withhold PIP benefits from a hospital lienor submitting a legitimate claim and coordinate benefits with another health insurer in order to pay a potential wage loss claim that might be submitted later -- Even if PIP insurer was under duty to coordinate benefits, it was duty to coordinate among existing claims -- Insured's furnishing of request to insurer to reserve benefits for developing wage loss claim does not authorize judicial imposition of obligation to coordinate benefits which may tend to impair insurer in fulfillment of its duty to make prompt payment of legitimate claims for medical expenses -- PIP insurer is not under duty to coordinate benefits with another insurer in derogation of its obligation to promptly pay legitimate claims submitted by medical service providers

8 Fla. L. Weekly Supp. 568a

Insurance -- Personal injury protection -- Action for balance of partially paid bill where policy limits have been exhausted by payment of subsequent claims -- Where insured made a valid assignment of benefits to medical provider, insurer received assignment and acted on it by paying reduced amount to provider although it had more than enough PIP benefits to pay disputed amount when it paid reduced bill, provider notified insurer that it contested the reduction and requested that the disputed amount be placed in reserve so that the policy limits not be exhausted prior to resolution of the dispute, insurer did not place disputed amount in reserve but paid other providers for bills received after the disputed billing, thereby exhausting benefits, and insurer does not contest reasonableness of bill in action by provider for disputed amount, insurer is ordered to pay disputed amount despite exhaustion of PIP benefits -- Attorney's fees and costs awarded to provider -- Prejudgment interest -- Insurer to pay interest on claim from time that check for reduced amount was sent to provider -- Question certified whether an insurer providing a policy of PIP insurance with a finite amount of coverage can be held liable for extra-contractual damages once benefits being paid on the insured's behalf exhaust the available policy limits -- Question certified: Does interest pursuant to Fla. Stat. Section 627.736 continue to accrue once benefits have been exhausted under the insured's policy

8 Fla. L. Weekly Supp. 802a

Insurance -- Plaintiff/insured was not party to contractual agreement between medical provider and insurer and was not third-party beneficiary of contract -- Agreement between provider and insurer was not a preferred provider agreement, but simply a negotiated fee schedule to be used if an insured of the defendant uses the provider's services -- Insurer entitled to summary judgment on issue of whether agreement entered into by provider is valid agreement -- Ruling does not decide ramifications if provider is making demands on plaintiff for payment in excess of the contract rate

8 Fla. L. Weekly Supp. 485a

Insurance -- Fire -- Cancellation of policy -- Breach of contract action against insurer which canceled policy after premium finance company sent notice of cancellation for nonpayment of premium -- Valid power of attorney executed by insured authorizing finance company to cancel policy was condition precedent to cancellation -- Premium financing agreement and second version of agreement which insurer claims gave finance company authority to cancel the policy are defective -- Where record contains no valid power of attorney executed by insured authorizing finance company to cancel policy, and there is no reason to assume that further discovery would uncover such document, partial summary judgment is entered for insured on the issue of coverage

8 Fla. L. Weekly Supp. 302a

Insurance -- Automobile liability -- Personal injury protection -- Leased vehicles -- Lessor of motor vehicle failed to shift statutory obligation for primary insurance coverage to lessee where it voluntarily departed from statute as to bold type and used inadequate and unclear provision of statutory language -- Clarity was further aggravated by failure to eliminate contradictory language in documents prepared by lessor

8 Fla. L. Weekly Supp. 823c

Insurance -- Jury instructions -- Instruction that Florida No Fault Act is to be construed liberally in favor of insured was statement of statutory construction which could have misled or confused jury in applying facts to provisions of the Act -- Error to limit officer at scene from testifying as to his observations of those involved in accident -- Accident report privilege does not prevent officer from describing what was personally observed at scene -- Error to exclude testimony of second officer at scene -- Eyewitness should have been permitted to testify as to what she saw and heard at accident scene -- Error to permit plaintiff's counsel to cross-examine eyewitness on issue of racial bias where racial slurs became feature of case, and prejudicial effect outweighed any probative value -- New trial required

8 Fla. L. Weekly Supp. 219a

Insurance -- Automobile -- Loss of use expenses -- Trial court erred in finding that insured could not recover loss of use expenses under policy that did not include loss of use provision as a matter of law where insurance contract provided that insurer had option to pay for loss in money, or to repair or replace damaged vehicle, but insurer did not pay or repair within reasonable time -- Where delay in finding total destruction was caused by insurer, loss of use for unreasonable period of delay was compensable

8 Fla. L. Weekly Supp. 186a

Insurance -- Third-party beneficiaries -- Class actions -- Certification of class -- Plaintiff whose vehicle was damaged in accident with defendant's insured alleging that insurer breached terms of contract by using non-original equipment manufacturer parts in its estimate because non-OEM parts are inferior per se and not of ``like kind and quality'' to parts they replaced -- Plaintiff's motion to act as class representative in nationwide class action denied for lack of standing

Additional ruling in this case at 11 Fla. L. Weekly Supp. 229a

8 Fla. L. Weekly Supp. 101a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 8 Fla. L. Weekly Supp. 186a

Insurance -- Third-party beneficiaries -- Class actions -- Certification of class -- Plaintiff whose vehicle was damaged in accident with defendant's insured alleging that insurer breached terms of contract by using non-original equipment manufacturer parts in its estimate because non-OEM parts are inferior per se and not of ``like kind and quality'' to parts they replaced -- Plaintiff's motion to act as class representative in nationwide class action denied for lack of standing -- Use of non-OEM parts is expressly permitted by Florida law, and Florida law requires only that there be disclosure where non-OEM aftermarket crash parts are being used -- Florida law would be inapposite to proposed nationwide class because individual insurance policies must be interpreted by laws of state where contract was entered into -- Issues raised by complaint not common to all class members -- Plaintiff cannot establish that every non-OEM part specified on an estimate by insurer is not of like kind and quality to each and every part misplaced -- Plaintiff made no showing that class representation was superior to other available methods for the fair and efficient adjudication of the controversy

Additional ruling in this case at 11 Fla. L. Weekly Supp. 229a

8 Fla. L. Weekly Supp. 247a

Insurance -- Automobile -- Coverage -- Collision -- Policy language and law of State of Florida allows for first party claims for diminished value when insurer elects to repair insured's vehicle -- Moreover, policy language as to terms ``loss,'' ``repair,'' and ``replace'' is ambiguous -- Because the terms of policy are ambiguous, policy itself is ambiguous -- Ambiguity must be construed in favor of insured -- Insured's motion for partial summary judgment as to coverage granted

8 Fla. L. Weekly Supp. 749a

Insurance -- Automobile -- Cancellation of policy -- Judgment in favor of insured on issue of insurance coverage affirmed -- Insured was necessarily covered under policy where three-option letter stated specific date on which policy would be canceled if insured took no action, and accident occurred on that date

8 Fla. L. Weekly Supp. 388a

Insurance -- Automobile -- Cancellation of policy -- Where insurer informed insured that it needed written proof that insured auto had anti-lock brake system and that, in absence of such proof, it could terminate policy for non-payment of an additional premium, and insurer ultimately sent insured a ``three-option'' letter which gave insured the option of paying the additional premium and maintaining the policy in effect, canceling the policy and receiving a premium refund, or doing nothing, in which case policy would cancel on certain date; and insured was involved in accident on the date specified as the automatic cancellation date, that accident was covered -- Where no time of day is specified, agreement contemplates coverage for the entire day -- Subsequent notice of cancellation which did include a specific time cannot substitute for the ``three-option'' letter required by statute -- Further, conflicting notices issued by insurance company are resolved in favor of coverage -- Any attempt at cancellation by insurer was improper in that no additional premium was owed -- Insurer was required by statute to provide premium discount if vehicle was equipped with ABS, it is uncontroverted that vehicle was equipped with ABS, and there is no requirement in the statute that insured provide written proof of ABS

8 Fla. L. Weekly Supp. 731a

Insurance -- Personal injury protection -- Attorneys -- Disqualification -- Attorney who was involved in discussions of specific facts and issues of insured's PIP case during prior affiliation as counsel for insurer was disqualified from representing insured in her PIP case -- Although attorney testified that he does not remember discussing the particulars of insured's case and was not involved in case before terminating his employment with insurer, actual violation of ethics rules is not prerequisite to granting motion to disqualify to avoid the appearance of impropriety

8 Fla. L. Weekly Supp. 132a

Insurance -- Personal injury protection -- Payment of reduced amount of medical bill based on finding that charged amount exceeded usual, customary and reasonable charges -- Insurer did not breach contract by paying amount it determined to be reasonable for a submitted expense and agreeing to defend and indemnify insured if insured is pursued for any balance resulting from such determination -- Attorney's fees -- Proposal for settlement -- Although rule requires that proposal state whether it includes attorney's fees and whether attorney's fees are part of legal claim, there is no requirement that specific amount attributable to attorney's fees be stated -- Trial court correctly granted insurer's motion for attorney's fees based upon insured's rejection of proposal for settlement

8 Fla. L. Weekly Supp. 251c

Insurance -- Attorney's fees -- Plaintiffs having prevailed by reason of confession of judgment or settlement, in case involving cancellation of plaintiffs' insurance coverage, are entitled to recover reasonable attorney's fees and costs -- Factors considered in determining the hourly rates and contingency risk multiplier are contingency fee agreement between parties, number of hours reasonably spent, complexity of case and possibility of recovery, and level of experience of expert witnesses -- Hours -- Number of hours reasonably spent included pre-suit hours spent preparing the case, hours spent dealing with criminal aspect of plaintiffs' problem, and hours spent on preparing bad faith claim -- In considering the reasonableness of hours spent by plaintiffs' counsel, court considered the number of hours spent by defense counsel which included about 25 percent more hours for less work

8 Fla. L. Weekly Supp. 596b

Attorney's fees -- Insurance -- Personal injury protection -- Trial court correctly denied insureds' motions for attorney's fees where insureds did not plead specific statute which would entitle them to fees as insureds suing their insurer, and insurer did not acquiesce, recognize, or otherwise fail to object to insureds' failure to correctly plead their entitlement to fees

Certiorari granted; remanded for award of fees at 27 Fla. L. Weekly D1672c

8 Fla. L. Weekly Supp. 275a

Insurance -- Personal injury protection -- Attorney's fees -- Proposal for settlement -- Where insured rejected proposal for settlement made pursuant to section 768.79, and jury returned verdict in favor of insurer, finding that medical treatment at issue was not reasonable, medically necessary, or related to injuries sustained in automobile accident, insurer was entitled to award of attorney's fees -- Statute applies to PIP actions

8 Fla. L. Weekly Supp. 134a

Insurance -- Personal injury protection -- Attorney's fees -- Proposal for settlement -- Where insured rejected proposal for settlement made pursuant to section 768.79, and jury returned verdict in favor of insurer, finding that medical treatment at issue was not related to injuries sustained in automobile accident, insurer was entitled to award of attorney's fees -- Statute applies to PIP actions

8 Fla. L. Weekly Supp. 224a

Insurance -- Attorney's fees -- Insurer not entitled to prevailing party attorney's fees inasmuch as Florida Supreme Court held section 627.736(5) unconstitutional

8 Fla. L. Weekly Supp. 391b

Insurance -- Personal injury protection -- Attorney's fees -- Insurer entitled to recover reasonable attorney's fees from insured where insured's counsel knew, or should have known, of existence of valid assignment of insured's right to collect PIP benefits from insurer when it prepared affidavit for insured's signature in an attempt to defeat insurer's summary judgment motion based on insured's lack of standing

8 Fla. L. Weekly Supp. 245a

Small claims -- Insurance -- Personal injury protection -- Offer of settlement -- Motion to strike proposal for settlement granted -- Offer of judgment statute does not apply in PIP case filed under Small Claims Rules -- In a PIP governed by Small Claims Rules, which specifically exclude Rule of Civil Procedure 1.442, U.S. Security Ins. Co. v. Cahuasqui, a case filed in county civil court under Rules of Civil Procedure which held that offer of judgment statute applies to PIP cases, does not apply where there is no court order or stipulation of parties adopting Rules of Civil Procedure

8 Fla. L. Weekly Supp. 405a

Insurance -- Personal injury protection -- Attorney's fees -- Offer of judgment -- Insured who rejected insurer's initial offer of judgment for certain amount exclusive of fees and costs, and who ultimately accepted an offer in a lesser amount awarded attorney's fees and costs incurred up to date of initial offer

8 Fla. L. Weekly Supp. 454c

Attorney's fees -- Offer of judgment -- Insurance -- Personal injury protection -- Applicability of statute to PIP actions -- Stay of action based on supreme court's acceptance of jurisdiction in related case

8 Fla. L. Weekly Supp. 394c

Insurance -- Personal injury protection -- Attorney's fees -- Health care provider entitled to attorney's fees and costs as to its complaint seeking declaration that insurer is required, on presuit request from health care provider, to provide provider with current PIP payout sheet/log so that provider may know its relative status with regard to policy deductible -- Insurer's conduct in belatedly furnishing payout sheet post-suit, after refusing to honor presuit request for document, amounts to confession of judgment -- Even if insurer had not conceded its position, health care providers is entitled to declaratory relief on merits

8 Fla. L. Weekly Supp. 391a

Insurance -- Personal injury protection -- Settlement -- Where plaintiff's counsel settled claim for PIP benefits with insurer's adjuster, insurer sent plaintiff's counsel correspondence indicating that insurer was demanding that release be executed as part of settlement agreement, plaintiff's counsel faxed insurer correspondence requesting that settlement drafts be timely tendered and stating that release would not be executed as settlement agreement did not encompass a release, and insurer did not timely tender settlement drafts to plaintiff's counsel, insurer owes penalty interest of 12% from date of settlement to date insurer tenders settlement drafts to plaintiff's counsel -- Section 627.4265, Florida Statutes, clearly requires 12% interest on settlement proceeds if insurer does not tender settlement amounts within 20 days of written settlement -- Attorney's fees -- Plaintiff's counsel entitled to reasonable attorney's fees for preparation of motion to enforce settlement and motion for sanctions and for attendance at hearing

8 Fla. L. Weekly Supp. 731b

Attorney's fees -- Justiciable issues -- Insurance -- Personal injury protection -- Voluntary dismissal -- Record does not support finding that plaintiff's counsel continued to prosecute meritless suit on behalf of medical provider whose owner was arrested for insurance fraud during pendency of suit -- There was ample merit to warrant filing of suit and maintenance of prosecution up to and including the time of voluntary dismissal, regardless of provider's arrest or other irrelevant factors

8 Fla. L. Weekly Supp. 745a

Insurance -- Personal injury protection -- Attorney's fees -- Plaintiff is entitled to recover attorney's fees and costs from insurer which settled during suit -- Insurer's claim that it had no notice of plaintiff's claim prior to lawsuit is rejected -- Without contingency risk enhancement, plaintiff would have faced substantial difficulties in finding competent counsel in the relevant market -- Multiplier of 2.0 awarded where likelihood of success was even at outset of case

8 Fla. L. Weekly Supp. 592a

Attorney's fees -- Appellate -- Insurance -- Personal injury protection -- Contingency risk multiplier -- Fee hearing held pursuant to section 627.428 is not hearing to litigate the validity or enforceability of contract between insured and insured's attorney, but is a hearing to permit the insured to collect fees for distribution to his or her attorney -- Insurance company is in no position to challenge contract between insured and insured's attorney at this hearing -- Existence of valid contingency fee agreement is just one of the factors to be considered by trial court when it awards a multiplier -- Competent substantial evidence supports trial court's decision to apply contingency risk multiplier -- No error in allowing award of appellate fees for work done on appeal before appellate counsel filed notice of appearance

8 Fla. L. Weekly Supp. 401a

Insurance -- Personal injury protection -- Insured's motion to tax attorney's fees and costs with interest in action against PIP insurer which resulted in recovery of amounts owed to medical provider, interest on late payment to medical provider, lost wages, and interest on overdue lost wage claim -- Motion granted

8 Fla. L. Weekly Supp. 340a

Insurance -- Title insurance -- Attorney's fees -- Error to enter summary judgment in favor of insureds on claim for attorney's fees for period between date insureds notified insurer of claim and date insurer appointed counsel pursuant to insurance policy and for period following appointment of counsel when, at advice of insurer's counsel that there was conflict of interest, insureds sought advice from separate counsel -- Factual issues existed as to date insurer first appointed counsel, whether there was unreasonable delay in appointment of counsel, and whether, under circumstances, insureds were in fact entitled to attorney's fees under policy provisions -- Remand for further proceedings

8 Fla. L. Weekly Supp. 387a

Insurance -- Attorney's fees -- Order awarding fees on complaint alleging PIP and med pay issues where insurer eventually capitulated and confessed judgment by exhausting med pay coverage by paying portion of bills almost two years after they were incurred

8 Fla. L. Weekly Supp. 731b

Attorney's fees -- Justiciable issues -- Insurance -- Personal injury protection -- Voluntary dismissal -- Record does not support finding that plaintiff's counsel continued to prosecute meritless suit on behalf of medical provider whose owner was arrested for insurance fraud during pendency of suit -- There was ample merit to warrant filing of suit and maintenance of prosecution up to and including the time of voluntary dismissal, regardless of provider's arrest or other irrelevant factors

8 Fla. L. Weekly Supp. 795a

Insurance -- Attorney's fees -- Contingency risk multiplier of 2.0 is appropriate where likelihood of plaintiff's success at outset of case was unlikely, insurer filed eight affirmative defenses, and plaintiff's counsel recovered the maximum amount possible for his client

8 Fla. L. Weekly Supp. 419a

Attorney's fees -- Insurance -- Where insured's initial complaint against insurer was dismissed for failure to prosecute, insured filed second complaint through same counsel, and insurer settled second case, error to award insured attorney's fees and costs for first litigation -- Where first case was dismissed for failure to prosecute, there was no adjudication on the merits and no prevailing party for purposes of section 627.428(1), and awarding fees as to that case was an abuse of discretion -- Following involuntary dismissal of initial action, trial court in subsequent action is without authority to award costs in initial action -- Abuse of discretion to award attorney's fees as to dismissed case when insured's attorneys could not properly bill insured for those hours

8 Fla. L. Weekly Supp. 462a

Attorney's fees -- Insurance -- Lodestar amount calculated at $185 per hour for 35 hours -- Where fee agreement provided that client would pay partial fixed fee of $1.00 per hour and the remainder of attorney's fee was contingent upon obtaining a court-awarded fee, court can apply contingency risk multiplier only to portion of lodestar amount that was contingent -- Application of a multiplier of 1.10 is appropriate -- Time spent litigating the amount of fee is not compensable despite claim that under fee agreement client had a direct, personal pecuniary interest in litigation of the amount of the fee -- Costs, including fee for expert fee witness, awarded -- Pre-judgment interest awarded

8 Fla. L. Weekly Supp. 456a

Attorney's fees -- Lodestar -- Reasonable hourly rate -- Hours reasonably expended -- By agreement of parties no contingency risk multiplier to be applied -- Interest on attorney's fee award accrues from date that entitlement to attorney's fees was established -- Expert, who was required to take time away from his practice and was necessary to render opinion relating to reasonable number of hours and hourly rate and applicability of contingency fee multiplier, and by agreement, is entitled to expert witness fee

8 Fla. L. Weekly Supp. 799c

Insurance -- Personal injury protection -- Assignment of benefits -- Assignment of PIP benefits to medical provider was valid notwithstanding that insured remained liable for balance of medical bills not paid by insurer

8 Fla. L. Weekly Supp. 790b

Insurance -- Personal injury protection -- Assignment -- Medical provider does not have standing to bring suit against insurer under purported assignment of benefits which is incomplete HCFA 1500 form

8 Fla. L. Weekly Supp. 458a

Insurance -- Personal injury protection -- Assignment -- Insured's failure to countersign medical bills does not relieve the insurer from liability for the payment of PIP benefits to medical provider who has accepted assignment of PIP benefits from the insured -- Section 627.736(5), which provides that insurer may pay the medical provider directly when bills are countersigned, does not mean that insurer may not pay medical provider when bills are not countersigned

8 Fla. L. Weekly Supp. 735a

Insurance -- Personal injury protection -- Assignment stating that it does not constitute any consideration for assignee to await payments is not legally sufficient assignment -- Summary judgment granted in favor of insurer in action brought against insurer by medical provider as assignee of insured

8 Fla. L. Weekly Supp. 455a

Insurance -- Personal injury protection -- Action by MRI provider against insurer for payment of assigned PIP benefits -- Indication of assignment on form sent by plaintiff to insurer together with fact that plaintiff sent billing documentation directly to insurer was sufficient to impose a duty on insurer to investigate whether the insured had assigned benefits to plaintiff prior to making payment -- Assignment not invalid due to alleged inconsistency in the taxpayer I.D. numbers provided by plaintiff -- Where plaintiff received valid assignment of benefits from the insured, and insurer knew or should have known about the existence of such assignment, payment of benefits to the insured did not relieve insurer of its obligation to make payment to plaintiff -- Motion for summary judgment in favor of plaintiff granted

8 Fla. L. Weekly Supp. 230c

Insurance -- Personal injury protection -- Error to enter summary judgment on grounds that insured had assigned his PIP benefits to providers and no longer had standing when insurer admitted that no document existed that conclusively showed assignment, but asked the court to infer assignment from circumstances, and insured and providers filed affidavits denying assignment

8 Fla. L. Weekly Supp. 682a

Insurance -- Personal injury protection -- Standing -- Assignment -- Error to enter summary judgment as to issue of standing where insurer claims that plaintiff made complete assignment of benefits and insured insists document she signed was not intended to be assignment -- Necessity for making finding as to whether there was true assignment would preclude summary judgment

8 Fla. L. Weekly Supp. 849c

Insurance -- Personal injury protection -- Assignment -- Evidence and course of conduct reflect intent of parties for benefits to have been assigned -- Insurance company's reliance on assignment is indication that document is actual assignment -- Document that states word assignment in more than one location and contains language authorizing the release of information and instructions to assignee's attorney concerning potential settlement is more than direct payment authorization

8 Fla. L. Weekly Supp. 849b

Insurance -- Personal injury protection -- Assignment -- Evidence and course of conduct reflect intent of parties for benefits to have been assigned -- Insurance company's reliance on assignment is indication that document is actual assignment -- Document that states word assignment in more than one location and contains language authorizing the release of information and instructions to assignee's attorney concerning potential settlement is more than direct payment authorization

8 Fla. L. Weekly Supp. 125a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 8 Fla. L. Weekly Supp. 406a

Insurance -- Personal injury protection -- Assignment of benefits to medical provider not supported by valid consideration where it holds insured personally liable to provider in event provider does not collect from insurer and also makes insured personally liable for interest for any balance owed 45 days after service

8 Fla. L. Weekly Supp. 311b

Insurance -- Personal injury protection -- Assignment -- Insurer's motion to dismiss assignee's complaint to recover PIP benefits for submitted medical bills because the assignment of benefits is not supported by consideration denied -- There is consideration for both the assignee and assignor in assignment of benefits -- Either doctor or medical care provider and patient are forgoing or assuming rights that they would not otherwise have under normal circumstances -- County court decisions cited by insurer to support its arguments are not binding upon court

8 Fla. L. Weekly Supp. 316a

Insurance -- Personal injury protection -- Assignments -- Non-medical provider -- Motion to dismiss cause of action brought by collection agency assignee to recover PIP benefits relating to injuries insured sustained in automobile accident denied -- Collection agency assignee obtained valid assignment from insured and therefore is entitled to all of rights and remedies available to insured under PIP statute, even if assignee is non-medical provider -- To prohibit non-medical provider from recovery would offend purposes of PIP statute, which is to provide prompt payment of benefits to insured after accident

8 Fla. L. Weekly Supp. 817c

Insurance -- Personal injury protection -- Dismissal -- Assignment -- Attachment of assignment of benefits complaint by provider claiming PIP benefits is not required -- However, because section 627.736(5)(a) requires some sort of written instrument for insurer to make direct payments to provider, provider cannot maintain cause of action for nonpayment without written instrument, and instrument must be attached to complaint pursuant to rule 1.130(a) -- Where provider was given opportunity to cure defect, but rather than doing so, asked for and received a dismissal with prejudice, circuit court has no choice but to affirm dismissal

8 Fla. L. Weekly Supp. 648a

Insurance -- Personal injury protection -- Medical provider's allegation of standing by way of assignment of benefits is sufficient to withstand motion to dismiss, notwithstanding fact that provider did not attach assignment -- Motion for summary judgment which is unsupported by any affidavits or depositions, but is based solely on absence of record evidence establishing plaintiff's standing, is denied

8 Fla. L. Weekly Supp. 650a

Insurance -- Personal injury protection -- Assignment -- Plaintiff medical provider has 15 days to amend statement of claim to allege the grounds for assignment of PIP benefits or allege that it is written assignment

8 Fla. L. Weekly Supp. 605a

Insurance -- Personal injury protection -- Assignment -- Standing -- Where medical provider in action for PIP benefits never presented proof of the existence of an assignment, and provider's staff member testified that provider does not take assignments, competent substantial evidence supported trial court's finding that assignment did not exist -- Without an assignment, medical provider lacked standing, and court lacked subject matter jurisdiction -- Civil procedure -- Jurisdiction -- Fact that insurer failed to object or raise issue is irrelevant since subject matter jurisdiction cannot be waived by stipulation or failure to object -- Argument that insurer is precluded from raising issue by entry of judgment lacks merit since subject matter jurisdiction can be questioned at any time -- Judges -- Rendering of decision by successor judge was properly done where successor reviewed a point overlooked by predecessor which rendered judgment erroneous and did not review case on merits

8 Fla. L. Weekly Supp. 502a

Insurance -- Dismissal -- Assignment -- Motion to dismiss complaint on grounds that provider lacked standing was improvidently granted because court went beyond four corners of the complaint to evaluate document not attached to complaint that provider claimed was an assignment of benefits -- Conclusory allegation of assignment of benefits was sufficient to withstand motion to dismiss -- Order granting motion to dismiss and motion for sanctions vacated

8 Fla. L. Weekly Supp. 200d

Insurance -- Personal injury protection -- Delay in payment of benefits -- Interest

8 Fla. L. Weekly Supp. 200c

Insurance -- Personal injury protection -- Delay in payment of benefits -- Interest

8 Fla. L. Weekly Supp. 200b

Insurance -- Personal injury protection -- Assignment -- Motion to dismiss and/or motion for summary judgment denied in action brought by assignee against insurer -- Language of document entitled ``Assignment of Benefits'' acts both as assignment of benefits, and as authorization to pay assignee directly

8 Fla. L. Weekly Supp. 738a

Insurance -- Standing -- Amended complaint against insurer dismissed for lack of standing where attachment to complaint purports to assign benefits under insurance contract to a company other than the plaintiff

8 Fla. L. Weekly Supp. 271a

Insurance -- Personal injury protection -- Arbitration -- Complaint by medical provider for payment of PIP insurance benefits -- Statute which requires mandatory arbitration for all medical provider assignees of PIP benefits and which provides for prevailing party attorney's fees has been held unconstitutional by Florida Supreme Court -- Order compelling arbitration reversed and matter remanded for further proceedings

8 Fla. L. Weekly Supp. 141a

Insurance -- Personal injury protection -- Dispute between medical provider and insurer -- Statute which requires mandatory arbitration for all medical provider assignees has been held unconstitutional by Florida Supreme Court -- Trial court erred in granting insurer's motion to dismiss and compelling parties to proceed to arbitration -- Medical provider, as prevailing party, entitled to costs if it timely files motion with lower tribunal within thirty days of mandate -- Provider's motion for attorney's fees provisionally granted, subject to provider ultimately prevailing in entire action below and subject to trial court's determination that provider is entitled to attorney's fees under section 627.428(1)

8 Fla. L. Weekly Supp. 140a

Insurance -- Personal injury protection -- Dispute between medical provider and insurer -- Statute which requires mandatory arbitration for all medical provider assignees has been held unconstitutional by Florida Supreme Court -- Trial court erred in dismissing complaint and compelling parties to proceed to arbitration -- Medical provider, as prevailing party, entitled to costs if it timely files motion with lower tribunal within thirty days of mandate -- Provider's motion for attorney's fees provisionally granted, subject to provider ultimately prevailing in entire action below and subject to trial court's determination that provider is entitled to attorney's fees under section 627.428(1)

8 Fla. L. Weekly Supp. 139b

Insurance -- Personal injury protection -- Dispute between medical provider and insurer -- Statute which requires mandatory arbitration for all medical provider assignees has been held unconstitutional by Florida Supreme Court -- Trial court erred in dismissing first amended complaint and compelling parties to proceed to arbitration -- Medical provider, as prevailing party, entitled to costs if it timely files motion with lower tribunal within thirty days of mandate -- Provider's motion for attorney's fees provisionally granted, subject to provider ultimately prevailing in entire action below and subject to trial court's determination that provider is entitled to attorney's fees under section 627.428(1)

8 Fla. L. Weekly Supp. 135a

Insurance -- Personal injury protection -- Dispute between medical provider and insurer -- Statute which requires mandatory arbitration for all medical provider assignees has been held unconstitutional by Florida Supreme Court -- Error to enter order staying litigation and compelling parties to proceed to arbitration -- Medical provider, as prevailing party, entitled to costs if it timely files motion with lower tribunal within thirty days of mandate -- Provider's motion for attorney's fees provisionally granted, subject to provider ultimately prevailing in entire action below and subject to trial court's determination that provider is entitled to attorney's fees under section 627.428(1)

8 Fla. L. Weekly Supp. 12a

Insurance -- Personal injury protection -- Arbitration -- Statute providing for mandatory arbitration of disputes between insurer and medical services provider to whom PIP benefits have been assigned and providing for prevailing party attorney's fees has been held unconstitutional by Florida Supreme Court -- Order compelling arbitration reversed, and matter remanded for further proceedings -- Provider's motion for attorney's fees provisionally granted

8 Fla. L. Weekly Supp. 330a

Insurance -- Personal injury protection -- Arbitration -- Trial court correctly denied motion to dismiss and compel arbitration under contractual arbitration clause which was clearly based on unconstitutional statutory provision

8 Fla. L. Weekly Supp. 40a

Insurance -- Homeowners -- Insured contending that damage to home is attributable to blasting in neighboring vicinity or other causes falling within coverage afforded under all risk policy -- Motion to compel appraisal as to cause of loss is denied, as cause of loss is not issue subject to appraisal -- Motion to compel appraisal as to amount of loss is granted

8 Fla. L. Weekly Supp. 474a

Insurance -- Misrepresentations on application -- Claim that insurer accepted premiums with actual or constructive knowledge of prior motor vehicle accidents that insured failed to disclose in application for insurance and cannot now seek to escape liability on basis of same facts it knew or should have known when it issued policy -- Insurer is entitled to rely on representations of insured in insurance application without checking all of its files to determine if insured is committing a fraud, even where the fact or condition falsely represented by the insured is easily discernible by the insurer -- Summary judgment in favor of insurer affirmed

8 Fla. L. Weekly Supp. 121a

Insurance -- Automobile -- Insured's action for personal injury protection benefits and lost wages brought against insurer which refused to make payment on ground that insured made material misrepresentation in application by failing to list other resident of household -- Summary judgment inappropriate where discovery is still not complete and it has not been established that there exists a ``complete absence of genuine triable issues of material fact'' -- Insurer's motion for summary judgment denied

Additional ruling in this case at 9 Fla. L. Weekly Supp. 57c

8 Fla. L. Weekly Supp. 112a

Insurance -- Automobile -- Insurer's motion for summary judgment on ground that policy was void ab initio because of material misrepresentations on policy application granted -- Omission of name of member of household over age fourteen residing in insured's home was material misrepresentation -- Insurer did not contract away its right to void policy for material misrepresentation -- Application not ambiguous

8 Fla. L. Weekly Supp. 762b

Insurance -- Personal injury protection -- Rescission of policy -- Material misrepresentations on application -- Action for PIP benefits, brought by passenger in insured's vehicle -- Record contains substantial competent evidence to support summary judgment in favor of plaintiff who argued that requirement that insured list ``all operators of the vehicles listed above and all persons whom have reached the age of 15 and reside with the named insured'' only required insured to list persons who were household residents over the age of 15 and operators of the vehicle

8 Fla. L. Weekly Supp. 275b

Insurance -- Homeowners -- Actual cash value -- Appeal of partial summary judgment that term ``actual cash value'' includes general contractor overhead and profit -- Where homeowners elected to recover under actual cash value provision of policy rather than repair or replacement cost, the meaning of ``actual cash value'' under the Actual Repair Rule, which provides that insurer's liability for repair or replacement cost does not arise until after repair or replacement has been completed, was inapplicable since repairs did not need to be made in order to recover under ACV provision -- While ACV means fair market value, term is ambiguous concerning whether it includes or excludes contractor's profit and overhead -- Ambiguous exclusionary provision construed in favor of insured -- Partial summary judgment affirmed -- Attorney's fees -- Homeowners' motion for attorney's fees provisionally granted, subject to their ultimately prevailing in underlying litigation