Volume 9

9 Fla. L. Weekly Supp. 749b

Insurance -- Uninsured motorist -- Presumption of negligence attributed to decedent driver who lost control and collided with a vehicle in oncoming traffic on interstate highway when phantom unidentified vehicle, which decedent was tailgating at 70 mph in a moderate to hard rainstorm and which had previously stopped in the roadway more than once, began to slow and stop again is not overcome -- If inclement weather alone did not place decedent on notice that traffic could abruptly slow or stop, fact that phantom vehicle had stopped on a number of occasions prior to accident placed decedent on notice that sudden stops could reasonably be expected -- Insurer's motion for summary judgment granted

9 Fla. L. Weekly Supp. 362a

Torts -- Insurance -- Jury instructions -- No error in not giving concurrent cause instruction where plaintiff did not plead or prove that pre-existing condition of his dental bridge led to damages he suffered but, rather, maintained that his bridge was in good condition prior to the accident -- It was within purview of trial court to determine whether insurer's violation of pre-trial order by making comments concerning settlement offers warranted a mistrial -- Trial court correctly denied request for directed verdict where there were issues of fact for the jury to consider due to conflicting testimony

9 Fla. L. Weekly Supp. 278b

Insurance -- Civil procedure -- Error to dismiss action for failure to perfect service where service, albeit invalid, was perfected prior to lapse of 120-day period and subsequent 60-day extension

9 Fla. L. Weekly Supp. 851d

Insurance -- Automobile -- Rescission of policy -- Material misrepresentations on application -- Where evidence establishes that insurer would not have issued policy to insured at same premium if residence of insured's daughter within household had been disclosed on application, insurer did not err in declaring policy void ab initio, denying coverage thereunder, and returning all premium payments to insured -- Final summary judgment granted in favor of insurer

9 Fla. L. Weekly Supp. 535a

Insurance -- Windstorm -- Rates -- Arbitration -- Constitutionality -- Delegation of insurance rate determinations to arbitration panels is not unconstitutional -- Separation of powers -- Where arbitrators are not members of judicial or executive branches, their activities do not constitute an encroachment on legislative powers by another branch -- Due process -- Challenged statutes do not deprive plaintiffs of due process of law where the procedures for premium rate determinations, including provision for arbitration as an alternative to Chapter 120 proceedings, are rationally related to assisting the economic viability of property insurers, and plaintiffs have not shown that they have a constitutionally protected right which overrides compelling state interest in maintaining viable and orderly private sector market for property insurance in state -- No merit to claim that statute provides statutory due process by requiring a hearing if a rate filing based on computer data exceeds 25% where Florida Windstorm Underwriting Association held hearings during development of the filing, meetings of the actuarial committee were publicly noticed, and arbitration hearing was open to public -- Fact that Association's plan of operation provides that association's rates shall be those approved by the Department of Insurance does not render statute providing for arbitration invalid where section 627.062(6)(a) states that department and insurer must treat arbitrator's decision as final and, therefore, arbitration resulted in department approval as matter of law -- Summary judgment granted in favor of defendants

9 Fla. L. Weekly Supp. 53a

Small claims rules -- Proposal for settlement stricken where action has been brought under small claims rules, and neither party has moved to invoke rules of civil procedure

9 Fla. L. Weekly Supp. 52a

Small claims rules -- Proposal for settlement stricken where action has been brought under small claims rules, and neither party has moved to invoke rules of civil procedure

9 Fla. L. Weekly Supp. 367a

Insurance -- Standing -- Plaintiff, which refers and schedules patients for diagnostic testing, lacks standing to challenge reductions to bills submitted by medical provider

9 Fla. L. Weekly Supp. 324a

Insurance -- Personal injury protection -- Contracts -- Because each of insurer's denials or reductions of claimed PIP benefits constitutes breach of contract which gives rise to separate cause of action, which insured can choose to bring at any time within applicable statute of limitations, insured's failure in contract action to bring any claims or causes of action or potential causes of action arising after date of filing of lawsuit does not constitute improper splitting of a cause of action -- Any claims, causes of action or potential causes of action arising after filing of suit are irrelevant to any issues in suit, particularly issue of whether treatment sought by insured prior to filing suit was medically necessary -- Evidence limited accordingly

9 Fla. L. Weekly Supp. 127c

Insurance -- Personal injury protection -- Settlement -- Motion to vacate settlement based on unilateral mistake of insurer in including provision for payment of attorney's fees and costs is denied despite lack of detrimental reliance where mistake resulted from inexcusable lack of due care

9 Fla. L. Weekly Supp. 626b

Insurance -- Personal injury protection -- Application -- Misrepresentation -- Insurer is estopped from asserting affirmative defense that policy was void ab initio based upon alleged material misrepresentation by insured failing to list other household members on application where insurer continued to collect and retained insurance premiums from insured -- Further, there is no evidence that any misrepresentation was material where there is no evidence that had insurer known the alleged true facts it would not have issued policy at same rate or in as large an amount, or would not have covered the hazard that resulted in the loss -- Affirmative defense stricken with prejudice

9 Fla. L. Weekly Supp. 853a

Insurance -- Personal injury protection -- Pleadings -- Affirmative defenses that include allegation that diagnostic tests performed were not medically necessary; demand for attorney's fees under statute which forbids medical providers from ordering, procuring, providing or administering unnecessary diagnostic tests; and allegation that insurer determined from independent medical examination that insured had reached maximum medical improvement and no further chiropractic treatment was required are stricken because they are not avoidances of an otherwise valid claim but denials of medical provider's claim

9 Fla. L. Weekly Supp. 410b

Insurance -- Personal injury protection -- Medical expenses -- Despite absence of insured's countersignature on medical bills attached to HCFA Form 1500, insurer was required to pay bills for reasonable and necessary services related to automobile accident

Affirmed at 12 Fla. L. Weekly Supp. 218b
Jurisdiction declined by District Court of Appeal at 28 Fla. L. Weekly D2274a

9 Fla. L. Weekly Supp. 397b

Insurance -- Personal injury protection -- Medical expenses -- Section 627.736(5)(a) and (d) do not require the HCFA form to be countersigned by the insured if the medical provider has accepted an assignment of benefits

9 Fla. L. Weekly Supp. 397a

Insurance -- Personal injury protection -- Medical expenses -- Where there was a valid assignment of benefits, insured was required to pay benefits directly to medical provider despite fact that bills were not countersigned by insured but, rather, were marked ``signature on file'' Defendant.

9 Fla. L. Weekly Supp. 111b

Insurance -- Personal injury protection -- Medical benefits -- Transportation costs -- Class action alleging that payment for transportation costs at rate of 34.5 cents per mile violated Florida's PIP statute and breached contract, and seeking declaratory relief determining that section 627.736 does not permit insurer to pay for automobile usage mileage at its set rate -- Reimbursement of 34.5 cents per mile for the cost of transportation associated with medical treatment under section 627.736(1)(a) is reasonable as a matter of law -- Court does not have primary jurisdiction as matter is better determined by Department of Insurance -- Claim is inappropriate for class action treatment where adjudication would require court to consider individual facts surrounding PIP claims of thousands of policyholders, as well as insurer's defenses to each of those claims -- Complaint dismissed with prejudice

District Court affirmed at 28 Fla. L. Weekly D1239a. HOWEVER,
District court opinion was QUASHED at 30 Fla. L. Weekly S145a and 30 Fla. L. Weekly S172d

9 Fla. L. Weekly Supp. 867a

Insurance -- Personal injury protection -- Independent medical examination -- Insurer which has knowledge that insured is represented by counsel has an obligation to notify counsel of scheduling of IME

9 Fla. L. Weekly Supp. 817b

Insurance -- Personal injury protection -- Summary judgment -- Due process -- No error in granting insured's renewed motion for summary judgment at hearing on set trial date which was continuance of properly noticed pretrial conference -- Independent medical examination -- Location -- MRI is treatment within meaning of section 627.736(7)(a), which allows IMEs to be conducted where insured resides or receives treatment -- Trial court erred in finding that IMEs could not be conducted in locale where insured had previously received MRI -- No error in denying summary judgment on insurer's affirmative defense that insured unreasonably refused to submit to two properly scheduled IMEs where insured's claim that she was not notified of IMEs by her counsel and evidence that insured's counsel did not have her correct address or telephone number raised issues of material fact

9 Fla. L. Weekly Supp. 721a

Insurance -- Personal injury protection -- Motion in limine is partially granted, prohibiting insurer from making any mention or question regarding fault related to the accident, whether type of impact would produce injury claimed, anything suspicious about the accident, any comment made by anyone at accident scene during accident investigation, whether insured is dishonest and committing insurance fraud, motivation for insured seeking treatment, insured's financial status, other claims insured has made, effect of suit on insurance rates, opinion as to validity of claim, observations of insured after the accident suggesting a lack of injury, suggestion that physician hired by insurer is ``court-appointed'' or independent, possibility of insured obtaining settlements against others, whether this type of case is cause for court backlog, or attorney's fees and statutory entitlement to fees

9 Fla. L. Weekly Supp. 415a

Insurance -- Personal injury protection -- Dispute between medical provider and insurer -- Insurer that sold non-PPO policy to insured was not prohibited by section 627.736(10) from agreeing directly or indirectly with medical provider for rate below reasonable and normal rate where insured was not limited in choice of provider

9 Fla. L. Weekly Supp. 196c

Insurance -- Personal injury protection -- Dispute between medical provider and insurer -- Section 627.736 does not specifically require medical provider to countersign HCFA form or include its credentials or degrees on HCFA form -- Medical provider granted summary judgment with prejudice on affirmative defense that provider failed to comply with proof section of statute by failing to countersign HCFA form and include credentials or degrees on form -- Medical provider granted summary judgment without prejudice on affirmative defense that bill for radiology services did not have enclosed with it a report to substantiate charges where insurer failed to allege sufficient ultimate facts to support defense -- Medical provider granted summary judgment without prejudice on affirmative defense that medical bills were not timely submitted to insurer for payment where insurer failed to allege with sufficient particularity which bill was untimely filed -- Affirmative defense that there is a deductible is not a valid or appropriate affirmative defense under Florida law -- Affirmative defense that there are no justiciable issues of law or fact and insurer is entitled to sanctions under section 57.105 is not a valid or appropriate affirmative defense under Florida law

9 Fla. L. Weekly Supp. 489b

Insurance -- Personal injury protection -- Action by insured against PIP insurer -- Where insured erroneously requested payment for medical bills related to automobile accident from health insurance provider, bills were paid by health insurance provider, insured's attorney represented to insured's PIP insurer that insured had entered into a settlement agreement with health insurance provider for payment of a reduced amount as full and final satisfaction of health insurance provider's lien, PIP insurer relied on attorney's representation in tendering reduced amount to health insurance provider, and PIP insurer had a detrimental change in position caused by that representation in that it satisfied the lien as represented by the insured and did not tender payment in full or otherwise attempt to negotiate lien to a lesser amount, summary judgment is granted in favor of PIP insurer

9 Fla. L. Weekly Supp. 323b

Insurance -- Personal injury protection -- Dispute between medical provider and insurer -- Where insurer denied medical provider's presuit request for a copy of PIP log, which provider sought to verify insurer's claim that provider's bill was applied to insured's deductible, provider properly sought declaratory relief on issue of whether insurer was required to provide log -- Motion to dismiss because suit was moot after log was provided during discovery is denied -- Jurisdiction to award attorney's fees to medical provider reserved

9 Fla. L. Weekly Supp. 866a

Insurance -- Personal injury protection -- Chiropractic care after the date of the independent medical examination is found to be necessary where treating physician testified that care might not cure insured's cervical injury but condition would worsen without care, and that all care was in accordance with accepted standards of practice and clinically appropriate, and IME physician agreed with treating physician's diagnoses and treatment rendered up to date of examination, concluded that further treatment did not appear necessary on date of examination but may be appropriate if insured experienced “flare-ups,” and had no opinion as to whether insured had actually experienced “flare-ups”

9 Fla. L. Weekly Supp. 714a

Insurance -- Personal injury protection -- Coverage -- Passenger -- Insurer has burden of proving that passenger is not covered under driver's PIP policy because passenger owned a vehicle at the time of the accident -- Where the only evidence presented by insurer that passenger owned a motor vehicle operated on the roads of this state is application for registration of vehicle sold by passenger for salvage value prior to accident, there is no competent evidence that passenger possessed a vehicle at the time of the accident, much less maintained an operable vehicle at that time

9 Fla. L. Weekly Supp. 862a

Insurance -- Personal injury protection -- Coverage -- Unregistered medical providers -- Mobile diagnostic facility -- Section 456.0375 definition of clinic subject to registration requirement as a business operating in a single structure or facility at which health care services are provided must be read together with failure to include mobile diagnostic facilities in thirty exemptions, which indicates that no exception for moving or traveling facilities was intended by legislature -- Department of Health's interpretation of statute as requiring registration of mobile facilities is consistent with plain meaning of statute and is entitled to considerable weight -- Because mobile diagnostic facility was not registered, treatment rendered was not lawful, and insurer was not obligated to pay bills -- Summary judgment granted in favor of insurer -- Questions certified: Is a mobile diagnostic health care facility such as Diagnostic Services of South Florida required to be registered with the Department of Health pursuant to Section 456.0375, Florida Statutes, and, if “yes,” is an automobile insurance carrier relieved of its obligation to pay for such services if such services were rendered when the mobile diagnostic facility was not so registered?

9 Fla. L. Weekly Supp. 858a

Insurance -- Personal injury protection -- Coverage -- Unregistered medical providers -- Mobile diagnostic facility is subject to registration requirement of section 456.0375 because it is a clinic within meaning of statute and is not exempted by statutory exclusions -- Department of Health's interpretation of statute as requiring registration of mobile facilities is logical interpretation of statute which cannot be avoided -- Because mobile diagnostic facility was not registered as required, it cannot recover on claims against insurer -- Summary judgment granted in favor of insurer

9 Fla. L. Weekly Supp. 855a

Insurance -- Personal injury protection -- Coverage -- Unregistered medical providers -- Mobile diagnostic facility -- Registration requirement of section 456.0375 is inapplicable to mobile diagnostic providers, regardless of the absence of a specific exclusion for mobile providers, because mobile providers fall within class of medical providers not included in already broad definition of “clinic” as a business operating in a single facility or structure -- Insurer's reliance on Department of Health's interpretation of statute as requiring registration of mobile facilities is unavailing where interpretation is unfounded and in direct conflict with plain meaning of statute -- Questions certified: (1) Is a mobile diagnostic health care facility which only conducts diagnostic testing at clinics registered with the Florida Department of Health and at the request and direction of the on staff treating physicians of those facilities required to be registered with the Department of Health pursuant to Section 456.0375, Florida Statutes, and, (2) If the answer to No. (1) above, is “yes,” is an automobile insurance carrier relieved of its obligation to pay for such services if such services were rendered when the mobile diagnostic facility was not so registered? -- Summary judgment granted in favor of medical provider

9 Fla. L. Weekly Supp. 131c

Insurance -- Dispute between medical provider and insurer -- Standing -- Assignment -- Patient information form is not legally sufficient assignment -- Insurer's motions for summary judgment and to strike attorney's fees claim granted

9 Fla. L. Weekly Supp. 131b

Insurance -- Personal injury protection -- Standing -- Plaintiff which did 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'' is not entitled to payment for MRI services from insurer or insured

9 Fla. L. Weekly Supp. 131a

Insurance -- Personal injury protection -- Standing -- Plaintiff which did 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'' is not entitled to payment for MRI services from insurer or insured

9 Fla. L. Weekly Supp. 130b

Insurance -- Personal injury protection -- Plaintiff is not entitled to recover PIP benefits for magnetic resonance imaging services allegedly provided to insured, where MRIs were administered by plaintiff's independent contractor, and it is undisputed that plaintiff did not render treatment to insured

9 Fla. L. Weekly Supp. 723b

Insurance -- Personal injury protection -- Preferred provider rates -- Section 627.736(10) provides the exclusive means by which an insurer can contract to pay PPO rates on Florida PIP claims -- Assignee's motion for partial summary judgment granted as to affirmative defenses based on alleged PPO contract where there is no evidence that insurer strictly complied with statute

9 Fla. L. Weekly Supp. 871a

Insurance -- Personal injury protection -- Preferred provider rates -- Motion for partial summary judgment as to whether insurer can enter into PPO business relationships is denied where ruling on motion would be tantamount to an advisory opinion

9 Fla. L. Weekly Supp. 867c

Insurance -- Personal injury protection -- Preferred provider rates -- Insurer may not reduce fees payable to medical provider because provider entered into contract with PPO organization to accept reduced rates payable under PPO policy where medical provider is assignee of insured, and insured did not have a PPO policy -- Question certified: May an insurance company reduce fees payable to a doctor for medical care because the treating physician entered into a contract with a PPO organization to accept the reduced fees payable under a PPO policy, even though the patient treated did not have a PPO policy and the physician took an assignment of the insured's rights under the policy in return for treatment?

9 Fla. L. Weekly Supp. 629b

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

9 Fla. L. Weekly Supp. 779a

Insurance -- Personal injury protection -- Preferred provider rates -- Section 627.736(10) provides the exclusive means by which an insurer can contract to pay PPO rates on Florida PIP claims -- Assignee's motion for partial summary judgment granted as to affirmative defenses based on alleged PPO contract where insurer failed to enter into contract directly with assignee, failed to provide an option to insured to use a PPO policy, and failed to provide insured with a current roster of preferred providers in the county where she resided at the time of purchase of the PIP policy

9 Fla. L. Weekly Supp. 775a

Insurance -- Personal injury protection -- Preferred provider rates -- Section 627.736(10) provides the exclusive means by which an insurer can contract to pay PPO rates on Florida PIP claims -- Assignee's motion for partial summary judgment granted as to affirmative defenses based on alleged PPO contract where insurer failed to enter into contract directly with assignee, failed to provide an option to insured to use a PPO policy, and failed to provide insured with a current roster of preferred providers in the county where she resided at the time of purchase of the PIP policy

9 Fla. L. Weekly Supp. 773a

Insurance -- Personal injury protection -- Insurer was not entitled to utilize contractual agreement with third party to determine reasonable and necessary charges without offering, and insured electing, a PPO policy or endorsement

9 Fla. L. Weekly Supp. 771a

Insurance -- Personal injury protection -- Insurer was not entitled to utilize contractual rate agreement with third party to determine reasonable and necessary charges without offering, and insured electing, a PPO policy or endorsement

9 Fla. L. Weekly Supp. 772a

Insurance -- Personal injury protection -- Preferred provider rates -- Section 627.736(10) provides the exclusive means by which an insurer can contract to pay PPO rates on Florida PIP claims -- Assignee's motion for partial summary judgment granted as to affirmative defenses based on alleged PPO contract where insurer failed to enter into contract directly with assignee, failed to provide an option to insured to use a PPO policy, and failed to provide insured with a current roster of preferred providers in the county where he resided at the time of purchase of the PIP policy

9 Fla. L. Weekly Supp. 64b

Insurance -- Personal injury protection -- Preferred provider rates -- Insurer which never offered a PPO policy may not take contractually negotiated provider reductions for medical services rendered to a person injured in a motor vehicle collision pursuant to section 627.736, Florida Statutes

9 Fla. L. Weekly Supp. 64a

Insurance -- Personal injury protection -- Preferred provider rates -- Provisions of section 627.736(10) provide the exclusive means by which an insurer can pay PPO rates on Florida PIP coverage -- Insurer that failed to negotiate and enter into contracts directly with licensed health care providers, failed to offer both a PPO and a Non-PPO policy at the time the insured purchased policy, and failed to offer the insured the election to have a PPO endorsement in her policy failed to meet requirements of statute -- Alternatively, no PPO contract exists between plaintiff health care provider and purported PPO network administrator

9 Fla. L. Weekly Supp. 63g

Insurance -- Personal injury protection -- Preferred provider rates -- Insurer is not entitled to reduce benefits paid to insured's assignee to PPO rates without having sold a PPO-PIP policy to insured and/or without complying with section 627.736(10), Florida Statutes

9 Fla. L. Weekly Supp. 63a

Insurance -- Personal injury protection -- Preferred provider rates -- Insurer is not entitled to reduce benefits paid to insured's assignee to PPO rates without having sold a PPO-PIP policy to insured and/or without complying with section 627.736(10), Florida Statutes

9 Fla. L. Weekly Supp. 558a

Insurance -- Personal injury protection -- Summary judgment granted in favor of medical provider where insurer's sole basis for reducing CPT code charge was the recommendation of results of Medicode computer generated report

9 Fla. L. Weekly Supp. 395a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Physical therapy -- Medical treatments of hot and/or cold packs, unattended electrical stimulation, ultrasound, and massages may lawfully be rendered by a medical assistant under the supervision of a treating physician, and the law does not require that only a licensed physical therapist perform these treatments

9 Fla. L. Weekly Supp. 706b

Insurance -- Personal injury protection -- Medical bills -- Summary judgment is granted in favor of insurer on medical provider's claim for unpaid portion of bill for MRI performed on July 25, 2001, where insurer paid 200% of Medicare Part B for year 2001 at participating rate, and amendment to section 627.736(5)(b)5 mandates that all MRIs performed on or after June 19, 2001, shall be payable in accordance with allowable amounts of Medicare Part B for 2001

9 Fla. L. Weekly Supp. 871b

Insurance -- Personal injury protection -- Section 627.736(5)(a) does not require insured to countersign legally assigned invoice, bill or health insurance claim form as condition precedent to insurer paying claim

9 Fla. L. Weekly Supp. 809a

Insurance -- Personal injury protection -- Coverage -- Lost wages -- No error in awarding insured 60% of lost wages not covered by workers' compensation payment of 66 2/3% of lost wages, up to the $10,000 policy limit of liability

9 Fla. L. Weekly Supp. 60a

Insurance -- Personal injury protection -- Where medical provider erroneously submitted bill for service to insurance company that was not proper insurer for claim and subsequently submitted bill to proper insurer more than thirty days after services were rendered, claim was mailed untimely and insurer is not required to pay bill

9 Fla. L. Weekly Supp. 877b

Insurance -- Personal injury protection -- Coverage -- Exhaustion of benefits -- Insurer had right to pay later-submitted bills during thirty-day period that it was allowed to pay or investigate assignee's bill and was not obligated to pay the assignee's bill once policy limits were exhausted by payment of those subsequent bills during the thirty-day period

9 Fla. L. Weekly Supp. 706a

Insurance -- Personal injury protection -- Where there is no evidence that assignee accepted reduced payments under protest with notice to insurer of intent to seek full amount of bills, and after policy limits were exhausted assignee filed suit seeking to recover difference between amount billed and amount paid out, summary judgment is granted in favor of insurer

9 Fla. L. Weekly Supp. 581e

Insurance -- Personal injury protection -- Medical provider to whom insured assigned rights against insurer had no further interest in insurance contract once PIP benefits were exhausted -- Priority of payment -- Assignee's claim had priority over insured's wage claims where assigned claim was submitted first -- Insurer's partial payment of what it deemed to be a reasonable amount of assignee's claim satisfied priority of payment requirement -- Where assignee did not request insurer to escrow unpaid amount in dispute, insurer was obligated under its contractual duties to the insured to continue paying other applicable claims, although that exhausted available benefits -- Insurer was not required to obtain medical report as prerequisite to contesting reasonableness of bills submitted by provider -- No error in entering final summary judgment for insurer

9 Fla. L. Weekly Supp. 392a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Diagnostic range of motion testing is compensable medical service or treatment under Florida No-Fault statute -- No merit to argument that insured must derive a medical benefit from ROM test in order for test to be compensable under PIP statute -- ROM test that assisted medical provider in care and treatment of insured was meaningful service and contemplated to be compensable under statute -- Section 627.736(5)(a) and (5)(d) do not require a handwritten signature on HCFA form; computer generated printed name is sufficient -- Statute does not require signature of technician who performed service on HCFA form -- By partially paying bill, insurer waived defense that this type of signature constituted improper notice -- Insurer's motion for summary judgment denied

9 Fla. L. Weekly Supp. 204b

Insurance -- Personal injury protection -- Error to enter summary judgment in favor of medical provider based on insurer's failure to pay or obtain reasonable proof for denial within thirty days of receiving provider's bill

9 Fla. L. Weekly Supp. 204a

Insurance -- Personal injury protection -- Error to enter partial summary judgment and final judgment precluding insurer from contesting medical bill on ground that it failed to obtain a written report stating that such care was unnecessary or bill was unreasonable within thirty days of receipt of bill

9 Fla. L. Weekly Supp. 21b

Insurance -- Personal injury protection -- Error to enter summary judgment in favor of insurer in insured's action for PIP benefits on ground that insured unreasonably failed to attend independent medical examination where insurer waived defense of unreasonable refusal by rescheduling the IME -- Language in notice of second IME, stating that failure to attend second IME would cause insured's PIP benefits to be suspended as of date of prior appointment, did not negate waiver that ensued from rescheduling -- By rescheduling IME, insurer waives right to deny PIP benefits for refusal to attend IME irrespective of whether insured unreasonably failed to attend first IME

9 Fla. L. Weekly Supp. 414a

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Insurer is required to pay claim by insured for reasonable expenses of MRI billed by MRI provider which contracted with an imaging facility to provide the MRI -- Where insured did not assign her PIP benefits to MRI provider and was a stranger to any business dealings between MRI provider and the imaging facility, defense of illegality or violation of public policy is unavailable to insurer -- No merit to insurer's assertion that it was not on notice of claim because MRI provider did not identify the imaging facility on the HCFA Form 1500 -- Insurer's indemnification of insured does not excuse its failure to timely pay claim in accordance with the law and policy

9 Fla. L. Weekly Supp. 325a

Insurance -- Personal injury protection -- Dispute between medical provider and insurer -- Where policy contained provision requiring insured to submit to examination under oath as a condition of insurance contract, insured's failure to appear at examination was a material breach of the contract which relieves insurer from liability under the policy -- Insured's submission to examination under oath is condition precedent with which medical provider must comply before filing suit

9 Fla. L. Weekly Supp. 529a

Insurance -- Personal injury protection -- Failure to authenticate medical provider's bill within thirty days does not prevent insurer from raising defense that avoids liability for paying the bill in question -- If, within thirty days of receiving provider's bill, benefits have been exhausted, insurer can raise exhaustion of benefits as defense, even if exhaustion were not previously claimed -- Exhaustion of limits after thirty-day period is not relevant -- Affirmative defenses of waiver, estoppel, or laches were waived where those defenses were not raised in defendant's answer -- Section 627.736(4) does not contain express requirement that insured or provider contest insurer's decision to reduce bill -- When insurer reduces a reasonable bill for necessary and related services, it does so at its own risk

9 Fla. L. Weekly Supp. 660b

Insurance -- Personal injury protection -- Notice of loss -- No error in directing verdict for insurer when insured failed to introduce any evidence that his medical providers possessed required occupational licenses -- Where insured not only pled generally that all conditions precedent to bringing suit have been met, but also alleged specifically that he gave notice of covered losses to insurer, insurer's failure to specifically deny that condition precedent created by statutory requirement that notice of loss contain some statement that medical providers had required licenses had been met did not waive defense based on notice -- Insurer's general denial of specific allegation placed insured on notice that he would have to prove at trial that notice which complied with statute was given

9 Fla. L. Weekly Supp. 252a

Insurance -- Personal injury protection -- Dispute between medical provider and insurer -- Examination under oath -- Summary judgment in favor of insurer granted where insurance policy provides that answering questions at EUO is a condition precedent to suit, and medical provider assignee failed to attend EUO

9 Fla. L. Weekly Supp. 592b

Insurance -- Personal injury protection -- Where claimant injured while driving insured's vehicle failed to maintain insurance on her own vehicle, admitted to driving own vehicle until right before the accident, but claimed that own vehicle was inoperable until repaired, there exists genuine issue of material fact regarding whether claimant's vehicle was operable at time of the accident and, thus, whether registration and security was required on vehicle -- Error to enter summary judgment in favor of insurer

9 Fla. L. Weekly Supp. 126a

Insurance -- Personal injury protection -- Coverage -- Reasonable and necessary care -- PIP carrier's motion for summary judgment as to declaratory action count seeking declaration as to whether insurer that reduces bills loses its right to coverage defenses if it does not obtain a written report stating that medical treatment is not reasonable, related, or necessary within thirty days of submission of medical charges is granted pursuant to appellate decisions finding that insurer does not lose right to defenses

9 Fla. L. Weekly Supp. 83c

Insurance -- Personal injury protection -- Error to find that insurer forfeited right to assert affirmative defense to insured's claim for PIP benefits because insurer failed to obtain medical report showing bills were unreasonable within 30 days of receipt of bills -- On remand, if trial court finds material issue of fact regarding insurer's defense of illegality, insurer should be permitted to prove defense -- If insured succeeds on claim at trial, insurer will be required to pay outstanding bills, plus statutory interest and attorney's fees

9 Fla. L. Weekly Supp. 557a

Insurance -- Personal injury protection -- Punitive damages -- Where insurer claims that defendants falsely represented through the submission of HCFA-1500 and MRI reports that they had provided MRI services to insured to induce insurer to pay for MRI that defendants did not perform or interpret, and insurer justifiably relied on false representations in making payment to defendants for services they did not render, leave to add claim for punitive damages is granted

9 Fla. L. Weekly Supp. 567a

Insurance -- Personal injury protection -- Claim form -- Countersignature -- Insured does not have to countersign insurance claim form as condition precedent to insurer paying claim to assignee medical provider -- Plaintiff's motion for partial summary judgment granted

9 Fla. L. Weekly Supp. 708a

Insurance -- Personal injury protection -- Statute does not require person receiving service or treatment to countersign HCFA-1500 form, nor does it require medical provider actually providing service or treatment to sign HCFA-1500 form -- Summary judgment granted in favor of assignee where insurer's sole basis for nonpayment of bills was absence of signature and countersignature on HCFA-1500 forms

9 Fla. L. Weekly Supp. 224b

Insurance -- Personal injury protection -- Coverage -- Exclusions -- Injuries sustained by named insured while occupying motor vehicle owned by named insured and not insured under policy -- Action against insurer which denied coverage for injuries sustained by plaintiff who was insured under policy covering vehicle owned by his mother but who was injured while driving a vehicle of contested ownership which was not covered under policy -- Error to enter summary judgment in favor of insurer where, although vehicle insured was driving was titled in the name of insured's mother and father, evidence that insured's parents were separated for five years prior to accident raises possibility that insured's mother did not in fact own the vehicle

9 Fla. L. Weekly Supp. 254a

Insurance -- Personal injury protection -- Attachment of copy of medical bill at issue to complaint by medical provider claiming PIP benefits is not required by rule 1.130(a)

9 Fla. L. Weekly Supp. 743a

REPUBLISHED at 9 Fla. L. Weekly Supp. 820a.

9 Fla. L. Weekly Supp. 565a

Insurance -- Personal injury protection -- Affirmative defense is stricken, and insurer is ordered to refrain from reference to or inference as to insured's failure to sign health insurance claim forms

9 Fla. L. Weekly Supp. 787a

Insurance -- Personal injury protection -- Final judgment in favor of insured

9 Fla. L. Weekly Supp. 57c

Insurance -- Personal injury protection -- PIP policy was in force on date of plaintiff's accident and plaintiff is entitled to recover in full on claim, except as to lost wages

Additional ruling in this case at 8 Fla. L. Weekly Supp. 121a

9 Fla. L. Weekly Supp. 760a

Criminal law -- Insurance -- Fraud -- Venue -- Where defendant is charged with submitting false or fraudulent automobile bill of sale in support of insurance claim, venue would be proper in county where bill of sale was prepared and mailed or county where it was received -- Motion to dismiss granted where bill of sale was received by insurer outside of county, and state is unable to provide any evidence that defendant, who resides in another county, prepared or mailed the bill of sale from the county

9 Fla. L. Weekly Supp. 711a

Insurance -- Pleadings -- False or fraudulent -- Sanctions -- Striking -- Motions for rehearing and to vacate order striking pleadings is denied

9 Fla. L. Weekly Supp. 710a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 9 Fla. L. Weekly Supp. 711a

Insurance -- Pleadings -- False or fraudulent -- Sanctions -- Striking -- Where insurer's representative admittedly knew at time he signed affidavit and answers to interrogatories that relied-upon statutory provision requiring notice of initiation of treatment did not apply because statutory provision did not exist at time treatment was rendered, insured's motion to strike insurer's pleadings for fraud upon the court is granted

Cert. denied. 30 Fla. L. Weekly D607b

9 Fla. L. Weekly Supp. 137c

Insurance -- Personal injury protection -- Coverage -- Exclusions -- Plaintiff injured as passenger in insured vehicle who was employee in the course and scope of his employment at time of accident -- Plaintiff's request for procedural entitlement to summary judgment based on insurer's failure to assert any affirmative defense by failing to amend its answer or file a cross-motion for summary judgment denied where court grants insurer's ore tenus motion to amend pleadings to conform with evidence presented -- Policy exclusion providing that PIP insurance does not apply to bodily injury to insured's employee arising out of and in course of employment must give way to mandatory requirements of section 627.736(4)(f) and is invalid -- Motion for summary judgment granted

9 Fla. L. Weekly Supp. 578a

Insurance -- Med Pay -- Restriction in insurance contract excluding Med Pay benefits for accidents occurring while insured is operating a vehicle owned by his employer does not violate section 627.736(4)(f) -- Statute is not centered on providing additional coverage but rather serves to coordinate benefits

9 Fla. L. Weekly Supp. 480a

Insurance -- Liability -- Indemnification -- Electric company is entitled to indemnification by insurer against claims brought by power plant maintenance company employees for personal injuries arising out of maintenance company's work at electric company station

9 Fla. L. Weekly Supp. 137a

Insurance -- Dispute between medical provider and insurer -- Summary judgment entered for insurer where insured paid total outstanding balance alleged in suit to plaintiff medical provider prior to filing of suit -- Attorney's fees -- Justiciable issues -- Attorney's fees awarded to insurer where it should have been readily apparent from a review of file that plaintiff medical provider had been paid in full before suit was filed

9 Fla. L. Weekly Supp. 520a

Civil procedure -- Failure to prosecute -- Small claims -- Insurance -- Error to enter judgment of dismissal where plaintiff filed motions for default on three separate occasions during six months before dismissal

9 Fla. L. Weekly Supp. 778a

Civil procedure -- Insurance -- Where insurer filed untimely responses to medical provider's request for admissions, request for admissions are deemed admitted

9 Fla. L. Weekly Supp. 118a

Insurance -- Discovery -- Motion to compel better responses to supplemental request to produce granted in part and denied in part

9 Fla. L. Weekly Supp. 247a

Insurance -- Personal injury protection -- Discovery -- Insurer is ordered to produce insured's claim file except documents in privilege log, personnel files of all employees who worked on insured's file, and all manuals and other items that constitute instructions to adjusters with respect to handling PIP claims -- Request for entire file of insurer's attorneys in underlying PIP action is denied

9 Fla. L. Weekly Supp. 472a

Insurance -- Personal injury protection -- Insurer ordered to produce manuals, pamphlets, videos or other tangible items constituting instructions given to adjusters with respect to handling of Florida PIP claims for specified years, including good faith and ethics material

9 Fla. L. Weekly Supp. 723a

Insurance -- Personal injury protection -- Discovery -- Request for production -- Sanction for failure to respond to request for production

9 Fla. L. Weekly Supp. 324b

Insurance -- Discovery -- Work product -- ``Face sheet notes'' generated over time by adjusters and other insurance company personnel reviewing plaintiff's claim and retained in defendant's computer system -- Insurer to produce face sheet notes generated prior to certain date because no evidence of any intent to question plaintiff's claims appears in the notes prior to that date -- Motion to compel denied with regard to face sheet notes which were generated after specified date and which concern insurer's decision to request compulsory medical examination and, eventually, to terminate coverage

9 Fla. L. Weekly Supp. 851c

Insurance -- Personal injury protection -- Discovery -- Third-party vendor that coordinates and schedules independent medical examinations, medical expense reviews, and peer reviews is ordered to respond to subpoena to produce documents setting forth policy used in reviews and IMEs, contracts between vendor and insurer for conducting IMEs and reviews, documents reflecting payments made by vendor to physician and payments made by insurer to vendor related to insured's claim, and documents reflecting payments made by vendor to physician for past four years

9 Fla. L. Weekly Supp. 851a

Insurance -- Personal injury protection -- Discovery -- Third-party vendor that coordinates and schedules independent medical examinations is ordered to respond to subpoena to produce documents reflecting all payments made to physician for past four years

9 Fla. L. Weekly Supp. 135a

Insurance -- Personal injury protection -- Discovery -- Insurer's motion for protective order is granted, and medical provider is prohibited from seeking production of documents, agreements, and software programs and propounding interrogatories related to insurer's PIP Claim Computer System, which calculates whether a medical bill is reasonable for purposes of PIP claim reductions

9 Fla. L. Weekly Supp. 486b

Insurance -- Personal injury protection -- Discovery -- Interrogatories -- Independent medical examination -- Insurer compelled to describe nature of its relationship to and total amount of money paid annually to IME physician -- Requests for production of checks issued in association with claim granted with respect to checks to IME physician but denied as to other medical providers

9 Fla. L. Weekly Supp. 155a

Appeals -- Certiorari -- Discovery -- Insurance -- Order sustaining objections to interrogatory and requests to produce is not reviewable by certiorari where petitioner has failed to demonstrate irreparable harm and has an adequate remedy on appeal

9 Fla. L. Weekly Supp. 720a

Insurance -- Personal injury protection -- Discovery -- Insurer is ordered to provide medical provider with verified answers to interrogatories, privilege log of withheld documents, complete copy of independent medical examiner's file regarding case, and affidavit regarding insurer's ability or inability to provide specific information on payments to IME and ability to differentiate between payments for treatments and payments for purposes of litigation -- Court will conduct in camera inspection of documents withheld on claim of privilege

9 Fla. L. Weekly Supp. 139a

Insurance -- Personal injury protection -- Discovery -- Adjuster notes -- Work-product privilege -- Insured is entitled to all computer notes entered in claim by PIP adjuster that existed up to point in time that insurer initiated adversarial process by informing insured that it would no longer honor payment of medical bills as a result of insured's failure to attend compulsory medical examination -- Additionally, because computer entry notes made after that date in no way relate to contemplated litigation, court orders release of PIP adjuster's computer records up to point of insured's filing of breach of contract suit

9 Fla. L. Weekly Supp. 634c

Insurance -- Dispute between medical provider and insurer -- Discovery -- Work product -- Computer notes of adjuster -- Waiver of privilege -- Plaintiff is entitled to computer notes made by original adjuster up until the date new adjuster took over file -- Insurer waived any work product privilege as to these notes by producing an adjuster the insurer knew would be relying upon those notes at his deposition -- Further, insurer failed to produce any evidence which would reflect that these documents were work product or were generated in anticipation of litigation

9 Fla. L. Weekly Supp. 783a

Insurance -- Personal injury protection -- Discovery -- Insured's subpoena for deposition duces tecum of third-party vendor that coordinated and scheduled the independent medical examination upon which insurer relied in denying claim, requesting entire PIP file provided by insurer for scheduling the IME, is limited -- IME vendor is compelled to produce documents regarding conduct of IME; amount paid by insurer for IME and amount paid to IME physician; tax forms with respect to IME physician for past three tax years; every IME report, peer review report, and any other report from IME physician for past three calendar years; and any documents indicating vendor called on IME physician's services even if physician never conducted IME or peer review due to a no-show -- Vendor not required to produce all documents signed by IME physician and price lists for scheduling IMEs, peer reviews, and records reviews

9 Fla. L. Weekly Supp. 709a

Insurance -- Personal injury protection -- Discovery -- Insured's subpoena for deposition duces tecum of third-party vendor that coordinated and scheduled the independent medical examination upon which insurer relied in denying claim, requesting entire PIP file provided by insurer for scheduling the IME, is limited -- IME vendor is compelled to produce documents regarding scheduling of insured's IME, insured's IME. and the preparation of insured's IME report; contracts between vendor and IME physician; file and new doctor sign-up packet provided by vendor to IME physician; amounts vendor charged insurer and paid IME physician; vendor paid invoice history for IME physician, and price lists for scheduling IMEs, peer reviews, and records reviews for calendar year of IME -- Copies of reports of other IMEs conducted by IME physician who examined insured should be obtained directly from IME physician -- Vendor not required to produce all documents signed by IME physician

9 Fla. L. Weekly Supp. 707b

Insurance -- Personal injury protection -- Discovery -- Insured's subpoena for deposition duces tecum of third-party vendor that coordinated and scheduled the independent medical examination upon which insurer relied in denying claim, requesting entire PIP file provided by insurer for scheduling the IME, is limited -- IME vendor is compelled to produce documents regarding scheduling of insured's IME, insured's IME, and the preparation of insured's IME report; contracts between vendor and IME physician; file and new doctor sign-up packet provided by vendor to IME physician, and price lists for scheduling IMEs, peer reviews, and records reviews for calendar year of IME -- Copies of reports of other IMEs conducted by IME physician who examined insured should be obtained directly from IME physician -- Vendor not required to produce all documents signed by IME physician

9 Fla. L. Weekly Supp. 57b

Insurance -- Personal injury protection -- Discovery -- Motion to compel supplemental deposition of adjuster on issue of indemnification granted -- Motion to compel discovery from claims management company that scheduled independent medical examinations and selected IME physicians granted -- Reports of all IMEs ever performed by physicians who performed IMEs in this claim to be provided in redacted form so as to not divulge patient names -- Plaintiff to arrange for neutral party copying company to pull, redact, and copy records

9 Fla. L. Weekly Supp. 51a

Insurance -- Personal injury protection -- Discovery -- Depositions -- Where insured's treating chiropractor's deposition testimony would relate to business practices of plaintiff professional association, explaining the basis for certain charges as well as the policies and procedures employed to determine that those charges are reasonable, necessary and related to accident covered by insured's policy, chiropractor's role is not in nature of expert, but as chief operating officer of professional association, and chiropractor is not entitled to payment of expert witness fee

9 Fla. L. Weekly Supp. 196a

Insurance -- Discovery -- Depositions -- Expert witness fee -- Witness whose qualifications fulfill the requirements of rule 1.390 is entitled to receive expert witness fee for deposition testimony regarding the medical care and treatment provided to insured -- If travel is required as result of deposition being scheduled anywhere other than witness's office, insurer must pay witness for her portal to portal time, both to and from deposition location

9 Fla. L. Weekly Supp. 870a

Insurance -- Personal injury protection -- Discovery -- Depositions -- Expert witness fee -- Treating physician is entitled to expert witness fee

9 Fla. L. Weekly Supp. 629a

Insurance -- Personal injury protection -- Discovery -- Depositions -- Insurer prohibited from taking discovery of medical provider's billing and payment procedures relative to Medicare, Medicaid, workers' compensation insurance, and private health insurance that is not relevant to issues in case -- Insurer to clarify person it wishes to depose -- Treating physician is entitled to a reasonable fee if deposed

9 Fla. L. Weekly Supp. 5a

Insurance -- Discovery -- Deposition fees -- Petitioner failed to show that order denying request to set a reasonable fee for expert deposition violated clearly established principle of law resulting in miscarriage of justice or that order would cause material injury that could not be remedied on appeal from final judgment -- Certiorari denied

9 Fla. L. Weekly Supp. 251a

Insurance -- Discovery -- Depositions -- Expert witness fee -- Chiropractor to testify at deposition is non-party expert witness due an expert witness fee

9 Fla. L. Weekly Supp. 488b

Insurance -- Discovery -- Depositions -- Expert witness fee -- Plaintiff medical provider is not entitled to expert witness fee for his deposition

9 Fla. L. Weekly Supp. 713b

Insurance -- Discovery -- Depositions -- Physician is entitled to be paid as an expert witness for his deposition

9 Fla. L. Weekly Supp. 776a

Insurance -- Personal injury protection -- Discovery -- Depositions -- Expert witness fee -- Reasonable hourly rate for deposition of physician who conducted peer review is $400 -- Physician is not entitled to prepayment for deposition testimony; payment for first hour is to be tendered immediately preceding start of deposition and payment for any additional time is to be mailed within five days -- Physician is not entitled to be compensated for time spent preparing for deposition -- Physician will be entitled to cancellation fee if plaintiff cancels deposition within two business days of deposition and physician is unable to fill timeslot -- Physician is entitled to compensation for any pre-deposition conferences with either party

9 Fla. L. Weekly Supp. 723c

Insurance -- Personal injury protection -- Discovery -- Depositions -- Expert witness fee -- Medical expert's representation that $500 is his hourly rate for giving deposition testimony is accepted -- Insured is to bring payment for expert's fee to deposition and tender payment immediately preceding deposition -- Expert is not entitled to payment for time spent preparing for deposition

9 Fla. L. Weekly Supp. 141a

Insurance -- Discovery -- Depositions -- Expert witness fee set

9 Fla. L. Weekly Supp. 196b

Insurance -- Discovery -- Depositions -- Expert witness fee -- Medical providers whose qualifications fulfill the requirements of rule 1.390 are entitled to receive expert witness fee for deposition testimony regarding the medical care and treatment provided to insured -- Billing clerk and medical assistant will not receive expert witness fee for deposition testimony

9 Fla. L. Weekly Supp. 880a

Insurance -- Personal injury protection -- Discovery -- Depositions -- Expert witness fee -- Medical provider who accepted an assignment of benefits from insured is entitled to expert witness fee for his deposition

9 Fla. L. Weekly Supp. 118c

Insurance -- Default judgment -- Amendment -- Prejudgment interest -- Motion to amend final default judgment to reflect interest as calculated by subrogee insurance company denied -- Subrogee is entitled to prejudgment interest at statutory rate, but that interest should be calculated from date of first claim made to date of judgment -- When applying equitable considerations to facts of case it would be inequitable to allow subrogee to recover prejudgment interest prior to time of first claim made for repayment of loss, even in the matter of a default, where complaint demands ``prejudgment interest if applicable,'' implying that interest may not be due at all, and without reference to amount or date from which interest will be demanded, thereby failing to put defendant on notice that interest would be awarded, for what period of time and at what rate

9 Fla. L. Weekly Supp. 465a

Insurance -- Class actions -- First count of complaint does not state cause of action for declaratory relief where it seeks to have court try disputed issues of material fact concerning appropriate mileage rate for transportation incurred in connection with medical treatment -- Under doctrine of primary jurisdiction, court should refrain from exercising jurisdiction over issue until administrative agency with special competence has ruled on issue -- Contradictory allegations within second count seeking damages renders that count insufficient on its face -- Both counts dismissed with leave to amend second count

9 Fla. L. Weekly Supp. 111a

Insurance -- Verdict -- Reduction -- Collateral source -- Where high-low agreement between parties is silent as to issues such as set off for collateral sources and costs, despite fact that counsel for insurer argued before court at time of settlement that settlement would include ``costs and everything,'' insurer is entitled to a set off for collateral source payments paid to plaintiff

9 Fla. L. Weekly Supp. 558c

Insurance -- Personal injury protection -- Attorneys -- Disqualification -- Conflict of interest -- Motion to disqualify attorney who worked for insurer in nonattorney claims litigation specialist position and is now employed by law firm from cases in which attorney directly worked on file or those which involve software purchased by insurer to determine usual, customary, and reasonable charge reductions or contract with certain PPO provider -- Where there is no evidence offered to show that attorney had any involvement or input into software program or PPO contract, or any actual knowledge of material confidential information that would give him an unfair advantage in any cases, there is conflict between attorney and law firm only in handling cases in which attorney was actual adjuster -- Insurer waived any conflict in case where the only evidence that attorney worked on case is attorney's initials yielded by computer search of files, evidence shows attorney's initials showed up on files long after he left insurer's employ and in cases in which attorney could not have been involved, insurer's claim that attorney worked on file was not disclosed to law firm for seventeen months, insurer has given no legitimate reason for delay in bringing motion to disqualify, and insurer has taken inconsistent positions regarding conflict, including proceeding with litigation and settling directly with attorney in some cases -- Motion to disqualify denied

9 Fla. L. Weekly Supp. 629c

Insurance -- Personal injury protection -- Attorneys -- Disqualification -- Conflict of interest -- Motion to disqualify attorney for medical provider on ground that one of lawyers with plaintiff's firm formerly worked for insurer is denied where provider's attorney did not have prior attorney-client relationship with insurer, attorney did not work on case at bar when employed by insurer, beyond similarity of all PIP cases there has been no showing of substantial relationship between case at bar and any case in which attorney was involved while employed by insurer such as to give medical provider an unfair advantage, and confidential information to which insurer claims attorney had access is identified only as ``when we settle and when we don't''

9 Fla. L. Weekly Supp. 305a

Insurance -- Discovery -- Compulsory examination of persons -- Conditions for examination set

9 Fla. L. Weekly Supp. 449a

Insurance -- Personal injury protection -- Medpay -- Class action by police officer injured while performing duties -- Class certification -- Numerosity -- Discovery -- Abuse of discretion to substantially interfere with officer's ability to establish numerosity by unduly restricting discovery and not permitting officer to adequately assess the true number of instances in which insurer wrongfully denied medpay coverage based on exclusion of accidents occurring in the course and scope of employment -- Reversed and remanded with instructions for expanded discovery

9 Fla. L. Weekly Supp. 701b

Insurance -- Stay -- Action for bad faith, breach of contract, and inadequate defense, arising out of underlying case in which the parties are awaiting a decision as to whether the Florida Supreme Court will accept discretionary review, is stayed pending review, conditional upon insurer posting supersedeas bond covering amount of excess judgment against plaintiff

9 Fla. L. Weekly Supp. 483a

Insurance -- Bad faith -- Notice -- Cure -- Conditions precedent to insured's maintenance of bad faith action against insurer related to lightning claim were not met where insurer provided allegedly withheld adjuster's estimate within 60 days of civil remedy notice, and claim that insurer ``responded with accusations'' is too vague to give insurer notice of what wrong it could cure -- Conditions precedent to insured's maintenance of bad faith action against insurer related to windstorm claim were not met where insurer's alleged bad faith filing of federal lawsuit was cured within 60 days of civil remedy notice when insurer chose not to appeal adverse judgment in federal suit, there was no wrongful act with respect to insurer's defense against insured's federal counterclaim that could be cured or remedied because notice did not allege that insurer engaged in wrongful conduct in defending against counterclaim, and notice did not allege that insurer had wrongfully failed to pay on judgment

9 Fla. L. Weekly Supp. 774a

Insurance -- Insured's action against insurer after insurer disputed claim for stolen vehicle -- Plaintiff's motion to vacate order granting defendant leave to amend its answer to include a compulsory counterclaim is denied -- Counterclaim was based upon same factual allegations used by insurer to deny claim from its inception, namely that insurer believed its insured has misrepresented the facts of the claim -- Counterclaim merely allows insurer to recover money which it has already paid to insured's lien holder for the loss at issue in the event a jury determines that insurer's claim is not factual -- Denial of opportunity to file compulsory may result in miscarriage of justice -- Plaintiff is not procedurally prejudiced

9 Fla. L. Weekly Supp. 774b

Insurance -- Standard Mortgage Clause in policy creates separate and distinct contract between insurance company and lien holder, and lien holder is permitted to recover under circumstances and conditions that would defeat recovery by insured -- Insurer's act of making payment to lien holder after filing of instant action does not constitute a confession of judgment -- Motion for summary judgment and entitlement to attorney's fees denied

9 Fla. L. Weekly Supp. 626a

Insurance -- Automobile -- Summary judgment is entered for insured on insurer's claim for rescission where insurer failed to return entire policy premium and application fee within reasonable time

9 Fla. L. Weekly Supp. 187b

Insurance -- Hospitals -- Hospital liens -- Torts -- Class action complaint alleging that hospital liens for hospitals' full charges against proceeds of no-fault and liability insurance policies available to Medicare beneficiaries injured in automobile accidents were improper under Medicare Secondary Payer statutes -- MSP program does not limit a hospital's charges to what Medicare would pay if Medicare were primary payer; rather hospital may seek and collect the greater of its full charges or the amount of third-party payment paid or payable to beneficiary, and hospital may attempt to collect amounts directly from third-party payer or from beneficiary who has received or is entitled to receive third-party payment -- Court does not have authority to impose by judicial fiat same limit on MSP statute that federal courts have held was beyond the power of Department of Health and Human Services to impose -- Counts seeking declaratory relief and alleging constructive trust/unjust enrichment are dismissed with prejudice to extent that they attempt to state a cause of action based on hospitals' attempts to collect their full charges directly from any third-party payer, either through billing the payer directly or securing liens against the proceeds of third-party payments -- Where amended complaint alleges generally that hospitals attempted to collect full charges directly from beneficiaries, but fails to include allegation that amount hospitals attempted to collect was in excess of amounts paid or payable from third-party payers to beneficiaries, counts are dismissed without prejudice to extent that they attempt to assert a cause of action for violating the MSP statutes and regulations by collecting charges directly from beneficiaries

9 Fla. L. Weekly Supp. 19b

Insurance -- Automobile -- Action for declaratory judgment that insurer's practice of charging premium based on industry reference value but paying the lower of either actual cash value or industry reference value in the event of loss is in violation of Florida law -- Order granting insurer's motion to enforce settlement is vacated where both parties agree there was no settlement -- No abuse of discretion in denial of motion to amend complaint to add class action allegations and claim for consequential damages given futility of amendment, since prior to class certification insurer offered insured 100% of his demand for vehicle's industry reference value -- Remand for entry of judgment in amount of insured's demand, as both parties agree that sum is appropriate amount for the vehicle -- Insured's motion for appellate attorney's fees is granted

9 Fla. L. Weekly Supp. 745a

Insurance -- Personal injury protection -- Cancellation of policy -- Notice of cancellation occasioned by failure to pay premium for newly added vehicle did not invalidate preexisting coverage for two other vehicles, including the vehicle involved in accident, where coverage for the two vehicles was paid in full through the end of the policy period -- Independent and severable contract is created when new vehicle is added to a policy of insurance and separate premium charged therefor -- When separate premium attributable to the additional vehicle has not been paid, insurer is within its rights to cancel that policy for nonpayment and deny coverage thereunder, but nonpayment for additional vehicle does not render original coverage inoperative -- Error to enter summary judgment in favor of insurer

9 Fla. L. Weekly Supp. 321b

Attorneys -- Disqualification -- Conflict of interest -- Insurance -- Attorney who, while acting as lead counsel in cases relating to personal injury protection, met with top-level litigation attorneys representing insurer to develop strategies for defense of MRI brokering cases is not disqualified from representing plaintiff in suit against insurer where the current matter does not arise from the same transaction or case in which attorney represented insurer

9 Fla. L. Weekly Supp. 238a

Insurance -- Uninsured motorist -- Attorney's fees -- Proposal for settlement -- Award of attorney's fees to insureds of meager financial means whose proposal for settlement for UM claim for rear-end collision by drunken driver, which appeared to have great merit on both liability and damages from its inception, was rejected by well-financed and well-defended insurer bent on using hardball tactics -- Contingency risk multipliers are still available for court-awarded fees under section 768.79 in the Fourth District -- Hours enhanced with maximum contingency risk multiplier of 2.5 based on results attained, time limitations imposed by the circumstances, and insurer's hardball tactics -- Where insurer showed contumacious disregard for court's discovery orders relative to attorney's fees, insurer should forfeit right to contest application of 2.5 multiplier -- Costs, expert witness fees, and prejudgment interest on fees and costs awarded

9 Fla. L. Weekly Supp. 616a

Insurance -- Automobile -- Attorney's fees -- Insurer's proposal for settlement directed to pending attorney's fees claim is not proper basis for award of attorney's fees or costs in declaratory judgment action -- Declaratory judgment action is not civil action for damages, and issues regarding attorney's fees and costs are collateral to dispute therein -- Proposal for settlement stricken

9 Fla. L. Weekly Supp. 806a

Attorney's fees -- Insurance -- Prevailing party -- Plaintiff is not entitled to attorney's fees as prevailing party in case dismissed for failure to prosecute since dismissal is not a dismissal on merits, and plaintiff is not a prevailing party -- Plaintiff is entitled to attorney's fees and costs for recovery in follow-up case

9 Fla. L. Weekly Supp. 556a

Insurance -- Personal injury protection -- Attorney's fees -- Insurer's admitted late payment of PIP claims that were neither pled nor identified as the basis for pending lawsuit constitutes settlement of a ``disputed claim'' that entitles insured to recover attorney's fees -- Fact that insurer corrected its mistake and fully paid claims, albeit belatedly, does not change fact that claims were improperly denied and paid by insurer after insured filed suit alleging improper denial of claims

9 Fla. L. Weekly Supp. 323a

Insurance -- Personal injury protection -- Attorney's fees -- Proposal for settlement for attorney's fees in PIP claim following resolution of underlying benefits is not proper -- Motion to strike granted

9 Fla. L. Weekly Supp. 625b

Insurance -- Personal injury protection -- Attorney's fees -- Medical provider is entitled to award of attorney's fees and costs where insurer had notice of potential lawsuit at time it took UCR reductions on bills and, although insurer issued and mailed check for all remaining PIP benefits on date suit was filed, medical provider did not receive check until after filing date

9 Fla. L. Weekly Supp. 738b

Insurance -- Personal injury protection -- Claim form -- Countersignature -- Sections 627.736(5)(a) and (d) do not require HCFA forms to be countersigned by insured when the medical provider has accepted an assignment of benefits -- Summary judgment in favor of insurer reversed and remanded -- Attorney's fees awarded to medical provider contingent on prevailing on recovery on policy

9 Fla. L. Weekly Supp. 659a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 9 Fla. L. Weekly Supp. 737a

Insurance -- Personal injury protection -- Claim forms -- Countersignature -- Sections 627.736(5)(a) & (d) do not require HCFA forms to be countersigned by insured when the medical provider has accepted an assignment of benefits -- Summary judgment in favor of insurer reversed and remanded -- Attorney's fees awarded to medical provider contingent on prevailing on recovery on policy

9 Fla. L. Weekly Supp. 712a

Insurance -- Attorney's fees -- Prevailing insurer -- Order determining reasonable attorney's fees and costs -- Trial judge who entered order awarding fees and costs is asked to clarify whether judgment is to entered against insured only or against insured and/or professional association

9 Fla. L. Weekly Supp. 203a

Insurance -- Personal injury protection -- Attorney's fees -- No abuse of discretion in amount of attorney's fees awarded to attorney for medical provider who prevailed in claim against insurer for reduction of bill and failure to pay in timely manner -- No abuse of discretion in decision to apply 2.0 contingency risk multiplier

9 Fla. L. Weekly Supp. 555b

Attorney's fees -- Insurance -- Personal injury protection -- Trial court has inherent authority to rescind order granting attorney's fees but not awarding amount, which is interlocutory order, prior to entry of final judgment -- Where insurer paid insured entire amount of PIP benefits owed prior to date insured filed complaint, insured is not entitled to attorney's fees

9 Fla. L. Weekly Supp. 156a

Insurance -- Personal injury protection -- Because trial court lost jurisdiction to grant a directed verdict when it denied insured's first motion for rehearing and lost jurisdiction to grant a new trial when it denied insured's first motion for a new trial, all other motions for rehearing and new trial were unauthorized and all orders issued thereon invalid, and trial court did not have jurisdiction to grant directed verdict in insured's favor -- Jury verdict is reinstated and case is remanded for determination of attorney's fees and costs to which insurer is entitled -- Trial court erred as a matter of law in vacating jury verdict finding that insured's injuries were not related to automobile accident at issue on ground that insurer did not obtain reasonable proof that insured's treatment was unreasonable, unrelated or unnecessary within thirty days of billing -- Attorney's fees -- Offer of judgment -- Insurer which made offer of judgment rejected by insured is entitled to trial court attorney's fees pursuant to section 768.79 -- Appellate attorney's fees -- Insurer is entitled to appellate fees and costs pursuant to rule 9.400

9 Fla. L. Weekly Supp. 22a

Attorney's fees -- Insurance -- Personal injury protection -- Error to deny insured attorney's fees where insured gave insurer sufficient notice that she would be seeking attorney's fees by requesting fees in wherefore clause of complaint

9 Fla. L. Weekly Supp. 860a

Attorney's fees -- Insurance -- Motion -- Timeliness -- By failing to raise objection to untimeliness of medical provider's motion for attorney's fees and costs before commencement and presentation of sworn testimony at fee hearing, insurer waived any objection to court's consideration of fee award -- Court's reservation of jurisdiction to award attorney's fees is an enlargement of time under rule 1.090(b)(2) which allows court to exercise discretion to enlarge the time requirements of rule 1.525 for filing a motion for attorney's fees and costs to allow filing of an untimely motion for fees without the necessity of showing excusable neglect -- Rule 1.525 is not jurisdictional, but nothing more than a guideline for attorneys to seek fees and costs within 30 days after the filing of judgment -- In absence of showing of prejudice to insurer, motion to enlarge time for filing attorney's fees motion up to date motion was filed is granted -- Sanctions -- Motion for monetary sanctions against insurer for its attorney's failure to notify court and opposing counsel of her unavailability prior to fee hearing is granted

9 Fla. L. Weekly Supp. 591a

Insurance -- Personal injury protection -- Attorney's fees -- Appellate fees -- Justiciable issues -- Where after underlying PIP action had been stayed by agreement of the parties pending resolution of insurer's motion to disqualify medical provider's counsel for alleged violations of rules of professional conduct, insurer filed separate suit against medical provider's attorney and her law firm in another circuit for temporary and permanent injunctive relief based on alleged rule violations and filed motion to stay its own motion to disqualify medical provider's counsel in PIP suit based on suit for injunctive relief; and where insurer filed petition for writ of certiorari when motion to stay was denied, medical provider is entitled to an award of appellate attorney's fees and costs because petition for writ of certiorari was not a correct procedural remedy for insurer, and insurer and its counsel knew or should have known that petition was not supported by the facts or by an application of then existing law

9 Fla. L. Weekly Supp. 590b

Insurance -- Personal injury protection -- Attorney's fees -- Appellate fees -- Justiciable issues -- Where after underlying PIP action had been stayed by agreement of the parties pending resolution of insurer's motion to disqualify medical provider's counsel for alleged violations of rules of professional conduct, insurer filed separate suit against medical provider's attorney and her law firm in another circuit for temporary and permanent injunctive relief based on alleged rule violations and filed motion to stay its own motion to disqualify medical provider's counsel in PIP suit based on suit for injunctive relief; and where insurer filed petition for writ of certiorari when motion to stay was denied, medical provider is entitled to an award of appellate attorney's fees and costs because petition for writ of certiorari was not a correct procedural remedy for insurer, and insurer and its counsel knew or should have known that petition was not supported by the facts or by an application of then existing law

9 Fla. L. Weekly Supp. 590a

Insurance -- Personal injury protection -- Attorney's fees -- Appellate fees -- Justiciable issues -- Where after underlying PIP action had been stayed by agreement of the parties pending resolution of insurer's motion to disqualify medical provider's counsel for alleged violations of rules of professional conduct, insurer filed separate suit against medical provider's attorney and her law firm in another circuit for temporary and permanent injunctive relief based on alleged rule violations and filed motion to stay its own motion to disqualify medical provider's counsel in PIP suit based on suit for injunctive relief; and where insurer filed petition for writ of certiorari when motion to stay was denied, medical provider is entitled to an award of appellate attorney's fees and costs because petition for writ of certiorari was not a correct procedural remedy for insurer, and insurer and its counsel knew or should have known that petition was not supported by the facts or by an application of then existing law

9 Fla. L. Weekly Supp. 589a

Insurance -- Personal injury protection -- Attorney's fees -- Appellate fees -- Justiciable issues -- Where after underlying PIP action had been stayed by agreement of the parties pending resolution of insurer's motion to disqualify medical provider's counsel for alleged violations of rules of professional conduct, insurer filed separate suit against medical provider's attorney and her law firm in another circuit for temporary and permanent injunctive relief based on alleged rule violations and filed motion to stay its own motion to disqualify medical provider's counsel in PIP suit based on suit for injunctive relief, and where insurer filed petition for writ of certiorari when motion to stay was denied, medical provider is entitled to an award of appellate attorney's fees and costs because petition for writ of certiorari was not a correct procedural remedy for insurer, and insurer and its counsel knew or should have known that petition was not supported by the facts or by an application of then existing law

9 Fla. L. Weekly Supp. 133b

Insurance -- Attorney's fees -- Justiciable issues -- Insurer's motion for attorney's fees denied where insured's settlement with insurer did not deprive plaintiff medical provider, to whom insured had executed an assignment, of a cause of action against insurer

9 Fla. L. Weekly Supp. 705a

Insurance -- Personal injury protection -- Motion to enforce settlement agreement where insured accepted offered settlement including condition requiring execution of a release but now objects to the language of the release -- Regardless of whether release was attached to offer, reference in offer to ``attached release'' placed insured's counsel on notice that it was a condition of the offer -- Objected to language in release, which is not incapable of being stated with particularity, does not render release invalid -- Motion to enforce settlement agreement is granted -- Where insured's counsel did not act for purposes of delaying settlement, and insured's arguments had some merit and were done in good faith, motion for sanctions is denied

9 Fla. L. Weekly Supp. 526a

Insurance -- Attorney's fees -- Discovery -- Oral order requiring production of documents is valid enforceable order -- Privilege -- Work product -- Error to order counsel for medical provider to disclose entire file in matter below in attorney's fees proceeding -- Medical provider putting expert witness on stand who testified that he had been permitted to review entire file and testified to contents of file only as they related to time expenditures did not waive privilege as to attorney's work product contained in file

9 Fla. L. Weekly Supp. 635a

Insurance -- Personal injury protection -- Attorney's fees -- Discovery -- Depositions -- Motion to compel depositions in preparation for attorney's fee hearing is denied where medical provider's attorney is seeking fees for only 7.4 hours, and insurer's attorney has cross-examined provider's attorney about his background, experience and training at other fee hearings in past

9 Fla. L. Weekly Supp. 716a

Insurance -- Attorney's fees -- Prevailing insured -- Even if delay in payment of disability credit insurance benefits was due to good faith need for insurer to investigate conflicting disability periods apparent in claim by insured who was disabled, returned to work despite disability, and then was involved in a second disabling accident, successful insured is entitled to claim attorney's fees against insurer that paid total claim during suit -- Obligation for attorney's fees and costs continued past insurer's offer of judgment where that offer did not include attorney's fees and costs already incurred -- Although insurer was within its rights to dispute claim for period between accidents when it believed insured was working, insurer agreed that insured did not work by paying claim for that period, and insured is entitled to attorney's fees and costs against insurer for all time reasonably expended by insured's counsel in pursuit of claims -- Insurer's claim for attorney's fees because insured's claim was frivolous is denied where, although chances of success at outset were even, claim had merit -- Where insurer contested entitlement to attorney's fees, insured is awarded fees and costs for litigating entitlement issue

9 Fla. L. Weekly Supp. 133a

Insurance -- Attorney's fees -- Trial with novel motion x-ray test at issue and less than 50/50 chance of success for plaintiff at outset, resulting in verdict for full amount -- Multiplier of 2.4 warranted

9 Fla. L. Weekly Supp. 424a

Insurance -- Personal injury protection -- Default -- Relief from judgment -- Meritorious defenses, even if shown by the record, would not alone entitle defendant to avoid default -- Claims manager's affidavit containing no explanation for inaction other than vague reference to workload and statement that she made a mistake was insufficient to prove excusable neglect -- No gross abuse of discretion in refusal to set aside default -- No merit to claim that default should be set aside because it causes unjust enrichment -- Attorney's fees -- Prevailing party -- Contingency risk multiplier -- Error to award multiplier where nothing in record indicates that fee was contingent on recovery -- Consideration of difficulty of case and likelihood of success relates to amount of multiplier, not entitlement to multiplier -- Costs -- Parking and postage costs are miscellaneous office expenses that should not have been taxed

9 Fla. L. Weekly Supp. 853b

Attorney's fees -- Insurance -- Personal injury protection -- Contingency risk multiplier -- Application of contingency risk multiplier is not appropriate -- If contingency risk multiplier is appropriate, multiplier in the range of 1.0 - 2.0 would be reasonable because likelihood of success was even at outset, and multiplier of 1.0 should be applied -- Expert witness fees and costs awarded

9 Fla. L. Weekly Supp. 641a

Insurance -- Personal injury protection -- Attorney's fees -- Contingency risk multiplier -- Where insured's complaint was for overdue PIP benefits that included database bill reductions and income loss, insurer's expert conceded income loss claim was more difficult claim on which to prevail, and insurer quickly settled claim after suit was filed by paying medical provider bill reductions and paying insured more than twice the claimed income loss, contingency risk multiplier of 1.5 is appropriate -- Costs -- Expert witness fee, filing fee, and service of process fee awarded as costs

9 Fla. L. Weekly Supp. 480b

Insurance -- Uninsured motorist -- Attorney's fees -- Contingency risk multiplier -- Where insured's chance of success in recovery on uninsured motorist claim was unlikely at outset due to extremely late notice to insurer and credibility issues on part of insured as to whether there was a phantom vehicle that had run him off the road as he rode his bicycle, and market requires multiplier to obtain competent counsel in this type case, multiplier of 2.0 is awarded -- Hours claimed by insured's two attorneys are reduced because there must necessarily have been some duplication of effort -- Costs -- Fees of insured's expert attorney's fees witness are awarded where witness testified that case presented a hardship

9 Fla. L. Weekly Supp. 53b

Insurance -- Attorney's fees awarded to medical provider calculated at rate of $250 per hour with contingency risk multiplier of 1.5 -- Expert witness fee of $375 awarded -- Costs awarded

9 Fla. L. Weekly Supp. 637a

Insurance -- Attorney's fees -- Proposal for settlement -- Medical provider which filed voluntary dismissal eight months after expiration of insurer's proposal for settlement was liable for insurer's attorney's fees and costs -- Insurer did not have duty to plead entitlement to attorney's fees under section 57.105 before case was ended -- Medical provider's action was brought in bad faith where provider's corporate status was cancelled seven years prior to suit and, thus, provider is non-existent entity without legal capacity to bring, maintain or defend any action in any court of state

9 Fla. L. Weekly Supp. 433a

Insurance -- Personal injury protection -- Attorney's fees -- Contingency risk multiplier -- No abuse of discretion in application of 1.5 multiplier where trial court found probability of success at outset of case was 50/50, and there was evidence that possibility of multiplier was the only reason insured's counsel was able to accept case -- Costs -- Expert witness fees -- No abuse of discretion in award of expert fee for attorney who testified about reasonable attorney's fees where there was evidence that preparation for testifying was lengthy and burdensome -- Appellate fees -- Motion for appellate fees for time expended litigating amount of fees is denied

9 Fla. L. Weekly Supp. 85a

Insurance -- Personal injury protection -- Appellate attorney's fees -- Where appellate court concluded that directed verdict in favor of insurer was inappropriate, remanded case for new trial, and granted insured's motion for appellate fees, order granting fees is conditioned upon insured ultimately prevailing with a recovery on the policy on retrial

9 Fla. L. Weekly Supp. 210a

Insurance -- Personal injury protection -- Venue -- Forum non conveniens -- No abuse of discretion in transferring venue from Orange County to Collier County where accident occurred in Collier County, insured resides there, most of medical practitioners and almost every witness would be located there, and only evidence that insured submitted was affidavit claiming that he would use the testimony of an Orlando orthopedic surgeon -- No error in basing decision to transfer venue on affidavits without allowing insured to cross-examine insurer's affiant -- Error to require insured to pay transfer costs where venue was proper in Orange County, albeit inconvenient -- Where it is apparent from transcript that trial judge meant to order insurer rather than insured to pay transfer fees, it is not necessary to address argument that it was within court's discretion to order insured to pay fees -- Appellate attorney's fees -- Despite being the prevailing party on appeal, insurer is not entitled to appellate attorney's fees because it filed for fees pursuant to section 57.105, and insured's appeal was not frivolous or totally unsupportable -- Insurer should have costs taxed in its favor under rule 9.400(a) if it timely files a motion with trial court

9 Fla. L. Weekly Supp. 170a

Insurance -- Personal injury protection -- Appellate attorney's fees -- Fees awarded pursuant to section 57.105

9 Fla. L. Weekly Supp. 212a

Insurance -- Personal injury protection -- Attorney's fees -- Appeal of 2.25 contingency risk multiplier awarded to insured in action for PIP benefits for TMJ treatment after automobile accident so minor that it did not damage insured's vehicle -- Difficulties and complications in case which arose after attorney agreed to represent insured have no bearing on the assessment of a contingency risk multiplier -- No abuse of discretion in finding that success was unlikely at outset of case based on factors that were present at the outset -- Although facts in case may not be as unique as those warranting multiplier in State Farm Fire & Casualty v. Palma, no abuse of discretion in finding that insured's case presented a situation where success was unlikely at outset -- Where results obtained for insured were 100% and parties agree there was contingency agreement, trial court's finding that this is a case in which few attorneys would venture without the possibility of a multiplier will not be disturbed -- No merit to argument that insured's attorney was able to mitigate the risk of non-payment by the volume of PIP cases he handles which end in court awarded fees -- Argument that standard jury instruction 6.2(b) militated against the award of a multiplier is not properly before appellate court where insurer did not appeal the jury instructions -- Appellate attorney's fees -- No award of appellate fees will be granted where only issue appealed was the application of multiplier, which addresses the amount of fees rather than the entitlement to fees

9 Fla. L. Weekly Supp. 854a

Insurance -- Attorney's fees -- Party entitled to recover fees incurred in litigating applicability of multiplier -- Use of contingency fee muliplier is appropriate -- Because likelihood of plaintiff prevailing at outset was even under circumstances of case, multiplier of 1.5 is determined to be reasonable -- Multiplier does not apply to paralegal time -- Expert witness fees and prejudgment interest awarded from date case was settled

9 Fla. L. Weekly Supp. 503a

Attorney's fees -- Insurance -- Personal injury protection -- Appellate court will not substitute its judgment for that of trial court on factual issue of when insurer agreed to pay all that was due and case ended -- No abuse of discretion in concluding, based on expert affidavit, that bills of insured's two attorneys were not duplicative -- Contingency risk multiplier -- Although only basis for awarding multiplier articulated in order was contingency fee agreement, where there is evidence in record that relevant market requires multiplier to obtain competent counsel, trial court did not abuse its discretion in awarding 1.25 multiplier

9 Fla. L. Weekly Supp. 539a

Insurance -- Personal injury protection -- Med Pay -- Attorney's fees -- Contingency risk multiplier -- In case involving novel issue of reimbursement from Med Pay when a workers' compensation lien is paid, where risk was substantial and chance of success even at outset of case, and market requires a multiplier in order for someone like insured to obtain competent counsel, multiplier of 2.0 is awarded -- Attorneys for insured reasonably anticipated a proper defense and possible proposal for settlement from insurer, and fact that insurer failed to live up to that expectation is not basis for lower multiplier -- Reasonable hourly rate -- Court is satisfied that attorney is quite knowledgeable and skillful in handling first party insurance cases despite attorney's lack of board certification -- Reasonable number of hours -- Hours attorney devoted to clerical functions are not taxable as attorney functions -- Costs -- Expert witness fees and other costs awarded -- Prejudgment interest on attorney's fees and costs awarded

9 Fla. L. Weekly Supp. 769a

Attorney's fees -- Insurance -- Personal injury protection -- Claim that billing for intra-office conferences and memos between attorney and paralegal amounts to over-billing is rejected -- $300 is reasonable hourly rate for attorney with considerable experience and expertise, and $75 is reasonable hourly rate for paralegal with extensive PIP experience -- Contingency risk multiplier of 2.0 is justified where evidence establishes that insureds could not obtain competent counsel in PIP cases without a contingency multiplier, insured's counsel was not able to mitigate the risk of nonpayment in any way other than by litigating case to the point of trial, case involved substantial risk to counsel since it would come down to a battle of medical experts, and success was unlikely at outset -- Costs and expert witness fees awarded

9 Fla. L. Weekly Supp. 640b

Insurance -- Personal injury protection -- Attorney's fees -- Reasonable number of hours expended and reasonable hourly rate determined -- Contingency risk multiplier -- Where relevant market requires contingency risk multiplier to obtain competent counsel in claim for PIP benefits, attorney was not able to mitigate risk of nonpayment in any way, and success was even at time case was initiated, multiplier of 2 is warranted -- Costs -- Fee awarded to expert witness

9 Fla. L. Weekly Supp. 619b

Insurance -- Attorney's fees -- Contingency risk multiplier of 2 is awarded where multiplier was necessary to attract competent counsel because insured's attorneys could not mitigate risk of non-recovery by insureds who could not afford to pay attorney's fees, chance of success in claim against insurer denying coverage due to insured's failure to disclose on application that daughter who is a licensed driver resided in his home was fairly unlikely at outset, and results obtained were maximum available under policy -- Reasonable hourly rates determined -- Costs, including expert witness fee, awarded -- Prejudgment interest awarded from date insurer agreed to insured's entitlement to attorney's fees and costs

9 Fla. L. Weekly Supp. 327a

Insurance -- Attorney's fees

9 Fla. L. Weekly Supp. 95a

Insurance -- Personal injury protection -- Dispute between medical provider and insurer -- Standing -- Assignment -- Where insured intended to apply benefits toward her medical care, and medical provider intended transaction to be an assignment, trial court's finding that documents created assignment and jury verdict predicated thereon are not clearly erroneous despite absence of word ``assignment'' and insured's remaining liability for payment -- Where insured irrevocably transferred right to apply PIP benefits as remuneration for her medical care, she relinquished her rights to PIP payment and no longer retained control to collect, and medical provider legitimately sued for satisfaction of its assignment -- Insurer's argument attacking lack of consideration for assignment is mistaken because this defense is the privilege of assignor -- Assignment is not gratuitous as legal consideration was achieved when insured fully transferred right of payment to medical provider

9 Fla. L. Weekly Supp. 321a

Insurance -- Personal injury protection -- Dispute between medical provider and insurer -- Standing -- Assignment -- Where insurance policy provides that no change of interest in policy is effective unless insurer consents in writing by means of endorsement to the policy, insured was prohibited from assigning rights under policy absent endorsement -- Summary judgment entered against medical provider -- Medical provider to have 30 days within which to file suit on behalf of insured

9 Fla. L. Weekly Supp. 399b

Insurance -- Personal injury protection -- Dispute between medical provider and insurer -- Standing -- Assignment not invalidated by failure of insured to obtain insurer's prior written consent -- Summary judgment based on argument that written document is insufficient as an assignment is denied where there is dispute as to insured's intent to assign rights and benefits to medical provider -- Assignment may be established by parol evidence or additional testimony of the insured -- Summary judgment denied as to three arguments which concern factual disputes as to codes and billing issues

9 Fla. L. Weekly Supp. 780a

Insurance -- Standing -- Assignment -- Purported assignment was ineffective for failure to obtain written consent of insurer as required clear and unambiguous terms of policy -- Insurer's motion for summary judgment granted

9 Fla. L. Weekly Supp. 705b

Insurance -- Assignment -- Failure to comply with procedure set forth in insurance contract

9 Fla. L. Weekly Supp. 402d

Insurance -- Personal injury protection -- Standing -- Assignment -- Motion to dismiss denied where insurer has failed to establish any terms in contract itself forbidding assignment, or that assignment dated more than one year after last date of service violates some rule of public policy or statute

9 Fla. L. Weekly Supp. 148a

Insurance -- Personal injury protection -- Standing -- Assignment -- Revocation -- Where medical provider to which insured had assigned PIP benefits made demand for arbitration several months before insured executed revocation of assignment, revocation was meaningless -- Error to deny insurer's motion for summary judgment since insured did not have standing to maintain suit

9 Fla. L. Weekly Supp. 399a

Insurance -- Personal injury protection -- Standing -- Assignment -- Revocation -- Summary judgment based on medical provider's lack of standing granted where insured signed assignment of benefits and document revoking assignment on same date

9 Fla. L. Weekly Supp. 487b

Insurance -- Personal injury protection -- Medical provider's action against insurer -- Provider's motion for partial summary judgment granted with respect to insurer's affirmative defenses that provider did not have valid assignment of benefits and that provider lacked standing because the patient had previously assigned benefits to another provider -- Medical provider is not precluded from accepting an assignment of benefits and seeking payment from PIP insurer simply because patient provided a prior provider with an assignment of benefits

9 Fla. L. Weekly Supp. 326b

Insurance -- Personal injury protection -- Dispute between medical provider and insurer -- Standing -- Assignment -- Document which authorizes and directs payment of benefits to medical provider and assigns to provider any causes of action insured may have against any insurance obligated to insured for payment of service and treatment does not indicate that the insurance policy was assigned and is not invalid pursuant to policy provision prohibiting assignment of any interest in the policy without written consent of insurer -- There is no unbargained-for risk to insurer from assignment since assignment occurred after date of loss, which by terms of policy occurred at time of accident, not at time PIP benefits became overdue

9 Fla. L. Weekly Supp. 334b

Insurance -- Personal injury protection -- Medical provider which referred and coordinated scheduling of insured's MRI with entity which performed MRI did not render any necessary medical, surgical, x-ray, dental, and rehabilitative services to the insured and is not entitled to payment of any PIP benefits under insurance contract and section 627.736 -- Medical provider's arrangement with actual provider of MRI services, whereby MRI provider billed referring medical provider, and referring medical provider, in turn, billed insurer an increased amount for the MRI is unlawful and in violation of section 817.505 -- Summary judgment granted in favor of insurer

9 Fla. L. Weekly Supp. 878a

Insurance -- Personal injury protection -- Assignment -- PIP portion of provider's financial policy form did not transfer any rights or interests in PIP policy to provider or authorize provider to act on behalf of insured to collect any unpaid balances, but actually placed responsibility for payment of unpaid balance on insured -- Further, neither party to financial policy considered document to be an assignment of benefits -- Insurer's motion for summary judgment in action brought by insured for amounts not paid to provider denied

9 Fla. L. Weekly Supp. 55a

Insurance -- Personal injury protection -- Dispute between medical provider and insurer -- Standing -- Assignment -- Where document calls itself an assignment and transfers the right to receive insurance proceeds from insured to medical provider, and it is apparent from insurer's direct payments to medical provider that insurer regarded itself as justified in paying the medical provider claiming to be assignee, document is valid assignment despite fact that insured remains responsible for payment and collection efforts -- Insurer's motion for summary judgment denied

9 Fla. L. Weekly Supp. 485a

Insurance -- Personal injury protection -- Assignment -- Purported assignment which included provision that insured remain personally responsible for total amounts due assignees for their services and that assignees could demand payments from insured immediately upon rendering service, at their option, was not valid assignment -- Any purported assignment would be ineffective and inoperative in any event in view of clear and unambiguous provision of policy prohibiting assignment without insurer's consent -- Although policy provision requiring consent of insurer to transfer an interest does not apply to assignment after loss, purported assignment in present case occurred prior to any loss being sustained

9 Fla. L. Weekly Supp. 330a

Insurance -- Dispute between medical provider and insurer -- Assignment -- Insurer's motion for summary judgment is granted where purported assignment and HCFA forms do not identify insurance company in which insured was assigning her rights

9 Fla. L. Weekly Supp. 117a

Insurance -- Personal injury protection -- Assignment -- Exhaustion of benefits -- Insurer is not liable under insurance contract for unpaid medical bills of assignee/healthcare provider where insurer had paid out full amount of benefits under contract when assignee filed suit for unpaid bills -- Assignee under an insurance contract can receive no greater rights than assignor had under said contract

9 Fla. L. Weekly Supp. 553a

Insurance -- Personal injury protection -- Standing -- Assignment -- Authorization for direct payment in which insured expressly reserved the right to file complaint is not an assignment -- Where insured replaced unqualified assignment with new document retaining right to proceed to suit for insured, new document supercedes the assignment -- Insurer's motion for summary judgment denied

9 Fla. L. Weekly Supp. 365a

Insurance -- Personal injury protection -- Standing -- Letter executed by insurer, promising to indemnify insured if her medical provider initiated legal action to collect unpaid balances, does not result in enforceable amendment to insurance contract that divests insured of standing to sue in her own capacity -- Assignment -- Although insured executed an assignment to one medical provider, she retained standing as to other medical providers -- Authorizations for direct payment on HCFA forms did not give rise to assignments, equitable or otherwise -- Despite fact that remaining outstanding balances are so stale that the health care providers cannot now go after insured for their balances, where action being taken by insured may properly be taken, and it was timely, statute of limitations argument is without merit -- Error for trial court to enter summary judgment in favor of insurer -- Remand to determine reasonableness of insurer's reductions in payments

9 Fla. L. Weekly Supp. 564a

Insurance -- Personal injury protection -- Standing -- Assignment -- Document stating that it is direct assignment of rights and benefits under policy is valid assignment -- Insurer's motion to dismiss denied

9 Fla. L. Weekly Supp. 169a

Insurance -- Personal injury protection -- Standing -- De facto or implied assignment of benefits -- Document which directs insurer to pay by check to medical provider any outstanding balance at the time of settlement does not assign insured's PIP benefits to provider where there is nothing in the plain language of the document that transfers any of the insured's interest in his PIP benefits or gives provider any rights to enforce insured's claim for benefits, and language is inconsistent with an intent to create an equitable assignment -- Trial court correctly dismissed action with prejudice where amended complaint facially revealed that medical provider lacked standing to bring action against insurer

9 Fla. L. Weekly Supp. 249b

Insurance -- Personal injury protection -- Standing -- Assignment -- Small claims -- It is not necessary to attach copy of assignment in action for PIP benefits in small claims -- Undated assignment that is blank as to provider is sufficient -- Motion to apply Florida Rules of Civil Procedure granted

9 Fla. L. Weekly Supp. 152a

Insurance -- Personal injury protection -- Error to enter summary judgment in favor of medical provider based on insurer's failure to pay or obtain reasonable proof for denial within thirty days of receiving provider's bill -- Standing -- Assignment -- ``Appointment as Agent-in-Fact with full Power of Attorney'' conferred standing on medical provider to maintain lawsuit against insurer

9 Fla. L. Weekly Supp. 154a

Insurance -- Personal injury protection -- Attorney's fees -- Standing -- Assignment -- Issue of medical provider's standing to pursue claim for which attorney's fees were awarded was not properly preserved for review where issue was only raised in affirmative defenses, not in response to provider's motion to establish entitlement to fees or at hearing on that motion -- Even if issue was properly preserved for review, medical provider has standing pursuant to power of attorney that gives provider the power to collect payment for medical services rendered and the right to sue on behalf of insured for any unpaid medical bills -- Trial court correctly determined that medical provider was entitled to attorney's fees based on insurer's confession of judgment by payment of benefits after litigation commenced

9 Fla. L. Weekly Supp. 631c

Insurance -- Personal injury protection -- Standing -- Assignment -- Where financial agreement authorizes direct payment to medical provider in one paragraph and states that it assigns benefits to medical provider in another, document is ambiguous as to whether assignment was intended or whether it is direction to pay, and court may consider evidence of parties' intent -- Insurer's motion to dismiss is denied

9 Fla. L. Weekly Supp. 639a

Insurance -- Personal injury protection -- Standing -- Assignment -- Document that states it is a direct assignment of rights and benefits under policy is a valid assignment, not direction to pay -- Absence of medical provider's signature alone does not invalidate otherwise valid assignment -- Court may look to medical provider's conduct in providing treatment, submitting bills to insurer, and filing PIP suit to determine medical provider's intent to accept assignment -- Motion to dismiss denied

9 Fla. L. Weekly Supp. 170b

Insurance -- Personal injury protection -- Standing -- Equitable assignment -- Trial court erred in failing to put aside jury's determination that an assignment existed and denying insured's motion for directed verdict on issue of existence of an assignment in absence of any meaningful evidence to support the existence of an assignment where there was no document formally assigning insured's rights under her PIP policy to medical provider, provider and insured testified that they had no agreement as to an assignment, provider testified that she did not intend to enter into an assignment with insured, and insured testified that she did not understand the significance of an assignment and merely wanted the care she needed -- Direct payment from insurer to provider and assertion on claim form that there was an assignment, in absence of an additional writing or other understanding, are not evidence of an equitable assignment -- Fact that other medical providers accepted assignments from insured is irrelevant as to the agreement between insured and this provider

9 Fla. L. Weekly Supp. 777a

Insurance -- Personal injury protection -- Standing -- Assignment -- Document containing titles of “Assignment” and “Assignment of Medical Benefits” and text describing only direction to pay is ambiguous -- Where insurer's personnel treated insurer-created document as an assignment and made payment to medical provider in accordance with policy to only make payments directly to medical provider if provider has accepted an assignment of benefits, it would be inequitable to allow insurer to deny that document is an assignment -- Summary judgment entered in favor of medical provider on standing issue

9 Fla. L. Weekly Supp. 328a

Insurance -- Personal injury protection -- Dispute between medical provider and insurer -- Standing -- Assignment -- Where first paragraph of document provides that insured is merely directing payment from insurer to medical provider, and last paragraph indicates that medical provider is accepting an assignment but is unsigned by provider, document is a direction to pay, not an assignment

9 Fla. L. Weekly Supp. 51b

Insurance -- Dispute between medical provider and insurer -- Standing -- Assignment -- Document is insufficient to constitute valid assignment, but instead is a direction to pay -- Motion for summary judgment granted

9 Fla. L. Weekly Supp. 250b

Insurance -- Personal injury protection -- Medical bills -- Where medical bills are not countersigned by insured, insurer may not pay the assignee medical provider directly -- Insurer cannot in good faith pay insured who has assigned claim -- Where medical provider failed to follow guidelines of HCFA form 1500 which require patient's signature in addition to that of physician or medical supplier, insurer has not been provided with notice of a covered loss and has not breached its duties under statutes and policy -- Form reflecting words ``Signature on file'' does not attest to treatment rendered -- Line of HCFA form which authorizes insurer to issue payment to medical provider does not comply with statutory requirement that insured attest that medical charges have actually been rendered to best knowledge of insured -- Even if medical provider were now to resubmit HCFA form countersigned, medical provider would be barred from recovery because both 30-day and 60-day periods for claims will have expired -- Insurer's motion for summary judgment granted

9 Fla. L. Weekly Supp. 553b

Insurance -- Personal injury protection -- Standing -- Assignment -- Where both insured and medical provider affirm that ``Direct Payment Authorization Without Assignment of Benefits'' was not an assignment of benefits, and insurer has not shown that arrangement is illegal, contrary to public policy or prohibited by insurer's contract with insured, document is not assignment -- Insurer's motion for summary judgment denied

9 Fla. L. Weekly Supp. 707a

Insurance -- Personal injury protection -- Standing -- Assignment -- Where document directs payment to medical provider and states that it is a direct assignment of insured's rights and benefits under policy, there remains a question of fact regarding intent of insured and medical provider which makes insurer's motion for summary judgment premature

9 Fla. L. Weekly Supp. 748a

Insurance -- Personal injury protection -- Standing -- Assignment -- Absence of formal assignment -- Equitable assignment -- Provider does not have standing to sue under theory of equitable assignment based solely on HCFA forms allowing direct payment to health care provider by insurer

9 Fla. L. Weekly Supp. 92b

Insurance -- Dispute between medical provider and insurer -- Standing -- Assignment -- Error to enter summary judgment in favor of insurer where both language of alleged assignment and insured's deposition testimony are ambiguous, such that a genuine issue of material fact remains as to what insured intended to transfer -- Medical provider's motion for attorney's fees pursuant to section 627.428 is denied since provider has not yet been determined to be insured's assignee

9 Fla. L. Weekly Supp. 127a

Insurance -- Dispute between medical provider and insurer -- Motion for summary judgment denied where insurer failed to plead affirmative defenses covering grounds for motion -- Insured who executed assignment of benefits had no standing to settle benefits owed by insurer to provider

9 Fla. L. Weekly Supp. 362a

Torts -- Insurance -- Jury instructions -- No error in not giving concurrent cause instruction where plaintiff did not plead or prove that pre-existing condition of his dental bridge led to damages he suffered but, rather, maintained that his bridge was in good condition prior to the accident -- It was within purview of trial court to determine whether insurer's violation of pre-trial order by making comments concerning settlement offers warranted a mistrial -- Trial court correctly denied request for directed verdict where there were issues of fact for the jury to consider due to conflicting testimony

9 Fla. L. Weekly Supp. 535a

Insurance -- Windstorm -- Rates -- Arbitration -- Constitutionality -- Delegation of insurance rate determinations to arbitration panels is not unconstitutional -- Separation of powers -- Where arbitrators are not members of judicial or executive branches, their activities do not constitute an encroachment on legislative powers by another branch -- Due process -- Challenged statutes do not deprive plaintiffs of due process of law where the procedures for premium rate determinations, including provision for arbitration as an alternative to Chapter 120 proceedings, are rationally related to assisting the economic viability of property insurers, and plaintiffs have not shown that they have a constitutionally protected right which overrides compelling state interest in maintaining viable and orderly private sector market for property insurance in state -- No merit to claim that statute provides statutory due process by requiring a hearing if a rate filing based on computer data exceeds 25% where Florida Windstorm Underwriting Association held hearings during development of the filing, meetings of the actuarial committee were publicly noticed, and arbitration hearing was open to public -- Fact that Association's plan of operation provides that association's rates shall be those approved by the Department of Insurance does not render statute providing for arbitration invalid where section 627.062(6)(a) states that department and insurer must treat arbitrator's decision as final and, therefore, arbitration resulted in department approval as matter of law -- Summary judgment granted in favor of defendants

9 Fla. L. Weekly Supp. 217a

Insurance -- Personal injury protection -- Arbitration -- Attorney's fees -- Appeals -- Issue of whether a medical provider as the PIP insured's assignee may receive attorney's fees when the insurer pays the full amount of the outstanding bill after receiving a demand for arbitration but before suit is filed involves pure legal determination of entitlement to fees that is subject to de novo standard of review -- Error to award attorney's fees to medical providers where demands for arbitration were made after section 627.736(5) was declared unconstitutional by Fifth District Court of Appeal, and insurer paid full amount of claim plus interest before suit was filed -- Appellate fees awarded to insurer as prevailing party

9 Fla. L. Weekly Supp. 368b

Insurance -- Personal injury protection -- Error to enter summary judgment in favor of insurer which denied claim based on alleged material misrepresentation in application since materiality of misrepresentation is a question of fact to be determined by the trier of fact

9 Fla. L. Weekly Supp. 626b

Insurance -- Personal injury protection -- Application -- Misrepresentation -- Insurer is estopped from asserting affirmative defense that policy was void ab initio based upon alleged material misrepresentation by insured failing to list other household members on application where insurer continued to collect and retained insurance premiums from insured -- Further, there is no evidence that any misrepresentation was material where there is no evidence that had insurer known the alleged true facts it would not have issued policy at same rate or in as large an amount, or would not have covered the hazard that resulted in the loss -- Affirmative defense stricken with prejudice

9 Fla. L. Weekly Supp. 851d

Insurance -- Automobile -- Rescission of policy -- Material misrepresentations on application -- Where evidence establishes that insurer would not have issued policy to insured at same premium if residence of insured's daughter within household had been disclosed on application, insurer did not err in declaring policy void ab initio, denying coverage thereunder, and returning all premium payments to insured -- Final summary judgment granted in favor of insurer

9 Fla. L. Weekly Supp. 505a

Attorney's fees -- Insurance -- Personal injury protection -- Contingency risk multiplier -- Trial court's finding that chance of success at outset of case was less than even is reasonable in light of evidence that insured's physicians did not support the chiropractic treatment for which she was denied benefits and the presence of arbitration and standing issues -- No abuse of discretion in application of 2.5 multiplier where there was evidence that multiplier was required to obtain competent counsel due to small amount in controversy, that insured's attorneys could not have mitigated risk of nonpayment, that there was contingency fee agreement, that insured did not have financial resources to pay a reasonable hourly rate, and that insurer eventually paid 100% of disputed bills -- Reasonable number of hours -- No abuse of discretion in awarding fees to both of insured's attorneys where trial court considered insurer's argument that attorneys' efforts were duplicative and reduced their hours -- No merit to insurer's argument that award of attorney's fees was contrary to manifest justice of case due to small amount in controversy where insurer failed to show trial court abused its discretion in its award -- Appeals -- Record -- Where parties did not file any transcripts of lower court proceedings, a stipulated statement or a statement of the evidence or proceedings, and parties pointed out deficiency in the record in their briefs but did not move to supplement the record, parties waived compliance with rule 9.200(f) -- Post-judgment fees -- No error in award of post-judgment attorney's fees for efforts of attorneys representing insured's attorneys to enforce judgments awarding attorney's fees where insurer filed notices of appeal of judgments but failed to post civil supersedeas bonds to stay enforcement -- No error in denial of contingency risk multiplier in award of post-judgment attorney's fees where attorneys were not retained until after final judgments awarding fees were entered, and trial court found likelihood of collection of judgments from solvent insurer to be great -- No error in denying insured's motion to tax post-judgment costs and attorney's fees of her attorneys based on determination that insured had no interest in attorneys' efforts to collect attorney's fees and costs post-judgment -- Appellate fees -- Insured's motion for appellate fees for appeals of attorney's fees judgments denied because issue of entitlement to multiplier goes to amount of fees, not entitlement to the award -- As prevailing party on the significant issues, insured is awarded attorney's fees and costs for appeals of post-judgment attorney's fees awards

9 Fla. L. Weekly Supp. 820a

Insurance -- Personal injury protection -- Standing -- Assignment -- Inconsistent documents -- Execution on same day of assignment of benefits and power of attorney which states it is not intended as an assignment and any provisions so interpreted shall be considered null and void -- Appeals -- Preservation of issues -- Issue of trial court's consideration of unauthenticated power of attorney cannot be raised for first time on appeal -- Further, medical provider which admitted authenticity of power of attorney below cannot challenge it on appeal -- Where either both documents or the assignment was revoked, the order in which the documents were executed is not an issue of material fact precluding summary judgment -- Trial court correctly determined, as a matter of law, that the co-existing documents are inconsistent and a nullity as a matter of law due to their inconsistency

9 Fla. L. Weekly Supp. 223a

Appeals -- Insurance -- Order dismissing declaratory judgment count in multi-count complaint is not appealable final order -- Even if order were appealable, appeal is premature where declaratory judgment count was interrelated with remaining count of complaint -- Appellate attorney's fees -- Justiciable issues -- Where jurisdictional issue does not appear to have been previously addressed in context of appeal from county court to circuit court, court cannot say that appellant's attorney should have known appellate jurisdiction would not be supported by existing law -- However, appellant's failure to provide transcript rendered appeal without merit -- Appellate fees awarded

9 Fla. L. Weekly Supp. 499b

Insurance -- Personal injury protection -- Appeals -- Summary judgment based on case that has since been reversed is reversed -- Appellate court must make ruling in accord with law in effect at time of appellate decision, not at time of entry of judgment

9 Fla. L. Weekly Supp. 284a

Insurance -- Amendment to policy -- Validity

9 Fla. L. Weekly Supp. 283a

Insurance -- Disability -- Coverage -- Exclusions -- Workers' compensation -- Exclusion in disability insurance policy for any loss caused or contributed to by injury or sickness ``to the extent you are entitled to benefits under, or obtain any settlement related to, any workers' compensation or occupational diseases law'' is ambiguous as to whether insured is completely barred from recovery under the disability policy because he received workers' compensation benefits covering part of his loss -- Because policy language is ambiguous and no duplication of benefits would occur, exclusionary language is construed against insurer -- Summary final judgment in favor of insurer reversed -- Remand with instructions to enter summary judgment for insured on issue of coverage

9 Fla. L. Weekly Supp. 15a

Insurance -- Automobile -- Error to enter summary judgment in favor of insurer on ground that insured made material misrepresentation on policy application by failing to list name of brother over age 15 living with him -- Question on application under heading ``Drivers Information'' asking insured to list all persons who have reached the age of 15 and reside with insured was ambiguous in that it was equivocal