Volume 10

10 Fla. L. Weekly Supp. 129a

Insurance — Personal injury protection — Fraud — Insurer’s motion for leave to amend complaint for declaratory relief and unjust enrichment against diagnostic service which filed claim for MRIs but failed to disclose identity of imaging facility that actually made MRI images, seeking to add count for fraud and assert entitlement to punitive damages and attorney’s fees — There is no basis in law or equity to support claim for attorney’s fees where attorney’s fees cannot be recovered in action for declaratory relief, and insurer has no standing to assert a claim based on violation of patient brokering statute — Where MRIs were unquestionably covered services, and there was no allegations that patients, imaging facilities or radiologists have timely made competing claims in connection with the MRIs, insurer has failed to allege facts showing damage — Patients, imaging facilities, and radiologists are indispensable parties which insurer failed to join — Motion for leave to amend denied without prejudice

10 Fla. L. Weekly Supp. 212a

Insurance — Personal injury protection — Discovery — Depositions — Expert witness fee — Treating physician is entitled to expert fee for deposition testimony concerning the subject matter of his expertise, including treatment rendered to insured

10 Fla. L. Weekly Supp. 733a

Insurance — Bankruptcy — Proceedings on fees and costs due insurer are stayed pending resolution of medical provider’s bankruptcy proceedings

10 Fla. L. Weekly Supp. 478b

Insurance — Venue — Forum non conveniens — Appeals — Stay — Where Orange County Court granted request to transfer venue to Hillsborough County, plaintiff medical provider filed notice of appeal of venue decision in Ninth Circuit and motion for stay of Hillsborough County proceedings, but then withdrew motion for stay and proceeded with litigation in Hillsborough County to final judgment, Ninth Circuit’s exercise of review was exercise of discretionary certiorari jurisdiction which did not stay proceedings in Hillsborough County, and Hillsborough County Court was not precluded from entering final judgment — Additionally, medical provider’s withdrawal of request for stay and participation in proceedings in Hillsborough County waived venue — Finally, medical provider has not demonstrated prejudice where trial court could reach no other conclusion than that provider lacks standing because bills submitted to insurer were from orthopaedic corporation not named in suit, and record indicates no connection between treatment rendered to insured and provider — Although provider and orthopaedic corporation have mutual director, they are separate and distinct corporations — No error in granting summary judgment in favor of insurer without leave to amend

10 Fla. L. Weekly Supp. 644a

Insurance — Release — Insured’s assignee is not barred from pursuing claim by previous release of insurer executed by insured in separate uninsured motorist claim

10 Fla. L. Weekly Supp. 635b

Insurance — Medical provider’s motion to strike insurer’s affirmative defenses that assert that medical provider is not entitled to collect additional sums for which it is seeking payment because it failed to properly complete claim forms and that medical provider was adequately paid for services provided is granted because assertions are not affirmative defenses but factual argument — Motion to strike affirmative defenses that allege that amounts not paid to medical provider are not due because medical provider is engaged in attempted theft of amount by fraud and attempted fraud is denied — Motion to strike affirmative defense that is denial of performance of conditions precedent already denied in answer is granted

10 Fla. L. Weekly Supp. 673a

Insurance — Personal injury protection — Coverage — Unregistered medical provider — Error to grant motion to dismiss on ground that clinic must allege in its complaint that it was registered with Department of Health — Consideration of evidence of clinic’s date of registration impermissibly extended beyond four corners of complaint — Evidence should be considered as affirmative defense or in motion for summary judgment, not motion to dismiss

10 Fla. L. Weekly Supp. 456b

Insurance — Complaint stricken and case dismissed with prejudice where plaintiff perpetrated fraud on court by misrepresenting and omitting information regarding lost wage and loss of earning capacity claim in discovery responses and complaint

10 Fla. L. Weekly Supp. 468b

Insurance — Small claims — Dismissal — Failure to prosecute — Trial court erred in finding that late docketed subpoena return constituted record activity where return was filed one month beyond six month limit of rule 7.110(e) — No merit to argument that trial court implicitly found good cause why action should remain pending when it granted motion to compel insurer to respond to discovery requests filed with complaint — Insurer’s failure to respond to discovery does not establish compelling circumstances necessary to qualify for “good cause” exception to rule — Remand to enter order granting motion to dismiss

10 Fla. L. Weekly Supp. 437b

Insurance — Complaint — Because there is no requirement to attach insurance policy to complaint or state dates of service at issue in complaint, motion to dismiss is denied, but motion for more definite statement is granted