Volume 11

11 Fla. L. Weekly Supp. 918a

Insurance — Personal injury protection — Affirmative defenses — Fraud defense is stricken where insurer has not pled fraud with particularity and has failed to prove fraud — Coverage — Denial — Unreasonable, unnecessary or unrelated medical expenses — Where insurer failed to substantially impeach medical expert testimony of treating physician or present countervailing evidence from licensed physician to dispute reasonableness, relatedness or necessity of medical expenses, summary judgment is granted in favor of medical provider

11 Fla. L. Weekly Supp. 915b

Insurance — Personal injury protection — Coverage — Denial — Unreasonable, unnecessary or unrelated medical expenses — Affidavit of PIP litigation adjuster is not sufficient to rebut sworn testimony of treating physician on issue of whether medical expenses are reasonable, necessary or related — Claims — Countersignature of insured — Assigned claim — Insured’s failure to countersign HCFA forms did not discharge insurer’s obligation to pay PIP benefits where insured has signed assignment of benefits — Affirmative defenses — Fraud defense is stricken where insurer has not alleged fraud with sufficient particularity and has failed to prove fraud — Summary judgment granted in favor of insured and medical provider

11 Fla. L. Weekly Supp. 454b

Insurance — Personal injury protection — Coverage — Medical expenses — MRI services were reasonable, related and necessary as result of accident and injuries sustained by insured — Charges awarded based on fee schedule set forth in statute — Summary judgment granted in favor of plaintiff as to defenses of countersignature, timely notice of loss, and fraud — Defendant failed to properly plead elements of fraud and failed to provide any evidence or proffer of evidence which would support fraud defense — Plaintiff’s motion for summary judgment granted

11 Fla. L. Weekly Supp. 297b

Insurance — Personal injury protection — Coverage — Defenses — Fraud — Order striking insurer’s affirmative defense of fraud was warranted where allegations of fraud were too general and conclusory to establish affirmative defense — Claim that hearing on motion to strike proceeded without adequate notice to insurer was resolved by trial court granting insurer’s motion for rehearing and reconsideration of order striking affirmative defense — Summary judgment — Although insurer did not submit any evidence in opposition to summary judgment, entry of summary judgment in favor of insured was error where insured’s reliance on hearsay patient account ledger as proof of medical expenses caused him to fall short of establishing prima facie case — Reversed and remanded

11 Fla. L. Weekly Supp. 733b

Insurance — Personal injury protection — Coverage — Defenses — Fraud defense is stricken where insurer has failed to comply with requirement to plead elements of fraud with particularity and has failed to provide any record evidence of fraud — Demand letter — Providers substantially complied with intent of section 627.730(11) in sending demand letters, despite fact that letters were not sent to insurer’s designated representative, where insurer never contended that letters were never received, were legally deficient in any way or whether statute was even applicable to claims

11 Fla. L. Weekly Supp. 353a

Insurance — Personal injury protection — Discovery — Depositions — Expert witness fee — Treating physician qualifies as expert witness entitled to fee for deposition testimony — $400 per hour is reasonable fee — Question certified: Is a treating physician, who has not been retained or specially employed by another party in anticipation of litigation or preparation for trial, entitled to an expert witness deposition fee under Florida Rule of Civil Procedure 1.390?

11 Fla. L. Weekly Supp. 146a

Insurance — Personal injury protection — Evidence — Hearsay — Insurer’s motion for directed verdict based on argument that medical provider failed to meet burden of proof that accident occurred is denied — History of accident given by insured to physician is admissible as exception to hearsay rule and sufficient to permit question of whether or not accident occurred to go to jury — Although court overruled insurer’s objection to admission of patient file based on objection to qualifications of records custodian, insurer did not object to admission of accident report contained within file, and accident report could be given same weight as any non-hearsay or hearsay exception evidence — Reasonable, related, and necessary treatment — Directed verdict is granted in favor of medical provider on issue of whether or not treatment was reasonable, related or necessary where insurer did not produce report from physician licensed under same chapter as treating physician dated prior to denial of payment stating that treatment rendered was not reasonable, related or necessary — Directed verdict also granted on ground that insurer failed to present expert testimony to counter testimony of medical provider’s expert that treatment was reasonable, related, and necessary

11 Fla. L. Weekly Supp. 477d

Insurance — Personal injury protection — Dismissal — Failure to prosecute — Order transferring case due to improper venue constitutes sufficient record activity to deny motion to dismiss

11 Fla. L. Weekly Supp. 403a

Insurance — Small claims — Dismissal — Failure to prosecute — Denial — Good cause — No abuse of discretion in denying motion to dismiss for failure to prosecute where, although there was no record activity within 6 months, plaintiff had contact with insurer’s counsel and insurer was responsible for significant portion of inactive time by cancelling depositions and ignoring discovery obligations — Further, there is no basis on which to find abuse of discretion where insurer has failed to provide transcript of hearing below

11 Fla. L. Weekly Supp. 1070c

Small claims — Insurance — Personal injury protection — Dismissal for failure to prosecute and to show good cause in writing why action should remain pending