Volume 12

12 Fla. L. Weekly Supp. 678b

Insurance — Personal injury protection — Explanation of benefits — Failure to provide requested information — Where medical provider failed to provide additional information requested in EOBs issued within 30 days of insurer’s receipt of bills, bills never became overdue, and insurer is relieved of duty to pay PIP benefits

12 Fla. L. Weekly Supp. 677a

Insurance — Personal injury protection — Coverage — Denial — Explanation of benefits — Because provisions of PIP statute became part of insurance contract, insurer breached contract when it failed to comply with statutory requirement to provide EOB itemizing charges received and detailing reasons for non-payment and failed to respond to medical provider’s pre-suit demand letter specifically requesting that information

ORDER GRANTING DEFENDANT’S MOTION FORSUMMARY FINAL JUDGMENT, and FINAL SUMMARYJUDGMENT IN FAVOR OF DEFENDANT

12 Fla. L. Weekly Supp. 505b

Insurance — Personal injury protection — Delay in payment of benefits — Tolling of period — Explanation of benefits — Where insurer did not dispute amount of charge for TNS unit but sent EOB requesting invoice 10 days after receipt of bill, EOB tolled 30-day time limit for making payment and insurer had 20 days after receipt of invoice to make payment — Demand letter — No merit to insurer’s argument that it cannot be held liable for TNS unit bill being overdue because demand letter needed to be sent after invoice was received by insurer and 20 days passed without payment where insurer stipulated during discovery that condition precedent of demand letter as to TNS unit was satisfied and never took any action to dismiss suit or amend answer to assert affirmative defense or notified medical provider that insurer required another suit to be filed to litigate TNS unit bill — Partial summary judgment granted as to bill

12 Fla. L. Weekly Supp. 1077a

Insurance — Personal injury protection — Notice of loss — No merit to defense of failure to provide written notice of accident where insured provided notice of claim as soon as practicable — There was no prejudice to insurer from any alleged late notice, as insurer delayed in scheduling independent medical examination and examination under oath — Fraud — Insurer failed to specifically plead claim for fraud where insurer failed to state that it relied on representation in billings and was damaged by expenses incurred in investigating fraudulent claim — Insurer, which did not pay any bills, has not sustained any damages or relied to its detriment on claims for payment — Coverage — Medical expenses — Reasonable, related and necessary treatment — Peer review report is not considered for purposes of ruling on motion for summary judgment where insurer did not furnish report until hearing on motion — IME report and peer review report prepared for purposes of litigation are not admissible under business records exception to hearsay rule — Affidavit and deposition testimony of adjuster concerning IME physician’s report is not competent to create genuine issue of material fact regarding reasonableness, relatedness or necessity of treatment — Where insurer failed to either substantially impeach medical expert testimony of treating physician or present countervailing evidence from licensed physician to dispute reasonable, related and necessary medical services and expenses, and insurer failed to establish that medical providers have not complied with any conditions precedent to suit, providers are entitled to summary judgment

12 Fla. L. Weekly Supp. 589b

Insurance — Personal injury protection — Coverage — Medical expenses — Summary judgment is granted as to issues of insured’s involvement in accident and coverage by valid policy where medical provider provided record evidence meeting its burden of proof, and insurer failed to come come forward with contrary evidence — Ruling is reserved on issue of whether MRI was reasonable, necessary and related until after hearing to determine why two peer review reports are materially different — By agreement of parties, summary judgment is granted on issues of timeliness of billing and insurer’s payment and whether denial of benefits was properly based on alleged failure to give timely notice of accident

12 Fla. L. Weekly Supp. 589a

Insurance — Personal injury protection — Coverage — Medical expenses — Summary judgment is granted as to issues of insured’s involvement in accident and coverage by valid policy where medical provider provided record evidence meeting its burden of proof, and insurer failed to come come forward with contrary evidence — Ruling is reserved on issue of whether MRI was reasonable, necessary and related until after hearing to determine why two peer review reports are materially different — By agreement of parties, summary judgment is granted on issues of timeliness of billing and insurer’s payment and whether denial of benefits was properly based on alleged failure to give timely notice of accident

12 Fla. L. Weekly Supp. 714a

Insurance — Personal injury protection — Complaint — Dismissal — Error to grant motion in limine and dismiss suit on ground that subsequent bills incurred after insured failed to attend independent medical examination were not pleaded in complaint and those pled were already paid where complaint was sufficient to include subsequent bills incurred, as evidenced by fact that insurer did not seek voluntary dismissal after paying bills incurred before IME but instead asserted affirmative defense of failure to attend IME, and it is clear that insurer knew that complaint included subsequent bills incurred after IME — Further, ruling on motion in limine was erroneous where motion was actually motion for summary judgment or motion for judgment on pleadings

12 Fla. L. Weekly Supp. 875a

Insurance — Personal injury protection — Coverage — Medical expenses — Magnetic resonance imaging — Where affidavit of physician who requested MRIs supports finding that MRIs were reasonable, related and necessary, and insurer filed only unauthenticated hearsay report in opposition, medical provider that performed MRI is entitled to payment for MRI based on Medicare fee schedule — Demand letter — Insurer’s denial of bills due to lack of countersignature relieved provider of necessity of serving pre-suit demand letter — Examination under oath — Failure to attend — Where EUO was not scheduled to occur within 30 days of insurer’s receipt of bills, defense of failure to attend EUO is not available — Further, suspension of benefits prior to dates of scheduled EUOs, based on independent medical examination, constituted anticipatory breach that discharged insured’s duty to attend EUO — Final summary judgment entered in favor of provider

12 Fla. L. Weekly Supp. 967a

Insurance — Personal injury protection — Coverage — Affirmative defenses — Notice of loss — Medical provider has overcome any prejudice from 37 day delay between accident and notice to insurer where insurer was fully able to investigate claim through independent medical examination, examination under oath, and peer review — Disclosure and acknowledgment form — Summary judgment is granted in favor of medical provider on affirmative defense of failure to provide disclosure and acknowledgment form where copy of form that substantially complied with statutory requirement was filed with affidavit of provider’s records custodian — Unreasonable, unrelated or unnecessary treatment — Summary judgment is granted in favor of provider as to affirmative defense that treatment was unreasonable, unrelated or unnecessary where provider filed affidavit of treating physician attesting that treatment was related and necessary and affidavit of records custodian attesting that charges were reasonable, and insurer filed peer review that did not establish that insurer had reasonable proof pursuant to statute — Where IME report raises disputed issues of material fact as to reasonableness, relatedness or necessity of medical treatment rendered after IME date, summary judgment is granted in favor of provider as to dates of service prior to IME cutoff only