Volume 12

12 Fla. L. Weekly Supp. 41b

Insurance — Personal injury protection — Coverage — Defenses — Failure to attend examination under oath — Error to strike defense on grounds that EUO requirement was extinguished by assignment of benefits — Answer and affirmative defense specifying failure to attend EUO as condition precedent that did not occur set forth defense with particularity — No merit to argument that defense was properly stricken because insurer breached policy prior to insured’s failure to attend EUO by failing to pay claim within 30 days without reasonable proof that it was not liable for claim where insurer scheduled EUO to occur within 30 days of receipt of medical provider’s bill, although it also provided alternative date outside 30-day period — Where issue is reasonableness of charges, rather than whether medical services were reasonable, related, and necessary, affidavit of litigation adjuster stating charges were above usual and customary charges was competent evidence disputing medical provider’s affidavit and granting of summary judgment on issue was improper

12 Fla. L. Weekly Supp. 1174b

Insurance — Personal injury protection — Coverage — Medical benefits — MRI — Summary judgment entered in favor of provider, as assignee of insured — Civil procedure — Affidavit of insurer’s claims adjuster was untimely and therefore inadmissible for purposes of summary judgment where affidavit was not mailed five days prior to hearing — Notice of accident — Insurer was not prejudiced by twenty-six-delay in reporting accident since insurer did not schedule examination under oath until more than five months after receipt of notice of accident/loss and did not schedule independent medical examination for more than four months after receiving notice of accident/loss — Insurer’s allegation that referring physician committed fraud was not pled with specificity and particularity required by law, and, accordingly, this affirmative defense is stricken — Affidavit of treating/referring physician that MRI at issue was reasonable, medically necessary, and related to subject motor vehicle accident was not substantially impeached by insurer

12 Fla. L. Weekly Supp. 792b

Insurance — Personal injury protection — Coverage — Affirmative defenses — Amendment — Timeliness of motion — Where case had already been pending for 18 months when insurer filed motion to amend affirmative defenses to allege material misrepresentation, case involves relatively small amount in dispute, medical provider has already been required to come to court several times on pretrial matters at behest of insurer, and insurer is unable to advise court of legitimate reasons for significant delay in case, motion to amend affirmative defenses is denied

12 Fla. L. Weekly Supp. 709d

Insurance — Personal injury protection — Coverage — Affirmative defenses — Amendment — No error in failing to consider insurer’s amended answer and affirmative defenses prior to entry of summary judgment where insurer never obtained leave of court to file amended pleading — Affirmative defense of failure of insured to countersign bill was properly stricken — Grant of partial summary judgment as to defense of lack or lateness of written notice of accident was proper where insurer failed to show any prejudice from receiving notice when it did — No error in entry of summary judgment as to defense of fraud where defense was withdrawn and than raised again in amended answer that insurer did not obtain leave to file — No error in entering summary judgment as to defenses of failure to provide insurer with valid assignment and reasonableness, relatedness and necessity of medical expenses where defenses had already either been stricken or ruled upon by trial court — Error to enter summary judgment where affirmative defense of failure to attend independent medical examinations that was raised in original answer and affirmative defenses but was never disproved or found by trial court to be legally insufficient prior to entry of summary judgment

12 Fla. L. Weekly Supp. 517a

Insurance — Personal injury protection — Coverage — Appeal of order granting summary judgment in PIP action brought by plaintiff injured while driving parents’ vehicle against insurer of parents’ vehicle and insurer of vehicle co-owned by plaintiff and former fiance — Where trial court granted summary judgment in favor of insurer of co-owned vehicle, holding that PIP coverage under policy would only apply to plaintiff if she was driving co-owned vehicle or another vehicle insured under that policy because she was not named insured on policy, and same court subsequently entered summary judgment in favor of insurer of parents’ vehicle, determining that plaintiff did have PIP coverage with insurer of co-owned vehicle, factual and legal inconsistencies in two orders precluded entry of summary judgment — Summary judgment in favor of insurer of parents’ vehicle is reversed

12 Fla. L. Weekly Supp. 81a

Insurance — Personal injury protection — Coverage — Affirmative defenses — Fraud defense is stricken where insurer has failed to satisfy requirements that it make specific allegations and clearly state facts constituting fraud — Reasonable, related or necessary medical expenses — Medical provider was not required to file sworn testimony from referring physician stating that disputed orthopedic exam was medically necessary and related to accident — Examining physician is qualified to testify to necessity and relatedness of own exam — Service of attachments to affidavits on evening before summary judgment hearing did not prejudice insurer where documents had been in insurer’s possession as early as claim and certainly by time of discovery — Where provider filed affidavits of treating physicians which establish that all treatment was related to accident, reasonable, and necessary; and insurer failed to either substantially impeach medical expert testimony of treating physicians, present countervailing evidence from licensed physician, or establish that provider has not complied with conditions precedent; provider is entitled to summary judgment

12 Fla. L. Weekly Supp. 445b

Insurance — Personal injury protection — Coverage — Affirmative defenses — Amendment — No abuse of discretion in denying insurer’s motion to amend affirmative defenses

12 Fla. L. Weekly Supp. 669b

Insurance — Personal injury protection — Counterclaims — Motion to dismiss insurer’s counterclaims for failure to comply with statutory pre-suit requirements is denied — Motion to dismiss counterclaims of fraud and unjust enrichment is denied where insurer has stated cause of action and pled with specificity and clarity — Counterclaim for unlawfully providing service and false or misleading statement under criminal statute is dismissed — Motion to dismiss counterclaim for illegal kickback is denied where insurer has stated cause of action

12 Fla. L. Weekly Supp. 319a

Insurance — Personal injury protection — Trial — Continuance — Denial — Abuse of discretion to deny insurer’s emergency motion for continuance where less than two weeks before trial both named owners of medical provider were arrested for allegedly rendering fraudulent treatment and making improper solicitation of patients, and insurer sought continuance to depose owners and insured to determine whether insured received fraudulent treatment or improper solicitation

12 Fla. L. Weekly Supp. 167a

Insurance — Personal injury protection — Complaint — Sufficiency — Statute that requires demand letter as condition precedent to filing PIP suit does not require that letter and its attachments be attached to complaint