Volume 12

12 Fla. L. Weekly Supp. 1027b

Insurance — Personal injury protection — Discovery — Expert witnesses — No abuse of discretion in exclusion of undisclosed expert witness

12 Fla. L. Weekly Supp. 1037a

Insurance — Personal injury protection — Examination under oath — Any error in jury instruction imposing element of unreasonable refusal on policy condition requiring insured to submit to EUO was harmless where insured was not obligated to attend EUOs scheduled outside thirty-day statutory period for investigation of claim — Expert witnesses — Where insurer failed to comply with order to provide answers to expert witness interrogatories within seven days or be precluded from having expert witness testify at trial, and had yet to provide answers by time of trial, prohibiting witness’s testimony was well within ambit of court’s power — No abuse of discretion in prohibiting insurer’s corporate representative from testifying about computer notes regarding insured’s case file — Witness’s memory could not have been refreshed by notes he did not create and about which he had no personal knowledge — Testimony could not have been allowed under business records exception to hearsay rule since actual notes were never entered into record by insurer claiming work product privilege, and witness had no personal knowledge of notes

12 Fla. L. Weekly Supp. 88a

Insurance — Personal injury protection — Discovery — Failure to comply — Sanctions — Where insurer and expert medical witness failed to comply with court order requiring production of reports of independent medical examinations performed by witness and 1099 forms reflecting compensation for IMEs, failure to comply is without excuse, and failure to provide timely and complete discovery resulted in unjust and undue prejudice to medical provider, expert witness is stricken

12 Fla. L. Weekly Supp. 1038a

Insurance — Personal injury protection — Discovery — Computer database used to determine usual and customary charges — No merit to arguments that court erred in ordering discovery of materials related to database which uses information compiled and supplied by independent third parties because database is not within possession, custody, or control of insurer and because material is irrelevant to central issues of PIP suit for balance of reduced bills where insurer intends to rely on database as defense — No error in failing to conduct in camera inspection upon insurer’s assertion that materials constitute trade secret — Insurer that does not possess privilege in own right and is not agent or employee of third party privilege holders may not assert privilege

12 Fla. L. Weekly Supp. 1094a

Insurance — Personal injury protection — Discovery — Insurer’s claims representative is required to produce at deposition all relevant policies, adjuster computer entries, and notes in PIP file up until date adversarial process began, entire PIP file, documentation regarding proper procedure for reviewing PIP claims or for handling and resolving PIP claims, any correspondence or reports received regarding insured’s medical condition, informational bulletins relied on in calculation of claim, and any surveillance reports or other investigative reports with regard to insured

12 Fla. L. Weekly Supp. 1070b

Insurance — Personal injury protection — Discovery — Interrogatories — Medical provider is compelled to provide better answers to interrogatories where answers provided are non-responsive and objections to interrogatories are overruled — Attorney-client and work product privilege objections to interrogatories regarding publications and other materials to be used by provider to support reasonableness of amounts charged are overruled — Objection to interrogatory questioning whether insurer would be reasonable in using computer database of other providers’ charges within zip code to determine reasonable amount to pay is sustained due to overbroad reference to “computer database”

12 Fla. L. Weekly Supp. 577b

Insurance — Personal injury protection — Discovery — Insured’s attorney is ordered to produce all documents reflecting communication with third parties concerning agreements reached with insured’s physicians pertaining to amounts paid to medical providers, but is not required to produce records of privileged communications with insured

12 Fla. L. Weekly Supp. 1035a

Insurance — Personal injury protection — Discovery — Admissions — No error in entering final summary judgment based upon deemed admissions resulting from insurer’s failure to timely respond to request for admissions where insurer acknowledges that responses were inadvertently not filed, and trial court found prejudice to medical provider due to insurer’s delay in moving forward with case — Coverage — Summary judgment — Opposing affidavit — No abuse of discretion in excluding peer review report from consideration on motion for summary judgment where there is no indication in record that report met requirements of affidavit sworn to, certified or accompanied by affidavit of records custodian or other proper person attesting to its authenticity or correctness and admissibility, and report failed to meet requirement of section 627.736(7) because of failure to indicate that physician who prepared report examined insured or that treatment records reviewed were complete — No merit to argument that insurer should have been granted continuance based on claim that it needed more time to file opposing affidavit where totality of inexcusable delays by insurer and fact that peer review report was dated prior to initial hearing on motion for summary judgment suggest that report was filed in bad faith

12 Fla. L. Weekly Supp. 1032a

Insurance — Personal injury protection — Discovery — Depositions — Failure to attend — Sanctions — Where counsel for insurer learned three days prior to deposition that PIP adjuster to be deposed was no longer employed by insurer and called medical provider’s counsel to offer to provide adjuster’s last known address and to make litigation adjuster available for deposition, facts do not evince willful and egregious behavior commensurate with last resort remedy of striking pleadings — Admissions — Granting of relief from admissions for failure to timely respond, even absent motion for such relief, was not abuse of discretion where provider’s position is contrary to requested admissions, and sufficient demonstration of prejudice has not been shown

12 Fla. L. Weekly Supp. 468a

Employee Retirement Income Security Act — Disability insurance — Denial of disability income benefits based on erroneous conclusion that claimant was only partially disabled is reversed in accordance with ERISA — Where nothing in evidence other than vocational review fatally flawed by mischaracterization of claimant’s bookkeeper position as staff accountant supports plan administrator’s argument that claimant could be employed as bookkeeper because she could perform tasks required of position with left hand rather than right hand to relieve stress on injured right shoulder, claimant was disabled within meaning of policy, and administrator’s decision to deny benefits was incorrect — Remedies — Where court has concluded after de novo review that claimant was totally disabled at time of denial of benefits, no practical purpose would be served by remand to administrator for further findings concerning her condition at time of denial of benefits, and it is appropriate to remand with directions to pay benefits through date of final denial of claimant’s administrative appeal and to reconsider denial of benefits from that date to present