Volume 12

12 Fla. L. Weekly Supp. 1101a

Insurance — Personal injury protection — Explanation of benefits — Noncompliance letter from insurer quoting large portions of PIP statute is not sufficient to constitute itemized specification of unpaid charges/EOB — Medical provider may maintain action against insurer for breach of contract by failing to provide EOB — No merit to argument that provider cannot maintain cause of action because it cannot establish damages — Damages are for jury to determine and may be nominal, and action seeks relief in form of specific performance by delivery of EOBs

12 Fla. L. Weekly Supp. 262b

Insurance — Personal injury protection — Declaratory judgment — Examination under oath — Right of insured to record — Where insurance contract is silent as to right to record EUO, court cannot write in provision permitting recording — However, where insurer was unable to present any argument that presence of audiotape was unreasonable or that recording would have hindered or obstructed performance of EUO in any way, insurer’s refusal to proceed with EUO when insured desired to audiotape examination was inappropriate — Summary judgment granted in favor of insured

12 Fla. L. Weekly Supp. 536a

Insurance — Personal injury protection — Coverage — Examination under oath — Failure to attend — Where question of whether contract language regarding EUO is ambiguous is question of law to be determined by trial court, and court was correct in ruling that contract language stating that insured shall give written proof of claim under oath and/or submit to examination under oath was ambiguous, summary judgment and directed verdict were properly entered in favor of insured

12 Fla. L. Weekly Supp. 799a

Insurance — Personal injury protection — Coverage — Examination under oath — Failure to attend — Notice of EUO sent to attorney representing insured is imputed to insured — Where insurer rescheduled EUO at request of insured’s attorney and provided notice to attorney, and insured failed to appear at EUO and did not thereafter attempt to reschedule EUO before MRI was performed, insurer is entitled to summary judgment

12 Fla. L. Weekly Supp. 584b

Insurance — Personal injury protection — Coverage — Denial — Failure to appear for examination under oath — Notice of an examination under oath provided to an insured’s attorney constitutes notice to insured — Where insured’s attorney requested that EUO be rescheduled, insurer rescheduled the EUO and provided new date to attorney, and insured failed to appear, insurer is entitled to summary judgment

12 Fla. L. Weekly Supp. 1104b

Insurance — Personal injury protection — Explanation of benefits — Medical provider’s motion for summary judgment granted as to count alleging failure to provide EOB — Examination under oath — Failure to attend — Where insurer improperly failed to direct notice of EUO to attorney representing insured, insured’s failure to attend EUO was not unreasonable

12 Fla. L. Weekly Supp. 833b

Insurance — Personal injury protection — Examination under oath — Failure to attend — Where insured’s counsel sent letter stating it was necessary for him to be present at EUO despite PIP policy providing that only person being examined could be present and offering to arrange to have EUO taken at his office or over telephone, but insurer did not respond and scheduled EUO, question of whether refusal to attend EUO was unreasonable created issues of fact precluding summary judgment

12 Fla. L. Weekly Supp. 977a

Insurance — Personal injury protection — Examination under oath — Failure to attend — Where letters scheduling EUOs and denial of coverage letters sent after insureds failed to appear clearly stated that voiding coverage was potential result for failure to appear, yet insureds made no effort to reschedule EUOs or otherwise respond to letters, insureds breached terms of policy and insurer is relieved of liability to pay claims

12 Fla. L. Weekly Supp. 531b

Insurance — Personal injury protection — Coverage — Denial — Examination under oath — Failure to attend — Although district court of appeals’ opinion holding that if insurer does not pay benefits by end of 30-day statutory period insured is free to sue and have case determined on merits appears to have been implicitly overruled by supreme court decision holding that if insurer does not pay benefits or secure reasonable proof that it is not responsible for payment within 30 days bill is overdue but insurer is not forever barred from contesting claim, appellate court does not have judicial power to decide issue — In absence of clear expression from supreme court, issue of whether district court of appeal opinion is in conflict with later supreme court opinion should be left to district court of appeal — Applying district court of appeal precedent, insurer cannot defend claim on basis of insured’s failure to attend EUO set outside of 30-day statutory period after submission of medical bills — Summary judgment in favor of insurer reversed

12 Fla. L. Weekly Supp. 318b

Insurance — Personal injury protection — Examination under oath — Failure to attend — Trial court abused its discretion in refusing to consider affidavit of insured’s trial attorney regarding communications with insurer seeking rescheduling of EUO in support of motion for rehearing of summary judgment in favor of insurer based on insured’s failure to attend EUO — Affidavit creates genuine issue of material fact as to intentional nature of insured’s non-attendance