Volume 12

12 Fla. L. Weekly Supp. 976a

Insurance — Personal injury protection — Application — Misrepresentations — Partial summary judgment granted in favor of medical provider on issue of material misrepresentation

12 Fla. L. Weekly Supp. 903a

Insurance — Personal injury protection — Application — Misrepresentations — Error to grant summary judgment in favor of insurer based on material misrepresentations in application regarding residential status of insured’s children where words used in application to describe residency were ambiguous, intent of parties was disputed, and there was no evidence in record conclusively establishing that alleged misrepresentations were material either to acceptance of risk or to the hazard assumed by insurer

12 Fla. L. Weekly Supp. 540b

Insurance — Personal injury protection — Coverage — Medical expenses — MRI — Amount billed for MRI in excess of statutorily preset fee schedule does not relieve insurer from paying reimbursable amount — Since Florida Statutes codify fee scheme relating to MRI services, medical provider was not required to prove that amount charged for MRI was reasonable — Application — Misrepresentations — Trial court correctly granted summary disposition on issue of insurance coverage where court held that there were no issue of material fact and found that insured did not make material misrepresentation on policy

12 Fla. L. Weekly Supp. 489b

Insurance — Personal injury protection — Application — Misrepresentations — Failure to list household members — Partial summary judgment is granted on issue of whether insureds made material representation and whether misrepresentation was vitiated by agent’s knowledge of true facts — Affidavit stating that “person” at insurance agency was informed and aware of “individuals” residing in home fails to create disputed issue of material fact because it does not suggest who person was, if person was agent of insurer, and identity of individuals insured disclosed — There remains disputed issue of material fact as to whether insurer canceled policy and returned premium within reasonable time period where insurer’s sworn statement merely sets forth period of time during which insurer discovered misrepresentation, not period of time between discovery of misrepresentation and cancellation of policy and refund of premium

12 Fla. L. Weekly Supp. 919b

Insurance — Personal injury protection — Application — Misrepresentations — In granting insured’s motion for partial summary judgment as to insurer’s material misrepresentation defense, based on insurer’s alleged failure to return unearned premium, trial court erred in relying on section 627.7282, which applies when insurer cancels policy because incorrect premium has been charged — Case law holding that refunds of premiums must be made to insured rather than premium finance company is applicable only where refund is due to incorrect premium, not misrepresentation — Waiver — Whether insurer intended to waive right to rescind policy by failing to return premium in timely manner is question of fact that should have precluded summary judgment — No merit to argument that notice of cancellation is ineffective because it was not mailed at least 45 days prior to effective date of cancellation — Statutory provision requiring notice is not applicable when insurer rescinds policy for misrepresentation in application — No merit to claim that cancellation of policy can only be prospective, not retrospective, because material misrepresentation renders policy null and void from date of inception — Even if notice requirement applied and insurer failed to comply, insurer is not precluded from defending on grounds of misrepresentation — Insurer does not become liable on claim because it failed to return premiums within applicable period and without interest due — Only penalty imposed for untimely refund is statutory interest

12 Fla. L. Weekly Supp. 114a

Insurance — Personal injury protection — Fraud — Abuse of discretion to dismiss action based on fraud — Insured’s alleged false testimony regarding her whereabouts following accident and mode of transportation used to leave accident scene had no bearing on issue at trial concerning reasonableness of insured’s failure to attend independent medical examinations, and inconsistent reasons proffered by insured for failure to attend IMEs reflect on insured’s credibility but do not rise to fraud — Appeals — Absence of transcript — Despite not including transcript of first trial, record is adequate to determine whether reversible error exists where it includes transcript of second trial delineating insured’s inconsistent testimony

12 Fla. L. Weekly Supp. 826c

Insurance — Personal injury protection — Error to enter summary judgment in favor of insurer where insurer’s failure to file answer necessarily created issues of fact — Further, competing affidavits of claims adjuster, insured and insured’s mother as to whether insured had notified insurer prior to accident of move to Florida from state without PIP benefits created genuine issue of fact precluding summary judgment — If trial court determined that insured had not properly framed cause of action, opportunity to amend complaint should have been granted where no answer had been filed and insured may have bona fide cause of action if she timely notified insurer’s agent of change of residence — Demand letter — Affirmance is not warranted on alternative basis that summary judgment should have been granted because insured failed to serve demand letter where neither party has raised or argued that issue on appeal

12 Fla. L. Weekly Supp. 918a

Insurance — Personal injury protection — Appeals — Dismissal — Fraud on court — Sanctions — Where insurer deliberately made reference in appeal to evidence that was not before trial court in summary judgment decision to gain unfair advantage, appellate court withdraws its prior reversal of trial court’s attorney’s fees order — Appellate fees awarded to provider — Appeal dismissed with prejudice

12 Fla. L. Weekly Supp. 941a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 13 Fla. L. Weekly Supp. 573a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 12 Fla. L. Weekly Supp. 1145b

Insurance — Personal injury protection — Declaratory judgment — Insurer’s obligation to provide PIP log on pre-suit request from medical provider — Appellate court has subject matter jurisdiction of appeal of order granting medical provider’s motion for final summary judgment on claim for declaratory relief, despite fact that insurer’s inadvertent handing over of requested documents to provider has rendered issue of insurer’s obligation to provide documents moot, where action involves important issues that are capable of repetition yet evading review — Where PIP statute requires that insurer furnish injured person with copy of all information obtained by insurer under statute, but PIP log is not defined in statute and there is no requirement that insurer maintain log, PIP log is not designated requirement that insurer maintain and provide to insured, and provider is not entitled to pre-suit disclosure of log — Error to order that provider is entitled to copy of declarations page and policy information under section 627.4137, which references insurers that provide liability coverage, not PIP coverage — Trial court also erred in finding obligation to provide declarations page and policy information under section 627.7401, which only requires that insured involved in accident with personal injury be sent form adopted by state commission notifying of right to receive PIP benefits — Demand letter — Defects in demand letter did not affect validity of summary judgment in declaratory action where action for benefits was voluntarily dismissed, and appeal does not address action for benefits that requires demand letter — Reversed and remanded

12 Fla. L. Weekly Supp. 1143b

Insurance — Personal injury protection — Appeals — Cross-appeal — Timeliness — Where appeal was dismissed as untimely, cross-appeal served within ten days of service of appellants’s notice of appeal is also untimely