Volume 13

13 Fla. L. Weekly Supp. 334a

Insurance — Personal injury protection — Appeal of judgment against driver’s insurer in action brought by plaintiff who was struck by driver’s vehicle while sleeping in garage — Standing — Assignment — Waiver — Trial court correctly found that insurer waived affirmative defense of assignment by failing to raise defense by motion to dismiss or in responsive pleading, even where insurer asserted that it was surprised by existence of assignment introduced at trial — Coverage — Pedestrian — No merit to argument that trial court erroneously shifted burden of proof by requiring insurer to prove that plaintiff was not entitled to PIP benefits — Plaintiff was entitled to insurer’s PIP benefits as a pedestrian not entitled to PIP coverage from any household vehicle — Medical expenses — Reasonable, related and necessary treatment — No error in denying insurer’s motion for directed verdict on issue of reasonableness and necessity of medical bills despite absence of expert testimony on issue where medical records and lay testimony laid sufficient predicate for issue to be presented to jury

13 Fla. L. Weekly Supp. 857a

Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary treatment — Error to direct verdict in favor of insurer based on erroneous conclusion that treating physician’s testimony that medical bills were reasonable and explanation of how he arrived at that opinion did not establish prima facie showing of reasonableness of bills — New trial required

13 Fla. L. Weekly Supp. 899a

Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary treatment — Summary judgment — Opposing affidavit — Where insurer failed to obtain peer review physician’s report prior to medical provider’s bill coming due, insurer cannot use peer review report, affidavit and testimony to refute prima facie showing that services rendered were reasonable, related and necessary — Partial summary judgment granted in favor of provider

13 Fla. L. Weekly Supp. 891a

Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary treatment — Summary judgment — Opposing affidavit — Where medical provider sustained initial burden of establishing that medical treatment was reasonable, related and medically necessary though affidavits of medical provider and owner of billing company, opposing peer review which was not factually supported by independent medical examination was not valid report that could form basis for denial of benefits or be considered as record evidence to oppose motion for summary judgment, and insurer has provided no evidence that valid report was in its possession when benefits were denied, provider’s motion for summary judgment is granted

13 Fla. L. Weekly Supp. 1235a

Insurance — Personal injury protection — Summary judgment — Opposing affidavits — Affidavit of doctor who performed peer review but did not perform physical examination or make complete medical records review is insufficient as matter of law — Summary judgment entered in favor of insured

13 Fla. L. Weekly Supp. 893b

Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary expenses — Where insurer failed to obtain valid report stating treatment was not reasonable, related or necessary prior to denying payment of benefits, peer review report obtained after denial of benefits was not valid report and cannot be used to refute medical provider’s prima facie showing that treatment was reasonable, related and necessary — No merit to argument that requirement of prior valid report applies only to benefits withdrawn and not to those withheld or denied

13 Fla. L. Weekly Supp. 378b

Insurance — Personal injury protection — Summary judgment — Medical provider is entitled to summary judgment regarding whether insured was injured in accident, use of correct CPT codes, and standing where insurer filed no affidavits to oppose those issues and there is no record evidence to oppose issues — Coverage — Medical expenses — Provider is also entitled to summary judgment on issues of reasonable, related and necessary treatment where peer review filed by insurer is stricken and record evidence does not raise disputed issue of fact — Peer review is deficient where reporting physician never physically examined insured, and report makes no mention of whether physician is in active practice, reviewed all medical records, or maintains own records for three years as required by section 627.736(7) — Further, report is deficient for failing to provide facts to support opinions regarding prices charged by medical provider and limits of necessary treatment

13 Fla. L. Weekly Supp. 177c

Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary treatment — Insurer cannot oppose motion for summary judgment regarding reasonable price for services by filing affidavit and peer review of physician that insurer did not rely upon in applying reductions to medical provider’s bills, rather than opposing motion with documentation that insurer actually relied upon to reduce bills — Withdrawal of benefits in reliance on peer review prepared by physician who did not examine insured is contrary to PIP statute — Insurer’s failure to comply with section 627.736(7)(a), by use of peer review which was obtained one year after claims were submitted and which was not supported by physical examination, results in waiver of insurer’s right to present countervailing expert testimony from physician — Summary judgment entered in favor of medical provider

13 Fla. L. Weekly Supp. 189a

Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary treatment — Summary judgment — Independent medical examination is rejected as opposing affidavit where IME report was untimely served and is unsworn — Insured’s statement acknowledging that he suffered knee injury more than twenty years ago does not create disputed issue of material fact as to reasonableness, relatedness or necessity of treatment where statement is consistent with medical provider’s position that treatment did not arise because of prior knee injury but because of new injury — Even if insured believed that current injury was related to prior injury, PIP statute requires insurer to obtain physician’s statement, not layman’s statement, to avoid liability for payment of PIP benefits — Provider’s motion for final summary judgment granted

13 Fla. L. Weekly Supp. 164a

Insurance — Personal injury protection — Notice of accident — Where insurer received notice of accident prior to commencement of treatment and was fully able to investigate claim through all investigatory tools, insurer is not relieved of liability by fact that notice was not given as soon as practicable — Coverage — Medical expenses — Reasonable, related and necessary treatment — Final summary judgment is granted in favor of medical provider where provider submitted affidavits attesting that services rendered were reasonable, related and necessary; court declines to consider reports of two doctors that conducted IMEs because reports were not authenticated; and court rejects peer review report because it was not authenticated, was prepared a year and half after payment was denied, and it was not supported by physical examination — No merit to argument that section 627.736(7)(a) requirement to obtain physician report applies only to benefits withdrawn, not to those withheld