Volume 13

13 Fla. L. Weekly Supp. 830a

Insurance — Personal injury protection — Counterclaims — Fraud, unjust enrichment, negligent supervision and deceptive and unfair trade practices cannot be raised as counterclaims in action for breach of contract pursuant to section 627.736

13 Fla. L. Weekly Supp. 175a

Insurance — Personal injury protection — Counterclaims — Statutory cause of action for violating PIP statute — Dismissal — Motion to dismiss is granted as to count of insurer’s counterclaim asserting statutory cause of action for violation of section 627.736, alleging that medical provider violated statute by submitting bills for treatment that was not medically necessary, bills which were not coded in accordance with CPT guidelines, and bills for treatment not lawfully rendered due to provider’s failure to be licensed in massage therapy — PIP statute and massage therapy licensing statute do not purport to establish civil liability but merely make provisions to secure the safety and welfare of public

13 Fla. L. Weekly Supp. 173b

Insurance — Personal injury protection — Counterclaims — Statutory cause of action for violating PIP statute — Dismissal — Motion to dismiss is granted as to count of insurer’s counterclaim asserting statutory cause of action for violation of section 627.736, alleging that medical provider violated statute by submitting bills for treatment that was not medically necessary, bills which were not coded in accordance with CPT guidelines, and bills for treatment not lawfully rendered due to provider’s failure to be licensed in massage therapy — PIP statute and massage therapy licensing statute do not purport to establish civil liability, but merely make provisions to secure the safety and welfare of public — Motion to dismiss is denied as to fraud count where insurer’s counterclaim alleges all essential elements of common law fraud

13 Fla. L. Weekly Supp. 499b

Insurance — Personal injury protection — Collateral estoppel — Plaintiff’s claim in case involving driver is barred by doctrine of collateral estoppel where parties and issues in PIP case brought by plaintiff as assignee of driver of vehicle involved in accident are identical to those in case brought by same plaintiff seeking benefits under same PIP policy as assignee of passenger in vehicle, trial court in case involving passenger held that plaintiff was not entitled to recover PIP benefits because plaintiff is not physician, hospital, clinic or other person or institution lawfully rendering treatment, and that judgment became binding on parties when it was not appealed

13 Fla. L. Weekly Supp. 1076a

Insurance — Personal injury protection — Coverage — Claimant who failed to maintain insurance on own vehicle — Inoperable vehicle — Vehicle with dead battery and flat tire which claimant eventually repaired himself was not inoperable on date of loss — Claimant’s failure to operate vehicle does not relinquish statutory requirement to maintain security for vehicle

13 Fla. L. Weekly Supp. 107b

Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary treatment — Where medical provider’s affidavit attests that services provided were reasonable, related and necessary as result of automobile accident, and insurer failed to produce competent evidence to rebut provider’s evidence, summary judgment is granted on issue of reasonableness, relatedness and necessity of treatment — Claimant residing with member of household who owns vehicle — Where it is undisputed that at time of accident passenger resided alone and did not own vehicle, evidence that passenger resided with parents until few weeks prior to accident does not create disputed issue of material fact as to where passenger resided on date of accident, and insurer must provide coverage for accident — Summary judgment — Premature — Outstanding interrogatories are no impediment to summary judgment where interrogatories are not related to matters at issue in summary judgment motion, and insurer has taken no action to compel compliance with rules of discovery relating to interrogatories

13 Fla. L. Weekly Supp. 907b

Insurance — Personal injury protection — Coverage — Person not occupant of vehicle owned or operated by insured — Where medical provider incorrectly represented to insurer that person who was not occupant of vehicle owned or operated by insured was covered under insured’s policy, and insurer made payments to provider, insurer is entitled to recover payments made — Prejudgment interest, attorney’s fees and costs awarded

13 Fla. L. Weekly Supp. 1085b

Insurance — Personal injury protection — Declaratory judgment — Confession of judgment — Where insurer that had refused coverage on grounds that newly-purchased truck driven by insured at time of accident was not insured vehicle under policy extended coverage and paid benefits after declaratory action seeking declaration of insured’s right to coverage was filed, insurer confessed judgment and abandoned all defenses by changing position, and insured is entitled to attorney’s fees and costs

13 Fla. L. Weekly Supp. 90a

Insurance — Personal injury protection — Claims — Countersignature — Failure of insured to countersignature HCFA forms did not constitute reasonable proof that insurer was not responsible for paying bills submitted by medical provider — Coverage — Medical expenses — Reasonable, related and necessary treatment — Insurer could not rely on peer review report to deny or reduce charges where report was not obtained prior to denying or reducing bills, but when bills were already 5 to 11 months overdue — Argument that insurer did not withdraw payment of bills because it made some reduced payments is without merit since withholding payment of benefits is indistinguishable from withdrawing payments — Further, insurer could not rely on peer review report to create issue of material fact where report is inadmissible hearsay and lacks trustworthiness — Deposition testimony of claims adjuster cannot create issue of material fact as to whether medical treatment was reasonable, related and necessary — Summary judgment granted in favor of provider

13 Fla. L. Weekly Supp. 1062b

Insurance — Personal injury protection — Where de facto confession of judgment occurred when insurer paid claim in full after suit was filed but before insurer was served in case, no justiciable issue of law or fact on merits of case existed for determination when cross-motions for summary judgment regarding demand letter issue were filed and summary judgment was entered in favor of medical provider — Remand with instructions to dismiss and reserve jurisdiction to address attorney’s fees and cost issues