Volume 13

13 Fla. L. Weekly Supp. 43a

Insurance — Liability — Other insurance — Excess insurance — Where subcontractor orally agreed to provide $1,000,000 of general liability coverage to general contractor and contractor was included as an additional insured on subcontractor’s general liability policy, contractor was also an additional insured under terms of subcontractor’s excess or umbrella policy — Because umbrella policy specifically provided that insurance would not afford an additional insured limits of insurance in excess of the minimum limit of insurance the insured subcontractor agreed to provide, and contractor received $1,000,000 from general liability insurer, contractor was not entitled to any additional coverage under umbrella policy — Summary judgment granted in favor of umbrella policy insurer

13 Fla. L. Weekly Supp. 394a

Evidence — Judicial notice — Motion for Judicial Notice of Medicare Part B Fee Schedule and Florida Workers’ Compensation Fee Schedule is granted

13 Fla. L. Weekly Supp. 162c

Insurance — Personal injury protection — Independent medical examination — Insurer waived right to suspend PIP benefits as of date of first missed IME by rescheduling IME for later date — Insurer is responsible for all bills received prior to second missed IME — Coverage — Medical expenses — Reasonable, related and necessary treatment — Summary judgment is granted in favor of medical provider on issue of reasonable, related and necessary expenses and usual and customary charges for all bills in dispute where provider provided affidavit of chiropractor opining that services were reasonable, related and necessary and charges were usual and customary, and insurer did not file any opposing affidavits — Affirmative defenses of notice and material misrepresentation that were not pled by insurer are waived — Examination under oath filed on day of summary judgment hearing is untimely — EUO that was not taken under oath at trial, hearing or other legal proceeding and was not subject to cross-examination is inadmissible hearsay — Even if not untimely or inadmissible, EUO does not create genuine issue of material fact on issues before court — Reasonableness of failure to attend second IME is only remaining disputed issue

13 Fla. L. Weekly Supp. 616a

Insurance — Personal injury protection — Coverage — Involvement in accident — Evidence — Although police report is self-authenticating, list of names of persons involved in accident contained in report is inadmissible hearsay and cannot be considered by court in determining whether insured was passenger in vehicle involved in accident — There is no exception under hearsay rule that would permit proponent to lay predicate for admissibility of crash report where report does not meet criteria for admissibility as business record or public record — Moreover, crash report is incompetent because it invites court to infer that insured was not involved in accident by inferring without direct evidence that officer witnessed accident and identified all occupants of vehicle — Accident report privilege applies to reports by law enforcement officers as well as reports by persons involved in accidents — Summary judgment is granted in favor of medical provider as to reasonableness, relatedness and necessity of treatment

13 Fla. L. Weekly Supp. 563b

Insurance — Liability — Joinder of insurer in action against insured — No error in denial of motion to add condominium unit owner’s liability insurer as party defendant prior to entering final judgment on complaint for injunction allowing condominium association access to unit to determine and repair water leak — Policy covered damages for bodily injury or property damage caused by occurrence to which policy coverage applied and defined “occurrence” as an accident which resulted in bodily injury or property damage — Complaint for injunction which sought only access to condominium unit to determine and make necessary repairs caused by water leak did not state claim for property damage — Insurer was not obligated to defend owner in action that was not covered under policy — Insured went beyond scope of complaint in stipulation for settlement by agreeing to accept full liability for property damage and to compensate association for fees incurred in injunction action — Language of statute authorizing joinder of liability insurer is discretionary not mandatory

13 Fla. L. Weekly Supp. 636a

Insurance — Personal injury protection — Discovery — Documents — Privilege — Work product — Amended privilege log that simply refers to PIP routing sheet and 17 entries of adjuster notes failed to meet specificity and detail requirements of rule 1.280(b)(5) — In camera inspection of materials claimed to be privileged leads to conclusion that insurer could have provided more specific log regarding adjuster’s notes but that no more specificity is required as to routing sheet — Court finds that all but two of adjuster’s notes were prepared in ordinary course of business and not in anticipation of litigation, all but two notes are excluded from work product privilege and must be produced to medical provider

13 Fla. L. Weekly Supp. 571a

Insurance — Personal injury protection — Discovery — Appeals — Certiorari — Pre-trial discovery order compelling better response to medical provider’s request to produce claims handling and training materials provided to PIP adjusters is reviewable by petition for writ of certiorari where order departed from essential requirements of law and would cause material injury to insurer throughout proceedings, leaving no adequate remedy on appeal — Privilege — Trade secret — Trial court departed from essential requirements of law when it compelled production of materials without addressing asserted trade secret privilege and conducting in camera review of materials — Relevance — Where underlying action is only PIP claim without claim for bad faith action, requested claim files, manuals, guidelines and documents concerning claims handling procedures are irrelevant and/or privileged work product — Waiver — Insurer did not waive any privileges where insurer raised objections based on relevance and work product prior to motion to compel hearing and asserted sufficiently specific objection based on trade secret privilege in response to provider’s third request to produce

13 Fla. L. Weekly Supp. 370a

Insurance — Personal injury protection — Discovery — Documents relative to chiropractor who performed independent medical examination of insured and information relative to the relationship between the insurer and the third-party vendor which directly retained this chiropractor to perform IME are clearly discoverable where it is clear that insurer justified reduction of benefits in this case based on IME report — Although information sought may not be in direct possession of insurer, insurer has burden of obtaining the information from the expert it relied upon in making coverage decisions

13 Fla. L. Weekly Supp. 370a

Insurance — Personal injury protection — Discovery — Documents relative to chiropractor who performed independent medical examination of insured and information relative to the relationship between the insurer and the third-party vendor which directly retained this chiropractor to perform IME are clearly discoverable where it is clear that insurer justified reduction of benefits in this case based on IME report — Although information sought may not be in direct possession of insurer, insurer has burden of obtaining the information from the expert it relied upon in making coverage decisions

13 Fla. L. Weekly Supp. 472b

Insurance — Personal injury protection — Uninsured motorist — Discovery — Pure bill — Where insurer has demonstrated that there are inconsistencies in medical findings made by medical provider relative to insureds who were allegedly involved in accident with phantom vehicle and in insureds’ accounts of how accident occurred, insurer has shown good cause to support request for pure bill of discovery requiring disclosure of facts and evidence regarding whether accident actually occurred, whether provider actually performed services for which it billed and received payment from insurer, identity of medical personnel performing services, whether services were up-coded, whether documented injuries actually exist, and whether services were reasonable, necessary and related to accident