Volume 13

13 Fla. L. Weekly Supp. 999a

Insurance — Personal injury protection — Discovery — Depositions — Claims adjuster — Insurer’s policies and procedures — Where deposition transcript reveals that medical provider’s counsel repeatedly questioned claims adjuster about insurer’s general policies and procedures and handling of claims other than claim at issue and that insurer’s counsel objected and instructed witness not to answer such questions, insurer’s motion for protective order is granted, and provider’s motion to compel testimony is denied

13 Fla. L. Weekly Supp. 668a

Insurance — Personal injury protection — Default — Vacation — Denial — Excusable neglect — Where insurer showed that policies and procedures for handling litigation were in place, but litigation claims adjuster failed to retain outside counsel and then went on emergency medical leave, and arrangements made to handle matter in adjuster’s absence failed, insurer demonstrated excusable neglect — Meritorious defense — Where insurer alleged in answer and affirmative defenses filed with motion to set aside final judgment that benefits were exhausted and that medical provider failed to timely submit bills and failed to deliver demand letter, insurer raised meritorious defenses — Due diligence — Where insurer alleged that it either did not receive copies of default judgment and default final judgment or that copies were misplaced and it first became aware of judgment when provider’s counsel contacted adjuster about execution, insurer retained counsel upon learning of judgment, and motion to set aside judgment was filed three weeks later, insurer acted with due diligence — Order denying motion to set aside final judgment is quashed

13 Fla. L. Weekly Supp. 384a

Insurance — Personal injury protection — Discovery — Failure to comply — Sanctions — Default — Where insurer which claims that no policy of insurance was in existence at time of accident waited until hearing on provider’s fourth motion to enforce court’s order to produce documents and answer interrogatories to respond that it had no documents in its possession, insurer produced no sworn evidence that provider knew that insurer had not assumed risk of insuring claimant, and court used graduated sanctions throughout hearings regarding compliance with discovery over two-year period before finally entering default for provider, motion to set aside default is denied — Moreover, motion to set aside default filed more than two months after order of contempt and default was untimely filed and is unsworn 

13 Fla. L. Weekly Supp. 1155a

Insurance — Personal injury protection — Deductible — Error to deny insurer’s motion for summary judgment, which asserted that no liability existed for bills that were applied to deductible, on ground that insurer had waived deductible issue by failing to raise issue at pre-trial conference — Application of deductible provision of insurance policy cannot be waived, as it is not affirmative defense that must be pled and proved — Insured has burden to prove that loss exceeds deductible amount

13 Fla. L. Weekly Supp. 526b

Insurance — Personal injury protection — Coverage — Resident relative — Dependent daughter who did not own vehicle and resided with father was entitled to PIP benefits from father’s insurer for injuries suffered while passenger in another driver’s vehicle — Daughter is not entitled to recover deductible applicable to father’s PIP policy from driver or driver’s PIP insurer

13 Fla. L. Weekly Supp. 188b

Insurance — Personal injury protection — Declaratory action — Medical provider’s right to obtain from insurer copies of all examination under oath notices and proofs of mailing is proper subject of declaratory action — Motion to dismiss denied

13 Fla. L. Weekly Supp. 1227a

Insurance — Personal injury protection — Declaratory judgment — Coverage — Count alleging that, because insurer did not respond to medical provider’s request for policy information, provider is in doubt as to right to make claim and seeks declaration that claim is covered is not properly pled — Pleading is distinguished from case in which party seeks declaration of right to obtain policy documents

13 Fla. L. Weekly Supp. 1156a

Insurance — Personal injury protection — Declaratory judgment — Insurer’s obligation to provide policy, declarations page and/or PIP log on presuit request from medical provider/assignee — Entry of summary judgment against insurer that refused prior to suit to supply PIP log to support its representation that payment was not due since it had been applied to deductible

13 Fla. L. Weekly Supp. 1236b

Insurance — Personal injury protection — Declaratory judgment — Insurer’s obligation to provide policy, declarations page and/or PIP log on presuit request by medical provider/assignee — Insurer was obligated to provide policy, declarations page and PIP log requested in provider’s demand letter — Postsuit production of documents neither extinguishes dispute or need for declaration nor serves as functional equivalent of confession of judgment

13 Fla. L. Weekly Supp. 1234b

Insurance — Personal injury protection — Declaratory judgment — Insurer’s obligation to provide policy, declarations page and/or PIP log on presuit request from medical provider/assignee — Entry of summary judgment against insurer that failed to provide PIP log requested by provider presuit