Volume 13

13 Fla. L. Weekly Supp. 1033a

Insurance — Personal injury protection — Dispute between insured and insurer — Error to dismiss insured’s complaint as insufficiently pled where it is undisputed that valid contract of insurance existed, insured alleged in complaint that insurer that issued check payable only to medical provider after receipt of revocation of assignment of benefits failed to pay correct amount of money to correct claimant, in violation of contract and PIP statute, and insured alleged that he suffered damages as result of insurer’s breach — No merit to argument that revocation which revokes assignment of benefits but does not apply to any prior authorization for direct payment is confusing — There is clear distinction between assignment of benefits and direct payment authorization, and no such authorization appears on record — Error to dismiss complaint for failure to state cause of action while at same time granting partial relief under complaint by ordering insurer to reissue check in insured’s name — Attorney’s fees — Appellate — Insured is entitled to attorney’s fees for work done on initial and reply brief, but not for work done on unsuccessful cross-appeal seeking striking of order to re-issue check

13 Fla. L. Weekly Supp. 641a

Insurance — Personal injury protection — Insurer waived its right to discontinue benefits based on insured’s alleged failure to appear for independent medical examination when it rescheduled IME appointment — Insurer is not entitled to deny PIP benefits to insured as to medical bills received prior to issuance of notice of suspension letter

13 Fla. L. Weekly Supp. 35a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 13 Fla. L. Weekly Supp. 431a

Insurance — Personal injury protection — Summary judgment — Rehearing — Where insurer moved for rehearing of denial of motion for summary judgment but did not set matter for hearing, insurer asked that motion for rehearing be heard when parties appeared for trial before different judge, trial court indicated over medical provider’s objection that it would entertain motion for rehearing on next day, and on next day court heard and granted motion for rehearing and motion for summary judgment, one-day notice violated provider’s right to reasonable notice of hearing — Independent medical examination — Failure to attend — Error to enter summary judgment where record shows only that insured failed to attend IME and does not establish that insured refused to attend IME or that any refusal was unreasonable — Until insurer proved unreasonable refusal to attend IME, provider was under no obligation to show otherwise, and trial court erred in relying on insured’s silence to prove unreasonable refusal — Trial court also erred in refusing to consider deposition on rehearing where, although deposition was not filed prior to original summary judgment hearing, deposition was taken pursuant to notice and physically in existence “before the court” at time of that hearing

13 Fla. L. Weekly Supp. 431b

Insurance — Personal injury protection — Independent medical examination — Failure to attend — Where there was no evidence in case showing why insured failed to attend IME, directed verdict in favor of insurer was premature — Insurer had burden to show insured’s failure to attend IME was unreasonable — Simple showing of failure to attend did not shift burden of proof to medical provider to prove why insured failed to attend IME

13 Fla. L. Weekly Supp. 431b

Insurance — Personal injury protection — Independent medical examination — Failure to attend — Where there was no evidence in case showing why insured failed to attend IME, directed verdict in favor of insurer was premature — Insurer had burden to show insured’s failure to attend IME was unreasonable — Simple showing of failure to attend did not shift burden of proof to medical provider to prove why insured failed to attend IME

13 Fla. L. Weekly Supp. 434a

Insurance — Personal injury protection — Independent medical examination — Failure to attend — Insurer was liable for benefits for which it received requests for payment prior to date of missed IME that occurred during 30-day investigative period — Benefits were due and payable immediately as loss accrued and upon receipt of bill or reasonable proof of loss by insurer

13 Fla. L. Weekly Supp. 1001a

Insurance — Personal injury protection — Independent medical examination — Failure to attend — Insured’s failure to attend IME did not relieve insurer from paying medical provider’s bills that were received prior to missed IME, including bills received less than thirty days prior to missed IME

13 Fla. L. Weekly Supp. 374b

Insurance — Personal injury protection — Final judgment — Partial summary judgment — Rule 1.510 does not authorize entry of final judgment as to previously granted partial summary judgment on claim for one date of service while claim for other date of service remains pending

13 Fla. L. Weekly Supp. 732c

Insurance — Personal injury protection — Explanation of benefits — Medical provider is entitled to maintain cause of action for breach of contract and declaratory relief based on insurer’s failure to provide explanation of benefits upon presuit request by provider — Motion to dismiss denied

13 Fla. L. Weekly Supp. 118a

Insurance — Personal injury protection — Coverage — Self-propelled vehicle — Claim arising out of injuries sustained by insured, a disabled person who was riding his scooter when he was struck by a van while attempting to cross street — No error in finding that scooter, modified in almost every regard, was a self-propelled vehicle exempt from personal injury protection benefits pursuant to Florida Statutes, § 627.736(4)(d)1. — Scooter was not a motorized wheelchair as one would interpret that term in its normal usage — Appellate holding is limited to the specific facts of this case given the unique characteristics of the scooter — Summary judgment in favor of insurer affirmed