Volume 13

13 Fla. L. Weekly Supp. 309a

Attorney’s fees — Insurance — Personal injury protection — Offer of judgment — Vagueness — No abuse of discretion in denying motion for attorney’s fees based on offer of judgment where offer was unclear as to which of multiple claims insurer was trying to settle — Good faith — Nominal offer — Even if offer was valid, no abuse of discretion in denying attorney’s fees where offer was not made in good faith — Offer was not made in good faith where insurer made nominal offer which did not bear reasonable relationship to amount of damages suffered and which was not realistic assessment of insurer’s liability based on patient brokering defense about which law was unsettled at time of offer — Appellate fees — Insured’s motion for appellate fees is denied where insured did not prevail below and insurer’s appeal was not frivolous or devoid of merit on facts and law

13 Fla. L. Weekly Supp. 862a

Attorney’s fees — Insurance — Personal injury protection — Prevailing medical provider — Where insurer paid PIP claim in full on sixteenth day after service of demand letter but before suit was filed, medical provider was not entitled to attorney’s fees award, as provider did not obtain judgment or functional equivalent — Waiver — Insurer did not waive right to appeal trial court’s ruling on entitlement to fees by participating in bifurcated hearing on amount of fees — Fifteen-day pre-suit period for payment of claim after receipt of demand letter does not create cause of action for attorney’s fees if claim is not paid within fifteen days

13 Fla. L. Weekly Supp. 1149a

Insurance — Personal injury protection — Coverage — Exhaustion of policy limits — Subsequent claim for unpaid portions of bill — No error in finding that medical provider was required to provide notice of intent to contest partial payments and that provider’s notice was not received by insurer until complaint was served, after benefits were exhausted — No error in granting insurer’s motion for summary judgment — Appeals — Argument that provider may be entitled to attorney’s fees and interest if benefits should have been paid was not raised below and, accordingly, cannot be considered on appeal

13 Fla. L. Weekly Supp. 98a

Attorney’s fees — Insurance — Personal injury protection — Hours — Hours reasonably expended include hours expended after final judgment confirming arbitration award, including hours spent on post-trial discovery, where there is no clear and credible evidence that insurer acquiesced to medical provider’s entitlement to attorney’s fees until response to request for admissions one month after judgment was entered — Contingency risk multiplier — Where provider’s likelihood of success was approximately even at outset, relevant market requires contingency risk multiplier to obtain competent counsel in PIP cases, case against this insurer is much less desirable than case against other insurers because insurer aggressively litigates cases, case aggressively defended by insurer was not simple, provider’s counsel was unable to mitigate risk of nonpayment, provider’s recovery was excellent result in light of insurer’s tenacity in litigating case, and fee agreement between provider and counsel is pure contingency fee agreement, multiplier of 1.5 is reasonable and appropriate — Prejudgment interest, expert witness fees and costs are awarded

13 Fla. L. Weekly Supp. 160b

Insurance — Personal injury protection — Complaint — Amendment — Relation back — Amended complaint changing name of plaintiff medical provider five days after insurer paid claim to new plaintiff relates back to date of original complaint where insurer knew or should have known of existence and involvement of new plaintiff based on allegations of original complaint and that original plaintiff and new plaintiff have identity of interest that does not prejudice insurer — Attorney’s fees — New plaintiff is entitled to award of attorney’s fees where amended complaint naming new plaintiff relates back to date of original complaint and, therefore, insurer’s payment of claim to new plaintiff is equivalent to confession of judgment since it was made after suit was filed — Plaintiff is also entitled to attorney’s fees for litigating issue of entitlement to fees

13 Fla. L. Weekly Supp. 824a

Attorney’s fees — Insurance — Personal injury protection — Amount — Hourly rate — Where insurer failed to specify greater hourly rate sought at hearing as sanction under rule 1.442 in court-ordered detailed breakdown of amount of fees sought, court awards lower hourly rate

13 Fla. L. Weekly Supp. 1211b

Attorney’s fees — Insurance — Personal injury protection — Expert witnesses — Evidence is insufficient to establish that proffered expert witness maintains requisite expertise to testify as to reasonable attorney’s fees and costs — Disqualification of expert is insufficient reason to continue attorney’s fees hearing — Medical provider’s counsel is not accepted as expert witness as to own fees and costs — Even if provider’s counsel were competent to testify as expert witness regarding own fees and costs, provider did not satisfy burden to offer counsel as expert witness — Provider’s reasonable fees and costs are deemed to be zeroREVERSED at14 Fla. L. Weekly Supp. 821a

13 Fla. L. Weekly Supp. 128d

Insurance — Attorney’s fees — Appeals — Where appeal of amount of attorney’s fees award was abated pending appeal of underlying action, and appeal of underlying action has resulted in affirmance, appeal of fee award is dismissed as moot

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. 620b

Insurance — Personal injury protection — Standing — Assignment — Validity — Assignment that conveys intent to transfer right to bring cause of action for PIP benefits is valid despite reservation of right to bill insured for amounts due — Attorney’s fees — Justiciable issues — Motion for award of attorney’s fees as sanction for filing motion to dismiss for lack of standing is denied — Despite fact that same motion was denied in another suit involving same parties, court does not believe insurer intentionally omitted contrary authority from its argument — Offer of settlement — Motion to invoke rule 1.442 is granted where there is no equitable or practical basis to deny request to invoke rule that would provide basis for fee award to either party