Volume 13

13 Fla. L. Weekly Supp. 499c

Insurance — Personal injury protection — Coverage — Medical expenses — MRI — Medical provider that was not accredited facility at time MRI was rendered is entitled to payment at 175% of Medicare fee schedule — Misrepresentation — Application — Material misrepresentation defense alleging insured failed to list two relatives residing in household at time of purchasing policy fails where insured states in sworn statement that he lived alone at time he applied for policy and continued to live alone after accident, and insurer has not refunded entire unearned premium — Notice of loss — Where insurer received notice of loss only 53 days after accident, and insurer’s litigation adjuster conceded that she was unaware of any information asked for from insured that he was unable to provide as result of late notice, insurer was not prejudiced by delay in receipt of notice — Final summary judgment granted in favor of provider

13 Fla. L. Weekly Supp. 129b

Insurance — Personal injury protection — Coverage — Medical expenses — MRI — Affirmative defenses — Claim in excess of statutory allowance — No abuse of discretion in holding that issue of whether MRI bills were in excess of statutory allowance should have been pled as affirmative defense if insurer intended to argue that excessiveness was complete bar to payment — Any error in excluding insurer’s witness regarding excessiveness of bills was harmless where cross-examination of medical provider’s operations manager established bills were in excess of statutory maximum, and jury verdict was ultimately reduced to amount allowable under statute — Directed verdict — Appeals — Insurer failed to preserve issue of denial of motion for directed verdict for appellate review where there is no indication that insurer moved to set aside jury verdict or for entry of judgment in accordance with previous motion

13 Fla. L. Weekly Supp. 307a

Appeals — Non-final orders — Insurance — Personal injury protection — Order granting motion to strike complaint as sham is not appealable final order where order does not include words of dismissal or final judgment — Even if subsequent order denying motion for rehearing could make original order striking pleadings a final appealable order, insurer abandoned motion for rehearing by filing appeal, and trial court was without jurisdiction to enter order denying rehearing — Court will dismiss defective appeal of non-appealable order rather than temporarily relinquish jurisdiction for entry of appealable order

13 Fla. L. Weekly Supp. 1060a

Insurance — Personal injury protection — Appeals — Sanctions — Dismissal — Where, on remand from appellate court to conduct hearing on allegation of medical provider’s motion to dismiss appeal and request for sanctions, trial court found that conduct of insurer’s counsel did not rise to level of fraud on court but was neglectful, unduly prejudicial, and without justification, and that delays caused by counsel’s failure to comply with court orders had caused significant problems of judicial administration, prolonged the appellate process, and required unusual expenditure of judicial resources on remand; and insurer failed to respond to appellate court’s consequent order to show cause why motion to dismiss and request for sanctions should not be granted until after time set by court had expired and second motion for sanctions was filed, untimely response to show cause order is stricken, appeal is dismissed, and attorney’s fees and costs are awarded to provider

13 Fla. L. Weekly Supp. 573a

Insurance — Personal injury protection — Declaratory judgment — Insurer’s obligation to provide PIP log on pre-suit request from medical provider — Error to determine that medical provider was entitled to PIP log where no provision of PIP statute dictates that insurer must provide PIP log to insured or assignee or even require that insurer keep PIP log at all — However, because provider has right to information essential to determine its status as claimant, it has right to information that would otherwise be compiled in PIP log, copy of policy and declarations page — Further, as assignee of insured, provider had right to documentation at issue since insured had right to that documentation at any time — Argument that assignment did not specifically authorize release of documentation has been waived by failure to raise issue below — Demand letter — Argument regarding alleged defects in demand letter is rejected where appeal concerns only declaratory relief action, not action for benefits requiring demand letter, and any issue with demand letter would not affect validity of summary judgment in declaratory judgment action — Further, demand letter issue not raised below has been waived — Insurer is equitably estopped from asserting position that unintentional post-suit production of documents renders action moot where insurer’s refusal to produce documents forced provider to seek counsel and file suit — Moreover, court has jurisdiction to address merits of moot action where, as here, action involves important issue capable of repetition yet evading review

13 Fla. L. Weekly Supp. 236a

Insurance — Personal injury protection — Argument — Insurer’s opening statement summarizing treatment of insured by physicians other than plaintiff medical provider and stating that insured would testify that prior treatment did not help her was probably irrelevant, but did not constitute fundamental error — Plaintiff did not object to insurer’s comments, and treatment by other physicians was covered in testimony of insured and in testimony and report of insurer’s expert — Direct examination — Where provider did not object when examination of insured by insurer’s expert was characterized as independent examination in violation of motion in limine, and provider did not object to admission of expert’s report or seek to have phrase “independent medical examination” redacted from expert’s report, provider waived issue — Testimony of insurer’s expert that insured was referred to provider by her attorney, in contradiction to insured’s testimony that she met provider at store, was not so prejudicial as to deny provider fair trial where sole issue for jury was whether treatment by provider was medically necessary and provider did not preserve error — Further, any error was rendered harmless by trial court’s instruction not to consider issue of referral — Cross-examination — Limitation — No abuse of discretion in limiting cross-examination to exclude evidence that insurer’s expert brought disability lawsuit, sought to be introduced to impeach expert’s testimony that he continuously maintained active practice, where provider failed to proffer evidence into record and has not shown that lawsuit affected expert’s ability to maintain active practice — Settlement — No error in permitting insurer to question insured regarding settlement of uninsured motorist case with insurer and insured’s payment of provider’s bills where provider opened door by questioning insured about UM claim and fact that she personally paid provider’s bills because she found treatment helpful, and insurer merely clarified that insured received money from UM settlement to pay out-of-pocket payments to provider — Further, evidence of UM settlement was not prohibited where UM settlement was for bodily injury only and did not go to issue of whether provider’s treatment was medically necessary — Directed verdict — No error in failing to direct verdict in provider’s favor as to bill for initial visit which both provider and insurer’s expert testified was necessary for provider to determine future course of treatment where there is nothing in record to indicate provider moved for directed verdict, and there was evidence that treatment was not medically necessary — Closing argument — No abuse of discretion in denying motion for new trial based on unobjected-to comments in closing argument where alleged misconduct was not so pervasive as to deny fair trial — Provider cannot complain of prejudice from insurer’s remarks allegedly aimed to appeal to emotions of jury where provider made like comments — Negative impact arising from trial court’s reference in final jury charge to services provider “allegedly” provided was cured by curative instruction