Volume 14

14 Fla. L. Weekly Supp. 100b

Insurance — Stay — Striking — Lack of reciprocity — Where foreign insurer failed to introduce evidence that foreign state is reciprocal state under National Association of Insurance Commissioners Rehabilitation and Liquidation Model Act or Uniform Insurers Liquidation Act, notice of automatic stay is stricken

14 Fla. L. Weekly Supp. 586b

Insurance — Personal injury protection — Coverage — Exclusions — PIP policy unlawfully broadens statutory exclusion for injury suffered by named insured while occupying vehicle owned by named insured and not insured under policy where policy defines “named insured” as insured and insured’s spouse — Injuries suffered by insured while occupying vehicle owned by wife are covered

14 Fla. L. Weekly Supp. 32a

Insurance — Personal injury protection — Evidence — Abuse of discretion to prevent medical provider who was suing for cost of MRI from introducing evidence of insurer’s payment of charge for orthopedist’s review of MRI in reliance on section 90.409, which provides that evidence of offering to pay medical expenses or other damages is inadmissible to prove liability for accident or injury — Provider sought to introduce evidence of payment for MRI review to prove that insurer was liable for cost of MRI, not to prove insurer’s liability for injury or accident, payment for MRI review was relevant to issue of whether MRI was medically necessary, and probative value of evidence was not substantially outweighed by danger of unfair prejudice, confusion of issues or misleading jury — Exclusion of evidence was not harmless where it does not appear from transcript that reasonable juror would have understood or inferred that insurer paid for MRI review — No error in allowing insurer to admit evidence of more thorough post-litigation review by same physician who conducted pre-litigation records review

14 Fla. L. Weekly Supp. 747a

Insurance — Personal injury protection — Expert witnesses — Striking — Where insured has not proffered intended testimony of expert witnesses stricken by trial court due to insured’s failure to comply with order requiring disclosure of experts, insured has not shown prejudice — No abuse of discretion to permit insurer’s expert to testify that it was unusual in his clinical experience for insured’s objective and subjective findings not to vary and that he considered that factor in evaluating insured’s medical records to reach opinion on necessity of treatment where testimony was opinion of insurer’s expert, not improper comment on opinion or credibility of insured’s expert

14 Fla. L. Weekly Supp. 523a

Insurance — Automobile — Cancellation — Appeals — Timeliness — Insured’s motion for rehearing was timely when measured by date of service rather than date of filing; therefore, appeal filed within 30 days of order on motion for rehearing was also timely filed — Law of case doctrine did not preclude trial court from entering summary judgment on remand after entry of appellate order finding that neither party’s motion for summary judgment should have been granted due to existence of factual issues where appellate court’s statement was not decision on question of law, and record before trial court following remand was different from record on appeal — Insured is estopped from arguing on appeal that disputed issues of fact regarding cancellation of policy exist that precluded entry of summary judgment for insurer where insured argued to trial court that no material issues of fact existed on that issue — No error in denying insured’s motion for rehearing seeking to amend complaint to plead promissory estoppel where insured could not have pled viable estoppel theory — Attorney’s fees — Appellate — Justiciable issues — Motion for section 57.105 fees is denied for failure to afford safe harbor period to insured

14 Fla. L. Weekly Supp. 405a

Insurance — Personal injury protection — Fraud on court — Coaching witness — Sanctions — Dismissal — Where trial court held unrecorded sidebar at which attorneys for medical provider were instructed to warn provider’s corporate representative to refrain from making gestures that court believed were meant to coach insured during her testimony, and thereafter court declared mistrial with prejudice when it observed that provider’s representative continued to make gestures during cross-examination of insured, but record fails to demonstrate that provider’s representative was aware that his behavior would compromise case or understood consequences, provider’s due process rights were violated by dismissal without notice and opportunity to be heard

14 Fla. L. Weekly Supp. 621a

Insurance — Personal injury protection — Dismissal — Failure to prosecute — Record activity — Error to grant insurer’s motion to dismiss for lack of prosecution where there was record activity within one year preceding motion to dismiss, even though record activity was action by insurer rather than by plaintiff-medical provider

14 Fla. L. Weekly Supp. 141b

Insurance — Personal injury protection — Discovery — Witnesses — Failure to disclose — No error in exclusion of testimony of witness not disclosed in accord with pretrial order where use of witness would prejudice opposing party

14 Fla. L. Weekly Supp. 127b

Insurance — Personal injury protection — Appeals — Certiorari — Timeliness — Petition for writ of certiorari filed after insurer filed motion for rehearing of order challenged by petition but before trial court ruling on motion for rehearing is not premature as filing of petition constituted abandonment of motion for rehearing — Discovery — Privilege — Trade secret — Trial court departed from essential requirements of law by ordering production of documents claimed to contain trade secrets without conducting in camera inspection and setting forth findings regarding asserted trade secret privilege — Waiver — Privilege log — No merit to argument that insurer waived trade secret privilege by failing to file privilege log where it appears from fact that trial court overruled attorney-client and work product objections on ground that no privilege log was filed that only those privileges were affected by lack of log — Determination that trade secret privilege was not waived by lack of log is within trial court’s discretion — Motion to compel quashed

14 Fla. L. Weekly Supp. 588a

Insurance — Personal injury protection — Discovery — Pure bill of discovery complaint is dismissed where medical provider has already identified proper party defendant and potential causes of action for breach of contract and PIP claim — Further, small claims court has no jurisdiction over pure bill of discovery complaint