Volume 14

14 Fla. L. Weekly Supp. 1020a

Insurance — Personal injury protection — Summary judgment — Opposing affidavit — Although trial court that entered summary judgment in favor of medical provider on claim for MRI may have erred in not considering affidavit of physician who performed independent medical examination because IME was performed more than 30 days after submission of claim, summary judgment is affirmed because affidavit that focused on treatment and services rendered after MRI did not create genuine issue of material fact as to whether MRI was reasonable, related or necessary

14 Fla. L. Weekly Supp. 888a

Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary expenses — Summary judgment — Opinion of doctor who performed independent medical examination that no further treatment would be reasonable, related or necessary fails to create genuine issue of material fact as to medical services rendered prior to IME — Although IME report would appear to create issue of material fact as to reasonableness, relatedness and necessity of treatment after date of IME, insurer waived right to suspend benefits as of date of IME by not notifying medical provider of intent to suspend until 4 months after treatment ended, nearly 6 months after IME — Affidavit of doctor who conducted peer review also fails to create genuine issue of material fact on reasonable, related and necessary issue because peer review that is based on review of incomplete records and not supported by examination of insured is not valid report — Further, insurer cannot create genuine issue of fact through IME report and peer review that contradict each other — Summary judgment entered in favor of provider

14 Fla. L. Weekly Supp. 315b

Insurance — Personal injury protection — Directed verdict — Reference in final judgment to “verdict” entered in favor of medical provider indicates trial court entered directed verdict, not summary judgment — Entering directed verdict prior to trial is improper, but does not amount to reversible error if legally justified — Evidence — Affidavits — Although insurer failed to preserve issue of sufficiency of physician’s affidavit by challenging affidavit with trial court, appellate court must examine affidavit to fulfill duty to determine whether it is insufficient to support verdict as matter of law — Affidavit was insufficient as matter of law, and trial court erred in entering directed verdict where issue before court was not merely reasonableness of amount of bills, but also relatedness and necessity of treatment, and affidavit merely recites statutory standard for when bills are payable under PIP policy and fails to state nature of insured’s condition, proper treatment for condition, nature and extent of treatment actually provided, whether physician was insured’s treating physician and what made treatment reasonable, related and necessary — Even if trial court entered summary judgment, it erred in doing so based on affidavit insufficient to demonstrate conclusively nonexistence of genuine issue of material fact

14 Fla. L. Weekly Supp. 624a

Insurance — Personal injury protection — Coverage — Medical expenses — Failure to obtain reasonable proof within 30 days — PIP statute does not require insurer to obtain medical report within 30 days of notice of claim to dispute reasonableness, relatedness or medical necessity of treatment — Peer review — Error to hold that affidavit that alleges doctor “performed review of medical records … known as peer review” was based on conclusions not facts — Affidavit is sufficient despite failure to attach medical records where records were filed in case, and peer review report attached to affidavit referenced records in detail — Error to enter summary judgment in favor of medical provider

14 Fla. L. Weekly Supp. 83b

Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary expenses — Summary judgment — Affidavit and report by peer review physician filed in opposition to medical provider’s motion for summary judgment on reasonableness, relatedness and necessity of MRIs was not valid report where report was not supported by physical examination of insured and was not prepared prior to denial of benefits — Requirement to obtain report from like physician applies when benefits are withdrawn as well ass when benefits are denied at the outset

14 Fla. L. Weekly Supp. 675b

Insurance — Personal injury protection — Summary judgment — Where medical provider’s affidavits in support of summary judgment are not conclusory, self-serving or impeached, treatment and charges are found to be reasonable, related and necessary — Summary judgment entered in favor of provider

14 Fla. L. Weekly Supp. 536b

Insurance — Personal injury protection — Coverage — Denial — Unreasonable, unrelated or unnecessary treatment — Failure to obtain reasonable proof within 30 days — Although not obtained within 30 days of notice of loss, peer review and independent medical examination are reasonable proof that treatment was not reasonable, related and necessary, and trial court erred in disregarding physicians’ affidavits and entering summary judgment in favor of medical provider — Affidavits did not require verification to be considered by court

14 Fla. L. Weekly Supp. 424a

Insurance — Personal injury protection — Summary judgment — Hearing — Continuance — Pending discovery — No abuse of discretion in denying motion to continue second summary judgment hearing due to pending discovery where first summary judgment hearing was continued for 3 months to allow additional depositions, and insurer has shown no extenuating circumstances to explain lack of any attempt to re-schedule depositions during 3-month delay — Factual issues — Opposing affidavit — In entering summary judgment in favor of provider, it was error to overlook or dismiss opposing affidavit and report of IME doctor refuting need for diagnostic testing because IME report was filed separately from affidavit where report was incorporated in affidavit by reference — Error to enter final summary judgment addressing reasonableness of charges but failing to address pending unresolved issue of medical reasonableness of treatment

14 Fla. L. Weekly Supp. 71a

Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary expenses — Summary judgment is granted in favor of medical provider where, although insurer claims in answer that charges were not reasonable, defense is not presented in verified format, no affidavit has been filed in opposition to motion for summary judgment, and only evidence before court at time of hearing on motion is provider’s affidavit stating that charges were reasonable

14 Fla. L. Weekly Supp. 795c

Insurance — Personal injury protection — Summary judgment — Opposing affidavit — Affidavit in opposition to provider’s motion for summary judgment on issue of reasonable and customer charges was legally insufficient where affidavit was not based on personal knowledge and did not authenticate and attach all documents relied upon in forming opinion — Because insurer did not file another affidavit, despite court having granted leave to do so, summary judgment on issue is granted in favor of medical provider