Volume 15

15 Fla. L. Weekly Supp. 1139a

Insurance — Default — Vacation — Excusable neglect — Abuse of discretion to deny motion to vacate default where affidavit of adjuster demonstrates that summons and complaint were mishandled internally by insurer and never forwarded to counsel

15 Fla. L. Weekly Supp. 843c

Insurance — Personal injury protection — Default — Vacation — Excusable neglect — Claim that insurer’s lawsuit manager failed to have matter assigned to attorney so that answer would be filed does not establish excusable neglect — Insurer did not act with due diligence where motion to vacate was not filed until nearly a year after insurer knew or should have known of default

15 Fla. L. Weekly Supp. 123b

Insurance — Personal injury protection — Independent medical examination — Necessity to plead as affirmative defense — Error to prohibit testimony regarding IME based on insurer’s failure to plead affirmative defense regarding IME where IME evidence would have been presented to refute medical provider’s evidence regarding reasonableness, relatedness and necessity of treatment — Expert witness — Qualifications — Expert’s consideration of managed care fee schedules is not basis for finding expert unqualified to make determination of reasonableness of charges — Deductible — Application of deductible provision of policy need not be plead as affirmative defense — If medical provider again obtains jury verdict on remand, trial court should reduce award by deductible set forth in policy — Attorney’s fees and cost award reversed based on reversal of judgment

15 Fla. L. Weekly Supp. 665b

Insurance — Personal injury protection — Demand letter — Validity — Demand letter that otherwise complies with statute but seeks specific amount for MRI in excess of statutory fee schedule is valid where insurer failed to send explanation of benefits in response to original claim — No error in denying insurer’s motion to amend answer and affirmative defenses to allege that demand letter was invalid where amendment would be futile — Error to fail to address amendment alleging that policy deductible provision was applicable — On remand trial court to determine applicability of deductible provision

15 Fla. L. Weekly Supp. 565a

Insurance — Personal injury protection — Coverage — Medical expenses — Limitation to amount pled — Where medical provider claimed PIP benefits not to exceed $1,500 in declaration, trial court erred in entering summary judgment in excess of amount pled — Provider should have amended complaint to claim entire amount of bills and may do so on remand — Affirmative defenses — Application of deductible is not affirmative defense that must be raised and proved by insurer

15 Fla. L. Weekly Supp. 283a

Insurance — Personal injury protection — Explanation of benefits — Medical provider may state cause of action for breach of contract and/or declaratory relief for failure to provide EOB — Provider may also maintain action for copy of policy and declarations page

15 Fla. L. Weekly Supp. 280a

Insurance — Personal injury protection — Medical provider may state causes of action for breach of contract based on failure to provide explanation of benefits, declarations page and policy — Declaratory judgment — Claim for failure to provide PIP log pursuant to section 627.736(4)(b) states cause of action for declaratory relief

15 Fla. L. Weekly Supp. 682a

Insurance — Personal injury protection — Declaratory judgment — PIP payout log — Insurer was not required to provide PIP log to assignee/medical provider — Trial court erred in entering summary judgment in favor of provider on claim for declaratory relief as to entitlement to PIP log

15 Fla. L. Weekly Supp. 944a

Insurance — Personal injury protection — Declaratory judgment — Assignee/medical provider may maintain action to determine or enforce right to copy of insurance policy and declarations page under section 627.4137 — No merit to argument that insurer satisfied obligation to furnish documents to provider by furnishing documents to insured

15 Fla. L. Weekly Supp. 943a

Insurance — Personal injury protection — Declaratory judgment — Insurer breached PIP contract by failing to provide explanation of benefits to assignee/medical provider — Provider may maintain action to determine or enforce right to copy of insurance policy and declarations page under section 627.4137 — No merit to argument that insurer satisfied obligation to furnish documents to provider by furnishing documents to insured