Volume 15

15 Fla. L. Weekly Supp. 958a

Insurance — Personal injury protection — Coverage — Medical expenses — Customary charges — Error to enter summary judgment in favor of insurer based on finding that provider charged insurer an amount in excess of what provider “customarily” charged others — Although there did not appear to be factual dispute that plaintiff reduced charges for other medical providers or for direct-billed patients, whether plaintiff violated his own customer billing practices is issue to be resolved by trier of fact

15 Fla. L. Weekly Supp. 1196a

Insurance — Personal injury protection — Demand letter is not deficient for failing to state 80% of exact amount due where letter demands payment of sum that is 80% of total amount billed — Failure to include deductible in calculation of amount demanded does not render letter insufficient — Demand letter that fails to state correct date of accident, claim or policy number substantially complied with statute where copies of bills listing correct claim number were attached to letter — Insurer that ignored demand letter and belatedly raised issue of technical errors in letter after suit was commenced waived right to challenge sufficiency of letter — Because timeliness of submission of medical bills to insurer is determined by date of mailing rather than date of receipt, litigation adjuster’s affidavit stating that bills were not received does not rebut postmark and certified mail receipt showing bills were timely mailed — Medical provider’s motion for summary judgment on affirmative defenses of insufficient demand letter and late billing is granted

15 Fla. L. Weekly Supp. 435a

Insurance — Personal injury protection — Coverage — Medical bills — Timeliness — Waiver — Because section 627.736(5)(c)(1), which permits payment of medical bills submitted to insurer no more than 75 days after initial date of service pursuant to notice of initiation of treatment, is not statute of repose, but operates as statute of limitations or condition precedent, fact that initial set of bills sent to insurer were untimely does not bar action for later timely bills — Where insurer never advised medical provider that bills would not be paid due to late billing, explanation of benefits cited other reasons for denying claims, and insurer sent some late bills to peer review doctor for evaluation and indicated in PIP log that some of those bills would be paid, insurer waived right to assert untimeliness of bills as affirmative defense — No abuse of discretion in granting summary judgment in favor of provider

15 Fla. L. Weekly Supp. 779b

Insurance — Personal injury protection — Summary judgment — Opposing affidavit — Notarization — Trial court was correct in finding that initial affidavit filed by doctor who performed independent medical examination was legally insufficient for failing to indicate whether doctor was personally known or had produced identification to notary — Trial court erred by not permitting insurer to cure this technical defect — Trial court should have considered corrected affidavit attached to timely motion for rehearing

15 Fla. L. Weekly Supp. 569a

Insurance — Personal injury protection — Summary judgment — Opposing affidavit — Sufficiency — Error to strike affidavit of physician who conducted physical medical examination of insured and peer review where affidavit complied with requirements of rule 1.510(e) — Although medical records referenced in affidavit were not attached thereto, records were already filed with clerk of courts and references to records in affidavit were so explicit that there was no question as to documents identified — Error to grant motion for summary judgment where affidavits of parties’ experts create genuine issue of material fact as to whether treatment was reasonable, related and necessary

15 Fla. L. Weekly Supp. 1119a

Insurance — Personal injury protection — Motion to set aside order denying medical provider’s motion for summary judgment, alleging ex parte communication between judge entering order and insurer’s counsel, is denied where judge adopted insurer’s arguments and requested through judicial assistant that insurer draft order

15 Fla. L. Weekly Supp. 234a

Insurance — Personal injury protection — Summary judgment — Error to enter summary judgment in favor of medical provider based on determination that provider submitted medical records to insurer before filing suit where trial court relied on affidavit and deposition of provider’s billing clerk although documents were not timely filed and served, court rejected evidence that there was genuine issue of material fact on timely delivery of records, and court applied “more likely than not” standard rather than “undisputed facts and legal entitlement” standard

15 Fla. L. Weekly Supp. 85a

Insurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Insurer’s explanation that it calculates allowable charge for CPT code based on 200% of amount allowed for code under Medicare Part B is not sufficient to raise disputed issue of material fact that fees charged by medical provider are reasonable in non-Medicare context

15 Fla. L. Weekly Supp. 84c

Insurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Insurer’s explanation that it calculates allowable charge for CPT code based on 200% of amount allowed for code under Medicare Part B is not sufficient to raise disputed issue of material fact that fees charged by medical provider are reasonable in non-Medicare context

15 Fla. L. Weekly Supp. 713a

Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable charges — Where medical provider does not accept Medicare patients and is not certified provider for workers’ compensation patients, Medicare and workers’ compensation fee schedules are irrelevant to issue of reasonableness of charges for treatment that does not include nerve conduction testing, MRI or other procedures listed in section 627.736(5)(a)(2) — Motion to take judicial notice of fee schedules denied