Volume 16

16 Fla. L. Weekly Supp. 450a

Online Reference: FLWSUPP 165BALON

Insurance — Personal injury protection — Declaratory judgment — Medical provider’s petition for declaratory relief seeking only advisory opinion as to sufficiency of disclosure and acknowledgment form submitted by provider is dismissed

16 Fla. L. Weekly Supp. 260a

Online Reference: FLWSUPP 163TORRE

Insurance — Personal injury protection — Declaratory action — Petition that only seeks advisory opinion as to whether disclosure and acknowledgment form was properly completed does not state proper cause of action for declaratory relief

16 Fla. L. Weekly Supp. 946a

<Online Reference: FLWSUPP 1610 JEAN NOT FINAL VERSION OF OPINION
Subsequent Changes at 17 Fla. L. Weekly Supp. 352a

Insurance — Personal injury protection — Coverage — Declaratory judgment — Complaint seeking determination that plaintiff is entitled to insurance coverage is dismissed where plaintiff failed to satisfy condition precedent of submission to examination under oath, and bona fide dispute does not yet exist since coverage has not yet been denied

16 Fla. L. Weekly Supp. 246a

Online Reference: FLWSUPP 163DIREC

Torts — Civil theft — Fraudulent insurance claims — Patient brokering — Kickbacks — Deceptive and unfair trade practices — Insurer’s action against medical provider, alleging provider committed civil theft and violated various state statutes by billing for medical services that were rendered by a health care provider to whom defendant referred his patients for range of motion and muscle testing — Motion to dismiss civil theft count based on statute providing that civil theft statute does not impose civil liability regarding provision of health care at licensed facility or care provided by appropriately licensed personnel in any setting in which such personnel are authorized to practice is denied, as statute does not apply to civil theft claim based on defendant’s billing practices — Fraud count was plead with sufficient specificity to withstand motion to dismiss — Motion to dismiss count for unjust enrichment denied, as deficiencies raised by defendant can be resolved through discovery — Deceptive and unfair trade practices — Motion to dismiss claim brought pursuant to Florida Deceptive and Unfair Trade Practices Act on ground that FDUTPA expressly does not apply to any person or activity regulated by the Florida Department of Insurance is denied — Department of Insurance has no direct authority to regulate provider’s alleged deceptive treatment or billing practices that gave rise to instant litigation — Count alleging negligent billing practices is dismissed, without prejudice, and plaintiff provided leave to amend — Count against codefendant alleging fraud was plead with requisite particularity and specificity — Motion to dismiss this count is denied

16 Fla. L. Weekly Supp. 217b

Online Reference: FLWSUPP 163LOUIS

Insurance — Personal injury protection — Costs — Expert witness fee — No abuse of discretion in granting expert witness fees for lawyer who testified as expert as to reasonable attorney’s fees despite claim that case was not exceptional case and testimony was not burdensome

16 Fla. L. Weekly Supp. 138b

Online Reference: FLWSUPP 162ESTRA

Insurance — Personal injury protection — Jurors — Challenge — Cause — Error to refuse request to excuse juror whose statements showed that she would be biased against insurer and could not accept that insurer had right to hire independent doctor to dispute reasonableness of treatment — Error to refuse to excuse second juror whose statements indicated that she would be biased against insurer — Juror’s statement, “I think I will give it a fair trial,” did not overcome reasonable doubt of her impartiality — Continuance — Denial — No abuse of discretion in denying request to continue trial to afternoon due to unavailability of insurer’s expert witness on reasonableness, relatedness and necessity of charges where insurer did not show due diligence in securing witness’s presence despite trial court’s clear expression of time at which witness needed to appear, and case had been pending for several years before several judges — Moreover, there was no prejudice to insurer in omission of witness’s testimony since trial court indicated that on cross-examination of medical provider’s witnesses insurer had elicited legally sufficient impeachment to show that charges may not have been reasonable, related or necessary

16 Fla. L. Weekly Supp. 240a

Online Reference: FLWSUPP 163MURRA

Insurance — Commercial property — No merit to insurer’s claim that business’s recovery for new property damaged in hurricane is limited to costs of repair or replacement where clauses relied upon by insurer are limited by their terms to valuation of used property, and separate clause provides for valuation of new property at cost price to insured plus freight charges and assembly costs actually incurred

16 Fla. L. Weekly Supp. 608a

Online Reference: FLWSUPP 167CASTE

Insurance — Personal injury protection — Cancellation of policy — Nonpayment of premium — Trial court erred in granting motion for summary judgment on issue of whether policy had lapsed due to nonpayment of premium where insurer failed to attach documents referenced in motion and motion was supported only by affidavit — Further, where motion was filed one month after complaint was filed, there was not enough discovery completed or evidence available for trial court to determine whether there was genuine issue of material fact

16 Fla. L. Weekly Supp. 753a

Online Reference: FLWSUPP 168GREEN

Insurance — Personal injury protection — Coverage — Cancelled policy — Where insured had notice of additional premium due on PIP policy and opportunity to pay premium and maintain policy but failed to do so, policy was cancelled prior to date of accident, and accident is not covered loss

16 Fla. L. Weekly Supp. 948c

Online Reference: FLWSUPP 1610KIRK

Insurance — Homeowners — Cancellation — Notice to mortgagee — Uncontroverted affidavit of insurer’s operations manager setting forth proof of mailing notice of cancellation of policy to mortgagee more than ten days before cancellation sustains insurer’s burden to show compliance with notice requirement where policy provides that proof of mailing will be sufficient proof of notice