Volume 17

17 Fla. L. Weekly Supp. 1189a

Online Reference: FLWSUPP 1712KINGInsurance — Personal injury protection — Summary judgment — Opposing affidavit — Sufficiency — Error to fail to consider peer review report filed in opposition to motion for summary judgment on ground that report was not factually supported by independent medical examination — No error in prohibiting insurer’s records custodian from testifying on late billing issue where no predicate was laid for custodian’s testimony, and her affidavit stating that her review of file revealed that medical provider’s bills were postmarked more than 75 days after first date of treatment did not address whether bills were included in earlier mailing and did not refute testimony of provider’s records custodian that she sent bills in that earlier mailing — Discovery — Depositions — Expert witness fees — In absence of transcript of treating physician’s deposition, appellate court cannot determine whether insurer asked for facts or opinions from physician and must affirm award of expert witness fees for deposition testimony

17 Fla. L. Weekly Supp. 1185a

Online Reference: FLWSUPP 1712RAYNInsurance — Personal injury protection — Summary judgment — Opposing affidavit — Trial court erred in finding affidavit of insurer’s expert to be insufficient because it was not supported by independent medical examination — No merit to argument that despite this error appellate court can still affirm ruling on grounds that technical deficiencies in affidavit made it insufficient to create genuine issue of material fact where affidavit was sufficient to preclude summary judgment despite deficiencies, and insurer should have been afforded opportunity to correct deficient affidavit at summary judgment — Discovery — Depositions — Expert witness fees — In absence of transcript or stipulated record of hearing, trial court’s finding that treating physician testified as expert at deposition is affirmed — Explanation of benefits — Grant of summary judgment on claim that insurer did not provide EOB is reversed because there is no private right of action for failure to provide EOB

17 Fla. L. Weekly Supp. 1180b

Online Reference: FLWSUPP 1712LOPEInsurance — Personal injury protection — Denial of benefits — Date of cut-off letter based on independent medical examination is not date through which insured is entitled to receive benefits as matter of law — Question of appropriate date for suspension of benefits is issue for jury — Discovery — Depositions — Expert witness fees — No error in awarding expert witness fees for deposition of treating physician

17 Fla. L. Weekly Supp. 1082a

Online Reference: FLWSUPP 1711VELAInsurance — Personal injury protection — Discovery — Depositions — Trial court erred in requiring insurer to pay expert witness fee to take deposition of treating physician — Summary judgment — Opposing affidavit — No error in finding that peer review affidavit and report was deficient where documents referenced in the report were not attached to the report — No error in granting summary judgment in favor of provider on issue of reasonableness, relatedness, and necessity of medical treatment

17 Fla. L. Weekly Supp. 1079a

Online Reference: FLWSUPP 1711MAURInsurance — Personal injury protection — Discovery — Depositions — Treating physicians are entitled to expert witness fee for attending deposition — Rule does not require finding that deposition occurred “in anticipation of litigation” before awarding fee to expert witness for attending deposition — Notice of claim — Provider did not fail to provide insurer with notice of loss by failing to have patient verify that medical provider rendered the treatment billed — Medical provider cured any defect in notice by submitting disclosure and acknowledgment form prior to litigation which included claimant’s and physician’s signature and substantially complied with requirements of statute — Summary judgment — Opposing affidavit — Trial court erroneously struck peer review because report was drafted after suit was filed or because it was not based on independent medical examination — Peer review affidavit presents factual dispute precluding summary judgment in favor of provider

17 Fla. L. Weekly Supp. 739a

Online Reference: FLWSUPP 1709RICHInsurance — Personal injury protection — Coverage — Medical expenses — Denial — Peer review report which was not based on physical examination of patient was nonetheless sufficient to create material issue of fact precluding summary judgment in provider’s favor — Depositions — Trial court did not err in requiring insurer to pay expert witness fee for deposition of treating physician

17 Fla. L. Weekly Supp. 737a

Online Reference: FLWSUPP 1709MORAInsurance — Personal injury protection — Denial of benefits — Valid medical report — Trial court erred in striking affidavit and peer review report offered in opposition to medical provider’s motion for summary judgment on ground that peer review was not obtained within 30 days of receipt of bill and was not supported by physical examination of insured — Discovery — Depositions — Expert witness fees — No error in determining that treating physician was entitled to expert witness fees for his deposition testimony

17 Fla. L. Weekly Supp. 735a

Online Reference: FLWSUPP 1709LYNCInsurance — Personal injury protection — Withdrawal of benefits — Valid report — Report of insurer’s expert was not required to be factually supported by physical examination of insured in order to constitute valid report creating genuine issue of material fact as to reasonableness, relatedness and necessity of treatment — Discovery — Depositions — Expert witness fees — No error in awarding expert witness fees for deposition testimony of treating physician

17 Fla. L. Weekly Supp. 733a

Online Reference: FLWSUPP 1709ULLOInsurance — Personal injury protection — Denial of benefits — Valid medical report — Trial court erred in striking affidavit and peer review report offered in opposition to medical provider’s motion for summary judgment on ground that peer review must be supported by physical examination of insured — Trial court erred in using date of letter suspending benefits based on independent medical examination to suspend benefits where insurer had proof as of date of IME that no further treatment would be reasonable, related or necessary — Discovery — Depositions — Expert witness fees — No error in determining that treating physician was entitled to expert witness fees for his deposition testimony

17 Fla. L. Weekly Supp. 522a

Online Reference: FLWSUPP 1707MILOInsurance — Personal injury protection — Withdrawal of benefits — Notice — Error to refuse to consider affidavit of physician who conducted independent medical examination due to insurer’s failure to send notice of suspension of benefits — Discovery — Depositions — Expert witness fee — Where insurer sought to depose treating physician regarding medical treatment and care of insured, trial court did not err in granting motion to compel payment of expert witness fee