Volume 17

17 Fla. L. Weekly Supp. 989a

Online Reference: FLWSUPP 1710INTEInsurance — Appeals — Supplementation of record on appeal — Documents duly filed and made part of record in lower court — Filing of document is controlled by clerk’s stamp, not clerk’s docket entries

17 Fla. L. Weekly Supp. 1151b

Online Reference: FLWSUPP 1712SCOOInsurance — Personal injury protection — Appeals — Certiorari — Request for certiorari relief from order denying motion for summary judgment based on insufficient demand letter is denied where insurer failed to demonstrate that order will cause irreparable harm that cannot be remedied on appeal, insurer was not denied due process, and trial court did not deviate from essential requirements of law

17 Fla. L. Weekly Supp. 1182a

Online Reference: FLWSUPP 1712DENIInsurance — Personal injury protection — Summary judgment — Appeals — Preservation of issue — Where insurer did not argue to trial court that failure of medical provider’s affidavit to establish that accident occurred precluded entry of summary judgment, issue was not preserved for appeal — Discovery — Depositions — Expert witness fees — No error in awarding expert witness fees for deposition testimony of treating physician — Error to fail to consider affidavit of peer review doctor filed in opposition to motion for summary judgment because it was not based on independent medical examination

17 Fla. L. Weekly Supp. 515a

Online Reference: FLWSUPP 1707MARQInsurance — Personal injury protection — Summary judgment — Opposing affidavit — Peer review — Appellate court lacks jurisdiction to review purported order excluding peer review report and affidavit from summary judgment evidence where hearing transcript does not clearly demonstrate exclusion, and record contains no order excluding report and affidavit — Withdrawal of benefits — Notice — Error to find that effective date of withdrawal of benefits was date of letter suspending benefits based on independent medical examination, not date that IME physician concluded that further treatment would not be reasonable, related or necessary

17 Fla. L. Weekly Supp. 1173a

Online Reference: FLWSUPP 1712MARTInsurance — Personal injury protection — Appeals — Appellant may not raise issues on appeal which, although presented to trial court, were not ruled upon in the order appealed — Confession of error — Withdrawal — Florida supreme court’s stay of certiorari proceeding regarding district court of appeal opinion upon which medical provider based confession of error is not sufficient grounds for withdrawal of that confession of error, as district court’s opinion remains binding in absence of stay or recall of mandate — However, upon proper motion within court’s term, it may be just for court to recall mandate or stay issuance of mandate pending supreme court’s resolution of certiorari proceedings in related cases — Summary judgment — Opposing affidavit — Based on confession of error as to trial court’s striking of opposing affidavit and report filed by peer review doctor due to doctor’s failure to personally examine insured, entry of final summary judgment in favor of provider is reversed

17 Fla. L. Weekly Supp. 444a

Online Reference: FLWSUPP 1706FERRInsurance — Noncommercial aircraft — Wrongful death — Flight during which accident occurred and on which instant declaratory action and underlying liability action were based fell outside terms of noncommercial aircraft insurance policy, and policy provided no liability coverage for accident, where accident occurred when aircraft was being used to transport decedent for hire, money, and compensation, and operation and use of aircraft on the flight at issue was without an FAA Operator Certificate, in direct violation of FAA requirements — Moreover, because aircraft lease clearly and unambiguously prohibited all such operations, aircraft that is subject of action was converted, and insurer had no obligation to pay lienholder listed on breach of warranty endorsement — Jurisdiction reserved to determine insurer’s entitlement to reimbursement of amounts paid or to be paid in settlement of wrongful death actions and defense costs and to determine insurer’s entitlement to interest on reimbursement of these amounts

17 Fla. L. Weekly Supp. 974a

Online Reference: FLWSUPP 1710MCLEInsurance — Personal injury protection — County court did not depart from essential requirements of law by denying insurer’s motion to dismiss or abate provider’s complaint seeking payment of PIP benefits during pendency of declaratory judgment action filed by provider in circuit court in another circuit concerning his responsibility to submit to an examination under oath with respect to certain claims against insurer — Insurer failed to show that county court in which instant case is pending is court of jurisdiction “comparable” to that of circuit court — Attorney’s fees — Provider’s unopposed motion for conditional award of attorney’s fees pursuant to section 627.428 granted

17 Fla. L. Weekly Supp. 881a

Online Reference: FLWSUPP 1710CHARInsurance — Personal injury protection — County court did not depart from essential requirements of law by denying insurer’s motion to dismiss or abate Orange County case on ground that prior action involving same parties and same or substantially similar causes of action was pending in circuit court of another county — Insurer failed to establish that Orange County court, where case it sought to abate is pending, is court of jurisdiction “comparable” to that of circuit court in which previously filed case is pending

17 Fla. L. Weekly Supp. 880a

Online Reference: FLWSUPP 1710CHANInsurance — Personal injury protection — County court did not depart from essential requirements of law by denying insurer’s motion to dismiss or abate Orange County case on ground that prior action involving same parties and same or substantially similar causes of action was pending in another county — Insurer failed to establish that Orange County court, where case it sought to abate is pending, is court of jurisdiction “comparable” to that of circuit court in which previously filed case is pending