Volume 17

17 Fla. L. Weekly Supp. 742a

Online Reference: FLWSUPP 1709ALFO

Insurance — Personal injury protection — Claimant’s failure to attend examination under oath does not preclude recovery of benefits under policy at issue where claimant was not named insured or resident spouse, but an omnibus insured — Reasonable, related, and necessary treatment — Trial court erred by ruling that insurer could not deny or reduce claims without a “valid report” based on a physical examination — Insurer may rely on report obtained pursuant to section 627.736(7)(a) even when report is obtained more than thirty days after claim was submitted and is not required to obtain a physical examination to reduce or deny payment of services that are not reasonable, related, or necessary — Error to refuse to consider opinion of insurer’s expert, who conducted paper review of provider’s treatment records for claimant — Trial court’s award of attorney’s fees to provider must be reversed in view of appellate court’s reversal of underlying judgment — Provider entitled to appellate attorney’s fees on EUO issue on which provider prevailed

17 Fla. L. Weekly Supp. 417a

Online Reference: FLWSUPP 1706PINO

Insurance — Personal injury protection — Opposing affidavit — Peer review — Abuse of discretion to refuse to consider peer review report submitted in opposition to motion for summary judgment on basis that report that found some treatment prior to independent medical examination was not reasonable, related or necessary conflicted with IME report that found that further treatment would not be reasonable, related or necessary where IME report did not discuss prior treatments — Error to deny insurer’s request to correct deficiency in peer review affidavit which failed to list databases relied upon in reaching conclusions regarding challenged treatments — Withdrawal of benefits — Notice — Abuse of discretion to find that cutoff of benefits following IME was effective on date insurer sent notice of cutoff rather than date on which IME physician determined further treatment would not be reasonable, related or necessary

17 Fla. L. Weekly Supp. 890a

Online Reference: FLWSUPP 1710BEND

Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary treatment — Summary judgment — Opposing affidavit — Insurer was not barred from submitting affidavit of independent medical examiner in defense of provider’s motion for summary judgment although examination did not take place until after insured had completed all treatment — Depositions — Expert witness fees — Treating physician entitled to expert witness fees for deposition taken pursuant to rule 1.390 — Award of attorney’s fees to prevailing provider reversed in light of appellate court’s reversal of final judgment in provider’s favor

17 Fla. L. Weekly Supp. 1062a

Online Reference: FLWSUPP 1711MCFA

Insurance — Personal injury protection — Summary judgment — Opposing affidavit — Abuse of discretion to refuse consideration of opposing affidavit attached to motion for rehearing following grant of summary judgment where affidavit would have raised genuine issue of material fact had it been filed and served concurrently with motion for summary judgment, and compelling and exigent circumstances explain late filing of affidavit — Such circumstances exist where insurer’s failure to attach affidavit to notice of filing affidavit in opposition to summary judgment was due to clerical error, and when medical provider was notified of missing affidavit, provider led insurer to believe that it did have affidavit

17 Fla. L. Weekly Supp. 987a

Online Reference: FLWSUPP 1710MCFA

NOT FINAL VERSION OF OPINION
Subsequent Changes at 17 Fla. L. Weekly Supp. 1062aInsurance — Personal injury protection — Coverage — Medical benefits — Summary judgment — Opposing affidavit — Trial court abused its discretion in refusing to consider insurer’s expert’s affidavit, included with insurer’s motion for rehearing following grant of summary judgment in favor of provider, where affidavit would have raised genuine issue of material fact had it been filed and served concurrently with opposing party’s motion for summary judgment and compelling or exigent circumstances explained late filing of affidavit

17 Fla. L. Weekly Supp. 694a

Online Reference: FLWSUPP 1708HERR

Insurance — Personal injury protection — Summary judgment — Opposing affidavit — Sufficiency — Where peer review affidavit submitted by insurer in opposition to motion for partial summary judgment on issue of reasonableness, relatedness and necessity of treatment refers to documents that are not part of record and are not attached to affidavit, and physician who performed peer review failed to review insured’s complete medical records, medical provider’s evidence on issue stands uncontroverted — Partial summary judgment is entered in favor of provider

17 Fla. L. Weekly Supp. 519a

Online Reference: FLWSUPP 1707ELIS

Insurance — Personal injury protection — Error to enter summary judgment in favor of medical provider where there were competing reports from insured’s physician and physician who performed independent medical examination regarding reasonableness, relatedness and necessity of medical bills — Further, whether benefits should have been withdrawn as of date of IME or as of date of cut-off letter is issue for jury

17 Fla. L. Weekly Supp. 1030a

Online Reference: FLWSUPP 1710RAM2

Insurance — Personal injury protection — Summary judgment is granted as to reasonableness, relatedness and necessity of medical services provided prior to independent medical examination where physician who conducted IME concluded that no further care would be medically necessary as of date of IME — Summary judgment is denied as to necessity of post-IME care

17 Fla. L. Weekly Supp. 981a

Online Reference: FLWSUPP 1710ROD3

Insurance — Personal injury protection — Coverage — Medical expenses — Withdrawal of benefits — Insurer has right to request independent medical examination for sole purpose of withdrawing authorization for future medical treatment — Date of valid IME report is date on which insurer may withdraw PIP benefits, not date of notification of suspension of benefits letter — Because IME report and IME physician’s affidavit raised genuine issue of material fact as to whether medical bills incurred between date of IME report and date of suspension letter were for reasonable, related, and necessary treatment, trial court erred in granting summary judgment in favor of provider for those bills

17 Fla. L. Weekly Supp. 78a

Online Reference: FLWSUPP 1702TEJA

Insurance — Personal injury protection — Summary judgment — Opposing affidavit — Error to strike affidavit of physician that demonstrated personal knowledge, admissible facts and competence to testify — Error to exclude peer review report where reporting physician indicated that he reviewed the notes of four chiropractors and the examination notes from two medical doctors — Error to enter summary judgment in favor of insured where affidavits presented genuine factual disputes regarding damages and reasonableness, necessity and relatedness of medical treatment — Appellate court declines to review partial summary judgment order regarding demand notice where notice of appeal indicates that insurer was appealing final summary judgment for medical benefits, and partial summary judgment was not attached to notice