Volume 18

18 Fla. L. Weekly Supp. 579b

Online Reference: FLWSUPP 1807IEST

Insurance — Personal injury protection — Coverage — Withdrawal of benefits — Retroactive notice of withdrawal — Insurer is not precluded from suspending benefits retroactively to date of independent medical examination which revealed that treatment was not reasonable, related or necessary — Question of whether services were reasonable, related or necessary is for jury to decide — Error to enter summary judgment finding as matter of law that controlling date for suspension of benefits was date of IME suspension letter, not date of IME

18 Fla. L. Weekly Supp. 635a

Online Reference: FLWSUPP 1808SANC

Insurance — Personal injury protection — Summary judgment — Opposing affidavit — Error to strike affidavit of peer review physician offered in opposition to motion for summary judgment on issue of reasonableness, relatedness and medical necessity of claim where peer review arguably supplemented independent medical examination and did not expressly contradict it

18 Fla. L. Weekly Supp. 634a

Online Reference: FLWSUPP 1808SOTO

Insurance — Personal injury protection — Coverage — Reasonable and related treatment — No error in excluding testimony of peer review physician on issue of reasonableness of charges and relatedness of treatment where peer review directly contradicted deposition testimony of insurer’s litigation adjuster admitting that treatment was related and that charges were below usual and customary charges, and insurer has failed to show credible explanation for discrepancy in record or peer review — Providing explanation for contradiction for first time on appeal does not demonstrate reversible error by trial judge

18 Fla. L. Weekly Supp. 1174a

Online Reference: FLWSUPP 1811SIMO

Insurance — Personal injury protection — Coverage — Reasonable charges — Medicare fee schedule is not relevant to determination of reasonableness of charges under section 627.736(5)(a)1.

18 Fla. L. Weekly Supp. 310b

Online Reference: FLWSUPP 1803FIGU

Insurance — Personal injury protection — Jury instructions — Motion for judgment in accordance with directed verdict or new trial based on allegedly improper jury instruction regarding proof of reasonableness and necessity of medical expenses is denied where insurer did not object to jury instruction prior to date of trial and any timely objection would have been denied because instruction is correct statement of law

18 Fla. L. Weekly Supp. 1195c

Online Reference: FLWSUPP 1811ALAV

Insurance — Personal injury protection — Coverage — Medical expenses — Partial summary judgment is entered in favor of medical provider where treating physician’s affidavit met burden to demonstrate that treatment and charge were reasonable, related and necessary and insurer did not file anything to controvert affidavit — No merit to claim that insured’s non-attendance at independent medical examinations prevented insurer from rebutting provider’s affidavit and, therefore, precludes summary judgment where insurer could have obtained expert’s review of records of treating physician without conducting examination of insured

18 Fla. L. Weekly Supp. 493b

Online Reference: FLWSUPP 1805PINO

Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary treatment — Peer review report offered in opposition to motion for summary judgment on issue of reasonableness, relatedness and medical necessity of treatment is not admissible under business records exception to hearsay rule — Even if peer review report were admissible, conclusions therein are insufficient to create genuine issue of material fact precluding summary judgment — Because peer review report is inadmissible, so is physician’s affidavit that incorporates inadmissible peer review as factual basis — Physician’s amended affidavit is also inadmissible where amended affidavit contains impermissible, unexplained material change in sworn testimony and departure from original peer review

18 Fla. L. Weekly Supp. 406a

Online Reference: FLWSUPP 1804BERM

Insurance — Personal injury protection — Coverage — Mandatory policy language providing that insurer will pay 80% of reasonable charges controls over permissive language of PIP statute that allows more limited reimbursement

18 Fla. L. Weekly Supp. 405b

Online Reference: FLWSUPP 1804JONE

Insurance — Personal injury protection — Coverage — Insurer is entitled to limit reimbursement to 200% of Medicare fee schedule as allowed by 2008 PIP statute where policy states that insurer will pay in accordance with No-Fault Statute — Further, terms of 2008 PIP statute are incorporated into every PIP policy pursuant to section 627.7407 — Application of statutory fee schedules does not impair, but enhances, contractual rights of insured by allowing insured to have more available benefits for treatment before exhaustion of policy limits

18 Fla. L. Weekly Supp. 1055a

Online Reference: FLWSUPP 1810GELP

Insurance — Personal injury protection — Coverage — Where policy issued after enactment of 2008 version of PIP statute provides that insurer will pay 80% of reasonable expenses for medical services and does not indicate that insurer was going to limit reimbursement to 200% of allowable amount under Medicare fee schedule as permitted by 2008 statute, policy terms control reimbursement