Volume 19

19 Fla. L. Weekly Supp. 51c
Online Reference: FLWSUPP 1901FEIJ
Insurance — Personal injury protection — Discovery — Depositions — Physician who is plaintiff in PIP action is not entitled to expert witness fee for deposition testimony
MANUEL V. FEIJOO, MD and MANUEL V. FEIJOO MD, PA a/a/o JUAN ACOSTA, Plaintiff, v. STATE FARM FIRE & CASUALTY CO., Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Small Claims Division. Case No. 11-4929 SP 25 (04). October 6, 2011. Nuria Saenz, Judge. Counsel: Kenneth B. Schurr, for Plaintiff. Michael Cabrera, for Defendant.

ORDER DENYING PLAINTIFF’S MOTION FOR

AWARD OF EXPERT WITNESS FEES TO

MANUEL V. FEIJOO, MD
THIS CAUSE came before the Court on the issue of expert witness fees for Dr. Manuel V. Feijoo’s deposition and the Court having reviewed the court file and applicable case law, it is therefore,

ORDERED AND ADJUDGED that Plaintiff’s Motion for Award of Expert Witness Fees to Dr. Manuel V. Feijoo is Denied as Dr. Feijoo is a party (one of the Plaintiffs) in this action.

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19 Fla. L. Weekly Supp. 383b

Online Reference: FLWSUPP 1905YMONInsurance — Discovery — Depositions — Medical provider shall take deposition of insurer’s corporate representative prior to insurer taking any depositions

19 Fla. L. Weekly Supp. 145a

Online Reference: FLWSUPP 1902ORTIInsurance — Personal injury protection — Delay in payment — Request for information or documentation — Where medical provider made no response to insurer’s request for information and documentation, summary judgment is entered in favor of insurer — No merit to provider’s argument that summary judgment is inappropriate at this time because provider was precluded from asking claims adjuster in deposition whether insurer had regular practice of requesting additional information where there is no evidence or formal claim that defendant engaged in unfair trade practice or improperly utilized request mechanism

19 Fla. L. Weekly Supp. 407b

Online Reference: FLWSUPP 1905WOLMInsurance — Default — Vacation — Insurer’s motion to vacate default is granted where insurer demonstrated excusable neglect in failing to appear at pre-trial conference, asserted meritorious defenses and acted with due diligence to vacate default, and medical provider failed to appear at hearing on motion to vacate default despite being granted leave to appear telephonically

19 Fla. L. Weekly Supp. 974a

Online Reference: FLWSUPP 1912DOMIInsurance — Default — Vacation — Abuse of discretion to refuse to set aside defaults and default final judgments — Calendering error by legal assistant to insurer’s counsel constituted excusable neglect — Trial court also erred in entering default final judgments without holding jury trial on damages and in awarding attorney’s fees and costs without holding evidentiary hearing

19 Fla. L. Weekly Supp. 1005b

Online Reference: FLWSUPP 1912PACHInsurance — Coverage — Deductible — Error to enter summary judgment in favor of insurer claiming that medical provider’s bill fell within deductible where there is disputed issue of material fact as to whether two bills received by insurer prior to provider’s bill were compensable and, therefore, should have been applied to deductible

19 Fla. L. Weekly Supp. 667c

Online Reference: FLWSUPP 1908WINDDeclaratory judgments — Insurance — Personal injury protection — Torts — Fraud — Action by insurer against medical provider alleging that provider’s failure to collect deductible and co-payment from insured constituted fraudulent conduct absolving insurer of liability for payment of medical bills — Declaratory judgment — Insurer has failed to state cause of action for declaratory relief where it seeks declaration regarding uncollected amounts that insurer would never be responsible for paying — Common law fraud — Insurer cannot state claim for common law fraud against provider where insurer’s reliance on misrepresentation that provider had collected deductible and co-payment would have caused no damage to insurer, and provider has no relationship with insurer that would give rise to duty to disclose — Statutory fraud — Section 627.736(4)(h) absolves insurer from its payment obligations if insured person has committed fraud, but does not provide remedy for insurer claiming fraud by provider — Section 817.234(7)(a) provides punishment for provider fraud proven in criminal proceeding, but does not create private cause of action against provider — Provisions of PIP statute absolving insurer from payment of claim to person who knowingly submits false or misleading statement and for treatment not lawfully rendered provide affirmative defenses in PIP suit, but do not create private causes of action against provider — Neither does insurer have private cause of action based on alleged violations of administrative rules — Fraudulent inducement — Where insurer cannot claim it relied on any misrepresentation in entering into insurance contract, fraudulent inducement claim cannot be maintained — Breach of contract claim cannot be sustained against provider as assignee where insurer failed to attach assignment to complaint or otherwise indicate that provider/assignee assumed obligations under contract

19 Fla. L. Weekly Supp. 213a

Online Reference: FLWSUPP 1903CHARInsurance — Personal injury protection — Examination under oath — Declaratory judgment — Insured was not required to attend EUO

19 Fla. L. Weekly Supp. 169a

Online Reference: FLWSUPP 1903HERMInsurance — Personal injury protection — Declaratory judgment — No error in granting insurer’s motion for summary judgment on count seeking declaration concerning provider’s presuit entitlement to copy of declarations page and policy on remand following appellate court’s reversal of prior summary judgment in favor of provider on that count — No error in granting insurer’s motion to set aside provider’s notice of voluntary dismissal without prejudice of this count

19 Fla. L. Weekly Supp. 777a

Online Reference: FLWSUPP 1910MESAInsurance — Personal injury protection — Declaratory judgment — Demand letter — Trial court erred in concluding that medical provider cured failure to provide presuit demand letter by providing demand letter after complaint for declaratory relief was filed — Issue of whether medical expenses were reasonable, related and necessary should not be subject of declaratory action — Remand with directions to vacate orders on motions for summary judgment and order awarding final declaratory judgment in favor of provider and dismiss action based on failure to serve presuit demand letter