Volume 23

23 Fla. L. Weekly Supp. 117a

Online Reference: FLWSUPP 2302ARNOInsurance — Personal injury protection — Insurer has waived defense asserting that insured’s claim is governed by Texas law rather than Florida law by insisting on satisfaction of demand letter requirement of Florida PIP statute — Demand letter — Sufficiency — Demand letter is not deficient for failing to delineate CPT codes — Insured was not required to attach re-assignment of benefits to demand letter — Standing — Where insured made unqualified assignments of PIP benefits to medical providers, she is without standing to initiate action against insurer for those benefits — Demand letter from insured that lists charges that add up to more than amount demanded, includes charges for which insured has assigned benefits to medical providers, and does not indicate which assigned charges remain unpaid is invalid

23 Fla. L. Weekly Supp. 264a

Online Reference: FLWSUPP 2303PAREInsurance — Personal injury protection — Coverage — Medical expenses — Deductible is to be applied to 100% of expenses and losses incurred

23 Fla. L. Weekly Supp. 1063b

Online Reference: FLWSUPP 2310WEEMInsurance — Personal injury protection — Confession of judgment — Summary judgment — Factual issue — Medical provider’s motion for summary judgment seeking determination that insurer has confessed judgment is denied where there exists genuine issue of fact as to whether payment made by insurer constitutes confession of judgment

23 Fla. L. Weekly Supp. 753a

Online Reference: FLWSUPP 2307BROOInsurance — Personal injury protection — Coverage — Emergency medical condition — Demand letter and suit for benefits above the $2500 paid by insurer was prematurely filed before medical provider responded to insurer’s requests for documentation that insured had emergency medical condition — Insurer’s post-suit payment of additional amount upon receipt of the requested documentation did not amount to confession of judgment — Insurer’s motion for summary judgment is granted — Medical provider’s motion for attorney’s fees is denied

23 Fla. L. Weekly Supp. 282b

Online Reference: FLWSUPP 2303RRIVInsurance — Personal injury protection — Coverage — Emergency medical condition — Insurer’s payment of additional benefits in response to receipt of determination of emergency medical condition after medical provider filed suit did not constitute confession of judgment where insurer did not wrongfully deny or withhold benefits resulting in filing of suit

23 Fla. L. Weekly Supp. 110a

Online Reference: FLWSUPP 2302LAMAInsurance — Personal injury protection — Small claims — Issue of whether trial court erred in considering amount of claim stated in demand letter in ruling on motion to dismiss was not preserved for appeal where medical provider did not object to introduction of demand letter into evidence and did not argue to trial court that it could not consider amount stated in letter — Doctrine of de minimis non curat lex does not preclude small claims action seeking less than $100 in PIP benefits — Error to base dismissal in part on affirmative defense that provider did not bring action in good faith because it did not attempt to mitigate damages by reaching out to insurer before initiating litigation — PIP statute only requires that claimant submit presuit demand letter, which provider did

23 Fla. L. Weekly Supp. 208a

Online Reference: FLWSUPP 2303CHAVInsurance — Personal injury protection — Affirmative defenses — Tender — Error to enter summary judgment in favor of medical provider where insurer raised affirmative defense of tender, and alleged tender was ambiguous — On remand, insurer has burden to prove that it made absolute and unconditional delivery of payment for five bills at issue and did not make non-payment of bills for other dates of service a condition of acceptance of payment

23 Fla. L. Weekly Supp. 644a

Online Reference: FLWSUPP 2306CONSInsurance — Personal injury protection — Med pay — Exhaustion of policy limits — Motion to amend affirmative defenses to plead either exhaustion of PIP benefits or exhaustion of Med pay benefits is denied where PIP benefits and Med pay benefits were exhausted 1,245 days and 62 days, respectively, before filing of motion to amend, and no credible explanation was given for delay

23 Fla. L. Weekly Supp. 779a

Online Reference: FLWSUPP 2307LHOUInsurance — Personal injury protection — Affirmative defenses — Amendment — Denial — Motion to amend answer to assert additional affirmative defense is denied where insurer filed motion over four years after suit was filed, nothing in record demonstrates that defense was not available to insurer at time original answer was filed, and allowing new defense would prejudice medical provider and inject new issue into case that is calculated to thwart provider’s motion for summary judgment — Even if motion to amend were not untimely, amendment violates parties’ pretrial stipulation of issues

23 Fla. L. Weekly Supp. 643a

Online Reference: FLWSUPP 2306MENDInsurance — Personal injury protection — Affirmative defenses — Abandonment — Insurer abandoned affirmative defense alleging that certain services were not medically necessary where litigation adjuster stated in sworn interrogatory that insurer was not making claim that services were unnecessary, and insurer admitted in response to admissions that services were related and medically necessary — Insurer’s responses to request for admissions conclusively establish relatedness and medical necessity of services — Further, affidavit filed by insurer is legally insufficient to create question of fact as to necessity of services where affidavit attempts to repudiate insurer’s prior sworn position on that issue