Volume 23

23 Fla. L. Weekly Supp. 373a

Online Reference: FLWSUPP 2304GWILInsurance — Personal injury protection — Declaratory action — Medical provider is entitled to determination of its rights under PIP contract — Motion to dismiss counts seeking declaratory relief is denied

23 Fla. L. Weekly Supp. 145a

Online Reference: FLWSUPP 2302NORTInsurance — Personal injury protection — Coverage — Medical expenses — Declaratory action — Bona fide dispute — Amended class action complaint seeking declaration that insurer’s decision to limit reimbursement under its PIP policies according to permissive statutory fee schedule without electing that methodology in its policies is improper does not state cause of action for declaratory relief where there is no bona fide dispute since requested relief has been determined by Florida Supreme Court in Virtual Imaging case

23 Fla. L. Weekly Supp. 602a

Online Reference: FLWSUPP 2306APPLInsurance — Personal injury protection — Coverage — Declaratory actions — Complaint seeking declaration that insurer must reimburse medical provider at rate of 200% of Medicare Part B fee schedule in effect at time service was rendered, including 2.2% update to fee schedule provided by Preservation of Access to Care for Medicare Beneficiaries and Pension Relief Act of 2010, or at 2007 rate, if greater, states cause of action for declaratory relief — Motion to dismiss or for more definite statement is denied

23 Fla. L. Weekly Supp. 174a

Online Reference: FLWSUPP 2302CHAVInsurance — Personal injury protection — Coverage — Medical expenses — Declaratory judgment — Insurer is entitled to summary judgment as to count for declaratory relief alleging that medical provider is in doubt as to rights under policy and law due to contrary information provided in explanation of review — Because EOR is extrinsic to policy and cannot alter rights and obligations under policy, any alleged doubt created by EOR is not sufficient to create bona fide present controversy requiring declaratory relief

23 Fla. L. Weekly Supp. 627a

Online Reference: FLWSUPP 2306HUSEInsurance — Personal injury protection — Declaratory action — Coverage — Motion to dismiss count of medical provider’s complaint seeking declaration as to whether insured’s policy failed to clearly and unambiguously elect to limit reimbursement to statutory fee schedule and whether insurer misapplied deductible is denied

23 Fla. L. Weekly Supp. 185c

Online Reference: FLWSUPP 2302KOWEInsurance — Personal injury protection — Coverage — Medical expenses — Emergency medical condition — Declaratory action — Action seeking determination of whether coverage extends to $10,000 in benefits available when there is determination of emergency medical condition or limited to $2,500 is moot where insurer had received proof of emergency medical condition and paid $10,000 in benefits at time complaint was filed — Where insurer had already paid $2,500 in benefits and had not received proof of emergency medical condition at time provider submitted its bills, provider failed to respond to insurer’s request for information regarding existence of emergency medical condition before sending demand letter, and insurer paid benefits in excess of $2,500 once provider supplied proof of emergency medical condition, insurer was never in breach of contract — Provider’s motion to amend complaint to abandon declaratory action and add counts for breach of contract for late payment and for penalty and postage is denied — Amendment would be futile since claim was never overdue

23 Fla. L. Weekly Supp. 1003a

Online Reference: FLWSUPP 2310GREEInsurance — Personal injury protection — Class action — Plaintiff’s theory that she was improperly billed by medical providers for balance of bills that were only partially paid by PIP insurer due to its election to limit reimbursement to statutory fee schedule without notification of insured fails to state cognizable claim for relief — Where insurer did not make election in policy to limit reimbursement to statutory schedule there was no prohibition against balance-billing pursuant to section 627.736(4)(a)5 — Moreover, any balance-billed payments made by plaintiff are extra-contractual payments that insurer cannot forbid provider from billing — Individualized determinations of proposed class members’ compliance with demand letter requirement and reasonableness and coverage of each member’s medical bills render action inappropriate for class action treatment — Claim for declaratory relief is improper because declaratory relief is not primary relief sought and plaintiff has adequate remedy at law

23 Fla. L. Weekly Supp. 265b

Online Reference: FLWSUPP 2303CARPInsurance — Personal injury protection — Declaratory action — Action for declaratory judgment on issue of whether PIP and Med Pay coverage existed on date of accident is proper — Action for declaratory judgment on issues of whether insurer is obligated to pay all medical bills incurred as result of accident and whether insurer breached contract is not proper at this stage in pleadings

23 Fla. L. Weekly Supp. 934a

Online Reference: FLWSUPP 2309DARDInsurance — Health — Civil procedure — Class actions — Motion for certification of class of “eligible individuals” who applied for individual health insurance coverage from insurer and who were either declined coverage due to pre-existing condition or were issued policy with exclusions or riders precluding coverage for pre-existing conditions, in violation of section 627.6487, is denied — Numerosity — Where interrogatory responses relied upon by plaintiffs do not indicate number of potential class members without speculation, and plaintiffs themselves are not “eligible individuals” under statute, numerosity requirement is not satisfied — Commonality — Plaintiffs have not met commonality requirement where statute is clear and unambiguous, and none of plaintiffs fall within definition of “eligible individual” — Typicality and adequacy requirements are not met where plaintiffs are not “eligible individuals” under statute — There is no predominant question of law common to class; and, if there is common question, it does not predominate over individual issues of each class member — Class action is not superior method of adjudicating claims where there are numerous factual issues regarding each class member’s eligibility under statute — Plaintiffs do not have standing to bring declaratory judgment claim on behalf of class, as they are not members of putative class

23 Fla. L. Weekly Supp. 563a

Online Reference: FLWSUPP 2306ALONInsurance — Personal injury protection — Costs — Motion to tax cost of attendance of court reporter at hearing on insurer’s motion to dismiss count seeking declaratory judgment is denied where there is no evidence that transcript was ordered or that presence of court reporter assisted insurer in solidifying result obtained when medical provider voluntarily dismissed remaining breach of contract count