Volume 23

23 Fla. L. Weekly Supp. 992a

Online Reference: FLWSUPP 2310COLEInsurance — Personal injury protection — Discovery — Failure to comply — Sanctions — Where order prohibiting medical provider from utilizing any information sought in discovery as sanction for failing to provide discovery would preclude provider from proving its claim, order was, in effect, an order of dismissal, and trial court was required to set forth findings applying Kozel factors — No merit to argument that provider did not raise issue of failure to apply Kozel factors below where provider argued that sanction was too severe and listed Kozel factors — In hearing on insurer’s motion for summary judgment, trial court erred in placing burden on provider to prove reasonableness of charges before insurer met its burden to demonstrate absence of triable issue of material fact — Remand required

23 Fla. L. Weekly Supp. 646a

Online Reference: FLWSUPP 2306MENEInsurance — Personal injury protection — Summary judgment — Reasonableness of charges — Medical provider met burden of establishing reasonableness of charges in two bills — Opposing affidavit of insurer’s expert is conclusory and self-serving and is not based on sufficient facts or reliable principles and methods — Accord and satisfaction — Facts do not establish that insurer’s partial payment of one bill effected accord and satisfaction where amount of claim was liquidated and not in dispute, insurer did not tender check in good faith, check did not contain conspicuous statement that established payment as full satisfaction, and provider filed affidavit establishing that check was accepted as partial payment — There can be no accord and satisfaction as to second bill where insurer issued no payment on that bill — Provider’s motion for final summary judgment is granted

23 Fla. L. Weekly Supp. 808a

Online Reference: FLWSUPP 2308GEICInsurance — Appeals — Jurisdiction — First paragraph of trial court’s order constitutes confession of judgment and is appealable final order — Second paragraph that does not determine amount of attorney’s fee entitlement is not ripe for appellate review

23 Fla. L. Weekly Supp. 645a

Online Reference: FLWSUPP 2306TORRInsurance — Personal injury protection — Summary judgment — Reasonableness of charges — Medical provider met burden of establishing reasonableness of MRI charge — Opposing affidavit of insurer’s expert is inadmissible “pure opinion” testimony — Further, affidavit is conclusory and self-serving and is not based on sufficient facts or reliable principles and methods — Accord and satisfaction — Facts do not establish that insurer’s partial payment of charge effected accord and satisfaction where amount of claim was liquidated and not in dispute, insurer did not tender check in good faith, check did not contain conspicuous statement that established payment as full satisfaction, and provider filed affidavit establishing that check was accepted as partial payment — Provider’s motion for final summary judgment is granted

23 Fla. L. Weekly Supp. 605a

Online Reference: FLWSUPP 2306NIXInsurance — Personal injury protection — Affirmative defenses — Accord and satisfaction — Summary judgment is entered in favor of medical provider on affirmative defense of common law accord and satisfaction where evidence shows that there was no mutual intent to effect settlement of existing dispute by entering into superseding agreement since parties were unaware of dispute prior to insurer’s issuance of check for partial payment of claim and insurer believed payment was full satisfaction of its obligation — Further, summary judgment is entered in favor of provider on defense of statutory accord and satisfaction where amount of claim was not subject to dispute prior to payment, claim paid by application of statutory fee schedule was liquidated, and insurer’s check did not contain conspicuous language to effect that it was tendered as full satisfaction of claim

23 Fla. L. Weekly Supp. 366a

Online Reference: FLWSUPP 2304KENSInsurance — Personal injury protection — Coverage — Emergency medical condition — Under amendments to PIP statute requiring PIP insurer to pay benefits up to $10,000 if qualified medical provider has determined that claimant had emergency medical condition and limiting reimbursement to $2,500 if qualified provider has determined that claimant did not have emergency medical condition, insurer properly limited benefits to $2,500 where qualified provider has not determined that insured suffered emergency medical condition — Motion to stay case pending resolution of cases pending before district court of appeal concerning issue of when benefits above $2,500 become available when there has been determination of emergency medical condition is denied where facts in appealed cases are different from facts in instant case, and stay would result in inordinate delay — Motion to abate case pending resolution of appealed cases is denied — Abatement is not appropriate when cases do not involve same parties