Volume 24

24 Fla. L. Weekly Supp. 190a

Online Reference: FLWSUPP 2402GUELInsurance — Personal injury protection — Coverage — Medical expenses — Medically necessary treatment — Where insurer’s expert did not apply statutory definition of “medically necessary” in rendering opinion on medical necessity of treatment, expert’s opinion fails to create issue of fact on medical necessity — Medical provider’s motion for directed verdict is granted

24 Fla. L. Weekly Supp. 871a

Online Reference: FLWSUPP 2410POSAInsurance — Personal injury protection — Summary judgment — Insurer is entitled to summary judgment on issues of whether medical services were actually rendered to insured and whether services were related to accident and medically necessary — Opposing affidavit of medical provider’s alleged records custodian is stricken for lack of trustworthiness and lack of personal knowledge — In absence of authentication, attached medical records cannot be considered — Affidavit that was written in English, although affiant did not speak or understand English, violated section 117.107(6) — Moreover, affiant denied being records custodian in her deposition testimony

24 Fla. L. Weekly Supp. 881a

Online Reference: FLWSUPP 2410JPARInsurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related, and necessary treatment — With two exceptions, factual issues exist as to whether certain treatments were related to accident and medically necessary — Insured failed to demonstrate by competent evidence that disputed issue of material fact existed as to reasonableness of price — Provider’s motion for summary judgment granted in part and denied in part

24 Fla. L. Weekly Supp. 299a

Online Reference: FLWSUPP 2404BROOInsurance — Personal injury protection — Stay — PIP case is stayed to allow time for district court of appeal to rule on same issue of statutory interpretation in pending appeal

24 Fla. L. Weekly Supp. 491a

Online Reference: FLWSUPP 2407MDMCivil procedure — Dismissal — Matters outside four corners of complaint — Trial court erred in dismissing with prejudice a provider’s complaint against an insurer seeking to recover benefits stemming from the same automobile accident as that which was at issue in a prior suit based on defense of res judicata where defense was not apparent on face of complaint — Rule permitting movant to assert affirmative defenses appearing on face of a “prior pleading” as grounds for a motion or defense does not permit a trial court to consider a prior complaint filed in a different case — Trial court could not properly take judicial notice of earlier case in considering insurer’s motion to dismiss where nothing in record indicates that party requested judicial notice — Remand for further proceedings — Appellate attorney’s fees awarded, conditioned upon provider ultimately prevailing at trial level

24 Fla. L. Weekly Supp. 847a

Online Reference: FLWSUPP 2410PINOInsurance — Personal injury protection — Demand letter — Insurer waived right to assert any deficiencies in demand letter as affirmative defense to suit where insurer failed to note any deficiencies in two pre-suit demand letters sent by provider — Where insurer failed to avail itself of opportunity to make payment without liability for fees and costs during additional thirty-day period afforded by provider’s service of third demand letter after suit was filed; thereafter, insurer secured additional abatement of action to allow provider to serve fourth demand letter with “agreed order” that provided for dismissal in event insurer made complete payment; and insurer made payment of sums demanded in third demand letter during abatement period, despite fact that provider did not serve another demand letter, but paid penalty and postage to incorrect attorney, insurer is not entitled to dismissal of action — Complete payment was not made due to error in payment of penalty and postage — No merit to argument that dismissal is warranted under maxim of de minimis non curat lex

24 Fla. L. Weekly Supp. 721a

Online Reference: FLWSUPP 2409SCOIInsurance — Personal injury protection — Coverage — Medical expenses — Nurse practitioner — Assuming PIP policy properly elects to limit reimbursement to permissive statutory fee schedule, insurer was not entitled to reimburse for services provided by nurse practitioner at 85% of 80% of 200% of allowable amount under participating physicians fee schedule of Medicare Part B rather than at 80% of 200% of allowable amount under fee schedule

24 Fla. L. Weekly Supp. 753a

Online Reference: FLWSUPP 2409BEADInsurance — Personal injury protection — Coverage — Where Centers for Medicare and Medicaid Services instructed Medicare contractors to reprocess Medicare claims retroactive to 2010 in manner that would result in increase in Medicare reimbursements under revised payment files, PIP insurer that has elected to reimburse claims in accordance with permissive statutory fee schedule cannot pay less than 200% of Medicare fee schedule, including revised payment files retroactive to 2010

24 Fla. L. Weekly Supp. 764c

Online Reference: FLWSUPP 2409PAINInsurance — Personal injury protection — Coverage — Lawfully rendered services — Section 627.736(1)(a)5, which provides that medical benefits do not include massage regardless of person providing massage and prohibits licensed massage therapist from being reimbursed for medical benefits, does not bar medical provider from being reimbursed for physical therapy regimen rendered by employees of its facility who hold massage therapy licenses

24 Fla. L. Weekly Supp. 439a

Online Reference: FLWSUPP 2406ESANInsurance — Personal injury protection — Coverage — Medical expenses — Lawfully rendered services — Where medical provider had medical director at time services were rendered, it is outside purview of county court to determine whether director performed his duties so as to establish that services for which PIP benefits are claimed were lawfully rendered absent prior finding from Agency for Health Care Administration that provider had violated Health Care Clinic Act — If court has power to review compliance with Act, it determines that provider was substantially compliant