Volume 24

24 Fla. L. Weekly Supp. 637a

Online Reference: FLWSUPP 2408GREEInsurance — Personal injury protection — Application — Material misrepresentations — Evidence — Examination under oath of insured is admissible evidence in support of motion for summary judgment — Where evidence establishes that insured misrepresented on application for PIP policy the existence of other residents of her household age 15 and older and that this misrepresentation was material to risk assessed, policy was void ab initio and no coverage is afforded

24 Fla. L. Weekly Supp. 386a

Online Reference: FLWSUPP 2405GARAInsurance — Personal injury protection — Application — Material misrepresentations — Commercial use of vehicle — Transcript of insured’s examination under oath is not admissible in summary judgment proceeding to prove that insureds who did not disclose business use of vehicle on insurance application were using vehicle for business purposes on date of accident — EUO is not among material on which movant for summary judgment may rely pursuant to rule 1.510 — EUO transcript is not affidavit or deposition and does not qualify as “other materials as would be admissible in evidence” because it is hearsay evidence that would only be admissible for impeachment purposes — Misrepresentation concerning commercial use of vehicle was not material where application contained provision excluding from coverage any losses arising from business use, so that failure to disclose business usage could not have impacted insurer’s decision to assume risk — Application is part of agreement between parties, and policy and application together form contract of insurance — Fact that PIP section of policy, unlike other sections of policy, had no exclusion for business use does not give rise to irreconcilable conflict between application and policy — Argument that application never attached to policy because policy was void ab initio also lacks merit — Policy was voidable, not void

24 Fla. L. Weekly Supp. 743a

Online Reference: FLWSUPP 2409KUNKInsurance — Personal injury protection — Answer and affirmative defenses — Amendment — Motion to amend answer and affirmative defenses to assert defense of payment or accord and satisfaction based on agreement between medical provider and claimant for provider to accept certain amount as full and final settlement of claimant’s responsibility on account is denied — Amendment would be futile since there is no indication that provider intended to accept claimant’s payment as full and final settlement of insurer’s responsibility on account through settlement to which insurer was not party

24 Fla. L. Weekly Supp. 162a

Online Reference: FLWSUPP 2402ZUNIInsurance — Personal injury protection — Discovery — Admissions — Motion for relief from technical admissions that insurer approved certain charges for CPT code in past is denied — Presentation of merits of action will not be subserved by withdrawal of technical admissions since documents attached to request for admissions show approval of charges on their face, and insurer indicated in tardy response to request for admissions that documents appear to be genuine

24 Fla. L. Weekly Supp. 841c

Online Reference: FLWSUPP 2410NUNEInsurance — Personal injury protection — Affirmative defenses — Accord and satisfaction — Insurer’s check for reduced payment of bill with notation that it was for full and final PIP benefits did not effect common law accord and satisfaction where there was no communication between medical provider and insurer indicating existence of dispute or that payment was made as offer to settle — Insurer cannot create accord and satisfaction by tendering amount it contends will fully satisfy its obligation — Statutory accord and satisfaction was not effected where evidence does not establish that check was good faith offer; there is no evidence that dispute existed prior to payment; and markings on check in same size as surrounding text and not distinguished by contrasting type, font or color did not amount to a conspicuous statement

24 Fla. L. Weekly Supp. 701b

Online Reference: FLWSUPP 2409ALFOInsurance — Personal injury protection — Affirmative defenses — Accord and satisfaction — Language on PIP benefits check stating that it was “full and final” satisfaction of claim did not effectuate statutory accord and satisfaction where text was contained in “Pay to Order” line of check in same size, style and color as surrounding text — Common law accord and satisfaction was not effectuated where insurer believed that it was paying full amount of its obligation when it tendered check, and there was no mutual intent to effect settlement of a dispute — No merit to insurer’s argument that it is entitled to jury trial on issue of common law accord and satisfaction — Provider’s motion for summary judgment on affirmative defense is granted

24 Fla. L. Weekly Supp. 446a

Online Reference: FLWSUPP 2406MAESInsurance — Personal injury protection — Coverage — Medical expenses — Accord and satisfaction — Insurer’s tender of check containing the language “For Full & Final Payment of PIP Benefits” and provider’s depositing same did not constitute an accord and satisfaction which discharged insurer’s obligation to pay additional no-fault benefits and the remaining balance owed on the medical bill submitted by provider where check did not contain conspicuous statement that it was in full satisfaction of claim — Further, insurer did not provide any summary judgment evidence that provider’s claim was “unliquidated” as required for statutory accord and satisfaction or any evidence establishing bona fide dispute between insurer and provider with respect to claim

24 Fla. L. Weekly Supp. 156b

Online Reference: FLWSUPP 2402LADIInsurance — Personal injury protection — Affirmative defenses — Accord and satisfaction — Where “full and final” language on insurer’s checks to medical provider was not conspicuous and accompanying letters contained no language to indicate that checks were full and final payment and conflicted with language on checks, provider’s motion for partial summary judgment on accord and satisfaction defense is granted — Coverage — Motion for summary judgment on claim for declaratory relief regarding insurer’s right to avail itself of statutory fee schedule without having elected fee schedule in its policy is denied where relief requested has been determined by Florida Supreme Court

24 Fla. L. Weekly Supp. 82a

Online Reference: FLWSUPP 2401FUENInsurance — Personal injury protection — Affirmative defenses — Accord and satisfaction — Insurer has not complied with statutory requirements for accord and satisfaction where neither check nor accompanying explanation of review contained conspicuous statement that check was tendered as full satisfaction of claim — Insurer’s defense of common law accord and satisfaction fails where there is no evidence that there was pre-existing dispute between parties before issuance of payment

24 Fla. L. Weekly Supp. 74a

Online Reference: FLWSUPP 2401GONZInsurance — Personal injury protection — Affirmative defenses — Accord and satisfaction — Insurer has not complied with statutory requirements for accord and satisfaction where neither check nor accompanying explanation of review and cover letter contained conspicuous statement that check was tendered as full satisfaction of claim — Insurer’s defense of common law accord and satisfaction fails where there was no pre-existing dispute between parties before payment and no indication that payment was intended as compromise or settlement of claim