Volume 25

25 Fla. L. Weekly Supp. 662a

Online Reference: FLWSUPP 2507GERSInsurance — Homeowners — Coverage — Water damage — Emergency remedial measures — Limitation of liability — Email sent to insurer by water remediation company after work was completed, with invoice attached showing amount due in excess of policy cap for emergency remedial measures, was sufficient to meet policy requirement that insurer submit a “request” to exceed the cap, triggering 48-hour period within which insurer was required to approve or reject the request — Because insurer failed to respond within 48 hours, claimant was entitled to exceed the cap up to the cost incurred for emergency measures necessary to protect property from further damages

25 Fla. L. Weekly Supp. 957a

Online Reference: FLWSUPP 2511VENIInsurance — Homeowners — Water damage — Exclusions — Loss caused by excess humidity and moisture originating in home’s duct system was encompassed by endorsement excluding losses caused by discharge or overflow of water from within an air conditioning “system” — Lack of definition of “system” did not create ambiguity, as duct work is undoubtedly part of air conditioning system

25 Fla. L. Weekly Supp. 894a

Online Reference: FLWSUPP 2510DAVIInsurance — Homeowners — Exclusions — Marring exclusion in homeowners’ policy excludes loss that occurred when object fell in home and caused damage to tile — State courts have determined as matter of law that term “marring” is not ambiguous and includes dropped objects that fall and damage tile

25 Fla. L. Weekly Supp. 189a

Online Reference: FLWSUPP 2502BASTInsurance — Personal injury protection — Coverage — Medical expenses — Statutory fee schedules — Clear and unambiguous election by insurer — PIP policy that states that insurer will use schedule of maximum charges and CMS payment methodologies to calculate reimbursement clearly and unambiguously elects to pay in accordance with permissive statutory fee schedules — Fact that policy also states that insurer will pay 80% of reasonable expenses incurred does not create ambiguity where policy specifies that insurer will find to be unreasonable any charge that exceeds charges set forth in PIP statute — Fee schedule published by federal government is not hearsay, notwithstanding that it is now published on website rather than in Federal Register

25 Fla. L. Weekly Supp. 185a

Online Reference: FLWSUPP 2502HOLMInsurance — Personal injury protection — Coverage — Medical expenses — Statutory fee schedules — Clear and unambiguous election by insurer — PIP policy that states that insurer will use schedule of maximum charges and CMS payment methodologies to calculate reimbursement clearly and unambiguously elects to pay in accordance with permissive statutory fee schedules — Fact that policy also states that insurer will pay 80% of reasonable expenses incurred does not create ambiguity where policy specifies that insurer will find to be unreasonable any charge that exceeds charges set forth in PIP statute — Fee schedule published by federal government is not hearsay, notwithstanding that it is now published on website rather than in Federal Register — Affidavit of medical provider’s billing supervisor is insufficient to rebut affidavit of insurer’s records custodian and copy of fee schedule on issue of whether insurer properly calculated reimbursement amount

25 Fla. L. Weekly Supp. 97a

Online Reference: FLWSUPP 2501PETIInsurance — Personal injury protection — Coverage — Medical expenses — Statutory fee schedules — Insurer paid provider in conformity with Medicare Part B participating physician fee payment schedule, which was properly incorporated into policy — Fee schedule published by federal government on CMS website is not hearsay — Summary judgment in favor of insurer not precluded by outstanding discovery, assuming plaintiff acted diligently in obtaining discovery, where the outstanding discovery is not necessary to determination of issue before the court — Plaintiff’s motion to strike affidavit in support of motion for summary judgment is denied — Affidavit of insurer’s adjuster demonstrated adjuster’s personal knowledge of claim, and the information contained in affidavit is admissible — With respect to documents attached to affidavit, explanation of benefits and PIP medical detail list are hearsay, and defendant failed to lay predicate for admission of these documents under business records exception — Defendant’s motion for section 57.105 sanctions is denied

25 Fla. L. Weekly Supp. 187a

Online Reference: FLWSUPP 2502MCLEInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Medical provider seeking summary judgment on issue of reasonableness of charges has failed to meet burden to demonstrate nonexistence of question of material fact where supporting affidavit states that charges are reasonable “to reasonable degree of chiropractic probability” and offers no evidence that consideration was given to statutory reasonableness factors — Insurer’s motion to declare sections 90.702 and 90.704 unconstitutional is denied where insurer has not explained how its constitutional rights will be violated by implementation of those sections and, absent that information, court is unable to identify cognizable controversy on which to rule — Question certified: Whether Florida Supreme Court’s ruling in In re Amendments to the Florida Evidence Code intended to revert sections 90.702 and 90.704 (2013) to pre-Daubert standard or should trial courts continue to utilize those sections until decision on constitutionality of those sections is ruled upon

25 Fla. L. Weekly Supp. 36a

Online Reference: FLWSUPP 2501MCNEInsurance — Workers’ compensation — Liability — Intentional acts — Duty to defend — Insurer that provided workers’ compensation and employer liability coverage to its insured had duty to defend its insured in suit brought against it by estate of deceased employee where complaint alleged sufficient facts to create potential coverage under policy — Insurer failed to prove that allegations in every iteration of underlying complaints demonstrated that employer intended to cause harm to decedent or that any other policy exclusions relied upon by insurer to bar were a bar to coverage

25 Fla. L. Weekly Supp. 660a

Online Reference: FLWSUPP 2507NJONInsurance — Personal injury protection — Coverage — Medical expenses — Statutory fee schedules — Clear and unambiguous election by insurer — County court granted summary judgment in favor of medical provider determining that insurer’s policy language did not properly elect reimbursement pursuant to statutory fee schedules at time when district court conflict on issue was pending resolution by Florida Supreme Court, and during pendency of insurer’s motion for rehearing in county court supreme court ruled in favor of insurer, after which provider filed notice of voluntary dismissal without prejudice and insurer filed renewed motion for rehearing and motion to strike voluntary dismissal — Notice of voluntary dismissal filed after entry of summary judgment is nullity and is stricken — Renewed motion for rehearing is granted in light of supreme court decision and final judgment is entered in favor of insurer

25 Fla. L. Weekly Supp. 658a

Online Reference: FLWSUPP 2507AHMAInsurance — Personal injury protection — Coverage — Medical expenses — Statutory fee schedules — Clear and unambiguous election by insurer — County court granted summary judgment in favor of medical provider determining that insurer’s policy language did not properly elect reimbursement pursuant to statutory fee schedules at time when district court conflict on issue was pending resolution by Florida Supreme Court, and during pendency of insurer’s motion for rehearing in county court supreme court ruled in favor of insurer, after which provider filed notice of voluntary dismissal without prejudice and insurer filed renewed motion for rehearing and motion to strike voluntary dismissal — Notice of voluntary dismissal filed after entry of summary judgment is nullity and is stricken — Renewed motion for rehearing is granted in light of supreme court decision and final judgment is entered in favor of insurer