Volume 27

27 Fla. L. Weekly Supp. 341a

Online Reference: FLWSUPP 2704BERCInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Trial court erred in finding that affidavit of medical provider’s owner met summary judgment burden on issue of reasonableness of charges where affidavit does not specifically outline methods affiant used to determine that charges were reasonable — Trial court abused discretion by rejecting affidavit of insurer’s expert where affiant explained how his experience led to his opinion on reasonableness of charges and why his experience provided sufficient basis for his opinion — Error to enter summary judgment in favor of provider on reasonableness issue — Trial court also erred in entering summary judgment on issue of timeliness of medical bill where insurer presented evidence to refute timely mailing of bill

27 Fla. L. Weekly Supp. 890a

Online Reference: FLWSUPP 2710SRODInsurance — Personal injury protection — Answer — Amendment — Addition of affirmative defense — Insurer waived right to raise fraud defense where insurer was aware of purported fraud by medical provider, having filed Department of Health complaint alleging fraud before provider filed suit for PIP benefits, but insurer did not seek to allege defense of fraud during seven years of litigation — Moreover, insurer abused privilege to amend answer by seeking to amend extremely late in proceedings, and provider would be severely prejudiced by belated proposed amendment — Motion to amend answer is denied

27 Fla. L. Weekly Supp. 374a

Online Reference: FLWSUPP 2704DBREInsurance — Property — Limitation of actions — Statute of limitations for breach of property insurance cause of action begins to run from date of loss, not date contract is breached

27 Fla. L. Weekly Supp. 830a

Online Reference: FLWSUPP 2709JOACInsurance — Jurors — Peremptory challenges — Medical provider who requested peremptory challenge potentially to be used in selecting alternate juror, but who never attempted to exercise peremptory strike on alternate juror and affirmatively accepted jury panel at conclusion of jury selection, waived request for peremptory challenge — Expert witnesses — Trial court did not err in allowing insurer’s expert witness to testify where provider’s objection to testimony was untimely under pretrial order and provider did not show good cause why objection was untimely — Even if objection was timely, testimony of accident reconstructionist satisfied Daubert standard where witness established his qualifications and opined on whether accident occurred as reported, not on whether accident could have caused insured’s injuries — Use of insured’s examination under oath for impeachment purposes only did not violate pretrial order

27 Fla. L. Weekly Supp. 1044a

Online Reference: FLWSUPP 2712GURIInsurance — Personal injury protection — Interest — Where insurer twice denied payment for PIP benefits to which insured was entitled because of medical provider’s failure to submit signed report from initial evaluation, made partial payment of benefits once signed report was received and paid additional benefits after receipt of demand letter, insurer owes provider interest from date that it received initial written notice of covered loss — Neither PIP statute nor policy requires provider to provide signed initial report as condition precedent to payment

27 Fla. L. Weekly Supp. 1047a

Online Reference: FLWSUPP 2712APERInsurance — Insured’s action against insurer — Indispensable parties — Insurer’s motion to dismiss, for failure to join indispensable party, an action alleging breach of contract brought by a plaintiff who was one of two persons the policy named as covered and insured, is denied — Failure to join a potential joint obligee is insufficient to dismiss instant litigation because of outstanding factual issues that must be determined, including whether the other named insured’s interest is adverse to that of plaintiff’s interest under an agency theory or whether the other named insured has any objection to case proceeding without him

27 Fla. L. Weekly Supp. 375a

Online Reference: FLWSUPP 2704ASCEInsurance — Homeowners — Where homeowners policy provides that insurer has 90 days to pay or deny insureds’ reopened claim, and insureds filed suit for breach of contract only 18 days after providing insurer with notice of supplemental claim, lawsuit was premature — Final summary judgment is entered in favor of insurer, which has paid amount of appraisal of supplemental claim plus interest

27 Fla. L. Weekly Supp. 525a

Online Reference: FLWSUPP 2706NUNEInsurance — Homeowners — Post-loss obligations — Examination under oath — Insurer’s unpled defense that insured breached policy by failing to attend EUO was tried by consent and established by evidence — Insurer entitled to directed verdict on this discrete issue — Because considerable precedent at time of trial supported position that a carrier could not avoid payment unless failure to attend EUO caused prejudice, new trial granted at which jury will be instructed that insured materially breached contract by failing to appear for EUO and insured will be provided opportunity to show that breach of this post-loss obligation did not prejudice insurer

27 Fla. L. Weekly Supp. 312b

Online Reference: FLWSUPP 2703DPInsurance — Health maintenance organizations — Out-of-network provider or non-participating provider — Record before court does not explain or justify HMO’s late and reduced payment to provider — Medical provider entitled to final judgment for balance of claim and interest

27 Fla. L. Weekly Supp. 773a

Online Reference: FLWSUPP 2708BENJInsurance — Personal injury protection — Coverage — Medical expenses — Fraud — Plaintiff who is broker and not 100% long-term lessee of x-ray machine is not entitled to recover charges — Motion for summary judgment is entered in favor of insurer on fraud issues where plaintiff knowingly submitted false and misleading statements on claim form