Volume 5

5 Fla. L. Weekly Supp. 796a

Attorney’s fees — Interpleader — Justiciable issues — Attorney who prevailed in action against former client and against client’s uninsured motorist insurer in which attorney sought to recover fees after insurer, who had been notified of attorney’s charging lien, mailed to client a check payable to attorney and client; client wrongfully negotiated the joint check without paying attorney; and insurer recovered amount of check from bank, but failed to ensure that attorney received funds — Interpleader — Trial court erred in holding that insurer was not liable for prevailing party attorney’s fees because insurer was innocent stakeholder — Insurer did not stand in position of indifference as required for successful interpleader claim — Attorney not entitled to recover fees from insurer pursuant to section 57.105 where there was not a complete absence of justiciable issues of law or fact — Trial court erred in refusing to tax costs against insurer because its actions made suit necessary — Client’s intervening criminal act was not sufficient to relieve insurer of its duty to pay costs to prevailing party

5 Fla. L. Weekly Supp. 616a

Insurance — Uninsured motorist — Torts — Automobile accident — Plaintiff/insured injured in automobile accident with uninsured tortfeasor will not be required at trial to establish statutory thresholds in order to recover non-economic damages — Although statute requires plaintiff to establish certain threshold requirements in order to obtain non-economic damages, these “threshold defenses” may not be raised because defendant tortfeasor had not obtained statutorily-mandated minimum insurance coverage — Uninsured motorist carrier stands in shoes of tortfeasor when claim for UM coverage is being made and cannot avoid or modify application of threshold laws such that threshold defenses are applicable even though tortfeasor is not entitled to raise those defenses — UM carrier’s motion for partial summary judgment denied — Plaintiff/insured who prevailed on coverage issue entitled to attorney’s fees

5 Fla. L. Weekly Supp. 668b

Insurance — Uninsured motorist — Policy limits

5 Fla. L. Weekly Supp. 58a

Insurance — Subrogation — Evidence — Expert witnesses — Abuse of discretion to deny insurance company’s request to qualify doctor as expert, or to use deposition at trial, where expert was only witness through which party could prove its request for damages resulting from injuries suffered by insured, and testimony was essential to case

5 Fla. L. Weekly Supp. 595c

Civil procedure — Offer of judgment — Insurance — Insured’s proposal for settlement, filed pursuant to rule 1.442 and section 768.79, is improper on its face — Section 768.79, governing offers of judgment, does not apply to no-fault benefits claims — Insured’s motion to strike proposal for settlement granted

5 Fla. L. Weekly Supp. 134a

Insurance — Personal injury protection — Medical provider’s action against insurer which refused to pay for medical diagnostic testing ordered by insured’s treating physician on ground that testing was unnecessary, unreasonable, and not related to subject automobile accident — Jury instructions — No error in instructing jury that it had to determine whether diagnostic testing performed by plaintiff was medically necessary and related to accident and that plaintiff had burden of proof by greater weight of the evidence — Evidence — Expert — No error in admitting testimony of expert who completed paper review of insured’s medical treatment file but did not perform physical examination — No error in admitting testimony of physician who performed physical exam six months after subject testing took place — Whether or not doctors’ testimony comported with requirements of statute relating to physical examination whenever mental or physical condition of insured is material to claim is not relevant where issue is admissibility of testimony at a trial in which medical necessity and relation of treatment to subject accident are at issue — Any error that may have resulted from admitting testimony of expert who performed paper review would be harmless since examining physician concurred in conclusion that diagnostic testing ordered by treating physician was neither medically necessary nor reasonable — No abuse of discretion in refusing to permit insurer to cross-examine insured’s treating physician concerning financial motivations and potential bias — Court could have reasonably found that prejudicial effect outweighed any probative value in that issue of medical necessity could have been obscured if physician’s financial motives in ordering tests were addressed

5 Fla. L. Weekly Supp. 170a

Insurance — Personal injury protection — Insurer who has not obtained consent of insured must obtain report from independent medical examiner licensed under same chapter as insured’s treating physician before refusing to pay treating physician on ground that bills were not necessary, related, or reasonable — Report by neurologist not sufficient to support withdrawal of benefits for treatment by chiropractor — Insurer who fails to comply with statute cannot raise common law defenses — Insured’s motion for directed verdict and/or motion for judgment notwithstanding verdict and/or motion for new trial is granted, and judgment will be entered in favor of insured for entire sum shown to be owing treating chiropractor, less statutory percentage, without regard to insuror’s defenses of reasonableness or necessity of the amount

5 Fla. L. Weekly Supp. 660d

Insurance — Personal injury protection — Record, including a report of attending physician showing that insured was disabled by fractured femur for period of about five months after accident, is sufficient to raise genuine issue of material fact on entitlement to PIP benefits for loss of future earning capacity — Error to enter summary judgment in favor of insurer

5 Fla. L. Weekly Supp. 656a

Insurance — Personal injury protection — Insurer acted improperly when it selectively applied medical bills to deductible in a manner which minimized insured’s benefits — Remanded for recalculation of deductible — Amount of reduced bill negotiated by insurer should be used in recalculating deductible, not amount of original bill

5 Fla. L. Weekly Supp. 100a

Insurance — Personal injury protection — Coverage — Loss of income as a result of time spent by PIP claimant seeking medical care is compensable under PIP coverage of insurance policy issued by insurer — Motion for attorney’s fees granted