Volume 5

5 Fla. L. Weekly Supp. 173b

Insurance — Personal injury protection — Insurer complied with statutory requirements related to obtaining report from similar physician before withdrawing payment of treating physician — Insured not precluded from bringing suit against insurer by assignment of benefits where insured remained contractually obligated to medical providers by way of acceptance of financial responsibility and guarantee of payment — Arbitration — Insurer waived right to arbitrate by actively participating in litigation

5 Fla. L. Weekly Supp. 425b

Insurance — Personal injury protection — No error in granting summary judgment entitling insured to PIP benefits from insurer

5 Fla. L. Weekly Supp. 208b

Insurance — Personal injury protection — Order on rehearing affirming summary judgment in favor of insurer but dismissing lawsuit “without prejudice so as to permit insured to comply with his obligations” unclear — Summary judgment reversed with instructions that complaint be reinstated and insured be ordered to submit to sworn statement pursuant to PIP contract — Case to be abated for 30 days so that parties may comply with mandate

5 Fla. L. Weekly Supp. 489a

Insurance — Personal injury protection — Miscalculation of wage loss claim — Failure to pay medical bills within thirty days — Interest — Insured correctly contended that wage benefit calculation should have included amount earned for overtime or extra work — Insured clearly made claim for regular gross income as well as other earning capacity composed of overtime and extra hours by submitting wage and salary verification form with those figures provided, and insurer had affirmative duty to act if it had any question as to validity of overtime and extra hours — Failure to include overtime and extra hours in wage benefit calculations amounted to denial of that part of claim — Insurer liable for difference between wage benefit calculated at higher amount and wage benefit it paid insured, as well as interest on that amount after it became overdue — Medical service benefits — Mail properly addressed, stamped and mailed is presumed to have been received by addressee, and proof of general office practice satisfies requirement of showing due mailing — Insured established prima facie case that insurer received by mail each of disputed medical bills based on general office practices and various cross checks via office procedures, and insurer failed to present sufficient evidence to rebut presumption that it received bills — Attending physician’s report constituted reasonable notice of loss within meaning of statute — Insured entitled to interest on late paid claims

5 Fla. L. Weekly Supp. 632a

Insurance — Personal injury protection — Interest — Insurer, who did not make payment within 30 days from receipt of bill for treatment and offered no evidence of properly addressed post-paid envelope reflecting payment within 30 days, failed to properly pay interest on overdue benefits — Interest on overdue payments must be calculated from date insurer received notice of bill through date doctor received payment — Statute does not allow thirty day grace period such that interest would not commence until 31st day after receipt of bill

5 Fla. L. Weekly Supp. 337a

Insurance — Personal injury protection — Independent medical examination — Insurer may refuse to pay PIP benefits for claims that it had received but not yet paid if an insured unreasonably fails to attend IME scheduled within 30 days after claim is submitted — Insurer cannot extend statutory period by scheduling IME after thirty day period has expired — Where insurer failed to schedule IME until after respective 30-day period expired for first three bills submitted by insured, summary judgment granted as to these claims, as it was impossible for insured to unreasonably refuse to attend scheduled IME — Insurer acted within parameters of statute by refusing to pay those bills received after scheduled IME — Summary judgment denied as to remaining claims where insurer requested IME within 30 days of receipt of each of claims

5 Fla. L. Weekly Supp. 805b

Insurance — Error to grant summary judgment in favor of insurer who denied benefits because of insured’s failure to attend independent medical examination where there existed genuine issues of material fact

5 Fla. L. Weekly Supp. 335a

Insurance — Personal injury protection — Independent medical examination — Motion for summary judgment based on insured’s failure to attend scheduled IMEs granted — Where no undue inconvenience was raised by facts of record, insurer is entitled to judgment as matter of law, because unreasonable refusal to submit to IME relieves insurer from liability for subsequent PIP benefits — Insurer was not limited to having IME conducted within municipality where insured was receiving treatment — Affidavit, listing reasons why it would have been inconvenient for insured to have attended IME in location selected by insurer, fails to raise factual dispute that decision not to attend was made because location created hardship — Insured’s earlier deposition testimony that had he known insurer was seeking to have him submit to IME, he would have attended, with correspondence communicating refusal to attend second IME, show without dispute that insured’s decision not to attend was not made because location created undue inconvenience — Because insured’s refusal to attend was not predicated on location of scheduled IME, and no other reason was advanced by insured, insured failed to assert any material issues of fact precluding summary judgment

5 Fla. L. Weekly Supp. 374a

Contracts — Insurance — Workers’ compensation — Professional athletes — Insurer’s action against employer who failed or refused to tender payment of premiums due and corporation which is allegedly continuation of and successor to employer and liable for employer’s debts — Allegations that employer agreed to pay premiums when due, but failed to do so, sufficient to state cause of action for breach of contract — Employer’s claim that breach of contract claims should be dismissed because insurer failed to timely conduct audits and adjust premiums due or, alternatively that insurer is estopped from seeking increased premiums under rules and regulations of National Council on Compensation Insurance not properly resolved on motion to dismiss — Allegations that insurer was entitled to audit employer’s records to calculate and adjust amount of earned premiums due, that insurer did conduct such an audit and calculated earned premiums due to be significantly in excess of estimated annual premium paid by employer were sufficient to state cause of action for breach of contract — Motion to dismiss breach of contract claims denied — Count alleging that insurer was entitled to indemnification because it provided coverage and paid claims on behalf of players who were not reported on quarterly earnings reports filed by employer with Division of Unemployment Compensation does not state cause of action — Professional athletes not entitled to workers’ compensation coverage unless injury occurred in activity which was imposed upon athlete by employer and was of substantial benefit to employer, but was not associated with playing professional sport — Because under facts alleged, players were not entitled to workers’ compensation as matter of law, plaintiff was not legally entitled to indemnification for benefits obtained — Motion to dismiss count seeking indemnification granted without prejudice to plaintiff’s amending complaint to allege facts that would establish that exclusion was not applicable — Corporations — Allegations regarding successor corporation’s liability as continuation and successor to administratively dissolved employer corporation sufficient to withstand motion to dismiss — Provisions of asset purchase agreement are outside four corners of complaint and cannot be considered in ruling on motion to dismiss — Successor corporation’s motion to strike amended complaint as sham denied without prejudice to corporation’s renewing motion if it can demonstrate that allegations are patently false — Attorney’s fees — Lawsuit not so completely devoid of justiciable issue of fact or law as to warrant award of attorney’s fees to defendants — Successor corporation’s motion for summary judgment is premature where discovery is still in progress and pleadings raise genuine issues of material fact — Default — Motion for entry of default against employer corporation on ground that corporation is dissolved and therefore not legally permitted to defend action against it denied in view of corporation’s submission of Certificate of Active Status from Department of State — Amended complaint — Plaintiff was not required to obtain leave of court before filing second amended complaint where no responsive pleadings had been filed — Motions to dismiss, for summary judgment, and for attorney’s fees do not constitute responsive pleadings — Motion to dismiss second amended complaint on ground that plaintiff failed to obtain leave of court prior to filing amendment is denied

5 Fla. L. Weekly Supp. 248a

Insurance — Third-party actions — Indemnity — Insured/third-party plaintiff’s complaint alleging that insurer/third-party defendant issued policy of insurance to insured insuring property, that insured was covered for damages caused by sinkhole for insured property, that plaintiffs filed action against insured alleging a defect in property sold to plaintiffs by insured causing damages as a result of sinkhole, that prior to transferring property to plaintiffs insured filed claim against insurer for sinkhole damage, that insurer denied claim, and that in event plaintiffs prevail in action for damages as result of sinkhole insurer is liable to insured for amount of damages awarded to plaintiffs as result of sinkhole — Complaint states cause of action for indemnity — Even if third-party complaint is vague or ambiguous with regard to theory under which third-party defendant may be held liable, such defects are not grounds for dismissal for failure to state a cause of action — Motion to dismiss third-party complaint denied where third-party complaint contains sufficient allegation of ultimate fact to state a cause of action affording relief, if ultimately proved