Volume 5

5 Fla. L. Weekly Supp. 691b

Attorney’s fees — Insurance — Personal injury protection — Civil procedure — Discovery — Motion to compel answers to plaintiff’s attorney’s fees interrogatories, response to request for admissions, and production of documents granted — Motion to compel production of defendant’s attorney for deposition granted — Motion to strike defendant’s proposal for settlement of attorney’s fees and costs granted — Motion to strike plaintiff’s proposal for settlement of attorney’s fees and costs denied

5 Fla. L. Weekly Supp. 645a

Insurance — Attorney’s fees — Appellate — Plaintiff not entitled to award of attorney’s fees pursuant to § 627.428, Florida Statutes, where there has been no determination that she is entitled to payment of disputed medical expenses, judgment has not been entered, and there has been no recovery — Plaintiff’s request for costs is premature

5 Fla. L. Weekly Supp. 551b

Attorney’s fees — Insurance — Arbitration — Assignment of benefits to medical care provider was irrevocable once arbitration was demanded — Insurer owed provider payment at time provider demanded arbitration, and insured could not defeat provider’s request for payment by apportioning benefits — Demand for arbitration followed by payment is equivalent of filing lawsuit and being paid prior to judgment — Arbitration statute awarding attorney’s fees to prevailing party supports decision to award attorney’s fees in this case — Counsel for plaintiff/medical care provider entitled to fees and costs

5 Fla. L. Weekly Supp. 843a

Insurance — Personal injury protection — Assignment — Waiver — Medical provider, through its conduct, allowed insured to believe that provider intended to collect bill directly from insured and that insured could sue insurer directly, and, accordingly, waived its right to enforce assignment of benefits signed by insured — Finding of waiver further supported by fact that provider accepted tender of payment from insured as full payment of all amounts due without objection, knowing that funds had come from insurer — Provider prohibited from suing insurer separately for same debt — As separate ground for court’s ruling, actions of provider constituted consent to assignor to institute suit against insurer

5 Fla. L. Weekly Supp. 564a

Insurance — Personal injury protection — Arbitration — Assignment of benefits to medical provider — Motion to dismiss and/or compel arbitration arising out of insured’s action against insurer to enforce terms of PIP policy after insurer refused to pay certain amounts to health care provider — Section 627.736(5), which provides that upon accepting assignment of insured’s right to have benefits paid directly to insured, medical providers must resolve claims disputes with insurance company through binding arbitration, requires only assignment of benefits, not all contractual rights — Benefits, in context of statute, clearly refers to payments due insured from insurer pursuant to policy — Claims dispute, as contemplated by statute, refers to situation where insurance company has agreed that treatment given by medical provider is covered under policy, but insurer disputes dollar amount of charges as being unreasonable — If insured executes an assignment of benefits so that medical provider is paid directly for treatment for bodily injury covered by PIP insurance, and insurer disputes reasonableness of amount that medical provider has charged, this would constitute “claims dispute,” and pursuant to section 627.736(5) must be decided by binding arbitration between insurance company and medical provider — Where insurer refuses to pay any of medical expenses incurred, based upon belief that treatment is not covered under policy, insured must be allowed to assert any contractual rights insured may have pursuant to policy — Insurer’s motion to dismiss and/or compel arbitration denied

5 Fla. L. Weekly Supp. 696a

Insurance — Personal injury protection — Attorney’s fees — Assignment — Where medical provider had valid assignment of benefits from insured, informed insurer that assignment had been accepted at time claim was submitted, and provided its name and address, payment attempted by mail addressed to insured’s counsel is ineffective until that payment is actually delivered to medical provider — Because such delivery actually occurred long after suit commenced, medical provider entitled to recover reasonable attorney’s fees and costs — Section 627.736(5) that permits payment directly to provider if insured endorses claim form does not negate common law of assignments, which provides that once assignee notifies debtor that assignment has occurred, payment thereafter to assignor will not relieve debtor of liability — There is no common law or statutory law that assignment documents be provided to debtor for examination before liability attaches

5 Fla. L. Weekly Supp. 643a

Insurance — Personal injury protection — Appeal by insured who executed and subsequently revoked an assignment of benefits from order granting insurer’s motion for summary judgment based on insured’s lack of standing in breach of contract and declaratory judgment action — Assignment — Revocation — Insured’s revocation of assignment of benefits to medical provider by mutual revocation is valid — Revocation was authorized by assignee — Standing — Insured has standing to maintain breach of contract action because insured became real party in interest when assignment of benefits was mutually revoked — Because standing is necessary element of cause of action, insured must amend complaint to properly allege her standing — Abuse of discretion to deny plaintiff’s motion to file second amended complaint where motion was timely and could properly be considered by trial court, and plaintiff could state cause of action if she amended her complaint to properly assert stand- ing — Record indicates that assignment of benefits had been mutually revoked and insured could assert standing in newly amended complaint based on that revocation — Insured who has alleged doubt as to her entitlement to benefits under insurance contract has standing to maintain declaratory judgment action seeking declaration that use of paper review to deny payment for medical services violated Florida Motor Vehicle No-Fault Act

5 Fla. L. Weekly Supp. 631b
Insurance — Assignment — Personal injury protection — Motion for summary judgment denied on claim that insured executed assignment of benefits in favor of treating physician whose treatment and bill is at issue — Document signed by insured is not an assignment of benefits and holds insured personally responsible to treating physician by its express terms — For a document to be true assignment of benefits, insured should be relieved of financial obligation to health care provider, and health care provider should be willing to accept insured patient’s right to pursue insurance company directly if denial of benefits is made — Offer of judgment — Motion to strike insurer’s proposal for settlement granted — Because conflict exists between proposal for settlement statute and section 627.428, which allows for recovery of attorney’s fees only by insured in lawsuit for breach of contract, section 627.428 applies

5 Fla. L. Weekly Supp. 831a

Insurance — Personal injury protection — Insured’s action against insurer for unpaid PIP benefits — Assignment — Assignment which was clear and unconditional and assignment under which insured remained responsible to provider only if he provides misinformation were valid assignments of benefits — Authorization to pay, form whereby provider merely agreed to wait for payment, and assignment permitting provider to sue insured in the event provider does not collect from insurance company but foreclosing insured from filing action if insurer failed to pay all outstanding bills are not valid assignments of benefits — Insurer’s motion for partial summary judgment is granted as it relates to those benefits which were assigned by insured to medical providers

5 Fla. L. Weekly Supp. 506b

Insurance — Insured’s action against insurer — Trial court properly denied motion for summary judgment in which insurer contended that insured had assigned right to receive benefits to medical provider where document assigning benefits did not indicate insurance company or policy from which benefits were assigned