Volume 6

6 Fla. L. Weekly Supp. 486d

Insurance — Uninsured motorist — Owner of vehicle who was listed as insured on declarations page of policy and who was injured while riding as a passenger in insured vehicle due to negligence of her boyfriend, who was co-owner of vehicle and also listed as an insured on the policy, was not entitled to UM coverage — Vehicle which was being operated by one of the named insureds could not meet policy definition of “uninsured auto” — Section 627.727(3), which provides that term “uninsured motorist vehicle” shall, subject to terms and conditions of coverage, be deemed to include insured motor vehicle when the liability insurer excludes liability coverage to a nonfamily member whose operation of an insured vehicle results in injuries to the named insured does not compel coverage in instant case in which boyfriend was a named insured

6 Fla. L. Weekly Supp. 50b

Insurance — Subrogation — Third party claim — Defendant in action involving subrogation claim for insurance benefits paid by insurer could not bring third party claim against insured in absence of claim for indemnity — Because third party claim against insured was improperly joined, misjoinder occurred — Misjoinder is grounds to sever improperly joined third party claim, rather than grounds for dismissal — Third party defendant’s motions for judgment on pleadings and dismissal denied

6 Fla. L. Weekly Supp. 402a

Insurance — Subrogation — Torts — Comparative negligence — Joint and several liability — Pursuant to section 768.81, tortfeasor was jointly and severally liable for total damages paid by automobile insurer to its insured, notwithstanding fact that tortfeasor was found only 50% responsible for causing or contributing to accident, where damages were less than $25,000 — Error to enter judgment against tortfeasor for only 50% of damages

6 Fla. L. Weekly Supp. 399f

Insurance — Personal injury protection — Civil procedure — Error to treat insured’s Motion in Limine Regarding Points of Law as motion for summary judgment

6 Fla. L. Weekly Supp. 577a

Insurance — Personal injury protection — Insured claiming PIP benefits seeking to preclude orthopedic specialist from testifying on issues relating to the propriety of insurer’s termination of payments for chiropractic treatment — Physician is not prohibited from testifying concerning propriety of chiropractic treatment — Orthopedic specialist will be permitted to offer opinions on issue of whether amounts claimed would constitute reasonable expenses for necessary services within meaning of statute and on related issues

6 Fla. L. Weekly Supp. 47a

Insurance — Personal injury protection — Action in which medical provider initially sought payment of PIP benefits that had already been paid and subsequently amended complaint to seek only statutory interest on late paid benefits, and attorney’s fees — Where insurer asserts that it paid medical provider more than was actually due, and that any overage paid should be used to offset any interest due, action should proceed as traditional action for damages in which single judgment is to be obtained, and any sums recovered by medical provider would be subject to setoff process — Whether setoff is affirmative defense or counterclaim does not determine whether single judgment, or separate judgments, should be entered — Independent judgments should not be entered on medical provider’s amended complaint and insurer’s counterclaim asserting setoff — Issues remaining for trial are whether medical provider is entitled to reimbursement for sums paid, and if so, how much

6 Fla. L. Weekly Supp. 265b

Insurance — Personal injury protection — Competing claims by insurer for lost wages and by health care provider for amount of lien — Interpleader — Attorney’s fees — Health care provider which had lien for medical services and counterclaimed for entire amount of its lien in interpleader action filed by insurer, on ground that interpleader amounted to a “settlement” which interfered with its lien, lost its right to appeal circuit judge’s dismissal of its counterclaim with prejudice because notice of appeal was filed nine months past deadline, and because provider appealed circuit court order to the circuit court — Where the only thing at stake after dismissal of counterclaim was the $10,000 fund which insurer was liable for under its policy with insured, and both provider and insured claimed entitlement to all or part of that fund, the same thing, debt or stake was claimed by both defendants — Insurer stood in position of indifference because, at time of interpleader, insurer had not incurred any liability other than that which was capped at the amount of its policy — No error in trial court’s finding that insurer was entitled to recover attorney’s fees from interpleaded fund where record supported finding that insurer had total disinterest in stake and did nothing to cause conflicting claims

6 Fla. L. Weekly Supp. 295b

Insurance — Personal injury protection — Motion for judgment on pleadings in which defendant asserts that plaintiff failed to join health care provider as indispensable party denied — Case should not be dismissed for failure to join indispensable party if dismissal would end plaintiff’s claim, and the only claimed prejudice is potential for subsequent litigation by the missing party

6 Fla. L. Weekly Supp. 439a

Insurance — Personal injury protection — Insurer’s motion for summary judgment on basis of insured’s unreasonable refusal to attend compulsory medical examination is denied based upon finding that record does not conclusively establish that insured’s failure to attend two scheduled medical examinations was unreasonable — Issue of fact remains as to whether insured’s alleged lack of transportation excused his failure to attend first examination and whether insured received notice of second examination — Fact that notice was received by insured’s counsel not basis for granting summary judgment in favor of insurer

6 Fla. L. Weekly Supp. 293a

Contracts — Settlement agreement — Insurance — Personal injury protection — Health care provider/assignee seeking to enforce settlement agreement which insurer sought to void after discovering that it was not the appropriate insurer for the loss at issue — Plaintiff did not detrimentally rely upon insurer’s mistake where plaintiff knew that another company was a potential insurer but chose to pursue its claim only against defendant, and defendant rescinded settlement agreement only six days after settlement negotiations and before any payment had been made, leaving plaintiff with an opportunity to present its claim to the appropriate insurer — Judgment entered in favor of defendant