Volume 7

7 Fla. L. Weekly Supp. 338a

Insurance — Uninsured motorist — New trial — Improper impeachment of plaintiff’s expert witness, in and of itself, does not warrant new trial on liability — With regard to assertion that expert witness for defendant committed perjury, counsel for plaintiffs impeached witness in this regard and as such there was no prejudice to plaintiffs — Argument — Defense counsel’s improper remarks about plaintiff being personal injury plaintiff’s attorney, throughout trial, were improper appeals to jury’s emotion, bias and prejudices, and cumulative effect of counsel’s conduct pervaded trial and resulted in plaintiff being denied fair trial — Even if evidence submitted by plaintiff in his case in chief may not have been particularly strong, and defendant may have prevailed had counsel’s remarks been omitted, it cannot be said as mater of law that comments had no effect on jury’s verdict — Motion for new trial granted

7 Fla. L. Weekly Supp. 506b

Contracts — Torts — Claims for breach of contract, trespass and conversion properly dismissed with prejudice as to party which was clearly the agent of its disclosed principal — Plaintiff not third-party beneficiary of insurance policy

7 Fla. L. Weekly Supp. 251a

Insurance — Personal injury protection — Action against insurer by plaintiff who was injured while riding as passenger on Yamaha Elite 125 scooter which was struck by automobile owned and operated by insured, a non-resident — Error to find in favor of plaintiff — In absence of proof that non-resident was physically present within state for more than 90 days during preceding 365 days, non-resident not required to have PIP coverage, and PIP claim would not be valid — Yamaha Elite 125 scooter is self-propelled vehicle within meaning of PIP statute

7 Fla. L. Weekly Supp. 163a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 7 Fla. L. Weekly Supp. 251a

Insurance — Personal injury protection — Action against insurer by plaintiff who was injured while riding as passenger on Yamaha Elite 125 scooter which was struck by automobile owned and operated by insured, a non-resident — Error to find in favor of plaintiff — In absence of proof that non-resident was physically present within state for more than 90 days during preceding 365 days, non-resident not required to have PIP coverage, and PIP claim would not be valid — Yamaha Elite 125 scooter is self-propelled vehicle within meaning of PIP statute

7 Fla. L. Weekly Supp. 686a

Insurance — Personal injury protection — Jurisdiction — Plaintiff lacked standing to bring cause of action for payment of PIP benefits as assignee of insured, given lack of evidence supporting existence of assignment of benefits from insured to plaintiff at time lawsuit was filed — As such, court lacks subject matter jurisdiction to entertain claim and must dismiss action — No merit to argument that insurer waived issue of standing because it was not plead as affirmative defense — Defense of lack of subject matter jurisdiction may be raised at any time — Legal conclusion arises from stipulation of parties to limit issues to how much, if any, interest is owed by insurer and, as such, plaintiff may not rely on stipulation to bind or circumscribe court in its determination of standing — No merit to argument that Final Judgment and Dismissal with Prejudice of the appeal put an end to issue of assignment and standing — When a court lacks subject matter jurisdiction, all judgments and orders entered in action are void

7 Fla. L. Weekly Supp. 145a

Insurance — Personal injury protection — Insured’s action against insurer arising from insurer’s reduction of certain medical bills — Court rejects insurer’s contention that insured has no damages because policy contains an indemnification clause stating that insurer will defend and indemnify the insured in the event insured is sued by medical provider for a bill which insurer has determined to be unreasonable, unnecessary, or unrelated to automobile accident in question — Florida law does not require that insured be sued by medical provider prior to filing suit against PIP insurer — Notwithstanding existence of an indemnification clause, insured who is entitled to payment of bills and who could be liable for the balance of the bill properly states claim for damages under both section 627.736 and the insurance contract

7 Fla. L. Weekly Supp. 509c

Insurance — Personal injury protection — Medical malpractice — Unnecessary diagnostic testing — Presuit notice requirements of Chapter 766 apply to third-party complaint filed by PIP carrier against treating physician alleging liability under section 766.111

7 Fla. L. Weekly Supp. 436d

Insurance — Personal injury protection — Independent medical examination

7 Fla. L. Weekly Supp. 578b

Insurance — Personal injury protection — Medical provider/assignee’s action against insurer — Venue — Forum non conveniens — Motion to change venue can be predicated solely on allegations evident on face of complaint — No abuse of discretion in granting motion to change venue to Hillsborough County where complaint alleged that provider submitted bill to insurer for MRI performed on insured, exhibits attached to complaint indicated that provider’s office was in Hillsborough County and that insured lived in that county; and the only allegation which placed venue in county in which complaint was filed was that insurer maintains agents who transact business in that county — Insurer did not waive right to raise issue of forum non conveniens by appearing in matter where insurer contemporaneously filed motion for change of venue based on forum non conveniens and an answer and affirmative defenses also raising issue of forum non conveniens — Evidentiary hearing not required where party moving for change of venue relies solely on record — Provider was given notice and opportunity to be heard before trial court ruled on motion

7 Fla. L. Weekly Supp. 582a

Insurance — Personal injury protection — Medical provider/assignee’s action against insurer — Venue — Forum non conveniens — No abuse of discretion in transferring venue from Orange County based on forum non conveniens where, in answers to interrogatories and response to insurer’s request for admissions, plaintiff stated that accident occurred, insured resided, and medical treatment was rendered in Polk County, and that working address for employee, officer, director, or owner with most knowledge of bills at issue was located in Hillsborough County