Volume 8

8 Fla. L. Weekly Supp. 607a

Insurance — Personal injury protection — Independent medical examination — Medical report based on an IME is not required for an insurer to deny PIP benefits to an insured

8 Fla. L. Weekly Supp. 593b

Insurance — Personal injury protection — Independent medical examination — Where insurer had express notice that insured was represented by counsel, counsel specifically requested notice of any action by insurer and advised insured to disregard communications unless these originated from him, insurer notified insured of IME through letter from its agent, which was a claims evaluation company unknown to insured, and insurer failed to advise counsel of the IME, insured’s failure to attend IME was attributable to insurer and not an unreasonable refusal under section 627.736(7)(b), Florida Statutes

County court order at 8 Fla. L. Weekly Supp. 114b

8 Fla. L. Weekly Supp. 114b

Insurance — Personal injury protection — Insured did not, under circumstances, forfeit rights to PIP benefits by failing to attend two scheduled medical examinations — As matter of law, having been advised that insured was represented by counsel, insurer should have sent notices scheduling medical examinations to insured’s counsel — Absent such communication, insured’s failure to attend examination cannot be deemed to have been unreasonable — Notices at issue were confusing on their face because they originated from an entity with whom insured had no connection, were addressed to “You/Your client,” and cited technical-legal authorities, making it more difficult for ordinary person to understand — Insurer did not refute record evidence that insured was confused by notices and, in absence of confusion, would have attended scheduled exams

Final Summary Judgment affirmed at 8 Fla. L. Weekly Supp. 593b

8 Fla. L. Weekly Supp. 601b

Insurance — Personal injury protection — Directed verdict — No error in entertaining motion for directed verdict which was not renewed at close of all evidence where insurer made motion after insured rested his case, and trial court expressed intent to reserve ruling on motion until end of trial — Error to set aside verdict in favor of insured, where insured presented substantial evidence from which jury could have concluded that insured had not received notification of independent medical examination and therefore did not unreasonably fail to attend IME — Error to impose extreme sanction of directed verdict upon finding that insured gave false testimony regarding prior accidents where record does not establish that insured engaged in willful, repeated, and pervasive misconduct or that he attempted to defraud the court, but instead demonstrates that insured stated that he did not recall making statements in deposition in prior case

8 Fla. L. Weekly Supp. 542a

Insurance — Personal injury protection — Setting aside of clerk’s default which was rendered 19 days after service and without notice affirmed — Denial of motion to reopen the evidence based upon setting aside of clerk’s default affirmed where counsel failed to proffer testimony he sought to introduce — Independent medical examination — Error to direct verdict against insured in action for PIP benefits for unreasonable failure to appear at IME where there was no evidence of refusal to submit to IME — Evidence established that insured had to work at time of first IME; insured missed second IME due to delay at work, transportation problems, and physical therapy; and insured called after second missed IME and was told that she could reschedule — Reasonableness of insured’s conduct was question of fact for jury — Insured’s motion for attorney’s fees granted

8 Fla. L. Weekly Supp. 323a

Insurance — Personal injury protection — Dispute between medical provider and insurer — Standing — Absent assignment, medical service provider lacks standing to claim PIP benefits — No merit to argument that by failing to pay within thirty days insurer is precluded from asserting lack of standing — Insurer promptly paid insured for same bill that is now claimed by medical services provider

8 Fla. L. Weekly Supp. 144a

Insurance — Personal injury protection — Insurer not responsible for paying for medical services rendered prior to date on which insured failed to attend her independent medical examination where bills for payment for such services were not submitted until after the date insured failed to attend IME

8 Fla. L. Weekly Supp. 164a

Insurance — Personal injury protection — Error to enter summary judgment in favor of insurer where genuine issues of material fact remain as to whether insured’s failure to attend independent medical examinations in unincorporated part of county was unreasonable and intentional — Amended statute permitting IME to be conducted in municipality in which insured is receiving treatment or in location “reasonably accessible to the insured” not basis for trial court’s ruling where events at issue occurred prior to effective date of amendment — Under applicable statute, IME could have been scheduled in either the city where insured resided or in the city in which he was receiving treatment

8 Fla. L. Weekly Supp. 653a

Landlord-tenant — Eviction — Noncompliance with lease — Action to evict tenant from student housing complex for allegedly breaching lease by failing to report drug use by housemates — Landlord failed to establish that tenant breached lease provision where evidence of drug use was found in two of townhouse’s bedrooms, which were not the tenant’s or under tenant’s care, custody or control — Landlord presented no evidence to tie tenant to evidence of marijuana use in common area of townhouse given facts that tenant was asleep in his own locked bedroom at time drug evidence was discovered, did not know housemates before they moved into townhouse, and rarely socialized with housemates — Eviction based on nothing but “guilt by association” dismissed

8 Fla. L. Weekly Supp. 733a

Insurance — Personal injury protection — Action by insured for lost wage claim denied by insurer because it had exhausted the PIP benefits under policy in payment to medical provider — Insured, not insurer, had the right to reapportion her claim for PIP benefits — Insurer acted improperly and breached insurance contract by negotiating medical benefits claim with medical provider which did not have an assignment of benefits rather than negotiating with insured — Insurer ordered to pay insured amount of claim paid to medical provider plus prejudgment interest