2000

25 Fla. L. Weekly D701aNOT FINAL VERSION OF OPINION
Subsequent Changes at 25 Fla. L. Weekly D1666f

Attorney’s fees — Offer of judgment — Insurance — Personal injury protection — Error to deny attorney’s fees to PIP insurer where insured rejected insurer’s proposal for settlement/offer of judgment made pursuant to Rule 1.442 or section 768.79, and jury found no entitlement to PIP benefits under policy — Section 768.79 applies to PIP claims — Statute does not conflict with section 627.428(1), which permits court to award attorney’s fees to prevailing insured exclusively — Offer of judgment statute does not deny insureds access to courts when applied in PIP cases — Statute has no deterrent effect on filing of PIP suits

25 Fla. L. Weekly D1113a

Attorney’s fees — Insurance — Insured prevailing in action against insurer — Trial court’s decision not to apply contingency risk multiplier was supported by facts and testimony, which demonstrated availability of competent counsel in the market place, likelihood of recovery, likelihood and fact of reasonable compensation unrelated to a multiplier, likelihood that competent attorneys with requisite skill and experience would have accepted case absent a multiplier, and ability of defendant to respond to an award — Attorney cannot claim that trial court’s decision created inequity, as it is obvious that counsel, even without application of multiplier, received award well in excess of the amount that would have been paid under contract’s specified contingency fee — Record supports trial court’s conclusion that application of multiplier would not further purpose of section 627.428, which is to discourage insurance companies from contesting valid claims and to reimburse successful insureds for outlays for attorney’s fees when they are compelled to defend or to sue to enforce their insurance

25 Fla. L. Weekly D380b

Insurance — Homeowners — Liability — Appeals — Duty to defend is to be determined solely by allegations of complaint — Summary judgment in favor of insurer error where complaint creates factual issue — Issue of denial of insured’s motion for summary judgment not addressed by appellate court where issue was not appealed — Request for attorney’s fees denied where fees were not requested by filing of separate motion

25 Fla. L. Weekly D533c

Insurance — Personal injury protection — Insured who has assigned right to receive PIP benefits to health care provider may not file lawsuit to collect the assigned benefits

25 Fla. L. Weekly D2523a

Insurance — Personal injury protection — Assignment — Error to enter summary judgment in favor of hospital in action to recover from motorist’s PIP insurer for services provided to bicyclist who was injured in accident with insured — In absence of evidence that bicyclist assigned his right to PIP benefits to hospital, hospital does not have standing to bring suit against insurer pursuant to Florida’s No Fault laws or insurance contract between insurer and insured motorist — Patient Consent and Authorization Form, which included a provision for assignment of PIP benefits from patient to hospital, was not sufficient to constitute an assignment where form was signed by hospital employee on patient’s behalf and indicated that patient, who was admitted as John Doe, was unable to sign due to “condition” — Form was not signed by patient, and patient did not countersign an invoice, bill or claim form, as required for an enforceable assignment, or sign any other written assignment of right to benefits — Hospital lien law does not apply under facts of instant case

25 Fla. L. Weekly D2640a

Insurance — Medical malpractice — Declaratory judgment — Where hospital’s insurer admitted liability for injuries to injured party and offered to submit issue of damages to binding arbitration, insurer could not, after injured party had received arbitration award, institute declaratory judgment action against injured party seeking declaration that its policy provided no coverage because workers’ compensation was injured party’s exclusive remedy — Insurer’s admission of liability and submission of case to arbitration solely on issue of damages constituted waiver of affirmative defense of workers’ compensation immunity — Insurer, having waived its defenses in exchange for injured party’s agreement to arbitrate, had no present controversy with injured party to litigate in declaratory judgment action, and court lacked jurisdiction over injured party — Error to enter declaratory judgment finding that there was no coverage under policy

25 Fla. L. Weekly D2050c

Insurance — Arbitration — Personal injury protection — Statute providing for mandatory arbitration of disputes involving medical benefits between insurer and medical services provider who has accepted an assignment of PIP benefits is unconstitutional — Even if statute were constitutional, statute would not apply to instant dispute between insured and insurer — Factual issue exists as to whether insured executed an unqualified assignment of benefits — If insured made qualified assignment, thereby retaining some financial exposure for medical bills, suit would be premature at this point and should be dismissed — On remand, trial court to determine existence of any assignment

25 Fla. L. Weekly D2430aNOT FINAL VERSION OF OPINION
Subsequent Changes at 26 Fla. L. Weekly D236b

Insurance — Personal injury protection — Arbitration — Statute which requires that medical care providers to whom claims have been assigned submit claims to arbitration is unconstitutional — Trial court improperly granted insurer’s motions to stay medical provider’s action to recover PIP benefits and compel arbitration

25 Fla. L. Weekly D477a

Insurance — Arbitration

25 Fla. L. Weekly D2614bNOT FINAL VERSION OF OPINION
Subsequent Changes at 26 Fla. L. Weekly D390a

Insurance — Homeowners — Appraisal — Where homeowners filed claim for damage to home allegedly caused by blasting, a covered peril, and insurer denied claim on ground that damage was caused by settling of foundation, an excluded peril, and claim was submitted to appraisal, appraiser did not have authority to determine that damage was caused by settling and was not covered by policy — Question of whether loss was caused by covered peril or excluded peril was for court rather than appraiser — Trial court erred in confirming appraisal award of zero — Insurer did not waive right to appraisal by failing to request appraisal prior to insureds’ filing of lawsuit — Insurer did not waive right to appraisal by participating in litigation filed by insureds