2003

28 Fla. L. Weekly D2682a

Insurance — Uninsured motorist — Trial court erred in entering summary judgment in declaratory judgment action finding that plaintiff is entitled to uninsured motorist benefits under policy issued to plaintiff’s mother where plaintiff did not fit within any of the categories of persons for whom policy provided uninsured motorist coverage

28 Fla. L. Weekly D2590a

Insurance — Uninsured motorist — Complaint — Amendment — Abuse of discretion to deny insured’s motion to amend complaint to add existence of phantom vehicle which dropped mattress on highway to the claim against UM insurer — Amendment did not state new cause of action, but introduced alternative theory of causation based upon deposition of witness who saw mattress fall off pick-up truck some distance ahead of him, which caused vehicles on interstate to slow down, ultimately resulting in multi-vehicle collision — Insurer knew about this possible additional theory at least from time of deposition and did not suggest that amendment would entail additional discovery or a continuance of the scheduled trial — Insurer’s contention that further claims would be barred by statute of limitations lacks merit, as claim arose out of same incident as initial complaint against underinsured motorist and, in fact, insurer relied upon this alternative theory to avoid liability when it argued that named defendant should not be liable because accident was caused by negligence of phantom pick-up truck which dropped mattress on highway — Remand with directions to grant amendment of complaint

28 Fla. L. Weekly D131b

Insurance — Uninsured motorist — Wrongful death action against underinsured tortfeasor driver and UM insurer for compensatory and punitive damages arising from death of plaintiff’s parents in automobile accident which tortfeasor admittedly caused while intoxicated — “Other insurance” clause of UM policy, which provided UM benefits if amount of loss exceeded all other available liability insurance coverage, was an affirmative defense, and failure of insurer to plead it resulted in waiver — Bifurcation — Trial court followed bifurcation protocol established by supreme court when it ordered case to proceed to trial on issues of compensatory damages and entitlement to punitive damages, followed by separate consideration, by the same jury, to determine amount of punitive damages — No abuse of discretion in denying motions for bifurcation in which insurer sought one trial on compensatory damages and a separate trial on all punitive damages issues, notwithstanding insurer’s contention that underinsured tortfeasor’s admission of liability changed posture of case and that jury would be unfairly influenced to award excessive compensatory damages if it was provided any knowledge of tortfeasor’s admitted intoxication — No abuse of discretion in denying insurer’s request for mistrial and new trial based on argument that jury’s knowledge of tortfeasor’s intoxication resulted in unfair prejudice to insurer

NOT FINAL VERSION OF OPINION
Subsequent Changes at 30 Fla. L. Weekly D1943a

28 Fla. L. Weekly D1679b

Insurance — Personal injury protection — Transportation expenses — Class actions seeking to challenge as too low and not reasonable the 32.5 cents per mile travel reimbursement benefit paid to PIP insureds for automobile travel expenses incurred while driving to and from medical providers — Actions properly dismissed — Section 627.736(1)(a), Florida Statutes does not provide for payment of automobile travel expenses for travel to and from medical providers — Conflict certified

Substituted opinion at 30 Fla. L. Weekly D1943a
Quashed at 30 Fla. L. Weekly S145a

28 Fla. L. Weekly D1239a

Insurance — Personal injury protection — Transportation costs for medical treatment — PIP statute provides only for transportation by ambulance — Automobile transportation expenses are not payable — Conflict certified — Class action claiming that 34.5 cents a mile was insufficient to compensate insured for cost of driving car to obtain medical treatment properly dismissed for failure to state cause of action

Quashed at 30 Fla. L. Weekly S145a
Circuit Court order at 9 Fla. L. Weekly Supp. 111b

28 Fla. L. Weekly S287a

Insurance — Personal injury protection — Certiorari — An insured has standing to bring a breach of contract action against a PIP insurer where the insurer refuses to pay medical expenses but the insured has incurred no out-of-pocket expenses, the medical provider has not brought a collection action against the insured, and the policy contains a defend and indemnify provision should such an action ensue — Where county court granted summary judgment for insurer in insured’s action for failure to pay medical bills on the ground that insured had suffered no damages because insured had not paid medical bills and had not been sued for payment by medical provider, and circuit court affirmed county court judgment, district court of appeal properly concluded that circuit court had applied incorrect law and that it was sufficiently egregious and fundamental to require certiorari review — “Clearly established law” can derive from a variety of legal sources — In addition to case law dealing with the same issue of law, an interpretation or application of a statute, a procedural rule, or a constitutional provision may be the basis for granting certiorari review

District Court opinion in Caravakis v. Allstate Indemnity Co. at 27 Fla. L. Weekly D88b
Circuit court order and opinion in Caravakis v. Allstate Indemnity Co. at 7 Fla. L. Weekly Supp. 760a

28 Fla. L. Weekly D615a

Insurance — Personal injury protection — Fee schedule — Magnetic resonance imaging — Effective date of revised MRI fee schedule — Trial court improperly relied on parol evidence of a contrary legislative intent in finding an incorrect statutory effective date for new MRI fee schedule where the relevant subsection unambiguously provided for its own effective date, the day the Act became a law

28 Fla. L. Weekly D1511a
851 So. 2d 762

Insurance — Personal injury protection — Preferred providers — No error in finding that insurer was required to pay PIP benefits at rate of 80% of usual, customary and related charges, as mandated by statute, rather than at PPO rates where insurer failed to comply with section 627.736(10) — While medical provider was a member PPO network of which insurer was also a member, insurer had not directly contracted with provider for PPO benefits — Section 627.736(10) provides the sole language relating to availability of PPO benefits in PIP cases, and language indicates legislature’s intent that availability of PPO PIP benefits is subject to strict compliance with the terms of statute — Although an insurance company is permitted to contract with licensed health care providers for PPO benefits, statute provides no specific authority for insurance companies to contract with PPO networks — Trial court’s ruling did not void agreement between insurer and PPO network, but merely held that agreement was not applicable under facts presented in instant case — It is irrelevant that section 627.736(10) does not contain private right of enforcement, because provider, as assignee of insured, was merely suing for recovery of benefits under standard PIP statute

NOT FINAL VERSION OF OPINION
Subsequent Changes at 29 Fla. L. Weekly D652e

28 Fla. L. Weekly D2649a

Insurance — Personal injury protection — Physical therapy services rendered by medical assistants who were not licensed as physical therapists were not lawfully rendered, and PIP insurer is not obligated to pay for such services

28 Fla. L. Weekly D2605a

Insurance — Personal injury protection — Preferred providers — No-fault law does not prohibit insurers from making payment for health care services covered by personal injury protection benefits at reduced preferred provider organization rates — Section 627.736(10) establishes framework under which PIP insurers are authorized to enter into preferred provider contracts with health care providers — Insurer who chooses to enter such contracts is authorized by statute to offer prospective insureds preferred provider policies, subject to certain conditions and requirements — Authorization to contract with providers for preferred rates encompasses contractual arrangements in which insurer contracts to obtain services of providers through an intermediary PPO network — Statute does not require that all insurers which contract to pay providers at PPO rates issue preferred provider policies — Statute requiring PIP insurers to pay 80 percent of “all reasonable expenses” for covered medical services, subject to policy limits, does not require insurer to pay a provider for services at a rate higher than the rate the provider has contractually agreed to accept in payment for such services — If provider has agreed in valid and enforceable contract to accept payment for services at a particular rate, that rate would necessarily be “reasonable amount” for services rendered — Conflict certified