2006

31 Fla. L. Weekly D135a

Administrative law — Department of Health — Rules — Insurance — Personal injury protection — Administrative law judge properly determined that portion of administrative rule which included surface EMG testing in list of diagnostic tests deemed not to be medically necessary for use in treatment of persons sustaining bodily injury covered by PIP benefits was an invalid exercise of delegated legislative authority — In determining whether challenged portion of rule was an invalid exercise of delegated legislative authority, ALJ properly considered, weighed, and based her findings upon all of the available evidence, regardless of whether the evidence was presented to Department during its rulemaking proceedings or was presented for the first time during section 120.56 hearing — Statute required that inclusion of a test on list of invalid diagnostic tests be based on lack of demonstrated medical value and level of general acceptance by relevant provider community — Final order clearly set forth finding that surface EMG testing has significant medical value as diagnostic tool with respect to treatment of patient suffering from injuries like those arising out of motor vehicle accident, and this finding was supported by competent substantial evidence — Thorough review of final order reveals that judge’s finding that surface EMG testing had reached level of general acceptance in relevant provider community was not limited to chiropractic community alone — Finding regarding general acceptance of test within relevant provider community was supported by competent substantial evidence

31 Fla. L. Weekly D129a

Insurance — Uninsured motorist — Personal injury protection — Coverage — Beneficial ownership of vehicle — Where insured owner of vehicle agreed to sell vehicle to buyer who took possession of the vehicle and agreed to pay monthly installments, and seller retained title to the vehicle and continued to maintain insurance policy on the vehicle, the buyer of the vehicle was the beneficial owner of the vehicle, and was not entitled to coverage under policy issued to seller — Exclusive possession and control, taken at the time of the agreement, is key factor in determining beneficial ownership of vehicle, regardless of whether legal title remains in seller’s name

31 Fla. L. Weekly D708a

Insurance — Personal injury protection — Timeliness of claim — Where claim for treatment was not submitted to insurer within 30 days from date of treatment, insurer was not responsible for paying the claim, although the claim had been mistakenly billed to another insurer in a timely manner — 2001 amendment to section 627.736(5)(b), Florida Statutes, is not applicable to claims for services rendered before October 1, 2001 — Circuit court departed from essential requirements of law by affirming county court’s summary judgment finding insurer responsible for payment of untimely claim

31 Fla. L. Weekly D2478a

Insurance — Personal injury protection — Payment of untimely claims submitted by provider of medical services — Insurer is prohibited by statute from paying for services rendered by provider where provider has failed to submit bills within time frame mandated by statute and has included untimely claims in billing statement submitted to insurer — Insurer’s payment of untimely and improperly billed charges is to be characterized as gratuitous, and should not be considered as having been made against the limits of PIP policy — Appellate division of circuit court departed from essential requirements of law when it ruled that insurer was not required to pay one provider’s timely claim because the limits of PIP policy had been exhausted by payment of another provider’s untimely claim

31 Fla. L. Weekly D1551a

Insurance — Personal injury protection — Bad faith — Unfair settlement practices — Punitive damages — Insured alleging that insurer, as a general business practice and in wanton and willful disregard for rights of its insureds, fails to pay 80% of reasonable and necessary medical expenses and continually reimburses its insureds in amounts on less favorable terms than those required by statute and its policy of insurance, and further alleging that this conduct constituted unfair settlement practice in violation of section 626.9541(1)(i)(2) — Error to dismiss claim for punitive damages because insured failed to allege additional compensatory damages other than those which had already been paid as result of settlement of underlying PIP lawsuit — Insurer’s settlement of its obligation to insured was equivalent of verdict in favor of insured and therefore insured’s actions for benefits have been resolved in his favor — Insurer’s failure to pay benefits to insured under his policy within 60 days of receiving notice under section 624.155 entitled insured to make his claim for bad faith — Allegation that insurer’s acts occurred with such frequency as to indicate general business practice and that these acts were willful, wanton, malicious and in reckless disregard of rights of its insureds was sufficient to state cause of action for punitive damages

31 Fla. L. Weekly S358a
932 So. 2d 1067

Insurance — Personal injury protection — Attorney’s fees — Offer of judgment — In a suit for benefits under a personal injury protection policy, an insurer may recover attorney’s fees pursuant to the offer of judgment statute — A suit for PIP benefits is a “civil action for damages” — Validity of offer — Insurer’s proposal for settlement, which stated that it would be a full and final satisfaction and settlement of any and all of insured’s claims and causes of action in, or arising out of the case, and provided that insured would be required to execute a “general release,” in favor of insurer, “which will be expressly limited to all claims, causes of action, etc., that have accrued through the date,” of insured’s acceptance of the proposal, was too ambiguous to satisfy rule 1.442 — Settlement proposals must clarify which of an offeree’s outstanding claims against the offeror will be extinguished by any proposed release — Because insurer’s settlement proposal failed to eliminate ambiguity regarding insured’s outstanding uninsured motorist clam, it cannot support award of attorney’s fees

NOT FINAL VERSION OF OPINION
Subsequent Changes at 32 Fla. L. Weekly D548b

31 Fla. L. Weekly D2610a

Insurance — Personal injury protection — Attorney’s fees — Circuit court departed from essential requirements of law by affirming county court’s award of fees to insured at rate of $400 per hour, with a 2.5 multiplier, in insured’s action against insurer to recover for unpaid chiropractic treatments — Where there was nothing to suggest that insured had any difficulty obtaining competent counsel to pursue his PIP claim, application of multiplier, resulting in a fee of $1,000 an hour for 193.75 hours, was a manifest injustice

31 Fla. L. Weekly D1930a

Insurance — Personal injury protection — Appellate attorney’s fees — Where insurer appealed county court order granting attorney’s fees to insured, including a 1.5 multiplier, raising only the appropriateness of the multiplier, appellate division of circuit court departed from essential requirements of law in awarding insured appellate attorney’s fees upon affirming county court order — Party is not entitled to fees for time spent litigating the propriety of a fee multiplier — Order awarding appellate attorney’s fees as a sanction under section 57.105 for filing a frivolous appeal departed from essential requirements of law because it did not contain specific findings that appeal was not supported by facts or application of law

31 Fla. L. Weekly D1614a

Insurance — Uninsured motorist — Personal injury protection — Arbitration — Action against insurer which denied coverage on ground that policy was canceled at its inception because insured’s check was returned for insufficient funds — No error in entering judgment in favor of insured pursuant to arbitrator’s decision where insurer did not timely file motion for trial following the nonbinding arbitration decision — Issue of coverage may be determined by arbitrator when a trial court refers a case to nonbinding arbitration pursuant to section 44.103 — Insurer’s argument that it was not required to request a trial de novo because issue of coverage was never properly before the arbitrator is without merit

31 Fla. L. Weekly D626a

Attorney’s fees — Insurance — Personal injury protection