2008

33 Fla. L. Weekly D2803a
995 So. 2d 1175

Insurance — Subrogation — Torts — Security company — Action by insurer as subrogee of insured warehouse owner against security company which had contracted with alarm company to respond to alarms at insured warehouse, seeking to recover monies paid on insured’s claim for merchandise stolen after security company allegedly failed to respond to alarm at warehouse — Error to dismiss negligence and breach of contract claims against security company on ground that security company owed no duty to warehouse owner — Although security company contracted with alarm company, and not with warehouse owner, warehouse owner was an intended beneficiary of contract — Security company undertook to render services which were necessary to protect property of alarm company customers, and complaint sufficiently pleads cause of action against security company under undertaker doctrine

33 Fla. L. Weekly D1444a

Insurance — Uninsured motorist — Stacking — Trial court erred in determining that rejection of stacked coverage by husband was invalid where named insured under policy was wife — Where husband applied for insurance, and signed application for insurance and form rejecting stacked coverage, husband was acting for his wife, the named insured, in securing insurance coverage and rejecting stacked uninsured motorist coverage

33 Fla. L. Weekly D1927a

Insurance — Underinsured motorist — Settlement — Error to enter order compelling settlement where plaintiff failed to demonstrate by competent substantial evidence that there was a meeting of the minds sufficient to create an enforceable settlement agreement — Voice mail message mistakenly sent from insurer’s employee to plaintiff’s counsel regarding replacement of a stale settlement check was not sufficient to establish meeting of the minds for settlement purposes

33 Fla. L. Weekly D2844g
999 So. 2d 693

Insurance — Reinsurance — Insolvent insurers — Interpretation of structured reinsurance contract between reinsurer and property and casualty insurer where reinsurer paid coverage limits, less three quarterly premiums that were scheduled to be paid in future months, for hurricane loss, insurer became insolvent, Department of Financial Services was appointed receiver of insurer, and reinsurer gave notice of intent to terminate contract — Reinsurer properly deducted premiums not yet paid from loss payment to insurer — Trial court erred in finding that reinsurer wrongfully retained offset for unpaid premiums when it paid policy limit — Trial court erred in finding that reinsurer was not entitled to recover non-renewal charge as provided in contract — Funds in trust account created pursuant to contract are not part of receivership estate, and reinsurer is entitled to non-renewal charge to be paid from that account

33 Fla. L. Weekly D1201a

Insurance — Personal injury protection — Withdrawal of benefits — Medical report issued for withdrawal of PIP benefits is not required to be based upon a physical examination of the insured that is personally conducted by the physician issuing the report — Medical report may be based on physical examination of insured that is conducted by either the physician preparing the report or another physician’s examination — A valid report by physician is required where insurer attempts to reduce, withdraw, or deny PIP benefits on grounds of reasonableness, necessity, or relationship — Conflict certified

33 Fla. L. Weekly D811a
979 So. 2d 324

Insurance — Personal injury protection — Claim for overdue benefits — Presuit demand letter — Where insureds failed to provide insurer with presuit demand letter as required by section 627.736(11) before filing their lawsuit for unpaid PIP claims, trial court erred in granting insureds’ motion for summary judgment — There was material disputed issue of fact as to whether insurer denied insureds’ claim, thereby relieving insureds of obligation to provide insurer with presuit notice — Presuit demand requirements of statute were applicable although policy was issued and accident occurred prior to effective date of statute — Statute’s application is dependent upon the date of treatment and services and when the lawsuit is filed, not when the policy was issued or when the accident occurred — Application of statute’s presuit notice requirements to pre-existing policy does not violate constitutional prohibition of laws impairing existing contracts because application of statute to claim for PIP benefits is procedural in nature, and it does not alter any contractual or vested right — Presuit demand requirements apply to claims for wage loss benefits — Insureds waived argument that their lawsuit was merely premature, and should have been abated until their failure to comply with statutory condition precedent was cured, where insureds willfully failed to request abatement or to voluntarily dismiss and refile their lawsuit after they were put on notice that the lawsuit was at best premature — Demand letter sent eleven months after initiation of litigation was of no legal effect — Remand for trier of fact to resolve question of whether insurer denied or reduced claim — If insurer did not deny or reduce claim, insureds are barred from recovery under insurance contract

33 Fla. L. Weekly D839a
18 So. 3d 1059

Insurance — Personal injury protection — Section 627.736(7)(a), Florida Statutes, which requires a valid report based on a physical examination conducted by a similarly licensed physician before payment can be withdrawn, is not applicable when the insurer seeks to deny a single payment for treatment — Circuit court violated clearly established principle of law resulting in miscarriage of justice when it affirmed county court judgment finding that insurer was precluded from defending against chiropractor’s claims for PIP benefits because insurer denied payment for diagnostic tests before obtaining report based on physical examination by similarly licensed physician

33 Fla. L. Weekly D1174a
985 So. 2d 10

Insurance — Personal injury protection — Coverage — Magnetic resonance imaging — Challenge to application of section 627.736(5)(b)5, Florida Statutes, (2003), which provides for an adjustment of allowable amount for MRI fees by an additional amount equal to Consumer Price Index — MRI inflation adjustment called for by Section 627.736(5)(b)5 is to be made for year 2001 — Trial court properly relied on 2003 amendment to statute to establish the date for the annual CPI adjustment, in ruling that MRI provider was entitled to a CPI adjustment to Medicare Part B fee schedule for 2001 (base price) for MRI services rendered on August 5, 2002 — Under Section 627.736(5)(b)5, the statutory adjustment is applicable to the MRI fee schedule annually and cumulatively commencing August 1, 2002, to date of subject scan — Trial court correctly concluded that 2003 amendment to Section 627.736(5)(b)5 required applying cumulative and compounding inflation adjustments for 2001, 2002, and succeeding years, so that the fee schedule amount for the year in question will reflect the combined prior year’s increases from 2001 through August 1st of year in which MRI scan is performed — This construction does not result in unconstitutional retroactive application of statute; rather, it involves application of a statute which became effective October 1, 2003, to an MRI scan performed later in 2005

33 Fla. L. Weekly D1052a
985 So. 2d 10

NOT FINAL VERSION OF OPINION
Subsequent Changes at 33 Fla. L. Weekly D1174a

Insurance — Personal injury protection — Coverage — Magnetic resonance imaging — Challenge to application of section 627.736(5)(b)5, Florida Statutes, (2003), which provides for an adjustment of allowable amount for MRI fees by an additional amount equal to Consumer Price Index — MRI inflation adjustment called for by Section 627.736(5)(b)5 is to be made for year 2001 — Trial court properly relied on 2003 amendment to statute to establish the date for the annual CPI adjustment, in ruling that MRI provider was entitled to a CPI adjustment to Medicare Part B fee schedule for 2001 (base price) for MRI services rendered on August 5, 2002 — Under Section 627.736(5)(b)5, the statutory adjustment is applicable to the MRI fee schedule annually and cumulatively commencing August 1, 2002, to date of subject scan — Trial court correctly concluded that 2003 amendment to Section 627.736(5)(b)5 required applying cumulative and compounding inflation adjustments for 2001, 2002, and succeeding years, so that the fee schedule amount for the year in question will reflect the combined prior year’s increases from 2001 through August 1st of year in which MRI scan is performed — This construction does not result in unconstitutional retroactive application of statute; rather, it involves application of a statute which became effective October 1, 2003, to an MRI scan performed later in 2005

33 Fla. L. Weekly D2146a
990 So. 2d 633

Insurance — Personal injury protection — Trial court properly entered directed verdict for defendant insurer in action by insured’s medical provider on ground that insured failed to report for two consecutive independent medical examinations without explanation — Insured’s submission to independent medical examination is a condition precedent to coverage — Circuit court appellate division departed from essential requirements of law by reversing trial court’s directed verdict