2011

36 Fla. L. Weekly D888a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 36 Fla. L. Weekly D1467a

Insurance — Property and casualty insurance — Coverage — Hurricane and windstorm — Dispute over amount paid by insurer to purchaser of property to whom named insured had assigned its rights to insurance proceeds — Civil procedure — Where purchaser and insurer entered into joint pretrial stipulation that limited dispute to the amount to be paid to the purchaser for damages from hurricane and which included stipulation that named insured had assigned its right to insurance proceeds to the purchaser, trial court impermissibly abandoned the stipulation by instructing jury that it was required to determine whether purchaser held valid assignment and by providing a verdict form that questioned whether valid assignment existed — Trial court abused its discretion by not correcting error on purchaser’s motion for new trial, filed after jury found there was no assignment — Purchaser was not required to read stipulation to the jury

36 Fla. L. Weekly D1467a
82 So. 3d 911

Insurance — Property insurance — Coverage — Hurricane and windstorm — Dispute over amount paid by insurer to purchaser of property to whom named insured had assigned its rights to insurance proceeds — Civil procedure — Where purchaser and insurer entered into joint pretrial stipulation that limited dispute to the amount to be paid to the purchaser for damages from hurricane and which included stipulation that named insured had assigned its right to insurance proceeds to the purchaser, trial court impermissibly abandoned the stipulation by instructing jury that it was required to determine whether purchaser held valid assignment and by providing a verdict form that questioned whether valid assignment existed — Trial court abused its discretion by not correcting error on purchaser’s motion for new trial, filed after jury found there was no assignment — Purchaser was not required to read stipulation to the jury

36 Fla. L. Weekly D1555a
65 So. 3d 608

Insurance — Trial court did not err in entering summary judgment for insurer on ground that insured had failed to comply with pre-suit requirements that she provide a satisfactory proof of loss and submit to examination under oath — Court did not err or abuse discretion by denying insured’s request to abate action, which was first made almost five years after the loss and only in the face of an imminent ruling against her at hearing on motion for summary judgment

36 Fla. L. Weekly S373a
73 So. 3d 91

Civil procedure — Class actions — Class action alleging that premium finance company violated sections 627.840(3)(b) and 627.835, Florida Statutes, by knowingly overcharging plaintiff an additional service charge of $20 twice in a twelve-month period — In reversing trial court’s order granting class certification, district court of appeal erred by not applying the abuse of discretion standard of review — District court incorrectly held that plaintiff and putative class members failed to satisfy commonality and predominance requirements for class action — District court erred in finding that trial court improperly granted motion for class certification on basis that plaintiff failed to demonstrate that defendant knowingly overcharged him in violation of statute — Issue of whether defendant knowingly overcharged plaintiff is question of fact for jury — Plaintiff satisfied all requirements for class action, and trial court properly granted class certification

36 Fla. L. Weekly D2442b
126 So. 3d 291

Insurance — Personal injury protection — Fee schedule — Appeals — Appellate court declines to answer certified question, “[m]ay the permissive fee schedule provisions of [section 627.736(5)(a)(2), Florida Statutes (2008)] be applied to claims brought for treatment rendered after January 1, 2008, pursuant to the personal injury protection policies of insurance purchased prior to January 1, 2008?” — Appeal, together with filing fee, transferred to appellate division of circuit court

36 Fla. L. Weekly D54b
56 So. 3d 41

Insurance — Personal injury protection — Failure of insured to attend independent medical exam appointments — Appellate division of circuit court did not depart from essential requirements of law in finding that insured’s reason for failing to attend medical exam appointments, that her lawyer did not tell her about the appointments, was an unreasonable basis to excuse her non-appearance — Expert witness fees — Circuit court did not violate a clearly established principle of law resulting in a miscarriage of justice in finding that treating physicians were not entitled to expert witness fees for their depositions because they did not obtain their information for the purpose of litigation but rather in the course of treating the patient

36 Fla. L. Weekly D1823a
67 So. 3d 1174

Insurance — Personal injury protection — Appellate attorney’s fees — Where insured prevailed in county court in action on PIP policy, and appellate division of circuit court affirmed the county court judgment, it was a miscarriage of justice for circuit court to deny an award of appellate attorney’s fees to insured

36 Fla. L. Weekly D2072a
69 So. 3d 1059

Insurance — Personal injury protection — Action against insurer by medical provider — Appellate division of circuit court properly found that it was within trial court’s discretion to strike insurer’s affirmative defense of fraud on morning of trial — Circuit court’s finding that trial court did not limit reading of insured’s deposition to jury in any way was a misstatement of facts in the record because trial court did prohibit insurer from reading that part of insured’s deposition where he claimed that he was not treated by plaintiff medical provider for the automobile accident — Decision finding that insurer was not prohibited from reading insured’s complete deposition to jury constituted a miscarriage of justice — Appellate attorney’s fees — Circuit court departed from essential requirements of law by applying incorrect law when it awarded appellate attorney’s fees to plaintiff even though its brief had been stricken from consideration and it had been precluded from presenting oral argument due to the failure to timely file its answer brief or timely move for an extension of time to do so

36 Fla. L. Weekly D960b
61 So. 3d 462

Insurance — Personal injury protection — Circuit court sitting in its appellate capacity properly found that presuit demand letter was premature where payment was not overdue — Payment was not overdue where amount demanded on health insurance claim form exceeded the total amount allowed under statute for MRIs, and claim form failed to specify the exact amount owed under the statute — Circuit court applied correct law in ruling that peer review report could have been proper basis for denial of bill although insurer did not also conduct independent medical examination

36 Fla. L. Weekly D2597a
79 So. 3d 55

Insurance — Personal injury protection — Reimbursement of provider for MRI services — Insurer may not limit provider reimbursement to provider of MRI services to 80 percent of 200 percent of allowable amount under physicians schedule of Medicare Part B where policy does not make specific election to do so, but states that insurer will pay 80 percent of all reasonable medical expenses