FLORIDA PERSONAL INJURY PROTECTION “PIP” LAW (2022

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FLORIDA PERSONAL INJURY

PROTECTION “PIP” LAW (2022)

- SELECTED ISSUES -

Judge Robert W. Lee

County Court Judge

Broward County

(Last Revised: 02/15/2021)

(Addendum Case Law by Judge Linda Melendez on 03/01/2022)

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TABLE OF CONTENTS

TOPIC PAGE

I. INTRODUCTION …………………………………………………..4

II. COVERAGE .………………………………………………….4

A. Required Coverage …………………………………………………..4

B. Injury Arising Out of Operation and Use of Vehicle ...…………….…..5

C. Persons Covered …………………………………………………..7

D. Inoperable Vehicle .………………………………………………….7

E. Amendments to Statute …………………………………………10

III. PRE-SUIT ACTIVITY …………………………………………………10

A. Notice of Loss/Claim …………………………………………………10

B. Disclosure & Acknowledgment Form …………………………10

C. Cancellation of Policy …………………………………………11

D. Rescission …………………………………………………12

E. Examination Under Oath (EUO) …………………………………12

F. Independent Medical Examination (IME) …………………………13

G. Peer Review (“Paper Review”) …………………………………14

H. Explanation of Benefits (EOB) …………………………………15

I. Box 31 (License Number) …………………………………………16

J. Amount Paid …………………………………………………16

K. Application of Deductible …………………………………………19

IV. PRE-SUIT NOTICE/DEMAND LETTER …………………………20

V. STATUTE OF LIMITATIONS …………………………………………22

VI. PARTIES …………………………………………………………23

A. Name of Plaintiff …………………………………………………23

B. Name of Defendant …………………………………………………23

C. Assignment of Benefits (AOB) …………………………………23

D. Plaintiff’s Standing …………………………………………………25

VII. PLEADINGS …………………………………………………………26

A. Complaint …………………………………………………………26

B. Amended Complaint …………………………………………………26

C. Copy of Bill (HCFA) …………………………………………………26

D. Copy of Insurance Policy …………………………………………27

E. Affirmative Defenses …………………………………………………27

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F. Default …………………………………………………..……27

G. Venue ……………………………………………………..…28

H. Declaratory Relief ………………………………………………..29

I. Consolidation of Suits ………………………………………………..30

J. Reserve for Emergency Services and Care ………………………..30

K. Emergency Medical Conditions ………………………………..31

VIII. EXHAUSTION OF BENEFITS ………………………………………..33

IX. ACCORD AND SATISFACTION ………………………………..34

X. DISCOVERY ………………………………………………………..35

A. General Issues ………………………………………………………..35

B. Summary Judgment Hearings ………………………………………..36

C. Cost of Services or Materials ………………………………………..37

D. Expert Witness Fee for Doctors ………………………………..37

E. Computer Databases ………………………………………………..39

F. Privileged Communication ………………………………………..39

G. Work Product ………………………………………………………..39

H. Privilege Log ………………………………………………………..40

I. Interrogatories ………………………………………………………..42

J. Inspections/Production ………………………………………..42

XI. FEE SPLITTING ……………………………………………………… 42

XII. DAUBERT/FRYE ISSUES ……………………………………… 42

XIII. OFFER OF JUDGMENT/PROPOSAL FOR INS. SETTLEMENT…... 44

XIV. JURY INSTRUCTIONS ……………………………………………….45

XV. JUDGMENTS ……………………………………………………….46

A. Set-Off……………………………………………………………….47

B. Interest……………………………………………………………….47

C. Court Costs ……………………………………………………….47

XVI. ATTORNEY’S FEES ……………………………………………….48

A. Fla. Stat. 627.428 (2015): The “One-Way Street” ………...…….48

B. The Fee Award ……………………………………………….50

C. Assessment after Voluntary Dismissal ………………...……..51

Special thanks to Nova Southeastern University judicial intern George Dahdal

for his work on updating the citations in this Handbook.

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I. INTRODUCTION

Purpose of Florida’s No-Fault Law

Florida’s no-fault insurance law is, in essence, a compromise between two competing

principles: in exchange for prompt payment of medical expenses and lost wages, the parties

forego tort liability in most cases. Non-economic damages, such as pain and suffering, are

severely limited.

The Florida Supreme Court has stated that the purpose of the “Florida No-Fault Law” is

“to provide for medical, surgical, funeral and disability insurance benefits without regard to fault,

and to require motor vehicle insurance securing such benefits, for motor vehicles to be registered

in this State and with respect to motor vehicle accidents, a limitation of the right to claim

damages for pain, suffering, mental anguish and inconvenience.” Lasky v. State Farm Insurance

Company, 296 So. 2d 9 (Fla. 1974).

The Florida Motor Vehicle No-Fault Law gave tortfeasors limited tort immunity, and in

exchange it provided automobile accident victims the assurance that they would receive prompt

payment of medical expenses and lost wages. Id. This quid pro quo provided the

constitutionality for this legislatively created and mandated insurance coverage. The Florida

Supreme Court recognized the legislative intent to enhance the public welfare through “a

lessening of the congestion of the Court system, a reduction in concomitant delays in court

calendars, a reduction of automobile insurance premiums and an assurance that persons injured

in vehicular accidents would receive some economic aid in meeting medical expenses and the

like, in order not to drive them into dire financial circumstances with the possibility of swelling

the public relief rolls.” Id. Without a doubt, the purpose of the no-fault statutory scheme is to

provide swift and virtually automatic payment so that the injured insured may get on with his life

without undue financial interruption. See Ivey v. Allstate, 774 So.2d 679, 683-84 (Fla. 2000).

Motorists who comply with the No-Fault Law enjoy limited immunity from tort liability

for “damages” because of bodily injury, sickness, or disease arising out of the ownership,

operation, maintenance or use of a motor vehicle in Florida. Section 627.736, Fla. Stat. (2015).

Limited immunity exists to the extent that a Plaintiff’s economic loss is within statutory

coverage. Recovery for non-economic damages, including pain and suffering, mental anguish

and inconvenience, may be sought when the injury consists of: (a) significant and permanent loss

of an important bodily function; (b) permanent injury within a reasonable degree of medical

probability, other than scarring or disfigurement; (c) significant and permanent scarring or

disfigurement; and (d) death. Section 627.737(2), Fla. Stat. (2018).

A concise summary of the Florida PIP law has recently been forth by the Third District

Court of Appeal in Ocean Harbor Cas. Ins. v. MSPA Claims, 1, 261 So.3d 637, 644 (Fla. 3d

DCA 2018) (par. II-7 of opinion).

II. COVERAGE

A. Required Coverage

Pursuant to Florida Statute 627.736 (1) (2015), every PIP policy shall provide personal

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injury protection to the named insured, relatives residing in the same household, persons

operating the insured motor vehicle, passengers in such motor vehicle and other persons struck

by such motor vehicle suffering bodily injury. Benefits are available to resident relatives and

passengers provided the injured person is not himself or herself the owner of a motor vehicle

with respect to which security is required under section 627.730-627.7405. § 627.736(4)(e).

For medical benefits, there is a limit of $10,000 for losses sustained by any such person

as a result of bodily injury, sickness, disease or death arising out of the ownership, maintenance

or use of a motor vehicle. Coverage is provided for 80% of reasonable expenses for medically

necessary services “if the individual receives the initial services…within 14 days after the motor

vehicle accident.” Fla. Stat. 627.736(1)(a) (2015).

As of 2012, treatment by massage or acupuncture is excluded from medical benefits,

regardless of licensure. Fla. Stat. 627.736(1)(a)(5) (2015). Although a circuit appellate court

ruled that a licensed massage therapist (LMT) is permitted to bill for services other than

massage, such as physical therapy, Southern-Owners Ins. Co. v. Hendrickson, 27 Fla. L. Weekly

Supp. 574 (7

Cir. App. 2019), the Third District Court of Appeal has more recently ruled that a

licensed massage therapist may not receive PIP reimbursements, even if the services rendered

were not massage and were lawfully rendered pursuant to the massage therapist’s license.

GEICO Gen. Ins. Co. v. Beacon Healthcare Ctr. Inc., 45 Fla L. Weekly D437 (Fla. 3d DCA

2020). Following the Third DCA decision, a circuit appellate court focused on who was seeking

to be reimbursed – the massage therapist or the clinic. In this case, it permitted a clinic to

recover for “non-massage” services rendered by a license massage therapist when it was the

clinic, and not the LMT, that was seeking reimbursement for these services. The appellate court

also further noted that there was no indication that a massage therapist license was necessary to

do these services. Star Casualty Ins. Co. v. South Florida Pain & Rehabilitation of Hialeah,

LLC, 28 Fla. L. Weekly 670 (17

Cir. App. 2020).

B. Injury Arising Out of Ownership, Operation, Maintenance or Use of Motor Vehicle

Benefits are due only if the injury arises out of the ownership, maintenance, or use of a

motor vehicle. In most PIP lawsuits, this is not an issue. However, the issue arises in enough

cases to have developed a fair amount of case law.

In Blish v. Atlanta Cas. Co., 736 So.2d 1151 (Fla. 1999), the Florida Supreme Court

found that the key issue in deciding coverage is whether the type of injury sustained by insured

was reasonable in the minds of the contracting parties. Accordingly, when construing the phrase

“arising out of,” the courts should ask “Is the injury a reasonably foreseeable consequence of the

use or the ownership or maintenance of the vehicle?” Id.

Physical contact with car not required. Lumbermens Mut. Cas. Co. v. Castagna, 368

So.2d 348 (Fla. 1979).

Although there is not yet any clear case law, AAA has begun advising its customers that

cars used for commercial use, such as Uber and Lyft, may not be covered “by your existing auto

policy.” No Surprises, AAA Living (Nov./Dec. 2017) at 51. One Circuit Court has held that the

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use of a vehicle for Uber/Lyft purposes constitutes a “commercial” or “business” use under the

policy, and the failure to disclose such use when requested constitutes a material

misrepresentation under the policy entitling the insurer to rescind the policy. Imperial Fire &

Cas. Ins. Co. v. Pierla, 28 FLW Supp. 828 (18th Cir. Ct. Oct. 30, 2020).

CASES WHERE COVERAGE FOUND:

In Blish, supra, the Florida Supreme Court found coverage to a person who was injured

while changing a tire and was hit from behind by robbers. 736 So.2d at 1151.

All that is required is that there is some nexus between the motor vehicle and the injury.

In Government Employees Insurance Company v. Novak, 453 So.2d 1116 (Fla. 1984), coverage

was permitted where driver was shot in the face, pulled from the car and the car stolen.

Summary judgment for defendant was reversed when passenger was injured when he got

out of vehicle in road rage situation and fight ensued. Passenger was injured when he was

tackled by police trying to break up the fight. Milgram v. Allstate Ins. Co., 731 So.2d 134 (Fla.

1st DCA 1999).

Coverage when someone pushed plaintiff to the ground to prevent injury from car out of

control. Arnold v. South Carolina Ins. Co., 425 So.2d 1164 (Fla. 2d DCA 1983).

Coverage when plaintiff dove out of way of errant vehicle. Amica Mut. Ins. Co. v.

Cherwin, 673 So.2d 112 (Fla. 4th DCA 1996).

Coverage when plaintiff was injured in mobile home struck by vehicle. Doyle v. Faford,

517 So.2d 778 (Fla. 5th DCA 1988).

Coverage when driver was stopped in traffic infraction and thereafter injured while being

arrested. Hernandez v. Protective Cas. Ins. Co., 473 So.2d 1241 (Fla. 1985).

Coverage was found when police shot the owner of an automobile who was sitting in his

driveway with the engine running and headlights on. Turk v. United Services Automobile Ass’n,

25 Fla. L. Weekly Supp. 980, 981 (Hillsborough Cty. Ct. 2018).

CASES WHERE COVERAGE NOT FOUND:

Coverage denied when plaintiff was injured while removing father’s gun from vehicle to

take the vehicle in for service. Watson v. Watson, 326 So.2d 48 (Fla. 1976).

Coverage denied when injuries suffered by the insured when he was attacked while

sitting in the automobile after having brought his daughter home. Feltner v. Hartford Acc. &

Indem. Co., 336 So.2d 142 (Fla. 2d DCA 1976) (concluding injury did not arise out of the

ownership, maintenance or use of the motor vehicle).

Coverage denied when boys were riding on back of car and one boy, with gun, fell off the

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truck. As the boy got up and walked towards car he fell again and the gun went off injuring

another boy in the eye. Stonewall Ins. Co. v. Wolfe, 372 So.2d 1147 (Fla. 4th DCA 1979).

Coverage denied when victim who was not in car was involved in a dispute with

interlopers who were in car and was bitten by dog which was in the interlopers’ car.

Underwriters Guar. Ins. Co. v. Therrien, 640 So.2d 234 (Fla. 4th DCA 1994).

C. Persons Covered

Some PIP lawsuits hinge on whether the person filing the claim is actually covered by

the insurance policy at issue. In such a case, the jury may be asked to decide the disputed

facts underlying that determination.

Each PIP policy must cover the “named insured, relatives residing in the same household,

persons operating the motor vehicle, and other persons struck by the motor vehicle and suffering

bodily injury while not an occupant of a self-propelled vehicle.” Fla. Stat. 627.736(1) (2015).

Because “self-propelled” is not defined in the statute, whether a vehicle is “self-

propelled” is determined by considering those terms as they are ordinarily understood. In

making a determination, the court must consider the “features and characteristics” of the vehicle,

and it is possible that ultimately it is a fact question for the jury to determine. GEICO Gen. Ins.

Co. v. Delarosa, 27 Fla. L. Weekly Supp. 1003, 1006 (16

Cir. App. 2019) (trial court could not

determine at summary judgment whether a particular scooter was “self-propelled” when the

evidence did not establish the features and characteristics of the scooter).

Exceptions:

1. Using the owner’s vehicle without the owner’s “express and implied consent.” Fla. Stat.

627.736(2)(a) (2015).

2. Intentional or felonious acts. Id. 627.736(2)(b).

3. Relatives domiciled in household who own a motor vehicle that is required to be insured.

Id. 627.736(4)(e)(3).

Who is a “relative”? A “relative of any degree by blood or marriage who usually makes

her or his home in the same family unit, whether or not temporarily living elsewhere.”

Fla. Stat. 627.732(6). Some insurance companies expand the meaning of “relative” to

include others, such as wards or foster children.

D. Inoperable Vehicle

Under general interpretation of the PIP statute, an injured party cannot claim benefits

under another person’s policy if the injured party owns an “operable” motor vehicle. In such

an instance, the injured party must make the claim directly to his or her own insurer. If the

injured party fails to have the required coverage, then the claim is not payable. On occasion

then, an issue may arise in a PIP case whether the injured party has a vehicle that is

“operable.”

The issue of operability has long been a part of PIP jurisprudence when determining

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whether a vehicle should be insured. See RUSSEL LAZEGA, FLORIDA MOTOR VEHICLE NO-FAULT

LAW §1:6(b)(5) (2016-17 ed.) (“inoperable” vehicles do not have to be insured; providing a list

of factors to consider for determining whether a vehicle is “inoperable”). However, the Eleventh

Circuit in its appellate capacity casts some doubt on the continuing viability of the operability

analysis. See South Miami Health Center, Inc. v. State Farm Mutual Auto. Ins. Co., 27 Fla. L.

Weekly Supp. 853 (11

Cir. App. 2019) (holding that the proper analysis is whether the vehicle

has been operated on the roads of the State during the period of registration, not whether the

vehicle is operable).

Consistent with the South Miami Health Center holding, there is an argument that the

issue is really whether the vehicle is actually “operated” on the roads of the state, not whether the

vehicle itself is “operable.” The reported appellate cases on this issue all date back to 1988 and

before. Prior to 1983, the language of the statute required registration and insurance for vehicles

being “maintained in this state.” Fla. Stat. §320.02(1) (1981). The Legislature deleted this

phrase from the statute in 1983. 1983 FLA. LAWS ch. 83-318, §4. Therefore, for automobile

accidents occurring prior to the effective date of the amendment, the courts were dealing with a

different statute than we are dealing with today.

Nevertheless, the South Miami Health Center holding appears to contravene controlling

appellate rulings. There are two reported appellate cases that involved the issue of “operability”

based on the language of the amended statute. See State Farm Mutual Automobile Ins. Co. v.

Johnson, 536 So.2d 1089, 1092 (Fla. 4

DCA 1988) (appellate court upheld directed verdict that

vehicle did not need to be insured because it was not “operable”); Quanstrom v. Standard

Guaranty Ins. Co., 504 So.2d 1295, 1297 (Fla. 5

DCA 1987) (appellate court determined that

change in statute meant that the focus now is whether the vehicle is actually being driven or

operated, not whether it is “operable”). All previous reported cases appear to involve accidents

that occurred before the statute changed. Nevertheless, it appears that the underpinning of these

previous decisions is the language of the previous version of the statute that required registration

and insurance for vehicles that were not merely “operated” on the roads, but also “maintained”

for use on the roads, a requirement that was deleted from in 1983. See Tapscott v. State Farm

Mutual Automobile Ins. Co., 330 So.2d 475, 477 (Fla. 1

DCA 1976). Trial courts, however,

have continued to look to the issue of operability to determine whether a vehicle needs to be

registered, and therefore insured. See, e.g., Six Doctors Medical Center v. Progressive American

Ins. Co., 16 Fla. L. Weekly Supp. 349 (Broward Cty. Ct. 2009); Reidy v. Metropolitan Cas. Ins.

Co., 13 Fla. L. Weekly Supp. 1076 (Palm Beach Cty. Ct. 2006); Hillery v. Lyndon Property Ins.

Co., 10 Fla. L. Weekly Supp. 656 (St. Lucie Cty. Ct. 2003).

Based on the change of the statute, as well as the Quanstrom decision, it appears that an

argument that the post-1983 cases were wrongly decided. Nevertheless, the Johnson case, which

recognized the vitality of the “operability” analysis post-amendment is a decision of the Fourth

District Court of Appeal which considered the Quanstrom decision and more importantly which

binds the state trial courts. 536 So.2d at 1092. (The reported trial level decisions noted above

are also all from County Courts within the jurisdiction of the Fourth District Court of Appeal.)

A person injured in accident, while a passenger in a car owned by another, may recover

benefits from that car’s insurer, when the injured person has an automobile but it is inoperable

due to pending repairs.

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Florida Statute 627.736(4)(e) (2014) provides that an insurer shall pay PIP

benefits to an injured person while occupying an insured vehicle; however,

only if the insured person is not the owner of a vehicle, as to which coverage

is required under 627.730 through 627.7405.

Florida Statute 627.733 defines motor vehicle as one which needs to be registered

and insured.

Florida Statute 320.01(1) (2014) defines “motor vehicle” as a vehicle (a) while

operated on the streets and highways as a (b) means of transporting people or

property and (c) propelled by other than muscular power.

Florida Statute 320.02(1) (2014) provides that every owner of a vehicle which is

operated or driven on the roads of this State shall register the vehicle in the

State. No registration is required for any motor vehicle which is not operated

on the roads of this State during the registration period.

In Bedgood v. Hartford Accident & Indemnity Company, 384 So.2d 1363 (Fla. 1

DCA

1980), the appellate court noted that “mere inoperability” of the vehicle is not sufficient to

determine whether a vehicle is “inoperable” for purposes of having no insurance coverage.

Rather, the fact-finder must consider the length of time of inoperability before the accident, the

extent of the vehicle’s inoperability, whether the vehicle was placed in storage, and whether the

owner intended to return the vehicle to the public streets.

In Quanstrom v. Standard Guarantee Insurance Company, 504 So 2d 1295 (Fla. 5th

DCA 1987), the plaintiff’s insurance lapsed seven months before the accident, although the

plaintiff drove the vehicle “uninsured” for some five months when the clutch cable broke.

Registration expired one month after the clutch failed. Plaintiff was injured one month later

while a passenger in another vehicle. The court found that she could recover PIP benefits as her

car was inoperable.

In Fortune Insurance Company v. Oehme, 453 So.2d 920 (Fla. 5th DCA 1984), the

plaintiff was struck while walking on the side of the road. At the time he owned a truck, which

was uninsured but was registered and licensed. The truck was inoperable due to a clutch failure.

Plaintiff could not afford to repair the vehicle. It was put in storage in the back yard of his

residence. The Court allowed the plaintiff to recover PIP benefits because the vehicle was

inoperable.

In Ward v. Florida Farm Bureau Casualty Insurance Company, 375 So.2d 898 (Fla. 1st

DCA 1979), the plaintiff’s car was in the shop for repairs for a blown engine but the plaintiff did

not have money to pay for the repairs. The plaintiff sustained injuries while driving friend’s

vehicle. Plaintiff successfully recovered PIP benefits under his friend’s policy.

In State Farm Mutual Automobile Insurance Company v. Johnson, 536 So.2d 1089 (Fla.

4th DCA 1988), the plaintiff’s truck had a defective clutch and had the transmission removed to

fix the clutch. Plaintiff’s insurance had lapsed and Plaintiff had driven uninsured for a period of

time prior to the clutch failure. Plaintiff recovered PIP benefits from his friend’s insurance

policy.

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In Sherman v. Reserve Insurance Company, 350 So.2d 349 (Fla. 4th DCA 1977), the

plaintiff’s car was registered but not operable due to mechanical failure. The vehicle was not

running and was not insured at the time that the plaintiff was injured while driving a friend’s car.

The plaintiff recovered PIP benefits from the friend’s insurance company.

In Reidy v. Metropolitan Casualty Insurance Company, 13 Fla. L. Weekly Supp. 1076a

(Palm Beach Cty. Ct. 2006), the trial court entered summary judgment for the insurer when the

injured party owned an uninsured vehicle which had a dead battery and a flat tire. The trial court

found that a vehicle requiring only minor repairs is not considered an “inoperable” vehicle.

E. Amendments to Statute

Generally, the statute in effect at the time the insurance contract is originally executed

governs substantive issues, and therefore amendments to the statute may not be retroactively

applied to existing policies.

III. PRE-SUIT ACTIVITY

A. Notice of Loss/ Claim

In a PIP case, an insurer is not obligated to process or pay any claim until it receives a

copy of a properly completed bill. In other words, failure to submit a proper bill is fatal to the

claim.

Bills must be submitted to insurer on a “properly completed Centers for Medicare and

Medicaid Services (CMS) 1500 form, UB 92 forms, or any other standard form approved” by the

State. Fla. Stat. 627.736(5)(d) (2014). Most commonly, these forms are referred to as “HCFA”

forms. An insurer is not obligated to pay any claim until submitted on the approved form. State

Farm Mutual Automobile Ins. Co. v. Gonzalez, 178 So.3d 448, 450 (Fla. 3d DCA 2015) (finding

for insurer when claimant failed to submit her claim on the required statutory form).

B. Disclosure and Acknowledgment Form

The Florida Statutes require a provider to obtain a “disclosure and acknowledgment”

form from each patient in a PIP case. This issue was previously the subject of much litigation

in the trial courts, but the appellate court has now established that failure to obtain this form

is not fatal to a claim for benefits (unlike the medical bill discussed in the above sub-section).

As a result, trial courts now see little of this issue in motion practice.

Under section 627.736(5)(e), each physician must require an insured person, who is

claiming personal injury protection benefits to execute a disclosure and acknowledgement form

at the initial treatment. Section 627.736(5)(e)5 states, “[t]he original completed disclosure and

acknowledgement form shall be furnished to the insurer pursuant to paragraph (4)(b) and may

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not be electronically furnished.”

Section 627.736(5)(e) is not required for services billed by a provider for emergency

services as defined in section 395.002, for emergency services and care as defined in section

392.002 rendered in a hospital emergency department, or for transport or treatment rendered by

an ambulance provider licensed pursuant to part III of Chapter 401.

The dual purposes of the D & A form “are to enhance patient understanding of their

treatment and to discourage fraud by unscrupulous medical providers, especially the submission

of claims for services not actually performed on the patient.” Florida Medical & Injury Center,

Inc. v. Progressive Exp. Ins. Co., 29 So.3d 329, 338 (Fla. 5

DCA 2010). In Florida Medical &

Injury Center, the Fifth District Court of Appeal found that the requirement of notice under

section 627.736(4)(b), and the requirement of a D & A form under section 627.736(5)(e), are

“two distinct statutory duties.” Id. at 337. The court further stated that “[t]here is no language in

paragraph (5)(e) that ever suggests that failure to provide the properly completed form to the

insurer is failure to provide ‘notice of the covered loss’ to the insurer, or that such failure will

render the provider’s bill not payable.” Id. at 338. The court noted, however, that “nothing in

the statute suggests that the submission of a flawless D & A form is a condition to the right to

enforce a claim to payment.” Id. at 341. Finally, the court held: “[i]f the insurer fails to specify

the defect in [the disclosure and acknowledgement] form so it can be rectified as contemplated

by subsection (4); . . . it will be deemed to have waived its objection to payment.” Id.

C. Cancellation of Policy

The issue of cancellation of a PIP policy rarely comes up in a PIP case unless

accompanied by related issue. The issue generally comes up in the context of rescission of a

policy, discussed in the next sub-section. However, cancellation of a policy generally refers to

actions subsequent to cancellation (prospective application), whereas rescission generally

refers to actions before and action an effective rescission (retroactive application).

The general rule is that in order to form the basis of a cancellation of a policy, notice by

the insurer to insured need not be in any particular form in the absence of a statute or policy

provision prescribing such form. The notice of cancellation is sufficient so long as it positively

and unequivocally indicates to the insured that it is the intention of the company that the policy

shall cease to be binding as such upon expiration of a stipulated number of days from the time

when its intention is made known to the insured. Aetna Cas. & Sur. Company v. Simpson, 128

So.2d 420 (Fla. 1st DCA 1961).

A unilateral mistake in calculating the premium does not provide an insurance company

with a reasonable basis for canceling an insurance policy. Auvil v. Nationwide Mut. Fire Ins.

Co., 222 So.2d 46 (Fla. 3d DCA 1969).

“It is presumed that mail properly addressed, stamped and mailed was received by the

addressee.” Berwick v. Prudential Property & Cas. Ins. Co, 436 So.2d 239, 240 (Fla. 3d DCA

1983). “The requirement of showing proper mailing is satisfied by proof of general office

procedures.” Berwick, 436 So.2d at 240.

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D. Rescission

In a PIP case, an insurer will on occasion seek to rescind an insurance policy based on

misrepresentation in the process of applying for a policy. The most common alleged

misrepresentation is the number of persons of driving age (generally teenagers) residing in a

household. Importantly, an effective rescission eliminates all coverage retroactively, even if

the omitted person is not involved in the accident or claim in any respect. Upon rescission, the

insurer must return all premiums paid under the policy. Failure to do so, however, is not an

avoidance of misrepresentation. Rather, the formerly insured party will have the right to seek

restitution of those premiums.

Section 627.409 clearly confers upon an insurer the right to rescind an insurance policy in

those instances in which material misrepresentation is discovered. Nationwide Mut. Fire Ins. Co.

v. Kramer, 725 So.2d 1141 (Fla. 2d DCA 1999); United Auto. Ins. Co. v. Quiroga, 12 Fla. L.

Weekly Supp. 919b (11

Cir. App. 2005). Material misrepresentation may render an entire

policy null and void. Id.

Florida case law is clear that where an insurance company seeks to rescind a voidable

policy, it must give notice of rescission, and it must return or tender all premiums paid within a

reasonable time after discovery of the grounds for voiding the policy. Gonzalez v. Eagle Ins. Co.,

948 So.2d 1, 3 (Fla. 3d DCA 2006); however, insurer's failure to return unearned premiums did

not waive right to deny coverage based on omission in policy application. Id.

When a policy is rescinded, coverage may be barred as to the insured as well as to the

precluded household residents. Penaranda v. Progressive American Ins., 747 So.2d 953 (Fla. 2d

DCA 1999); Progressive American Ins. Co. v. Papasodero, 587 So.2d 500 (Fla. 2d DCA 1991);

United Auto. Ins. Co. v. Salgado, 22 So.3d 594 (Fla 3d DCA 2009), (the right of rescission

contained in section 627.409, Florida Statutes (2003), applies to PIP insurance contracts) The

“law is well settled that if the misrepresentation of the insured were material to the acceptance of

the risk by the insurer or, if the insurer in good faith would not have issued the policy under the

same terms and premium, then rescission of the policy by the insurer is proper. Id. (citing New

York Life Ins. Co. v. Nespereira, 366 So.2d 859, 861 (Fla. 1979)).

In the context of an omitted resident – as when the insured omits a family member from

the insurance application – the insurance company may decline coverage as to any loss involving

that family member instead of rescinding the entire policy, in which case no return of a premium

is required. Priority Medical Rehabilitation, Inc. v. United Automobile Ins. Co., 227 So.3d 672

(Fla. 3d DCA 2017).

One Circuit Court has held that the use of a vehicle for Uber/Lyft purposes constitutes a

“commercial” or “business” use under the policy, and the failure to disclose such use when

requested constitutes a material misrepresentation under the policy entitling the insurer to rescind

the policy. Imperial Fire & Cas. Ins. Co. v. Pierla, 28 FLW Supp. 828 (18th Cir. Ct. Oct. 30,

2020).

E. Examination Under Oath (EUO)

Often, an insurer will require the claimant to sit presuit for an “examination under

13

oath,” commonly referred to as an EUO. Effective 2012, the insurer must have a reasonable

basis for requesting an EUO. Attendance at a properly noticed EUO is a condition precedent

to receiving benefits under a PIP policy. As a result, trial courts will often see this issue raised

as an affirmative defense by the insurer.

The insured is required to sit for the examination under oath (EUO) as a predicate to the

filing of the suit when the policy so provides. Fla. Stat. 627.736(6)(g) (2015). The insurer must

have a reasonable basis for requesting an EUO, and may not do so as a matter of routine practice.

The scope of questioning includes questions that are “relevant or could reasonably lead to

relevant information.” Compliance with the EUO requirement is a condition precedent to

receiving benefits.

For policies issued prior to the statutory amendment in 2012, the Florida Supreme Court

ruled that an insured is not required to sit for an EUO as a condition precedent to coverage.

Nunez v. GEICO General Ins. Co., 117 So.3d 388 (Fla. 2013).

An insured may have court reporter or photographer present for the examination under

oath or IME. U.S. Sec. Ins. Co. v. Cimino, 754 So.2d 697 (Fla. 2000). Any video or

photographs taken by the insured’s attorney would be considered work product and not subject to

production unless the insured will be using the video or photographs as evidence. Medina v.

American Airlines, 209 So.3d 61, 62 (Fla. 1

DCA 2016).

A provider who accepts an assignment of PIP benefits does not have to sit for

examination under oath. State Farm v. Shaw, 37 So.3d 329 (Fla. 5

DCA 2010).

Even though an EUO is not an affidavit or deposition, it holds the same evidentiary value

and can be used as an admission against party opponent when offered by the insurer against a

provider. Star Cas. Ins. Co. v. Eduardo J. Garrido, D.C., P.A., 25 Fla. L. Weekly Supp. 502

(11

Cir. App. 2017).

F. Independent Medical Examination (IME)

In addition to, or in lieu of, an EUO, the insurer may request that the claimant submit

to an “independent medical examination,” or “IME,” to evaluate whether to continue paying

benefits on the claim prospectively. The statute does not use the word “independent,” and

provider attorneys will often object in limine or at trial to use of the word because to them it is

not truly an “independent” endeavor. A common practice is developing for trial courts to

refer to these as “compulsory” medical examinations. If an insurer chooses to require an

IME, it may select a physician of its choosing and at its expense who generally must practice

within 10 miles of the claimant’s residence. If a claimant “unreasonably” fails to appear at

an IME, the insurer has a defense to “subsequent” (future) benefits. A rebuttable

presumption of unreasonableness results if the claimant fails to appear at two examinations.

An insurer has the right to ask a claimant to submit to an independent medical

examination (IME) at the insurer’s expense to determine whether further treatment is necessary.

Fla. Stat. 627.736(7) (2015).

14

The intent of an IME is to provide the insurance company with an opportunity to evaluate

whether the benefits should be paid. Tindall v. Allstate Ins. Co., 472 So.2d 1291 (Fla. 2d

DCA

1985), rev. denied, 484 So. 2d 10 (Fla. 1986).

An insured may have attorney, court reporter or photographer present for the examination

under oath or IME. U.S. Sec. Ins. Co. v. Cimino, 754 So.2d 697 (Fla. 2000). Any video or

photographs taken by the insured’s attorney would be considered work product and not subject to

production unless the insured will be using the video or photographs as evidence. Medina v.

American Airlines, 209 So.3d 61, 62 (Fla. 1

DCA 2016).

An insured’s attendance at a medical examination is not a condition precedent to a claim

for PIP benefits. Custer Medical Center v. United Automobile Insurance Company, 62 So.3d

1086 (Fla. 2010). However, it can be used to cutoff “future” benefits. An insured’s

unreasonable failure to attend an IME is an issue of fact for the trier of fact, the burden of

pleading and proof of which is upon, and never shifts from, the insurer, and such unreasonable

failure to appear relieves the insurer of liability to pay for expenses incurred, if any, subsequent

(prospective) to the date at which the insured unreasonably failed to appear.

G. Peer Review (“Paper Review”)

The Florida PIP statute requires an insurer to obtain “a valid report by a Florida

physician” before “withdrawing” benefits. Because these “reports” do not involve the

physical examination of the claimant, they are commonly referred to as “Peer Review” or

“Paper Review” because the consulted physician is basing his or her opinion solely on the

review of the treating provider’s records. Because of the fairly recent development of a body

of appellate case law, this issue is no longer vigorously litigated. This is because the statute,

as interpreted by the courts, applies only to those infrequent cases in which an insurer initially

approves payment of benefits, and thereafter decides to withdraw or terminate benefits. It does

not apply to cases in which an insurer denies a claim outright.

In United Auto. Ins. Co. v. Viles, 726 So.2d 320 (Fla. 3d DCA 1998), the Third District

Court of Appeal held that prior to an insurer reducing, denying, or withholding PIP benefits, the

insurer must obtain a report by a physician licensed under the same chapter as the treating

physician stating that the treatment was not reasonable, related, or necessary.

In State Farm Mut. Auto. Ins. Co. v. Rhodes & Anderson, 18 So.3d 1059 (Fla. 2d DCA

2008), the Second District Court of Appeal determined that the valid report requirement exists

only in “circumstances involving the complete termination of payments to a physician” rather

than the denial of a claim.

In United Auto. Ins. Co. v. Santa Fe Med. Ctr., 21 So.3d 60 (Fla. 3d DCA 2009), the

Court found that “[627.736(7)(a)] does not require the insurer to obtain a valid report to deny

payment of a claim. Subsection (7)(a) only requires that a valid report be obtained when further

benefits are withdrawn without the consent of the injured person.”

Following the release of Santa Fe, the Third District Court of Appeal reaffirmed this

principal in Partners in Health Chiropractic v. United Auto. Ins. Co., 21 So.3d 858 (Fla. 3d DCA

15

2009), United Auto. Ins. Co. v. Garrido a/a/o Maria Garcia, 22 So.3d 120 (Fla. 3d DCA 2009),

and United Auto. Ins. Co. v. Total Rehab & Medical Ctr., Inc., 21 So.3d 68 (Fla. 3d DCA 2009).

Partners in Health explicitly reaffirms the following principles: (1) a claim may be

rejected more than thirty days after submission to the insurer notwithstanding being overdue; (2)

where no payment whatsoever has been made and the insurer rejects all claims or bills from a

particular provider or treating physician as being unreasonable, unrelated or, unnecessary,

section 627.736(4)(b) applies; (3) where some but not all claims or bills from a particular

provider or treating physician are being rejected or reduced as unreasonable, unrelated, or

unnecessary, section 627.736(4)(b) likewise applies; (4) section 627.736(4)(b) requires only that

an insurer have reasonable proof that a rejected claim or claims (or bill or bills) are

unreasonable, unrelated, or unnecessary, while a section 627.736(7)(a) report may be utilized

for this purpose, such a report is not required for this purpose; (5) where an insurer withdraws

(that is, terminates) payments being made to a treating physician or withdraws or terminates

authorization for further treatment by a treating physician, a section 627.736(7)(a) report must

first be obtained; (6) such a section 627.736(7)(a) report does not have to be predicated on

either a physical examination by the reporting physician or on a physical examination conducted

on behalf of the insurer (an IME) but may be premised on review of the records of the insured’s

treating physician.

In Central Magnetic Imaging Open MRI of Plantation v. State Farm Fire and Casualty

Insurance Company, 22 So.3d 782 (Fla. 4

DCA 2009), the court also held that the “valid

report” requirement set forth in section 627.736(7)(a) does not require an insurer to order an IME

before denying a claim for benefits. The plain language of the statute permits a peer review

report to be based on review of treatment records. See also United Auto. Ins. Co. v. Hollywood

Injury Rehab. Ctr., 27 So.3d 743 (Fla. 4

DCA 2010); United Auto Insurance Company v.

Merkle, 32 So. 3d 159 (Fla. 4

DCA 2010).

H. Explanation of Benefits (EOB)

The mechanism by which an insurer generally advises the claimant of the insurer’s

decision on a claim is commonly referred to as an “explanation of benefits (EOB)” or an

“explanation of review (EOR).” These generally come into play in discovery issues between

the parties, as they purportedly set forth the precise reason(s) the insurer is denying or

reducing the claim.

In United Automobile Insurance Company v. A 1st Choice Healthcare Systems, 21 So.3d

124 (Fla. 3d DCA 2009), the Third District Court of Appeal determined that an insured does not

have a private right of action against his or her insurer for an insurer’s failure to provide an

explanation of benefits. The Court found that “it is clear there is neither a requirement nor a

deadline for a personal injury protection insurer to respond to a request for payment Thus, (1)

the provision of the PIP statute providing that PIP benefits are to be paid by insurer within 30

days of receiving written notice of a covered loss does not require or provide a deadline for an

insurer to respond to a request for payment of benefits, and (2) the statute providing for PIP

benefits does not afford a private right of action against insurer for failing to provide an

explanation of benefits (EOB) to insured within 30 days of receiving claim.

16

I. Box 31 (License Number)

The required HCFA contains a place, box 31, for the provider to put its professional

license number. In the past, the failure to provide this information, or to provide it correctly,

resulted in much litigation from insurer’s pressing the issue that the provider had not provided

a “properly completed bill.” This issue has all but disappeared as a result of a decision out of

the Fourth District Court of Appeal.

In USAA Casualty Insurance Company v. Pembroke Pines MRI, Inc., 31 So.3d 234 (Fla.

DCA 2010), the appellate court concluded that an MRI provider is not required to place a

professional licensure number in Box 31 of the HCFA form.

J. Amount Paid

A PIP insurer must pay bills for related and medically necessary treatment if the

charges are reasonable. It is possible that both the provider’s charge and the insurer’s desired

reimbursement, albeit different amounts, are both reasonable. However, under the statutory

scheme, if the provider’s charge is reasonable, that is what the insurer must pay. An insurer

may challenge the reasonableness of the provider’s charges at any time, even after it has paid

the charges.

An insurer must pay a provider’s charge if it is reasonable. It does not matter if the

insurer’s proposed reimbursement would likewise be deemed reasonable. State Farm Mutual

Automobile Ins. Co. v. New Smyrna Imaging, LLC, 22 Fla. L. Weekly Supp. 508, 509 n.1 (7

Cir. App. 2014).

Prior to the enactment of the 2008 statute, Florida law required every PIP policy to pay

80% of all reasonable expenses for medically necessary medical care and further required that no

charge would be in excess of what the provider customarily charged for like services. Fla. Stat.

§§627.736(1) and (5). The pre-amendment statute identified several factors that “may” be

considered in determining the reasonableness of a provider’s charge. The 2008 amendments

retained the list of factors in subsection 5(a)(1) and added subsection 5(a)(1)(a)-(f), which

provides the insurer may limit reimbursement to 80% of a statutory fee schedule for specified

services and subsection (f) provides:

For all other medical services, supplies, and care, 200 percent of the allowable

amount under the participating physician’s schedule of Medicare Part B.

As a result of the new PIP statute, there are now two alternative methods for paying

health care charges, the old method of paying 80% of all reasonable expenses for medically

necessary services, or the new statutory fee schedule set forth in subsection 5(a)(2)(a)-(f).

However, recent decisions hold that an insurer must expressly elect to limit payments to fee

schedule in its policy. See Geico Indemnity Co. v. Virtual Imaging Services, Inc., 141 So.3d 147

(Fla. 2013); Kingsway Amigo Ins. Co. v. Ocean Health, Inc., 63 So.3d 63 (Fla. 4

DCA 2011).

In Kingsway, the appellate court quoted with approval the trial court order, “[i]f the

[insurer] wanted to take advantage of the permissive fee schedule, it should have clearly and

unambiguously selected that payment methodology in a manner so that the insured patient and

17

health care providers would be aware of it.”

The election of the fee schedule option must be “clearly and unambiguously” made in the

policy if the insurer desires to limit payments in accordance with the Medicare fee schedules.

Progressive Select Ins. Co. v. Emergency Physicians of Central Florida, LLP, 187 So.3d 898

(Fla. 5

DCA 2016).

An issue arising from this dichotomy is: what is a “clear and unambiguous” election?

Insurers use varying provisions in the policy, and trial and appellate courts are split. But the test

should be that as stated in the Kingsway and Virtual Imaging decisions: did the insurer choose in

a manner that the patient and health care providers are clearly aware of which method was

elected?

The Fourth District Court of Appeal previously held that language which merely provides

that payment would be “subject to” fee schedules does not constitute a clear and unambiguous

election. Orthopedic Specialists v. Allstate Insurance Company 177 So.3d 19 (Fla. 4

DCA

2015). The Second District Court of Appeal disagreed, holding that language which gives

“simple notice” that payment would be “subject to” fee schedules is sufficient to put the patient

on notice that the payments would be limited by the Medicare fee schedule cap. Allstate

Indemnity Company v. Markley Chiropractic & Acupuncture, LLC, 226 So.3d 262 (Fla. 2d DCA

2016). The Third District Court of Appeal similarly disagreed with the Fourth DCA, finding that

a PIP policy sufficiently limited liability stating, “Any amounts payable under this coverage shall

be subject to any and all limitations, authorized by section 627.736, or any other provisions of

the Florida Motor Vehicle No-Fault Law [ . . . ], including but not limited to, all fee schedules,”

and that the language was a clear and unambiguous election of the 200% Medicare fee schedule

methodology of reimbursement. Florida Wellness & Rehabilitation v. Allstate Fire & Cas. Ins.

Co., 201 So.3d 169 (Fla. 3d DCA 2016).

On January 26, 2017, the Florida Supreme Court issued its decision in Allstate Ins. Co. v.

Orthopedic Specialists, 212 So.3d 973 (Fla. 2017). Previously, in Geico Gen. Ins. Co. vs. Virtual

Imaging Service, Inc., 141 So.3d 147 (Fla. 2013), the Court found that there are two

reimbursement methods permitted under the 2008 amendments to the PIP statute, and that the

PIP statute “offered insurers a choice in dealing with their insureds as to whether to limit

reimbursements based on the Medicare fee schedules or whether to continue to determine the

reasonableness of provider charges for necessary medical services rendered to a PIP insurer

based on the factors enumerated in section 627.736(5)(a)(1)” (emphasis added). The Supreme

Court further held that “a PIP insurer cannot take advantage of the Medicare fee schedules to

limit reimbursements without notifying its insured by electing those fee schedules in its policy.”

In Orthopedic Specialists, the Florida Supreme Court reaffirmed that the PIP statute

provides two different methodologies for calculating reimbursements for medical expenses. 212

So.3d at 976. It also reaffirmed that a PIP insurer must make this election in the policy. Id. The

linchpin of the Orthopedic Specialists decision was that Allstate’s policy set forth its choice,

rather than leaving itself an option to pay under either of the two methodologies. The Allstate

policy language, when construed as a whole, was “mandatory in nature” that Allstate would be

using the 200% of Medicare methodology. Id. at 978. As the Supreme Court noted, “Allstate’s

policy endorsement states in mandatory language that benefit payments must or will be made in

accordance with such [Medicare calculation] methodology.” Id. at 979. In making its ruling, the

Florida Supreme Court approved the decision of the First District Court of Appeal in Allstate

18

Fire & Casualty Insurance v. Stand-Up MRI of Tallahassee, P.A., 188 So.3d 1 (Fla. 1

DCA

2015).

The Eleventh Circuit Court sitting in its appellate capacity has ruled that an insurance

policy cannot provide for the insurer to make the choice alternately. In other words, it cannot

use a reasonableness analysis for one bill, and then use the 200% of Medicare methodology for

another bill. Fernandez Rehabilitation Corp. v. Progressive American Ins. Co., 27 Fla. L.

Weekly Supp. 593 (11

Cir. App. 593). This issue is currently before the Florida Supreme

Court.

The statute has provided the insurer a safe harbor: if it obtains “approval” of the Office of

Insurance Regulation (OIR) of a policy form allowing it to elect the 200% of Medicare option,

such approval amounts to a per se finding that the election was properly made. Fla. Stat.

627.736(5)(a)(5) (2015). However, merely obtaining a stamp of “APPROVED” on a policy

submission, without more, is unlikely to meet this requirement. Rather there needs to be

something specific in the submission or the approval that the 200% election is what is being

approved. See MR Services I v. Allstate Insurance Company, 23 Fla. L. Weekly Supp. 637

(Broward Cty. Ct. 2015); Neurology Partners, P.A. v. State Farm Mutual Automobile Ins. Co.,

23 Fla. L. Weekly Supp. 550 (Duval Cty. Ct. 2015).

If the insurer has not properly elected the 200% Medicare option, it is possible under the

statute to use “fee schedules” as part of the overall analysis to determine whether a charge is

reasonable under the old “reasonableness” methodology. Currently, the issue of the type of fee

schedules that can be used for this purpose is being hotly contested in the trial courts, with

divergent rulings across the State.

Because the statute requires only that “reasonable” expenses be paid, an insurer is not

required to pay a provider’s entire amount billed solely because the insurer failed to specify in its

policy that it was limiting payment to a “reasonable amount.” United Automobile Ins. Co. v.

Marc K. Weinberg, D.C., P.A., 23 Fla. L. Weekly Supp. 212 (11

Cir. App. 2015) (policy merely

provided that insurer “will pay eighty percent of all medically necessary expenses” without

further specifically limiting those expenses to a reasonable amount).

A provider may not bill an insurer a charge that “exceeds the amount [it] customarily

charges for like services.” Fla. Stat. §627.736(5)(a) (2018). Providers having a formal discount

program for cash payers, having a separate fee schedule for cash payments, or having formal

agreements setting lower charges for certain entities, have all been found by at least some courts

to violate this statute. However, merely giving a patient a break on a case-by-case basis has been

held not to violate the statute. Miami Beach Natural Sports Medicine, Inc. v. United Automobile

Ins. Co., 28 Fla. L. Weekly Supp. 646 (Miami-Dade Cty. Ct. 2019).

A PIP insurer may contest reasonableness at any time, even after it has mistakenly paid a

claim pursuant to the Medicare fee schedules. As a result, the trial court erred when it prohibited

insurer from taking deposition of provider’s corporate representative to inquire into the

reasonableness of the provider’s charges after the insurer had partially paid the claim. Coral

Gables Chiropractic PLLC v. United Automobile Ins. Co., 199 So.3d 292 (Fla. 3d DCA 2016)

(dicta). See also Progressive Select Ins. Co. v. Emergency Physicians of Central Florida, LLP,

187 So.3d 898 (Fla. 5

DCA 2016) (although Progressive failed to “clearly and ambiguously”

select the fee schedule option in its policy, it was nevertheless entitled to challenge the provider’s

19

charges under a pure reasonableness analysis and to engage in discovery on that issue); State

Farm Mutual Automobile Ins. Co. v. Bruce Chiropractic & Comprehensive Care LLC, 24 Fla. L.

Weekly Supp. 472 (5

Cir. App. 2016).

Plaintiffs will generally move for summary judgment on the issues in a PIP case. Part of

the provider’s prima facie case is to show that the charges are reasonable. A question arises how

a provider can establish this at summary judgment, and whether an insurer’s contravening

summary judgment evidence is sufficient to establish a disputed issue of material fact on the

reasonableness of the provider’s charges. If the provider establishes its prima facie case by

affidavit, it will be entitled to summary judgment if the insurer fails to file any contravening

summary judgment evidence. State Farm Mutual Automobile Ins. Co. v. Robert Rivera-Morales,

M.D., 26 Fla. L. Weekly Supp. 455, 456 (11

Cir. App. 2018) (rejecting the argument that

reasonableness is always a question for the jury). Beyond this, however, the law is a bit murky.

For instance, in Miami-Dade County, the circuit appellate court typically finds most defense

affidavits to be sufficient to contravene the plaintiff’s motion when the affiant provides any

evidence to dispute that the charges are reasonableness. In many other counties, including

Broward, the circuit appellate court has routinely upheld the trial court’s rejection of defense

affidavits when the purported expert fails does not have a tie to the County in question, or when

the affidavit is based on “cherry-picked” data.

K. Application of Deductible.

The issue of the application of a deductible to an amount billed is currently being

frequently litigated in the trial courts. The appellate courts issued conflicting opinions, a conflict

which was certified to the Florida Supreme Court. At the end of 2019, the Florida Supreme

Court ruled that a deductible is to be subtracted from the total amount of charges billed before

applying any statutory reimbursement limitations. Progressive Select Ins. Co. v. Florida

Hospital Medical Center, 260 So.3d 219 (Fla. 2018). This decision upheld the ruling of the Fifth

District Court of Appeal in Progressive Select Ins. Co. v. Florida Hospital Medical Center, 236

So.3d 1183 (Fla. 5

DCA 2018). This ruling comports with lower court rulings that addressed

the application of a deductible for policies requiring the “reasonableness” methodology” in

which the courts found the deductible is to be applied to the amount actually billed, and not the

reduced amount deemed by the insurer to be “reasonable.” Physicians Injury Care Center, Inc.

v. Progressive Express Ins. Co., 12 Fla. L. Weekly Supp. 693 (9

Cir. App. 2005). The Fifth

DCA in the Florida Hospital decision rejected arguments that its decision would permit

providers to charge unreasonably high rates for services to ameliorate the effect of a deductible,

citing statutes which forbid medical providers in Florida from charging false, misleading or

fraudulent charges. 43 Fla. L. Weekly at D321.

A contrary view had been taken by the Fourth District Court of Appeal in State Farm

Mutual Automobile Ins. Co. v. Care Wellness Center LLC, 240 So.3d 22 (Fla. 4

DCA 2018). In

this case, the appellate court specifically disagreed with the decision of the Fifth DCA in Florida

Hospital, holding instead that the calculation of the amount due is the first step in the process,

and then the deductible is subtracted from that sum. The Florida Supreme Court rejected the

view of the Fourth DCA.

20

Importantly, both cases dealt with policies in which the fee schedule election had been

made. It is unclear whether the separate reasonableness methodology would have caused either

appellate court to rule otherwise.

IV. PRE-SUIT NOTICE/DEMAND LETTER

As a condition precedent to filing a lawsuit for overdue PIP benefits, the insurer must

be provided by certified mail a written notice of the intent to initiate litigation. This is most

commonly called a “demand letter.” The statute sets forth what items must be in the demand

letter. Two current issues are whether failure to properly provide the notice is curable (that is,

whether the court may stay the action pending compliance or must instead dismiss), and how

much precision is required in the calculation of the “exact amount claimed due.”

The demand letter may not be sent until the claim is “overdue” (if not paid within thirty

(30) days after the insurer is furnished with a notice of the fact of a covered loss and of the

amount of same). Section 627.736 (10), Fla. Stat. (2015).

Effective January 1, 2008, insurers are afforded 30 days to respond to a demand letter.

This was extended from 15 days allowed prior to amendment of the statute. Therefore, the

insured cannot initiate litigation until the 30-day period has elapsed. If within thirty (30) days

after receipt of notice, the overdue claim is paid together with applicable interest and a penalty of

10 percent of the overdue amount, no action may be brought against the insurer. If the demand

involves insurer withdrawal of payment for future treatment not yet rendered, no action if within

thirty (30) days, the insurer agrees to pay for such treatment and to pay a penalty of ten (10)

percent. The insurer is not obligated to pay any attorney’s fees if the insurer pays in accordance

with this provision.

A presuit demand letter is premature where payment is not overdue. MRI Associates of

America v. State Farm Fire and Casualty Co., 61 So.3d 462 (Fla. 4

DCA 2011) (payment was

not overdue where amount demanded on health insurance claim form exceeded the total amount

allowed under statute for MRIs, and the claim failed to specify the exact amount under the

statute). In this case, the statute in existence at the time of the MRI specified how much could be

charged a PIP insurer for an MRI. The provider billed the insurer in excess of this amount. Id.

at 465. It is unclear whether a demand letter will be due when the insurer has properly elected

the Medicare fee schedule methodology, but the provider submits a demand letter for the amount

actually billed. But see Alliance Spine & Joint I, Inc. v. USAA Casualty Ins. Co., 24 Fla. L.

Weekly 555 (Miami-Dade Cty. Ct. 2016) (finding demand letter deficient for failure to make

proper Medicare calculations in the demand letter).

In Menendez v. Progressive Express Ins. Co., 35 So.3d 873 (Fla. 2010), the Florida

Supreme Court held that the statutory presuit notice provision was substantive and, thus, did not

apply retroactively to an insurance policy issued before the statute was enacted. The Court noted

that even where the Legislature has expressly stated that a statute will have retroactive

application, the Supreme Court will reject such an application if the statute impairs a vested

right, creates a new obligation, or imposes a new penalty. The Court held that the statutory right

to attorney’s fees is a substantive right and concluded that because pre-suit demand provisions

permitted delayed payments and altered insured’s right to sue, the legislation imposed

substantive rights.

21

In Bristol West Insurance Company v. MD Readers, Inc., 52 So.3d 48 (Fla. 4

DCA

2010), the court held that a provider of magnetic resonance imaging (MRI) services was not

required to serve automobile insurer with pre-suit notice of its intent to litigate where action was

for declaratory relief concerning the proper calculation for reimbursement of MRI services under

PIP coverage and did not seek any damages from insurer so as to be considered an “action for

benefits” within the meaning of section 627.736(11)(a) governing pre-suit notice.

Rather than dismissing a case for an improper demand letter, the court may stay the

action so that the plaintiff can send a proper demand letter. In Menendez v. Progressive Express

Insurance Company, 35 So.3d 873, 876 n.3 (Fla. 2010), the Florida Supreme Court specifically

declined to address whether a defective demand letter case could be stayed or abated rather than

dismissed. However, if the trial court does abate the case, and the insurer then pays the claim

within the new 30-day demand period, the insurer benefits because it is off the hook for any

attorney’s fees or costs the plaintiff may have incurred for prematurely filing the lawsuit.

If a provider, however, must amend the complaint to include additional dates of service

that occurred after the date of filing of the lawsuit, as required by Fla. Stat. 627.736(15) (2015),

at least one trial court has ruled that an additional demand letter is not required. Occupational &

Rehabilitation Center, P.A. v. Owners Insurance Company, 23 Fla. L. Weekly Supp. 581 (Duval

Cty. Ct. 2015).

The statute requires that the demand letter include “with specificity [ . . . ] the “exact

amount” the provider claims is overdue. Fla. Stat. 627.736(10)(b)(3). The trial courts are

currently widely split on how much precision is required in this calculation. In MRI Associates,

LLC v. State Farm Fire & Casualty Company, 61 So.3d 462 (Fla. 4

DCA 2011), the appellate

court found a demand letter legally insufficient when it included a total amount claimed due that

exceeded the amount the Florida Statutes allowed for the specific diagnostic tool at issue. It is

clear, however, that the statute refers to how much the provider “claims” is due, rather than the

amount that is ultimately determined to be due. Nevertheless, if the provider includes in the

demand letter an amount that has already been paid by the insurer, the result is likely a defective

demand letter. See North Lauderdale Chiropractic Center, Inc. v. State Farm Fire & Casualty

Company, 18 Fla. L. Weekly Supp. 1047 (Broward Cty. Ct. 2011) (demand letter defective when

provider included amounts for treatment that was not rendered); Dr. David S. Muransky, P.A. v.

State Farm Mutual Automobile Insurance Company, 15 Fla. L. Weekly Supp. 99 (Broward Cty.

Ct. 2007) (demand letter defective when it included a claim for amounts that had already been

paid by insurer). At least one county court judge has ruled that the demand letter should take

into consideration any deductible owed. See Florida Injury Longwood LLC v. USAA Cas. Ins.

Co., 25 Fla. L. Weekly Supp. 970 (Orange Cty. Ct. 2017). This decision does not, however,

explain how a provider would know the amount of any deductible and how much of the

deductible is remaining. Substantial compliance with the requirements of a demand letter is

sufficient. State Farm Mutual Automobile Ins. Co. v. Bruce Chiropractic & Comprehensive

Care, PLLC, 24 Fla. L. Weekly 472 (5

Cir. App. 2016).

A provider’s “writing off” of amounts on its internal accounting records does not

necessarily mean that the provider has “written off” this amount for collection. As a result, a

demand letter is not necessarily defective when it includes an amount that has been written off by

the provider for bookkeeping or accounting purposes. Precision Diagnostic of Lake Worth, LLC

v. State Farm Mutual Automobile Ins. Co., 25 Fla. L. Weekly Supp. 137 (15

Cir. App. 2017).

22

V. STATUTE OF LIMITATIONS

The statute of limitations in a PIP action, five years, is rarely raised as a defense as the

case law has been well settled for many years. It is triggered by the insurer’s breach in paying

benefits.

Statute of limitation on the breach of contract action is five years. Fla. Stat. §§ 95.11(2)

(b) and (3)(f).

It begins to run when defendant refuses to pay claim. Donovan v. State Farm Fire and

Cas. Co., 574 So.2d 285 (Fla. 2d DCA 1991).

In PIP cases, the statute of limitations begins to run after defendant breaches its

obligation to pay benefits, not when the accident occurs. State Farm Mut. Auto. Ins. Co. v. Lee,

678 So.2d 818 (Fla. 1996).

Defendant’s sending letter that it would no longer pay bills constitutes “anticipatory

breach” and Plaintiff does not have to wait 30 days to file suit. Peachtree Cas. Ins. Co. v.

Walden, 759 So.2d 7 (Fla. 5th DCA 2000).

PIP insurance policy governed by “contract” law and provisions. Allstate Ins. Co. v.

Kaklamanos, 843 So.2d 885 (Fla. 2003).

Breach occurs when a subsequent bill, following a cut-off, is not timely paid. Rader v.

Allstate Ins. Co., 789 So. 2d 1045 (Fla. 4th DCA 2001).

The Third District Court of Appeal in Fortune Insurance Company v. Pacheco, 695

So.2d 394 (Fla. 3d DCA 1997), held that an insurer may not require a provider to submit all

supporting medical records before the thirty (30) days provided by statute was to commence.

The Supreme Court in Ivey v. Allstate Insurance Company 774 So.2d 679 (Fla. 2000),

found that even “erroneous information” or “unclear information” in the HCFA Form did not toll

the running of the thirty (30) day statute to pay the bill.

The Fifth District Court of Appeal in Palmer v. Fortune Insurance Company, 776 So.2d

1019 (Fla. 5th DCA 2001), held that the defendant was properly notified, to activate the thirty

(30) day window to pay, when Plaintiff sent letter, PIP application, death certificate, and copy of

the funeral bill. A few days later, the plaintiff sent a copy of the ambulance bill. The ambulance

bill, death certificate and PIP application gave incorrect information to the defendant’s insurance

company. The court noted that “[a]lthough incomplete and erroneous information makes

verification of a claim more difficult, the statutory burden remains with the insurer to make a

decision on coverage within thirty (30) days. Of course, if the opposing party provided

erroneous or incomplete information that hindered the insurer’s investigation, that could affect

the reasonable value of the attorney’s fees as determined by the court.” Id. at 1022.

23

VI. PARTIES

The issue of the proper parties to the suit, as well as their standing, is frequently

brought before the court because claims after often assigned from the patient to the provider,

and because both providers and insurers often operate under multiple related names.

A. Name of Plaintiff

A plaintiff corporation, which has been involuntarily dissolved by the Secretary of State

can maintain or defend a suit, as though it had been voluntarily dissolved, as it is authorized to

wind-up its affairs. National Judgment Recovery Agency, Inc. v. Harris, 826 So.2d 1034 (Fla.

4th DCA 2002). An involuntarily dissolved corporation is entitled to maintain a claim that

accrued before it was dissolved. PBF of Fort Myers, Inc. v. D & K Partnership, 890 So.2d 384

(Fla. 2d DCA 2004). Florida law contemplates that any director or officer of the dissolved

corporation, as well as a court-appointed trustee, can act for the dissolved corporation under this

circumstance. Gallo Medical Center v. State Farm Fire & Cas. Co., 24 Fla. L. Weekly Supp. 23

(11

Cir. App. 2016). A plaintiff should be permitted to amend its complaint to correct a

misnomer in its name, as opposed to substituting a new party into the litigation, even if the

misnomer involves incorrectly naming another legally-existing entity. See Florida Wellness &

Rehabilitation Center, Inc. Hialeah v. State Farm Mutual Automobile Ins. Co., 24 Fla. L. Weekly

Supp. 562 (Miami-Dade Cty. Ct. 2016).

B. Name of Defendant

Dismissal of case was improper when the purpose of the rule and proposed amendment to

the pleadings is to correct the name and not to substitute a new party. Emerson Realty Group,

Inc. v. Schanze, 572 So.2d 942 (Fla. 5th DCA 1990).

There is no obligation by the defendant or defendant’s attorney to advise the plaintiff of

whom to sue. Gray v. Executive DryWall, Inc., 520 So.2d 619 (Fla. 2d DCA 1988).

It is the duty of the corporate defendant to reveal by its answer, whether there is a

misnomer or mistake in identity of the parties. Sexton v. Panning Lumber Co., 260 So.2d 898

(Fla. 4th DCA 1972); Stewart v. Preston, 86 So. 348 (Fla. 1920). When “there is no doubt

regarding the identity of the party intended to be named, it is not unfair or unjust to permit the

plaintiff to correct its pleading [ . . . ] because the defendant suffers no prejudice.” Classical &

Innovative Designs, Inc. v. Max South Construction, Inc., 41 Fla. L. Weekly D2578 (Fla. 3d

DCA 2016).

C. Assignment of Benefits (AOB)

Assignments of medical claims from the patient to the provider are permitted under

Florida law. The assignee obtains the same rights to assignee as was possessed by assignor.

Although assignments are generally in writing, in the absence of or defect in a written

assignment, many courts recognize the doctrine of equitable assignment. Generally speaking,

the theory of equitable assignment cannot be raised to defeat a clear, unambiguous written

24

assignment.

An assignment is an act by which a person transfers to another person certain powers or

rights. State Farm Fire and Cas. Co. v. Ray, 556 So.2d 811 (Fla. 5th DCA 1990).

The true test in whether an act is an assignment is the transferor’s intent. That intent is to

be gleaned by their conduct. Giles v. Sun Bank, N.A., 450 So.2d 258 (Fla. 5th DCA 1984);

Boulevard Nat. Bank of Miami v. Air Metal Industries, Inc., 176 So.2d 94 (Fla.1965).

Florida courts recognize the right of patients to assign their benefits and payments under

a policy to their doctor or medical care provider. Moreover, the Third District Court of Appeal

has concluded that “non-medical third parties” may recover PIP benefits. Gables Ins. Recovery,

Inc. v. Seminole Cas. Ins. Co., 10 So.3d 1106 (Fla. 3d DCA 2009) (“In summary, we hold that a

PIP insured may assign an after-loss claim to a third party who is not a medical provider.”).

Under longstanding Florida case law, an insurer cannot restrict a policyholder’s ability to

assign its benefits post-loss. Restoration 1 CFL, LLC v. ASI Preferred Ins. Corp., 189 So.3d 340

(Fla. 5

DCA 2018); Security First Ins. Co. v. Fla. Office of Insurance Regulation, 177 So.3d

627 (Fla. 5

DCA 2017).

The assignee is entitled to pursue a cause of action belonging to the assignor for breach of

the contract, even where breach occurred prior to assignment. Escandar v. Southern

Management & Inv. Corp., 534 So.2d 1203 (Fla. 3d DCA 1988).

When hospital, which treated an injured bicyclist, failed to obtain the patient’s signature

to a separate assignment and failed to obtain the signature of the patient to the HCFA Form, and

no other evidence was presented of assignment, the hospital had no standing to pursue a PIP suit.

Hartford Ins. Co. of Southeast v. St. Mary’s Hosp., Inc., 771 So.2d 1210 (Fla. 4th DCA 2000).

An assignment of benefits, like any other contract, can be revoked by mutual agreement

of the parties. Hartford Ins. Co. of Midwest v. O’Connor, 855 So.2d 189 (Fla. 5th DCA 2003).

In Oglesby v. State Farm Mutual Automobile Insurance Company, 781 So.2d 469 (Fla.

5th DCA, 2001), the Fifth District Court of Appeal provided a good discussion regarding

“ownership” of the PIP claim where an assignment was signed by the patient. See also

Livingston v. State Farm Mut. Auto. Ins. Co., 774 So.2d 716 (Fla. 2d DCA 2000).

If insurance company does not pay, the medical care provider may reassign benefits to

the insured and the insured may pursue claim and thereafter pay the doctor. Oglesby v. State

Farm Mut. Auto. Ins. Co., 781 So.2d 469 (Fla. 5th DCA 2001).

When considering “benefits” under an assignment of benefits, “benefits” includes

“payments” and not just “treatment.” U.S. Sec. Ins. Co. v. Silva, 693 So.2d 593 (Fla. 3d DCA

1997).

A letter from the insured’s attorney requesting an allocation of PIP benefits, so as to

allow a fund for lost wages, is not an assignment, and defendant insurance company may

disregard same and pay hospital bill. Crooks v. State Farm Mut. Auto. Ins. Co, 659 So.2d 1266

25

(Fla. 3d DCA 1995).

A patient can sign an assignment of benefits and still remain liable on doctor’s bill and

such liability does not destroy the assignment. Oglesby v. State Farm Mut. Auto. Ins. Co., 781

So.2d 469 (Fla. 5th DCA 2001).

When a patient assigns claim to a medical care provider, the patient no longer owns the

claim and is precluded from filing suit to claim benefits under the policy. Likewise, a doctor

may be precluded from pursuing money claims versus his patient. Livingston v. State Farm Mut.

Auto. Ins. Co., 774 So.2d 716 (Fla. 2d DCA 2000).

To the extent that the patient pays the bill himself, the patient should receive a

reassignment of his receivable from the medical care provider back to himself so as to satisfy the

“standing” issue.

If doctor does not wish to pursue his claim against the insurance company but would

rather obtain payment on the bill from the patient/insured, the doctor should reassign the benefits

to the patient. Oglesby v. State Farm Mut. Auto. Ins. Co., 781 So.2d 469 (Fla. 5th DCA 2001).

An insured does not have standing to sue insurer where he made an unqualified

assignment of his PIP insurance benefits to a medical provider and never obtained a

reassignment of benefits or revocation of assignment from the medical provider. See United

Automobile Insurance Company v. Otero, 39 So.3d 563 (Fla. 3d DCA 2010).

An equitable assignment may arise in the absence of all the formalities of a written

assignment. Digital Medical Diagnostics v. Allstate Ins. Co., 15 Fla. L. Weekly Supp. 1147 (11

Cir. App. 2008); Advanced 3-D Diagnostics, Inc. v. State Farm Fire & Casualty Company, 23

Fla. L. Weekly Supp. 263 (Orange Cty. Ct. 2015).

D. Plaintiff’s Standing

Specific negative averment required to raise issue of capacity to sue needs to be reflected

in responsive pleading such as Motion to Dismiss, Motion to Drop Improperly Joined Party, or

Motion to Strike. Whittington Condominium Apartments, Inc. v. Braemar Corp., 313 So.2d 463

(Fla. 4th DCA 1975).

An affirmative defense must be pled and not raised for the first time on a motion for

summary judgment. B.B.S. v R.C.B., 252 So.2d 837 (Fla. 2d DCA 1971); Accurate Metal

Finishing Corp. v. Carmel, 254 So.2d 556 (Fla. 2d DCA 1971).

Motion to Dismiss should not be granted where Assignment of Benefits is not attached to

Complaint, as the AOB is outside the record and cannot be relied upon. Instead, Defendant

should raise standing as an affirmative defense. Hartford Insurance Company of the MidWest v.

O’Connor, 855 So.2d 189 (Fla. 5

DCA 2003).

26

VII. PLEADINGS

A. Complaint

A hospital cannot allege or create a “third party beneficiary theory” against an insurance

company in PIP hospital bill litigation. Parkway General Hospital, Inc. v. Allstate Ins. Co., 393

So.2d 1171 (Fla. 3d DCA 1981).

Plaintiff may allege, in complaint, the existence of an insurance policy, without attaching

a copy, if the plaintiff alleges that the defendant is in possession of the same. Id.

The insured may sue insurer to obtain pre-surgery authorization under a PIP policy. The

plaintiff is not required to have surgery first and then to submit a bill, where the defendant told

the plaintiff that they would no longer pay the plaintiff’s bill or authorize the surgery. State

Farm Mut. Auto. Ins. Co. v. Gueimunde, 823 So.2d 141 (Fla. 3d DCA 2002).

The plaintiff is not required to wait thirty (30) days to file suit when the defendant

advised the plaintiff that they would no longer pay for treatment. Peachtree Cas. Ins. Co. v.

Walden, 759 So.2d 7 (Fla. 5th DCA 2000).

B. Amended Complaint

An amended complaint does not “relate back” to the original filing date when it has the

effect of adding a new party to the cause of action. Patel v. School Bd. of Volusia County, 813

So.2d 135 (Fla. 5th DCA 2002); West Volusia Hosp. Authority v. Jones, 668 So.2d 635 (Fla. 5th

DCA 1996); Johnson v. Taylor Rental Center, Inc., 458 So.2d 845 (Fla. 2d DCA 1984); Louis v.

South Broward Hospital Dist., 353 So.2d 562 (Fla. 4th DCA 1977). The relation back doctrine

may be applied to new parties only if the new party is sufficiently related to the original party so

that no prejudice to the new party will occur. Darden v. Beverly Health and Rehabilitation, 763

So.2d 542 (Fla. 5th DCA 2000).

Trial court dismissed plaintiff’s complaint and allowed a described period to file an

amended complaint. Plaintiff filed an amended complaint, but missed the deadline. On appeal,

court ruled that trial court abused its discretion not to allow the amendment and set aside the

dismissal. English v Hecht, 189 So.2d 366 (Fla. 3d DCA 1966).

C. Copy of Bill (HCFA)

Most courts hold that a copy of medical care provider’s bill need not be attached to

complaint, as plaintiff sues for breach of insurance policy or contract. See Fla. R. Civ. P.

1.130(a); N.T.C.A. v. Progressive Express Ins. Co., 9 Fla. L. Weekly Supp. 254a (Broward Cty.

Ct. 2002). There is, however, some authority to the contrary.

27

D. Copy of Insurance Policy

Insured is entitled to copy of insurance policy. The Florida Supreme Court has found that

insurance company’s failure to provide copy of the policy to an omnibus insured excused

compliance with conditions precedent in the policy. Fla. Stat. 627.4137(1)(e) (2014); United

Auto. Ins. Co. v. Rousseau, 682 So.2d 1229 (Fla. 1996).

E. Affirmative Defenses

An affirmative defense must be pled and may not be raised for the first time on a Motion

for Summary Judgment. B.B.S. v R.C.B., 252 So.2d 837 (Fla. 2d DCA 1971); Accurate Metal

Finishing Corp. v. Carmel, 254 So.2d 556 (Fla. 2d DCA 1971).

Specific negative averment required to raise issue of capacity to sue needs to be reflected

in responsive pleading such as Motion to Dismiss, Motion to Drop Improperly Joined Party or

Motion to Strike. Whittington Condominium Apartments Inc. v. Braemar Corp., 313 So.2d 463

(Fla. 4th DCA 1975).

When an insurer contradicts potential defenses by submitting sworn testimony or

admissions, the insurer has waived or abandoned the potential defenses contradicted. Universal

X-Ray Corp. v. Allstate Fire & Casualty Insurance Company, 23 Fla. L. Weekly Supp. 643

(Broward Cty. Ct. 2015).

F. Default

A pleading signed by a non-lawyer is an amendable defect, not a nullity, and the trial

court should allow the party a reasonable time to cure the defect. Torrey v. Leesburg Medical

Center, 769 So.2d 1040, 1046 (Fla. 2000). But see Szteinbaum v Kaes Inversiones y Valores,

C.A., 476 So.2d 247 (Fla. 3d DCA 1985); Rule 7.050(a), Fla. Sm. Cl. R. (if case is proceeding

under small claims rules, no attorney for business entity is required).

Affidavit of defendant must show excusable neglect and not just actions of the insurance

company. Scherer v. Club, Inc., 328 So.2d 532 (Fla. 3d DCA 1976).

The District Courts of Appeal have found that the following actions do not constitute due

diligence or excusable neglect:

Loss of adjustor’s file which was thereafter located five months later. Bayview Tower

Condominium Ass’n, Inc. v. Schweizer, 475 So. 2d 982 (Fla. 3d DCA 1985).

President of company served, who then called a major stockholder who was out of town

and did nothing further. Winter Park Arms, Inc. v. Ackerman, 199 So. 2d 107 (Fla. 4th

DCA 1967).

28

Failure to hire an attorney or to understand the legal consequences of their actions is not

excusable neglect. The defendant, who was not an attorney, filed a letter on behalf of the

defendant’s corporation which denied liability. Joe-Lin, Inc. v. LRG Restaurant Group,

Inc., 696 So.2d 539 (Fla. 5th DCA 1997).

Trial courts have also found actions not constituting due diligence or excusable neglect to

include waiting more than one month after receiving a copy of the final judgment to file a

motion to vacate, Pompano Spine Center, LLC v. State Farm Mutual Automobile

Insurance Company, 22 Fla. L. Weekly Supp. 853 (Broward Cty. Ct. 2015); and the

defendant’s mistaken belief that it did not have to appear at a small claims pretrial

conference, Quantum Imaging Holding, LLC v. Allstate Fire & Casualty Insurance

Company, 19 Fla. L. Weekly Supp. 843 (Broward Cty. Ct. 2012).

Default should be set aside when responsive pleading shows service of pleading was

made before entry of default by clerk. Roche v. Commercial Technical Consultants Co.,

534 So.2d 1243 (Fla. 5th DCA 1988).

Responsive pleading deposited in mail same day as default entered by clerk justifies

setting aside the default. Gibraltar Service Corp. v. Lone and Associates, Inc., 488 So.2d

582 (Fla. 4th DCA 1986).

G. Venue

Most “venue” challenges in PIP cases are actually challenges based on forum non

conveniens. As a result, trial courts need to be well-versed in how to analyze a forum non

conveniens objection. A forum non conveniens objection may be raised sua sponte by the

court.

The basis for “venue” related issues is found in Florida Rule of Civil Procedure 1.061 and

Fla. Stat. 47.122. Keep in mind though that Rule 1.061 applies only to cases in which the

defendant’s desired destination is outside the State of Florida. Transfers between counties in the

State are governed by Fla. Stat. §47.122.

The mere fact that a Florida insurance corporation has agents in a county which sell its

policies is insufficient to establish venue in that county standing alone, unless the insurer keeps

an officer for the transaction of its ordinary business in that county. Sunshine State Ins. Co. v.

Munoz-Upton, 127 So.3d 822, 823 (Fla. 3d DCA 2013). The same is not the case with a foreign

insurance corporation. Fla. Stat. §47.051.

At least one County Court has upheld a mandatory forum selection clause in a PIP policy.

Emergency Medical Associates of Tampa Bay, L.L.C. v. USAA Gen. Indemnity Co., 26 Fla. L.

Weekly Supp. 894 (Volusia Cty. Ct. 2018) (policy required suit to be brought in the county the

covered person lived at the time of the accident).

A motion for change of venue must be supported by affidavits or sworn testimony.

Dalomba-Herrera v. Bush, 645 So.2d 117 (Fla. 5th DCA 1994). The court may require that this

29

affidavit be provided before a hearing is scheduled so that the opposing party knows what

evidence it needs to address at the hearing. Shahnasarian v. Tejedor, 41 So.3d 348 (Fla. 5

DCA 2010).

The burden of proof is upon Defendant to overcome the plaintiff’s selection of the proper

forum or court in which to file the suit. Sage v. Travelers Indem. Co. of Hartford, 239 So.2d 831

(Fla. 4th DCA 1970); Taylor v. DaSilva, 401 So.2d 1161 (Fla. 3d DCA 1981).

Florida Statute 47.191 requires that the “moving party” in a change of venue for forum

non-conveniens shall pay the cost of transfer “unless the trial court otherwise provides.” The

court can order either party to pay the fee depending on the circumstances.

Venue was in Volusia County when accident occurred and initial treatment occurred in

Volusia County. Driver and passenger of other car resided in Volusia County. Follow up

treatment was in New York. Witnesses resided in Volusia, Seminole and Orange Counties and

New York. Dade County was the wrong county to file suit and change of venue is granted.

Prudential Property and Cas. Ins. Co. v. Palma, 622 So.2d 594 (Fla. 3d DCA 1993).

Office of plaintiff’s attorney located in county where suit filed is insufficient reason to

keep venue in that county. State Farm Fire & Cas. Co. v. Sosnowski, 836 So.2d 1099 (Fla. 5th

DCA 2003).

Forum non conveniens has two analyses under Fla. Stat. 47.122: a case may be

transferred for forum non conveniens “for the convenience of the parties or witnesses or in the

interest of justice.” Hall v. R.J. Reynolds Tobacco Co., 118 So.3d 847, 848 n.2 (Fla. 3d DCA

2013). The fact that one county has “crowded dockets” and that the parties have requested a jury

trial in an “uninvolved” community are factors to consider when deciding whether the “interest

of justice” is met.” Id. at 848. Importantly, the trial court must consider all the factors before

making a decision. This is true even if the issue is raised on the eve of trial. Universal Property

& Casualty Insurance Company v. Long, 157 So.3d 382 (Fla. 2d DCA 2015).

The issue of forum non conveniens may be raised sua sponte by the trial court judge.

Stamen v. Arrillaga, 169 So.3d 1209 (Fla. 4

DCA 2015). The question arises how a judge

would acquire sufficient knowledge to raise this issue sua sponte, particularly when the name of

the provider/plaintiff does not readily indicate the location of the provider. Often, trial court

judges get multiple cases at the same time from the same provider. One possible means is to use

a questionnaire. In some instances, it may be permissible for the trial court to sua sponte issue a

questionnaire for the parties to respond to the court’s inquiries short of live response at a hearing.

For instance, in one case, the appellate court noted without criticism a trial court’s use of a

questionnaire to determine in which of hundreds of cases the plaintiffs had died before the cases

were filed. See In re 73 Engle-Related Cases, 239 So.3d 166 (Fla. 1

DCA 2018).

H. Declaratory Relief

Statutory basis found in Fla. Stat. 86.021.

In Southern Group Indemnity, Inc. v. Humanitary Health Care, Inc., 975 So.2d 1247

30

(Fla. 3d DCA 2008), the Third District Court of Appeal held that a medical provider (as assignee

of the insured) was not entitled to presuit discovery of the insurer’s PIP payout log under section

627.736(6)(d) (entitling injured person to copy of all information obtained by the insurer from

employers and healthcare providers), as the insurer generated the payout log, thus the statute was

inapplicable. The statute was later amended to specifically provide that upon commencement of

litigation, a copy of the log must be provided “to the insured [ . . . ] within 30 days after

receiving a request for the log from the insured.” Fla. Stat. 627.736(4)( j) (2014).

In GEICO. v. Florida Emergency Physicians, 972 So.2d 966 (Fla. 5th DCA 2007), and

State Farm Mutual Automobile Insurance Company v. Florida Emergency Physicians, 978 So.2d

197 (Fla. 5th DCA 2008), the Fifth District Court of Appeal held that an insured cannot maintain

a declaratory action for a PIP payout log, as the payout log is generated internally by the insurer.

I. Consolidation of Suits.

Fla. Stat. 627.736(15) (2008) added a provision that all claims related to the same

health care provider for the same injured person shall be brought in one action, unless good

cause is shown. If a provider fails to bring all claims in one action, and the court does not

find good cause to excuse this requirement, a claimant may not recover attorney’s fees for a

subsequent claim.

J. Reserve for Emergency Services and Care

Fla. Stat. 627.736(4)(c) (2015) provides:

Upon receiving notice of an accident that is potentially covered by personal injury

protection benefits, the insurer must reserve $5,000 of personal injury protection

benefits for 30 days for payment to physicians licensed under Chapter 466 who

provide emergency services and or who provide hospital inpatient care. The

amount required to be held in reserve may be used only to pay claims from such

physicians or dentists until 30 days after the date the insurer receives notice of the

accident. After the 30-day period, any amount of the reserve for which the insurer

has not received notice of a claim for emergency care, any funds in the reserve

may then be used by the insurer to pay other claims. The time period for required

payment of PIP benefits shall be tolled to the extent that the benefits not held in

reserve are insufficient to pay the claims.

Any reserve payment due under this provision is subject to any deductible permitted by

the PIP statute, Fla. Stat. 627.739(2). Mercury Ins. Co. of Florida v. Emergency Physicians of

Central, 182 So.3d 661, 661 (Fla. 5

DCA 2015); Metropolitan Casualty Ins. Co. v. Emergency

Physicians of Central Fla., 178 So.3d 927 (Fla. 5

DCA 2015). Therefore, if a bill from an

emergency service provider is received before the deductible is reached, the deductible will be

fully applicable to that charge regardless of any amount held in reserve.

One circuit appellate court has held that the obligation to withhold the $5,000 emergency

31

amount must be held until a decision is made for any emergency services claim submitted within

the 30-day window, even if the decision itself is made after the 30-day period expires. Auto-

Owners Insurance Company v. Florida Emergency Physicians, 23 Fla. L. Weekly Supp. 513 (9

Cir. App. 2015).

But what if the emergency services funds are released in error, and then the total $10,000

is released to other claims? The circuit appellate courts are currently split. One has ruled that

exhaustion of benefits is not a valid defense in this case. Auto-Owners Insurance Company v.

Florida Emergency Physicians, 23 Fla. L. Weekly Supp. 513 (9

Cir. App. 2015). The other has

ruled that it is a viable defense. Auto-Owners Insurance Company v. Florida Emergency

Physicians, 23 Fla. L. Weekly Supp. 524 (18

Cir. App. 2015). For further discussion of the

defense of exhaustion, see infra.

K Emergency Medical Conditions.

Under a recent amendment to the PIP law, reimbursement for non-emergency conditions

is limited. Reimbursement is limited as follows:

1. New law: Non-emergency treatment is capped at $2500; emergency treatment

still at $10,000 cap. Fla. Stat. §627.736(1)(a)(3) & (4) (2014).

“REQUIRED BENEFITS – An insurance policy [ . . . ] must provide personal

injury protection [ . . . ] as follows: (a)(3) [r]eimbursement for services and

care [ . . . ] up to $10,000 if a physician [ . . . ] has determined that the injured

person had an emergency medical condition. (4) Reimbursement for services

and care [ . . . ] is limited to $2,500 if a provider listed [ . . . ] determines that

the injured person did not have an emergency medical condition.”

2. Issue: What is an “emergency medical condition”? Fla. Stat. §627.732(16)

(2014).

“Medical condition manifesting itself by acute symptoms of sufficient

severity, which may include severe pain, such that the absence of immediate

medical attention would reasonably be expected to result in any of the

following: serious jeopardy to patient health, serious impairment of bodily

function; or serious dysfunction of any bodily organ or part.”

The use of the specific phrase “emergency medical condition” is not required.

Lorraine v. Enterprise Leasing Co. of Orlando, LLC, 22 Fla. L. Weekly Supp.

943 (Orange Cty. Ct. 2014).

3. Issue: Who has the burden? Is it a defense, or part of plaintiff’s prima facie

case?

4. Issue: What does it mean to “determine” an emergency medical condition? Is

the issue at trial merely whether a physician “determined,” or can jury be

32

asked to re-evaluate whether an “emergency” occurred? What if no physician

specifically states? (Note: the word “determine” is not defined in the statute.

Use standard dictionary definition?)

a. Position A: The only issue at trial is whether a physician “determined”

there was an emergency medical condition. If so, higher cap of $10,000

applies. Hess Spinal & Medical Centers, P.A. v. Progressive Select Ins.

Co., 23 Fla. L. Weekly Supp. 177 (Hillsborough Cty. Ct. 2015).

b. Position B: Jury allowed to reconsider (redetermine?) whether an

emergency medical condition existed, and cap will either be $2500 or

$10,000 based on that decision. This position is supported by Davis v.

Progressive Select Ins. Co., 24 Fla. L. Weekly Supp. 41 (13

Cir. Ct.

2016), but was rejected by the court in Hess Spinal, supra., as well as First

Choice Chiropractic & Rehabilitation Center, Inc. v. Progressive

American Ins. Co., 22 Fla. L. Weekly Supp. 617 (Polk Cty. Ct. 2014).

c. Position C: If physician did not “determine” whether an emergency

medical condition existed at the time of treatment, then there is no

coverage under PIP at all. [Contrary to DCA case law discussed below.]

d. Position D: If physician did not “determine” whether an emergency

medical condition existed at the time of treatment, then the cap is still at

$10,000 because no “determination” was made that there was not an

emergency medical condition. This position was rejected by the court in

Stevenson v. United Services Automobile Ass’n, 23 Fla. L. Weekly Supp.

247 (Okaloosa Cty. Ct. 2015). This trial level decision has been

effectively overruled by Progressive American Ins. Co. v. Eduardo J.

Garrido, D.C., P.A., 211 So.3d 1086 (Fla. 3d DCA 2017) and Medical

Center of the Palm Beaches v. USAA Cas. Ins. Co., 202 So.3d 88 (Fla. 4

DCA 2016).

e. Position E: If physician did not “determine” whether an emergency

medical condition existed at the time of treatment, then the cap is reduced

to $2500 because no “determination” was made that there was an

emergency medical condition. Progressive American Ins. Co. v. Eduardo

J. Garrido, D.C., P.A., 42 Fla. L. Weekly D408 (Fla. 3d DCA 2017);

Medical Center of the Palm Beaches v. USAA Cas. Ins. Co., 41 Fla. L.

Weekly D2018 (Fla. 4

DCA 2016); Enterprise Leading Co. v. AFO

Imaging, Inc., 24 Fla. L. Weekly Supp. 487 (13

Cir. App. 2016). This is

currently the prevailing view. Moreover, when the provider filed suit

before providing any documentation supporting an emergency medical

condition determination, the provider failed to provide the insurer valid

notice of a “covered loss” over $2,500.00, thus filing suit prematurely for

anything over $2,500.00. See Enterprise Leasing, supra.

f. Position F: Physician may make “determination” later, i.e., when

preparing for trial.

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Important note: Only an M.D., D.O., dentist, physician assistant or ARNP (advanced registered

nurse practitioner) can “determine” whether there is an “emergency medical condition.”

Notably, a chiropractor CANNOT make this determination. Fla. Stat. §627.736(1)(a)(3) (2015).

This exclusion of chiropractors has been held to be constitutional. Progressive American Ins.

Co. v. Eduardo J. Garrido, D.C., P.A., 42 Fla. L. Weekly D408 (Fla. 3d DCA 2017).

VIII. EXHAUSTION OF BENEFITS

Often, the insurer will claim that the case is moot because that total amount of benefits

due under the policy have been paid to other claimants. This is referred to as the defense of

“exhaustion of benefits.” Regardless of when exhaustion occurs, even if post-suit, the defense

is viable unless the insurer improperly “manipulated” benefits or acted in bad faith. However,

if the insurer exhausts benefits, but fails to notify its counsel, the insurer may be liable to the

provider for attorney’s fees and costs incurred from the period of time that exhaustion

occurred until the time when the provider’s attorney was advised of the exhaustion.

The Florida Supreme Court held in Boulevard National Bank of Miami v. Air Metal

Industries, Inc., 176 So.2d 94 (Fla. 1965), that Florida would follow the “English Rule.” In other

words, insurers should pay medical benefits in the order in which the insurer received the bills.

This rule, however, does not apply in PIP cases. Northwoods Sports v. State Farm Mutual

Automobile Ins. Co., 137 So.3d 1049, 1054 (Fla. 4

DCA 2014).

In Simon v. Progressive Express Insurance Company, 904 So.2d 449 (Fla. 4

DCA

2005), the court declined to create a requirement that an insurance company set aside a “reserve”

fund for claims that are reduced or denied. The court held an insurer who has paid out policy

limits to the insured, or various providers as assignees, it is not liable to pay any further PIP

benefits, even those that are in dispute. A different result might obtain if the insurer exhausted

benefits “in bad faith” or by improperly manipulating benefits. Id. at 450.

The court in Progressive American Insurance Company v. Stand-up MRI of Orlando, 990

So.2d 3 (Fla. 5

DCA 2008), agreed with the court in Simon that there is no legal requirement

that an insurer set aside a reserve fund for claims which are reduced or denied. The court in

Progressive further held that there was no evidence of bad faith and that the bills were never

overdue where Progressive American provided “reasonable proof” why it was not paying Stand-

up MRI additional bills: coverage was exhausted. Accordingly, if benefits are exhausted after

suit is filed, the suit for benefits may not go forward, because the insurer has met its obligation

under the contract to pay the policy amount. Importantly, the insurer “did not gain anything out

of [its] actions.” Id. at 7.

In Sheldon v. United Services Automobile Association, 55 So.3d 593 (Fla. 1

DCA 2011),

benefits were exhausted after suit was filed but before USAA was served. The provider

acknowledged that under Simon and Stand-up MRI, he could not go forward with his suit for the

underlying benefits that were reduced or denied but sought to maintain the suit merely to pursue

interest, penalties and attorney’s fees. The court rejected this argument, stating that Dr. Sheldon

cannot seek interest on the disputed underlying benefits, as USAA will never be required to pay

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them, so they cannot become overdue. The court further held that Dr. Sheldon was not entitled

to attorney’s fees on benefits that were never awarded to him and will never be awarded due to

exhaustion of benefits. Id. at 596.

A provider may avoid a claim of exhaustion by showing that the insurer exhausted

benefits in bad faith or by improperly paying other claims. See GEICO Indemnity Co. v. Gables

Ins. Recovery, 159 So.3d 151, 155 (Fla. 3d DCA 2014). When an insurer timely pays claims as

they come due, and then benefits are exhausted, an insurer cannot be said to have exhausted

benefits in bad faith, even if the provider’s claim was mistakenly underpaid. However, when the

insurer pays an untimely claim, the amount of that improperly paid claim cannot be considered in

determining whether benefits have been exhausted. Id. See also Northwoods, 137 So.3d at 1057

(finding good faith exhaustion applies only to the “payment of valid claims”).

Finally, some trial courts have held that providers in an exhaustion scenario are entitled

to an award of attorney’s fees as a sanction if the insurer fails to promptly put the provider on

notice of the exhaustion. Roberto Rivera-Morales, M.D. v. State Farm Mutual Automobile Ins.

Co., 22 Fla. L. Weekly Supp. 271 (Miami-Dade Cty. Ct. 2013) (insurer waited 6 months to

notify provider); A-1 Open MRI, Inc. v. United Automobile Ins. Co., 20 Fla. L. Weekly Supp.

288 (Broward Cty. Ct. 2012) (8-month delay in notifying provider). See Chatmon v. Woodard,

492 So.2d 1115, 1116 n.2 (Fla. 3d DCA 1986) (finding that the trial court may condition an

amendment to affirmative defenses upon the defendant’s payment of the additional costs and

expenses incurred by plaintiff as a result of the “apparently inexcusable tardiness” in asserting

the defense).

An insurance payment to its insured of the limits of the PIP policy prior to filing of

Florida Statute 624.155(2)(a) “notice” extinguishes any right of action for “bad faith” for the

insurer’s failure to pay PIP claims that the insured might claim. Rodante v. Fidelity Nat. Ins.

Co., 725 So.2d 1151 (Fla. 2d DCA 1998).

Trial courts are in disagreement on the issue of whether exhaustion of benefits is an

affirmative defense that must be pled, but the greater weight of authority is that it must be pled

because this is the only way the plaintiff can raise in avoidance the insurer’s bad

faith/manipulation of benefits. See Pembroke Pines MRI v. USAA Cas. Ins. Co., 17 Fla. L.

Weekly Supp. 1702 (Broward Cty. Ct. 2009).

IX. ACCORD AND SATISFACTION

An insurer often submits a “partial” payment to the provider when it receives PIP bills.

The insurer then may raise the defense that the provider’s acceptance of the partial payment

constitutes an accord and satisfaction. The case law in this area is not crystal clear, due in

some degree of the two ways of proving an accord and satisfaction: common law and

statutory. However, at least one circuit appellate court has ruled that the defense of common

law accord and satisfaction has been supplanted by the statutory defense when payment by

check has been made.

35

Common law accord and satisfaction requires: (1) an existing dispute as to the proper

amount due from one party to another party; (2) the parties mutually intend to effect settlement

of the existing dispute by a superseding agreement; and (3) the debtor tenders and the creditor

accepts performance of the new agreement. 10 Fla. Jur. 2d Compromise, Accord, and Release §1

(2003). In the context of a PIP case, the provider’s acceptance of a reduced payment when the

“check and cover letter clearly indicate the insurer’s position that no further payments would be

made” is sufficient evidence of the parties’ mutual intent, and the provider’s cashing of the check

is sufficient evidence of acceptance of performance. See United Automobile Ins. Co. v. Palm

Chiropractic Center, Inc., 51 So.3d 506, 509 (Fla. 4

DCA 2010) (emphasis added); United

Automobile Ins. Co. v. Hialeah Wellness and Rehab Center, Inc., 23 Fla. L. Weekly Supp. 208,

209 n.4 (11

Cir. App. 2015). If the check and transmittal letter are not clear, other evidence of

the parties’ intent is required. However, the continuing vitality of common law accord and

satisfaction in a PIP case has been placed in doubt as explained in the next paragraph.

Statutory accord and satisfaction comes into play when a party tenders performance by

means of a negotiable instrument, e.g., a check. The Eleventh Circuit Court sitting in its

appellate capacity has ruled that this statutory means of demonstrating accord and satisfaction

has supplanted the common law defense when negotiable instruments are involved. United

Automobile Ins. Co. v. Miami-Dade County MRI, Corp., 28 Fla. L. Weekly Supp. 276 (11

Cir.

App. 2020) (citing Fla. Stat. §2.01(2019), the common law is not in “force in this state” when the

“common law [is] inconsistent with the [ . . . ] acts of the Legislature of this state.”). Because

PIP payments are almost always made by check, the trial court should be aware of this alternate

means of proving accord and satisfaction. Under the statute, Fla. Stat. §673.3111(1), accord and

satisfaction by negotiable instrument arises when: (1) the debtor in good faith tenders a check to

the creditor as full satisfaction of the claim; (2) the amount of the claim was unliquidated and

subject to a bona fide dispute; and (3) the creditor deposited or cashed the check. For this means

of proving accord and satisfaction, instead of proof of mutual intent, the statute requires that the

check be accompanied by a “conspicuous statement to the effect that the instrument was tendered

as full satisfaction of the claim.” Fla. Stat. §673.3111(2). Determination of conspicuousness is

a question of law. See United Automobile Ins. Co. v. Jeffrey L. Stanger, P.A., 19 Fla. L. Weekly

Supp. 927 (17

Cir. App. 2012) (determination of conspicuousness is a question of law); Fla

Stat. §671.201(10). Generally, this defense will arise when the insurer puts the language “Full

and Final Payment” on the check. The trial court must then determine whether this language and

how it is placed meets the conspicuousness requirement set forth in the statute for tender of a

negotiable instrument.

X. DISCOVERY

A. General Issues

Currently, PIP discovery disputes take the majority of hearing time available before

many County Judges handling PIP proceedings. In addition to having a substantive grasp of

the issues, judges need to also develop strategies for efficiently handling these dockets.

Discovery in a PIP case, like other civil litigation, will run the gauntlet. The overriding

“theme” for the discovery disputes remains the same as for other civil litigation, to wit: is the

anticipated discovery relevant and material to the underlying issues or, alternatively, can it

36

lead to relevant and material evidence, documents or testimony? These are some of the

reported court decisions on discovery:

Discovery must be relevant to the subject matter of the pleadings in the pending case.

State Farm Mut. Auto. Ins. Co. v. Parrish, 800 So.2d 706 (Fla. 5th DCA 2001). Concept of

relevancy is broader in discovery context than in trial context and party may be permitted to

discover evidence that would be inadmissible at trial if it may lead to discovery of relevant

evidence. Krypton Broadcasting of Jacksonville, Inc. v. MGM-Pathe Communications, 629

So.2d 85 (Fla. 1st DCA 1993).

When a non-party files an objection to a Notice of Production and subpoenas served upon

a non-party, then the requesting party may not use Rule 1.351 procedure. A hearing is not

required on the objection. The requesting party may obtain the information by use of deposition

duces tecum and use Rule 1.310. See Russell v. Stardust Cruisers, Inc., 690 So.2d 743, 744

(Fla. 5

DCA 1997); Trawick, Fla. Prac. & Proc. §16:11 (2014).

Once a party has filed objections to discovery, it is not necessary for opposing party to

file a Motion to Compel. First City Developments of Florida, Inc. v. Hallmark of Hollywood

Condominium Ass’n, Inc., 545 So.2d 502 (Fla. 4th DCA 1989).

The party objecting to discovery on grounds of “overly broad” or “burdensome” is

required to show the volume of files or documents, the number of work hours or some other

quantitative factor to support the “conclusion” that producing the discovery would be some type

of a problem for them. First City Developments of Florida v. Hallmark of Hollywood

Condominium Ass’n, Inc., 545 So.2d 502 (Fla. 4th DCA 1989).

A plaintiff may enforce the initial discovery request through “short notice” at an ex-parte

hearing, if a local rule so provides. Waters v. American General Corp., 770 So.2d 1275 (Fla. 4th

DCA 2000); Rule 1.380(a) and Rule 1.090 (d); American Cas. Ins. Co. v. Bly Elec. Const.

Services, Inc., 562 So.2d 825 (Fla. 4th DCA 1990).

A party may “waive” possible objections if discovery is not furnished on a timely basis.

Adventist Health System/Sunbelt v. Watkins, 675 So.2d 1051 (Fla. 5th DCA 1996). See also

State Farm Fla. Ins. Co. v. Kramer, 41 So.3d 313 (Fla. 4

DCA 2010) (insurer did not waive its

work product and attorney client privilege objection by not specifically asserting them in

response to Plaintiff’s request for production of documents).

Motion for Protective Order does not constitute an automatic stay of scheduled

depositions. Stables v. Rivers, 559 So.2d 440 (Fla. 1st DCA 1990).

For more detailed information on discovery in a PIP case, see the comprehensive Judge’s

Guide to Florida PIP Discovery, available through the Court Education Section of OSCA.

B. Summary Judgment Hearings

No summary judgment until discovery completed unless the non-moving party has failed

to be diligent in seeking discovery. ACT Corp. v. Devane, 672 So.2d 611 (Fla. 5th DCA 1996);

37

Congress Park Office Condos II, LLC v. First Citizens Bank & Trust Co., 105 So.3d 602, 608

(Fla. 4

DCA 2013).

Technical deficiencies in summary judgment affidavits may be corrected by the

submitting parties. United Auto Ins. Co. v. Peter F. Merkle, 32 So.3d 159 (Fla. 4

DCA 2010).

While party should be given at least one opportunity to correct a summary judgment

affidavit that is technically deficient, the same is not true for late-filed affidavits for other

reasons. If the affidavit is submitted late for a reason other than technical deficiency, the

proponent of the affidavit must set forth “compelling or exigent circumstances” for failing to file

the affidavit timely. Compelling circumstances have been found when the attorney making the

error was newly admitted to the Bar, or when the opposing party conceded the substance raised

in the affidavit at the summary judgment hearing. They were not, however, found when the

proponent merely wanted to substitute an affidavit from a different expert in the place of a timely

filed affidavit. State Farm Fire & Cas. v. Rivero-Morales, 26 Fla. L. Weekly Supp. 936, 936-37

(11

Cir. App. 2019).

When an insurer contradicts potential defenses by submitting sworn testimony or

admissions, the insurer has waived or abandoned the potential defenses contradicted. Universal

X-Ray Corp. v. Allstate Fire & Casualty Insurance Company, 23 Fla. L. Weekly Supp. 643

(Broward Cty. Ct. 2015). In such an instance, the subsequent contradictory affidavits or other

“summary judgment evidence” does not create a disputed issue of material fact.

C. Cost of Services or Materials

The basis for an insurance company to request back up documentation regarding “cost” is

found in Florida Statute 627.736(6).

The defendant, in considering payment of a MRI bill, could obtain a copy of the “lease”

agreement between two medical facilities, in spite of the “confidential” nature of the same. MRI

Services, Inc. v. State Farm Mut. Auto. Ins. Co., 807 So. 2d 783 (Fla. 2d DCA 2000).

The defendant has a right to see “lease” information about the insured and the insured’s

treatment and costs of the same. Kaminester v. State Farm Mut. Auto. Ins. Co., 775 So.2d 981

(Fla. 4th DCA 2001).

At least two trial courts have ruled that this type of underlying cost data is not relevant in

a PIP case. Xtreme Chiropractic & Rehab, Inc. v. State Farm Mutual Automobile Ins. Co., 23

Fla. L. Weekly Supp. 639 (Broward Cty. Ct. 2015); Health Diagnostics of Miami, LLC v. State

Farm Mutual Automobile Ins. Co., 22 Fla. L. Weekly Supp. 1097 (Broward Cty. Ct. 2015).

D. Expert Witness Fee for Doctors

The question of expert witness fees for non-treating physicians is fairly straightforward

and without dispute that they are entitled to a fee. The trial court may have to determine the

38

hourly rate if the parties cannot agree. The question of a fee for a treating physician,

however, has not been clearly decided, and trial courts statewide issue differing rulings.

Appellee deposed its treating physician, planning to use depositions at trial. Appellant

subpoenaed both doctors and they appeared at trial. Appellant was responsible for the expert fee,

as Appellant compelled the doctor’s appearance. Keitel v. Keitel, 701 So.2d 413 (Fla. 4th DCA

1997).

When a witness is presented as an expert during trial, the party calling the witness is

entitled to have the expert witness fee taxed, if costs are awarded to that party. Murphy v.

Tallardy, 422 So.2d 1098 (Fla. 4th DCA 1982).

Party who subpoenaed treating doctor was liable for his expert witness fee when

opposing party actually called the witness to testify at trial. Gardner v. Woodard, 738 So.2d 422

(Fla. 4th DCA 1999).

A number of cases stand for the proposition that a treating doctor, called at trial, is a fact

witness and should not have been treated as expert witness. Ryder Truck Rental, Inc. v. Perez,

715 So.2d 289 (Fla. 3d DCA 1998). Generally, the defendant may take the deposition of a

treating doctor, without paying an expert witness fee. Frantz v. Golebiewski, 407 So.2d 283

(Fla. 3d DCA 1981). However, the trial courts are split as to whether this applies in PIP cases.

The issue of whether a treating physician shall be paid an expert witness fee for giving a

deposition has been addressed by at least two appellate panels in the Eleventh Judicial Circuit,

but reaching different results. “The treating physician clearly falls within the definition of an

expert witness, thereby entitling the doctor to receive an expert witness fee. Further, the Court

found that if insurer is only seeking to elicit factual testimony regarding the medical care and

treatment provided to its insured, it has the option of deposing the physician’s medical records

custodian, in conjunction with subpoenaing any and all medical records relating to the patient’s

treatment and condition for its review.” Progressive Express Ins. Co. v. Professional Medical

Group, 10 Fla. L. Weekly Supp. 973a (11

Cir. App. 2003). However, six years later the same

appellate court, although a different panel of judges, ruled that opposite, finding that a treating

physician being deposed on the course of treatment is not being deposed as an expert, and is

therefore not entitled to an expert fee. United Automobile Ins. Co. v. Fla. Institute for Pain, Inc.,

17 Fla. L. Weekly Supp. 163 (11

Cir. App. 2009).

In the Fifteenth Judicial Circuit, several courts have held that a treating physician in an

action for PIP benefits who testifies regarding his knowledge of patient’s treatment, diagnosis or

prognosis is a fact witness not entitled to an expert witness fee. Simon v. Progressive Express

Ins. Co., 10 Fla. L. Weekly Supp 933a (Palm Beach Cty. Ct. 2003); Lake Worth Chiropractic

Center, Inc. v. Progressive Express Insurance Co., 17 Fla. L. Weekly Supp 125b (Palm Beach

Cty. Ct. 2009); Royal Palm Beach Medical Center v. United Automobile Insurance Company, 16

Fla. L. Weekly Supp. 104b (Palm Beach Cty. Ct. 2008).

One district court of appeal has stated in dicta (in an order denying certiorari relief) that

the circuit appellate panel applied the correct law when it reversed the trial court’s order granting

of expert witness fees to the two treating physicians in the case. Comprehensive Health Center,

Inc. v. United Automobile Insurance Company, 56 So.3d 41, 44 (Fla. 3d DCA 2010).

39

E. Computer Databases

Plaintiff’s attorney may inspect the computer system, within reason and certain

restrictions, of a third party vendor, regarding the monies paid to doctors on a case,

notwithstanding third party vendors’ claim that the IME is confidential and that there exists

privileged information in the system. Southern Diagnostic Associates v. Bencosme, 833 So.2d

801 (Fla. 3d DCA 2002).

A confidentiality agreement between the defendant and a third party vendor does not

preclude discovery regarding a lease or “costs” regarding the insurer’s determination of benefits

under the policy. MRI Services, Inc. v. State Farm Mut. Ins. Co., 807 So.2d 783 (Fla. 2d DCA

2002).

F. Privileged Communication

The basis for privileged communication is found in Florida Statute 90.502 and Florida

Rule of Civil Procedure 1.280 (b)(1).

Privileged communications are not discoverable, unless one of the statutory exceptions is

present. Haskel Co. v. Georgia Pacific Corporation, 684 So.2d 297 (Fla. 5th DCA 1996).

An attorney’s billing statement may include detailed descriptions of the nature of services

rendered and therefore could reveal mental impression and opinions of the attorney; thus work

product and attorney/client privilege may apply. Trial court, in such instances, should hold “in-

camera” review before disclosure. Old Holdings, Ltd. v. Taplin, Howard, Shaw & Miller, P.A.,

584 So.2d 1128 (Fla. 4th DCA 1991).

G. Work Product

There is currently substantial dispute over whether insurers’ claim files, manuals,

guidelines and documents regarding claim handling procedures are discoverable or whether they

are shielded as “work-product”. State Farm Fire and Cas. Co. v. Valido, 662 So.2d 1012 (Fla.

3d DCA 1995); Allstate Ins. Co. v. Langston, 655 So.2d 91 (Fla. 1995); State Farm Mut. Auto.

Ins. Co. v. Cook, 744 So.2d 567 (Fla. 2d DCA 1999). Some insurers strongly argue that the

entire claims file and its contents is shielded by the work product privilege, finding support for f

a freestanding “claims file privilege” in such cases are Nationwide Ins. Co. v. Demmo, 57 So.3d

982, 984 (Fla. 2d DCA 2011) and American Bankers Ins. Co. of Fla. v. Wheeler, 711 So.2d

1347, 1348 (Fla. 5

DCA 1998). The better position is that each document in the claims file

must be reviewed to determine whether the document meet the criteria for work product. State

Farm Fla. Ins. Co. v. Aloni, 101 So.3d 412, 414 (Fla. 4

DCA 2012) (the trial court must

“conduct an in camera inspection of the withheld documents to ensure that each properly meets

the specific criteria of the work product [ . . . ] privilege”); Bankers Security Ins. Co. v. Symons,

889 So.2d 93, 96 (Fla. 5

DCA 2004) (“[I]t is not necessarily true that every document in a claim

40

file is work product. Putting a document in a claim file doesn’t make it immune; it is only

immune if it is work product”).

Surveillance video/film is not discoverable, unless it is to be used at trial, but a party may

discover the “existence” of such video or film. Dodson v. Persell, 390 So.2d 704 (Fla. 1980);

Hunt v. Lightfoot, 239 So.3d 175 (Fla. 1

DCA 2018).

Portions of an insurer’s claims file which contains thoughts of insurer’s employees

regarding evaluation of insured claim and possible settlement offers were protected as work

product. Utica Mut. Ins. Co. v. Croft, 432 So.2d 196 (Fla. 1st DCA 1983).

Adjuster notes are generally work product. Federal Ins. Co. v. Hall, 708 So.2d 976 (Fla.

3d DCA 1998). One circuit appellate court has held that they are “presumed” work product or

irrelevant, placing the burden on the provider to overcome the privilege. State Farm Mutual

Automobile Ins. Co. v. New Horizon Medical Diagnostic Center Corp., 24 Fla. L. Weekly Supp.

273 (11

Cir. App. 2016).

Surveillance photos, witness statements and repair estimates are generally work product.

State Farm Fire and Cas. Co. v. Valido, 662 So.2d 1012 (Fla. 3d DCA 1995).

Surveillance photo/film is generally work product, but must be disclosed if it is to be used

at trial. Dodson v. Persell, 390 So.2d 704 (Fla. 1980).

The burden of proof regarding an attorney/client privilege and “work-product” privilege

is upon the party asserting the same. First City Developments of Florida, Inc. v. Hallmark of

Hollywood Condominium Ass’n, Inc. 545 So.2d 502 (Fla. 4th DCA 1989).

A party waives the work product privilege when that party decides to use the privileged

matter at a hearing or trial. Morever, if a party calls a witness who will testify about matters

otherwise protected by the privilege, that party waives the privilege with respect to matters

covered by the witness’s anticipated testimony. Hunt v. Lightfoot, 239 So.3d 175 (Fla. 1

DCA

2018).

H. Privilege Log

Florida Rule of Civil Procedure 1.280(b) (5) provides for the creation and submission of

a “privilege log.”

The party claiming the “privilege” may have waived the same if the log is not produced

and properly and adequately described. TIG Ins. Corp. of America v. Johnson, 799 So.2d 339

(Fla. 4th DCA 2001).

The log should describe the document subject matter, purpose of the production and

specific explanation as to why the document is privileged. Descriptions like “letter re: claim,”

“analysis of claim,” or “request in anticipation of litigation” are considered insufficient under the

TIG case.

41

The TIG case has been approved by the Fifth District Court of Appeal in Nationwide

Mutual Fire Insurance Company v. Hess, 814 So.2d 1240 (Fla. 5th DCA 2002).

Where insufficient detail or description is provided in an alleged “privilege log,” the

same constitutes a waiver of the privilege. Omega Consulting Group, Inc., v. Templeton, 805

So.2d 1058 (Fla. 4th DCA 2002).

I. Interrogatories

Rule 1.340(c) permits a party to refer to documents produced by or offered to be

produced by the party if the answer “may be derived or ascertained from the records of the

party.”

J. Inspections/Production

The state constitutional privacy right may, under certain circumstances, extend to

personal information contained in nonpublic employee personnel files. For a full discussion of

this issue, see Alterra Healthcare Corp. v. Estate of Shelley, 827 So. 2d 936 (Fla. 2002); Graham

v. Dacheikh, 991 So.2d 932 (Fla. 2d DCA 2008) (barring routine release of patient information

concerning patients who are not parties to the case).

Upon commencement of litigation, the insurer must provide “to the insured a copy of the

[payment] log within 30 days after receiving a request for the log from the insured.” Fla. Stat.

627.736(4)(j) (2015).

XI. FEE SPLITTING

The issue of fee splitting rarely arises in a current PIP dispute.

In a magnetic resonance imaging (“MRI”) billing case, there existed an arrangement

where the doctor, who performed the MRI was paid $350.00 and the group who arranged the

MRI billed the insurance company $1,400.00. The court found that this constitutes an illegal fee

split and that the “middle-man” failed to provide medical services under the statute. Medical

Management Group of Orlando, Inc. v. State Farm Mut. Auto. Ins., 811 So.2d 705 (Fla. 5th DCA

2002). See also Prosper Diagnostic Centers, Inc. v. Allstate Ins. Co., 964 So.2d 763 (Fla. 4

DCA 2007).

Both the Second and Third District Courts of Appeal have subsequently held that an

entity other than a medical care provider may recover PIP benefits for services provided by a

provider, but only pursuant to a valid assignment of benefits. See Gables Ins. Recovery, Inc. v.

Seminole Cas. Ins. Co., 10 So. 3d 1106 (Fla. 3d DCA 2009); Prof’l Consulting Serv. Inc. v.

Hartford Life and Accident Insurance Co., 849 So. 2d 446 (Fla. 2d DCA 2003).

42

XII. DAUBERT/FRYE ISSUES

The admissibility of expert testimony is governed by Florida Statute §90.702 (2015)

which in July 2013 was amended to adopt the Daubert standard, established by the United

States Supreme Court in Daubert v. Merrel Dow, 509 U.S. 579 (1993). However, in 2018, the

Florida Supreme Court ruled that the Legislature had overstepped its authority by adopting

the Daubert standard, which the Court held was a procedural matter under its own

jurisdiction. The Court declined to adopt the Daubert standard, and instead reaffirmed the

Frye standard as being appropriate for the Florida courts. This ruling was quickly undone

when four new Justices were added to the Florida Supreme Court at the end of 2018. The

newly constituted Florida Supreme Court issued a ruling in May 2019 reimposing the Daubert

standard In the context of a PIP case, this issue comes up most frequently in the context of

an expert opining on the reasonableness of the provider’s charges. The amended statute, in

pertinent part provides that:

[i]f scientific, technical, or other specialized knowledge will assist the

trier of fact in understanding the evidence or in determining a fact in

issue, a witness qualified as an expert by knowledge, skill, experience,

training, or education may testify about it in the form of an opinion or

otherwise, if:

(1) The testimony is based upon sufficient facts or data;

(2) The testimony is the product of reliable principles and

methods; and

(3) the witness has applied the principles and methods

reliably to the facts of the case.

The party objecting to testimony must make a timely Daubert objection and request a

hearing, or the objection will likely be deemed waived. A “timely” objection is one in which the

trial court has sufficient time to properly consider the matter and make a decision. Rojas v.

Rodriguez, 185 So.3d 710 (Fla. 3d DCA 2016) (when defendant failed to make a Daubert

objection until after the trial concluded, objection was untimely).

Under the newly amended statute, the proponent of the opinion must demonstrate to the

Court that the expert’s opinion is “based upon sufficient facts or data.” Pan Am Diagnostics, Inc.

v. United Automobile Ins. Co., 20 Fla. L. Weekly Supp. 937a (Broward Cty. Ct. 2013). See also

Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999). The trial judge is assigned the role of

“gatekeeper” to ensure that an expert’s testimony is relevant and reliable. Daubert v. Merrel

Dow, 509 U.S. 579, 590 (1993).

Daubert established a non-exclusive list of factors for a court to consider in determining

the reliability of the methodology used by an expert. Factors to consider include:

(i) Whether expert’s technique or theory can be tested;

(ii) Whether the technique or theory has been subject to

peer review and publication;

(iii) The known or potential error of the technique or

43

theory when applied;

(iv) Whether the technique or theory has been generally

accepted in the scientific community.

A recent case from Florida’s Third District Court of Appeal, Perez v. Bellsouth

Telecommunications, Inc., 138 So.3d 492 (Fla. 3d DCA 2014) discusses in detail Florida’s shift

from the Frye standard to the Daubert standard and the role of a trial judge as the “gatekeeper”

of admissible evidence. Perez cites to the requirements of Fla. Stat. 90.702 holding that if

appropriately qualified, an expert’s opinion will be allowed if it is “based upon sufficient facts or

data”, “the product of reliable principles and methods” which have been applied “reliably to the

facts” of the case. Id. at 497. Another main point stressed by the Third District Court of Appeal

in Perez is that “expert testimony that might otherwise qualify as ‘pure opinion’ testimony is

expressly prohibited.” Instead, an expert opinion must be based upon a “scientific method” of

empirical testing data to ensure that conclusions are valid.

 In the context of a PIP case, the trial court will have to consider whether the

proffered expert is using a reliable methodology in determining whether a

provider’s charge is reasonable. Some things courts have considered are whether

the expert is “cherry picking” the information underlying the opinion; whether the

basis of the opinion is flawed due to a change in the law; the source of the

information used by the expert; whether the expert is making an apples-to-apples

comparison; the geographic scope of the expert’s information; and whether the

expert has worked or is working in the field in which he is offering his opinion.

See, e.g., State Farm Mutual Automobile Insurance Company v. New Smyrna

Imaging, LLC, 22 Fla. L. Weekly Supp. 508, 509 (7

Cir. App. 2014). See also

United Automobile Ins. Co. v. Professional Medical Group, Inc., 24 Fla. L.

Weekly Supp. 20 (11

Cir. App. 2016) (reversing a summary judgment in which

the plaintiff relied on the treating physician’s affidavit to establish reasonableness

of pricing, but which failed to explain how the physician’s experience lead to his

or her opinion, why the experience is a sufficient basis for his or her opinion, and

how that experience is reliably applied to the facts). A trial court may exclude an

expert opinion when the court finds that there is “simply too great an analytical

gap between the data and the opinion proffered.” This may occur when an expert

ignores certain data when offering the opinion. See Erica L. Sadowski, et al.,

Navigating Florida’s Changing Daubert Tide in Business Cases, Fla. B.J.,

Sept./Oct. 2019, at 28-29.

A court is not always required to give a Daubert hearing when requested. On occasion, a

party may bring the same expert before the court in different cases for the same opinion. Unless

the party can proffer what information or opinion may be different than what was offered in the

prior hearing, an additional hearing should be avoided. Additionally, if the opposing party files a

Daubert motion without providing any underlying facts or analysis as to the proffered expert, the

motion should be summarily denied. If the witness is not listed as an expert, but rather a fact

witness, no Daubert hearing is triggered. Finally, a Daubert hearing is unnecessary when it

would not be “fruitful for a case as well as a truly constructive use of the court’s time and

resources.” State v. Miller, 21 Fla. L. Weekly Supp. 775, 777 (15

Cir. Ct. 2014); State v.

Regisme, 24 Fla. L. Weekly Supp. 811 (Palm Beach Cty. Ct. 2016). For instance, if an expert is

44

a licensed professional, and is proffered for an opinion within that professional’s expertise, a

Daubert hearing might well be unnecessary. See id. (“a Daubert hearing should not be held when

the objecting party fails to provide record support for a serious, specified and substantial

question as to the continued reliability of the science, theory or methodology”). As an example,

if a party offers a chiropractor as to the issue of relatedness or medical necessity of treatment,

there must be something proffered pre-hearing to suggest that the physician would not be

competent to offer an opinion on the chiropractic treatment at issue. Licensed chiropractors

clearly are competent to testify as to routine chiropractic treatment, as well their own pricing for

services, and how they set their own prices.

In DeLisle v. Crane Co., 258 So.3d 1219 (Fla. 2018), the Florida Supreme Court noted

that the differemce between Frye and Daubert is that “Frye relies on the scientific community to

determine reliability whereas Daubert relies on the scientific savvy of trial judges to determine

the significance of the methodology used.” Id. at S462.

In the case of In Re: Amendments to the Florida Evidence Code, 44 Fla. L. Weekly S170

(Fla. 2019), the Florida Supreme Court noted the Daubert standard has a broader reach than the

Frye standard, because “the Frye standard only applied to expert testimony based on new or

novel scientific techniques and general acceptance,” whereas “Daubert provides that ‘the trial

judge must ensure that any and all scientific testimony or evidence admitted is not only relevant,

but reliable.’” Id., citing Daubert.

XIII. OFFER OF JUDGMENT/PROPOSALS FOR INSURANCE SETTLEMENT

Offers of judgment are frequently used in PIP cases. The most common issue brought

before the court is whether a nominal offer was made in good faith – if not, the offeror cannot

recover attorney fees. The determinative test for the court is whether at the time the offer was

made, the offeror had a good faith basis to believe its exposure to liability was minimal. The

analysis usually cannot be done without a full hearing.

The offer of judgment statutes applies to PIP cases. State Farm Mut. Auto. Ins. Co.v.

Nichols, 932 So. 2d 1067 (Fla. 2006). A court may enlarge the time for accepting an offer of

judgment "[i]f a party that is sincerely interested in settlement has a bona fide need for more time

to accept or reject it [a proposal for settlement].” Ochoa v. Koppel, 197 So.3d 77 (Fla. 2d DCA

2016), approved 243 So.3d 886 (Fla. 2018).

There is no multiplier on an attorneys’ fee claim where fees are awarded under Florida

Statute 768.79 “offer of judgment.” Allstate Ins. Co. v. Sarkis, 809 So. 2d 6 (Fla. 5th

DCA 2001)

and F.R.Civ.P. 1.442.

“Judgment obtained” pursuant to offer of judgment statute includes the net judgment for

damages and any attorney’s fees and taxable costs that could have been included in a final

judgment if such final judgment was entered on the date of the offer, and thus, in calculating the

“judgment obtained” for purposes of determining whether the party who made the offer is

entitled to attorneys’ fees, the court must determine the total net judgment, which includes the

45

plaintiff’s taxable costs up to the date of the offer, and when applicable, the plaintiff’s attorneys’

fees up to the date of the offer. White v. Steak & Ale of Florida, Inc., 816 So. 2d 546 (Fla. 2002).

Burden of proof is on offeror to show offer was made reasonably, then offeree must

demonstrate it was not made in good faith. TGI Friday’s, Inc. v. Dvorak, 663 So. 2d 606 (Fla.

1995); Donohoe v. Starmed Staffing, Inc., 743 So. 2d 623 (Fla. 2d DCA 1999). See United

Services Automobile Association v. Virtual Imaging Services, Inc., 22 Fla. L. Weekly Supp. 516

(11

Cir. App. 2014) (when benefits were exhausted at time offer was made, insurer had good

faith basis to make a nominal offer).

A court can find an offer of judgment to be in good faith even though the offer is for a

nominal amount. The test is whether at the time the offer was made, the offeror had a good faith

basis to believe that at the time of its offer, its exposure to liability was minimal. State Farm

Mutual Automobile Ins. Co. v. Sharkey, 928 So.2d 1263, 1264-65 (Fla. 4

DCA 2006); Wide

Open MRI, Inc. v. National Specialty Ins. Co., 18 Fla. L. Weekly Supp. 682 (Broward Cty. Ct.

2011).

Offer of judgment or proposal for settlement was properly activated even where costs and

attorneys’ fees issues were not specified. Glanzberg v. Kauffman, 771 So.2d 60 (Fla. 4th DCA

2000).

Importantly, the court should recognize the difference between an offer of judgment and

a proposal for insurance settlement. Under Florida Statute 627.428, if an insurer offers an

amount presuit to the provider, and the provider recovers no greater amount in the lawsuit, then

the provider is barred from recovering it attorney’s fees as prevailing party, regardless of

whether any offer of judgment was submitted. See United Automobile Ins. Co. v. A Rehab

Association of South Florida Corp., 22 Fla. L. Weekly Supp. 519 (11

Cir. App. 2015) (when

insurer offered the provider presuit $595.20, and the provider was awarded that exact amount to

the provider by a jury, the provider could not recover its attorney’s fees).

When a settlement offer is made and specifies a date for payment, and insurer responds

that it accepts the offer, and then tenders the payment at 7:15 p.m. on the deadline for payment,

the tender of payment was sufficient although made at the law firm’s office after work hours,

when the offer specified only a date deadline and not a time deadline. The fact that no one was

at the office to accept the tender does not alter the fact that a proper tender was made. Lee v.

Chmielewski, 44 Fla. Law Weekly D2774 (Fla. 2d DCA 2019).

XIV. JURY INSTRUCTIONS

In 2007, the Florida Supreme Court approved standard PIP jury instructions. These

contain a comprehensive definition of services, medically necessary and reasonable charge

and are located at In re: Standard Jury Instructions in Civil Cases, 966 So.2d 940 (Fla. 2007).

Of significance is the expanded instruction regarding the reasonableness of charges. The

jury is directed to consider evidence of usual and customary charges and payments accepted by

the provider involved in the dispute; reimbursement levels in the community; reimbursement

46

levels in various federal and state medical fee schedules applicable to automobile coverage; and

any other evidence relevant to the reasonableness of the charges. It further states that the court

may not however, award an amount that exceeds the amount the provider customarily charges

for like services or supplies. Note, however, that the instruction differs from the statute, which

provides that the jury may consider “other information relevant to the reasonableness of the

reimbursement for the services, treatment, or supply,” Fla. Stat. 627.736(5)(a) (2014), rather

than the “reasonableness of the charges as set forth in the standard jury instruction. See

Standard Jury Instructions – Civil Cases, 777 So.2d 378, 379 (Fla. 2000) (pertaining to

“standard” jury instructions, the Court cautions that the “instructions reflect only the opinion of

the committee and are not necessarily indicative of the views of the Court as to their correctness

or applicability”).

In Allstate v. Holy Cross, 961 So.2d 328 (Fla. 2007), the Court held that the insurer could

pay personal injury protection (PIP) benefits at eighty percent of reduced rate that hospital had

agreed to accept, even though insured had not purchased preferred provider policies and the

insurer had not contracted directly with hospital for reduced rate.

It is the trial judge – and not the attorneys – who ultimately has the “responsibility to

choose and give complete instructions in a given case, whether or not the instructions are

‘standard.’” The Fla. Bar, FLORIDA STANDARD JURY INSTRUCTIONS IN CIVIL CASES xix (3d ed.

2015).

XV. JUDGMENTS

The actual payment of the award or final judgment, awarding costs and attorneys’ fees (in

order to avoid a writ of execution) did not terminate the parties’ right to appeal from such an

award. Slater v. Breakwater Homes Ass’n, 413 So.2d 148 (Fla. 4th DCA 1982).

When a party paid the amounts allegedly due under the note and mortgage, in a mortgage

foreclosure action, such payment did not constitute avoidance or destroy the appeal ability of the

issues involved. Consortion Trading Intern., Ltd v. Lowrance, 682 So.2d 221 (Fla. 3d DCA

1996).

The filing of an appeal, without posting supersedeas bond, does not divest the court of

jurisdiction and it can hold hearings on motions to tax costs and attorneys’ fees. Dade County v.

Davidson, 418 So.2d 1231 (Fla. 3d DCA 1982); Ruby Mountain Const. & Dev. Corp. v.

Raymond, 409 So.2d 525 (Fla. 5th DCA 1982); Bailey v. Bailey, 392 So.2d 49 (Fla. 3d DCA

1981).

Without filing a supersedeas bond, the trial court has jurisdiction to consider issues

relating to writs of garnishment. Pennsylvania Tresherment & Farmers’ Mut. Cas. Ins. Co. v.

Barnett, 174 So.2d 417 (Fla. 3d DCA 1965), as well as, discovery in aid of execution.

Fehlhaber v. Fehlhaber, 664 F.2d 260 (C.A. Fla. 1981).

Failure of an insurer to timely pay a judgment shall result in the revocation of the

insurer’s certificate of authority. Fla. Stat. 627.427(2) (2015).

47

A. Set-Off

In Goble v. Frohman, 901 So.2d 830 (Fla. 2005), the Florida Supreme Court held that

contractual discounts, representing the difference between amounts billed by motorcyclist's

medical providers and amounts paid to medical providers pursuant to fee schedules in contracts

between motorcyclist's health maintenance organization (HMO) and medical providers, fit within

statutory definition of “collateral sources,” and thus, amount of contractual discounts, for which

no right of reimbursement or subrogation existed, was amount that should be set off against

award of compensatory damages to motorcyclist.

B. Interest

(Prior to July 1, 2011) The amount awarded for prejudgment interest, like other

components of the “judgment,” automatically bears interest as provided in Fla. Stat. 55.03.

Quality Engineered Installation, Inc v. Higley South, Inc., 670 So. 2d 929 (Fla. 1996).

(After July 1, 2011) Genser v. Reef Condominium Ass’n, Inc., 100 So.3d 760 (Fla. 4th

DCA 2012), which provides a good explanation of the calculation of pre and post judgment

interest in final judgments in light of the statutory change. In a nutshell, pre-judgment interest is

calculated at the statutory rate (by the court) and included in the final judgment, i.e., fixed at the

time of the final judgment. Post interest is calculated at the statutory rate and is adjusted yearly

until paid. Fla. Stat. 55.03(3) (2015).

Plaintiff may recover interest on the amount of attorneys’ fees awarded from the “date

entitlement to fees vested with plaintiff’s attorney.” Id.; Clay v. Prudential Ins. Co. of America,

617 So.2d 433 (Fla. 4th DCA 1993).

C. Court Costs

The prevailing party is entitled to recover costs pursuant to Fla. Stat. 57.041(1). In 2006,

the modified Statewide Uniform Guidelines for Taxation of Costs in Civil Actions took effect (it

is an appendix to the Rules of Civil Procedure). The guidelines are divided into three categories:

those costs that should be taxed; those costs that may be taxed; and those costs that should not be

taxed.

Costs of deposition copies are taxable if copies serve a useful purpose. Such award is

within the trial court’s discretion. St. Lucie County v. Browning, 358 So.2d 253 (Fla. 4th DCA

1978). Hospital records should not be taxed against the Defendant since records not used at trial

nor introduced into evidence. Id. at 254. Doctor’s deposition costs are taxable since deposition

read at trial. Id. at 255.

When the defendant prevailed at trial, it was error for the trial court not to tax the court

cost of the deposition of the expert witness of the defendant who was deposed by the plaintiff.

Eppler v. Tarmac America, Inc., 695 So.2d 775 (Fla. 1st DCA 1997).

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When the prevailing party seeks to tax as a cost the fee of an expert in the underlying

case, it is not necessary to have another expert qualified in the same field testify as to the

reasonableness of the requested expert fee. Belniak v. McWilliams, 44 Fla. L. Weekly D341

(Fla. 5

DCA 2019) (note: this is to be distinguished from the request for an attorney’s fee

award, which must be supported by expert testimony – the attorney cannot be its own expert).

Expert witness expecting to be compensated for providing testimony in fee hearing

regarding reasonableness of fee is entitled to be paid. Stokus v. Phillips, 651 So.2d 1244 (Fla.

2d DCA 1995).

XVII. ATTORNEY’S FEES

Fee awards in PIP cases can be substantial. They are also frequently challenged on

appeal. Therefore, it is crucial that trial court judges know how to properly conduct a fee

hearing and thereafter write a correct order. Further, because fee hearings often are lengthy,

utilizing case management tools to facilitate these hearings is an important part of the process

of timely handling these cases.

A. Florida Statute 627.428 (2015): The “One-Way Street”

Fla. Stat. 627.428 provides for an award of reasonable attorney’s fees to the insured’s

attorney after a judgment or decree has been entered against an insurer under a PIP policy. No

provision is made for recovery of fees by the insurer if the insurer prevails.

Section 627.736(8) refers to section 627.428 as controlling on the issue of attorney’s fees

in disputes between insured and insurer, except for if a provider fails to bring all claims in a

single action, as required pursuant to 627.736(15) and if the insurer timely pays pursuant to a

demand letter, as set forth in 627.736(10). If a provider fails to bring all claims in one action

and the court does not find good cause to excuse this requirement, attorney’s fees shall not be

awarded for the later-filed case(s).

When plaintiff prevails, it is error for the court not to award reasonable attorney’s fees to

the plaintiff’s attorney. Dunmore v. Interstate Fire Ins. Co., 301 So.2d 502 (Fla. 1st DCA 1974).

Factors to consider in awarding attorneys’ fees are set forth in Standard Guar. Ins. Co. v.

Quanstrum, 555 So.2d 828 (Fla. 1990) and Florida Patient’s Compensation Fund v. Rowe, 472

So.2d 1145 (Fla. 1985).

In Quanstrum, the Supreme Court held that if an attorney is hired on a contingent fee

basis, the trial court should consider whether to apply a “multiplier;” however, the court is not

required to do so. A multiplier, however, cannot be awarded in a PIP case. Fla. Stat. 627.736(8)

(2014).

If defendant pays bill within 30 days (i.e., presuit), then no fee is recovered. Ledesma v.

Bankers Ins. Co., 573 So.2d 1042 (Fla. 3d DCA 1991).

49

There can be no award of reasonable attorney’s fees when payment was made by the

defendant before the suit was filed. Florida Life Ins. Co. v. Fickes, 613 So.2d 501 (Fla. 5th DCA

1993).

Defense attorney’s time sheets and time expended in the defense of a case may become

relevant and can be produced when the defendant has contested the time expended by plaintiff’s

attorney(s). Margel v. Bob Dance Dodge, 739 So.2d 720 (Fla. 5th DCA 1999); Brown

Distributing Co. of West Palm Beach v. Marcel, 866 So. 2d 160 (Fla. 4

DCA 2004).

If defense attorney’s time sheets are to be produced, the time sheets or bills can be

“sanitized” to protect attorney/client privileges. Old Holdings Ltd. v Taplin, Howard, Shaw &

Miller, P.A., 584 So.2d 1128 (Fla. 4th DCA 1991).

“Billings” of an attorney are not “work-product.” Eastern Air Lines, Inc. v Gellert, 431

So.2d 329 (Fla. 3d DCA 1983).

The burden of proof is on the attorney claiming the attorney/client privilege. Surrett v.

Galiardo, 323 So.2d 53 (Fla. 4th DCA 1975).

If a privilege has been raised by the attorney, the trial court can conduct an “in-camera”

inspection of the records. Allstate Ins. Co., Inc. v. Walker, 583 So.2d 356 (Fla. 4th DCA 1991).

A medical care provider can recover reasonable attorney’s fees against a defendant

insurance company where the patient signs a Power of Attorney rather than an assignment

benefits. Superior Ins. Co. v. Libert, 776 So.2d 360 (Fla. 5th DCA 2001). An assignee of a

claim is entitled to a reasonable attorney’s fee, if successful. Id.

Plaintiff may claim attorney’s fees when plaintiff has to file motion to enforce settlement.

United Auto Ins. Co. v. Zulma, 661 So.2d 947 (Fla. 4th DCA 1995), rev. denied, 670 So.2d 941

(Fla. 1996); Pepper’s Steel and Alloys, Inc. v. U.S., 850 So.2d 462 (Fla. 2003).

An attorney may not receive additional attorney’s fees for litigating the reasonable

number of hours or the value, per hour, the attorney is seeking. This theory does not change

even if the parties engage in discovery concerning the fees sought. See Arena Parking, Inc. v.

Lon Worth Crow Ins. Agency, 768 So.2d 1107 (Fla. 3d DCA 2000); Shaw v. State ex rel

Butterwoth, 616 So.2d 1094 (Fla. 4th DCA 1993).

However, the plaintiff’s attorney is entitled to fees for litigating “entitlement” to attorney

fees. State Farm Fire and Cas. Co. v. Palma, 629 So.2d 830 (Fla. 1993).

The specific statutory or contractual basis for claim for attorney fees need not be

specifically pled and failure to plead specific basis does not result in waiver of claim. Caufield v.

Cantele, 837 So.2d 371 (Fla. 2002). The Florida Supreme Court found general prayer in

“wherefore” clause is sufficient.

50

Once suit is filed, fees are recovered notwithstanding any good faith belief on part of PIP

adjuster that any benefits were not due. Ortega v. Fortune Ins. Co., 608 So.2d 74 (Fla. 4th DCA

1992).

A good faith belief that benefits are not due is irrelevant in matter of fees. Ins. Co. of

North America v. Lexow, 602 So.2d 528 (Fla. 1992). Compare Liberty National Life Ins. V.

Bailey, 944 So.2d 1028 (Fla. 2d DCA 2006).

Pre-suit legal work can be recovered if necessitated by denial of payment. U.S. Fidelity

and Guar. Co. v. Rosado, 606 So.2d 628 (Fla. 3d DCA 1992).

Attorney can recover for paralegal fees under F.S. 57.104 and refusal to consider such

fees is error. Loper v. Allstate Ins. Co., 616 So.2d 1055 (Fla. 1st DCA 1993).

Attorney cannot bill for secretarial work. Dayco v. McLane, 690 So.2d 654 (Fla. 1st

DCA 1997); Brown v. Jupiter Hosp., 695 So.2d 406 (Fla. 1st DCA 1997); Dep’t of Transp., State

of Fla. v. Robbins & Robbins, Inc., 700 So.2d 782 (Fla. 5th DCA 1997).

Attorney cannot bill for travel time. Gwen Fearing Real Estate, Inc. v. Wilson, 430 So.2d

589 (Fla. 4th DCA 1983); Belmont v. Belmont, 761 So.2d 406 (Fla. 2d DCA 2000).

Payment of a claim, after suit and before judgment, amounts to a “confession of

judgment,” and the plaintiff is entitled to reasonable fees and costs. Ivey v. Allstate, 774 So.2d

679 (Fla. 2000); Wollard v. Lloyd’s and Companies of Lloyd’s, 439 So.2d 217 (Fla.1983).

Once payment is made by defendant after suit, court has no discretion to deny attorney

fees. Losicco v. Aetna Cas. and Sur. Co., 588 So.2d 681 (Fla. 3d DCA 1991).

Attorney fee awarded when defendant paid benefits, after suit filed, but before court

heard defendant’s motion to dismiss for failure to state a cause of action. Payment was

confession of judgment. Avila v. Latin American Property and Cas. Ins. Co., 548 So.2d 894

(Fla. 3d DCA 1989); Amador v. Latin American Property Cas. Ins. Co., 552 So.2d 1132 (Fla. 3d

DCA 1989).

Plaintiff may be entitled to receive and expert witness fee incurred in litigating the

“amount” of an attorney’s fee award. Stokus v. Phillips, 651 So.2d 1244 (Fla. 2d DCA 1995).

B. The Fee Award

Under Fla. Stat. 627.736(8) (2014), “upon request by either party, a judge must make written

findings, substantiated by evidence presented at trial or any hearings associated therewith, that

any award of attorney fees complies” with the statute.

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C. Assessment of Attorney Fees following Voluntary Dismissal

Trial court had jurisdiction to assess attorney fee award pursuant to Fla. Stat. 57.105

against attorney and his client, a healthcare services company, on which company's behalf

attorney obtained an ex parte temporary injunction against defendant business, even though

attorney, prior to trial court's assessment of attorney fee award, filed voluntary dismissal of

action against business. Neustein v. Miami Shores Village, 837 So.2d 1054 (Fla. 3d DCA 2002).

ADDENDUM CASE LAW UPDATE 2022

Please note the following cases as an update to your PIP materials:

1. Uber/Lyft- Tam Limo Services Inc v State Farm, 23 Fla. L. Weekly

Supp. 820a (Fla. 17

Jud. Cir. 2015)

2. Pre-suit Demand Letter- Rivera v. State Farm Mut. Auto. Ins. Co., 317

So.3d 197 (3

DCA 2021)

3. Forum Non Conveniens- Advanced Diagnostics Group v. Ocean

Harbor Cas. Ins. Co., 321 So.3d 772 (Fla. 4

DCA 2021)

4. Limitation of Reimbursement- MRI Associates of Tampa, Inc. v. State

Farm Mut. Auto. Ins. Co., 46 Fla. L. Weekly S379 (Fla. Dec. 9, 2021)

5. Accord and Satisfaction – United Auto Inc. Co. v. Rivero Diagnostic

Ctr., Inc., 327 So.3d 376 (Fla. 3d DCA 2021)

6. Offers of Judgment- Koppel v. Ochoa, 243 So. 3d 886 (Fla. 2018)

7. Confession of Judgment-Bronstein v. Progressive Am. Ins. Co., 47 Fla.

L. Weekly D282 (Fla. 3d DCA Jan. 26, 2022); Garrido v. SafePoint Ins.

Co., 47 Fla. L. Weekly D173 (Fla. 3d DCA Jan. 12, 2022)