IT WAS IMPROPER TO BAR THE INSURER’S REVIEWING PHYSICIAN’S OPINION THAT SOME OF THE TREATMENT PROVIDED WAS NOT MEDICALLY NECESSARY OR RELATED ON THE GROUND THAT THE PHYSICIAN DID NOT PERFORM AN INDEPENDENT MEDICAL EXAM
United Auto v. Garrido, 34 Fla. L. Weekly D2174 (Fla. 3rd DCA October 21, 2009):
In a case governed by Paragraph 627.736(7)(a), a report can be issued by a physician who reviews the examination and treatment records of the insured and said opinion is admissible.
AN INSURER’S DENIAL OF ALL OR SOME BENEFITS IS GOVERNED BY §627.736(4) – HOWEVER, WHERE THE INSURER HAS PAID BENEFITS AND THEN SEEKS TO WITHDRAW OR TERMINATE FURTHER PAYMENTS, §627.736(7) IS APPLICABLE
Partners in Health Chiropractic v. United Automobile Insurance Co., 34 Fla. L. Weekly D2177 (Fla. 3rd DCA October 21, 2009):
This case reminds us that insurance companies can deny PIP claims more than 30 days after submission to the insurer without being overdue. Under §627.736(4)(b), an insurer may deny any claim where there is reasonable proof that the claims or bills are unreasonable, unnecessary or unrelated. In that instance, then, the insurance company is not “overdue” in paying them.
TRIAL COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW IN ENTERING ORDER DETERMINING PUBLIC HAZARD PURSUANT TO SUNSHINE IN LITIGATION ACT – ACT IS ONLY APPLICABLE IF TRIAL COURT HAS ENTERED CONFIDENTIALITY ORDER
Ford Motor Company v. Hall-Edwards, 34 Fla. L. Weekly D2188 (Fla. 3rd DCA October 21, 2009):
Plaintiff filed a lawsuit in 1999. In 2007, the court reversed a jury verdict against Ford because the trial court permitted, over objection, testimony referencing other rollover accidents involving the Ford Explorer, without a showing of substantial similarity between those accidents and the plaintiffs. After remand, the plaintiff filed a notice of public hazard pursuant to §69.081 and motion to prevent the court from entering an order concealing the public hazard. The motion asked the trial judge to find the Ford Explorer was a public hazard under that statute, and to prevent Ford from concealing any information related to the Ford Explorer (including trade secrets or other protected confidential documents) under the statute.
Plaintiff acknowledged that she was bound by the terms of the confidentiality order entered in the federal multi-district litigation (MDL) involving the Ford Explorer rollover lawsuits. Plaintiff did not file a motion to vary the terms of that order, based on the allegedly applicable Florida public hazard law.
Two days before the evidentiary hearing, plaintiff provided Ford’s attorneys a list of allegedly 223 other Ford Explorer lawsuits. At the hearing, the trial judge refused to hear Ford’s witnesses, rendering the evidentiary hearing simply a lengthy colloquy between the plaintiff’s counsel and the trial judge, with only a limited amount of questioning to Ford’s attorneys. Nevertheless, the trial court then found it heard sufficient evidence of the Ford Explorer’s dangerousness to constitute a public hazard.
The Third District reversed. It held that the Sunshine in Litigation Act is applicable only if the trial court has entered a confidentiality order, or if there is a pending motion by the defending party for a confidentiality order. Because there was none in this case, the plaintiff’s motion under this section should have been denied. Section 69.081 prohibits a court from entering an order or judgment which would conceal a public hazard that might be useful to the public. The statute states that a party seeking confidentiality for such information, including trade secrets, must file a motion and show good cause at which point the court then examines the disputed materials.
In this case, the plaintiff was also bound by the confidentiality order entered in the MDL litigation. The Florida Sunshine in Litigation Act does not override the terms of a federal court order, and to get relief from that order, the plaintiff would have had to have gone to the federal court.
The plaintiff also failed to provide Ford with adequate notice of the documents the respondent sought to have examined pursuant to the statute, and the trial court failed to conduct a proper evidentiary hearing. The plaintiff’s motion and the order was also held to be overbroad, covering 3 model types and 11 model years.
Based on all of this, the court found irreparable injury and granted Ford’s petition for writ of certiorari.
TRIAL COURT PROPERLY FOUND THAT NON-COMPLIANT ASSIGNEE OF NO-FAULT BENEFITS WAS PROHIBITED FROM MAKING A CLAIM OR SEEKING PAYMENT UNDER THE POLICY BECAUSE THE EXAMINATION UNDER OATH CLAUSE WAS BINDING UPON IT, AND IT REFUSED TO SUBMIT
Shaw v. State Farm, 34 Fla. L. Weekly D2189 (Fla. 5th DCA October 23, 2009):
Courts have consistently held that an EUO provision in an insurance policy is a condition precedent that must be complied with in order to maintain an action to recover policy benefits. This portion applies even to a third party or an organization making a claim or seeking payment for no-fault benefits.
ERROR TO DENY DIRECTED VERDICT IN PRODUCT LIABILITY WARNINGS CASE, WHERE PRESCRIBING PHYSICIAN TESTIFIED HE WOULD HAVE PRESCRIBED MEDICATION, NOTWITHSTANDING A WARNING LABEL
Hoffmann-La Roche Inc. v. Mason, 34 Fla. L. Weekly D2200 (Fla. 1st DCA October 27, 2009):
The drug manufacturing defendants appealed a money judgment in favor of the plaintiff, which had awarded plaintiff damages against the defendants for placing Accutane on the market with inadequate warnings to physicians about the risk of developing inflammatory bowel disease. Plaintiff asserted that the failure to provide an adequate warning was a substantial contributing cause of the plaintiff’s development of that condition. Plaintiff presented no evidence from either his treating physicians that a differently worded warning would have resulted in either physician not prescribing the medication for his extreme acne. Therefore plaintiff failed to establish that the allegedly deficient warning was the proximate cause of his injury.
Because the trial court should have granted the directed verdict, the First District reversed the jury’s verdict and remanded for entry of judgment in favor of the drug manufacturer.
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