AMENDMENT TO FLORIDA BAR RULES – WEBSITES ARE SUBJECT TO ALL OF THE SAME SUBSTANTIVE ADVERTISING REGULATIONS APPLICABLE TO OTHER ADVERTISING MEDIA EXCEPT FOR THE FILING REQUIREMENT

In Re: Amendments to the Rules Regulating the Florida Bar Rule 4-7.6, “Computer Accessed Communications,” 34 Fla. L. Weekly S627 (Fla. November 19, 2009).

STATUTORY REQUIREMENT IN PIP STATUTE THAT PHYSICIAN’S REPORT BE FACTUALLY SUPPORTED BY EXAMINATION AND TREATMENT RECORDS DOES NOT APPLY TO CASES WHERE THE INSURER HAS DENIED BENEFITS RATHER THAN WITHDRAWN THEM

State Farm v. Hyma Medical Center, 34 Fla. L. Weekly D2305 (Fla. 3^rd DCA November 12, 2009):

Under §627.736(7)(a), the insured contended the reviewing physician’s affidavit was not factually supported by the examination and treatment records of the insured.  While that is correct, the court reminded us that in a “denial” case, where the insurer never pays any of the claims, the appropriate statute is §627.736(4)(b).  That section pertains to circumstances where the insurer has either reduced, omitted, or declined payment of PIP claims.

By contrast, §627.736(7)(a) is applicable in a withdrawal case, where the insurer has made payments but then seeks to withdraw future ones for the same injury. 

Because this case involved withdrawal, the section requiring the affidavit and review did not apply.  The circuit court departed from the essential requirements of law in upholding judgment for the insured on that basis. 

TRIAL COURT ERRED WHEN IT FOUND ARBITRATION CLAUSE IN NURSING HOME ADMISSION AGREEMENT SIGNED BY DECEDENT’S DAUGHTER UNENFORCEABLE

Candansk v. State of Hicks, 34 Fla. L. Weekly D2326 (Fla. 2^nd DCA November 13, 2009):

The language in the power of attorney granted the power to act in the person’s name, place and stead in any way “which I myself could do if I were personally present with respect to…claims and litigation.”  The court noted the power of attorney need not expressly refer to arbitration to confer the authority to agree to such a method of dispute resolution. 

The power of attorney was modeled on a widely used statutory form, and the court found it unambiguously conferred on the “attorney in fact,” the general power to act in any way the decedent could have acted with respect to claims and litigation.  As that general power included the power to agree to submit to an arbitration, the court should have ordered the clause enforceable. 

DURABLE POWER OF ATTORNEY ALSO SUFFICIENTLY BROAD TO CONFER UPON INDIVIDUAL WHO SIGNED NURSING HOME ARBITRATION AGREEMENT THE AUTHORITY TO BIND DECEDENT TO ARBITRATION IN ADMISSIONS CONTRACT – WHETHER ARBITRATION AGREEMENT’S LIMITATION ON STATUTORY REMEDIES RENDERS THE AGREEMENT UNENFORCEABLE ON PUBLIC POLICY GROUNDS IS QUESTION FOR ARBITRATOR, NOT TRIAL COURT

Jaylene, Inc. v. Steuer, 34 Fla. L. Weekly D2333 (Fla. 2^nd DCA November 13, 2009):

This case is basically the same as the one reported above, except that the Second District’s decision finding that the arbitrator and not the trial court should look at the enforceability of the agreement on public policy grounds, conflicts with the First, Fourth and Fifth Districts.  The court certified the conflict.

CIRCUIT COURT ACTING IN APPELLATE CAPACITY DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW WHEN IT REVERSED TRIAL JUDGE’S ORDER AWARDING A CONTINGENCY FEE MULTIPLIER BECAUSE PLAINTIFF DID NOT TESTIFY SHE HAD DIFFICULTY SECURING COUNSEL TO REPRESENT HER WITHOUT A MULTIPLIER – EXPERT TESTIMONY, HOWEVER, SUPPORTED IT

Massie v. Progressive Express Insurance, 34 Fla. L. Weekly D2364 (Fla. 1^st DCA November 17, 2009):

The circuit court reversed the trial judge’s order awarding a multiplier based on the plaintiff’s failure to testify that she had difficulty securing counsel to represent her without a multiplier.  However, because there was expert testimony that the plaintiff would have had difficulty securing counsel without the opportunity of a multiplier, the record supported the imposition of one. 

*Available to handle appellate and trial support matters for attorneys throughout the state.

This entry was posted on Thursday, December 3rd, 2009 at 2:30 pm and is filed under The Week in Torts. You can follow any responses to this entry through the RSS 2.0 feed. Responses are currently closed, but you can trackback from your own site.