WHEN THE INSURER FAILS TO PAY ANY OR SOME OF AN INSURED’S MEDICAL BILLS, §627.736(4)(b) APPLIES

United Automobile Insurance Co. v. Perez, 34 Fla. L. Weekly D2267 (Fla. 3^rd DCA November 4, 2009):

When the insurer fails to pay any or some of an insured’s medical bills under PIP, §627.736(4)(b) requires only that it have reasonable proof that it rejected payment of bills because they are unreasonable, unrelated or unnecessary.  That proof may be supplied by a report prepared in accordance with §627.736(7)(a) or otherwise, and may be provided at any time.  In this case, the appellate division erred in concluding that the report was untimely (it was prepared a year after the PIP suit was filed) and in concluding the report was untimely and could not be used.

INSURED HAS NO PRIVATE CAUSE OF ACTION AGAINST A PIP INSURER WHO FAILS TO PROVIDE AN ITEMIZED SPECIFICATION OF EACH ITEM THE INSURER HAS REDUCED, OMITTED OR DECLINED TO PAY WITHIN 30 DAYS AFTER BEING FURNISHED WITH WRITTEN NOTICE OF LOSS

United Automobile Insurance Co. v. A 1st Choice Healthcare Systems, 34 Fla. L. Weekly D2268 (Fla. 3^rd DCA November 4, 2009):

There is no requirement or deadline for a personal injury protection insurer to respond to a request for payment.  An insurer may deny a PIP claim in whole or in part either before or after the claim becomes overdue, provided that it has reasonable proof it is not responsible for the payment. 

The statute does not afford a private right of action against an insurer for its failure to meet the 30 day deadline for submission of an EOB.  The only cause of action authorized by the statute is one for PIP benefits.

NO ERROR IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT WHERE PLAINTIFF SPLIT HER CAUSE OF ACTION BY FIRST OBTAINING JUDGMENT FOR PROPERTY DAMAGE TO HER MOTOR VEHICLE, AND THEN FILING SUIT FOR PERSONAL INJURIES FROM SAME ACCIDENT

Bryant v. Tarman, 34 Fla. L. Weekly D2276 (Fla. 5^th DCA November 6, 2009):

All damages claimed as a result of a single wrongful act must be sought in one lawsuit, even when it involves a motor vehicle accident.  The law does not permit the owner of a single cause of action to divide or split that cause of action so as to make it the subject of several lawsuits.

THE PARTIES’ ARBITRATION AGREEMENT IN A NURSING HOME CASE WAS NOT RENDERED INVALID OR UNENFORCEABLE SIMPLY BECAUSE THE AAA BECAME UNAVAILABLE TO CONDUCT THE ARBITRATION – INSTEAD CIRCUIT COURT MUST APPOINT ANOTHER ARBITRATOR OR ARBITRATORS

Perez v. Life Care Centers, 34 Fla. L. Weekly D2277 (Fla. 5^th DCA November 6, 2009):

Plaintiff did not present any evidence in the circuit court that the choice of the AAA as the forum for the arbitration proceedings was an integral part of the agreement to arbitrate.  Thus, when the AAA changed its rules and procedures to no longer handle healthcare cases, that was not fatal to the agreement to arbitrate itself; it simply required the appointment of another arbitrator. 

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SUPREME COURT CLARIFIES WHEN STATUTE OF LIMITATIONS ON LEGAL MALPRACTICES CASES BEGINS TO RUN

Larson & Larson v. TSE Industries, 34 Fla. L. Weekly S591 (Fla. 2^nd DCA November 5, 2009):

In this case, the plaintiff instituted a legal malpractice action more than two years after the entry of final judgment (there was no appeal), but less than two years after the court issued an order awarding attorney’s fees against the legal “malpracticing” appellant, as an additional sanction. 

After reaffirming its decision in Silvestrone, 721 So. 2d 1173 (Fla. 1998), the court held that the “redressable harm” as articulated by Silvestrone may occur at two different times.  In the Larson case, the court held that the legal malpractice claim regarding the final judgment was barred, but the malpractice action regarding the sanctions claimed was not barred.  Because they were two different instances of “redressable harm,” there are two different statutes of limitations.  The court rejected a Second District decision which held that the statute of limitations for the entire action did not begin until the case was completely concluded and the stipulation to dismiss was filed. 

ERROR TO GRANT SUMMARY JUDGMENT ON STATUTE OF LIMITATIONS IN MEDICAL MALPRACTICE CASE WHERE QUESTION OF FACT AS TO WHEN PLAINTIFF SHOULD HAVE HAD “REASONABLE POSSIBILITY” THAT EYE PAIN WAS RESULT OF NEGLIGENCE

Cohen v. Cooper, 34 Fla. L. Weekly D2210 (Fla. 4^th DCA October 28, 2009):

In November of 1997, a doctor performed a facelift.  The plaintiff awoke to excruciating pain in her left eye and severe jaw pain.  She had additional procedures on her eyelid and even testified that in September of 1998, she realized the doctor “had somehow erred in the procedure on her face.”  Still, she also testified that the doctor assured her recovery was slow and did not file until more than two years after the procedure.  The Fourth District reminded us that “simply suspecting wrongdoing is not enough” when determining when the statute of limitations accrues.

Because there was conflicting evidence as to when plaintiff should have known of a reasonable possibility that her eye pain was a result of medical negligence, it was error to grant summary judgment. 

DISCOVERY REGARDING BAD FAITH CLAIM IS PREMATURE WHERE COVERAGE ISSUES HAVE NOT BEEN DETERMINED

Geico v. Rodriguez, 34 Fla. L. Weekly D2223 (Fla. 3^rd DCA October 28, 2009).

ERROR IN ADMITTING CERTAIN EVIDENCE AND IN NOT ALLOWING FABRE DEFENDANTS ON VERDICT FORM

Honeywell Internat’l, Inc. v. Guilder, 34 Fla. L. Weekly D2224 (Fla. 3^rd DCA October 28, 2009):

The plaintiffs obtained a 24 million dollar verdict for the injuries plaintiff sustained due to asbestos exposure.  Before trial, the manufacturer defendant unsuccessfully sought to exclude a letter written by a successor manufacturer’s employee.

After the manufacturer rested, plaintiffs moved for a directed verdict on their claims that the verdict form should not include other third parties as Fabre defendants, because of lack of evidence.  The trial judge agreed and did not include them on the verdict form. 

In looking at the letter the employee of the successor manufacturer wrote, the court found it was relevant to proving the manufacturer’s knowledge of the dangers of asbestos.  However, the court found the sentence, “My answer to the problem is:  if you have enjoyed a good life while working with asbestos products, why not die from it.  There’s got to be some cause,” was unfairly prejudicial and should have been redacted.  The failure to do so was error. 

The court also held it was error to exclude the Fabre defendants.  The court found the manufacturer defendant pleaded the fault of non-parties, and presented sufficient evidence of non-party negligence (trial court had found the opposite).  Thus, it was error not to include them. 

Finally, the court found the substantial award given for loss of parental consortium was also error, because the cause of action only applied to “acts of negligence occurring on or after” the statute’s effective date, which was after the plaintiff’s exposure to asbestos.  Thus, that award was erroneous too.  The court further noted that the settlements with prior defendants had to be set off pursuant to the Wells case.

ERROR TO DISMISS CASE FOR FRAUD ON THE COURT WHEN PLAINTIFF’S VERSION OF THE ACCIDENT DIFFERED AS TO LIABILITY AND UM CARRIERS

Bueno v. Workman, 34 Fla. L. Weekly D2227 (Fla. 4^th DCA October 28, 2009):

Plaintiff and her minor son were rear ended.  There was some question as to whether they were rear ended by a single vehicle, or whether a third vehicle had rear ended the second vehicle in to them.  In front of the liability carrier, plaintiff seemed to assert the former, and to the UM carrier, the latter.

Judge French dismissed the plaintiff’s case based on equitable and judicial estoppel.  The Fourth explained those concepts and held they would not apply until the court made factual findings to support them.

Equitable estoppel is based on principles of fair play and essential justice arise when one party lulls another party into a disadvantageous position.  Judicial estoppel is an equitable doctrine use to prevent litigants from taking totally inconsistent positions in separate judicial and quasi-judicial proceedings.  Waiver is the intentional relinquishment of a known right, and the purpose of election of remedies is to prevent double recoveries for a single wrong. 

The Fourth District reversed, finding it would be necessary for the trial court to conduct an evidentiary hearing on the fraud, as the court found it was premature to express any opinion on the admissibility of evidence or possible outcomes of that hearing.  As it stood, the elements could not be met.

FINAL JUDGMENT ERRONEOUSLY ENTERED FOR PLAINTIFF WHEN PARTIES HAD ENTERED INTO ENFORCIBLE SETTLEMENT AGREEMENT BEFORE SUIT – LETTERS EXCHANGED CONSTITUTED SETTLEMENT AGREEMENT

Hanson v. Maxfield, 34 Fla. L. Weekly D2246 (Fla. 1^st DCA October 30, 2009):

After litigation, plaintiff’s trial counsel sent a letter stating that he believed the clients were in the position to accept the policy limits and release the defendants.  The letter also noted that there were unanswered questions about potential coverage, and that a release would have to be drafted not to impair plaintiff’s rights against other defendants.  There was one more requirement that plaintiff receive a properly certified policy to confirm there was no other coverage available to the owner or the driver.

In response, defendants stated that State Farm accepted the offers and would pay $10,000 to each plaintiff.  It also heeded the release terms, and enclosed a copy of the policy. 

The plaintiff sought to avoid settlement, by contending that the insurance policy disclosures did not comply with the disclosure requirements of the statute and therefore the terms of the settlement were not met.  However, the First District found the essential terms were met, in that the defendant would pay the plaintiff policy limits, structure the release to avoid impairing other claims, and deliver a proper certified policy.  Because there was evidence of acceptance on the crucial terms, the settlement was enforced.

The court then noted that on remand, the plaintiff could assert that even if the settlement was reached, the defendants failed to perform essential conditions of the settlement agreement.  In that event, the trial court was instructed to determine whether the defendants failed to perform their obligations under the agreement and if so, what remedy would be appropriate.

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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. 3^rd 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. 3^rd 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. 3^rd 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. 5^th 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. 1^st 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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TRIAL COURT DID NOT ABUSE DISCRETION AFTER CONCLUDING PLAINTIFF DID NOT CONDUCT A REASONABLE INVESTIGATION WHEN AFFIDAVIT ATTACHED TO NOTICE OF INTENT WAS DONE BY FAMILY MEMBER

Derespina v. North Broward Hospital District, 34 Fla. L. Weekly D2094 (Fla. 4^th DCA October 14, 2009):

Accompanying the plaintiff’s notice of intent to initiate litigation was the affidavit of her sister, a nurse with 46 years of experience, who also happened to be the mother of the plaintiff’s attorney.  The affidavit stated she had reviewed the records and had concluded the medical malpractice claim had merit. 

The defendant hospital argued plaintiff failed to conduct a reasonable investigation because a biased affiant could not be the product of a reasonable investigation. 

After an evidentiary hearing at which the sister testified, the court determined that she was not unbiased, had not billed for her time in reviewing the file, and had no special expertise in the subject matter.  The court concluded that the plaintiff could have easily obtained a nurse without family ties to the plaintiff to give an expert opinion in the Fort Lauderdale area, but none was ever sought. 

Based upon the findings of the trial judge after an evidentiary hearing, the 4^th DCA found that the investigation of malpractice did not constitute a reasonable investigation as contemplated by the statute, and the subsequent dismissal of the complaint (even though the statute of limitations had run) was not an abuse of the judge’s discretion. 

TRIAL COURT IMPROPERLY OVERRULED DEFENDANT’S OBJECTION TO PLAINTIFF’S REQUEST THAT DEFENDANT’S EXPERT MEDICAL WITNESS PRODUCE ALL 1099′S OR EQUIVALENT DOCUMENTS FOR THE CALENDAR YEAR EVIDENCING ALL IME RELATED INCOME

Buck v. Chin, 34 Fla. L. Weekly D2100 (Fla. 3^rd DCA October 14, 2009):

The trial judge overruled defendant’s objections, asking Dr. Stephen Wender to produce all 1099’s or equivalent documents for the year 2007,  to show IME related income for that year.  The court granted the petition for writ of certiorari, finding that Rule 1.280(b)(4)(A)(iii) does not support the production of such evidence to show expert bias, and only can allow such documents to be compelled under the most unusual or compelling circumstances (like when there has been a falsification or misrepresentation).  The mere inconsistency between Dr. Wender’s deposition testimony and his interrogatory answers did not serve as the compelling circumstance needed. 

TRIAL COURT ABUSED DISCRETION IN DISMISSING COMPLAINT DUE TO UNTIMELY SERVICE OF PROCESS

Roberts v. Stidham, 34 Fla. L. Weekly D2134 (Fla. 5^th DCA October 16, 2009):

Appellant served her complaint 32 days after the 120 days expired.  She asserted she had good cause for the delay because there were multiple attempts made at service. 

The trial court still granted the defendant’s motion to dismiss, stating it was incumbent upon the plaintiff to move for an enlargement of time to effect service of process before the time ran, particularly when she knew or reasonably should have known that it would not be accomplished within the 120 days. 

Reviewing the dismissal for abuse of discretion, the court said that when a plaintiff shows good cause for failing to serve process within 120 days, the trial court must extend the time for service, and has no discretion to do otherwise.  The trial court also has broad discretion to extend the time for service even when good cause for failing to meet the 120 day deadline has not been shown. 

However, even when there has been no showing of good cause or excusable neglect, and the statute of limitations has run, discretion should be exercised in favor of allowing the plaintiff an extension to accomplish service.  Because the affirmative steps taken in the case were clearly adequate to avoid dismissal with prejudice, the trial court abused its discretion. 

WHERE PARTIES PARTICIPATED IN RELIGIOUS MARRIAGE CEREMONY WITHOUT OBTAINING A MARRIAGE LICENSE, THE LACK OF A MARRIAGE LICENSE DOES NOT NECESSARILY UNDERMINE THE EXISTENCE OF A VALID MARRIAGE – UNLICENSED MARRIAGES ARE NOT FACIALLY INVALID

Hall v. Maal, 34 Fla. L. Weekly D2152 (Fla. 1^st DCA October 20, 2009).

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