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New Releases
from Florida's Circuit and County Courts

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Criminal law -- Driving under influence -- Search and seizure -- Vehicle stop -- Traffic infraction -- Wrong way driving -- Where there were no traffic control devices along portion of street on which defendant drove designating street for one-way traffic, stop for driving wrong way on one-way street was not lawful -- Motion to suppress granted
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical benefits -- Statutory fee schedules -- Insurer made clear and unambiguous election to limit reimbursement based on various fee schedules where policy stated that in no event would it pay more than the amounts allowed in permissive payment methodology
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- PIP policy that not only complies with notice provision of section 627.736(5)(a)5 but also clearly advises that in no event will insurer pay any amount above fee schedule amount provided sufficient notice of insurer's intent to limit reimbursement to permissive statutory fee schedule
VIEW OPINION

Insurance -- Personal injury protection -- Demand letter -- Medical provider was not required to submit demand letter as condition precedent to filing amended complaint to include charges for dates of service not mentioned in original complaint -- No merit to argument that demand letter is required where amendment alleges additional charges that were denied by insurer for reasons other than those given for denying charges that were subject of original complaint
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- PIP policy that not only complies with notice provision of section 627.736(5)(a)5 but also clearly advises that insurer will limit reimbursement to schedule of maximum charges provided sufficient notice of insurer's intent to limit reimbursement to permissive statutory fee schedule
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- PIP policy that not only complies with notice provision of section 627.736(5)(a)5 but also clearly advises that in no event will insurer pay any amount above fee schedule amount provided sufficient notice of insurer's intent to limit reimbursement to permissive statutory fee schedule
VIEW OPINION

Consumer law -- Debt collection -- Florida Consumer Collection Practices Act -- Fair Debt Collection Practices Act -- Communication with debtor represented by counsel -- Discovery -- Documents -- Defendant that has raised bona fide error defense is ordered to produce any policies or procedures associated with collection activity when debtor is represented by counsel and training materials concerning compliance with those policies and procedures -- Interrogatories -- Defendant is ordered to identify all lawsuits and complaints filed against it in Florida in past four years alleging violations of FCCPA and FDCPA by directly contacting represented debtor and to provide lists of employees or representatives who sent documents to or made telephone calls to plaintiff
VIEW OPINION

Consumer law -- Debt collection -- Affirmative defenses to complaint alleging violation of Florida Consumer Collection Practices Act are stricken in whole or part
VIEW OPINION

Consumer law -- Debt collection -- Florida Consumer Collection Practices Act -- Jury trial waiver and notice and cure provision in mortgage are inapplicable to FCCPA action
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Emergency services -- Deductible -- Insurer improperly processed medical bills out of order by applying deductible to bill from emergency medical provider, which was third bill received, instead of applying deductible to first bill received -- Standing -- Assignment -- Insurer has waived any right to contest provider's standing based on provider's failure to attach assignment to demand letter where insurer did not apprise provider of deficiency when it received bill and subsequent demand letter, but instead applied bill to deductible -- Provider has standing as real party in interest where provider was required by law to treat insured, insured has not made claim for provider's services, and insurer issued explanation of benefits directly to provider -- As member of class of persons that legislature intended to protect by enacting section 627.736(4)(c) requirement that PIP insurers reserve benefits for emergency service providers, provider has standing to enforce that statute
VIEW OPINION

Insurance -- Personal injury protection -- Deductible -- Insurer improperly processed medical bills by applying PIP deductible out of order to otherwise compensable bills -- Standing -- Failure to attach written assignment to complaint -- Insurer waived right to assert any defects in claim submitted by plaintiff or in presuit demand letter when it failed to give any notice to plaintiff regarding alleged deficiencies -- Plaintiff emergency room physician had standing to maintain action given laws on equitable assignment, real party in interest, and as the entity that statute sought to protect -- Insurer to pay balance remaining plus interest
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Insurer failed to make clear and unambiguous election to utilized permissive statutory fee schedule to reimburse bills for medical services -- Policy language indicating that insurer would pay 80% of reasonable charges and also stating that insurer would not pay more than 80% of schedule of maximum charges created impermissible hybrid reimbursement methodology -- Further, PIP policy includes significant impermissible deviations from PIP statute that purport to allow insurer to rely on fee schedules not listed in statute and Medicare payment methodologies and policies to pay even less than minimum amount allowed under PIP statute and to provide for reductions in insured's coinsurance amount -- Approval of policy by Office of Insurance Regulation does not automatically validate legal sufficiency or enforceability of contents of policy
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- Depositions -- Scope of inquiry and documents to be produced at deposition of insurer's corporate representative
VIEW OPINION

Criminal law -- Driving under influence -- Officer could not properly or legally require blood sample under section 316.1932(1)(c) where impossibility or impracticality of breath or urine test was not demonstrated -- Officer could not properly or legally require blood sample under section 316.1933(1)(a) where there was no evidence that defendant's driving caused death or serious bodily injury of a human being or that defendant suffered serious bodily injury -- Defendant's consent to blood test was not voluntary where consent was given after officer erroneously informed defendant he must consent to blood draw or driver's license would be suspended -- Motion to suppress blood draw and all results of testing granted
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- Depositions -- Where deposition testimony of insurer's litigation adjuster will have no bearing on issue of whether demand letter satisfied statutory condition precedent, and facts in adjuster's affidavit authenticating claim file and demand letter are not currently in dispute, requested deposition of adjuster is unnecessary prior to hearing on motion for summary judgment based on invalid demand letter
VIEW OPINION

Attorney's fees -- Sanctions -- Fraud on court -- Plaintiff and counsel acted in bad faith by willfully and intentionally failing to disclose existence and validity of contract between plaintiff and defendant in order to avoid having to pay defendant's reasonable attorney's fees -- Defendant entitled to attorney's fees and costs for entire case, including all trial court and appellate court proceedings, to be paid by plaintiff, law firm, and individual attorneys, jointly and severally -- Defendant also entitled to recover attorney's fees and costs pursuant to contract and reciprocal fee provision of section 57.105(7)
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Emergency medical condition -- Insurer did not unreasonably limit reimbursement to $2500 in absence of determination by qualified provider that claimant had emergency medical condition -- Post-suit payment of additional benefits did not amount to confession of judgment
VIEW OPINION

Landlord-tenant -- Public housing -- Eviction -- Notice -- Defects -- Where seven-day notice of non-compliance with opportunity to cure failed to provide tenant with notice of specific violations and how to cure those violations, notice lacked specificity required by law and cannot be used as predicate to notice to terminate tenancy for repeated conduct within twelve months
VIEW OPINION

Attorney's fees -- Mutuality or reciprocity of obligation -- Defendant entitled to prevailing party attorney's fees pursuant to section 57.105(7) following voluntary dismissal -- Fee award not precluded by defendant's failure to plead entitlement prior to notice of voluntary dismissal -- Record refutes claim that defense counsel's notice of appearance and fee motion were filed after notice of voluntary dismissal
VIEW OPINION

Attorney's fees -- Sanction for inequitable conduct -- Plaintiff sanctioned for filing statement of claim requesting monies which it had, in part, already received and plaintiff's refusal to accept defendant's tender of lump sum specified by settlement agreement in open court
VIEW OPINION

Attorney's fees -- Sanctions -- Plaintiff not sanctioned for failing to comply with prior court order awarding attorney's fees to defendant based on plaintiff's inequitable conduct where plaintiff satisfied attorney's fee award, albeit in untimely manner -- Moreover, notice of voluntary dismissal eliminated jurisdiction of trial court except under limited circumstances not present in instant case -- Rule 1.540(b)(3) not basis for setting aside voluntary dismissal in small claims action in which rules of civil procedure were not invoked; and even if rule applied, controlling authority precludes court from entering sanctions order under circumstances
VIEW OPINION

Insurance -- Personal injury protection -- Provider's motion for relief from order granting defendant's motion for final judgment and related motion for sanctions is denied -- Filing of notice of voluntary dismissal without leave of court after hearing on motion for summary judgment had been completed did not deprive court of jurisdiction to enter written order granting summary judgment -- Plaintiff's allegations of fraud upon court, made over a year after entry of written final summary judgment, were improper/lacking any evidentiary basis, and not made
VIEW OPINION

Attorney's fees -- Proposal for settlement -- Insurance -- Personal injury protection -- Insurer's nominal proposal for settlement, which included $1.00 for medical benefits and $1.00 for plaintiff's attorney's fees and costs, was made in good faith -- Insurer entitled to award of attorney's fees where plaintiff did not respond within required 30-day period and final summary judgment finding zero liability was entered in favor of insurer
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Related and necessary treatment -- Where insurer did not provide written statement disputing relatedness or necessity of treatment prior to motion for summary judgment but, instead, made numerous admissions that treatment was related and necessary, treatment is deemed related and necessary and insurer is estopped from conducting discovery on those issues
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- PIP policy does not clearly and unambiguously incorporate schedule of maximum charges
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- Depositions -- Motion to compel deposition of pre-litigation adjuster who made determination to reduce or deny medical provider's bills, rather than claims representative or litigation adjuster offered for deposition by insurer, is granted
VIEW OPINION

Insurance -- Discovery -- Failure to comply -- Sanctions -- Insurer's failure to lodge timely objections to discovery has waived all objections to interrogatories and request to produce other than privilege -- Insurer is directed to serve amended discovery response without asserting objections other than privilege
VIEW OPINION

Insurance -- Personal injury protection -- Standing -- Assignment -- Motion to dismiss for lack of standing is granted where insured assigned benefits to individual physician, not to plaintiff medical provider, and purported assignment only assigns right to collect payments, not right to bring direct action against insurer
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Summary judgment -- Opposing affidavit filed by insurer does not preclude summary judgment in favor of medical provider on issue of reasonableness of medical provider's charge where affidavit is self-serving, conclusory, devoid of sufficient facts or data, is based on inadmissible hearsay and lacks reliable principles -- Fact that Medicare, HMOs and PPOs pay less than amount billed by provider does not create factual issue as to reasonableness of charge
VIEW OPINION

Landlord-tenant -- Public housing -- Eviction -- Termination of Section 8 voucher -- Due process -- County failed to meet burden of proof by preponderance of evidence and violated tenant's right to due process when it terminated tenant from voucher program based on hearsay evidence of Department of Corrections supervision report purporting to show that tenant's ex-boyfriend lived in her subsidized unit, and tenant was not allowed to cross-examine ex-boyfriend or probation officer -- Supervision report was not inherently reliable inasmuch as information on report was submitted by criminal and not verified by department -- County ordered to reinstate tenant into voucher program and make retroactive housing assistance payments to landlord
VIEW OPINION

Attorney's fees -- Insurance -- Personal injury protection -- Provider is entitled to attorney's fees incurred in action against insurer for failure to pay statutory penalty when it paid claim following receipt of plaintiff's demand letter -- Court rejects insurer's argument that penalty is not the recovery of insurance benefits under the policy that would trigger award of attorney's fees pursuant to section 627.428
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Provider made prima facie showing of reasonableness of charges by presenting medical bill for the service at issue and testimony that the patient received the treatment in question -- Affidavit submitted by insurer in opposition to provider's motion for summary judgment did not meet Daubert standard where expert relied primarily on personal experience without explaining how experience led to opinion, why experience was sufficient basis for opinion, and how experience was reliably applied to facts
VIEW OPINION

Insurance -- Coverage -- Medical expenses -- Denial -- False and misleading statements on billing statements
VIEW OPINION

Insurance -- Personal injury protection -- Exhaustion of benefits -- By introducing some evidence that there may have been improperly paid claims and showing evidence of potential unlicensed and fraudulent activity by other providers whose claims were paid by insurer, plaintiff demonstrated genuine issues of fact as to whether benefits were exhausted by payment of invalid claims -- Plaintiff was not required to prove that insurer acted intentionally or with knowledge of any impropriety in its payments -- Insurer's motion for summary judgment on ground that benefits were exhausted is denied
VIEW OPINION

Insurance -- Personal injury protection -- Deductible is to be applied to 100% of reasonable and necessary medical expenses -- Because reasonableness of charges was disputed, provider is not entitled to summary judgment on count alleging insurer improperly applied deductible to reduced charges rather than to 100% of provider's bill
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Insurer paid provider in conformity with Medicare Part B participating physician fee payment schedule, which was properly incorporated into policy -- Fee schedule published by federal government on CMS website is not hearsay -- Summary judgment in favor of insurer not precluded by outstanding discovery, assuming plaintiff acted diligently in obtaining discovery, where the outstanding discovery is not necessary to determination of issue before the court -- Plaintiff's motion to strike affidavit in support of motion for summary judgment is denied -- Affidavit of insurer's adjuster demonstrated adjuster's personal knowledge of claim, and the information contained in affidavit is admissible -- With respect to documents attached to affidavit, explanation of benefits and PIP medical detail list are hearsay, and defendant failed to lay predicate for admission of these documents under business records exception -- Defendant's motion for section 57.105 sanctions is denied
VIEW OPINION

Insurance -- Personal injury protection -- Declaratory actions -- Motion to dismiss complaint seeking declaration as to whether insurer can combine both reasonable amount method of reimbursement and statutory fee schedule method of reimbursement into hybrid method of reimbursement is denied -- Existence of another remedy at law through action for breach of contract does not preclude judgment for declaratory relief
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Exhaustion of policy limits -- Where PIP benefits were exhausted in payments to medical providers, and there is no evidence that gratuitous payments were made or that insurer acted in bad faith, no further benefits are due and owing
VIEW OPINION

Insurance -- Personal injury protection -- Service of process -- Failure to perfect within 120 days -- Motion to dismiss granted
VIEW OPINION

Criminal law -- Driving under influence -- Search and seizure -- Arrest -- Paramedic who observed defendant behind wheel of vehicle stopped in roadway and who confiscated defendant's keys was not an “officer” whose knowledge that defendant was driving or in actual physical control of vehicle could be imputed to law enforcement -- Paramedic did not, according to his testimony, have purpose or intention of effecting a citizen's arrest -- Any evidence collected after defendant was arrested by law enforcement must be suppressed, including any statements of defendant and the results of defendant's breath test -- Statements of defendant prior to arrest are admissible as, under totality of circumstances, reasonable person would not have believed that freedom to leave was curtailed -- Motion to suppress field sobriety exercises for alleged failure to comply with NHTSA standards is more accurately treated as motion in limine to exclude unreliable scientific evidence -- Ruling on this issue deferred until such evidence is offered at trial
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Where definition of “reasonable charge” in PIP policy is hybrid of factors found in reasonable amount method of reimbursement and provisions from fee schedule method of reimbursement, policy is ambiguous as to reimbursement method and did not specifically elect fee schedule method of reimbursement -- Approval of PIP policy form by Office of Insurance Regulation does not override requirement that policy provide insured with notice of election of one of two payment methodologies
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Where definition of “reasonable charge” in PIP policy is hybrid of factors found in reasonable amount method of reimbursement and provisions from fee schedule method of reimbursement, policy is ambiguous as to reimbursement method and did not specifically elect fee schedule method of reimbursement
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- In provision of PIP statute allowing for use of alternate method of calculating reimbursement in event provider submits charge for an amount that is “less than the amount allowed under subparagraph a” and similar provision of PIP policy, “amount allowed under subparagraph a” is 80% of 200% of allowable amount under Medicare fee schedule, not 80% of fee schedule amount -- Where billed amount exceeds 80% of 200% of allowed amount under Medicare fee schedule, insurer was required to pay 80% of 200% of fee schedule amount, not 80% of billed amount
VIEW OPINION

Mortgage foreclosure -- Consumer law -- Debt collection -- Florida Consumer Collection Practices Act is not applicable to mortgage foreclosure action -- Monthly mortgage statement required by federal Truth in Lending Act regulation is a federally mandated informational disclosure, not an attempt to collect a debt -- Involuntary dismissal without prejudice of mortgage foreclosure action does not relieve borrower of all moneys due and owing up to that point and, accordingly, does not preclude future efforts to collect full amount owed
VIEW OPINION

Criminal law -- Traffic infractions -- Speeding -- Sentencing -- Where defendant drove motor with passenger in excess of 150 mph in 65 mph zone to avoid traffic stop, sentencing court exercises discretion under section 322.26(8) to direct Department of Highway Safety and Motor Vehicles to revoke defendant's driver's license
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous election by insurer -- PIP policy that states that insurer will determine to be unreasonable any charges that exceed schedule of maximum charges and will limit reimbursement to 80% of schedule of maximum charges provides notice that insurer will limit reimbursement to statutory fee schedule and allows insurer to apply Medicare payment methodologies, including Multiple Procedure Payment Reduction, to determine appropriate amount under fee schedule -- Deductible -- Insurer properly applied statutory fee schedule to bills before applying resulting amount to deductible
VIEW OPINION

Insurance -- Personal injury protection -- Med Pay -- Declaratory actions -- Motion to dismiss action seeking declaration as to whether insurer paid claims pursuant to hybrid method rather than reasonable amount method or statutory fee schedule, whether insurer was entitled to do so or was required to use either fee schedule or reasonable amount method, and whether insurer was entitled to rely on Multiple Procedure Payment Reduction is denied where complaint properly sets out matter for determination within contemplation of declaratory judgment statutes -- Declaratory judgment is not precluded merely because another adequate remedy is available -- Motion to strike medical provider's claim for attorney's fees and costs is denied where motion is premature when court has not yet entered judgment or decree that might entitle provider to fee award -- No merit to argument that recovery of attorney's fees and costs under section 627.428 is limited to cases in which plaintiff recovers benefits
VIEW OPINION

Insurance -- Personal injury protection -- Deductible applies to actual amount payable by the insurer and does not apply to uncovered charges -- Insurer is not required to automatically apply PIP deductible to full, face amount of provider's bills before making any determination regarding propriety of bill amount or what billed items are allowed or covered under the insurance policy
VIEW OPINION

Insurance -- Homeowners -- Standing -- Motion for judgment on pleadings arguing that company that provided emergency water removal service on homeowners' property lacks standing to sue insurer because homeowners' mortgage company did not consent to assignment, as is required by policy, is denied -- Policy provision that restricts post-loss assignment of benefits is contrary to Florida law
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Provider made prima facie showing that amount charged for MRI was reasonable by presenting medical bill for service at issue and testimony that patient received the treatment in question and through affidavit of owner and corporate representative, who had personal knowledge of valuation of services at issue and was personally familiar with company's billing practices, office procedures, collection practices, reimbursement trends for plaintiff's services, and charges in the community -- Affidavit of insurer's litigation adjuster, who was offered as fact witness, was insufficient to establish disputed issue of material fact as to reasonableness of charges
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable of charges -- Related and necessary treatment -- Expert testimony -- Affidavits of treating physicians submitted by provider in support of motion for summary judgment were sufficient to establish prima facie case that treatment rendered was medically necessary and related to motor vehicle accident -- Opposing affidavits failed to meet three-pronged test set forth in section 90.702 -- Plaintiff presented prima facie case that its charge for treatment was reasonable through affidavit of treating physician, and affidavit of defendant's expert was legally insufficient to raise disputed issue of fact -- Provider's motion for summary judgment granted
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Related and necessary treatment -- Summary judgment granted in favor of provider
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous election by insurer -- Insurer that incorporated Medicare fee schedule into PIP policy and specifically referenced Multiple Procedure Payment Reduction may use MPPR to calculate reimbursement -- MPPR is payment methodology, not utilization limit
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Summary judgment entered in favor of provider on issues of medical necessity of treatment and reasonableness of charge
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Collateral estoppel -- Motion to apply collateral estoppel to prevent insurer from litigating reasonableness of charge for particular CPT code is granted where same parties actively litigated identical issue in 15 prior cases, issue was critical part of each prior case, and insurer was given full and fair opportunity to litigate issue in prior cases
VIEW OPINION

Insurance -- Settlement agreement -- Subrogation action for damages arising from home water leak -- Civil procedure -- Failure of insurer to attach to complaint the insurance policy at issue -- Motion to dismiss granted
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Summary judgment -- Where affidavit filed by insurer in opposition to summary judgment on issue of reasonableness of charges is conclusory and not based on sufficient facts or data, and insurer stipulated to relatedness and medical necessity of treatment in its discovery responses, final summary judgment is entered in favor of medical provider
VIEW OPINION

Criminal law -- Prostitution statute is not unconstitutional -- Rational basis exists for legislature's decision to criminalize sale and purchase of sex
VIEW OPINION

Insurance -- Automobile -- Windshield replacement -- Motion to dismiss complaint for failure to name correct insurer is denied, and plaintiff repair shop is directed to amend complaint to name correct insurer -- Because insurer confirmed coverage, notified repair shop that dispute is solely over amount of loss, and requested appraisal, action is stayed to allow parties to proceed through appraisal process
VIEW OPINION

Consumer law -- Debt collection -- Florida Consumer Collection Practices Act -- Communication with debtor known to be represented by counsel -- Motion to dismiss FCCPA complaint is denied -- Court rejects argument that, because foreclosure case does not constitute debt collection, attorney's appearance on behalf of debtor in foreclosure case cannot constitute actual knowledge that consumer is represented with respect to debt for purposes of FCCPA
VIEW OPINION

Contracts -- Lease -- Mobile home parks -- Mobile home park's claim for damages against tenant who refused to make payment for satellite television service that is part of park's bulk billing plan after she disconnected service is dismissed where lease contains no provision requiring tenant to retain satellite television service, and although assumption agreement in which tenant assumed lease of prior owners and notice of closing provided for satellite service payments, those documents were not incorporated by reference in lease and were superceded by lease
VIEW OPINION

Criminal law -- Driving under influence -- Evidence -- Loss or destruction by state -- Bad faith -- Motion to dismiss due to state's failure to preserve video of defendant's performance of field sobriety exercises at jail is denied where video would not be exculpatory, but only possibly useful, and defendant failed to demonstrate that law enforcement acted in bad faith in failing to preserve surveillance video used primarily for safety purposes
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Summary judgment -- Medical provider met burden of proving that charges for MRI scans were reasonable by introducing bill, assignment of benefits, and affidavit of its owner/corporate representative -- Owner's affidavit is not insufficient for failing to address every reasonableness factor mentioned in PIP statute -- Opposing affidavit of non-expert that presents inadmissible lay opinion testimony and relies on inadmissible unauthenticated documents and settlement documents is insufficient to create genuine issue of material fact and avoid summary judgment -- Even if affiant were offered as expert, she is not competent to be expert witness where her opinions are not based on sufficient facts or data -- Fact that Medicare and health insurance pay less than amount billed by provider does not, by itself, create factual issue as to reasonableness of charges
VIEW OPINION

Insurance -- Commercial general liability policy -- Defective construction -- Duty to defend -- Insurer had duty to defend contractor which was listed as additional insured on CGL policy issued to subcontractor where complaint sought damages from contractor based on property damage resulting from subcontractor's work -- If complaint alleges facts which create potential coverage under policy, insurer has obligation to defend -- Untimely notice of claim -- Insurer waived right to object to coverage on basis of untimely notice where insurer received notice of claim at least three times over the course of a year, and each time the claim was denied on grounds other than late notice -- Fact that no claim was directed against subcontractor is not determinative of whether allegations of underlying complaint were sufficient to trigger duty to defend -- Allegations of complaint were sufficient to establish an “occurrence” and “property damage” which potentially were covered by policy
VIEW OPINION

Torts -- Automobile accident -- Damages -- Noneconomic -- Pain and suffering -- Remittitur -- Defendant's motion for remittitur of $4.5 million awarded by jury for pain and suffering during four-and-a-half-year interim between date of accident and date of injured party's death from conditions unrelated to or exacerbated by accident is denied -- Verdict was not excessive or against manifest weight of evidence -- Discussion of criteria set forth in section 768.043(2) and comparable cases -- Argument -- Although plaintiff's counsel made isolated comments which arguably urged jury to punish the defendant for “making excuses” and defending claim, comments were not sufficiently egregious to warrant new trial -- Testimony regarding impact of accident was relevant, although liability was not at issue, where jury was charged with task of determining extent of injuries and resulting pain and suffering caused by collision -- Testimony referencing fact that injured party was an orphan whose mother abandoned her and left her on a neighbor's doorstep was not of a nature that denied defendant a fair trial or contributed to verdict -- Limited reference to defense expert's prior expert testimony on behalf of tobacco companies was not remotely prejudicial or improper -- Evidence of injured party's medical bills was not irrelevant to her pain and suffering, and probative value of evidence was not substantially outweighed by danger of unfair prejudice -- Motion for new trial denied
VIEW OPINION

Constitutional law -- Separation of federal and state powers -- Federal government cannot constitutionally compel county to detain, at the county's expense, a jail inmate who would otherwise be released so that Immigrations and Customs Enforcement can arrange to take custody of the inmate -- Petition for writ of habeas corpus filed by inmate being detained in county jail solely on basis of ICE detainer or request is granted
VIEW OPINION

Criminal law -- Search and seizure -- Given controlling precedent, court finds that officer who detained defendant for bicycling against traffic did not exceed permissible scope of stop when, while he was writing citation, he asked defendant if he had any guns or drugs on him -- Defendant's motion to suppress statements made in response to question and physical evidence derived from it is denied
VIEW OPINION

Contracts -- Action for breach of contract and unjust enrichment brought by owner of parking garage against condominium association whose members use part of garage under terms of easement, settlement agreement and amendment to settlement agreement requiring payment of proportionate share of operating expenses but who refused to pay share of cost of repairing garage -- Where settlement agreement as amended unambiguously mandates that association pay stipulated and determined fixed amount to cover its share of operating expenses of garage, which payment is expressly subject to upward adjustment only for increase in consumer price index and increase in actual insurance costs, garage owner is not entitled to also recover repair expenses as operating expenses -- Summary judgment entered in favor of association
VIEW OPINION

Insurance -- Workers' compensation -- Liability -- Intentional acts -- Duty to defend -- Insurer that provided workers' compensation and employer liability coverage to its insured had duty to defend its insured in suit brought against it by estate of deceased employee where complaint alleged sufficient facts to create potential coverage under policy -- Insurer failed to prove that allegations in every iteration of underlying complaints demonstrated that employer intended to cause harm to decedent or that any other policy exclusions relied upon by insurer to bar were a bar to coverage
VIEW OPINION

Criminal law -- Sentencing -- Resentencing -- Offenses committed by juvenile -- Defendant who was sentenced to aggregate of 65 years in prison for offenses committed when he was a juvenile is not entitled to resentencing pursuant to Miller v. Alabama and Graham v. Florida -- Court rejects argument that equal protection compels that all juveniles who received lengthy term-of-years sentences, irrespective of when he or she is scheduled to be released, should be resentenced so that the court can individually consider circumstances surrounding the defendant, including his youth and immaturity, and render a sentence which provides for review at a future time -- Defendant not entitled to resentencing where he was meaningful opportunity for release during his lifetime
VIEW OPINION

Criminal law -- Sentencing -- Defendant entitled to resentencing where sentence was illegally imposed under Criminal Punishment Code, although, because of date offenses were committed, 1994 guidelines applied -- Departure -- State's request for upward departure sentence based on age and vulnerability of victim is denied -- Intervening decisions by U.S. Supreme Court preclude enhancement of sentence based on facts which were neither found by jury in absence of stipulation by defendant or defendant's agreement to judicial fact finding, none of which occurred in defendant's case -- Moreover, fact that victim was under age 16 had already been contemplated and factored into presumptive sentence under 1994 guidelines, and state failed to present any evidence to establish that victim was “especially” vulnerable due to age -- Sentence imposed at top of guidelines range with credit for time served
VIEW OPINION

Torts -- Defamation -- Presuit notice -- Media defendant -- Blogs and alternative mediums of news dissemination -- Defendant who runs website having the objective of allowing the posting of public records and statements by others concerning wasteful law enforcement practices and providing forum to discuss these issues is a media defendant and was entitled to presuit notice under section 770.01 -- Telephone conversations did not qualify as notice under statute, which requires specific written notice, and email did not state with specificity any of the defamatory comments at issue or inform defendant that plaintiff would definitely file suit -- Motion for summary judgment granted with respect to posts on defendant's website -- Defendant's posts on other websites do not qualify for statutory protection -- Summary judgment is not appropriate for these posts
VIEW OPINION

Insurance -- Uninsured motorist -- Evidence -- Expert -- Plaintiff's motion to exclude testimony of defendant's expert with regard to severity of impact in two rear-end collisions and inadequacy of those forces to create injuries claimed by plaintiff is granted -- Testimony will not assist trier of fact in understanding evidence or determining a fact in issue -- Further, there is insufficient scientifically reliable data on which to base certain of the opinions; methods used with respect to certain opinions are not product of reliable principles; and probative value of expert's opinions is substantially outweighed by danger of unfair prejudice
VIEW OPINION

Attorney's fees -- Justiciable issues -- Claim or defense unsupported by material facts or applicable law -- Insurance -- Personal injury protection -- Trial court's order awarding attorney's fees and costs in favor of insurer under section 57.105 lacked requisite findings -- Provider's motion for attorney's fees pursuant to section 627.428 denied
VIEW OPINION

Licensing -- Driver's license -- Permanent revocation -- For purposes of statute requiring permanent revocation of license after driver has been convicted four times for driving under the influence, statutory definition of “prior conviction” does not include conviction for violation of municipal ordinance
VIEW OPINION

Attorney's fees -- Proposal for settlement
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Hearing officer did not depart from essential requirements of law by finding there was competent substantial evidence that officer read licensee implied consent warning and licensee refused to provide breath sample -- Inconsistency between officer's testimony and documents entered into evidence with regard to who asked licensee to take breath test and read implied consent warning was not material, as either version of events supported finding that implied consent warning was read to licensee prior to his refusal to take breath test
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charge -- Insurer that failed to elect to use the fee schedule limitation in its policy was not precluded from litigating reasonableness of provider's bill under section 627.736(5)(a)1, but is merely precluded from availing itself of the fee schedule limitation in section 627.736(5)(a)2 -- Jury's finding that amount charged by provider for MRI was unreasonable and its determination of a reasonable amount was supported by evidence, and trial court reversibly erred in directing verdict in favor of provider
VIEW OPINION

Attorney's fees -- Prevailing party -- Mutuality or reciprocity of obligation -- Defendants in account stated actions brought by assignee of consumer debt were entitled to attorney's fees after plaintiff voluntarily dismissed cases where underlying credit agreements contained prevailing party attorney's fees provision -- Enforcement of Delaware choice of law provision would violate Florida's public policy -- Estoppel -- Defendants' assertion that credit agreements were unenforceable did not preclude award of attorney's fees -- Defendants, as prevailing parties, are entitled to award of costs
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Error to enter final summary judgment in favor of provider of issue of reasonableness of charges where affidavits in support of motion were conclusory and contradictory -- Insurer's motion for appellate attorney's fees granted, pending favorable outcome at trial on remand
VIEW OPINION

Civil procedure -- Motion for summary judgment filed by bank in an action against credit card holder asserting separate claims for account stated and open account was legally insufficient where motion failed to provide adequate notice of grounds which would warrant summary judgment -- Trial court erred in granting motion
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- No due process violation resulted from hearing officer's initial failure to issue subpoenas where error on part of licensee was basis for initial failure to issue subpoenas and subpoenas were ultimately issued -- Lawfulness of arrest -- Competent, substantial evidence supported finding that arrest was lawful -- Officer stopped vehicle in early morning hours for driving without headlights, licensee's breath smelled of alcohol and he did not respond appropriately to questioning, and HGN results showed signs of impairment
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Officer's observation of vehicle driving without headlights at night and licensee's low, mumbled speech and unresponsive answers were sufficient to provide probable cause to believe licensee may have been driving while impaired
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Licensee was initially lawfully detained for unauthorized entry into a secure “sterile” area of airport -- Odor of alcohol, visible signs of impairment, and other factors provided probable cause to believe licensee may have been driving while impaired -- Evidence was sufficient to support decision to uphold license suspension
VIEW OPINION

Licensing -- Hardship license -- Denial -- Hearing officer did not improperly consider pending criminal charges in determining whether petitioner qualified for hardship license -- Denial of hardship license was supported by competent, substantial evidence, petitioner was afforded due process, and essential requirements of law were observed
VIEW OPINION

Landlord-tenant -- Trial court erred in entering final order of writ of possession to enforce settlement agreement between landlord and tenant without holding evidentiary hearing to determine whether breach of agreement actually occurred
VIEW OPINION

Insurance -- Personal injury protection -- Exhaustion of policy limits -- Trial court erred in finding that insurer that initially improperly reduced provider's charge by using Medicare Part B fee schedule could not later assert exhaustion of benefits as an affirmative defense in provider's action against it -- Absent bad faith, insurer's liability ended at policy limits -- Court rejects provider's argument that it can recover nominal damages when underlying claim has been obviated by exhaustion of benefits
VIEW OPINION

Criminal law -- Battery -- Evidence -- Character of defendant -- Defendant entitled to new trial where victim testified that defendant used to “ride around with a baseball bat in his saddle bag” and had previously attacked a friend of the victim -- Curative instruction given by trial court did not fully address defendant's objection, and given that case was largely based on credibility of testimony provided by defendant and victim, was not sufficient to dispel prejudicial effect victim's improper comments might have had on jury
VIEW OPINION

Municipal corporations -- Zoning -- Site plan approval -- Telecommunications tower -- Applicant for site plan approval was denied procedural due process when town commission permitted party intervenor to submit evidence on morning of hearing without providing applicant the opportunity to review the materials and to properly respond to and rebut the evidence
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Trial court erred in entering summary judgment in favor of plaintiff on relatedness and necessity of treatment rendered to insured where affidavit submitted by insurer raised genuine issues of material fact
VIEW OPINION

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