Highlights of Recent Cases
from Florida's Circuit and County Courts

• INSURANCE--PERSONAL INJURY PROTECTION--INSOLVENT INSURER. The trial court did not err in granting summary judgment in favor of a medical provider that submitted a bill to an insurer that was in rehabilitation and later became insolvent where the provider complied with the requirements of the PIP law, and the bill appears to be a covered claim under FIGA Act, although FIGA asserted that it had exhausted the policy limits on the payment of other bills. VIEW OPINION

• CRIMINAL LAW--DRIVING UNDER INFLUENCE--EVIDENCE--BREATH TEST. It was error to hold that results of breath tests administered with an Intoxilyzer 5000 are scientifically unreliable because the pertinent administrative rules fail to specify the length of time a subject is to blow into the machine. VIEW OPINION

• ATTORNEY'S FEES--UNPAID WAGES. An employee who prevailed in an action against her former employer for unpaid wages and who sought fees under the statute providing for a fee award to the prevailing party in an action for unpaid wages was entitled to recover fees incurred in connection with her claim and was also entitled to recover fees incurred in successfully defending a counterclaim in which the employer alleged that the employee's negligence and intentional tort resulted in monetary loss to the employer. VIEW OPINION

• CRIMINAL LAW--DRIVING UNDER THE INFLUENCE--BLOOD TEST. The implied consent law, which governs methods by which evidence entitled to implied consent presumptions may be obtained, does not limit or prevent law enforcement officers from obtaining a blood sample pursuant to a warrant. VIEW OPINION

• INSURANCE--PERSONAL INJURY PROTECTION--DISCOVERY. A subpoena duces tecum seeking reports of all independent medical examinations and peer reviews performed by an insurer's expert witness within the past three years and financial documents reflecting payments to the expert is beyond the scope of permissible discovery and violates HIPPA. VIEW OPINION

• CIVIL PROCEDURE--SUBSTITUTION OF PARTIES. The trial court did not err in allowing a bankruptcy trustee to be substituted into an action brought by the debtor against a credit card corporation for engaging in collection activity that allegedly violated Florida consumer law where the cause of action existed at the time the plaintiff filed his bankruptcy petition. VIEW OPINION

• MEDICAL MALPRACTICE--PRESUIT REQUIREMENTS. A pro se medical malpractice claimant is not required to submit a certificate of counsel stating that reasonable investigation gave rise to a good faith belief that grounds exist for the action, but is required to submit a verified written opinion from a medical expert corroborating reasonable grounds to support the plaintiff's claim. VIEW OPINION

• INSURANCE--PERSONAL INJURY PROTECTION. It was error to compel an insurer's expert witness to produce reports of all independent medical examinations and peer reviews performed in the past three years without notice to non-party personal injury patients. VIEW OPINION

• INSURANCE--PERSONAL INJURY PROTECTION--DISCOVERY--MEDICAL RECORDS OF NONPARTIES. The circuit court, in its appellate capacity, held that the trial court departed from the essential requirements of law by requiring an insurer's expert witness to produce reports of all independent medical examinations and peer reviews performed in past three years. VIEW OPINION

• DOMESTIC VIOLENCE INJUNCTION. Neither the fact that a person who filed a petition for an injunction against domestic violence is no longer afraid of the respondent nor the fact that the petitioner is trying to contact the respondent is legal ground for dissolving the injunction. VIEW OPINION

• TRAFFIC INFRACTIONS--POST CONVICTION RELIEF. A claim that a no contest plea to a charge of driving with a suspended license without knowledge was involuntary because the defendant was not told that he was entitled to receive a withhold of adjudication cannot be raised via rule 3.850, because DWLS without knowledge is not a criminal offense, and cannot be raised under rule 6.490(a), which is designed to allow a defendant to attack an "illegal penalty," not a conviction. VIEW OPINION

• INSURANCE--PERSONAL INJURY PROTECTION. Withdrawal of benefits cannot be based on a peer review report which was not accompanied by an independent medical examination or physical examination, but which instead relied solely on a treating physician's records. VIEW OPINION

• MUNICIPAL CORPORATIONS--DEVELOPMENT ORDERS. When a property owner applies for relief under the Florida Land Use and Environmental Dispute Resolution Act, the governmental entity "must forward the request for relief to the special magistrate . . . within 10 days after receipt of the request." VIEW OPINION

• COUNTIES--DEVELOPMENT ORDERS--CONSERVATION WETLANDS. A county policy providing for adjustments to land use districts to correspond to wetlands delineation lines once formalized by the water management district could not be used by the county to increase the maximum allowable density in an area designated "conservation-wetlands" without submitting a formal comprehensive plan amendment. VIEW OPINION

• ATTORNEY'S FEES--CONTRACTUAL PROVISION. It was error to award attorney's fees pursuant to the reciprocity provisions of section 57.105(7) where the movant pled entitlement to fees under section 57.105(1) and section 57.105, generally, but did not specify that she was seeking fees under section 57.105(7). (11th Cir., Appellate) VIEW OPINION