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A Service of Florida Law Weekly-- Serving Florida's Lawyers for 40 Years www.FloridaLawWeekly.com (800) 351-0917 |
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A Service of Florida Law Weekly-- Serving Florida's Lawyers for 40 Years www.FloridaLawWeekly.com (800) 351-0917 |
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Contracts -- Valid tender of payment -- Payment for landscaping services mailed to address provided by plaintiff but returned to defendant as “Attempted, Not Known, Unable to Forward” -- Presumption that tender was valid upon dispatch in the mail vanished when defendant knew that mail was not received by plaintiff and did not notify plaintiff of this fact when defendant had the ability to do so by text or phone message -- Because there was no valid tender of payment, plaintiff is prevailing party and entitled to an award of costs
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Criminal law -- Driving under influence -- Search and seizure -- Consensual encounter -- Officer's request for defendant to exit vehicle did not transform consensual welfare check into investigatory stop where officer, who was responding to anonymous tip of person passed out in parked vehicle, attempted to rouse defendant, and officer's concern for defendant's welfare was not alleviated when defendant awoke and attempted to drive off but was unable to put vehicle in gear -- Detention -- Once officer's concern for defendant's welfare was alleviated, he had reasonable suspicion to detain defendant for DUI investigation where officer observed open containers of alcohol in vehicle and defendant had unsteady stance, bloodshot and watery eyes, and odor of alcohol -- Arrest -- Officer who conducted DUI investigation had probable cause to arrest defendant based on his observations and defendant's performance on field sobriety exercises -- Motion to suppress is denied
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Insurance -- Automobile -- Windshield repair -- Appraisal -- Prohibitive cost doctrine -- Windshield repair shop is entitled to evidentiary hearing on applicability of prohibitive cost doctrine to insurer's request for appraisal -- Insurer is estopped from arguing against shop's request for hearing where insurer has successfully argued in other cases that evidentiary hearing was required
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Insurance -- Health maintenance organizations -- Out-of-network or non-participating provider -- Reimbursement rate -- Reduction of claim to “allowed amount” -- Because there was no contractual relationship between provider and HMO, rate of reimbursement was to be determined by section 641.513(5), which provides that reimbursement rate is lesser of provider's charges, the usual and customary provider charges in the community, or a charge mutually agreed upon by HMO and provider within 60 days of submittal of claim -- Because HMO failed to prove that “allowed amount” reduction of claim was agreed to by parties or the usual and customary charge in community, HMO was required to reimburse full amount of medical provider's charge -- HMO is also required to pay interest on overdue claim -- Provider entitled to attorney's fees and costs pursuant to section 641.28
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Insurance -- Personal injury protection -- Coverage -- Conditions precedent -- Examination under oath -- Failure to attend -- EUO notice sent to insured's attorney constitutes effective notice to insured -- Neither PIP statute nor policy requires insurer to give insured multiple opportunities to attend EUO -- No merit to argument that EUO scheduled more than thirty days after notice of loss was per se unreasonable where thirty-day period for investigation and payment of claim does not begin until insurer has received both notice of fact of loss and notice of amount of loss, and insurer did not receive medical provider's first bill providing notice of amount of loss until two months after insured had already failed to attend EUO
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Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Declaratory action -- Action seeking determination as to whether policy language requires insurer to pay full amount of charge submitted when amount of charge is less than amount allowed under statutory fee schedules is appropriate declaratory action -- Neither fact that determination may affect amount of benefits owed nor fact that medical provider could have brought breach of contract action precludes declaratory action -- Pre-suit demand letter is not condition precedent to bringing declaratory action -- Motion to dismiss denied
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Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Medicare fee schedule in place on March 1, 2014, applies for full 12-month period and is applicable to services rendered in February 2015 -- Where PIP policy provides that charge submitted for amount less than allowable amount under Medicare Part B fee schedule shall be paid in amount of charge submitted, insurer properly applied entire amount of charge to 200% of allowable amount under fee schedule and then subjected it to coinsurance provision of policy
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Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Summary judgment -- Motion for summary judgment, requesting determination that nonresident insured with New Hampshire policy is not entitled to additional Florida PIP benefits for accident that occurred in Florida because he had not been in state for 90 days within 365 days prior to accident so as to be required to maintain PIP insurance under section 627.733, is denied -- Evidence -- Hearsay -- Because PIP policy is non-hearsay, unauthenticated copy of policy is admissible in support of motion for summary judgment without the necessity to lay a foundation for its admission as a business record -- Affidavit of claims specialist is admissible in support of motion for summary judgment, but portion of affidavit regarding claims note that relates conversation in which insured told another agent that he had only been in Florida for 3 weeks at time of accident is inadmissible double hearsay -- Business records exception is not applicable to claims note where affiant had no personal knowledge of conversation -- Admissions exception is not applicable to claims note where statements were made by nonparty insured and were not adopted by medical provider or injured claimant
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Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Timeliness of claim -- Explanation of reimbursement seeking proof of timeliness of billing is not valid request for documentation regarding reasonableness of charges or necessity of treatment under section 627.736(6)(b) -- Even if EOR was valid request for documentation, request sent more than 30 days after receipt of claim is untimely -- Medical provider had no obligation to respond to invalid request for documentation -- Where provider met burden of proving bills were timely mailed to insurer, provider's motion for summary judgment as to insurer's untimely billing defense is granted
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