Florida Appellate Lawyer

Question of Breach of Homeowner's Policy by Insured's Demand to Remove Appraisal Umpire for Jury

Tue, 24 Apr 2012 22:11:39 -0000

In Jyurovat v. Universal Prop. & Cas. Ins. Co., 37 Fla. L. Weekly D884 (Fla. 2d DCA April 13, 2012), the Second District Court of Appeal reversed a summary judgment in favor of the homeowner's insurer on the question of whether the insured breached the insurance policy's appraisal clause. There was a breakdown of the appraisal process relating to the umpire's slow pace. The insured's appraiser unilaterally removed the umpire without having authority to do so. Although this was improper, the appellate court held that the question of whether it constituted a material breach by the insured of the presuit condition to complete appraisal was for the jury to decide.

Expert Not Required for Fees as "Wrongful Act" Damages

Tue, 24 Apr 2012 22:10:00 -0000

In Schwartz v. Bloch, 37 Fla. L. Weekly D795 (Fla. 4th DCA April 4, 2012), the Fourth District Court of Appeal held expert testimony is not required when a plaintiff in a legal malpractice case seeks fees as an element of compensatory damages under the "wrongful act" doctrine. The wrongful act doctrine, in which the negligence of the defendant attorney caused the plaintiff to incur fees to protect his or her interests, constitutes an exception to the otherwise generally applicable rule that an award of attorney's fees must be authorized by statute or contract. And the holding of this case constitutes an exception to the general rule that independent expert witness testimony ("independent" in the sense that it is not the testimony of the attorney who incurred the fees being sought) is required to establish the reasonableness of attorney's fees, regardless of whether a first party or third party is responsible for payment of the fees.

2012 Florida No Fault Bill Not All Bad News for Acupuncturists

Fri, 23 Mar 2012 21:00:00 -0000

An amendment to Florida’s motor vehicle no fault insurance law was recently passed by the Florida legislature and is expected to be signed into law by Governor Scott in the near future. Rather than attempting to discuss the entire bill in one article, I will discuss selected aspects of the bill in separate articles beginning with this article on the impact of the new law on Florida acupuncturists.

The new law will have a direct impact on the practice of acupuncture in Florida. Effective January 1, 2013, PIP insurance will no longer cover acupuncture (or massage). This prohibition applies regardless of whether the acupuncture is performed by an acupuncturist, or any other licensed professional. In addition, a licensed acupuncturist may not be reimbursed for any services by PIP insurance. This means an acupuncturist will be prohibited from reimbursement by PIP insurance for modalities other than acupuncture.

These new provisions should be viewed in context. The amendment requires individuals seeking PIP medical benefits to receive initial services and care within 14 days after the motor vehicle accident. Initial services and care are only reimbursable if lawfully provided, supervised, ordered or prescribed by a licensed physician, licensed osteopathic physician, licensed chiropractic physician, licensed dentist, or must be rendered in a hospital, a facility that owns or is owned by a hospital, or a licensed emergency transportation and treatment provider. Follow up services and care require a referral from such providers and must be consistent with the underlying medical diagnosis rendered when the individual received initial services and care.

The bill applies two different coverage limits for PIP medical benefits based on the severity of the medical condition of the individual: (1) up to $10,000 if a physician, osteopathic physician, dentist, physician’s assistant or advanced registered nurse practitioner has determined that the injured person has an “emergency medical condition”; (2) $2,500 for a person who is not diagnosed with an emergency medical condition. An “emergency medical condition” is one manifesting itself by acute symptoms of sufficient severity, which may include severe pain, such that the absence of immediate medical attention could reasonably be expected to result in serious jeopardy to patient health, serious impairment to bodily functions, or serious dysfunction of a bodily organ or part.

The bill is not all bad news for acupuncturists. When assessing this new amendment, we should bear in mind the following important points:

While the bill prohibits acupuncturists from receiving PIP medical benefits, fortunately it also precludes doctors, chiropractors and other licensed providers from receiving PIP benefits for acupuncture treatment;
The bill also deals a blow to chiropractors: it omits them from the list of professionals who can make the initial determination of whether a patient has sustained an “emergency medical condition”, and it limits chiropractors (and others) to receiving a maximum of $2,500 for a non-emergency medical condition;
Limiting reimbursement for persons sustaining non-emergency conditions to $2,500, and eliminating benefits for person not seeking treatment within 14 days of the accident, can be expected to create a larger pool of cash paying acupuncture patients and patients with health insurance that provides coverage for acupuncture treatment.

Fla. Supreme Court Rules on Proving DWLS Notice

Fri, 23 Mar 2012 20:37:56 -0000

In Anderson v. State, 37 Fla. L. Weekly S227 (Fla. March 15, 2012), the Florida Supreme Court held that in a case involving a defendant's driving while license suspended due to failure to fulfill a financial responsibility, the State carries its burden of proving knowledge if it proves the DHSMV mailed the defendant written notice of suspension to the address where the defendant resided at the time of the mailing. The evidence used by the State to carry its burden consisted of: (1) the defendant's certified driving record containing a notation that the notice of suspension was mailed; and (2) the defendant's testimony that he resided at that address at the time of the mailing. In so ruling, the Supreme Court resolved a conflict of District Court of Appeal decisions, overruling those DCA cases holding that the State must prove the defendant's actual receipt of the notice of cancellation.

Florida Supreme Court Denies Review in Fee Schedule Case

Fri, 23 Mar 2012 20:34:29 -0000

The Florida Supreme Court denied review of the Fourth District Court of Appeal's decision in Kingsway Amigo Ins. Co. v. Ocean Health, Inc., 63 So. 3d 63 (Fla. 4th DCA 2011), thereby ending the fee schedule litigation in that case.

Fees for Litigating Against Insolvent Insurer Not Recoverable Against FIGA

Thu, 23 Feb 2012 22:50:00 -0000

In Petty v. Florida Ins. Guar. Ass'n, 37 Fla. L. Weekly S34 (Fla. Jan. 19, 2002), resolving an inter-district conflict, the Florida Supreme Court held that an award of attorney's fees under the insurance fee shifting statute, section 627.428, Fla. Stat., is not a "covered claim" within the meaning of the FIGA attorney's fee statute, unless the insurance policy expressly provides coverage for a statutory fee award (which they generally do not do). This means FIGA is not responsible for fees incurred litigating against an insolvent insurer, and presumably also those incurred litigating against FIGA. This decision will have a major chilling effect on litigation against FIGA. It also spells bad news for plaintiffs litigating against an insurer who goes insolvent. Attorneys will need to devise clauses in their fee contracts for payment of a percentage contingency fee in the event the insurer becomes insolvent.

Fee Schedule Update: 3d DCA Denies Post-Decision Motions

Thu, 23 Feb 2012 22:29:44 -0000

On February 16, 2012, the Third DCA denied post-decision motions in GEICO Indem. Co. v. Virtual Imaging Services, 3D10-2595 & 3D10-2667 (consolidated). This decision ends the litigation in the Third DCA in the case, which was a 2-1 decision in favor of the medical provider's position, reported at 36 Fla. L. Weekly D2597 (Fla. 3d DCA Nov. 30, 2011). Judge Cortinas authored the opinion, joined by Judge Levine, with a lengthy dissenting opinion by Judge Rothenberg. The Third and Fourth DCAs have now both come out against the insurers' position on the fee schedule debate. Review is being sought in the Florida Supreme Court. I will post as soon as there is any news on that front.

Appellate Counsel Sanctioned for Re-Cycled Brief

Thu, 23 Feb 2012 22:15:16 -0000

In Waddington v. Baptist Center of the Beaches, Inc., 37 Fla. L. Weekly D263 (Fla. 1st DCA Jan. 30, 2012), counsel representing the plaintiff in a medical malpractice case was sanctioned for filing what amounted to a re-cycled brief making the same arguments that had been rejected in a prior appeal. The First DCA spared the client, ruling in effect that the sins of counsel should not be visited upon the blameless client.

Fourth DCA Weighs In On Harmless Error in Civil Cases

Thu, 15 Dec 2011 22:41:15 -0000

The Fourth District Court of Appeal recently issued a lengthy en banc opinion with two special concurrences on the harmless error doctrine as appliced in civil cases. In Special v. Baux, 36 Fla. L. Weekly D2503 (Fla. 4th DCA Nov. 16, 2011) (en banc), Judge Gross' majority opinion details the history of the harmless error rule, rejects a "but for" analysis applied by some Florida appellate courts, and formulates the harmless error rule as follows: "To avoid a new trial, the beneficiary of the error in the trial court must show on appeal that it is more likely than not that the error did not influence the trier of fact and thereby contribute to the verdict."

State Farm Adjuster Must Attend Deposition in Broward

Tue, 22 Nov 2011 23:57:15 -0000

The county court compelled State Farm's Tampa-based claims adjuster to attend a deposition in Broward County. The circuit court denied State Farm's "first-tier" petition for writ of certiorari. State Farm then filed a "second-tier" petition for writ of certiorari in the Fourth District Court of Appeal. In State Farm Mut. Auto. Ins. Co. v. Howard Dinner, D.C., P.A., 36 Fla. L. Weekly D2257, No. 4D11-469 (Fla. 4th DCA Oct. 12, 2011), the Fourth DCA denied the second-tier certiorari petition. The Fourth DCA stated that the county court erroneously compelled the adjuster, who resided and worked in Hillsborough County and who had not been designated as a corporate representative, to attend a deposition in Broward County. Nonetheless, the court denied second-tier certiorari because it found no "miscarriage of justice" had occurred. Our firm is appellate counsel for the medical provider who is suing State Farm for personal injury protection benefits.