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.

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.

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:

0. 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;
0. 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;
0. 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.

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.

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.