It is personal knowledge again September 25, 2022

SVP Med Supply, Inc. v GEICO, 2022 NY Slip Op 50775(U)(App. Term 2d Dept. 2022)

“Defendant submitted the affirmation of an attorney who stated that she was in her firm’s office on the dates on which the EUOs were scheduled, that she would have either conducted the EUO herself or assigned another attorney to do so, and that plaintiff did not appear. She was not required to state that she was present in the [*2]office at any specific time on the scheduled dates

I honestly dislike those affidavits. They read as a lazy person’s way to prove a no-show, and I tend to wonder if this practice or protocol really happens.

In the new virtual world, I think the no-show affidavits will be cleaner and more accurate.

The Declaratory Judgment Order v. The Civil Court order September 25, 2022

First in time, first in right

Hand By Hand, PT, P.C. v New York Cent. Mut. Fire Ins. Co., 2022 NY Slip Op 50774(U)(App. Term 2d Dept. 2022)

“In any event, contrary to defendant’s contention in the Civil Court, this action was not barred based upon the April 19, 2018 order in the Supreme Court declaratory judgment action enjoining plaintiff from proceeding in this action, as that order was entered after the default judgment had been entered herein, and terminated upon the entry of the declaratory judgment on May 20, 2019 and there was no disposition against plaintiff in that judgment (see generally DSD Acupuncture, P.C. v Metlife Auto & Home, 49 Misc 3d 153[A], 2015 NY Slip Op 51778[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Consequently, we find that the Civil Court improvidently exercised its discretion in granting defendant’s motion to vacate the default judgment.”

When interest clearly does not matter August 18, 2022

When Desantis gets to appoint an entire kingdom of DCA judges, the wrecking ball to Florida PIP litigation is unleashed. This does not even take into account the likely repeal of this coverage in the not so distant future in Fla. In a way, moving to a Med-payment system with mandatory $25k/$50k coverage will be better for the public and the attorneys looking to earn a living in the Fla. PI jungle.

Here are two cases that are off the charts.


“However, regardless of the incorrect interpretation of how to calculate interest, we affirm the trial court’s finding that the amount in controversy is de minimis. “The legal maxim ‘de minimis non curat lex,’ simply means that the law does not care for small things.” Loeffler v. Roe, 69 So. 2d 331, 338 (Fla. 1953). The amount in controversy here, $4.17, is de minimis and is a trifling amount.

The principle of de minimis “is a hallowed, long established and long recognized principle of law, and a party is entitled to call it in aid.” Alec Samuels, De Minimis Non Curat Lex, 1985 Statute L. Rev. 167, 167 (1985). Seeking trifling amounts of money involving the courts is a “waste of time and money, and impairing the dignity of the court and the judge.” Id. at 168. The principle of de minimis has been upheld in this court and other courts. See L.H. v. State, 803 So. 2d 862, 864 n.1 (Fla. 4th DCA 2002) (finding a $4 discrepancy in the calculation of restitution was de minimis); Winter Garden Citrus v. Parrish, 438 So. 2d 472 (Fla. 1st DCA 1983) (denying attorney’s fees because a loss of supplemental benefits for a
period of five days was de minimis); Wilkerson v. Wilkerson, 717 So. 2d 1118, 1119 (Fla. 1st DCA 1998) (affirming child support obligation that exceeded support guidelines by $1.50, finding that the “negligible amount . . . does not warrant remand for justification, recalculation or other proceedings”); Texas State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792 (1989) (“[A] technical victory may be so insignificant . . . as to be insufficient to support prevailing party status” for the purposes of an award of attorney’s fees.).

A de minimis amount in controversy does not warrant reversal. See Eureka Corp. v. Guardian Tr. Co., 139 So. 198, 199 (Fla. 1932) (“[B]y the well-settled rule of this court under the facts of this case such an allowance was de minimis no curat lex, for which reversal does not lie.”). In United Automobile Insurance Co. v. Alfonso, 17 Fla. L. Weekly Supp. 887a (Fla. 11th Jud. Cir. July 1, 2010), the court applied the doctrine of “de minimis non curat lex” to a suit for a purported interest miscalculation of $2.53 “brought painfully for no other justification than the award of attorney’s fees.” Id. Similarly, it appears that the present case was brought not for the de minimis interest, but rather for the award of attorney’s fees.

In summary, we affirm the trial court’s determination that the accumulated interest of $4.17 was de minimis, and clarify the proper computation of interest pursuant to these statutes.

No attorney fee due to the de minimus theory.


“Applying the plain language and in para materia principles to sections 627.730, 627.731, and 627.736(1), (4)(b), (4)(d), and (8), we conclude that the statutory entitlement to interest on overdue PIP benefits is not in and of itself a PIP benefit for which attorney’s fees are payable under section 627.736(8). In other words, a dispute over whether interest is due or paid in the correct amount is not a dispute as to benefits payable for medical, surgical, funeral, and disability insurance benefits. Thus, litigation over the payment of interest due on PIP benefits does not trigger entitlement to attorney’s fees for the claimant.”

“Applying section 627.428(1)’s plain language, the trial court erred in awarding the Provider’s attorney’s fees because no contractual or policy provision supports the award for enforcing the payment of interest.
Applying the plain language and in para materia principles to the pertinent provisions of the Florida Motor Vehicle No-Fault Law discussed above, the trial court erred in awarding the Provider’s attorney’s fees because interest owed on a late PIP benefit payment is not in and of itself a PIP benefit.

Having determined the trial court erred in awarding the Provider’s attorney’s fees, we reverse and remand with instructions for the trial court to vacate the final judgment awarding the Provider’s attorney’s fees rendered on June 18, 2021. Our reversal is without prejudice to the entry of a judgment imposing taxable costs.”

Why pay interest if the only penalty is a $7.00 lawsuit? At best, I can see a class action that could trigger a class action attorney fee, but that is a headache.

80% of the billed amount can be July 30, 2022


(1) “The court entered an order denying Progressive’s motion and granting BOT’s motion; the
order states that the ruling was based on Geico Indemnity Co. v. Accident & Injury Clinic, Inc. ex rel. Irizarry, 290 So. 3d 980 (Fla. 5th DCA 2019), and reflects the court’s conclusion that Progressive
“was required to pay 80% of the applicable fee schedule amount for [BOT’s] charges . . . or to pay the charge at 100% of the full amount billed for those charges billed below 80% of the schedule of
maximum charges.”

(2) “Summarizing, these cases establish that a PIP insurer whose policy includes a notice that it may use the statutory schedule of maximum charges to determine provider reimbursements must (1) pay 100 percent of the amount billed if a provider charges less than 80 percent of the amount allowed under the schedule of maximum charges and (2) pay 80 percent of the allowable amount under the applicable schedule of maximum charges for charges that exceed 80 percent of 100 percent of the allowable amount calculated under the applicable schedule of maximum charges. As we next explain,
we disagree with this proposition”

(3) “Given the full context of these provisions, a reasonable reading of the statutory text requires that reimbursement limitations based on the schedule of maximum charges be understood—as State Farm contends—simply as an optional method of capping reimbursements rather than an exclusive
method for determining reimbursement rates. By its very nature, a limitation based on a schedule of
maximum charges establishes a ceiling but not a floor.” [This was from the Fla. Supreme Court]

(4) “Progressive’s payment of BOT’s charges at 80 percent of the amount that BOT itself chose to bill unquestionably satisfied Progressive’s obligation under the coverage mandate—that is, to reimburse BOT for 80 percent of the reasonable expenses BOT incurred in treating Progressive’s insured, Ms. Bailey.”

July 30, 2022


There are two avenues of reimbursement – the fee schedule and R and C. The prior precedent used to be simply that you chose one and that is it. The Courts have held that you can play with both mechanisms of reimbursement, of course using as an expert to achieve the more advantageous result for the carrier

“However, even if Dr. Dauer’s affidavit did in fact rely entirely on the Medicare Part B fee schedules as the basis for reasonableness (which it did not), the affidavit was not “pure opinion” evidence because it resulted from the application of reliable principles and methods to the facts of the case. The affidavit addresses Dr. Dauer’s qualifications as a medical doctor, his experience with reimbursement levels in the community, the factors in section 627.736(5)(a)1., as well as the underlying data Dr. Dauer reviewed.
The affidavit explains which information influenced Dr. Dauer’s opinion regarding reasonableness and how, and also individually addresses each of the Daubert factors in relation to the specific methodology used. Finally, the affidavit explains the rationale behind the methodology used and why it was
reliable, and also explains why Dr. Dauer believed his conclusions were consistent with the PIP statute and prevailing practices in the industry.”