11 Fla. L. Weekly Supp. 404b
Insurance — Personal injury protection — Summary judgment — Factual issue — Error to grant summary judgment in favor of plaintiff on issue of liability where accident report which fails to indicate that plaintiff was passenger in vehicle at time of accident created genuine issue of material fact — Accident report privilege does not render report inadmissible where report was written by investigating officer, not persons involved in accident, and does not reflect statements made by plaintiff — Accident report, having been drafted by officer, is self-authenticating — Appeals — Absence of transcript — Where appellate court has dispositive accident report, it has enough record to determine that reversal is required despite absence of transcript
UNITED AUTOMOBILE INSURANCE CO., Appellant, v. EDY MARIO ARRIBA, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 03-069 AP. L.T. No. 02-5125 SP 25. March 9, 2004. On appeal from the County Court for Miami-Dade County, Teretha L. Thomas, Judge. Counsel: Mark A. Gatica, Office of the General Counsel, United Automobile Insurance Company, Miami, for Appellant. Mari Sampedro-Iglesia, Jose R. Iglesia, P.A., Miami, for Appellee.
(Before CINDY S. LEDERMAN, IVAN F. FERNANDEZ, and DIANE WARD, JJ.)
ON MOTION FOR REHEARING
[Original Opinion at 10 Fla. L. Weekly Supp. 972a]
(PER CURIAM.) We grant rehearing, withdraw our opinion of October 14, 2003, and substitute this opinion in its place in order to address certain additional issues asserted in Appellee’s motion for rehearing.
I
This case is on appeal from an order of the trial court granting summary judgment in favor of Appellee. Appellee, the insured, filed suit against Appellant, the insurer, for personal injury protection (PIP) benefits when Appellant refused to provide benefits after Appellee suffered injuries from an automobile accident. The trial court granted summary judgment in favor of Appellee on the issue of liability. For the reasons discussed below, we reverse the trial court’s grant of summary judgment and remand this matter for further proceedings.
II
Appellee was involved in an automobile accident as a passenger with his wife as the driver. Both he and his wife were insured by Appellant. After the accident, he received medical treatment from a medical provider at a total cost of $5,440.00. The medical provider submitted claims on his behalf to Appellant on several occasions, but all claims were denied. Appellant never sought a physician’s opinion regarding whether Appellee’s treatment was reasonable, related, or necessary before denying the claims.
Appellee brought suit seeking PIP benefits to cover his medical bills. Before trial, he filed a motion for summary judgment on the issue of liability claiming there was no issue as to the reasonableness, relatedness, or necessity of the treatment. Appellant filed a response arguing that there was an issue of material fact in that the accident report did not list Appellee as a passenger in the car that his wife was driving; Appellant attached the accident report to its motion in opposition to summary judgment.
The trial court concluded that Appellant failed to set forth any evidence creating issues of material fact and granted summary judgment. The trial court’s order focused on the lack of any medical opinion stating the medical treatment was not reasonable, related, and necessary. The order was silent, however, as to whether the accident report created any issue of material fact. Appellant filed a motion for rehearing, reiterating its argument with respect to the accident report. Its motion for rehearing was denied.
III
The standard of review for summary judgments is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000); Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000). In order to prevail on a motion for summary judgment, the moving party must “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c). The burden is on the moving party to conclusively prove the nonexistence of any genuine issue of material fact. McQueen v. Roye, 785 So. 2d 512, 514 (Fla. 3d DCA 2000); Novotny v. Estate of Dantone, 848 So. 2d 398, 400 (Fla. 4th DCA 2003); City of Cocoa v. Leffler, 762 So. 2d 1052, 1055 (Fla. 5th DCA 2000). A trial court is not authorized to try or weigh facts in ruling on a motion for summary judgment. Sierra, 767 So. 2d at 525; Cole Taylor Bank v. Shannon, 772 So. 2d 546, 550 (Fla. 1st DCA 2000).
Absent from the trial court’s order is any mention of the accident report which failed to list Appellee as a passenger when the accident occurred — despite a blank space on the form for such passenger information. Whether this failure was because Appellee was not a passenger, or whether it was because the police officer neglected to write his name in the report is immaterial under a summary judgment analysis. The report is a piece of evidence which tends to show that Appellee was not a passenger in the car at the time of the accident. If he was not a passenger, his claim may be fraudulent, and he may not entitled to any PIP benefits. It should be noted that all reasonable inferences must be drawn in favor of the non-movant. Villazon v. Prudential Health Care Plan, Inc., 843 So. 2d 842, 853 (Fla. 2003); Moore v. Morris, 475 So. 2d 666, 668 (Fla.1985). The only way the trial court could have concluded there was no genuine issue of material fact was by ignoring the accident report or by improperly weighing the accident report versus Appellee’s and his wife’s affidavits which state he was a passenger in the car at the time of the accident. Any such actions constituted error.
The accident report was properly entered into the record twice, creating a genuine issue of material fact. The accident report was attached to Appellant’s motion in opposition to summary judgment and its motion for rehearing. See Fatherly v. California Fed. Bank, FSB, 703 So. 2d 1101, 1102 (Fla. 2d DCA 1997) (almost any additional evidence, whether newly discovered or not, is sufficient for relief on a timely motion for rehearing of a summary judgment if it presents triable issues of material fact); McGowan v. Miami-Dade County, 724 So. 2d 683, 684 (Fla. 3d DCA 1999).
In addition, the accident report is admissible because § 316.066(4), Fla. Stat. (2003) is inapplicable, despite Appellee’s assertion to the contrary. Section 316.066(4) states in pertinent part:
Except as specified in this subsection, each crash report made by a person involved in a crash and any statement made by such person to a law enforcement officer for the purpose of completing a crash report required by this section shall be without prejudice to the individual so reporting. No such report or statement shall be used as evidence in any trial, civil or criminal.
“The intention of the [l]egislature in adopting subsection (4) was to encourage true and uninhibited reports of accidents, the ultimate goal being to make highways safer.” Vedner v. State, 849 So. 2d 1207, 1211 (Fla. 5th DCA 2003). “Its purpose is to promote a truthful reporting of the facts surrounding the accident, while relieving persons involved from incrimination for their compliance with the law.” Vedner v. State, 849 So. 2d at 1212. This is tantamount to the Fifth Amendment’s protection against self-incrimination. Id. As such, the section only applies to crash reports made by individuals involved in accidents or statements made by such persons to an investigating officer. Since the accident report was written by the investigating officer, it cannot be categorically deemed inadmissible. And certainly, it Appellee’s name does not appear on the accident report, it would, at best, be difficult to conclude that the accident report was made by the police officer on the basis of statements made to him by Appellee. Of course, any statements made by Appellee to the officer would be inadmissible. The record, however, does not show that Appellee made any statements to the officer. As the movant, it was his burden to conclusively prove that there were no genuine issues of material fact. He failed to do this, and his Fifth Amendment rights against self-incrimination are not traversed by allowing the accident report into evidence. Moreover, even if there is a dispute as to what he reported to the investigating officer, this would in itself create a question of fact precluding summary judgment.
We also find, contrary to Appellee’s assertion, that the accident report, having been drafted by the police officer, was self-authenticating pursuant to § 90.902(2), Fla. Stat. (2003). Therefore, because the report was made part of the record, is admissible, and creates a genuine issue of material fact, we find summary judgment should not have been granted.
IV
As a final point, we address Appellee’s contention that we cannot reverse the trial court because the trial transcript is missing from the record. While the transcript is missing, we have enough of the record to determine that reversal is required. We have the same accident report that the trial court had, and it is the dispositive piece of evidence in this matter compelling reversal. See Pape v. Pape, 444 So. 2d 1058, 1061 (Fla. 1st DCA 1984) (despite lack of transcript, misapplication of the law to the facts requires reversal). We make our ruling as the law requires, but we are also concerned that since Appellee’s name does not appear on the accident report, it is entirely possible that he was not a passenger in the vehicle that was involved in the accident. If that were indeed the case, and at this time we are not saying that it is, then we would be concerned about the use of the court and the statute regarding the admissibility of accident reports as tools to perpetrate a fraudulent claim. These are issues more properly resolved by the trial court, and any material factual discrepancies should be addressed by the trial court upon remand.
Accordingly, we reverse the trial court’s grant of summary judgment and remand this matter for further proceedings consistent with this opinion.
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