11 Fla. L. Weekly Supp. 310a
Insurance — Personal injury protection — Liability — Summary judgment — Doctor’s notes making marginal references to probability that plaintiff’s symptomatology was related to trauma and that planned treatment protocol was medically necessary and independent medical examination report which is signed, certified, and affirmed but not notarized or signed under penalty of perjury were insufficient to support partial summary judgment as to liability — Self-serving answers of claims adjuster who did not establish that allegations in her interrogatory answers were facts within her personal knowledge were insufficient to raise material issue of fact — Reversed and remanded
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. ADAM LEAL, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 03-5400 (07). Re: 01-4573 (60). January 13, 2004. David Krathen, Judge.
OPINION
The Appellant, United Automobile Insurance Company, seeks review of an order of the trial court granting a final judgment, after partial summary judgment on liability, in a PIP medical bill case. While it is still to be determined whether the underlying action was necessary or whether there was a reasonable basis for the Defendant’s denial of the claims, this appeal and the proceedings that will occur on remand were necessitated by counsels’ failures to provide adequate admissible evidence, meet basic evidentiary requirements, and follow proper procedures. They also wasted the trial court’s time and unnecessarily complicated the trial court’s work.
The Plaintiff filed a motion for partial summary judgment on September 18, 2002, based on a record of unauthenticated doctor’s notes and bills. On October 11, 2002, the trial court denied the motion without prejudice, obviously finding a lack of evidentiary foundation. On October 29, 2002, the Plaintiff filed an affidavit of the physicians’ record custodian to establish the foundation for a business record exception to the hearsay rule. Then, curiously, without a motion pending, the trial court granted the partial summary judgment on November 14, 2002, obviously based on the now authenticated records and bills. The Plaintiff did not file his second motion for partial summary judgment until November 22, 2002.
The trial court based its ruling on doctors’ notes that made marginal references to the probability that the Plaintiff’s symptomatology was related to the trauma and that the planned treatment protocol, therapies and procedures were medically necessary. In fact, the strongest evidence for the Plaintiff was an unauthenticated IME report filed with the physician’s records and bills in support of his first motion. But, although the report is signed, certified and affirmed, it is neither notarized nor signed under penalty of perjury. Therefore, the admissible record evidence was insufficient to support a partial summary judgment as to liability and, therefore, the judgment under review. If the Plaintiff had merely filed a physician’s affidavit stating that the injuries were, to a reasonable degree of medical certainty, caused by the accident and that the treatments that had been provided for those injuries were reasonable and necessary, the record would have been sufficient to affirm the order under review.
On the other hand, the Defendant may have been able to provide sufficient evidence to raise a material issue of fact and prevent the summary judgment, even if the Plaintiff had filed the aforementioned affidavit. But the self-serving answers of the claims adjuster, who did not (and probably could not) establish that the allegations in her interrogatory answers were facts and were within her personal knowledge, were insufficient to raise a material issue of fact. See Schurer v. Koch, 741 So.2d 618 (Fla. 2nd DCA 1999). But the Defendant could have filed evidence concerning the lack of severity of the accident and the delay in treatment and an expert affidavit raising the improbability of the Plaintiff’s claimed injuries and/or the unnecessary and unreasonable nature of the treatments the Plaintiff received. Although the Defendant was not required to come forth with evidence until the Plaintiff established a prima facie case, if it had expended that extra effort below, in an abundance of caution, it may have avoided this appeal and the forthcoming work on remand.
Accordingly, the Order under review is REVERSED and the cause REMANDED for further proceedings consistent herewith.
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