12 Fla. L. Weekly Supp. 1103a
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary treatment — Police report stating no apparent injuries were observed does not create disputed issue of material fact regarding whether insured was injured in accident where officer’s statement is not inconsistent with insured’s examination under oath and affidavit stating that injuries were internal — Police report unsupported by affidavit fails to meet requirements of rule 1.510(e) and would not be admissible at trial as evidence of officer’s observations — Partial summary judgment granted in favor of medical provider
ALEN G. GORDON, M.D., P.A. (a/a/o Moss Burnard), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 05-4218 COCE 53. August 3, 2005. Robert W. Lee, Judge. Counsel: Cris Boyar, Margate, for Plaintiff. Craig R. Posner, Coral Gables, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
THIS CAUSE came before the Court on July 25, 2005 for hearing of the Plaintiff’s Motion for Partial Summary Judgment, and the Court’s having reviewed the Motion and entire Court file; heard argument; reviewed the relevant legal authorities; and been sufficiently advised in the premises, the Court finds as follows:
Background: On March 8, 2005, the Plaintiff filed its Complaint seeking unpaid PIP benefits. On April 28, 2005, the Defendant filed its Answer and Affirmative Defenses. In it, the Defendant alleged two defenses: (1) that the medical treatment was not reasonable, related, or medically necessary; and (2) that the provider did not provide the insurer a properly executed disclosure and acknowledgment form.
On May 3, 2005, the Plaintiff filed its Motion for Partial Summary Judgment on the issue of whether the provider submitted to the insurer a properly executed disclosure and acknowledgment form. On June 3, 2005, this Court entered its Order granting Plaintiff’s Motion for Partial Summary Judgment on this issue.
On June 6, 2005, the Plaintiff filed its second Motion for Partial Summary Judgment, this one on five issues: (1) whether the patient was injured in a motor vehicle accident on July 8, 2004; (2) whether the patient was covered by a policy of PIP coverage by the Defendant; (3) whether the patient received the medical case and treatment issue; (4) whether the patient received a bill for the services at issue; and (5) whether the Plaintiff has standing. The Plaintiff also served the Sworn Affidavit of Moss Burnard in support of the Motion. The matter was set for hearing for July 25, 2005.
Prior to the hearing, the Defendant served and filed its Notice of Filing Examination Under Oath and Notice of Filing Police Report. At the hearing, the Defendant acknowledged that it was not disputing three of the five issues raised by the Plaintiff. The two issues in this Motion in dispute therefore are (1) whether the patient was injured in a motor vehicle accident on July 8, 2004; and (2) whether the patient received a bill for the services at issue. The Defendant argued that the filed Examination Under Oath and Police Report create a disputed issue of material fact on these two issues.
Conclusions of Law. Contrary to Defendant’s contention, the Examination Under Oath supports the Plaintiff’s position that the patient was injured in an accident on July 8, 2004. See EUO, p. 6, ll. 16-25; p. 7, ll. 1-4, 13-20; p. 9, ll. 17-19; p. 13, ll. 4-11. As for the Police Report, the Defendant points out that the investigating officer noted in the narrative portion, “no apparent injuries were observed.” The Court finds that this does not create a disputed issue of material fact for two reasons.
First, the officer’s statement is not inconsistent with the Burnard Affidavit and the EUO which establish that the patient’s injuries are internal. Therefore, the suggestion that the officer did not “observe” the injury does not create a dispute. Second, the Defendant submitted a police report unsupported by affidavit and otherwise not meeting the requirements of Rule 1.510(e). Although the police officer would be permitted to testify at trial as to what he observed, the police report would not be admissible for this purpose. Therefore, the police report standing alone is not sufficient to create a disputed issue of material fact. See Thomas v. Gottlieb, 520 So.2d622, 623 (Fla. 4th DCA 1988); C. Ehrhardt, Florida Evidence §501.2(2004)(“refreshing recollection does not allow the admission of the report”). Accordingly, it is hereby
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Partial Summary Judgment is GRANTED as to the five issues raised in the Motion and referenced in this Order.
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