12 Fla. L. Weekly Supp. 306b
Insurance — Uninsured motorist — Collateral setoff — Motion for rehearing in appeal and cross-appeal of judgment awarding damages, attorney’s fees, and costs to plaintiff who was passenger in vehicle rear-ended by uninsured motorist in action against UM carrier of driver of vehicle in which plaintiff rode — Motion is granted in part — In ruling that trial court abused its discretion by awarding PIP setoff after trial in absence of stipulation to presentation of PIP setoff evidence to trial judge after trial, appellate court ruled on issue not raised in cross-appeal and prevented insurer from presenting evidence of parties’ stipulation to have collateral source setoff heard by judge post trial — Evidence — Hearsay — Exception — Business records — Although supplementary evidence of parties’ stipulation reveals trial court did not abuse discretion in hearing collateral source setoff post trial, court erred in setting off amount based in part on documents of plaintiff’s now-insolvent PIP carrier which were inadmissible, due to lack of proper foundation and trustworthiness, where there was no record custodian to testify as to how records were generated
ALLSTATE INSURANCE COMPANY, Appellant, v. ANNA L. DOON, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA1-03-07. L.C. Case No. 99-CC-3353. October 19, 2004. Counsel: Jessica J. Recksiedler, Thompson & Associates, P.A., Maitland. Robert D. Melton, Orlando. V. Rand Saltsgaver, Law Offices of V. Rand Saltsgaver, Orlando.
ORDER GRANTING APPELLANT’S MOTION TO SUPPLEMENT THE RECORD AND GRANTING THE REHEARING IN PART
[Original Opinion at 11 Fla. L. Weekly Supp. 867a]
THIS CAUSE came before the Court for consideration of Appellant’s Motion for Rehearing, Clarification, and to Supplement the Record on Appeal, filed on August 9, 2004. Having reviewed the Motion, the Order, and Appellee’s response, filed on August 18, 2004, this Court finds as follows:
The basis for the motion for rehearing is that the Court ruled on an issue that was not raised in the cross-appeal, and therefore, Appellant was unable to present evidence of the parties’ stipulation to have the trial judge hear the collateral source setoff after trial. We grant Appellant’s motion for rehearing as it pertains to the cross-appeal and the motion to supplement the record with a copy of the transcript of the hearing on Appellant’s motion in limine. See McMullan v. McMullan, 762 So. 2d 533 (Fla. 5th DCA 2000); Kubernac v. Reid, 656 So. 2d 930 (Fla. 1st DCA 1995) (granting rehearing on the basis of a supplemental record). Upon review, we withdraw the portion of the opinion issued on July 26, 2004 pertaining to the cross-appeal, and substitute the following in its place. However, we deny the motion for rehearing and clarification as to the remainder of the arguments and adhere to our original opinion thereon.
Our review of the transcript of the hearing on Appellant’s motion in limine reveals that counsel for Appellee requested and stipulated to have the collateral source setoff benefits conducted by the court post trial, and Appellant prepared the order. In the cross-appeal, Appellee argues that the trial court erred in granting Appellant a collateral setoff in the amount of $10,870.10 because there was no showing that the records maintained by Fortune Insurance Company (“Fortune”), Appellee’s PIP carrier, were kept in a regular course of business before Fortune became insolvent. The case law is clear that “[i]n order to lay a foundation for the admission of a business record, it is necessary to call a witness who can show that each of the foundational requirements set out in the statute is present.” Forester v. Norman Roger Jewell & Brooks Int’l, Inc., 610 So. 2d 1369, 1373 (Fla. 1st DCA 1993). (citation omitted). While it is not necessary to subpoena the person who actually prepared the record, the records custodian must have the necessary knowledge to testify as to how the record was generated in order to lay the necessary foundation. Id. at 1373.
At the post-trial hearing, the adjuster for Florida Insurance Guaranty Association (“FIGA”), William Kasavage, stated that he did not have personal knowledge about the accuracy of the documents or the payments made by Fortune because he did not work for Fortune before it became insolvent. Although Appellant tried to put on evidence as to payments made by Fortune at the post-trial hearings on March 20, 2002, and April 10, 2002, to prove its entitlement to a setoff for collateral source benefits allegedly paid by Fortune, the record reveals that only $7,089.83 was proven by Allstate. First, at the March 20, 2002 hearing, Appellee stipulated that $2,832.831 was paid by FIGA according to the No Fault Payment Record by FIGA that was submitted into evidence. Second, at the April 10, 2002 hearing, Appellant proved and Appellee stipulated that $870.00 was paid to Dr. Godleski. Third, Appellant proved that Dr. Sharfman was paid $816.00 by Fortune, $571.00 by Allstate, and $1,368.002 by FIGA, totaling $2,755.00. Fourth, Appellant was entitled to a setoff for Appellee’s PIP deductible of $2,000.00 since she did not sustain a permanent injury as a result of the motor vehicle accident. See Hannah v. Newkirk, 675 So. 2d 112 (Fla. 1996) (stating that a plaintiff who elects a deductible and enjoys a lower insurance premium becomes a self-insurer as to that deductible). Although the No Fault Payment Record by FIGA shows Fortune paid $5,067.17 in PIP benefits and FIGA paid another $2,832.83, totaling $7,900.00, Appellant failed to lay a proper foundation to admit Kasavage’s testimony concerning the amount of PIP benefits allegedly paid by Fortune into evidence.
Also, it would greatly assist this Court with appellate review if the final orders in cases such as the present case contained the factual findings upon which the trial court based its conclusions. This is especially important in the instant case where the record contains facts to support a finding that Appellant was entitled to a setoff, but also contains other facts which were revealed at the post-trial collateral source hearings and must not be considered in determining the amount of the setoff. While the lower court’s findings come to this Court clothed with a presumption of correctness, absent specific findings, “the appellate court must determine whether, based upon the record, the proper analysis would have produced the result reached by the trial court.” Town of Jupiter v. Alexander, 747 So. 2d 395, 400 (Fla. 4th DCA 1998); New Nautical Coatings, Inc. v. Scoggin, 731 So.2d 145 (Fla. 4th DCA 1999).
Therefore, the trial court erred in setting off $10,870.10 from the jury’s award of $19,845.52 because the documents by Fortune were not admissible due to a lack of proper foundation and trustworthiness. The trial court shall enter an amended final judgment reducing the setoff amount to $7,089.83.
Accordingly, it is hereby ORDERED AND ADJUDGED that the trial court shall enter an amended final judgment and re-calculate the setoff amount from the verdict consistent with the rulings expressed herein. (STRICKLAND, APTE & BRONSON, JJ.)
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1This figure includes $1,368.00 paid to Dr. Sharfman by FIGA on November 8, 2001.
2This amount was stipulated by Appellee at the March 20, 2002 hearing.
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