12 Fla. L. Weekly Supp. 986a
Insurance — Personal injury protection — Coverage — Medical expenses — Unreasonable, unrelated or unnecessary treatment — Summary judgment — Affidavit and report of physician who conducted peer review is not sufficient to raise disputed issue of material fact where report based on “to best of my knowledge and information” rather than personal knowledge does not meet requirements of rule 1.510(e), attempt to certify or verify report is insufficient because rules specifically require that report be submitted under affidavit, and allowing insurer to substitute this physician for prior expert stricken as sanction for failure to comply with discovery would make sanction meaningless
LAUDERDALE ORTHOPAEDIC SURGEONS (a/a/o Eda Martinez), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 04-10509 COCE 53. August 2, 2005. Robert W. Lee, Judge. Counsel: Cris E. Boyar, Margate. Kevin Jones, Coral Gables.
ORDER GRANTING PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE came before the Court on July 27, 2005 for hearing of the Plaintiff’s Motion for Final 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, finds as follows:
Background: On June 17, 2004, the Plaintiff filed its Complaint seeking unpaid PIP benefits. On July 26, 2004, the Defendant filed its Answer and Affirmative Defenses. In its affirmative defense, the Defendant alleged that the medical provider failed to include the signature of the physician on the appropriate place on the claim form, as required by statute. On July 28, 2004, the Plaintiff served its Motion for Partial Summary Judgment on the issue of the omitted signature. On September 21, 2004, the Plaintiff served its Second Motion for Partial Summary Judgment, addressed to several other issues. On September 29, 2004, this Court entered its Order granting partial summary judgment in favor of the Plaintiff on the issue of the physician’s signature. The second Motion for Partial Summary Judgment was set for hearing for February 3, 2005.
On February 10, 2005, this Court entered its Order Granting Plaintiff’s Motion for Partial Summary Judgment. In the Order, the Court found that:
Eda Martinez was injured in an automobile accident on October 12, 2003, the Defendant insured Eda Martinez on October 12, 2003 with a PIP policy of insurance and said policy of insurance was in full force and effect on the date of the accident, the Plaintiff has standing, Eda Martinez received a bill in the amount of $3,776 from the Plaintiff, and Eda Martinez received the services reflected on the patient’s ledger which was attached to the affidavit.
Thereafter, the matter was set for mediation for April 1, 2005, but did not settle.
On April 20, 2005, this Court entered its Order Granting Plaintiff’s Motion to Strike Defendant’s Expert as a sanction, finding that “the Defendant’s responses to expert interrogatories are more than 5 months overdue notwithstanding two prior orders and imposition of sanctions.”
On May 13, 2005, the Plaintiff served its Motion for Final Summary Judgment. The remaining issue was whether the services rendered were reasonable, related to the accident, and medically necessary. On May 18, 2005, the Plaintiff served the affidavit of Verano Hermida, M.D., in support of the Motion. The matter was set for hearing for June 21, 2005.
Prior to the hearing, on June 20, 2005, the Defendant filed its Affidavit of Richard L. Glatzer, M.D., in opposition to the Motion for Final Summary Judgment. In the affidavit, Dr. Glatzer stated that “[o]n May 14, 2005, I generated a report pursuant to my review of Eda Martinez’s medical records. This report was created and kept in the normal course of my business as a medical doctor.” The attached report disputed whether the treatment by Dr. Hermida was reasonable, related, or medically necessary. The report contained a certification that “the information contained within this document [. . .] is true to the best of my knowledge and information.”
By order dated June 20, 2005, the Court reset the hearing to July 27, 2005. Prior to the hearing, the Plaintiff filed a Motion to Strike Dr. Glatzer’s report.
Conclusions of Law. Summary Judgment is appropriate where the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits conclusively show that there remain no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fla.R.Civ.P. 1.510.
The burden is on the moving party to establish the non-existence of any genuine issue of material fact. Romero v. All Claims Insurance Repairs, Inc., 698 So.2d 605, 606 (Fla. 3d DCA 1997). In determining that no issue of material fact exists, the trial court may rely upon exhibits, affidavits and pleadings on file. See Mack v. Commercial Industrial Park, Inc., 541 So.2d 800, 800 (Fla. 4th DCA 1989). Once the movant tenders competent evidence to support the motion, the party against whom judgment is sought must present contrary evidence to reveal a genuine issue. It is not enough for the party opposing summary judgment merely to assert that an issue exists. Buitrago v. Rohr, 672 So.2d 646, 648 (Fla. 4th DCA 1996). The issue for the Court is whether the pleadings on file and record evidence establish that the medical treatment provided to Eda Martinez was reasonable, medically necessary, and related to the accident. In this case, the pleadings on file and record evidence submitted herewith demonstrates conclusively that no genuine issue of material fact exists on this issue.
Initially, the Court notes that the Plaintiff’s Motion and submitted affidavit facially establish entitlement to summary final judgment. The question then is whether Dr. Glatzer’s affidavit and report submitted by the Defendant are sufficient to raise a disputed issue of material fact. For several reasons, the Court concludes that it does not.
First, although accompanied by an affidavit averring that the report is the physician’s, the report itself is based not on the physician’s personal knowledge, but rather “to the best of my knowledge and information.” This is insufficient to meet the requirements of Rule 1.510(e). See Castro v. Brazeau, 873 So.2d 516, 517 (Fla. 4th DCA 2004); P&T Electric Co. v. Spadea , 227 So.2d 234, 236 (Fla. 4th DCA 1969).
Second, the attempt to “certify” or “verify” the report is insufficient because the rule specifically requires it to be submitted under affidavit. See Jackson v. State, 881 So.2d 666, 667-68 (Fla. 5th DCA 2004) (when a statute specifically requires an affidavit, attempt to use verification procedure is deficient).
Finally, the Defendant’s attempt to use Dr. Glatzer rather than the prior expert is to no avail. The Court struck the Defendant’s prior expert as a sanction. If the Defendant could simply substitute another expert, it would make the Court’s prior order meaningless and provide the Defendant with no incentive to comply with the rules of procedure and orders of this Court. Accordingly, it is hereby
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Final Summary Judgment is GRANTED. The Plaintiff is hereby directed to submit a proposed final judgment conforming to the terms of this Order.
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