12 Fla. L. Weekly Supp. 311b
Insurance — Personal injury protection — Coverage — Evidence — Hearsay — Error to enter involuntary dismissal based on ruling that hearsay evidence of medical provider was insufficient to prove prima facie case of coverage — Deposition testimony of treating physician establishing that patients’ injuries were related to accident for which coverage was available fell within exception to hearsay rule and was sufficient to survive motion for directed verdict
MARTINEZ HEALTH INC., A Florida Corporation a/a/o Hector and Salvador Ramirez, Appellant, vs. UNITED AUTOMOBILE INSURANCE COMPANY Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Dade County. Case No. 03-659AP. L.C. Case No. 03-485-CC-24. January 4, 2005. An appeal from the County Court, Miami-Dade County, Jeffrey Swartz, Judge. Counsel: David L. Deehl, Deehl & Carlson, P.A., for Appellant. Mark A. Gatica, United Automobile Insurance Company, Office of General Counsel, for Appellee.
(Before MUIR, KARLAN, HARNAGE, JJ.)
(Muir, Judge.) This is an appeal from an involuntary dismissal by the trial judge, who ruled that hearsay evidence from the medical provider was insufficient to prove a prima facie case of coverage by a PIP policy of the appellee insurance company.
The PIP policy in question was issued to the driver of a car involved in an accident causing injuries for which the passengers and the insured driver sought medical treatment. The testimony of the treating Doctor Ficara established that the patients’ injuries were related to the accident in question, and that the bills for his treatments were reasonable and necessary. Passenger Salvador Ramirez was seen and treated three times and passenger Hector Ramirez was treated once. (R. Vol. II., pp. 217-220, 222-223.)
The testimony of the treating doctor on deposition established causation as to the injuries from the accident for which coverage is available. The doctor’s testimony falls within an exception to the hearsay rule. This evidence is sufficient to survive the motion for directed verdict (involuntary dismissal) that the trial judge granted. See Section 90.803(4), Florida Statutes; Optima Health & Rehab vs. United Automobile Insurance Company, 11 Fla. L. Weekly Supp. 146a (Fla. 11th Cir., Cty. Ct., October 2, 2003).
A representative of the appellant testified that the appellee, United Auto, confirmed the policy number of the insurance for the driver, whose medical bills were paid without question, and confirmed that medical benefits were available for the passengers. The trial judge improperly dismissed the medical provider’s complaint for the benefits of PIP coverage under an assignment from the passengers of the insured driver.
The trial judge made it clear that he would not allow the case to go to a jury without testimony from the passengers or the police officer who prepared the accident report. So the parties proceeded to make a record in a non-jury case so the matter could be resolved on appeal.
We do not address whether the technical requirements for admission of the appellant provider’s proferred evidence were met, as the appellant merely proferred testimony instead of formally examining its witnesses and offering the documentary evidence as required in a formal trial.
Accordingly, the final judgment in this case is VACATED and this cause REMANDED for a new trial and further proceedings consistent with this opinion.
The appellant’s motion for attorneys’ fees pursuant to Florida Statutes 627.428(1) is granted. The trial judge, if the appellant prevails at the new trial, shall award a reasonable attorneys’ fee for the appellant incurred for this appeal. See Tench v. American Reliance Insurance Co., 671 So. 2d 801 (Fla. 3d DCA 1996).
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