12 Fla. L. Weekly Supp. 1037a
Insurance — Personal injury protection — Examination under oath — Any error in jury instruction imposing element of unreasonable refusal on policy condition requiring insured to submit to EUO was harmless where insured was not obligated to attend EUOs scheduled outside thirty-day statutory period for investigation of claim — Expert witnesses — Where insurer failed to comply with order to provide answers to expert witness interrogatories within seven days or be precluded from having expert witness testify at trial, and had yet to provide answers by time of trial, prohibiting witness’s testimony was well within ambit of court’s power — No abuse of discretion in prohibiting insurer’s corporate representative from testifying about computer notes regarding insured’s case file — Witness’s memory could not have been refreshed by notes he did not create and about which he had no personal knowledge — Testimony could not have been allowed under business records exception to hearsay rule since actual notes were never entered into record by insurer claiming work product privilege, and witness had no personal knowledge of notes
UNITED AUTO INS. CO., Appellant, vs. DR. JASON MARUCCI, a/a/o RUTH BOTERO, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 03-17509. June 11, 2005.
OPINION
(ROBERT A. ROSENBERG, J.) THIS CAUSE is before the court upon appellant, United Auto Insurance Company’s (hereafter United Auto), appeal of the trial court’s Final Judgment, and the court having considered same, and otherwise being duly advised in premises, finds and decides as follows:
This case arises out of a dispute over billing for treatment performed by appellee following an automobile accident. Appellee submitted a bill to appellant, which it failed to pay. The appellant raises two main issues in this appeal.
First, the appellant argues that the trial court erred in giving jury instructions that imposed an element of “unreasonable refusal” on the insurance policy condition that required the insured to submit to an Examination Under Oath (hereafter EUO) as requested by the insurer. As required by Florida law, an insurer has thirty days from notice of receipt of a covered loss to investigate a claim and the insurer cannot extend the thirty day requirement by extending its investigation. § 627.736(4)(b), Fla. Stat. (2004). In Amador v. United Auto, the company was prohibited from requiring the insured to attend an EUO that was not only scheduled, but also requested, subsequent to the thirty day restriction. 748 So.2d 307, 308 (Fla. 3d DCA 1999).
In the case at hand, Ruth Botero, the insured, was injured in an accident on December 17, 2001, and began receiving treatment from Dr. Marucci on December 27, 2001. The insurer, United Auto, received notice of the covered loss on January 16, 2002, which was within thirty days of the commencement of treatment. However, United Auto did not attempt to schedule the EUO until March 25, 2002, with alternative dates set for April 16, 2002, and April 23, 2002, all of which fell outside the thirty day statutory limitation. As such, United Auto is prohibited from raising a defense of the insured’s non-attendance at the EUO as grounds for denying coverage. Thus, even if the jury instruction could have been interpreted as an error, it was a harmless error, given that the insured was not obligated to attend the EUO as per the terms of the contract.
The appellant’s second point on appeal is that the trial court erred in its evidentiary rulings regarding expert witnesses and limitations on testimony which effectually prohibited the jury from properly fulfilling its duty. Specifically, the appellant argues that the trial court abused its discretion in striking the defendant’s expert witness, but allowed the plaintiff’s expert witness to testify as to the unreasonableness of the scheduling of the EUO and the reasonableness of the insured is refusal to attend. The appellant also claims the trial court erred in limiting the testimony of the insurer’s corporate representative, which in turn deprived the jury of necessary facts to make a just decision.
The admission of evidence is a matter within the sound judicial discretion of the trial judge, whose decision in this regard must be viewed in the context of the entire trial. Jiminez v. Gulf & Western Manufacturing Company, 458 So.2d 58, 59 (Fla. 3d DCA 1984). As such, the appellant must demonstrate both that the error was an improper admission of evidence and that the appellant suffered prejudice in order to obtain a reversal. Tallahassee Memorial Regional Medical Center, Inc. v. Meeks, 560 So.2d 778, 782 (Fla. 1990).
Here, the trial court ordered the defendant to provide the plaintiff with answers to expert witness interrogatories within seven days from August 11, 2003, or be precluded from having its expert witness testify at trial. The defendant failed to comply with the court’s order by not providing the expert interrogatory answers within the seven days of the stipulated date. In fact, by the time of trial on September 22, 2003, the defendant had yet to comply with the trial court’s order. Therefore, the trial court was well within the ambit of its power to prohibit the testimony of the defendant’s expert witness.
Similarly, the court did not abuse its discretion by prohibiting the insurer’s corporate representative, Richard Simpson, from testifying about specific computer notes regarding Ruth Botero’s case file. Counsel may show the witness a writing or other object to refresh the witness’ recollection if the witness has no present recollection or memory of a particular fact. However, if after refreshing the witness’ recollection, the witness still has no memory of the particular fact, the witness may not testify as to that fact. K.E.A. v. State, 802 So.2d 410 (Fla. 3d DCA 2001). Here, Mr. Simpson did not create the computer notes about which he was to testify. As such, his memory could not have been refreshed as to something he did not do or have personal knowledge about.
As per Florida statute, any compilation of data or information that is made by a person with knowledge, if kept in the course of a regularly conducted business activity and is the regular practice of that business activity to make such a compilation will be considered admissible as evidence. § 90.803(6), Fla. Stat. (2005). This is known as the business exception of the hearsay rule. Here, Mr. Simpson’s testimony could not have been allowed via the business exception of the hearsay rule since the actual computer notes were never entered into evidence by the insurer who claimed work product privilege. Therefore, the only evidence regarding the computer notes that would have been acceptable would be verbal testimony. However, since Mr. Simpson had no personal knowledge of the computer notes, he is unable to testify as to those particular facts.
Accordingly, it is
ORDERED AND ADJUDGED that the Final Judgment in favor of the appellee by the lower court is AFFIRMED.
* * *
