12 Fla. L. Weekly Supp. 532a
Insurance — Personal injury protection — Coverage — Evidence — Accident report privilege — Error to admit accident report into evidence because report is expressly inadmissible under section 316.066(4) and facts of case do not fall within exception to privilege — Error was harmless where treating physician’s testimony and insured’s medical records, to which insurer did not object, provided jury with substantial factual basis to conclude insured was involved in automobile accident for which he sought medical treatment — Treating physician’s testimony was admissible as exception to hearsay rule where he testified that he relied on automobile accident information for purposes of diagnosis and treatment
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. QUIROPRACTIC & THERAPY CENTER a/a/o PHILOMME, CHAVANNES, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 04-068 AP. L.C. Case No. 02-007106 CC-05. March 8, 2005. An Appeal from the County Court for Miami-Dade County, Roger A. Silver, Judge. Counsel: Mark A. Gatica, Office of General Counsel, United Automobile Insurance Company, for Petitioner. Neil M. Gonzalez, for Respondent.
(Before LEESFIELD, LOPEZ, and CRESPO, JJ.)On Appellee’s Motion for Rehearing of itsOpinion filed November 30, 2004
[Original Opinion at 12 Fla. L. Weekly Supp. 115a]
(CRESPO, J.) We grant rehearing, withdraw our opinion of November 30, 2004, and substitute this opinion in its place for the purpose of addressing certain additional issues asserted in appellee’s motion for rehearing.
This case involves an appeal from a Final Judgment entered in favor of the appellee, Quiropractic & Therapy Center, the medical provider of the insured, Philomme O. Chavannes. It stems from a personal injury protection (PIP) suit. The appellant/insurer, United Automobile Insurance Company, seeks reversal of the court’s denial of the motion for directed verdict, or in the alternative, to have the Final Judgment vacated and the case remanded to the trial court for a new trial.
In this case, the insured was examined by the appellee/medical provider, after which he executed an assignment of his PIP benefits to the appellee. The appellee subsequently submitted claims for the treatment of the insured. These claims were denied. As a result, the appellee filed a complaint for PIP benefits.
This matter was set for trial. No witnesses who were present at the accident were available to testify at the trial. Even so, the trial court allowed the appellee to enter into evidence the accident report, insured’s medical records, the testimony of the treating physician, records custodian and the insurance adjuster. At the conclusion of the trial, the court denied appellant’s motion for directed verdict. The jury returned a verdict for the appellee. This appeal ensued.
The pertinent question before this court is whether there is sufficient admissible evidence to establish, as part of the appellee’s prima facie case, that the patient/insured was involved in an automobile accident for which he sought treatment and for which coverage was available.
In the instant case, appellant argues that the trial court erred in allowing the appellee to enter the accident report into evidence because it is expressly inadmissible pursuant to Section 316.066(4) of the Florida Statutes. Appellant contends that absent the accident report, the appellee would be unable to establish a prima facie case because it had no witnesses or admissible evidence showing that the accident had occurred.
When addressing accident reports, Section 316.066(4) specifically states that “No such report or statement shall be used as evidence in any trial, civil or criminal.” A limited exception to this rule reads as follows: “. . .subject to the rules of evidence, a law enforcement officer at a criminal trial may testify as to any statement made to the officer by the person involved in the crash if that person’s privilege against self-incrimination is not violated.”
It is clearly established law that “[s]tatutes must be given their plain and obvious meaning, and courts should assume that the legislature knew the plain and ordinary meaning of the words when it chose to include them in the statute. ” Hankey v. Yarian, M.D., 755 So. 2d 93, 96 (Fla. 2001). The plain language of Section 316.066(4) states that no accident report or statement shall be used as evidence in any trial, civil or criminal. Although there is an exception to this rule, the facts of this case do not appear to fall within it. Therefore, we find that the trial court erred in admitting the accident report into evidence. Even though the trial court erred in admitting the accident report into evidence, this court must determine if the error was harmless. See Hughes v. Canal Insurance Company, 308 So.2d 552 (Fla. 3d DCA 1975).
A review of the record shows that the treating physician’s testimony, along with the insured’s medical records, provided the jury with a substantial factual basis to conclude that the insured was
involved in an auto accident for which he sought treatment, and for which coverage was available through the insured’s PIP policy with the appellant. This evidence is admissible because the appellant failed to object to its admission at trial and cannot now raise an objection to its admission for the first time on appeal. See Adamson v. First Federal Savings and Loan Association of Andalusia, 519 So.2d 1036 (Fla. 1st DCA 1988). Additionally, the treating physician testified that he relied on the automobile accident information for the purposes of diagnosis and treatment. Therefore, his testimony is admissible under the hearsay exception of Section 90.803(4) of the Florida Statutes. Accordingly, we find the treating physician’s testimony and the insured’s medical records to be sufficient admissible evidence to establish part of the appellee’s prima facie case that the patient/insured was in an automobile accident. In our view, the accident report was merely repetitious. Although the trial court erred in admitting the accident report into evidence, we find this error to be harmless.
In light of the foregoing, we hereby AFFIRM the trial court’s order.
As to appellee’s motion for appellate attorneys’ fees, it is hereby GRANTED. (LEESFIELD and LOPEZ concur.)
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