13 Fla. L. Weekly Supp. 509a
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary treatment — Faxed affidavit in opposition to motion for summary judgment is not legally sufficient to demonstrate disputed issues of material fact where fax did not contain cover sheet, indicate number of pages transmitted or include sender’s fax number — Traffic crash report is not sufficient to create disputed issue of material fact where report would not be admissible in evidence — Even if report were admissible, report that indicates on its face that officer did not witness crash would be hearsay — Fraud — Where insurer has insufficiently pled fraud, medical provider was not required to move to strike defense but could wait to test legal sufficiency at summary judgment — Medical provider has failed to establish absence of disputed issue of material fact as to relatedness of treatment where it is undisputed that insured was not driver of either vehicle involved in accident, and accident report lists no passengers in either vehicle — Physician’s affidavit stating that insured was injured in automobile accident is hearsay and its content is insufficient to establish foundation that statement is admissible under medical diagnosis exception to hearsay rule — Partial summary judgment granted in favor of provider on all issues except whether insured was involved in accident and defense of late notice
CORRECTIVE CARE CHIROPRACTIC OF PLANTATION, INC. (a/a/o Dora Mondragon), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 02-17956 COCE 53. March 2, 2006. Robert W. Lee, Judge. Counsel: Gary D. Gelch, Fort Lauderdale, for Plaintiff. Emilio R. Stillo, Coral Gables, for Defendant.
ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
This cause came before the Court on February 28, 2006 for hearing of the Plaintiff’s Motion for Partial 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 August 29, 2002, the Plaintiff filed its Complaint seeking unpaid PIP benefits. On October 2, 2002, the Defendant filed its Answer and Affirmative Defenses. The Defendant set forth four defenses: (1) failure to state a cause of action; (2) failure of patient to sign HCFAs; (3) lack of notice; and (4) fraudulent bills. For the next 2½ years, the parties engaged in discovery. On March 14, 2005, the Court referred the matter to mediation. The matter was ultimately mediated on January 12, 2006, but did not settle. Thereafter, on January 13, 2006, the Court entered its Order Setting Pretrial Deadlines with Referral to Arbitration.
On June 9, 2005, the Defendant filed a copy of the Florida Traffic Crash Report Long Form that was prepared as a result of the underlying traffic crash. The report indicates that the reporting officer was not a witness to the crash, but lists no passengers in either vehicle. It is undisputed that the patient, Dora Mondragon, was not the driver of either vehicle. On January 27, 2006, the Plaintiff served its Motion for Partial Summary Judgment, which sought summary judgment on all issues except the defense of lack of notice. As exhibits to the Motion, the Plaintiff attached the Patient Ledger dated August 5, 2002; a copy of the Assignment of Benefits; and an Affidavit of Michael Chiccone, D.C., the treating physician. By Order dated January 30, 2006, the Court set the matter for hearing for Tuesday, February 28, 2006.
As of the date of this Order, the Court record reflects that the Clerk has docketed nothing in opposition to the Motion. Nevertheless, at the hearing, the Defendant argued, and the Plaintiff conceded, that the Defendant had faxed an affidavit of litigation adjuster Anthony Gregory to Plaintiff’s counsel. At the hearing, it was undisputed that the fax was not received until sometime after 5:00 p.m. on Friday, February 24; did not include a cover sheet; and referred to a peer review report that was not attached to the fax.
Conclusions of Law. Summary judgment is appropriate when 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 Dora Mondragon was reasonable, medically necessary, and related to the accident; and whether the defenses other than late notice have been rebutted as a matter of law.
Insufficient Faxed Affidavit in Opposition. Before the hearing, the Defendant faxed to Plaintiff’s counsel an affidavit which the Defendant argues demonstrates disputed issues of material fact. The Defendant argues that the faxing of this affidavit meets the requirements of Rule 1.510(c). The Plaintiff counters that this is true, but only if the fax had met the requirements of Rule 1.080(b)(5). The Court agrees. The Defendant’s fax did not comply with the rule. It did not contain a cover sheet. It did not contain the “number of pages transmitted,” necessary for the Plaintiff to know if it received the entire fax. Finally, it did not include the sender’s fax number. The Plaintiff argues that the fax is legally insufficient and should be stricken, and the Court agrees.
Traffic Crash Report. The Defendant next argues that the filed traffic crash report, standing alone, is sufficient to create a disputed issue of material fact. The Court disagrees. See United Automobile Ins. Co. v. Quiropractic & Therapy Center, 12 Fla. L. Weekly Supp. 532 (11th Cir. Ct. 2005). As the traffic crash report would not be admissible in evidence, the Court finds that it is insufficient to create a disputed issue of material fact. See Rule 1.510(c) (as amended Jan. 1, 2006). See also Palmer v. Liberty Nat’l Life Ins. Co., 499 So.2d 903, 904 (Fla. 1st DCA 1986) (“[i]f evidence presented to the trial judge as a part of his consideration of a motion for summary judgment is incompetent and would be inadmissible during trial, that evidence should not be considered in ruling on the motion”); C. Ehrhardt, Florida Evidence §501.2 (2005) (“the accident report is inadmissible as substantive evidence [and] refreshing recollection does not allow the admission of the report”); T. Mauet & W. Wolfson, Trial Evidence §7.11 (1997) (same).
Further, even if the report were admissible, its content would be hearsay because, on its face, the report indicates that the officer was not a witness. As a result, he could have only obtained this information from others. See Mauet, supra. See also Thomas v. Gottlieb, 520 So.2d 622, 623 n.1 (Fla. 4th DCA 1988).
Defense of Fraudulent Bills. The Plaintiff argues that it has to produce nothing to rebut the Defendant’s claim of fraudulent bills because it is insufficiently pled. The Defendant responds that even if this were true, the Plaintiff should have moved to strike the defense, thus providing the Defendant an opportunity to amend the defense. The Court disagrees with the Defendant.
Clearly, the Defendant has insufficiently pled fraud. See Rule 1.120(b); 27 Fla. Jur. 2d Fraud & Deceit §§10, 75 (2000). Moreover, a plaintiff is not required to move to strike an insufficiently-pled affirmative defense. Rather, a plaintiff may more strategically wait to test its legally sufficiency at summary judgment. See Thompson v. Bank of New York, 862 So.2d 768, 769-70 (Fla. 4th DCA 2003); Cady v. Chevy Chase Sav. & Loan, Inc., 528 So.2d 136, 137-38 (Fla. 4th DCA 1988). In the instant case, the Defendant had well more than three years to attempt to correct its insufficiently-pled defense of fraud. It cannot now be heard to complain.
Sufficiency of Plaintiff Affidavit. The Defendant argues that even if its litigation adjuster’s affidavit and filed traffic crash report are disregarded, the Plaintiff has still failed to establish no disputed material fact on the issue of relatedness. The Defendant argues that Dr. Chiccone’s affidavit fails to establish that Dora Mondragon was involved in the traffic accident. The only provision in the affidavit on this issue provides, “I was the treating medical doctor responsible [for] the care and treatment of Dora Mondragon [. . .] who was injured in the automobile accident on March 26, 2002.” The Court agrees with the Defendant that this statement is insufficient to establish relatedness. Dr. Chiccone’s statement is nothing more than hearsay, insufficient in its content to meet the medical diagnosis exception to the hearsay rule. Fla. Stat. §90.803(4). A foundation must be established under the rule for the admissibility of such a statement. C. Ehrhardt, Florida Evidence §803.4 (2005).
Accordingly, the Court finds that there is no genuine issue of material fact on any issue other than: (1) whether Dora Mondragon was involved in a traffic accident on March 26, 2002; and (2) whether the Defendant’s defense of late notice bars Plaintiff’s recovery. Accordingly, it is hereby
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Partial Summary Judgment is GRANTED in part on all issues except those set forth in the above paragraph.
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