13 Fla. L. Weekly Supp. 616a
Insurance — Personal injury protection — Coverage — Involvement in accident — Evidence — Although police report is self-authenticating, list of names of persons involved in accident contained in report is inadmissible hearsay and cannot be considered by court in determining whether insured was passenger in vehicle involved in accident — There is no exception under hearsay rule that would permit proponent to lay predicate for admissibility of crash report where report does not meet criteria for admissibility as business record or public record — Moreover, crash report is incompetent because it invites court to infer that insured was not involved in accident by inferring without direct evidence that officer witnessed accident and identified all occupants of vehicle — Accident report privilege applies to reports by law enforcement officers as well as reports by persons involved in accidents — Summary judgment is granted in favor of medical provider as to reasonableness, relatedness and necessity of treatment
EDUARDO J. GARRIDO, D.C., P.A., as assignee of Isabel Garcia, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 04-1394 CC 25 (3). April 3, 2006. Mercedes A. Bach, Judge. Counsel: Christian Carrazana, Panter, Panter & Sampedro, P.A., Miami, for Plaintiff. Paula Ferris, Office of General Counsel, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
THIS CAUSE having come before the Court on this 31st day of January 2006 on Plaintiff’s motion for partial summary judgment on reasonable, necessary and related and upon hearing the arguments of counsel, being otherwise fully advised in the premises, the Court makes the following findings of fact and law:
UNDISPUTED FACTS
1. This is a breach of contract action for personal injury protection benefits governed by § 627.736, Florida Statutes (2003).
2. At all times material, Defendant and Isidoro Fernandez entered into a contract of insurance for no fault insurance benefits; the claimant, Isabel Garcia, is a named insured under the policy.
3. Plaintiff moved for summary judgment alleging the bills incurred by the claimant are reasonable, necessary and related.
4. Plaintiff filed the affidavit of the treating physician, Dr. Eduardo J. Garrido D.C., in support of Plaintiff’s motion; according to the affidavit of Dr. Garrido, the chiropractic care rendered for the claimant is reasonable, necessary and related; the affidavit also states that the claimant advised Dr. Garrido that she was seeking treatment for injuries sustained as a result of her involvement in a motor vehicle accident that took place on June 14th, 2002.
5. The EUO transcript was also filed in support of Plaintiff’s motion; according to the EUO testimony of the claimant, she was involved in the subject accident.
6. In response to the Plaintiff’s motion, Defendant filed a police report which purports to be the accident report generated by the investigating police officer; however, the accident report omits the claimant’s name as a passenger in the vehicle.
7. Defendant, however, did not file a sworn affidavit from the investigating officer or from an IME physician to rebut the opinion of Dr. Garrido.
8. Defendant argues that the claimant’s omission from the police report creates a genuine issue of material fact regarding whether the claimant was involved in the subject accident; in other words, the claimant’s omission creates the inference that the officer did not list the claimant because she was not present in the vehicle at the time of loss. The Plaintiff, in rebuttal, argues that absent a sworn affidavit from the police officer, the accident report is inadmissible and not competent evidence that creates a question of fact.
CONCLUSIONS OF LAW
UNITED relies on United Auto. Ins. Co. v. Arriba, 11 Fla. L. Weekly Supp. 404b (Fla. 11th Jud. Cir. Mar. 9, 2004), for the proposition that a police report, as a self-authenticating document, creates a genuine issue of material fact. The Court, however, finds that Arriba, supra, is irreconcilable with the 11th Circuit’s ruling in United Auto. Ins. Co. v. Quiropractic Therapy Ctr., as assignee of Philomme Chavaness, 12 Fla. L. Weekly Supp. 532a (Fla. 11th Cir. Mar. 8, 2005) and binding decisions from District Courts. The fact that Arriba, supra, deals with the admissibility of a police report in a summary judgment proceeding whereas Quiropractic, supra, deals with admissibility of police report at trial is an immaterial distinction, as both cases deal with the substantive law of evidence, i.e., the admissibility of a police report. Generally, a trial court may only consider competent evidence that would be admissible at trial during a summary judgment proceeding.1 Where the moving party meets its burden on a motion for summary judgment, the nonmoving party must come forward with competent admissible evidence demonstrating a genuine issue of material fact. See e.g., United Auto. Ins. Co. v. Neurology Assoc. Grp. Two Inc., as assignee of Nicholas Cabello, 11 Fla. L. Weekly Supp. 204b (Fla. 11th Jud. Cir. Jan. 13, 2004) (Adjuster’s countervailing affidavit that refers to IME physician’s finding is inadmissible hearsay; adjuster’s opinion that services were not reasonable, necessary nor related is not competent evidence to preclude summary judgment).
The 11th Circuit panel in Arriba, supra, determined that a police report is competent admissible evidence on the theory that a police report is self authenticating; but in Quiropractic, supra, another 11th Circuit panel rejected that theory and determined that a police report, even if self authenticating, is inadmissible. See also C. Ehrhardt, Florida Evidence § 90.901 at 819 (1999) (“Because records or writings have been authenticated does not mean that a foundation for admissibility under an exception to the hearsay rule is present”). Quiropractic, supra, is in accord with Dollar v. State, 685 So.2d 901, 903 (Fla. 5th DCA 1995) where the District Court rejected the theory that a writing is admissible merely because it is self authenticating; the Court determined that a self authenticating writing is subject to other rules of evidence that may bar its admissibility.
The police report contains inadmissible hearsay; for instance, the listed names on the report are out of court statements of self identification that are inadmissible hearsay; therefore, the Court may not consider the listed names on the report to determine who was or was not involved in the accident.2 See Weinstein v. LPI-The Shoppes, Inc., 482 So.2d 520 (Fla. 3rd DCA 1986) (A declarant’s out of court statement of self identification is inadmissible hearsay). The hearsay rule applies because the sole purpose of introducing the report is to prove the truth of the matter asserted; i.e., that certain persons were involved in the subject accident and the claimant was not. It is generally accepted that where a hearsay document is authenticated, the proponent must lay a foundation for admissibility under an exception to the hearsay rule. See C. Ehrhardt, § 90.901 at 819. Police reports, moreover, are rank hearsay. Bolin v. State, 736 So.2d 1160, 1167 (Fla. 1999). There is no exception under the hearsay rule that would otherwise permit a proponent to lay a predicate for admissibility of a crash report because it does not meet the statutory criteria for admissibility as a business record under § 90.803(6) or a public record under § 90.803(8). See Lee v. Dept. of Health and Rehabilitative Services, 698 So.2d 1194, 1201 (Fla. 1997). In lieu of offering the accident report, a witness must be called who has personal knowledge of the facts. Quiropractic, supra, citing King v. Califano, 183 So.2d 719, 721, 722 (Fla. 1st DCA 1966); Lobree v. Caporossi, 139 So.2d 510, 513 (Fla. 2nd DCA 1962). Likewise, in lieu of offering the accident report in a summary judgment proceeding, Defendant must submit a sworn affidavit of the investigating officer stating facts that would be admissible in evidence to create an issue of fact. See Fla. R. Civ. P. 1.510(e) (“Supporting and opposing affidavits shall be made on personal knowledge, shall set forth facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”)
The accident report, moreover, is incompetent because it invites speculation; more succinctly, it requires the Court to draw inference upon inference where the first inference does not rise to the level of an established fact to permit another inference to be drawn from it. Although it is inappropriate for the Court to weigh evidence during a summary judgment proceeding, the Court may only draw “reasonable inferences” from the evidence in the light most favorable to the non moving party. Harvey Building Inc. v. Haley, 175 So.2d 780 (Fla. 1965). Drawing “reasonable inferences in favor of the non moving party,” however, does not mean drawing inference upon inference where the first inference is speculative. Historically, the “inference upon inference” method of reaching an ultimate fact is prohibited for the purpose of protecting litigants from verdicts or judgment based on speculation. Voekler v. Combined Ins. Co. of America, 73 So.2d 403, 407 (Fla. 1954). The Supreme Court in Voekler, supra, carved an exception to the general prohibition against drawing inference upon inference; there, the Court held that the “inference upon inference” method of reaching an ultimate fact is permissible where the first inference is established to the exclusion of any other reasonable theory thereby allowing another inference be drawn from it. Id. The Voekler test was applied in a summary judgment context in Food Fair Stores, Inc. v. Trusell, 131 So.2d 730 (Fla. 1961) where the Supreme Court affirmed an adverse summary judgment against a plaintiff in a negligence action; there, the trial court declined to draw inference upon inference to establish a genuine issue of material fact where the first inference did not exclude all other reasonable theories that would otherwise permit another inference to be drawn from it. In affirming the trial court, the Trusell Court explained “that a jury could not reach a conclusion imposing liability . . . without indulging in the prohibited mental gymnastics of constructing one inference upon another inference in a situation, where, admittedly, the initial inference was not justified to the exclusion of all other reasonable inferences.” Id. at 733 (emphasis added). In this case, UNITED is inviting this Court to draw an inference upon inference where the initial inference is not justified to the exclusion of all other reasonable theories to permit an inference to be drawn from it. To draw the ultimate inference that the claimant was not involved in the subject accident based on the accident report, the Court must first speculate or infer, without direct evidence, the following: (1) that the officer witnessed the accident; (2) that the officer identified all occupants in the vehicle. The inferences, however, are unjustified because they do not rule out the reasonable inference that the officer did not witness the accident and did not identify all occupants since it may have been unnecessary; nor does it rule out the reasonable inference that the claimant, who presumably was traveling as a passenger, may have left the scene of the accident before the officer’s arrival.
The l1th Circuit in Quiropractic, supra, also found that the admissibility of a written crash report by an investigating officer is barred under § 316.066, Florida Statutes, (2003) whereas Arriba, supra reached the opposite result. See Arriba, 11 Fla. L. Weekly Supp. at 404a (“As such [§ 316.066] only applies to crash reports made by individuals involved in accidents or statements made by such persons to an investigating officer. Since the accident report was made by the officer, it cannot be categorically deemed inadmissible.”) (emphasis added) (alteration in original). “[Where] a statute is clear and unambiguous, legislative intent must be derived from the words used without involving the rules of statutory construction or speculating as to what the legislature intended.” Zukerman v. Alter, 615 So.2d 661, 663 (Fla. 1993) (alteration in original); See also Holly v. Auld, 450 So.2d 217 (Fla. 1984). One of the fundamental tenets of statutory construction requires that a statutory term be given its plain and ordinary meaning. Rollins, et al., v. Pizzarelli, et al., etc., 761 So.2d 294, 298 (Fla. 2000). Applying the foregoing principles of statutory construction, it is evident that the police report is privileged. Section 316.066(4) states in relevant part:
“Except as specified in this subsection, each crash report made by a person involved in a crash and any statement made by such person to a law enforcement officer for the purpose of completing a crash report required by this section shall be without prejudice to the individual so reporting. No such report or statement shall be used as evidence in any trial or criminal.” (emphasis added).
The key term in the sentence “[n]o such report or statement shall be used as evidence in any trial, civil or criminal,” is the term “such.” The term “such” is defined by the dictionary “as being the person or thing implied or previously mentioned.”3 American Heritage Dictionary, 1285 (1976) (emphasis added). The preceding sentence under § 316.066(4) mentions the term “report” twice in a separate context as follows: (1) “each crash report made by a person involved in a crash,” and (2) “any statement made by such person to a law enforcement officer for the purpose of completing a crash report required by this section” (i.e. § 316.066). In light of the latter phrase, the Court must read the statute as whole to determine what reports are required § 316.066. See Forsythe v. Longboat Key Beach Erosion Control District, 604 So.2d 452, (Fla. 1992) (“It is axiomatic that all parts of a statute must be read together in order to achieve a consistent whole.”) (emphasis added) (citation omitted); Fleischman v. Dept. of Professional Regulation, 441 So.2d 1121, 1123 (Fla. 3rd DCA 1992) (“Every statute must be read as a whole with meaning ascribed to every portion and due regard given to the semantic and contextual interrelationship between its parts.”) (emphasis added). When reading the statute as a whole, subsection (3)(a) reveals that a written accident report by a law enforcement officer is required by the statute under certain circumstances:
“Every law enforcement officer who in the regular course of duty investigates a motor vehicle crash: (1) Which crash resulted in death or personal injury shall, within 10 days after completing the investigation, forward a written report of the crash to the department or traffic records center; (2) Which crash involved a violation of s. 316.061(1) or s. 316.193 shall, within 10 days after completing the investigation, forward a written report of the crash to the department or traffic records center. (emphasis added).
Because the phrase “[n]o such report,” refers to the term “report” mentioned twice in a different context by the preceding sentence (e.g. “each crash report by made by person involved in a crash” and “a crash report required by this section (i.e. §316.066),”), the Court finds that the phrase “[n]o such report . . . shall be used as evidence in any trial, civil or criminal,” includes a written report from a law enforcement officer required by § 316.066(3)(a).4
The Second District’s ruling in White v. Kiser, 368 So.2d 952 (Fla. 2nd DCA 1979) is irreconcilable with Arriba. White was a personal injury action where a Florida highway patrol accident report was entered in evidence at trial. The Second District, on appeal, determined the admission of the report is reversible error; the Second District specifically stated that “[s]ection 316.066 . . . prohibits the introduction of an accident report in any civil trial.” White, 368 So.2d at 953 (emphasis added). The ruling by the White Court, unlike Arriba, makes no distinction between reports by persons involved in a crash and crash reports by a law enforcement officer; the latter reports, like the former, are inadmissible under § 316.066. Id.
Any statements to a law enforcement officer for the purpose of completing a report are inadmissible under § 316.066(4). Arriba, on the other hand, implies that a non statement, such as a non statement of self identification, is not privileged; which is contrary to the Fourth District’s ruling in Thomas, et al., v. Gottlieb, et al., 520 So.2d 622, 623 (Fla. 4th DCA 1988) where the District Court found a non statement is inadmissible under § 316.066(4):
Statements made by Mr. Thomas to the investigating officer were within the statutory privilege. (citation omitted). True, the officer’s testimony related to what Mr. Thomas did not say, rather than to what he did say. The effect, however, is the same. It would be illogical to hold that the statutory privilege would preclude the officer from testifying that Mr. Thomas stated he was not injured but would not preclude the officer from testifying that Mr. Thomas made no complaint of injury.
In light of the foregoing authorities, the Court is inclined to follow Quiropractic, supra, and the law from the District Courts regarding the admissibility of an accident report; further, this Court must follow the law from the District Courts even where such decisions appear to conflict with a decision from the circuit appellate court. See Cicero Ortho Med. Ctr., as assignee of Maria Pineda, v. United Auto. Ins. Co., 12 Fla. L. Weekly Supp. 485a (Fla. 11th Jud. Cir. Feb. 9, 2005) citing Pardo v. State, 596 So.2d 665, 666 (Fla. 1992) (“[I]n the absence of interdistrict conflict, district court decisions bind all Florida trial courts.”).
Therefore, based on the forgoing conclusions of law and fact, Plaintiff’s motion for summary judgment on reasonable, necessary and related is GRANTED.
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1See e.g. Food Fair Stores, Inc., etc., et al., v. Trusell, 131 So.2d 730 (Fla. 1961) (“[S]tatements contained in affidavits on a motion for summary judgment must be such as would be admissible in evidence at trial.”) (emphasis added); Producers Fertilizer Co., v. Holder, 208 So.2d 492, 494 (Fla. 2nd DCA 1968) (“Statements in an affidavit can be considered in connection with a motion for summary judgment only if they would be admissible in evidence.”) (emphasis added) (citation omitted); Crosby v. Paxson Electric Co., 534 So.2d 787 (Fla. 1st DCA 1989) (“[A]n affidavit in support of summary judgment that does no more than indicate the documents that appear in the files and records of a business is not sufficient to meet the business records exception to the hearsay rule.”); Thomasson v. The Money Store/Florida Inc., 464 So.2d 1309 (Fla. 4th DCA 1985) (“[T]he affidavit in support of summary judgment demonstrates no more than that the documents attached thereto appear in the files and records of [the moving party]. This is not a sufficient showing to meet the requirements of the business record hearsay exception. . . . Therefore, the affidavit does not set forth such facts as would be admissible in evidence. . . .”) (alteration in original); United Auto. Ins. Co. v. Juan Lopez, 11 Fla. L. Weekly Supp. 297b (Fla. 11th Jud. Cir. Feb. 24, 2004) (Summary judgment reversed where affidavit in support of insured’s motion for summary judgment did not lay the proper foundation for admissibility of account ledger as a business record.).
2Although it could be argued that listed names on the police report are not hearsay because they were derived by the officer from a tangible piece of identification (e.g. driver license), the argument is speculative in the absence of direct evidence by affidavit from the investigating officer explaining how the names were obtained during the investigation.
3It is presumed that the legislature knows the plain and ordinary meaning of words. Abenkay Realty Corp., et al., v. Dade County, et al., 185 So.2d 777, 780 (Fla. 3rd DCA 1966). When necessary, the plain and ordinary meaning of words can be ascertained by reference to a dictionary. Rollins, et al., 761 So.2d at 298.
4The Second District’s ruling in Lobree v. Caporossi, 139 So.2d 510 (Fla. 2nd DCA1962) is not binding. Lobree construed the predecessor to § 316.066 (i.e. § 317.17) which at that time, only barred reports made by persons involved in accidents but not reports from law enforcement officers.
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