13 Fla. L. Weekly Supp. 437a
Insurance — Personal injury protection — Error to present medical charges to jury where medical provider waived charges as to services provided by one physical therapist and the only other therapist working for provider testified that he did not provide any services to insured — Verdict form — Defects — Issue of defect on verdict form was preserved for appeal where insurer raised issue prior to discharge of jury — Where issue for jury was reasonableness of charges compared to reduced amount allowed by insurer, verdict form that directed jury to add up reasonable amounts to determine damages, rather than adding up differences between reasonable amounts and amounts paid, would not yield correct damages and would result in double payment to provider — Provider’s argument that there was no evidence that allowed amounts had ever been paid is unpersuasive under circumstances — Trial court had authority to correct verdict at hearing on final judgment
PROGRESSIVE EXPRESS INS. CO., Appellant, vs. APEX PAIN MANAGEMENT CENTER, INC., (a/a/o Sorraya Lamanati), Appellee. Circuit Court, 13th Judicial Circuit (Appellate) for Hillsborough County. Case No. 04-11228, Division X. L.T. Case No. 03-6284-SC. October 27, 2005. Review of a final order of the County Ct., Hillsborough County. Counsel: Douglas M. Fraley, Tampa, for Appellant. V. Rand Saltsgaver, Orlando, and Timothy Patrick, Tampa, for Appellee.
(JAMES M. BARTON, II, Presiding J.) Appellant PROGRESSIVE EXPRESS INSURANCE COMPANY appeals a final judgment entered on behalf of Appellee APEX PAIN MANAGEMENT CENTER, as assignee of Sorraya Lamanati on the ground that the judgment is not supported by the evidence or by the jury verdict entered in the case. Based upon our review of the record, we agree and reverse. The facts are as follows.
On April 3, 2003, Apex Pain Management Center, Inc. (“Apex” or “Appellee”), as assignee of Sorraya Lamanati, filed a Complaint for personal injury protection (PIP) benefits against Appellant, Progressive Express Insurance Company (“Progressive”). Progressive filed an answer and affirmative defenses, alleging that the medical expenses Apex sought exceeded the reasonable amount payable for those charges.
Based upon the facts contained in the record, two issues affect the propriety of the judgment: the determination whether the charges were properly before the trier of fact, and whether the verdict form reflects the intended finding of the jury.
One of the two non-physician service providers could have provided the treatments in dispute. Notwithstanding its assertions to the contrary, Apex expressly waived all charges for services provided by physical therapist Rick Lagunza, leaving one Brian Hendricks the only other possible provider of therapy services for which the charges are disputed. Hendricks in his deposition testified that he did not provide any of the services that were the subject of disputed payments.
At trial, the trial court reaffirmed her determination that Apex could not seek relief for services provided by Rick Lagunza because Apex had waived those charges. Under this set of facts, there were no disputed bills for medical services at issue. Notwithstanding this inescapable conclusion, however, the trial court submitted the issue of “reasonableness” of the charges to the jury. At the conclusion of Apex’s case, Progressive moved for a directed verdict on the ground that, among other things, the verdict form contained only waived charges for services Lagunza provided. The trial court denied the motion for directed verdict.
The verdict form was also the basis for significant contention before, during, and after trial. Initially, Progressive argued that the verdict form contained charges that were waived. Retired judge Dennis Alvarez, sitting as a special master, considered the jury instructions and verdict form at a pretrial hearing but was unaware that Apex had waived the Lagunza charges. Although Judge Anderson later directed Apex to remove those charges from the verdict form, Apex did not do so, and the form was submitted to the jury with the waived charges.
The verdict form requested the jury to determine the reasonable amount for the charges. The verdict form had columns for the date of service, a code for the treatment, the amount Apex billed for the treatment, and the amount Progressive allowed as the basis for payment. For the jury to find for Apex, it would have had to find that the amount billed and the reasonable amount for the service were the same. For the jury to find for Progressive, it would have to find that the amount allowed and the reasonable amount were the same. An excerpt of the form reads as follows:
I. The Plaintiff billed the below stated amounts for the medical treatment and services it performed on Sorraya Lamanati. Please insert the amount which you the jury find to be the reasonable amount for each respective medical charge: II. Date of Service CPT Code Amt Billed Amt Allowed Reasonable Amt 1/14/03 97002 $90.00 $81.00 $ _________ 97124 $48.00 $44.00 $ _________ 97140 $75.00 $52.00 $ _________ III. TOTAL DAMAGES OF PLAINTIFF, APEX PAIN MANAGEMENT CENTER, INC., as assignee of Sorraya Lamanati. (Please add all of the amounts listed in the right column) $ _________
In each instance, the jury found that the amount allowed and the reasonable amount were identical. While the jury’s finding that the amount allowed and the reasonable amount were identical indicates an intent of the jury to find for Progressive, the third paragraph of the verdict form asks the jury to add all of the amounts listed in the right column, i.e., the column reflecting the reasonable amount. This procedure would effectively award damages to Apex, even if the difference between the amounts allowed and the reasonable amounts were zero, as, in fact, they were. The parenthetical language requiring the jury to add all of the amounts listed in the right column did not appear in the proposed verdict forms either party submitted to the retired judge as part of the charge conference.
Before the jury retired to deliberate, Progressive requested to be heard on the issue of the additional language on the verdict form. The trial judge denied the request. While the jury deliberated, Progressive argued to the court that the additional language on the verdict form did not make sense. The trial judge refused to rule on the issue, advising counsel that if the jurors had a question, they would ask.
Upon receiving the verdict, which appeared to find for Progressive in every way except for paragraph III, Progressive again pointed out the inconsistency to the trial court. Further supporting Progressive’s contention were the Clerk’s Minutes of Jury Trial, which indicated that the verdict was for Progressive. Again, the trial court rejected Progressive’s argument.
Both parties filed proposed final judgments. The trial court held a hearing on November 30, 2004, and heard arguments of the parties on the respective proposed judgments. Once again, Progressive requested the trial court to enter judgment in its favor, citing the fact that the jury found in every instance that the allowed amounts and the reasonable amounts were the same, resulting in zero damages to Apex. Notwithstanding this argument, and, using the figure in paragraph III of the verdict form, the trial court entered judgment in favor of Apex, awarding $1,648.00, plus interest. From the judgment, Progressive filed this timely appeal.
There are two grounds upon which this Court reverses the decision of the trial court. The first relates to whether the charges that were the subject of this case should have ever been presented to the jury. We conclude that they should not have been because Apex waived them. The transcript clearly shows that Apex specifically waived the charges provided by therapist Lagunza. Considering that the only other therapist at Apex testified that he had not provided any of the services for which charges were contested, by default, all the charges were provided by Lagunza. In short, Apex failed to demonstrate that there were any outstanding charges which should have been submitted to the jury.
The second issue relates to the defective verdict form. This Court must determine whether Appellant preserved the issue for appellate review. Although the nature of the error on the verdict form is such that it very well could have been reviewed and corrected even after discharge of the jury, Appellant’s counsel did raise the issue prior to that time. Thus, there is no doubt that the issue was timely raised. Cocca v. Smith, 821 So. 2d 328 (Fla. 2d DCA 2002) (failure to object to verdict form before jury is discharged waives any objections to them); cf. Perry v. Allen, 720 So.2d 614 (Fla. 1st DCA 1998) (when itemized verdict form is used, line requesting total damages is not needed for judge to enter final judgment; trial court may correct obvious arithmetical error).
The issue concerning the verdict form relates to the language in paragraph III, which directs the jury to add the amounts in the “right column” to determine damages. This language did not appear on an earlier form. As Appellant correctly argues, this would not yield Appellee’s damages if the issue were the reasonableness of the charges vis a vis the amount allowed. Apex sued because it was underpaid, not unpaid, for certain treatments. Thus, it would be the difference between the reasonable amount and the allowed amount (the latter of which indicates that the bills were paid) which would yield the correct damages. To add up the figures in the reasonable amounts column would result in a double payment to Apex. Indeed, the jury’s intent to find for Appellant is confirmed in the Clerk’s minutes, which unambiguously indicates that the jury found for “defendant” (Appellant Progressive herein).
In answer to Appellant’s arguments on the issue of the verdict form, Appellee contends that there is no evidence in the record that the contested sums were ever paid. This argument is unpersuasive. First, Appellee attempts to shift the burden of proof to Appellant; Appellee never submitted any evidence that it was not paid. Second, the trial court would not have engaged in a purely academic discussion of amounts “allowed” as compared with “reasonable” amounts, if the services had not been compensated at all.
At the hearing on final judgment, when again presented with the error on the verdict form the trial court said it had no authority to correct the verdict. Decisional authority does not support this conclusion. Appellate courts have held that errors such as the one before this court may be corrected by trial court judges. See e.g. Balsera v. A.B.D.M. & P. Corp., 511 So.2d 679 (Fla. 3d DCA 1987) (where jury incorrectly apportions damages, judge should correct verdict if jury’s intent is clear based upon circumstances of the case). See also Cory v. Greyhound Lines, Inc., 257 So.2d 36 (Fla. 1972) (where jury’s intent is evident, a judgment may be entered in conformity with that intent). Here, the problem was not with the jury, but with the verdict form. There is no single method of resolving error in a verdict form. Fertilien v. State, 848 So.2d 450 (Fla. 4th DCA 2003).
Our conclusion on either of the two issues requires us to reverse the judgment of the trial court. It is therefore ORDERED that the judgment of the trial court is REVERSED. The trial court is directed to enter judgment for Progressive.
It is further ordered that Appellant’s request for appellate attorney’s fees is GRANTED. Appellee’s request for attorney’s fees is DENIED. (NIELSEN and LEVENS, JJ., Concur.)
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