13 Fla. L. Weekly Supp. 787a
Insurance — Personal injury protection — Appeals — Record — Trial court’s striking of affirmative defense that services were not reasonable, related or necessary and precluding insurer’s doctor from testifying about issue is affirmed where insurer failed to include in record on appeal order striking affirmative defense as sanction for discovery violations or documentation of events leading up to imposition of sanction — Directed verdict — Error to enter directed verdict in favor of medical provider where testimony of provider’s doctor was conflicting and created inference that doctor may not have reviewed insured’s charts adequately to determine that medical bills were reasonable, necessary and related
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. TOTAL REHAB & MEDICAL CENTER, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 02-492AP. L.C. Case No. 01-8967 SP 26. June 1, 2006. On appeal from the County Court, Miami-Dade County, King, Lawrence D., J. Counsel: Michael J. Neimand, The Office of the General Counsel, United Automobile Insurance Company, for Appellant. Christian Carrazana, Bernstein & Maryanoff, P.A., for Appellee.
(Before DRESNICK, PRESCOTT, EIG, JJ.)
(PRESCOTT, J.) This is an appeal of a county court order granting a directed verdict in favor of the Appellee, Total Rehab & Medical Center, Inc. (“Total Rehab”), assignee for Ovil Gaspard. Mr. Gaspard alleged that he was injured in a motor vehicle accident and sustained injuries which required medical treatment. He sought medical treatment at Total Rehab. Thereafter, Mr. Gaspard assigned his rights to receive payment for his medical treatment to Total Rehab. Total Rehab submitted its medical bills to the Appellant, United Automobile Insurance Company (“United Auto”). However, United Auto did not submit payment for the medical bills. As a result, Total Rehab, filed suit against United Auto, for failure to pay Personal Injury Protection [“PIP”] benefits under Fla. Stat. §627.730 (2002).
United Auto asserts that the lower court erred by striking the issue of reasonableness, related, or necessary as an affirmative defense and then precluding the Appellant’s doctor from testifying about the above issue. In addition, United Auto asserts that the directed verdict was improper because there exist disputable issues of fact. Total Rehab did not file an answer brief and was precluded from oral argument in this case.
The standard of review for a lower court’s pre-trial procedural order imposing sanctions is abuse of discretion. J.P. Morgan Chase Bank v. Combee, 883 So. 2d 330 (Fla. 1st DCA 2004).
At trial, the Plaintiff reminded the court that it entered an order, dated July 11th, which stuck one of United Auto’s affirmative defenses. The affirmative defense struck by the lower court was that the medical bills incurred by the Plaintiff/Appellee were not reasonable, necessary, or related. The court entered this order as a sanction for United Auto’s failure to provide adequate answers to Total Rehab’s interrogatories. Since this order existed, Total Rehab requested that United Auto’s witness, Dr. Morris, be precluded from testifying since his testimony addressed the reasonable, necessary, and relatedness of the medical bills. The trial court granted this request.
The record is devoid of the July 11 order striking United Auto’s affirmative defense of reasonable, necessary, and related. Moreover, it does not contain the motion, series of motions, or orders compelling United Auto to answer the interrogatories. In fact, the events that led up to the lower court imposing the sanction of striking an affirmative defense are absent from the appellate record altogether. It is important to note that a trial court’s findings come to a reviewing court with a presumption of correctness, and cannot be disturbed absent a record demonstrating reversible error. Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979). The burden is on the appellant to demonstrate reversible error and present an adequate record for review. Without an adequate record of the proceedings below, the appellate court cannot properly resolve factual issues to conclude the trial court’s judgment is not supported by evidence or an alternate theory. Moreover, without knowing the factual context, neither can an appellate court reasonably conclude that the trial court so misconceived the law as to require reversal. Therefore, Appellant’s failure to provide a complete and adequate record with respect to this issue of reasonable, necessary, and related leaves us no other alternative but to affirm this issue.
We now turn to Appellant’s second issue, the appropriateness of the directed favor in favor of Appellee, Total Rehab.
The standard of review for a lower court’s directed verdict order is de novo.1 Plotch v. Gregory, 463 So. 2d 432, 435 (Fla. 4th DCA 1985). On appellate review, a directed verdict should be affirmed, if, in viewing the evidence in a light most favorable to the non-moving party, it appears that the trier of fact could not have reasonably differed as to establishment of material facts. Id. Assuming that there is no dispute as to the effect of the evidence, though, the trial judge must have also made the correct decision as a matter of law.2 McDonald v. McGowan, 402 So. 2d 1197 (Fla. 5th DCA 1981).
The first step in a directed verdict review is to determine whether this court could reasonably differ as to establishment of material facts. A motion for directed verdict admits the truth of all facts in evidence and every reasonable conclusion or inference based thereon which is favorable to the non-moving party. Powell v. Napolitano, 578 So. 2d 747, 748. The motion must be denied if the evidence is conflicting or different conclusions or inferences can be drawn from it. Id. Further, the trial court may not pass upon the credibility of witnesses or weigh the evidence in ruling on the motion. Id.
A review of the trial transcript indicates areas where Dr. Blandon’s testimony could be viewed by a jury to be inconsistent and could raise an inference that he is dishonest. For example, in his direct examination, Dr. Blandon testified that he is familiar with the entire medical chart of Gaspard. The doctor further testified that he reviewed the course of treatment and every single therapy note that is contained in Gaspard’s file. Yet, on cross-examination the doctor could not recall whether he examined Gaspard once and stated there was nothing in the medical reports that would refresh his recollection regarding this issue. In his direct examination, Dr. Blandon testified that he saw Gaspard once. However, in his cross-examination the doctor testified that he saw Gaspard two times. Another inconsistency lies in the fact that the doctor claimed he did an initial exam and follow-up exam of Gaspard. Yet, in his cross-examination, the doctor testified that his physician assistant did the follow-up. He then later changed his testimony to state he did not remember. When asked on direct examination how many times he reviewed the patients’ charts the doctor testified, once a week. Then, on cross-exam when he was asked the same question, he responded that his review was flexible.
Case law dictates that a motion must be denied if the evidence is conflicting or different conclusions or inferences can be drawn from it. Napolitano, 578 So. 2d at 748. In this case, the doctor’s testimony is conflicting and creates an inference that he may not have reviewed Gaspard’s charts adequately to determine whether the medical bills were in fact reasonable, necessary, and related. Furthermore, case law directs that a trial court may not pass upon the credibility of witnesses or weigh the evidence in ruling on the motion. Id. The lower court clearly ignored this directive when it held that “the greater weight of the evidence, as a matter of fact, significant weight of the evidence, was not rebutted by either the cross-examination of Dr. Blandon. . .” Weighing evidence in a jury trial is a jury function, not a trial court function. Thus, the conflicting evidence together with the lower court’s improper action of weighing the evidence leaves us with no other choice but to reverse the trial court’s motion for directed verdict in favor of the Appellee, Total Rehab.
This court need not address the second step in a directed verdict review, whether Total Rehab was entitled to a judgment as a matter of law, since neither party raised this prong as an issue.
FOR THESE REASONS, the directed verdict in favor of the Appellee, Total Rehab is REVERSED, and this cause is REMANDED to the trial court for further proceedings consistent with this opinion.
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1De Novo review simply means the appellate court is free to decide the question of law, without deference to the trial judge, as if the appellate court had been deciding the question in the first instance. See Philip J. Padovano, Florida Appellate Practice, Vol. 2, §9.4, p. 161 (2006 ed., West 2005).
2See Philip J. Padovano, Florida Appellate Practice, Vol. 2, §9.4, p. 164 (2006 ed., West 2005).
