14 Fla. L. Weekly Supp. 32a
Insurance — Personal injury protection — Evidence — Abuse of discretion to prevent medical provider who was suing for cost of MRI from introducing evidence of insurer’s payment of charge for orthopedist’s review of MRI in reliance on section 90.409, which provides that evidence of offering to pay medical expenses or other damages is inadmissible to prove liability for accident or injury — Provider sought to introduce evidence of payment for MRI review to prove that insurer was liable for cost of MRI, not to prove insurer’s liability for injury or accident, payment for MRI review was relevant to issue of whether MRI was medically necessary, and probative value of evidence was not substantially outweighed by danger of unfair prejudice, confusion of issues or misleading jury — Exclusion of evidence was not harmless where it does not appear from transcript that reasonable juror would have understood or inferred that insurer paid for MRI review — No error in allowing insurer to admit evidence of more thorough post-litigation review by same physician who conducted pre-litigation records review
ACK-TEN GROUP LLC D/B/A SEACREST OPEN MRI, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 15th Judicial Circuit (Appellate-Civil) in and for Palm Beach County, Division “AY”. Case Nos. 502005AP000033XXXXMB and 502005AP000083XXXXMB (consolidated). L.T. Case No. 2003CC010480RL. October 4, 2006. Appealed from the County Court in and for Palm Beach County, Honorable Nancy Perez. Counsel: Roberts J. Bradford, Jr. and Gary Marks, Marks & Fleischer, P.A., Fort Lauderdale, for Appellant. Hinda Klein and Doreen E. Lasch, Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow, and Schaefer, P.A., Hollywood, for Appellee.
(GERBER, J.) Appellant, Ack-Ten Group, LLC d/b/a Seacrest Open MRI (“Seacrest”), appeals a jury verdict and final judgment in favor of Appellee, State Farm Mutual Automobile Insurance Company (“State Farm”). Seacrest raises three arguments, but we address in detail only Seacrest’s challenge to the trial court’s reliance upon section 90.409, Florida Statutes, to determine that State Farm’s payment of an orthopedist’s bill for examination of MRI scans was irrelevant to the issue of whether the MRI scans were medically necessary. On that point, we reverse.
State Farm provided personal injury protection (“PIP”) coverage to its insured, Milka Santos, who was involved in a motor vehicle accident. Santos’ chiropractor directed her to obtain MRI scans of her spine from Seacrest. Seacrest submitted a bill to State Farm for payment under Santos’ PIP policy. While State Farm’s review of Seacrest’s bill was pending, Santos went to see an orthopedist and brought with her the MRI scans. The orthopedist reviewed the MRI scans and submitted to State Farm a bill which included a charge for the orthopedist’s review of the MRI scans. State Farm paid the orthopedist’s bill. However, State Farm later refused to pay Seacrest’s bill on the basis that the MRI scans were not medically necessary.
Seacrest filed a two-count action against State Farm for declaratory judgment and for late payment under section 627.436(4)(b), Florida Statutes. Before trial, State Farm filed a motion in limine to prohibit Seacrest from introducing evidence that State Farm paid the orthopedist’s bill to review the MRI scans. State Farm argued that such evidence would be confusing and not probative of whether the MRI scans were medically necessary. The trial court denied the motion. However, on the day of trial, State Farm renewed its motion, contending that section 90.409, Florida Statutes, precluded evidence of payment of a medical bill to prove liability. Upon the trial court’s inquiry to Seacrest as to why it sought to introduce evidence of State Farm’s payment to the orthopedist, Seacrest responded that its purpose was to show State Farm’s payment as an admission against interest by conduct. The trial court then granted State Farm’s motion in limine, reasoning that it was impermissible for Seacrest to show that “if they paid Dr. Stone for the reading of it, therefore, the testing itself must be medically necessary.” The jury found that the MRI scans were not medically necessary. From the final judgment entered in conformance with the jury verdict in favor of State Farm, Seacrest now appeals.
The trial court’s initial determination to deny State Farm’s motion in limine was the correct choice. “A trial judge’s ruling on the admissibility of evidence will not be disturbed absent an abuse of discretion. The same standard applies to rulings on motions in limine.” Golden Yachts, Inc. v. Hall, 920 So. 2d 777, 780 (Fla. 4th DCA 2006) (citations omitted). “The trial court’s discretion is limited by the rules of evidence.” Hayes v. Wal-Mart Stores, Inc., 933 So. 2d 124, 126 (Fla. 4th DCA 2006). Section 90.409, Florida Statutes, states, “Evidence of furnishing, or offering or promising to pay, medical or hospital expenses or other damages occasioned by an injury or accident is inadmissible to prove liability for the injury or accident.” (italics added here). State Farm’s argument led the trial court to disregard the italicized portion of section 90.409 and essentially find that evidence of furnishing payment for any damages occasioned by an injury or accident is inadmissible to prove liability for any claim related to the injury or accident, not just liability for the injury or accident. Such a reading ignores the plain, unambiguous language of the statute. Here, Seacrest sought to introduce evidence of State Farm’s payment of the orthopedist’s bill, which included a charge for the orthopedist’s review of the MRI scans, to prove that State Farm was liable for the cost of the MRI scans, not to prove that State Farm was liable for the injury or accident. State Farm’s payment for the orthopedist’s review of the MRI scans was relevant because it tended to prove a material fact, that is, whether the MRI scans were medically necessary. The probative value of such evidence was not substantially outweighed by the danger of unfair prejudice, confusion of issues, or misleading the jury. We therefore conclude that the trial court abused its discretion in granting State Farm’s motion in limine.
State Farm contends that, despite the trial court’s order granting the motion in limine, Seacrest was able to present to the jury expressly, if not inferentially, evidence of State Farm’s payment of the orthopedist’s review of the MRI scans. This Court has reviewed the trial excerpts upon which State Farm relies, and it does not appear that a reasonable juror would have understood or inferred that State Farm paid for the orthopedist’s review of the MRI scans. In sum, State Farm’s success in convincing the trial court to exclude the evidence was not harmless and causes this Court to set aside the judgment and grant Seacrest a new trial. See Fla. Stat. 59.041 (“No judgment shall be set aside or reversed, or new trial granted by any court of the state in any cause, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence or for error as to any matter of pleading or procedure, unless in the opinion of the court to which application is made, after an examination of the entire case it shall appear that the error complained of has resulted in a miscarriage of justice.”).
Seacrest’s second argument on appeal, that the trial court allegedly erred in allowing State Farm to admit evidence of a more thorough post-litigation review by the same physician who had reviewed records and opined prior to trial, is without merit. Seacrest’s third argument, that the trial court allegedly erred in awarding attorney fees to State Farm based on an expired and unaccepted offer of judgment, also lacks merit, though that third argument is moot based on this Court’s decision to set aside the judgment and grant Seacrest a new trial.
Accordingly, it is
ORDERED AND ADJUDGED that the cause is REVERSED AND REMANDED. State Farm’s motion for appellate attorney’s fees is denied. Seacrest’s motion for appellate attorney’s fees is granted, conditioned on Seacrest being the prevailing party after the new trial, upon which the trial court shall have jurisdiction to determine the amount of Seacrest’s appellate attorney’s fees. (MAASS, J., concurs. STERN, J., dissents with an opinion.)
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(STERN, J., dissenting.) I respectfully dissent solely as to the admission of the subsequent bill payment evidence as an admission as to conduct.
