14 Fla. L. Weekly Supp. 1087a

Insurance — Personal injury protection — Summary judgment — Trial court correctly entered partial summary judgment in medical provider’s favor where provider submitted affidavit attesting that treatment of insured was reasonable, related to accident, and medically necessary and that charges were reasonable, and insurer failed to file affidavit to counter provider’s affidavit or provide medical opinion to support claim that treatment was not reasonable, related or necessary — No abuse of discretion in striking transcript of examination under oath where insurer withheld transcript based on assertion of privilege and/or claim that transcript did not exist until it amended answer to assert fraud based on EUO long after discovery had been completed

PROGRESSIVE AMERICAN INSURANCE COMPANY, Appellant, vs. MARIA CARTAYA M.D., P.A. a/a/o MADAYS LORENZO, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami Dade County. Case No. 06-057 AP. L.C. Case No. 04-8987 SP 25. October 22, 2007. On Appeal from County Court in and for Miami Dade County, Andrew S. Hague, Judge. Counsel: Douglas H. Stein & Stephanie Martinez, Anania, Bandklayder, Blackwell, Baumgarten, Torricella & Stein for Appellant. Stuart B. Yanofsky, P.A. for Appellee.

(Before BLAKE, LOPEZ, and EIG, JJ.)

(BLAKE, Judge.) Having thoroughly reviewed the pleadings and papers in this case, the ruling of the county court should be affirmed.

This is an appeal of a summary judgment order entered in favor of Maria Cartaya against Progressive American Insurance Company, hereafter referred to as Progressive.

On June 8, 2004, Ms. Madays Lorenzo was allegedly in an automobile accident. As a result, she allegedly sustained physical injuries from the accident. At the time of the accident, Ms. Lorenzo was insured under Personal Injury Protection coverage issued by Progressive. As a consequence, she sought treatment from Dr. Maria Cartaya. As a result of the doctor-patient relationship, Dr. Cartaya received an assignment of benefits from Ms. Lorenzo. From June 10, 2004 through September 1, 2004, Ms. Lorenzo received treatments and various therapies under the supervision of Dr. Cartaya. The bills resulting from the treatment given during this time, which totaled $8,856.00, were submitted to Progressive. When Progressive did not pay the bills, Dr. Cartaya sued. During the course of the case, both parties exchanged discovery on the issues raised in their respective pleadings. Notably, in response to the Appellee’s First Request for Production and in its privilege log, filed on March 24, 2005, Progressive asserted work product privilege as it related to the request for written statements, but then alleged that no such statements existed. Although Progressive later argued that the transcript of Ms. Lorenzo’s EUO (examination under oath) was not available at the time its pleadings and discovery responses were prepared, even though the EUO statement was taken on October 21, 2004. The transcript was transcribed on November 18, 2004. Although Progressive claimed that they were not aware of the existence of this transcript on October 18, 2005, it was available throughout the motion process.

On August 26, 2005, the Appellee moved for summary judgment as to liability and/or as to whether the medical treatments where reasonable, related and medically necessary. Dr. Cartaya alleged that Progressive had ample time after receipt of the bills to authenticate and pay the bills. She also alleged that Progressive lacked reasonable proof that it was not responsible for medical expenses incurred by Ms. Lorenzo as a result of the automobile accident. The Appellee’s motion was supported by a memorandum of law and supplemental authorities.

In support of her motion, Dr. Cartaya submitted an affidavit, hereafter referred to as Affidavit #1, which stated that she was a medical doctor licensed in Florida, and that she consulted, evaluated and treated Ms. Lorenzo. She also attested that she was told by Ms. Lorenzo the source of her injuries and that she obtained information necessary for the diagnosis and treatment of the injuries related to the accident. Dr. Cartaya’s affidavit also stated that the charges for the treatment and therapy were reasonable and customary given the charges in the community for the same treatment.

Progressive submitted a motion to strike Affidavit #1 because Dr. Cartaya failed to allege the basis of her personal knowledge. The motion also stated that Dr. Cartaya failed to specifically outline the records she used in formulating her opinions. They finally alleged that Dr. Cartaya lacked the requisite expertise to support her opinions because her business card listed her dual specialty as dermatology and general practice.

Dr. Cartaya’s motion was initially denied as premature because discovery had not yet been completed. At that time, September 26, 2005, the trial court gave Progressive forty-five days to complete their discovery before the motion would be heard. When the motion was renewed on December 1, 2005, the court granted Dr. Cartaya’s motion.

On October 18, 2005, between the two hearings on Dr. Cartaya’s motion for summary judgment, Progressive submitted a motion to amend its answer and affirmative defenses. Progressive asserted a fraud defense and filed the EUO of Ms. Lorenzo that was taken on October 21, 2004. The trial court permitted the answer to be amended. Consequently, the Appellee, Dr. Cartaya submitted a motion to strike Progressive’s fraud defense which was based solely on the contents of Ms. Lorenzo’s EUO. The trial court had previously stricken the EUO and ordered that it not be considered in the case or at trial.

Dr. Cartaya sought entry of a final judgment. Progressive motioned to strike the entry of final judgment in favor of Dr. Cartaya. On January 23, 2006, the trial court entered final judgment in favor of Dr. Cartaya. Petitioner Progressive has appealed that decision. As the basis of their appeal, the Petitioner makes two different claims. The first claim was that the trial court erred by entering partial summary judgment as to the issue of whether the medical services were reasonable, related and necessary. The second was that the trial court erred in striking the transcript of Ms. Lorenzo’s EUO, which effectively precluded the Petitioner from pursuing an affirmative defense of fraud.

The Medical Services Were Reasonable, Related and Necessary

When the appellate court is reviewing a summary judgment decision, that decision is subject to a de novo review to determine whether there are genuine issues of material fact and whether the trial court has applied the correct rule of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000); Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000). A trial court’s decision on a summary judgment motion comes to the appellate court clothed in the presumption of correctness, which must be overcome by the appellant. Easterling v. Keels, 681 So. 2d 744 (Fla. 1996).

In a personal injury protection action, the medical provider is required to prove that the treatment for which they seek compensation was reasonable, related to an auto accident and medically necessary. Auto Owners Ins. Co. v. Marzulli, 788 So. 2d 1031 (Fla. 2d DCA 2001). In this case, the medical provider submitted materials in support of her motion to establish that no genuine issue of material fact remained. The trial court made a finding that the affidavits submitted properly supported each of the core elements of a lawsuit needed to prove entitlement for personal injury protection benefits. As the treating physician, Dr. Cartaya attested that her care and treatment of Ms. Lorenzo was reasonable, related to that particular auto accident, and medically necessary given the circumstances in the case. Rule 1.510 of the Florida Rules of Civil Procedure provides:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Once the moving party tenders competent evidence to support the motion, the opposing party must come forward with counter evidence sufficient to reveal a genuine issue. Williams v. Garden City Claims, Inc., 796 So. 2d 586, 588 (Fla. 3d DCA 2001). It is well established that “it is not sufficient for the opposing party merely to assert an issue does exist.” Harvey Building, Inc. v. Haley, 175 So. 2d 780, 782 (Fla. 1965). Progressive failed to file an affidavit to counter Dr. Cartaya’s affidavit, or in the alternative, provide a medical opinion to support their defense that the treatment was not reasonable, related or necessary.

When Dr. Cartaya filed her motion for summary judgment and the supporting affidavit, Progressive was obligated to demonstrate that an issue of fact existed. Where the opposing party fails to produce an affidavit or other evidence to oppose the motion for summary judgment, the moving party has only to establish a prima facie case for the trial court to be able to enter a summary judgment. Haley, 175 So. 2d at 780, Latour Auto Sales v. Stromberg-Carlson Leasing Corp., 335 So. 2d 600 (Fla. 3d DCA 1976). Such is the case here. Progressive insists an issue exists, but did not submit any affidavits or medical reports to support that position. Progressive was expected to submit contrary evidence, but did not. As a consequence, the absence of contradicting evidence entitles Dr. Cartaya to summary judgment as a matter of law. Therefore, the trial court correctly entered partial summary judgment in the Appellee’s favor.

The Trial Court Did Not Abuse Its Discretion by Striking the Transcript

A trial court’s decisions regarding acceptance or exclusion of evidence are reviewed pursuant to the abuse of discretion standard. Hendry v. Zelaya, 841 So. 2d 572, 575 (Fla. 3d DCA 2003). Abuse of discretion occurs when “no reasonable man would take the view adopted by the trial court”. Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980).

Ms. Lorenzo’s EUO was taken by Progressive’s special investigator and their counsel on October 18, 2004, in the course of preparing the case for trial. Before Progressive filed a motion to amend its answer and add the affirmative defense of fraud based on the EUO, it chose to withhold the EUO based upon an assertion of privilege and/or a claim that the transcript did not exist.¹ The EUO was conveniently “discovered” nearly one year later when Progressive decided to plead an affirmative defense of fraud, in response to Dr. Cartaya’s motion for summary judgment. After much argument, the court decided that Dr. Cartaya would be prejudiced if it were to allow the EUO to become a part of the record, after discovery had long been completed. As reasonable men could differ with regard to the appropriateness of striking the EUO from the record, it cannot be said the trial court abused its discretion in doing so.

Based on the foregoing, this Court affirms the ruling of the county court. (LOPEZ and EIG, JJ., concur.)

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¹At first, they actually stated that if they had an EUO it would be work product and subject to privilege, but that they had no EUO in their possession.