15 Fla. L. Weekly Supp. 628b
Insurance — Personal injury protection — Summary judgment — Opposing affidavit — Insurer’s affidavit opposing medical provider’s motion for partial summary judgment on reasonable, related and necessary issue was untimely where affidavit was hand-delivered less than two business days prior to hearing — Attachments to affidavit that are not sworn or certified cannot be considered by court — Where affidavit of litigation adjuster is not based on personal knowledge but on review of file, and affiant failed to attach extrinsic evidence relied upon regarding usual and customary charges, affidavit cannot be considered by court — Litigation adjuster cannot address whether treatment is reasonable, related to accident or medically necessary — In light of technical admissions and insurer’s failure to present countervailing evidence from licensed physician or to impeach provider’s medical expert, provider’s motion for partial summary judgment is granted
MARTINEZ CHIROPRACTIC CENTER, INC., (Juan Calduch, patient), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE 05-019710 (52). Nunc pro tunc February 25, 2008. Jay S. Spechler, Judge. Counsel: Andrew J. Weinstein, Weinstein & Associates, P.A., Coral Springs, for Plaintiff. Russell Kolodziej, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO DEFENDANT’S SECOND AFFIRMATIVE DEFENSE (RRN)
THIS CAUSE came before the Court on February 25, 2008 for hearing on Plaintiff’s Motion for Partial Summary Judgment as to Defendant’s Second Affirmative Defense. The Court, having reviewed the motions and entire Court file, heard argument, reviewed relevant legal authorities, and been sufficiently advised on the premises, makes the following findings:
1. The instant cause of action arises out of a personal injury matter occurring on February 26, 2003.
2. On August 9, 2006 Defendant UNITED AUTOMOBILE INSURANCE COMPANY, (hereinafter “UNITED”) filed its Amended Answer and Affirmative Defenses to the Complaint.
3. Defendant’s Second Affirmative Defense states, “Defendant had reasonable proof that it was not responsible for payment of the subject bills in that the expenses were excessive for the services rendered and the services provided were excessive for the alleged injuries resulting from the accident set forth in the complaint.”
4. Plaintiff filed and relied upon the Affidavit of Damian Martinez, D.C., who testified therein that all of the treatment the patient, Juan Calduch, underwent was related to the accident, reasonable and medically necessary.
5. “In order to create any genuine issue of material fact regarding whether the subject medical expenses were reasonable, related or necessary as a result of the accident, the Defendant is required to either substantially impeach the medical expert testimony of the treating physicians, or present countervailing evidence from the licensed physician,” Cicero Ortho-Med Center v. United Automobile Insurance Company, 11 Fla. L. Weekly Supp. 922a (Fla. Miami-Dade County Court, 2004).
6. The party seeking to contest the expert’s opinion must either: (1) present countervailing expert testimony; (2) severely impeach the proponent’s expert; or (3) present other evidence which creates a direct conflict with the proponent’s evidence. Rose v. Dwin, 762 So.2d 533 (Fla. 4th DCA 2000).
7. Plaintiff served its Motion for Partial Summary Judgment regarding the issue of RRN on December 24, 2007. On January 22, 2008, Plaintiff served its Notice of Hearing for Plaintiff’s Motion for Summary Judgment. The hearing was scheduled to occur at 9:30 a.m. on Monday, February 25, 2008.
8. At 4:00 p.m. on Thursday, February 21, 2008, Plaintiff received Defendant’s hand-delivered Affidavit of Ruby Scott. This Affidavit was untimely filed in violation of Fla. R. Civ. P. 1.510(c), which states in pertinent part, “To the extent such summary judgment evidence has not already been filed with the court, the adverse parties shall serve copies on the movant by mailing them at least 5 days prior to the date of hearing, or by hand-delivering them to the movant’s attorney no later than 5:00 p.m. 2 business days prior to the day of the hearing.”
9. Pursuant to Fla. R. Civ. P. 1.510(c), the Plaintiff should have received the Defendant’s Affidavit no later than 5:00 p.m. on February 20, 2008.
10. Regardless, the Affidavit of Ruby Scott is not based on personal knowledge and contains numerous attachments that are neither sworn to nor certified.
11. Any writing offered into evidence should be accompanied by competent proof showing its genuineness, pursuant to Fla. Stat. §90.901. Accordingly, the above list of “Exhibits” cannot be considered by this Court. BiFulco v. State Farm Auto Ins., 693 So.2d 707 (Fla. 4th DCA 1997). Moreover, Fla. R. Civ. P. 1.510(e) by its very language excludes from consideration on a motion for summary judgment, any document that is not one of the enumerated documents or is not a certified attachment to a proper affidavit. Id. See also Nichols v. Preiser, 849 So.2d 478 (Fla. 2nd DCA 2003), which holds that simply attaching documents that are not sworn to or certified to a motion for summary judgment does not satisfy the procedural requirements of Rule 1.510(e).
12. The attachments to the Affidavit of Ruby Scott therefore cannot be considered by this Court.
13. An Affidavit must be based on personal knowledge, Williams v. Henderson, 779 So.2d 450 (Fla. 2nd DCA, 2000). The purpose of the personal knowledge requirement is to prevent the trial court from relying on hearsay when ruling on a motion. . . and to ensure that there is an admissible evidentiary basis for the case rather than mere supposition or belief. Id.
14. In Thompson v. Citizens National Bank of Leesburg, 433 So.2d 32 (Fla. 5th DCA, 1983), the 5th DCA reversed a summary judgment because the appellee’s affidavit did not comply with Rule 1.510(e). “An affidavit based on information and belief rather than personal knowledge is not admissible into evidence and should not be considered by the trial court on a motion for summary judgment.” Id. Specifically, “the affiant did not (nor could he) state that he has personal knowledge of the matters contained [in the affidavit].” Id.
15. In the Defendant’s Affidavit, Ms. Scott testifies in Paragraph # 3 that the Affidavit is, “based upon my review of said file.” Nowhere in the entirety of the Affidavit does the affiant contend that the information is based on her personal knowledge.
16. Defendant’s Notice of Filing Affidavit of Ruby Scott, Litigation Adjuster for the Defendant, indicates that the Affidavit was filed for “use in response to Plaintiff’s Motion for Summary Judgment on EUO No Show and Reasonable, Related and Necessary.”
17. In United Automobile Insurance Company v. Neurology Assoc. Group Two, Inc. a/a/o Nicholas Cabello, 11 Fla. L. Weekly Supp. 204 (11th Judicial Circuit 2004), the appellate court affirmed a summary judgment stating, “the testimony of a claims adjuster can hardly address whether medical treatment was reasonable, related to the accident, or medically necessary.”
18. In C&S Medical Clinic a/a/o Hector Prieto v. United Automobile Insurance Company, 13 Fla. L. Weekly Supp. 900a (Fla. Miami-Dade Cty. Apr. 13, 2006), the defendant-insurer relied upon the testimony of its adjuster to show that the medical bills were not within the usual, customary and normal charges for chiropractic treatment in Miami-Dade County. In the affidavit, the insurance adjuster relied upon the Physician’s Fee and Coding Guide, but failed to attach copies of the pages relied upon to the affidavit. “The court finds that Rule 1.510(e), Florida Rules of Civil Procedure requires that the very portions of the Physician’s Fee and Coding Guide [relied upon by the adjuster] in her sworn testimony to be attached thereto and be made as record summary judgment evidence as defined under the rule.” Id.
19. Ms. Scott refers to and relies upon The Physician’s Fee and Coding Guide for 2003 in Paragraph #8 of the Defendant’s Affidavit, but fails to attach the pages relied upon. Ms. Scott instead attached pages from the American Medical Association’s CPT Code Book.
20. Since the Affidavit of Ruby Scott is not based on the personal knowledge of the affiant and since the affiant failed to attach the extrinsic evidence relied upon regarding the usual and customary rates charged for chiropractic treatment, this Court cannot consider the Defendant’s Affidavit.
21. Moreover, the Defendant has failed to substantially impeach the Affidavit of the Plaintiff’s medical expert, and has failed to present countervailing evidence from a licensed physician. The Defendant did not file any summary judgment evidence in opposition to the Plaintiff’s motion.
22. Plaintiff propounded its Request for Admissions on December 23, 2003. The responses to these Admissions were due on or before January 23, 2006 and, pursuant to the operation of Florida Rule of Civil Procedure 1.370(a), “the matter is admitted unless the party to whom the request is directed serves upon the party requesting the admission a written answer or objection . . . within thirty (30) days.”
23. This Court denied the Defendant’s Motion for Relief from Technical Admissions on February 25, 2008.
24. Therefore, the Defendant has admitted the following:
a. Defendant has no medical report with regard to any medical treatment for which benefits are sought by Plaintiff specifically stating that the treatment was “not reasonable” for the care and treatment of the Plaintiff.
b. Defendant has no medical report with regard to any medical treatment for which benefits are sought by Plaintiff specifically stating that the treatment was “not reasonable” for the care and treatment of the Plaintiff.
c. Defendant has no medical report with regard to any medical treatment for which benefits are sought by Plaintiff specifically stating that the treatment was “not necessary” to treat the injuries sustained in the subject accident.
d. Defendant has not provided Plaintiff or Patient with any reports stating that the treatment for which Plaintiff seeks PIP and Medical Payments benefits was “not reasonable” to treat the injuries sustained in the subject accident.
e. Defendant has not provided Plaintiff or Patient with any reports stating that the treatment for which Plaintiff seeks PIP and Medical Payments benefits was “not related” to the subject accident.
f. Defendant has not provided Plaintiff or Patient with any reports stating that the treatment for which Plaintiff seeks PIP and Medical Payments benefits was “not necessary” to treat the injuries sustained in the subject accident.
g. Defendant failed to pay Plaintiff’s PIP and Medical Payments claim without “reasonable proof to establish” that Defendant was not responsible for the payment.
h. All medical expenses submitted by Plaintiff or Patient to Defendant which have not yet been paid were “necessary”.
It is therefore,
ORDERED AND ADJUDGED Plaintiff’s Motion for Partial Summary Judgment as to the Defendant’s Second Affirmative Defense (RRN) be and the same is hereby granted.
