15 Fla. L. Weekly Supp. 1048a
Insurance — Personal injury protection — Discovery — Depositions — Expert witness fee — Treating physician — Where insurer sought to depose treating physician regarding professional services rendered and whether treatment was medically necessary and related to accident, trial court correctly determined that physician was entitled to expert witness fee under rule 1.390
UNITED AUTOMOBILE INSURANCE COMPANY, A Florida Corporation, Appellant, v. CERECEDA & ASSOCIATES, D.C., P.A., a/a/o ONICA BLAIZE, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 07-489 AP. L.C. Case No. 06-6435 SP 25. August 27, 2008. On Appeal from the County Court of Miami-Dade County. Counsel: Michael J. Neimand, Office of the General Counsel, United Automobile Insurance Company, for Appellant. Brigid F. Cech Samole, Greenberg Traurig, P.A., for Appellee.
(Before BLAKE, TUNIS, and EIG, JJ.)
(PER CURIAM.) Cereceda & Associates (“Cereceda”) provided medical care to an insured for injuries caused by an automobile accident. At the time of the accident, United Automobile Insurance Company (“United Auto”), the insurer, provided coverage pursuant to the insurance policy. Cereceda sought payment from United Auto for overdue personal injury protection benefits. United Auto refused to pay the overdue benefits within thirty days pursuant to Florida law and denied the claim.
Cereceda filed its complaint with the Miami-Dade County Court. During discovery, Cereceda moved the county court to determine an expert witness fee for Dr. Cereceda pursuant to Fla. R. Civ. P. 1.390.1 The county court concluded that Dr. Cereceda, as a “treating chiropractor,” participated in this matter as “an expert witness.” It ordered that Dr. Cereceda receive an “expert witness fee of $350.00 per hour for his time sitting for deposition.” The county court entered Final Judgment on October 23, 2007. United Auto timely filed its Notice of Appeal on October 29, 2007.2 Dissension over the county court’s non-final discovery Order brings United Auto and Cereceda before this Appellate Court. Florida law provides this Court, sitting in its appellate capacity, with jurisdiction over this matter. § 26.012(1), Fla. Stat. (2007).3
As both United Auto and Cereceda present this matter to this Court as an appeal, we “may review any ruling or matter occurring before filing of the notice [of appeal].” Fla. R. App. P. 9.110(h). We review the county court’s non-final discovery Order to determine “whether there was competent substantial evidence to support the county court’s ruling.” Weiss v. State, 965 So. 2d 842, 843 (Fla. 4th DCA 2007) (emphasis added). We review legal questions de novo. Ganiko v. Ganiko, 826 So. 2d 391, 393 (Fla. 1st DCA 2002).
United Auto asks us to consider whether the county court erred in requiring it to pay an expert witness fee to depose Dr. Cereceda, the treating physician, where Dr. Cereceda acquired his knowledge while providing medical care to his patient, and not for litigation purposes. United Auto contends that Fla. R. Civ. P. 1.280(b)(3)(C)“does not apply to expert witnesses who gain their knowledge through the care and treatment of patients and therefore such experts are ordinary fact witnesses who are not entitled to fees for their depositions.” We partially agree with United Auto’s position upon reviewing Frantz v. Golebiewski, 407 So. 2d 283 (Fla. 3d DCA 1981). Florida Rule of Civil Procedure 1.280(b)(3) applies to expert opinions “ ‘acquired and developed in anticipation of litigation or for trial,‘ asin the case of an expert retained by counsel.” Frantz, 407 So. 2d at 285 (emphasis added). The district court held that discovery obtained from “a personal-injury plaintiff’s treating physician is” not “controlled by Fla. R. Civ. P. 1.280(b)(3).” Id. at 284 (emphasis added). Since the record does not indicate that the insured received medical treatment from Dr. Cereceda while anticipating litigation, according to Frantz, Rule 1.280(b)(3) does not apply to Dr. Cereceda’s situation.
In contrast, Appellee argues that Dr. Cereceda serves as “an expert under Rule 1.390(a),” and therefore testifies as “an expert under Rule 1.280.” Cereceda argues that Fla. R. Civ. P. 1.390(c) entitles Dr. Cereceda to an expert witness fee. We agree with Cereceda’s reliance upon Progressive Express Ins. Co. v. Professional Medical Group, Inc.,which held that, pursuant to Rule 1.390, a treating physician participates as an expert witness entitling him or her to an expert witness fee. 10 Fla. L. Weekly Supp. 973a (Fla. 11th Cir. Ct. Oct. 14, 2003). We conclude that Rule 1.390 controls this fee dispute.
The Fourth District Court of Appeal provides guidance regarding how this matter should proceed. In Haldane v. Hall, the defendants’ attorney noticed plaintiff that “he intended to take the deposition” of one of “plaintiff’s treating physicians.” 234 So. 2d 739, 740 (Fla. 4th DCA 1970), aff’d, 234 So. 2d 571, 572 (Fla. 1971). The defendants sought the“doctor’s knowledge gained in treating the plaintiff.” Id. at 740 (emphasis added). The district court reasoned that “the defendants were clearly aware” that“the doctor was an expert witness within the meaning of Rule 1.390(a) and defendants contemplated the possible use of the deposition for evidence at trial.” Id. at 740 (emphasis added). In the instant matter, the county court concluded that the “chiropractor is an expert witness.” See Van Sickle v. Allstate Insurance Company, 503 So. 2d 1288, 1289 (Fla. 5th DCA 1987) (stating that the “qualification of an expert witness and the perimeters of his expertise are conclusions of fact to be determined advisedly by the trial judge”).
The county court made no specific findings that United Auto intended to use Dr. Cereceda’s deposition at trial. Therefore, we review the hearing transcripts to determine if competent substantial evidence supports the county court’s decision regarding the expert witness fee. The county court concluded that “he [Dr. Cereceda] is asked questions that an expert would have asked and answer [sic], as opposed to somebody just sitting there for a deposition and only asked questions about what treating physicians do.” No sworn witness provided testimony as to the potential questions presented in a future deposition in which Dr. Cereceda would appear; thus, the county court could not have entered any finding regarding either the “expert” or “ordinary” testimony provided by Dr. Cereceda. Also, the record lacks Dr. Cereceda’s deposition, and no affidavits regarding deposition subject matter appear in the record. Therefore, we conclude from examining Plaintiff’s Motion below and the hearing transcript what subject matter the deposition would cover.
During the July 30, 2007 hearing, United Auto’s counsel argued that Dr. Cereceda “acquired his knowledge in treating the patient, not in anticipation of litigation”(emphasis added). Mr. Hicks, Cereceda’s counsel, offered no opposing arguments at this hearing. In its Motion to Determine Expert Witness Fee, Cereceda & Associates asserted that “Dr. Cereceda would only be testifying regarding his professional services rendered.”Cereceda’s counsel also argued that “Dr. Cereceda will be asked to opine on medical necessity and relation concerning treatment to a reasonable degree of chiropractic certainty.”
Competent substantial evidence supports the county court’s order. Therefore, in following Rule 1.390, Haldane, and Progressive Express, we find no error in the county court’s determination that Dr. Cereceda participated as an expert witness and deposing him as an expert witness entitled him to a fee. See Eppler v. Tarmac America, Inc., 695 So. 2d 775, 777 (Fla. 1st DCA 1997), aff’d, 752 So. 2d 592 (Fla. 2000) (remanding and directing the trial court to award an expert witness fee where cross-appellee conceded that the expert witness’s deposition appearance entitled him to a “reasonable fee”). Therefore, we affirm the county court’s non-final Order and Final Judgment.
As this conflict originated between an “assignee [Cereceda & Associates] of an insured’s rights and the insurer,” section 627.428 applies regarding the determination of attorney’s fees. § 627.736(8), Fla. Stat. (2007).4 Section 627.428(1) permits appellate courts to “decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit.” § 627.428(1), Fla. Stat. (2007).5 Pursuant to section 627.428(1), we grant Cereceda’s Motion for Appellate Attorney’s Fees.
We AFFIRM the county court’s non-final Order and Final Judgment, GRANT Cereceda’s Motion for Appellate Attorney’s Fees, and REMAND this matter to the county court to determine appellate attorney’s fees pursuant to Fla. R. App. P. 9.400(b).
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1Rule 1.390(c) states that an “expert or skilled witness whose deposition is taken shall be allowed a witness fee in such reasonable amount as the court may determine.” Fla. R. Civ. P. 1.390(c).
2See Fla. R. App. P. 9.110(b) (stating that the court’s jurisdiction “under this rule shall be invoked by filing 2 copies of a notice . . . within 30 days of rendition of the order to be reviewed”). United Auto asks us to reverse the award of expert fees. Florida Rules of Appellate Procedure 9.040(c) states that if “a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought.” Therefore, we review this appeal as if United Auto moved this Court to reverse the Final Judgment subsequent to finding that the non-final discovery Order requires reversal.
3Jurisdiction of circuit court.
4Applicability of Provision Regulating Attorney’s Fees.
5Attorney’s fee.
