15 Fla. L. Weekly Supp. 569a
Insurance — Personal injury protection — Summary judgment — Opposing affidavit — Sufficiency — Error to strike affidavit of physician who conducted physical medical examination of insured and peer review where affidavit complied with requirements of rule 1.510(e) — Although medical records referenced in affidavit were not attached thereto, records were already filed with clerk of courts and references to records in affidavit were so explicit that there was no question as to documents identified — Error to grant motion for summary judgment where affidavits of parties’ experts create genuine issue of material fact as to whether treatment was reasonable, related and necessary
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida Corporation, Appellant, v. FLORIDA INSTITUTE OF PAIN, INC., a/a/o Lita Chavis, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 07-134 AP. L.T. Case No. 06-1293 CC 25. March 26, 2008. On Appeal from the County Court, Miami-Dade County, Jacqueline Schwartz, J. Counsel: Michael J. Neimand and Laura J. Edelstein, Office of the General Counsel, United Automobile Insurance Company, for Appellant. Jose Iglesia and Mari Sampedro-Iglesia, for Appellee.
(Before SCHWARTZ, MURPHY, and THORNTON, JJ.)
(SCHWARTZ, Judge.) This is an appeal of a summary judgment order entered by the county court in Miami-Dade County in favor of the Appellee, Florida Institute of Pain, Inc., a/a/o Lita Chavis (Florida Institute of Pain) on the issue of reasonableness, relatedness and necessity (RRN). Florida Institute of Pain sought Personal Injury Protection (PIP) benefits from United Automobile Insurance Company (United Auto) for medical treatment rendered to the insured. However, United Auto did not make any payments and Florida Institute of Pain filed suit on January 24, 2007.
On September 11, 2006, Florida Institute filed a Motion For Summary Judgment as to Liability and/or Reasonableness, Relatedness and Medical Necessity. United Auto filed the affidavit of Peter Millheiser, M.D., in opposition to the motion. Dr. Millheiser conducted both a physical medical examination and peer review of the insured. The trial court struck the affidavit after finding that it did not comply with the procedural provisions of Fla. R. Civ. P. 1.510(e). A written order granting Florida Institute of Pain’s motion for summary judgment on the issue of reasonableness, relatedness and necessity was entered without further findings. Thereafter, the trial court entered a Final Judgment for Attorney’s Fees and Costs in favor of Florida Institute of Pain. United Auto filed the instant appeal which challenges the granting of summary judgment and the award of attorney’s fees and costs.
The standard of review of a lower court’s summary judgment order is de novo. Sierra v. Shevin, 767 So. 2d 524 (Fla. 3d DCA 2000). The proper analysis of summary judgment involves a two-prong test. First, this Court must determine whether there is a genuine issue of material fact. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130-31 (Fla. 2000). Second, it must determine whether the trial court applied the correct rule of law. Id.
This Court will address the second prong — did the trial court apply the correct rule of law — first. A reading of the plain language of Fla. R. Civ. P. 1.510(e) when applied to United Auto’s witness’s affidavit shows that:
a) The affidavit was based on the personal knowledge of the witness. Dr. Millheiser conducted a physical examination and reviewed the medical records. Certainly he had personal knowledge of the facts of this matter.
b) The affidavit set forth such facts as would be admissible in evidence. Dr. Millheiser testified in his affidavit that in his professional opinion the medical treatment was not reasonable, related or necessary. As an expert witness, Dr. Millheiser’s opinion testimony would be admissible.
c) The witness must be competent to testify to the matters stated therein. Dr. Millheiser’s testimony in the affidavit was that he is “a licensed medical physician in the state of Florida” and that he maintains the required records described in Section 627.736(7).
The affidavit of Dr. Millheiser is competent “to be received by the judge in disposing of a motion for summary judgment, to the same extent and subject to the same rules as apply to the oral presentation of such testimony before a jury.” Crovella v. Cochrane, 102 So. 2d 307, 310 (Fla. 1st DCA 1958).
Additionally, Florida Institute of Pain’s argument that the affidavit is legally insufficient because it did not attach the medical records which were referenced is also without merit. Crovella addressed the issue of the need to attach documents to the affidavit. That court had before it for analysis Fla. R. Civ. P. 1.36(e) which has been replaced by Fla. R. Civ. P. 1.510(e). The rule requires that sworn or certified copies of all papers referred to in an affidavit “shall” be attached or served therewith. Under Crovella, documents are not required to be attached to the affidavit when they are already a part of the court’s record and references to them in the affidavit are so explicit that there is no question as to their identity. Id.
Just as in Crovella, the documents Dr. Millheiser referenced in his affidavit were already filed with the clerk of courts by Florida Institute of Pain. Additionally, Dr. Millheiser’s references to those documents in his affidavit were so explicit that there was no question as to the documents he identified. Pursuant to Crovella, Dr. Millheiser was not required to attach the documents to his affidavit that was submitted in opposition to summary judgment.
We now address the first prong of the analysis — whether there is a genuine issue of material fact.
Florida Institute of Pain filed with the clerk of court the affidavit of its expert. The testimony of the expert is that the medical treatment received by the insured was reasonable, related and necessary. That expert based his professional opinion on the physical examination of the insured. Conversely, United Auto filed the affidavit of its expert. This Court finds the affidavit of Dr. Millheiser legally sufficient. United Auto’s expert stated in his professional opinion medical treatment was not reasonable, related or necessary. Both experts have attested they are qualified to render opinions as to reasonableness, relatedness and necessity as specified in section 627.731(7). Therefore, a genuine issue of material fact regarding the reasonableness, relatedness and necessity of the treatment rendered has been created, and thus, needs to be resolved.
For these reasons, the order granting summary judgment in favor of the Appellee is REVERSED. Additionally, the Final Judgment awarding attorney’s fees and costs to the Appellee is REVERSED. Appellee is not a prevailing party pursuant to § 627.428(1), Fla. Stat. (2006). Florida Institute of Pain will be entitled to attorney fees and costs, provided it prevails on remand. The cause is REMANDED to the trial court for further proceedings consistent with this opinion. (MURPHY AND THORNTON, JJ., concur.)
