15 Fla. L. Weekly Supp. 312a
Insurance — Personal injury protection — Peer review report and affidavit by physician who never examined insured is inadmissible hearsay that should not have been considered by court ruling on motion for summary judgment — No merit to argument that physical examination requirement of PIP statute does not apply where benefits are denied, rather than commenced then withdrawn — No abuse of discretion in granting motion for summary judgment
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida Corporation, Appellant, v. SANTA FE MEDICAL, INC., a/a/o TELMO LOPEZ, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 06-455 AP. L.T. Case No. 03-4725 SP 26 (6). January 16, 2008. An Appeal from the County Court for Miami-Dade County, Bronwyn C. Miller, Judge. Counsel: Lara J. Edelstein, Office of the General Counsel, United Automobile Insurance Company, for Appellant. Virginia M. Best, Marc Hannon, Amado Alan Alvarez, for Appellee.
QUASHED.34 Fla. L. Weekly D2051b (United Auto. Ins. Co. v. Santa Fe Medical Center (Fla. 3DCA 10/7/2009).
(Before LEDERMAN, MANNO SCHURR, TINKLER-MENDEZ, JJ.)
(VALERIE R. MANNO SCHURR, J.) We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(c)(1)(A).
United Automobile Insurance Company, Inc. (United) appeals a summary judgment entered against it in an action filed by Santa Fe Medical Center, Inc. (Santa Fe) for personal injury protection benefits. The standard of review of the entry of a summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, 760 So. 2d 126, 130 (Fla. 2000).
On or about August 1, 2002, United’s insured, Telmo Lopez, was injured in an auto accident. He assigned his right to benefits to Santa Fe, the medical provider who treated him for his injuries. Santa Fe timely submitted a claim to United. When the medical bills went unpaid and after demand for payment was made, Sante Fe filed suit on July 3, 2003. In its Answer and Affirmative Defenses United asserted as its primary defense that defendant had reasonable proof that it was not responsible for payment based on the peer review of Dr. Peter Millheiser (Millheiser).
On June 22, 2005, Santa Fe moved for summary judgment seeking payment of all necessary, reasonable, and related medical bills. In support of its motion, Plaintiff filed the affidavit of Lopez’ treating physician who opined that the medical bills were medically necessary, reasonable and related. On October 20, 2005, United filed the affidavit of Millheiser by a Notice of Filing, which did not identify that it was filed by United to oppose the summary judgment as required by the 2005 amendment to Fla. R. Civ. P. 1.510(c). That rule requires the summary judgment opponent to give written notice of the evidence it is filing to oppose the motion.
The trial court heard Santa Fe’s motion for summary judgment on September 18, 2006. Because the trial court was not satisfied that Millheiser’s affidavit created a genuine issue of material fact to preclude summary judgment, the motion was granted and this appeal followed. We agree with the trial court’s ruling and affirm the summary judgment. The plaintiff argues, and we agree that Millheiser’s affidavit is not competent evidence and is nothing more than rank inadmissible hearsay that should not have been considered by the Court. Plaintiff also argues that because Millheiser’s peer review and resulting affidavit was created more than thirty days after all the treatment had been concluded, the trial court should not have considered the affidavit. While the court agrees with the plaintiff’s second argument, the more important issue confronting this court is whether the affidavit is competent evidence to defeat a motion for summary judgment and for that reason we do not reach the second argument.
While the review of the granting of a summary judgment is de novo, the trial court’s decision as to what evidence is admissible to be considered in a summary judgment is an abuse of discretion standard. See Globe v. State, 877 So. 2d 663, 672 (Fla. 2004) (ruling on the admissibility of evidence will not be disturbed absent an abuse of discretion). See also, Canakaris v. Canakaris, 382 So.2d 1197, (Fla. 1980). While the appellate review may ultimately look at de novo review in this case, it cannot do so before it makes the determination of whether the trial court abused its discretion on the admissibility of the affidavit since trial court rulings with respect to admissibility of evidence are viewed by a “broad abuse of discretion standard”; Richardson v. Sams, 166 So.2d 468 (Fla. 1st DCA 1964). The sole issue in this appeal is whether the trial court correctly or incorrectly refused to consider United’s peer review report. As such, the issue is one of the admission or exclusion of evidence, and as such, the correct standard of review on this issue is broad abuse of discretion.
In this case, the trial court reviewed the affidavit of Millheiser and was not satisfied that Millheiser’s affidavit created a genuine issue of material fact sufficient to preclude summary judgment. Millheiser’s affidavit is not made on personal knowledge, because he never examined Lopez. It merely adopts Millheiser’s report (peer review), which in turn makes reference to medical records which are not attached as required by Fla. R. Civ. P. 1.510(e) and which is in violation of the requirements of the Rules of Civil Procedure governing affidavits in opposition to motions for summary judgment. According to rule 1.510(e) “supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Without a physical examination Millheiser did not have first hand knowledge of Lopez’ physical condition and was not competent to testify as to same. This affidavit would not have been properly before this court, even if it was obtained within thirty days of the medical treatment being rendered.
Florida Rule of Civil Procedure 1.510 requires a summary judgment be opposed with admissible evidence. Were the law otherwise, any summary judgment could be defeated with incompetent evidence not admissible at trial and would thus defeat the purpose of the rule.
Section 627.736(7)(a), Fla. Stat. (2003) states that an insurer may not withdraw treatment authorization of a covered person without the consent of that person unless the insurer first obtains a valid report by a physician who examines the injured person. The report filed by United fails to meet this statutory requirement. United argues that the physical examination requirement of §627.736(7)(a), Fla. Stat. (2003) does not apply in this case because it did not “withdraw benefits” but instead denied the claim, never having paid any benefits to Santa Fe. The court rejects United’s argument for two reasons. Defendant first argues that because no payments were made, the “withdraw benefits” language of the statute does not apply. This argument requires the courts to apply the statute in such a way as to reach an absurd result. An interpretation of a statute which leads to an unreasonable or ridiculous conclusion or result obviously not designed by the legislature will not be adopted. See Drury v. Harding, 461 So. 2d 104, 108 (Fla. 1984) (cited in United Automobile Insurance Co. v. Viles, 726 So. 2d 320, 321 (Fla. 3d DCA 1999). If that were the law, an insurer who violates the public policy of swift and virtually automatic payment of benefits would be better off than an insurer who starts making payments and then seeks to stop paying. Second, the statute’s plain meaning requires a valid report based on a physical examination before an insurer can withdraw treatment authorization. Section 627.736(7)(a) (insurer must first obtain a valid report stating the treatment is not reasonable, related or necessary). Here, United had no report at the time Santa Fe’s bill became overdue and the report it ultimately obtained did not comply with the statute. Furthermore, withdrawal of treatment authorization is broader than mere discontinuation of payments already begun, and includes denial, reduction or withholding of benefits. See Rhodes, 14 Fla. L. Weekly Supp. 699a.
In arguing for reversal, United relies on several recent Eleventh Circuit Court Appellate opinions including United Auto v. Tate, 14 Fla. L. Weekly Supp. 628a (Fla. 11th Cir. Ct. May 9, 2007) and United Auto v. Professional Medical, 14 Fla. L. Weekly Supp. 624a (Fla. 11th Cir. Ct. May 7, 2007) which hold that granting summary judgment merely because a report was obtained outside 30 days is error. We have considered those cases, as we are bound to do. See State v. Lopez, 633 So. 2d 1150, 1151 (Fla. 5th DCA 1994) (holding that the circuit court sitting in its appellate capacity was required to consider decisions of the circuit court in the Ninth Circuit when searching for precedents upon which to base its decision, and, in the absence of a rule of procedure to resolve conflicts among the decisions, to make its independent decision). We find the authorities cited by United distinguishable because here, the issue is not solely the timeliness of the report, but the validity, competency and admissibility of the report. Furthermore, the authorities relied on by United are silent as to the physical examination requirement of § 627.736(7)(a), Fla. Stat. The case law more pertinent to this appeal is United Auto v. Michael Rose, M.D., as assignee of Juan Velazquez, 11 Fla. L. Weekly Supp. 1042a (Fla. 11th Cir. Ct. September 14, 2004) (holding that to the extent United was denying payment on the ground that the treatment was unreasonable or unnecessary, a report under § 627.736(7), Fla. Stat. is required), and Progressive Express Insurance Company v. Quality Diagnostics as assignee of Dora Batista, 13 Fla. L. Weekly Supp. 1152a (Fla. 11th Cir. Ct. March 28, 2006) (holding that where the report contains an attestation that it complies with § 627.736(7)(a), the requirements of the statute apply. In Batista, the Eleventh Circuit held that § 627.736(7)(a) applies in instances where the insurer either “withdraws, denies or reduces” medical treatment. Finally, we rely on United Auto v. Juana Andrade, 14 Fla. L. Weekly Supp. 132a (Fla. 11th Cir. Ct. December 6, 2006), holding that a report and affidavit not based on a physical examination are legally insufficient to defeat a summary judgment.
The clear public policy of Florida’s no fault law is swift and virtually automatic payment of claims within thirty days unless the insurer has reasonable proof of its non-responsibility, pursuant to §627.736(4)(b). In United Auto v. Rodriquez, 808 So. 2d 82, 86 (Fla. 2001), the Florida Supreme Court said, “[I]f the benefits are not paid within thirty days and the insurer does not have reasonable proof that it is not responsible for the payment, the payment is “overdue.” In her concurring opinion, Justice Barbara Pariente reasoned that “the statutory penalty of ten percent interest for “overdue” payments thus comes into play if the insurer fails to pay the bill within thirty days after written notice and did not have reasonable proof within that thirty-day period to establish that it was not responsible for the bill,” Id. at 89. (Emphasis added).
At the time United denied Santa Fe’s claim, it had no valid basis to deny payment. An insurer unquestionably has the right to contest a claim outside of thirty days. See Rodriguez, 808 So. 2d 82 at 82 and § 627.736(4)(b), Fla. Stat. However, it must do so with admissible evidence, pursuant to Fla. R. Civ. P. 1.510. Because United’s report was not based on a physical examination, and it filed no evidence in the record which was admissible and competent, and gave no notice that the affidavit and report were filed to oppose the summary judgment, we find no reversible error.
Accordingly, the judgment of the trial court is AFFIRMED. Upon consideration of the prevailing Appellee’s application for attorney’s fees incurred on appeal, we hereby GRANT the Appellee’s Motion for Attorney’s Fees, and remand this matter to the trial court to determine the amount of a reasonable fee. Fla. R. App. P. (.400(b).
(LEDERMAN and TINKLER MENDEZ, JJ., concur. )
