15 Fla. L. Weekly Supp. 1052a
Insurance — Personal injury protection — Withdrawal or denial of benefits — Peer review — Trial court did not err in refusing to consider peer review report obtained more than 30 days after receipt of claim where insurer never filed peer review report or affidavit of peer review doctor with trial court — To ensure that peer review report and affidavit were available for appellate review, insurer had responsibility to file report and affidavit despite trial court striking report — No error in granting summary judgment in favor of medical provider where, in absence of valid peer review report supported by physical examination and accompanying affidavit, there was nothing in record to create genuine issue of material fact or justify denial of motion for summary judgment — Attorney’s fees — Appellate — Fees are assessed against insurer and its counsel as sanction for filing frivolous appeal
QUASHED. 35 Fla. L. Weekly D50b. (United Auto. Ins. Co. v. Hollywood Rehabilitation Center, Fla. 3DCA, Case No. 3D08-2504.)
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. HOLLYWOOD INJURY REHAB, a/a/o MENENDES, R., Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 06-553 AP, 06-575 AP, 06-594 AP. L.C. Case No. 2005017814 SP 05. September 11, 2008. An Appeal from the County Court for Miami-Dade County, Shelly J. Kravitz, Judge. Counsel: Lara J. Edelstein, United Automobile Insurance Company, Office of the General Counsel, for Appellant. Dean A. Mitchell and Gregg Pessin, Sostchin & Pessin, P.A., for Appellee.
(Before LEDERMAN, LANGER, and SILVER, JJ.)
(PER CURIAM.) This appeal is based on an action seeking PIP benefits. Following an automobile accident, the insured received medical care from Appellee Hollywood Injury Rehabilitation Center (“Hollywood”). Hollywood billed Appellant United Automobile Insurance Company (“United”) for the treatment. Upon United’s failure to pay overdue bills, Hollywood sued for breach of contract. In response, United produced a peer review report dated August 21, 2005 to defend against payment as unreasonable, unrelated and unnecessary. We note that United never filed a peer review with the lower court. Although United repeatedly refers to a “doctor’s affidavit,” in the appellate brief submitted to this Appellate Court, such affidavit was never made a part of the record of the lower tribunal. Hollywood moved to strike the peer review as an invalid report due to noncompliance with the requirements of § 627.736(7) (mental and physical examination of injured persons; reports). The trial court granted the motion. Hollywood subsequently moved for final summary judgment which the lower court granted. United now appeals the final summary judgment order of September 25, 2006 as well as the subsequent final judgment of attorney’s fees entered on November 6, 2006. We affirm the decision of the lower court.
Peer Review
On appeal, United argues that the trial court erred as a matter of law in not considering its peer review report on the grounds that it was obtained 30 days after receipt of the claim. It cites numerous cases where an insurer is not prevented from contesting a claim with a peer review report obtained 30 days after receipt of the bills. In this instance, this 30-day argument is a red herring. United never filed a peer review report with the lower court, nor a doctor’s affidavit which should accompany a peer review report. Without an accompanying doctor’s affidavit, such peer review, even if it were on the record, would be hearsay and could not be considered at a summary judgment hearing. United opposes this summary judgment by asserting it could not file the peer review because it was struck by the court. That is simply not true. While the trial court may have struck the peer review, this did not prevent United from filing it in the record.1 Thus, United cannot blame the trial court’s striking of the peer review as a reason for not having a peer review report on file and available for this Court to consider on appeal of the summary judgment motion.
A recent Third District Court of Appeal decision, United Auto. Ins. Co. v. Bermudez, 980 So. 2d 1213, 1213 (Fla. 3rd DCA 2008) holds that under § 627.736(7)(a) a medical report issued for the withdrawal or denial of PIP benefits is to be based on a physical examination of the insured that is conducted by either the physician preparing the report or another physician’s examination. Bermudez also reaffirms that a physical examination is an absolute condition precedent to a peer review. Thus, an insurer must obtain a physical examination by a physician licensed under the same chapter as the treating physician to defend a suit for reduction, withdrawal or denial of further payments on the grounds of reasonable, related and necessary. Id.
When raising a reasonableness, related or necessity defense as United did in this case, an insurer must always base the peer review on a valid report.2 Footnote 2 in Bermudez emphasized that the 2001 amendment to § 627.736(7)(a) requires that an insurer’s withdrawal of payment must be preceded by the procurement of a valid report. § 627.736(7)(a), Fla. Stat. (2001).
As clearly set forth in the amendment, a “valid report” must be “factually supported by the examination and treatment of records if reviewed. As such, a “valid report” requires reliance on a physical examination of the insured prior to an insurer withdrawal of payment.
Bermudez, 980 So. 2d at 1213. In the absence of a valid peer review report, and the accompanying affidavit, there was no competent evidence to support United’s position that a genuine issue of material fact existed preventing summary judgment. Therefore, summary judgment was properly entered in Hollywood’s favor. Johnson v. Gulf Life Ins. Co., 429 So. 2d 744, 746 (Fla. 3d DCA 1983) (it is insufficient for a party opposing summary judgment to merely assert that an issue of material fact exists).
As United failed to file a copy of the peer review and accompanying affidavit of the peer review doctor, we find that summary judgment was properly granted in favor of Hollywood. At the time the trial court entered summary judgment in Hollywood’s favor, there was nothing in the record to create a genuine issue of material fact, or to justify denial of the motion for summary judgment.
Attorney’s Fees
In Florida, appellate attorney’s fees may be assessed against a party and its counsel for filing a frivolous appeal pursuant to § 57.105, Fla. Stat. (2003) and Fla. R. App. P. 9.410. Visoly v. Security Pacific Credit Corp., 768 So. 2d 482, 490 (Fla. 3d DCA 2000). Rule 9.410 provides for an award of attorney’s fees as a sanction for any violation of the Florida Rules of Appellate Procedure, or for filing any proceeding, motion, brief, or other paper that is frivolous or in bad faith. Id. “An appeal is defined as frivolous if it presents no justiciable question and is so devoid of merit on the face of the record that there is little prospect it will ever succeed.” Id. at 490-91.
In the instant case, United filed an appeal on a case they could never have prevailed on at trial, nor at the appellate level. Having failed to conduct a physical examination, and follow the basic procedural requirement of filing relevant documents in the record, United had a losing case from the onset. First, the lack of physical examination prevents the creation of a valid peer review report on such examination. Second, the failure to file documents with the court during the proceedings prevents such documentation from being offered as a defense against summary judgment.
There are established guidelines for determining when an action is frivolous. When a case is found: (a) to be completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (b) to be contradicted by overwhelming evidence; (c) to have been undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (d) to have asserted material factual statements that are false. Id.
An appeal which lacks a factual basis or well-grounded legal argument will be considered devoid of merit. Visoly, 768 So. 2d at 491. In other words, a “frivolous” appeal is one which raises arguments a reasonable lawyer would either know are not well grounded in fact, or not warranted either by existing law or by a reasonable argument for the extension, modification, or reversal of existing law. Id. United did not file a peer review with the court. Even if United had filed a peer review report, it would not be valid because it was not based on a physical examination. Furthermore, for United’s attorneys to proceed without verifying the peer review doctor’s affidavit, its existence or locating its whereabouts, indicates an unmistakable lack of professionalism before this Appellate Court. These omissions warrant sanction. Given the facts and controlling legal authority, we conclude that the arguments raised by United in this appeal are frivolous, whether stemming from mere error, pure omission, or possibly dishonesty with the tribunal. Accordingly, we grant Hollywood’s motion for attorney’s fees for filing a frivolous appeal as a sanction § 57.105, Fla. Stat. (2003) and Fla. R. App. P. 9.410. Id.
The final issue to consider when imposing appellate attorney’s fees as a sanction is to determine who should pay them — be it the litigant, his attorney, or both. See § 57.105, Fla. Stat. (2003); Fla. R. App. P. 9.410. “The general policy behind awarding attorney’s fees for bringing a frivolous action is to discourage baseless claims, stonewall defenses, and sham appeals by sanctioning those responsible for unnecessary litigation costs.” Visoly, 768 So. 2d at 492. Where an attorney relies on good faith representations from his or her client and pursues a valid legal claim based on those representations, it is proper that a client should be solely responsible for sanctions. Id. However, United lacked a pivotal document needed to pursue this action at both the trial and appellate level. Thus, counsel, too, must deal with the consequences of such frivolity. United’s attorney had the responsibility of advising their client of their ethical duties and explaining that proceeding with a meritless appeal could result in potential sanctions. Id. Rather than refusing to proceed on a frivolous matter, client and counsel argued a peripherally related point that was not at issue. Perhaps this was a case of United and its attorney attempting to slip the proverbial wool over the Court’s eyes.
We will not tolerate such unprofessionalism by parties who appear before this Appellate Court. Young v. Hector, 884 So. 2d 1025, 1028 (Fla. 3d DCA 2004); Visoly, 768 So. 2d at 493. This Court will not hesitate to impose sanctions against parties and their counsel where unnecessary fees are incurred in response to frivolous positions and claims. Young, 884 So. 2d at 1028. It is essential to hold appellate counsel responsible for this frivolous claim. We only hope that this appeal was not a disingenuous attempt to delay valid payment of a judgment. Because United insisted on pursuing an appeal where it was blatantly evident that it could never prevail, we deem this appeal frivolous and without merit. Accordingly, we affirm the trial court’s order granting summary judgment and grant Hollywood’s motion for attorney’s fees in the appellate proceedings. We further impose sanctions for a frivolous appeal, and remand this matter to the trial court with instructions to the trial court to determine the proper amount to be awarded.
__________________
1The mere filing of a peer review does not require a determination of admissibility by the court; even if stricken, such peer review could still be filed on the record. United could have placed the peer review in the record by filing it with the court, however it neglected to do so. In contrast, Hollywood filed both a “Notice of Filing Affidavit from Dr. Michael Wilnesky in Support of Plaintiff’s Motion for Summary Judgment” and “Dr. Michael Wilensky’s Affidavit.” The record indicates that no similar filings were submitted by United.
2The Third District stated: “[w]e reaffirm our holding in Viles that a valid report is required where an insurer attempts to reduce, withdraw, or deny PIP benefits on grounds of reasonableness, necessity or relationship.” Bermudez, 980 So. 2d at 1213.
__________________
(Roger A. Silver, concurring.) I concur in the result only which affirms the summary judgment and grants Appellee’s motion for attorney’s fees in these appellate proceedings.
