16 Fla. L. Weekly Supp. 618a
Online Reference: FLWSUPP 167 MED
Insurance — Personal injury protection — Appeals — Where record on appeal contains neither peer review relied upon by insurer to reduce bills nor transcript, record is incomplete and, in absence of fundamental error evident on face of judgment, decision below is affirmed
QUASHED. 34 Fla. L. Weekly D1819a. (United Automobile Ins. Co. v. Med-Proud General Practice, a/a/o Torres (Fla. 3DCA, September 2, 2009)).
UNITED AUTOMOBILE INSURANCE CO., Appellant, vs. MED-PROUD GENERAL PRACTICE, INC., Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-017 AP. L.C. Case No. 06-001320 SP 21. May 4, 2009. An appeal from the County Court for Miami-Dade County, Ana M. Pando, Judge. Counsel: Thomas L. Hunker, United Automobile Insurance Company, for Appellant. Stuart B. Yanofsky, for Appellee.
(Before SARAH I. ZABEL, JULIO E. JIMENEZ and DAVA J. TUNIS, JJ.)
(TUNIS, J.) This is an appeal from a jury verdict in favor of the appellee, Med-Proud. The appellant, United Auto, issued a PIP insurance policy to Pedro Torres, the claimant. In September 2004, Mr. Torres was injured in an automobile accident and received treatment from Med-Proud. Mr. Torres assigned his PIP benefits to Med-Proud.
Mr. Torres submitted to an independent medical examination (IME) performed by United Auto’s doctor, Peter Millheiser, six weeks after the accident. Dr. Millheiser determined that further treatment would not be necessary following October 27, 2004, and United Auto denied payment for medical expenses incurred after that date based on their not being reasonable, related or necessary.
In March 2005, Dr. Millheiser performed a peer review evaluating whether Mr. Torres’ overall treatment was reasonable, related and necessary. Dr. Millheiser’s peer review was not included as a part of the record on appeal. However, United Auto claims that the peer review ultimately concluded that Mr. Torres’ pre-IME bills could be reduced to below his $1000 deductible.
Med-Proud submitted bills to United Auto but received no payment. Thereafter, in April 2006, Med-Proud filed its complaint. United Auto filed an answer and affirmative defenses in denying that the bills were reasonable, related and necessary and further contending that, based on Dr. Millheiser’s peer review, the bills were reduced to below the applicable $1000 deductible. Med-Proud filed a motion to strike United Auto’s affirmative defenses as well as a motion to exclude the peer review as untimely. The lower court granted both motions and excluded any trial testimony from Dr. Millheiser as to whether the pre-IME bills were reasonable, related or necessary.
A jury ultimately returned a verdict in favor of Med-Proud for $7645. The trial court entered a final judgment for $6645 plus interest, reaching this figure by subtracting Mr. Torres’ $1000 deductible but not applying the 80% limit United Auto contends is mandated by Florida Statute § 627.736(1)(a). This appeal followed.
Florida Rule of Appellate Procedure 9.200 specifies which items constitute the record on appeal. The Rule states in pertinent part: “[T]he record shall consist of the original documents, exhibits, and transcript(s) of proceedings, if any, filed in the lower tribunal. . .” United Auto failed to include its peer review as a part of the record on appeal. It also neglected to include a copy of the transcript from the hearing where the lower court granted Med-Proud’s motions to strike United Auto’s affirmative defenses and peer review. Both the peer review and the transcript are vital parts of the record since the lower court’s written order on the motions does not provide any insight into the reasoning behind the court’s decision.
Without a proper record of the trial proceedings, an appellate court cannot resolve the underlying factual issues so as to conclude that the trial court’s judgment is unsupported by the evidence or by an alternative theory. Schmitt v. Maile, 946 So. 2d 60, 62 (Fla. 4th DCA 2006) (citing Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1980)). United Auto has had ample time to compile a complete record, but has neglected to do so. In the absence of a comprehensive record, a lower tribunal’s decision may be overturned only if the judgment is fundamentally erroneous on its face. Klette v. Klette, 785 So. 2d 562 (Fla. 1st DCA 2001); All Am. Soup and Salad Inc. v. Colonial Promenade, 652 So. 2d 911 (Fla. 5th DCA 1995) (citing Pertz v. Zohar, 556 So. 2d 459 (Fla. 2d DCA 1990)). Because no fundamental error exists below, this Court affirms the lower court’s decision.
AFFIRMED. (ZABEL and JIMENEZ, JJ., concur.)
