16 Fla. L. Weekly Supp. 915a

Online Reference: FLWSUPP 1610GUZM

Insurance — Personal injury protection — Denial of benefits — Valid medical report — Although trial court erred in striking peer review because it was not procured within 30 days of notice of claim, decision in favor of insured is affirmed based on insurer’s failure to obtain valid medical report prior to denial of claim — No error in denying insurer’s request to review insured’s retainer agreement where there was no formal discovery request for production of agreement

QUASHED. 35 Fla. L. Weekly D902b. (United Auto. Ins. Co. v. Guzman, Fla. 3DCA, April 21, 2010.)

UNITED AUTOMOBILE INSURANCE COMPANY, a Florida Corporation, Appellant, v. JOHANNA GUZMAN, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 07-427 AP and 07-508 AP. L.T. Case No. 03-13598 CC 05. August 11, 2009. On Appeal from the County Court, Miami-Dade County, Teretha Lundy Thomas, Judge. Counsel: Michael J. Neimand and Laura J. Edelstein, Office of the General Counsel, United Automobile Insurance Company, for Appellant. Stuart B. Yanofsky, for Appellee.

(Before FRIEDMAN, GERSTEIN and CARDONNE ELY, JJ.)

(FRIEDMAN, Judge.) This is an appeal of a Final Judgment entered by the county court in Miami-Dade County in favor of the Appellee, Johanna Guzman (Ms. Guzman). This Court has jurisdiction pursuant to Article V, section 5(b), Florida Constitution and Fla. R. App. P. 9.030(c)(1)(A).

There are three issues presented to this court by the Appellant, United Automobile Insurance Company (United Auto). For purposes of clarity, this Court rephrases those issues as: (1) Whether the Trial Court erred by striking Dr. Peter J. Millheiser’s peer review as being untimely because it was not procured within 30 days of the notice of medical bills?; (2) Whether the Trial Court erred when it denied the Appellant’s ore tenus motion to “see” the retainer agreement where the Appellant had not formally requested discovery of the document and Appellee asserted attorney-client privilege?; and (3) Whether the Trial Court should grant the Appellee’s motion for attorney fees pursuant to section 627.428, Florida Statutes?

Because this cause requires that we interpret provisions of the Florida Motor Vehicle No-Fault Law (PIP statutes), we apply a de novo standard of review. Allstate Ins. Co. v. Holy Cross Hosp., Inc., 961 So. 2d 328, 331 (Fla. 2007). Additionally, we are presented with an assertion of attorney-client privilege, to which we also apply a de novo standard of review. United Services Auto. Ass’n v. Roth, 859 So. 2d 1270, 1271 (Fla. 4th DCA 2003).

Ms. Guzman was insured by United Auto at the time she was involved in a vehicular collision on August 25, 2002. She received medical treatment and submitted medical bills to United Auto for the period between September 23, 2002 and January 14, 2003. United Auto did not pay any part of the submitted bills, but instead procured Dr. Millheiser’s peer review on April 11, 2003. Ms. Guzman filed two motions to strike the peer review alleging that it was not procured within 30 days of the submission of the medical bills. The trial court heard the motion on the day of trial and entered an Order specifically striking the Peer Review as being untimely. A jury trial commenced and Ms. Guzman presented evidence of a covered loss for which United Auto denied payment for before procuring the peer review. At the conclusion of Ms. Guzman’s case-in-chief, United Auto rested without calling any witnesses. The trial court granted a directed verdict in favor of Ms. Guzman.

Seven months later, the trial court heard Ms. Guzman’s motion for attorney fees. During the cross examination of counsel for Ms. Guzman, United Auto’s counsel asked to “see” Ms. Guzman’s retainer. Counsel for Ms. Guzman alleged an attorney-client privilege and also stated that the document had not been requested in discovery. At the request of United Auto, the trial court viewed the retainer in-camera. The trial court denied United Auto request to “see” the retainer.

United Auto has filed this appeal alleging that the trial court erred.

We AFFIRM the decision below.

We agree that the trial court incorrectly struck Dr. Millheiser’s peer review when it relied upon the § 627.736(4)(b), Florida Statutes’ and its requirement to pay claims within 30-days of notice. However, The Third District Court of Appeals has interpreted § 627.736(7)(a), Florida Statutes as requiring the insurer to procure a valid medical report (which is often referred to as a peer review) as a condition precedent before withdrawal, reducing or denying a claim for PIP benefits. United Auto. Ins. Co. v. Bermudez, 980 So. 2d 1213, 1217 (Fla. 3d DCA 2008). Based upon Bermudez, we conclude that the trial court reached the right decision for the wrong reason and that decision should be affirmed. D.R. Horton, Inc., etc. v. Peyton, 959 So. 2d 390 (Fla. 1st DCA 2007).

Separately, we find no error in the trial court’s denial of United Auto’s request to review Ms. Guzman’s retainer agreement. United Auto did not request a copy of the attorney retainer agreement in formal discovery. It cites Finol v. Finol, 869 So. 2d 666 (Fla. 4th DCA 2004) for the proposition that a retainer agreement is not protected by the attorney-client privilege. As such, United Auto argues, the trial court should not have denied its request to “see” the retainer. However, Finol is distinguishable from the facts of the instant matter. In Finol, there was a formal request for the document. In Florida, courts have not required the production of documents absent a formal discovery request. Beck v. Holloway, 933 So. 2d 4 (Fla. 1st DCA 2006). Similarly, Florida courts have deemed it error for a court to order the production of documents which exceed the discovery request. Costco Wholesale Corp. v. Defilippo, 991 So. 2d 998 (4th DCA 2008). Further, the trial court in the instant matter correctly reviewed the document in-camera before denying United Auto’s request to “see” the retainer. State v. Young, 654 So. 2d 962, 963 (Fla. 3d DCA 1995). (citations omitted).

For these reasons, the Final Judgment entered in favor of the Appellee is AFFIRMED. Appellee’s Motion for appellate attorney’s fees pursuant to section 627.428, Fla. Stat. is GRANTED because Appellee is the prevailing party in this cause. The cause is REMANDED to the trial court to determine the amount of attorney fees incurred at the appellate court level and for proceedings consistent with this opinion. (GERSTEIN AND CARDONNE ELY, JJ. concur.)