17 Fla. L. Weekly Supp. 929a

Online Reference: FLWSUPP 1710BLAN

Insurance — Personal injury protection — Discovery — Depositions — Expert witness fees — No error in granting expert witness fees for deposition testimony of treating physicians where physicians were asked to provide opinions on subjects not pertaining to treatment of insured, and one physician was asked to give opinion concerning other physician’s treatment — Examination under oath — Failure to attend — No error in denying insurer’s motion for summary judgment on issue of non-attendance at EUO where questions of fact existed as to whether insured received notice of EUO — Evidence — Hearsay — Exceptions — Business records — EUO notice is hearsay, and trial court did not abuse its discretion in determining that testimony of adjuster was not competent to authenticate EUO notice or establish routine business practice necessary to admit notice as business record — No abuse of discretion in excluding testimony of EUO department employee not listed in insurer’s last timely filed pre-trial catalog — In absence of any competent admissible evidence that EUO notice was sent to insured, trial court properly granted directed verdict for insured

UNITED AUTO INSURANCE COMPANY, Appellant, vs. PALM REHABILITATION, INC. a/a/o Jose Blanco, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-483 AP. L.T. Case No. 2006013678CC25. May 12, 2010. Counsel: Thomas L. Hunker, United Automobile Insurance Company, Office of the General Counsel, for Appellant. Marlene S. Reiss, for Appellee.

(Before, MARISA TINKLER MENDEZ, JOHN W. THORNTON, and ANTONIO MARIN, JJ.)

(TINKLER MENDEZ, Judge.) Palm Rehabilitation Inc. (“the Insured”) sued its insurer, United Automobile Insurance Company, (“United”) for previously denying personal injury protection (PIP) automobile benefits. When United attempted to depose the Insured’s treating physicians, the Insured moved for a protective order seeking expert witness fees. The trial court granted the physicians expert fees for their depositions.

As an affirmative defense, United asserted that the Insured did not attend a scheduled appointment for an examination under oath (“EUO”). United subsequently moved for summary judgment four times on this issue. In support, United relied on the affidavit of its adjuster stating that United sent an EUO notice letter to the Insured’s attorney, Alexis Izquierdo, requesting that the Insured attend one of two alternative EUO appointments. Attendance at an EUO was a contractual prerequisite in the Insured’s PIP policy in order to receive benefits. However, the Insured did not attend either of the EUO dates, claiming at trial that he never received notice.

The trial court denied United’s Motion for Summary Judgment three times, reasoning that United’s evidence was inadmissible hearsay. The case went to trial before United’s fourth amended motion could be heard. At trial, United’s litigation adjuster, Ms. Falcon, testified that United sent the EUO notice letter to the Insured’s attorney. She further testified the letter was prepared and sent in the ordinary course of business and that such records are kept in the claims file. The trial court disallowed the testimony offered to introduce the EUO notice letter as a business record.

United offered to call Mr. Garcia, an EUO department employee, to testify that the EUO letter was mailed to the Insured. However, Mr. Garcia was omitted from United’s final pretrial catalog. Thus, the trial court excluded Mr. Garcia as a witness, which prevented the EUO letter’s authentication. The Insured then moved for a directed verdict on the EUO issue, which the trial court granted. Final Judgment was entered in favor of the Insured. United now appeals to this Court.Expert Fees

The qualification of an expert witness is a conclusion of fact to be determined by the trial court, and affirmed on appeal if supported by competent evidence. See Van Sickle v. Allstate Ins. Co., 503 So. 2d 1288, 1289 (Fla. 5th DCA 1987). The standard of review for the Court is de novo. See United Auto. Ins. Co. v. Cereceda & Assoc., D.C., P.A. (a/a/o Onica Blaize), 15 Fla. L. Wkly. Supp. 1048a (11th Jud. Cir. App. Div. Aug. 27, 2008), cert. denied 3D08-2307 (Fla. 3d DCA Dec. 5, 2008).

United sought to depose two of the Insured’s treated physicians, Drs. Charles Isidore and Annette Booth. Despite United’s objection, the trial court ordered the insurer to pay expert witness fees to both physicians. United now argues that the trial court abused its discretion in awarding expert fees, because the treating physicians are ordinary fact witnesses.

At his deposition, Dr. Isidore was asked to testify from Dr. Booth’s records, and to give his expert opinion regarding whether some patients’ symptoms could be resolved with treatment, that might otherwise resolve on their own. As well, at Dr. Booth’s deposition, she was asked to render her expert opinion about numerous topics, including chiropractic assistant training in Florida, and the relevance of knowing whether a patient’s body made contact with the car interior when an accident occurs.

United argues that the trial court abused its discretion in awarding an expert witness fee to the Insured’s treating physicians. Rule 1.390 specifically governs the depositions of expert witnesses. The rule defines an expert witness as:

(a) [A] person duly and regularly engaged in the practice of a profession who holds a professional degree from a university or college and has had special professional training and experience, or one possessed of special knowledge or skill about a subject upon which called to testify.

Fla .R. Civ. P. 1.390(a).

With regard to fees, the rule provides the following guidance:

(c) Fee. An expert or skilled witnesses whose deposition is taken shall be allowed a witness fee in such reasonable amount as the court may determine. The court shall also determine a reasonable time within which payment must be made, if the deponent and party cannot agree. All parties and the deponent shall be served with notice of any hearing to determine the fee. Any reasonable fee paid to an expert or skilled witness may be taxed as costs.

Fla. R. Civ. P. 1.390(c).

Thus, unquestionably a licensed physician fits within the definition provided by Rule 1.390(a).

To the extent that United looks to depose a treating physician regarding the practice of medicine in general, or to explain and contrast different treatment methods, the insurer arguably is seeking expert testimony, compensable by an expert witness fee. See Fla. R. Civ. P. 1.390(c). Significantly, the physicians in the instant case were asked about a number of subjects requiring them to draw on their expertise garnered from formal education and years of practice, rather than acquired through treating the Insured. Accordingly, the physicians in the instant case seemingly meet the requirements to receive expert witness fees. See Fla. R. Civ. P. 1.390(a).

As United concedes, there is a conflict in the circuit court appellate division of the eleventh judicial circuit. Certain case law holds that a treating physician is always entitled to an expert witness fee. See United Automobile Insurance. Co. v. Eduardo J. Garrido, D.C., P.A. a/a/o Aurea T. Abreau, 17 Fla. L. Weekly Supp. 10a (Fla. 11th Cir. App. Div. Nov. 10, 2009). Other cases like United Automobile Insurance Co. v. Comprehensive Health Center a/a/o Erla Teulsnor, 16 Fla. L. Weekly Supp. 1143a (Fla. 11th Cir. App. Div. Oct. 29, 2009) hold that a treating physician may never charge an expert fee. Still other cases regard an expert witness fee as appropriate for a treating physician where the opposing party elicits expert witness testimony. See United Automobile Insurance Co. v. Fla. Inst. for Pain, Inc. a/a/o Margarita Ibarra, No. 08-553 AP (Fla. 11th Cir. App. Div. December 9, 2009).

In United Automobile Insurance Co. v. Tamara Duncan, No. 08-443 AP (Fla. 11th Judicial Circuit Appellate Feb. 11, 2010), the court held that

Florida Rules of Civil Procedure 1.280(4) and 1.390(c) authorize expert witness fees for those witnesses who acquire or develop knowledge ‘in anticipation of litigation or for trial.’ But, treating physicians do not obtain their information for the purpose of litigation, but rather in the course of making their patients well. As such, they are treated as ordinary fact witnesses and are not entitled to charge expert witness fees.

Accordingly, the appellate court found that United did not have to pay expert witness fees to depose a treating physician. Id.

However, the appellate court in part relies on Fittipaldi USA, Inc. v. Castroneves, 905 So. 2d 182 (Fla. 3d DCA 2005). The USA court held that

. . . . treating physicians are not subject to discovery rules governing expert witnesses because they did not acquire their expert knowledge for the purpose of litigation, but rather simply in the course of attempting to make their patients well. Under such circumstances, the witness is typically testifying as the treating physician concerning his or her own medical performance on a particular occasion and is not opining about the medical performance of another. (Emphasis added.)

Id. at 186.

In the instant case, both treating physicians were asked to provide their opinions on an array of subjects not pertaining to their medical performance on the Insured. Additionally, Dr. Isadore was asked to give an opinion concerning Dr. Booth’s treatment. Thus, the nature of the deposition inquiries posed resulted in the physicians giving expert witness opinion testimony, rendering both physicians expert witnesses. See id. As such, the trial court properly required United to pay expert witness fees.

Thus, this Court will not disturb the underlying holding of the trial court, as the qualification of an expert witness is a conclusion of fact, to be determined by the lower court, and affirmed if supported by competent evidence. See Van Sickle v. Allstate Ins. Co., 503 So. 2d 1288, 1289 (Fla. 5th DCA 1987). The treating physicians in the instant case were deposed on matters that required them to rely on their education and training, rather than on their experiences treating the Insured. Pursuant to Florida Rule of Civil Procedure 1.390, the treating physicians in the instant case qualify as expert witnesses, entitled to commensurate fees.

Additionally, precedent case law suggests that fact treating physicians who are asked to provide expert witness testimony can no longer be considered merely fact witnesses. See USA, Inc., 905 So. 2d at 182. Thus, while future case law may alter the treatment of physicians in similar situations, the Court simply has not been presented with sufficient persuasive authority to reverse the trial court’s holding at this time.Summary Judgment

The standard of review for the Court, when reviewing an order denying summary judgment is de novo. See Tiger Point Golf and Country Club v. Hipple, 977 So. 2d 609, 610 (Fla. 1st DCA 2007); Montgomery v. English, 902 So. 2d 836, 837 (Fla. 5th DCA 2005). In this instant case, despite United moving for summary judgment four times on the issue of the Insured’s non-attendance at the EUO, the trial court denied each motion it reviewed. United failed to meet the burden of providing sufficient competent evidence, for the court to grant summary judgment. See Daeda v. Blue Cross & Blue Shield of Fla., Inc., 698 So. 2d 617, 618 (Fla. 2d DCA 1997). Questions of material fact existed as to whether the Insured received notice of the EUO at all, rather than merely refused attendance, therefore rendering summary judgment inappropriate.

United asserts that its automobile insurance policy required the Insured to attend an EUO, to be eligible to receive benefits. However, for an insurer to be relieved of its obligation to provide PIP benefits, an insured must unreasonably refuse to attend an EUO. See Haiman v. Fed. Ins. Co., 798 So. 2d 811, 812 (Fla. 4th DCA 2001). When the claimant provides an explanation for non-attendance, the issue of unreasonable refusal becomes a question for the jury. See id.

The record below contains no evidence that the Insured unreasonably refused to attend the EUO. Instead, the Insured contends he did not attend because he was not provided notice of the EUO appointments. Thus, United unsuccessfully attempted to have a copy of an EUO letter admitted into evidence, to prove the Insured had notice of the examination, but willfully chose not to attend.

United offers Goldman v. State Farm Fire General Insurance Co., 660 So. 2d 300 (Fla. 4th DCA 1995) for the premise that an insured’s refusal to comply with a demand for an examination under oath is a willful breach of the contract, precluding recovery under the policy. However, the case did not involve a PIP scenario, and instead concerned an insured’s deliberate refusal to submit to an examination. Id. In the instant case, the Insured never refused attendance, because he claimed to have never received notice.

Additionally, the Fourth District Court then decided Haiman v. Federal Insurance Co., 798 So. 2d 811, 812 (Fla. 4th DCA 2001) in which summary judgment was reversed in favor of the insurer, based on the insured’s noncompliance with certain policy requirements. The court held that if the insured provides an explanation for noncompliance, as took place in the instant case, then a fact question is presented for resolution by the jury. Id. at 812.

As well, a recent case concerning the identical policy at issue in the instant matter was decided against United. Hudson v. United Auto. Ins. Co., 12 Fla. L. Weekly Supp. 833b (11th Cir. App. Div. June 14, 2005). In Hudson, the appellate panel reversed a summary judgment in favor of United, finding that the issue of whether the insured unreasonably refused to appear for an EUO was a fact question. Id. The insured would not agree to attend the EUO without her attorney, despite United’s policy requirement that only the insured be present.

Thus, despite United moving for summary judgment four times on the issue of the Insured’s non-attendance at the EUO, the trial court denied each motion it reviewed. United failed to meet the burden of providing sufficient competent evidence, for the court to grant summary judgment. See Daeda v. Blue Cross & Blue Shield of Fla., Inc., 698 So. 2d 617, 618 (Fla. 2d DCA 1997). Questions of material fact existed as to whether the Insured received notice of the EUO at all, rather than merely refused attendance, therefore rendering summary judgment inappropriate. Accordingly, this Court will not disturb the trial court’s denial of summary judgment.The EUO Notice Letter

The evidentiary hurdle United was unable to surmount at trial was how to prove the Insured had notice of the scheduled EUO. This Court reviews the trial court’s evidentiary rulings on appeal for abuse of discretion. See Urquiza v. State, 971, 972 So. 2d 926, 927 (Fla. 3d DCA 2007). Thus, at trial, United unsuccessfully attempted to have its EUO notice letter admitted as evidence. If United could prove notice, it would trigger the Insured’s contractual obligation to attend the examination.

However, the Insured argued that United’s attaching of the unsigned document, allegedly generated in United’s EUO Department, as an exhibit included with the brief did not render it admissible. United now asserts that the trial court erred in not admitting the letter to evidence.

Initially, United argued that the EUO notice was not hearsay, because it was not offered for the truth of the matter asserted. Instead, the insurer contends that “[w]hen words have independent legal significance, evidence that they were said is not hearsay . . . . [T]hese words are sometimes called ‘verbal acts’ ” Charles W. Ehrhardt, 1 Fla. Prac., Evidence § 801.6 (West 2008 ed.). United then goes on to assert that the EUO notice was not hearsay because it was offered to prove that the statements were made, and to show the details of the transaction between the parties.

However, the notice went to the truth of the matter asserted, that the insured and his attorney received the notice of the EUO appointments, therefore rendering it hearsay. The document’s sole legal significance is that it suggests the intended recipients had knowledge of the EUO appointments. That United argues the letter details the Insured’s contractual obligations to attend an EUO in order to receive benefits does not change the fact that it was offered to prove notice. If the letter was offered strictly to show the details of the transaction between the parties, as United purports, then it was utterly superfluous, as a copy of the Insured’s policy was already admitted into evidence. Hence, the letter is hearsay, rather than a verbal act. See Decile v. State, 516 So. 2d 1139, 1140 (Fla. 4th DCA 1987). The trial court found that United was unable to lay a proper foundation for the EUO notice.

United also wanted to use the testimony of Ms. Falcon, one of its adjusters, to authenticate the letter as a business record, used in the company’s routine practice. In support, United cites ITT Real Estate Equities, Inc. v. Chandler Insurance Agency, Inc., 617 So. 2d 750, 751 (Fla. 4th DCA 1993) (error to exclude proffered documents where proponent’s witness identified them as documents from the business file over which he had control). However, in the instant case, the adjuster who testified was never in control of the business file, as she was not a records custodian, did not work for the department responsible for generating the letter, and had limited knowledge of the file’s contents. At best, the adjuster might have been able to testify as to United’s regular business practices, under section 90.406, Florida Statutes.

To that end, United references case law for the premise that a party may indeed offer evidence of a routine practice, as proof that the practice was likely followed in the instant case. Progressive Am. Ins. Co. v. Kurtz, 518 So. 2d 1339 (Fla. 5th DCA 1987); Lumbermens Mut. Cas. Co. v. Alvarez, 443 So. 2d 279 (Fla. 3d DCA 1983); Eig v. Ins. Co. of North Am., 447 So. 2d 377 (Fla. 3d DCA 1984). Accordingly, United sought to admit the EUO notice, to infer that the letter was drafted and mailed to the Insured, using only circumstantial evidence.

However, the case law provides the prerequisite that the party must prove by competent evidence what amounts to routine practice. Eig, 447 So. 2d at 379. In Eig, the court found that a deposition of an unavailable witness who was not even employed at the company at the time she was asked to testify about did not constitute competent evidence. Id. In the instant case, the adjuster was a contemporaneous employee, however she was not the records custodian of the claims file. She was never in control of the file. Additionally, she did not work for the department that actually generated and held the files, nor was she responsible for any notices or mailings.

Accordingly, it was within the trial court’s discretion to determine that this testimony did not constitute competent evidence, for purposes of authenticating the EUO Notice, or to establish routine business practice. See id. Therefore, the Court will not disturb the trial court’s findings. See Mann v. Price, 434 So. 2d 943, 944 (Fla. 2d DCA 1983).

United also relies on R & W Farm Equipment Co., Inc. v. Fiat Credit Corp., 466 So. 2d 407 (Fla. 1st DCA 1985). The case held that a summary judgment affidavit submitted by the company, made by an employee familiar with the method of preparation of business records and whose conclusions were based on a review of such documents could be considered under the business records exception to the hearsay rule. Id. at 409. However, United misstates the intent of the case. The court held that the appellant’s summary judgment affidavit presented a disputed issue of material fact that should have precluded summary judgment from being granted at trial. Id. The cited case does not stand for the premise that a party may rely on the content of a summary judgment affidavit for a different purpose, in a later proceeding, as United now asserts.The Exclusion of a Witness

At trial, United also intended to authenticate the EUO Notice, via the testimony of Mr. Garcia, an EUO department employee. On January 11, 2008, the trial court’s Jury Trial Order set forth the obligations of the parties, including that each party was to provide opposing counsel with a list of witnesses, no later than 30 days prior to the start of trial, and that only those witnesses would be allowed to testify. United did not have Mr. Garcia listed as witness in either its first Pre-Trial Catalog, or its Amended Pre-Trial Catalog. United added Mr. Garcia to the list in its Second Pre-Trial Catalog, dated January 9, 2008. However, United again removed his name from its Third Pre-Trial Catalog, dated August 13, 2008. This was the last Pre-Trial Catalog filed within the time frame set by the trial court in its Jury Trial Order. United subsequently filed a Fourth Amended Pre-Trial Catalog, September 11, 2008, a day before the start of trial on Monday, adding Mr. Garcia’s name to the witness list.

United’s counsel argued that omitting Mr. Garcia from its Third Amended Pre-Trial Catalog was unintentional. The trial court noted that United failed to ask for leave to add a witness beyond the date set in the Jury Trial Order. The Insured’s counsel explained that Mr. Garcia was withdrawn as a witness only two days after the Insured took the deposition of Ms. Falcon, who testified that she was the person with the most knowledge of the claim. Thus, at the time, the Insured chose not to depose Mr. Garcia. The Insured argued that allowing Mr. Garcia to testify in the middle of trial was severely prejudicial.

The trial court found that the Insured had a right to rely on United’s last timely filed Pre-Trial catalog, that United failed to move for leave to amend its Catalog, and that the Insured would be unfairly prejudiced if Mr. Garcia were allowed to testify. Thus, the trial court excluded Mr. Garcia’s testimony.

Case law provides that a trial court does not abuse its discretion by excluding unlisted witnesses, so as to avoid prejudicial surprises. See Binger v. King Pest Control, 401 So. 2d 1310, 1313-14 (Fla. 1981); Bogosian v. State Farm Mut. Auto. Ins. Co., 817 So. 2d 968, 970 (Fla. 3d DCA 2002); Metro. Dade County v. Sperling, 599 So. 2d 209, 210 (Fla. 3d DCA 1992) (affirming exclusion of defendant’s expert witness who was not disclosed until 25 days before trial where trial court’s uniform order setting cause for trial required disclosure no later than 45 days prior to trial). As well, the Binger court held “. . . we essentially approve the Fourth District’s reasoning, which leaves ultimate control over witness disclosure problems to the broad discretion of the trial judge and focuses on prejudice in the preparation and trial of a lawsuit.” Binger, 401 So. 2d at 1313. Accordingly, there was no abuse of discretion in Garcia’s exclusion. See id.The Directed Verdict

This Court applies de novo review to a trial court’s ruling on a motion for directed verdict. See Diaz v. Impex of Doral, Inc., 7 So. 3d 591, 593 (Fla. 3d DCA 2009); Borda v. E. Coast Entm’t, Inc., 950 So. 2d 488, 490 (Fla. 4th DCA 2007). A motion for directed verdict should only be denied and the case submitted to the jury if conflicting evidence has been presented by the parties. See Williamson v. Superior, 746 So. 2d 483, 485 (Fla. 2d DCA 1993); see also Riedel v. Sheraton Bal Harbour Assn., 806 So. 2d 530, 534 (Fla. 3d DCA 2001). A trial judge is authorized to grant a motion for directed verdict when there is no evidence or reasonable inferences to support the opposing position. Cooper Hotel Servs., Inc. v. MacFarland, 662 So. 2d 710, 712 (Fla. 2d DCA 1995). In the instant case, United was unable to present competent, admissible evidence to the trial court that the EUO notice was sent to the Insured, or what were the regular procedures of the EUO Department. There was no abuse of discretion concerning the trial court’s evidentiary rulings, and the trial court properly granted a directed verdict for the Insured.

The decision of the County Court in and for Miami-Dade County, Florida, is AFFIRMED. (THORNTON and MARIN, JJ. concur.)

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ORDER GRANTING ATTORNEY’S FEES

The Petitioner has requested attorney’s fees pursuant to section 627.428(1), Florida Statutes. This section provides, in relevant part, that in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had. Florida Rule of Appellate Procedure 9.400 provides for the recovery of appellate costs to the prevailing party.

Based on the foregoing, this case is REMANDED to the trial court for the assessment of appellate attorney’s fees and costs against United Automobile Insurance Company, in accordance with section 627.428, Florida Statutes, and Florida Rule of Civil Procedure 9.400. (TINKLER MENDEZ, THORNTON, and MARIN, JJ. concur.)