17 Fla. L. Weekly Supp. 1182a

Online Reference: FLWSUPP 1712DENIInsurance — Personal injury protection — Summary judgment — Appeals — Preservation of issue — Where insurer did not argue to trial court that failure of medical provider’s affidavit to establish that accident occurred precluded entry of summary judgment, issue was not preserved for appeal — Discovery — Depositions — Expert witness fees — No error in awarding expert witness fees for deposition testimony of treating physician — Error to fail to consider affidavit of peer review doctor filed in opposition to motion for summary judgment because it was not based on independent medical examination

UNITED AUTOMOBILE INSURANCE CO., A Florida Corporation, Appellant, vs. FLORIDA WELLNESS & REHABILITATION CENTER, INC., a/a/o EVELAURE DENIS, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 09-185 AP & 09-273 AP. L.T. Case No. 08-84301 SP 25. October 1, 2010. An Appeal from the County Court in and for Miami Dade County, Florida, NURIA SAENZ, Judge. Counsel: Michael J. Neimand, Office of the General Counsel, United Automobile Insurance Co., for Appellant. Kevin W. Whitehead, Downs Brill Whitehead, for Appellee.

(Before LEDERMAN, PRESCOTT and CYNAMON, JJ.)

(CYNAMON, Judge.) Evelaure Denis (“Denis”), a minor, was insured under a personal injury protection (“PIP”) policy issued by Appellant (“United”). On June 13, 2007, Denis was injured in an automobile accident. Denis received treatment from Appellee (“Florida Wellness”). Denis assigned her benefits under the PIP policy issued by United to Florida Wellness. United refused to pay Florida Wellness for the treatment Florida Wellness provided to Denis. Florida Wellness filed an action against United in the County Court, seeking payment of $1,570.00 for medical services provided to Denis between June 15, 2007 and June 28, 2007.

On October 6, 2008, Florida Wellness filed a motion for summary judgment. Accompanying this motion was the affidavit of Dr. Iris De Jesus, DC, Denis’ treating physician. In this affidavit, Dr. De Jesus stated that the treatment Florida Wellness provided to Denis was reasonable, related and necessary. United filed the affidavit of Dr. Bradley Simon, DC, in opposition to this motion for summary judgment. The trial court entered summary judgment in favor of Florida Wellness on March 18, 2009. Subsequently, on March 25, 2009, the trial court entered a final judgment in favor of Florida Wellness. United appeals this judgment.

On appeal, United argues that the trial court erred in granting summary judgment for three separate reasons. One reason is that the affidavit of Dr. De Jesus did not establish that an accident occurred, which, United argues, left unresolved a genuine issue of material fact. Another reason advanced by United on appeal is that the trial court erred when it required United to pay Dr. De Jesus an expert witness fee in order to take her deposition. Last, United argues on appeal is that the trial court erred when it failed to consider the affidavit of Dr. Simon filed in opposition to the motion for summary judgment.

United’s first argument on appeal is that the trial court erred in entering summary judgment for Florida Wellness because the affidavit of Dr. DeJesus did not establish that an accident occurred. With regard to this argument, a review of the record on appeal does not indicate that United raised this argument below. Consequently, it cannot be raised for the first time in this appellate proceeding. See Dade County School Board v. Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999) [24 Fla. L. Weekly S71a].

United next argues on appeal that the trial court erred when it required United to pay Dr. Iris De Jesus (Denis’ treating physician) an expert witness fee for her deposition. We note that no transcript of the hearing on this issue is included in the record. Therefore, the trial court’s ruling comes to this court with a presumption of correctness. Smith v. Orhama, Inc., 907 So. 2d 594, 595 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D1748a]. Because of the absence of a transcript, the task of this court on appeal is limited to determining whether the trial court’s order contains any legal errors. The trial court’s order states that “Dr. Iris De Jesus is hereby awarded Expert Witness fee in the amount of $350 per hour.” (R. at 50). We find that the trial court did not err when it awarded Dr. De Jesus an expert witness fee for her testimony, for reasons which follow.

Under Fla. R. Civ. P. 1.390, an expert witness is defined as “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 specialized professional training or experience or one possessed of special knowledge or skill about the subject upon which called to testify.” Subsection (c) of the Rule further provides that an “expert or skilled witness whose deposition is taken shall be allowed a witness fee in such reasonable amount as the court may determine.” Thus, a straightforward reading of this Rule supports a conclusion that Dr. De Jesus was entitled to an expert witness fee.

However, United argues that under Fla. R. Civ. P. 1.280, expert witness fees should be paid only in those situations where the expert acquired or developed her knowledge in anticipation of litigation. United argues that Dr. De Jesus is precluded from being awarded fees by Fla. R. Civ. P. 1.280, because, as Denis’ treating physician, she did not acquire or develop her knowledge in anticipation of litigation. The question presented to this court is whether the trial court was required to refer to Fla. R. Civ. P. 1.280 for its definition of “expert.” We find that it was not. This is because Fla. R. Civ. P. 1.280(b)(4) directs the reader back to Fla. R. Civ. P. 1.390(a) for the definition of expert. Specifically, Fla. R. Civ. P. 1.280(b)(4) provides that “an expert shall be an expert witness as defined in rule 1.390(a).” Therefore, we find that the trial court correctly awarded expert fees to Dr. De Jesus.

United argues that controlling Third District precedent holds that expert witness fees should not be awarded to a treating physician who gives a deposition. Therefore, argues United, the trial court’s award of these fees to Dr. De Jesus is reversible error. In support of its position, United cites the cases of Fittpaldi USA Inc. v. Castroneves, 905 So. 2d 182 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D867a]; Ryder Truck Rental, Inc. v. Perez, 715 So. 2d 289 (Fla. 3d DCA 1998) [23 Fla. L. Weekly D1400a] and Frantz v. Golebiewski, 407 So. 2d 283 (Fla. 3d DCA 1981). However, this court’s review of those cases reveals that none of them address whether a treating physician is entitled to expert fees for deposition under Fla. R. Civ. P. 1.390. Instead, in Fittipaldi, an attorney, who was not listed as an expert witness, gave expert testimony about a contract. This testimony was clearly derived from his expertise as an attorney. The Third District held that it was error for the trial court to have allowed him to testify. Similarly, in Ryder, there is no discussion of Fla. R. Civ. P. 1.390. The Ryder opinion is concerned instead with whether the trial court erred in denying the defendant the right to elicit fact testimony from the plaintiff’s treating physicians on the issue of permanent injury. In Ryder, the Third District does not opine on the issue of whether an expert is entitled to a deposition fee under the rule. Moreover, the Frantz opinion does not address the issue of whether a treating physician is entitled to an expert witness fee under Fla. R. Civ. P. 1.390. This court notes that Frantz can be read to support the conclusion that expert witness fees should be awarded to a treating physician who gives a deposition. See Frantz, 407 So. 2d at 285, n.2:

as a practical matter, medical professionals almost invariably insist — as every witness has the right to do — upon a formal deposition and the payment of an appropriate witness fee before giving a statement to the party adverse to his patient.

Accordingly, United has failed to demonstrate any error in the trial court’s order awarding expert witness fees to Dr. De Jesus.

We now turn to United’s argument that the trial court erred when it failed to consider the affidavit of Dr. Simon, filed in opposition to the motion for summary judgment, because it was not based on an independent medical examination. A review of the record on appeal reveals that the trial court’s order explicitly reflects that the trial court did not consider this affidavit when ruling on Florida Wellness’ motion for summary judgment. (R. at 161). We find that the trial court erred in failing to consider the affidavit of Dr. Simon. See United Automobile Insurance Co. v. Santa Fe Medical Center, 21 So. 3d 60, 65 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2051b].

Accordingly, we reverse the trial court’s entry of summary judgment and remand with instructions to consider the affidavit of Dr. Simon. (LEDERMAN and PRESCOTT, JJ., concur.)