17 Fla. L. Weekly Supp. 82a
Online Reference: FLWSUPP 1702DMATInsurance — Personal injury protection — Discovery — Depositions — Treating physician — Error to require insurer to pay expert witness fees to take deposition of treating physician — Notice of loss — Timeliness — Where there is no indication that insurer who received notice one and half months after accident and thereafter delayed several months before taking examination under oath and several more months before reviewing EUO sustained any prejudice from late notice, trial court did not err in entering summary judgment in favor of medical provider on issue of late notice — Attorney’s fees granted in favor of provider, who is prevailing party on significant issues in litigation
UNITED AUTOMOBILE INSURANCE CO., Appellant, v. DADE INJURY REHAB CENTER, INC., a/a/o Denis Diaz-Matamoro, Appellee. Circuit Court, 11th Judicial Circuit (Appellant) in for Miami-Dade County. Case No. 08-021 AP. L.T. Case No. 06-3382 CC 25. December 23, 2009. An Appeal from the County Court of the Eleventh Judicial Circuit of Florida in and for Miami-Dade County, Nuria Saenz, Judge. Counsel: Miechael J. Niemand and Lara Edelstein, Office of the General Counsel, United Automobile Insurance Company, for Appellant. Jorge R. Iglesias and Chelin Vazquez Sampedro, of Jose R. Iglesias & Associates, Inc., for Appellee.
(Before BAILEY, FREEMAN and LEBAN, JJ.)
(FREEMAN, J.) This case arises from a PIP action filed by Dade Injury Rehab Center, Inc. a/a/o Denis Diaz-Matamoro (“Dade Injury”) against insurer United Automobile Insurance Company (“United Auto”). United Auto has two issues on appeal. First, United Auto contends that the trial court erred in requiring it to pay expert witness fees to the treating physician for his deposition. Second, United Auto asserts that the trial court erred in granting summary judgment on the factual issue of late notice.
Treating Doctor’s Entitlement to Expert Fees for Deposition
United Auto contends that the trial court erred in granting expert witness fees to the treating physician. We agree. We review the trial court’s application of law on expert fees de novo. Slaughter v. State, 830 So. 2d 955, 957 (Fla. 1st DCA 2002).
We find the recent opinion of United Auto. Ins. Co. v. Comprehensive Health Center, Inc., a/a/o Erla Telusnor, (Fla. 11th Cir. Ct. October 21, 2009) [16 Fla. L. Weekly Supp. 1143a] (reversing the trial court where it granted expert witness fees to the treating physicians for their depositions) to be directly on point. The Telusnor holding stated:
Florida Rules of Civil Procedure 1.280(4) and 1.390(c) authorize expert witnesses 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. See Engel v. Rigot, 434 So. 2d 954, 957 (Fla. 3d DCA 1983)(holding that a dentist’s subpoenas were erroneously quashed for not being accompanied by expert witness fees); Ryder Truck Rental, Inc. v. Perez, 715 So. 2d 289, 290 (Fla. 3d DCA 1998)(injured motorist’s treating physicians should not have been classified as expert witnesses in her negligence action, but as ordinary fact witnesses); Franz v. Golebiewski, 407 So. 2d 283, 285 (Fla. 3d DCA 1981)(a treating doctor, while unquestionably an expert, does not acquire her expert knowledge for the purpose of litigation but rather simply in the course of attempting to make h[er] patient well); and, Fittipaldi USA, Inc. v. Castroneves, 905 So. 2d 182, 186 (Fla. 3d DCA 2005) (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). The trial court should not have awarded expert witness fees for deposing the treating physicians.
Thus, we find that the trial court erred in requiring United Auto to pay an expert witness fee to take the deposition of the treating physician. We remand for entry of an order in accordance with this opinion striking any expert witness fee.
Summary Judgment on Issue of Late Notice
United Auto seeks reversal of summary judgment on the issue of late notice asserting that it is an issue of fact for the jury. A motion for summary judgment may only be granted if the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment as a matter of law. See Fla. R. Civ. P. 1.510(c). “The standard of review for a summary judgment order is de novo and requires viewing the evidence in the light most favorable to the non-moving party.” Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000).
United Auto raised the affirmative defense for lack of written/late notice pursuant to §627.736(11) of the PIP statute. Sub-section 11 states that the insured is required to provide the insurer with “written notice as soon as practicable after an accident involving a motor vehicle.”
Here, the vehicle accident took place on December 29, 2003. United Auto did not receive notice until February 19, 2004. The resulting EUO (examination under oath) was not set until March 15, 2004. Although § 627.736(11) requires a written notice to the insurer, it does not set a time table. Because the statute does not specifically define the language “as soon as possible,” we yield to the trial court’s determination on the matter of timeliness. The record shows that United Auto waited until March 11, 2004 to review the file, upon which time the IME and EUO were requested, despite having had notice of the accident since February 19, 2004. Subsequent to that, a EUO took place on May 5, 2004. The insurance adjuster did not review the EUO transcript until July 16, 2004. See Deposition Transcript of Grettel Delgado, p. 15 line 2 (April 16, 2007).
Where there is absolutely no indication in the record that the insurer sustained any prejudice, we agree that an insured is entitled to summary judgment on an insurance company’s affirmative defense of failure to provide written notice as soon as practicable to the insurer. United Auto. Ins. Co. v. Professional Medical Group a/a/o Rebecca Arocha, 12 Fla. L. Weekly Supp. 709d (Fla. 11th Cir. Ct. May 10, 2005). We find that Dade Injury’s February 19 notice to the insurer did not impose undue prejudice on United Auto. Accordingly, we find that summary judgment was properly granted on the issue of late notice. Thus, we affirm the decision rendered by the lower tribunal with regard to summary judgment.
Attorney’s Fees
For the purposes of an attorney fee award, the prevailing party is the party prevailing on the significant issues in the litigation. Moritz v. Hoyt Enterprises, Inc., 604 So. 2d 807, 809 (Fla. 1992), citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The significant issue in this litigation concerns whether one of the parties had breached the contract, and if so, which party effected the breach. Here, United Auto’s only reason for nonpayment of the medical benefits was the allegation that it had received late notice. Therefore, the trial court’s decision to grant Dade Injury’s motion for summary judgment on the late notice issue is dispositive. Since we affirm that summary judgment, Dade Injury is the prevailing party in this dispute. Accordingly, we grant Dade Injury’s motion for attorney’s fees and remand for the trial court to determine the appropriate fees.
Affirmed in part and reversed in part. (BAILEY and LEBAN, JJ., concur.)
