17 Fla. L. Weekly Supp. 735a
Online Reference: FLWSUPP 1709LYNCInsurance — Personal injury protection — Withdrawal of benefits — Valid report — Report of insurer’s expert was not required to be factually supported by physical examination of insured in order to constitute valid report creating genuine issue of material fact as to reasonableness, relatedness and necessity of treatment — Discovery — Depositions — Expert witness fees — No error in awarding expert witness fees for deposition testimony of treating physician
CERT. GRANTED, QUASHED in part at 36 Fla. L. Weekly 1553b
UNITED AUTOMOBILE INSURANCE COMPANY, A Florida Corporation, Appellant, v. COMPREHENSIVE HEALTH CENTER, A/A/O HULDAH A. LYNCH, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-600 AP. L.C. Case No. 2008-595 CC 05. April 21, 2010. On appeal from a decision rendered by the Miami-Dade County Court, Bronwyn C. Miller, J. Counsel: Michael J. Neimand and Lara J. Edelstein, Office of the General Counsel of United Automobile Insurance Company, for Appellant. Marlene S. Reiss and Richard Doherty, for Appellee.
(Before VENZER, CUETO and ARZOLA, JJ.)
(ARZOLA, J.) THIS CAUSE came before the trial court for hearing on a motion for summary judgment submitted by Appellee, Comprehensive Health Center, LLC a/a/o Huldah A. Lynch (“Comprehensive Health”). Comprehensive Health, the Plaintiff in the trial court, sued Appellant, United Automobile Insurance Company (“United Auto”), the Defendant in the trial court, for personal injury protection (“PIP”) insurance benefits. United Auto argues two issues on appeal and maintains the trial court erred with respect to each issue.
The first matter on appeal concerns the trial court’s grant of Comprehensive Health’s motion for summary judgment as to United Auto’s affirmative defense concerning the reasonableness, relatedness and necessity of the treatment rendered by the treating chiropractic physician, Daryl Schleifer, D.C. (“Dr. Schleifer”) and osteopathic physician Rudolph Moise, D.O. (“Dr. Moise”). Huldah A. Lynch (“Lynch”) assigned her PIP benefits to the provider, Comprehensive Health. United Auto filed an initially insufficient affidavit of Marvin Merritt, D.C. (“Dr. Merritt”) in opposition to the motion and the trial court granted summary judgment on November 5, 2008. United Auto moved for a rehearing and filed the amended affidavit of Dr. Merritt on November 14, 2008. The trial court reviewed the amended affidavit and denied the motion for rehearing “on the merits” on November 18, 2008. The trial court held that “Merritt’s late-filed affidavit and report do not comprise a ‘valid report’ pursuant to section 627.736(7)(a) Florida Statutes, as it is not factually supported by a physical examination of the insured.”
We hold that Dr. Merritt’s amended affidavit created a genuine issue of material fact as to the reasonableness, relatedness and necessity of the treatment rendered by Drs. Schleifer and Moise under section 627.736(4)(b). See Partners in Health Chiropractic v. United Automobile Ins. Co., 21 So. 3d 858 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2177a]. Even had United Auto withdrawn benefits pursuant to section 627.736(7)(a), that section no longer requires a physical examination to withdraw benefits. United Automobile Ins. Co. v. Metro Injury & Rehab Center, 16 So. 3d 897, 899-900 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D1516a]. We reverse as to this issue.
The second matter on appeal concerns whether the trial court erred in requiring United Auto to pay an expert witness fee to take the deposition of Dr. Schleifer. Comprehensive Health filed a motion for protective order, requesting expert witness fees be paid before United Auto be allowed to take the deposition of Dr. Schleifer. United Auto objected, contending that a treating physician is an ordinary fact witness and should not be entitled to an expert witness fees. The trial court agreed with Comprehensive Health and granted the motion, ordering that United Auto pay $350.00 an hour as an expert witness fee.
This Court recognizes that there is a conflict within the Eleventh Judicial Circuit and among other judicial circuits pertaining to the issue at hand. Notwithstanding this conflict, we find that the clear language in Rule 1.390 of the Florida Rules of Civil Procedures controls this fee dispute. Rule 1.390 states in paragraphs (a) and (c) as follows:
(a) Definition. The term “expert witness” as used herein applies exclusively to a person duly and regularly engaged in the practice of a profession who holds a professional degree from a university of 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
* * * *
(c) Fee. An expert or skilled witness who 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 cost.
Based on the wording in paragraph (a), it is clear that a physician, such as Dr. Schleifer, falls within the meaning of the definition of “expert witness” under Rule 1.390. The use of the word “shall” in paragraph (c) indicates that a party seeking to depose an expert must pay him a reasonable fee for his testimony. There is nothing discretionary about the rule and there are no exceptions listed under the rule. Based on the foregoing reasoning, we find that the lower court did not error in granting the Comprehensive Health’s motion for protective order holding that the insured’s treating physician is entitled to receive an expert witness fee for his deposition testimony. See Progressive Express Insurance Co. v. Professional Medical Group Inc., 10 Fla. L. Weekly Supp. 973a (Fla. 11th Cir. Ct., October 14, 2003); United Auto. Ins. Company v. Cereceda & Associates, DC, PA, 15 Fla. L. Weekly Supp. 1048a (Fla. 11th Cir. Ct., August 27, 2008); United Auto. Ins. Co. v. Eduardo Garrido, DC, PA, Fla. L. Weekly Supp. 1701GARR (11th Judicial Cir. Ct., November 10, 2009).
We REVERSE and REMAND the summary judgment finding below that the affidavit of Dr. Merritt failed to create a genuine issue of material fact as to the reasonableness, relatedness and necessity of the treatment provided. Therefore, Comprehensive Health is not entitled to summary judgment as a matter of law and the matter is remanded with instructions for the lower court to vacate the final judgment.
We AFFIRM the lower court’s grant of the motion for protective order, awarding expert witness fees for Dr. Schleifer’s deposition.
We REVERSE the lower court’s order awarding Comprehensive Health’s attorney’s fees and costs. Where a final judgment is no longer enforceable, an attorney fee award in the lower court, based on that judgment is likewise not enforceable. See Nevarez v. Friskney, 819 So. 2d 992, 993 (Fla. 5th DCA 2002) [27 Fla. L. Weekly D1506a]; Marty v. Bainter, 727 So. 2d 1124, 1125 (Fla. 1st DCA 1999) [24 Fla. L. Weekly D695a].
Additionally, Appellee’s Motion for Appellate Attorney’s Fees is DENIED. Because the Appellee is not the prevailing party in this appeal, appellate attorney’s fees are not attainable. Fla. Stat. §627.428(1).
FOR THESE REASONS, the order granting final judgment in favor of Appellee is REVERSED and this cause is REMANDED to the trial court for further proceedings consistent with this opinion. (VENZER and CUETO, J.J., concur)
