17 Fla. L. Weekly Supp. 927a
Online Reference: FLWSUPP 1710BEAD
Insurance — Personal injury protection — Denial of benefits — Valid medical report — Trial court erred in striking affidavit and peer review report offered in opposition to medical provider’s motion for summary judgment on ground that peer review must be supported by physical examination of insured — Discovery — Depositions — Expert witness fees — No error in determining that treating physician was entitled to expert witness fees for his deposition testimony
UNITED AUTOMOBILE INSURANCE COMPANY, A Florida Corporation, Appellant, v. WEST MIAMI MEDICAL CENTER, A/A/O MARIA BEADE, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County, Florida. Case No. 08-604 AP and 09-340 AP (Consolidated). L.T. Case No. 06-18902 CC 25. May 13, 2010. An appeal from a decision rendered by the Miami-Dade County Court. Lawrence King, J. Lawrence King, Judge. Counsel: Michael J. Neimand, Office of the General Counsel of United Automobile Insurance Company, for Appellant. Virginia M. Beast, Lopez and Best, for Appellee.
(Before VENZER, CUETO and ARZOLA, JJ.)
(VENZER, Judge.) This is an appeal from a final summary judgment in favor of Appellee West Miami Medical Center (“West”). West, 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 West’s motion for summary judgment as to United Auto’s affirmative defense as to the reasonableness, relatedness and necessity (“RRN”) of the treatment rendered by treating chiropractic physician, Dr. Fernandez, D.C.
Dr. Fernandez attested that in his opinion, all of the treatment rendered was RRN. West attached the affidavit of Dr. Fernandez to its motion.
In opposition, United Auto filed the affidavit of Dr. Goldberg, D.C., who performed a Peer Review. In his Peer Review Report and Affidavit, Dr. Goldberg attested that he reviewed the treatment records and the initial examination report and it was his opinion that some of the treatment was not reasonable, related or necessary.
At the summary judgment hearing, the trial court refused to consider and struck the affidavit and peer review of Dr. Goldberg’s, believing that a physical examination was required to reduce or deny benefits. It granted West’s motion, leading to the first issue on appeal.
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. Fernandez. West Miami had filed a motion for protective order. United Auto filed a written objection, contending that a treating physician would not be entitled to an expert witness fee. The trial court agreed with West Miami and granted the motion, ordering United Auto pay $350.00 as an expert witness fee.
The trial court entered final judgment after granting summary judgment to West Miami as to United Auto’s remaining affirmative defenses. The trial court subsequently awarded West Miami’s counsel, attorney’s fees, costs and pre-judgment interest. This appeal followed.
As to the first issue on appeal, we hold that United Auto had reasonable proof that the treatment was not RRN. An insurer may at any time challenge whether treatment is RRN, and is permitted to rely on a report obtained pursuant to section 627.736(7)(a), even when the report is obtained more than thirty days after the claim was submitted. United Automobile Insurance Co. v. Millennium Diagnostic Imaging Center, Inc., 12 So. 3d 242, 246-247 (Fla. 3d DCA 2009).
An insurer’s obligation, pursuant to section 627.736(7)(a), to first obtain a medical report, applies only to withdrawal of benefits — as opposed to denial or reduction of payment to a treating physician. United Automobile Ins. Co. v. Santa Fe Medical Center, 21 So. 3d 60, 66-67 (Fla. 3d DCA 2009). The Third District Court of Appeal has held that section 627.736(7)(a) no longer requires a physical examination of the insured to withdraw benefits. United Automobile Ins. Co. v. Metro Injury & Rehab Center, 16 So. 3d 897, 899-900 (Fla. 3d DCA 2009); Partners in Health Chiropractic v. United Automobile Ins. Co., 21 So. 3d 858, 864 (Fla. 3d DCA 2009). We find that the trial court erred in requiring a physical examination was required, when striking the affidavit and peer review report as proof to defend against summary judgment and, therefore, reverse.
As to the second issue, United Auto’s arguments are not convincing. See United Auto. Ins. Co. v. Eduardo Garrido, DC, PA, 21 So. 3d 112 (Fla. 3d DCA 2009) (affirming without discussion, the correctness of a non-final order granting the treating physician an expert witness fee for his deposition); Lion Plumbing Supply Inc. v. Suarez, 844 So. 2d 768, 771 (Fla. 3d DCA 2003) (holding that the Third District Court of Appeal has not established a rigid “black letter rule” that treating physicians can never be considered an expert under the “one expert-per-specialty rule”). West Miami argues that Dr. Fernandez serves as an expert under Rule 1.390(a). That rule defines an expert 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 special professional training and experience, or one possessed of special knowledge or skill about a subject up on which called to testify.” Fla. R. Civ. P. Rule 1.390(a) (2009). Having reviewed the affidavit of Dr. Fernandez, we find that Dr. Fernandez clearly fits this definition.
West Miami argues that Fla. R. Civ. P. 1.390(c) entitles Dr. Fernandez to an expert witness fee. We agree with West Miami’s reliance upon Progressive Express Ins. Co. v. Professional Medical Group, Inc., which held that, pursuant to Rule 1.390, a treating physician participates as an expert witness entitling him or her to an expert witness fee. 10 Fla. L. Weekly Supp. 973a (Fla. 11th Cir. Ct. Oct. 14, 2003). Rule 1.390 and not Rule 1.280 or the cases cited by United Auto, controls this fee dispute. The rule 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.” Fla. R. Civ. P. Rule 1.390(c) (2009). There appears to be no exception to this rule.
We must presume the findings of the trial court finding Dr. Fernandez to be an expert and the amount awarded as a fee are correct, because we are unable to evaluate its findings otherwise. Smith v. White, 816 So. 2d 209 (Fla. 3d DCA 2002); All American Soup & Salad Inc. v. Colonial Promenade, 652 So. 2d 911 (Fla. 5th DCA 1995); Hirsh v. Hirsh, 642 So. 2d 20 (Fla. 5th DCA 1994). As a result, our review is limited to determining whether there are any legal errors which appear on the face of the order. See Porteous v. Porteous, 937 So. 2d 1179 (Fla. 3d DCA 2006); Prymus v. Prymus, 753 So. 2d 742 (Fla. 3d DCA 2000); Katowitz v. Katowitz, 684 So. 2d 256, 257 n. 1 (Fla. 3d DCA 1996). United Auto agreed at oral argument that our review was limited to determining whether the trial court committed legal error.
The Fourth District Court of Appeal’s decision in Haldane v. Hall, provides us with guidance in this matter. 234 So. 2d 739 (Fla. 4th DCA 1970). In Haldane, the counsel for the defendants noticed the plaintiff that he “intended to take the deposition” of one of “plaintiffs treating physicians.” Id. at 740. The defendants sought the “doctor’s knowledge gained in treating the plaintiff” Id. The district court reasoned that “the defendants were clearly aware” that “the doctor was an expert witness within the meaning of Rule 1.390(a) and defendants contemplated the possible use of the deposition for evidence at trial.” Id. In the instant case, the trial court in granting the motion, considered Dr. Fernandez’s qualifications, made its findings and determined that he qualified as an expert. See Van Sickle v. Allstate Insurance Company, 503 So. 2d 1288, 1289 (Fla. 5th DCA 1987) (stating that the “qualification of an expert witness and the perimeters of his expertise are conclusions of fact to be determined advisedly by the trial judge”).
Having reviewed Rule 1.390, Haldane, and Progressive Express, we find no error in the lower court’s determination that Dr. Fernandez is an expert witness and that the act of deposing him entitles him to a fee. See Eppler v. Tarmac America, Inc., 695 So. 2d 775, 777 (Fla. 1st DCA 1997) (remanding and directing the trial court to award an expert witness fee where cross-appellee conceded that the expert witness’s deposition appearance entitled him to a “reasonable fee”). Therefore, we affirm the trial court’s non-final order requiring United Auto to pay expert witness fees prior to taking Dr. Fernandez’s deposition.
Thus, we REVERSE and REMAND the summary judgment finding below that the affidavit of Dr. Goldberg failed to create a genuine issue of material fact as to the reasonableness, relatedness and necessity of the treatment provided. Consequently, West Miami is not entitled to summary judgment as a matter of law as to RRN.
We AFFIRM the lower court’s grant of the motion for protective order, awarding expert witness fees for Dr. Fernandez’s deposition.
Lastly, we REVERSE the lower court’s order awarding West Miami attorney’s fees and costs. Where a final judgment is no longer enforceable, an attorney fee award based on that judgment is likewise not enforceable. See Nevarez v. Friskney, 819 So. 2d 992, 993 (Fla. 5th DCA 2002); Marty v. Bainter, 727 So. 2d 1124, 1125 (Fla. 1st DCA 1999).
Therefore, the Appellee’s Motion for Attorney’s Fees is DENIED. Because Appellee is not the prevailing party in this appeal, appellate attorney’s fees are not attainable. § 627.428(1), Fla. Stat. (2009).
FOR THESE REASONS, we direct the lower court to vacate the order granting final judgment in favor of Appellee and this cause is REMANDED to the trial court for further proceedings consistent with this opinion.
AFFIRMED in part, REVERSED in part. (CUETO and ARZOLA, J.J., concur.)
