17 Fla. L. Weekly Supp. 988a

Online Reference: FLWSUPP 1710MARRInsurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related, and necessary expenses — Discovery — Depositions — No error in granting expert witness fees for deposition of treating physician — Error to fail to consider peer review affidavit submitted by insurer’s expert because it was not based on independent medical examination — Error to refuse to consider peer review report because it was obtained after plaintiff had already filed suit — Attorney’s fees — Provider conditionally granted appellate attorney’s fees with respect to portion of lower court order affirmed, contingent on provider being prevailing party at conclusion of case

UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Appellant, vs. PROFESSIONAL MEDICAL GROUP, INC., a/a/o MORAIMA MARRERO, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-544 AP & 09-164 AP. (Consolidated.) L.C. Case No. 07-19903 CC 25. June 2, 2010. An Appeal from the County Court for Miami-Dade County. Counsel: Michael J. Neimand, Office of the General Counsel, United Automobile Insurance Company, for Appellant. Virginia M. Best, Lopez & Best, and Armando Brana, for Appellee.

Cert. Denied 35 Fla. L. Weekly 1685b

(Before SPENCER EIG, NUSHIN G. SAYFIE, and STACY D. GLICK, JJ.)

(GLICK, J.) Appellant United Automobile Insurance Company (“United Auto”) appeals a decision of the trial court which had granted summary judgment for the Appellee/Assignee, Professional Medical Group, Inc. (“Professional Medical”), in their action against United Auto for PIP benefits, on the issue of whether the medical charges were reasonable, related, and necessary. United Auto also appeals a final judgment for attorney’s fees granted to the provider; both appeals are consolidated here. The insurer contends that the trial court erred in three significant ways, any one of which would constitute sufficient grounds to reverse by this appellate court. We agree that the trial court erred with respect to the second and third issue, but affirm as to the first issue.

As to the first issue, we affirm the trial court’s grant of expert witness fees for the deposition of the treating physician. Professional Medical argues that the treating physician serves as an expert under Fla. R. Civ. P. 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 upon which called to testify.” Fla. R. Civ. P. 1.390(a) (2009). We must therefore review the record for evidence of the trial court’s findings supporting its conclusion.

However, United Auto has failed to supply this Court with a transcript of the hearing. It is the responsibility and duty of United Auto to provide this Court with a record sufficient to review the matter it contends is error. Nemeth v. De Lauega, 354 So. 2d 418 (Fla. 3d DCA 1978); South Florida Apartment Ass’n, Inc. v. Dansyear, 347 So. 2d 710 (Fla. 3d DCA 1977); Gleim v. Gleim, 176 So. 2d 610 (Fla. 3d DCA 1965). Because, United Auto has failed to do so, 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). In the instant case, the trial court in granting the motion, considered the treating physician’s qualifications, made its findings and properly determined that he qualified as an expert. See Van Sickle v. Allstate Insurance Company, 503 So. 2d 1288, 1289 (Fla. 5th DCA 1987).

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. 1.390(c) (2009). The treating physician is entitled to an expert witness fee because he qualifies as an expert under the rule. United Auto. Ins. Co. v. Cereceda & Assocs., D.C., P.A., 15 Fla. L. Weekly Supp. 1048a (Fla. 11th Cir. Ct. Aug 27, 2008), pet. denied, 999 So. 2d 657 (Fla. 3d DCA 2008); Progressive Express Ins. Co. v. Professional Medical Group, Inc., 10 Fla. L. Weekly Supp. 973a (Fla. 11th Cir. Ct. Oct. 14, 2003). We find that the treating physician in this case, clearly fits this definition of an expert within the meaning of Fla. R. Civ. P. 1.390.

Having reviewed Rule 1.390, Cereceda and Progressive Express, we find no error in the lower court’s determination that the treating physician is an expert witness and that the act of deposing him entitles him to a fee. 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). We affirm the trial court’s order requiring United Auto to pay an expert witness fee prior to taking the treating physician’s deposition.

With respect to the second issue, we hold that the trial court erred in not considering the peer review affidavit submitted by the insurance company’s expert, Dr. Simon. The trial court, in ruling for Professional Medical at the summary judgment hearing, concluded that because Dr. Simon’s affidavit was not based on an IME, it would not be considered. The trial court misinterpreted the law.

In United Automobile Insurance Company v. Metro Injury & Rehab Center, 16 So. 3d 897, 34 Fla. L. Weekly D1516a (Fla. July 29, 2009), the Third District Court of Appeal reversed a grant of summary judgment by the trial court, which had held that an insurer’s expert report was not a valid peer review report under sec. 627.736(7)(a), Fla. Stat. (2005), because it was neither based upon nor factually supported by an independent medical examination. In clarifying the law, the Court held that to constitute a “valid report” under sec. 627.736(7)(a), Fla. Stat. (2005), the physician who issues the report must be a physician who examines the insured, or excluding the treating physician, a physician who reviews the examination and treatment records of the insured. The reporting physician does not have to have personally conducted a physical examination of the insured. See United Auto at 900, affirming holding in United Automobile Insurance Company v. Bermudez, 980 So. 2d 1213 (Fla. 3d DCA 2008). As such, the trial court erred in its ruling on this matter.

With respect to the third issue, we hold that the trial court erred when it refused to consider United Auto’s peer review report because it was obtained after the plaintiff had already filed suit. This was wrong because the PIP statute does not include a time limit for obtaining evidence to contest whether charges are reasonable, related, and necessary. In fact, sec. 627.736(4)(b), Fla. Stat. (2005), expressly states that an insurer may “assert that the claim was unrelated, was not medically necessary, or was unreasonable . . . at any time, including after payment of the claim or after the 30-day time period for payment set forth in this paragraph.” See United Automobile Insurance Company v. Bermudez, 980 So. 2d 1213, 1217 (Fla. 3d DCA 2008). As the PIP statute does not contain any special rules or time limitations for obtaining evidence, a PIP case should be treated like any other case under the Florida Rules of Civil Procedure. Fla. R. Civ. P. 1.510(c) governs evidence in summary judgment hearings, and permits the adverse party to submit evidence by mail in opposition at least 5 days prior to the hearing, or delivered no later than 5:00 p.m. two business days prior to the day of the hearing. Here, United Auto’s expert peer review was served prior to the summary judgment hearing, and as such, was timely, and should have been considered.

If United Auto’s expert’s peer review had been considered by the trial court, it would have raised a disputed issue of fact as to whether the medical charges were reasonable, related, and necessary, which would have precluded summary judgment for Preferred Medical. This is not a case where the trial court arrived at the right result for the wrong reason; it is a case where the trial court failed to reach the correct result because viable evidence was excluded. As such, the trial court’s decision is not defensible under the “tipsy coachman rule”. Bueno v. Workman, 20 So. 3d 993 (Fla. 4th DCA 2009).

We conclude that the trial court erred in granting summary judgment for Preferred Medical.

Where a case is affirmed in part and reversed in part, the appellant may be entitled to a portion of the appellate attorneys’ fees. Great Southwest Fire Ins. Co. v. DeWitt, 458 So. 2d 398 (Fla. 1st DCA 1984). We direct the trial court to enter an order conditionally granting appellate attorney’s fees with respect to the portion affirmed, the first issue on appeal only, contingent on Professional Medical being the prevailing party at the conclusion of the case. See Brass & Singer, P.A. v. United Auto. Ins. Co., 919 So. 2d 473, 475 n.3 (Fla. 3d DCA 2005); Allstate Ins. Co. v. De La Fe, 647 So. 2d 965 (Fla. 3d DCA 1994).

This matter is reversed and remanded to the trial court for proceedings consistent with this opinion.

AFFIRMED in part, REVERSED in part. (SAYFIE, J., concurs. EIG, J. concurs in result only, but does not join in the majority opinion.)