17 Fla. L. Weekly Supp. 1184a
Online Reference: FLWSUPP 1712MARC
NOT FINAL VERSION OF OPINION
Subsequent Changes at 18 Fla. L. Weekly Supp. 740a
Insurance — Personal injury protection — Coverage — Medical expenses — Denial of benefits — Valid medical report — Error to disregard affidavit offered in opposition to insured’s motion for summary judgment on ground that it was not supported by physical examination of insured — Appellate court is unable to consider insured’s argument that affirmance is warranted because affidavit is insufficient on other grounds where affidavit is not part of record on appeal
UNITED AUTOMOBILE INSURANCE COMPANY, A Florida Corporation, Appellant, vs. ROSE MARCANO, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in for Miami-Dade County. Case No. 08-103-AP. L.C. Case No. 05-16988-CA-25. August 24, 2010. On appeal from a final summary judgment entered by the Miami-Dade County Court, Hon. Andrew Hague. Counsel: Michael J. Neimand, Office of the General Counsel, United Automobile Insurance Company, for Appellant. Gabriel Sanchez, and Virginia M. Best, Lopez & Best, for Appellee.
(Before DONNER, MUIR and REYES, JJ.)
(PER CURIAM.) United Automobile Insurance Company appeals a final summary judgment in favor of the insured, Rose Marcano, on the grounds that the opinion rendered in United Auto. Ins. Co. v. Santa Fe Medical Center, 21 So.3d 60 (Fla. 3DCA 2009), permits the use of an affidavit by Dr. Richard Glatzer to deny benefits, without a physical examination of the insured by Dr. Glatzer.
The appellee (the plaintiff insured) underwent an I.M.E. at the request of United Auto, and the affidavit of Dr. Glatzer is allegedly inconsistent with the IME conducted by Dr. Joel Kallan.
At argument, counsel for the appellee acknowledged that this court must follow United Auto Ins. Co. v. Santa Fe Medical Center, supra; however, counsel submits that the additional ground, among others, that Dr. Glatzer’s affidavit fails to meet standards given in Nowitzke v. State, 572 So. 2d 1346 (Fla. 1990).
In Nowitzke, the Florida Supreme Court held that it is improper to impeach witnesses by eliciting from another witness mere opinions about the other expert, rather than a contrary opinion based on the same facts.
Appellee’s counsel argues that an affirmance is warranted by the “Tipsy Coachman” rule. This court is unable to review the sufficiency of Dr. Glatzer’s affidavit; however, because the affidavit although discussed in the transcript could not be found by the clerk of court and is not a part of the record on appeal.
Accordingly, we reverse the final summary judgment and remand the matter for trial. We deny the appellee’s “request for attorney’s fees.”
Reversed.
