17 Fla. L. Weekly Supp. 248b
Online Reference: FLWSUPP 1704GON2
Insurance — Personal injury protection — Coverage — Reasonable, related and necessary services — Summary judgment — In entering summary judgment in favor of medical provider on issue of reasonableness, relatedness and necessity of services, trial court erred in declining to consider peer review because it was not based on independent medical examination — Where insurer failed to argue to trial court that medical provider’s affidavit did not establish that accident occurred, insurer failed to preserve issue for appeal
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. ISOT MEDICAL CENTER, CORP., a/a/o IVIS GONZALEZ, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-250 AP. L.C. Case No. 08-2621 CC 26. January 13, 2010. On appeal from a final judgment rendered by the Miami-Dade County Court, Hon. Gloria Gonzalez-Meyer. Counsel: Michael J. Neimand, United Automobile Insurance Company, Office of the General Counsel, for Appellant. Martin I. Berger of Samole, Berger & Hicks, P.A., for Appellee.
(Before ARECES, SCHLESINGER, and MANNO SCHURR, JJ.)
(PER CURIAM.) United Automobile Insurance Company (“insurer”) argues two points on appeal: (1) the county court erred by granting summary judgment for ISOT Medical Center, Corp. (“medical provider”) regarding reasonableness, relatedness, and medical necessity where the medical provider’s affidavit did not establish that an accident occurred, and (2) the lower court improperly granted summary judgment for the medical provider regarding reasonableness, relatedness, and medical necessity where the lower court declined to consider the insurer’s peer review because the peer review was not based on an independent medical examination.
The medical provider confesses error based upon United Auto. Ins. Co. v. Santa Fe Medical Center, 34 Fla. L. Weekly D2051 (Fla. 3d DCA 2009) (en banc) and moves us to remand this matter to the trial court for further proceedings. Santa Fe relates to the insurer’s second issue on appeal. The insurer does not oppose the medical provider’s confession as to the second issue on appeal. Therefore, we reverse the final judgment and summary judgment as to the second issue on appeal.
The medical provider’s confession of error relates to the second issue on appeal. The confession does not address the insurer’s first issue on appeal. In its first issue, the insurer argued that the medical provider failed to establish that an automobile accident occurred where the treating physician averred that “the injuries were caused by an accident,” but he never averred that injuries from the accident proved “relevant to his diagnosis and treatment.” The insurer submitted no document demonstrating that it abandoned its first issue on appeal. Because the medical provider did not confess error as to the insurer’s first appellate issue and the insurer submitted no document demonstrating intent to abandon the first issue, we conclude that the medical provider did not confess error as to the first issue on appeal. Therefore, the first issue on appeal remains pending before us.
Upon further review, we recognized that the insurer did not preserve the first issue on appeal for appellate review. “A general rule of appellate review, based on practical necessity and fairness to the opposing party and the trial judge, bars from appeal issues not timely raised below.” United Auto. Ins. Co. v. Open Magnetic Imaging, Inc., 15 Fla. L. Weekly Supp. 219a (Fla. 1 1th Cir. Ct. Jan. 2, 2008). The insurer did not submit its opposition to the medical provider’s summary judgment motion in the appellate record. “[I]t is the responsibility and duty of the appellant to provide the appellate court with a record sufficient to review the matter assigned as error.” Nemeth v. De Lauega, 354 So. 2d at 418 (Fla. 3d DCA 1978). Also, during the summary judgment hearing, the insurer made no argument regarding whether the medical provider’s affidavit established that an accident occurred or that the treating physician failed to aver that the accident injuries proved relevant to his diagnosis and treatment. We find that this appellate record does not demonstrate that the insurer argued its first issue on appeal before the trial court; therefore, we may not consider the issue here. Because the insurer failed to preserve its first issue for appellate review and the medical provider confessed error as to the second issue on appeal, we conclude that the insurer’s initial brief no longer demonstrates a “preliminary basis for reversal.” Fla. R. App. P. 9.315(a)1. Therefore, we summarily affirm the summary judgment as to the insurer’s first issue on appeal, without the medical provider submitting an answer brief, pursuant to Florida Rule of Appellate Procedure 9.315(a). See Nemeth, 354 So. 2d at 418 (“For failure of the appellant to include in the record on appeal the essential photographs which form in part the basis for the summary judgment herein, we have no alternative but to affirm the judgment below”).
Affirmed as to the first issue on appeal, reversed as to the second issue on appeal due to the confession of error, and remanded.
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1Summary affirmance.
