17 Fla. L. Weekly Supp. 78a
Online Reference: FLWSUPP 1702TEJA
Insurance — Personal injury protection — Summary judgment — Opposing affidavit — Error to strike affidavit of physician that demonstrated personal knowledge, admissible facts and competence to testify — Error to exclude peer review report where reporting physician indicated that he reviewed the notes of four chiropractors and the examination notes from two medical doctors — Error to enter summary judgment in favor of insured where affidavits presented genuine factual disputes regarding damages and reasonableness, necessity and relatedness of medical treatment — Appellate court declines to review partial summary judgment order regarding demand notice where notice of appeal indicates that insurer was appealing final summary judgment for medical benefits, and partial summary judgment was not attached to notice
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. MARIA TEJADA, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-284 AP. L.T. Case No. 05-19158 CC 05. October 6, 2009. On appeal from a final summary judgment rendered by the Miami-Dade County Court, Hon. Bronwyn C. Miller. Ivy R. Ginsberg, United Automobile Insurance Company, Office of the General Counsel, for Appellant. Virginia M. Best, Lopez & Best, for Appellee.
Cert. granted based on confession of error; remanded. 35 Fla. L. Weekly D1454e (United Auto Ins. Co. v. Tejada, 3D09-3410, 6-30-2010).
OPINION ON REMAND PUBLISHED AT 18 Fla. L. Weekly Supp. 353a.
(Before SOTO, SAYFIE, and CUETO, JJ.)
(PER CURIAM.) Maria Tejada (“insured”) filed a complaint against United Automobile Insurance Company (“insurer”). The insured claims that she suffered damages because the insurer breached the contract by declining to pay her medical expenses. The insured moved for partial summary judgment regarding her medical care’s reasonability, necessity, and relatedness. In opposition to summary judgment, the insurer filed its medical expert’s (Dr. Peter Millheiser)
affidavit and peer review report. The county court struck the medical expert’s peer review report and affidavit from summary judgment evidence and granted final summary judgment for the insured.
We review a summary judgment order de novo. Quality Med. Group, Inc. v. United Auto. Ins. Co., 16 Fla. L. Weekly Supp. 821a (Fla. 11th Cir. Ct. July 8, 2009). Trial courts may not grant summary judgment “unless the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, conclusively show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Romero v. All Claims Ins. Repairs, Inc., 698 So. 2d 605, 606 (Fla. 3d DCA 1997).
Because the trial court struck an affidavit from summary judgment evidence, we first consider whether the Millheiser affidavit complies with Florida Rule of Civil Procedure 1.510(e)1. Rule 1.510(e) requires that summary judgment affidavits “must be made on personal knowledge, state admissible facts and affirmatively show that the affiant is competent to testify as to the matters being related in the affidavit.” Alvarez v. Florida Ins. Guar. Ass’n, Inc., 661 So. 2d 1230, 1232 (Fla. 3d DCA 1995). Regarding personal knowledge, Dr. Millheiser identified the “examination report,” averred that he performed “a records review of the medical treatment, and that he has “personal knowledge concerning the issues, facts, and opinions.” Regarding competence to testify, Dr. Millheiser averred that he is “a licensed2 medical doctor in good standing in the State of Florida,” and that he specializes in orthopedic surgery.
Regarding admissible facts, the trial court may admit Dr. Millheiser’s expert opinion into summary judgment evidence, pursuant to § 90.702, Fla. Stat. (2009), as long as he bases his medical opinion upon “methodology, literature, or studies” and not only his “testimony itself.” Brito v. County of Palm Beach, 753 So. 2d 109, 114 (Fla. 4th DCA 1998). In his affidavit, Dr. Millheiser opined about treatment he considered unreasonable, unnecessary, and unrelated to the accident. He averred that he “reviewed medical records concerning the medical treatment of Maria Tejada,” including the accident report, notes, two chiropractic evaluations, and Dr. Salado’s orthopedic evaluation. His averment relied upon his reviewing medical documents and not solely upon his opinion testimony. His opinion complies with Florida Statute § 90.702 and becomes admissible as summary judgment evidence.
Dr. Millheiser’s affidavit demonstrates personal knowledge, admissible facts, and competence to testify. His affidavit complies with Rule 1.510(e). We conclude that the trial court improperly struck the Millheiser affidavit from summary judgment evidence.
The trial court also struck Dr. Millheiser’s peer review report. “[I]n order to constitute a ‘valid report’ under section 627.736(7)(a), 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.” United Auto. Ins. Co. v. Metro Injury & Rehab Center, 34 Fla. L. Weekly D1516 (Fla. 3d DCA July 29, 2009) (emphasis added).3 See United Auto. Ins. Co. v. Bermudez, 980 So. 2d 1213, 1215 (Fla. 3d DCA 2008). In his peer review report, Dr. Millheiser stated that he reviewed four (4) chiropractors’ notes. He also reviewed the examination notes from two medical doctors. Thus the peer review report complies with Metro Injury‘srequirement that the peer review physician consider the “examination and treatment records of the insured.” 34 Fla. L. Weekly D1516. We conclude that the county court erred by excluding the peer review report from summary judgment evidence.
Having determined that the trial court mistakenly excluded the Millheiser affidavit and peer review report, we consider whether a material factual dispute prevents summary judgment for the insured. The insured’s complaint alleged breach of an insurance contract. A breach of contract action must establish the following elements: 1) a valid contract, 2) a material breach, and 3) damages. Sulkin, M.D. v. All Florida Pain Mgmt., Inc., 932 So. 2d 485, 486 (Fla. 4th DCA 2006). We reviewed the Salado and Millheiser affidavits de novo and conclude that they present a genuine factual dispute regarding the medical care’s reasonability, necessity, and relatedness. This factual dispute precludes summary judgment on the material breach element. We also considered the Velazquez and Vargas affidavits, which present a factual dispute regarding damages. Because we found factual disputes precluding summary judgment, we reverse the May 28, 2008 final summary judgment.
Regarding the August 17, 2007 partial summary judgment on the demand letter, the instant notice of appeal designates that the insurer appeals the May 28, 2008 “Final [Summary] Judgment for medical benefits” and attached the final summary judgment to the notice of appeal. The insurer did not attach the August 17, 2007 partial summary judgment order, regarding the demand letter, to the notice of appeal. A notice of appeal shall contain “the nature of the order to be reviewed,” and“a conformed copy of the order or orders designated in the notice of appeal shall be attached to the notice.” Fla. R. App. P. 9.110(d) (emphasis added). “The general test for sufficiency of a notice of appeal is whether the notice of appeal gives sufficient information to determine, with a reasonable degree of certainty, the order being appealed.” Cobb v. St. Joseph’s Hosp., Inc., 550 So. 2d 1, 2 (Fla. 2d DCA 1989) (emphasis added). We find that the instant notice of appeal failed to provide sufficient information that the insurer intended to appeal the August 17, 2007 partial summary judgment order. We decline to review the August 17, 2007 partial summary judgment order, resolving the demand letter issue, as this order does not properly appear before us. See Martinez v. Rodriguez, 927 So. 2d 93, 95 (Fla. 3d DCA 2006).
Regarding Florida Statute § 627.428(1) trial court attorney’s fees, the appellate record does not indicate that the county court rendered an order resolving the motion for trial court attorney’s fees. Also, the final summary judgment did not award trial court attorney’s fees. We limit our review to the appellate record. Carrillo v. Optimo, Inc., 3 Fla. L. Weekly Supp. 571a (Fla. 11th Cir. Ct. Dec. 29, 1995). We lack jurisdiction to review orders which the lower tribunal did not render. Morgan v. State, 994 So. 2d 454 (Fla. 3d DCA 2008); Rivera v. Dade County, 485 So. 2d 17 (Fla. 3d DCA 1986). Thus, we may not address the insurer’s argument regarding trial court attorney’s fees.
FINAL SUMMARY JUDGMENT REVERSED; REVIEW DENIED FOR THE AUGUST 17, 2007 PARTIAL SUMMARY JUDGMENT ORDER; REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.
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1Form of Affidavits; Further Testimony.
2See § 627.736(7)(a), Fla. Stat. (2005) (stating that “[a]n insurer may not withdraw payment of a treating physician without the consent of the insured person covered by the personal injury protection, unless the insurer first obtains a valid report by a Florida physician licensed under the same chapter as the treating physician whose treatment authorization is sought to be withdrawn, stating that the treatment was not reasonable, related, or necessary”) (emphasis added).
3The Third District Court of Appeal currently reviews a rehearing motion filed on August 12, 2009; thus, it did not yet mandate this case.
