17 Fla. L. Weekly Supp. 1183a
Online Reference: FLWSUPP 1712LEZA
Insurance — Personal injury protection — Coverage — Medical expenses — Expert witness — Error to exclude testimony of peer review doctor on ground that peer review report was invalid because it was obtained post-suit
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. BRENDA LEZAMA, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-297 AP. L.C. Case No. 02-21243 CC 05. September 30, 2010. Appeal from the County Court in and for Miami Dade County, Florida, Hon. Bronwyn C. Miller. Counsel: Michael J Neimand, United Automobile Insurance Company, for Appellant. Ross Bennett Gampel, for Appellee, Brenda Lezama.
(Before JOHNSON, GLAZER, and CABALLERO, J.J.)
Opinion
(PER CURIAM.) The issue presented on appeal is whether the trial court below erred when it granted Appellee, Brenda Lezama’s (hereinafter “Lezama”) motion in limine excluding the testimony of Appellant, United Automobile Insurance Company’s (hereinafter “UAIC”) peer review doctor who disputed whether medical treatment rendered to the Appellee was reasonable and necessary to the injuries sustained pursuant to an accident that occurred back on October 1, 2001. According to UAIC, the failure to allow its expert to testify at trial contributed to the adverse ruling below relative to its position in this case. We hold that the trial court did err in granting the motion in limine excluding the expert testimony and we reverse and remand this case for further proceedings consistent with this opinion.
On appeal, a trial court’s decision regarding the admissibility and scope of expert testimony is reviewed based on an abuse of discretion standard. Parc Royale East Development, Inc. v. U.S. Project Management, Inc., 38 So. 3d 865, 868 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D1422a].
In this case, the trial court below excluded the expert peer review testimony concluding that the corresponding report was invalid since it was obtained post suit. We disagree. A report is not required to be obtained prior to the rejection of the claim when the denial is based on a complete denial of treatment previously rendered rather than the suspension of future payments when some of the previously rendered treatment was already paid. United Automobile Insurance Co. v. Santa Fe Medical Center, 21 So. 3d 60, 64-5 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2051b]. Because UAIC was not time limited to challenge the reasonableness or the necessity of treatment rendered, the lower court abused its discretion in excluding the expert testimony from the peer review report.
Lezama, on appeal, does not argue the merits of whether the trial court abused its discretion in excluding the disputed peer review report, but rather attempts to make the argument that UAIC’s appeal issue is not sufficiently preserved for appellate review. We again respectfully disagree. We find the record properly indicates the substance of the report was sufficiently communicated both in the motion in limine and in the hearing transcript during the argument on the motion in limine. United Automobile Ins. Co. v. Eduardo J. Garrido, D.C., P.A., 22 So. 3d 120, 122 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2174a].
Finally, still outstanding is Lezama’s Motion for Attorneys Fees and Costs. That motion is hereby DENIED.
REVERSED and REMANDED.
