17 Fla. L. Weekly Supp. 1189a
Online Reference: FLWSUPP 1712KINGInsurance — Personal injury protection — Summary judgment — Opposing affidavit — Sufficiency — Error to fail to consider peer review report filed in opposition to motion for summary judgment on ground that report was not factually supported by independent medical examination — No error in prohibiting insurer’s records custodian from testifying on late billing issue where no predicate was laid for custodian’s testimony, and her affidavit stating that her review of file revealed that medical provider’s bills were postmarked more than 75 days after first date of treatment did not address whether bills were included in earlier mailing and did not refute testimony of provider’s records custodian that she sent bills in that earlier mailing — Discovery — Depositions — Expert witness fees — In absence of transcript of treating physician’s deposition, appellate court cannot determine whether insurer asked for facts or opinions from physician and must affirm award of expert witness fees for deposition testimony
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. FRIEDMAN CHIROPRACTIC CENTER, P.A., a/a/o WAYNE KING, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-469 AP and 09-154 AP (CONSOLIDATED). L.C. Case No. 06-02984 SP 26 (04). August 4, 2010. An Appeal from the County Court of Miami-Dade County. Counsel: Michael J. Neimand, Office of the General Counsel, United Automobile Insurance Company, for Appellant. Marlene S. Reiss, P.A., for Appellee.
(Before PEDRO P. ECHARTE, JR., SCOTT J. SILVERMAN, and PETER ADRIEN, JJ.)
(SILVERMAN, Judge.) Claimant Wayne King was involved in an automobile accident on October 15, 2005, and was covered by Appellant United Automobile Insurance Company (“United Auto” or insurer) for personal injury protection (“PIP”) benefits. He sought medical treatment from Appellee Friedman Chiropractic Center (“Friedman” or the provider), to which he assigned his benefits.
On June 7, 2006, the provider filed a complaint against the insurer for breach of contract for nonpayment of the PIP benefits. The insurer’s answer denied the treatment provided was reasonable, related and necessary (“RRN”) and raised the affirmative defense of late billing.
When the insurer attempted to depose King’s treating physician, Dr. Garry Friedman, it filed a motion to determine entitlement to expert witness fees. The insurer contended the witness was a fact witness, and not an expert witness, and therefore was not entitled to expert witness fees. However, the trial court, over the insurer’s objection, awarded Dr. Friedman a fee of $350/hour.
On June 9, 2008, the provider moved for summary judgment, arguing that all treatment was RRN, relying on an affidavit provided by Dr. Friedman. The insurer, in opposition, filed the affidavit and peer review report of Dr. Shulman, who concluded the treatment rendered had not been RRN.
On July 3, 2008, the trial court held a hearing on the provider’s summary judgment motion. The trial court judge concluded that Dr. Shulman’s peer review report was not a valid report because it was not based on an Independent Medical Examination (an “IME”) and therefore should not be considered in opposition to the summary judgment motion. The trial court agreed and granted the motion as to RRN.
The provider’s motion for summary judgment also encompassed the issue of the insurer’s late billing defense. The provider supported its motion with the affidavit of its records custodian, who testified that the provider had sent out bills in the amount of $5,250.00. In opposition, the insurer filed the affidavit of its records custodian, who testified that the bills were received more than 75 days after the first date of treatment. At the summary judgment hearing on July 3, 2008, the trial court held that the testimony of the insurer’s records custodian was inadmissible hearsay because she did not have personal knowledge of the matter. As such, the trial court granted the provider’s motion for summary judgment as to this issue as well. United Auto moved for rehearing but the trial court denied the motion. On September 16, 2008, final judgment was entered and the insurer timely appealed.
The issue before this Court is whether the trial court erred in entering summary judgment for the provider. We conclude that it did, although we find that the trial court ruled correctly on some of the issues on appeal.
The first issue United Auto argues in this appeal is that the trial court erred in not considering the affidavit of its medical expert in response to the provider’s motion for summary judgment as to RRN. United Auto is correct; the affidavit should have been considered at the summary judgment hearing. 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 should be reversed for failing to consider United Auto’s expert’s report.
The second issue United Auto argues in support of its appeal is that the trial court erred in granting the provider’s motion for summary judgment as to the late billing issue. Specifically, the insurer contends that the trial court’s error was in prohibiting the insurer’s records custodian, Dulce Munoz, from testifying because the trial court asserted that she did not have personal knowledge of the contents of the insured’s claim file, as she was the third adjustor assigned to the file. Yet, Ms. Munoz did not know what was in the package that United Auto received on February 21, 2006. She could only testify that, based upon her review of the file, the claimant’s bills were postmarked March 28, 2006 (which was more than 75 days after the first date of treatment). That testimony does not address whether or not United Auto had received the provider’s bills for the claimant in its February 16, 2006 package. As such, Ms. Munoz’s affidavit did not refute the deposition testimony of the provider’s billing and records custodian, Ms. Aponte, who testified that she sent the claimant’s bills to United Auto, along with a cover letter, on February 16, 2006.
Under the business records exception to the hearsay rule, Ms. Munoz, the records custodian, should have been competent to testify as to the contents of the insurer’s files. See §90.803(6)(a), Fla. Stat.(2003); Mann v. State, 787 So. 2d 130, 135 (Fla. 3d DCA 2001) [26 Fla. L. Weekly D1072a] (“in order to lay a foundation for the business record exception . . . it is not necessary to call the person who actually prepared the document. The records custodian or any qualified witness who has the requisite knowledge to testify as to how the record was made can lay the necessary foundation.”). But, under Fla. R. Civ. P. 1.510, affidavits in support of motions for summary judgment must be based on personal knowledge, must state admissible facts, and must affirmatively show that the affiant is competent to testify as to the matters being related in the affidavit. See also Burley v. Gelco Corp., 976 So. 2d 97 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D631a].
Here, however, there was no predicate laid for the admission of Ms. Munoz’ testimony. Her affidavit also did not refute the testimony of the provider’s billing and records custodian. Therefore the trial court was correct in not considering her testimony to be competent. As such, summary judgment for the provider on the issue of late billing was appropriate.
Thirdly, United Auto contends that the trial court erred when it required the insurer to pay an expert witness fee to take the deposition of the claimant’s treating physician. Florida Rules of Civil Procedure 1.280(4) and 1.390(c) authorize expert witness fees for those witnesses who acquire or develop knowledge “in anticipation of litigation or for trial”. But, generally, treating physicians do not obtain their information for the purpose of litigation, but rather in the course of making their patients well. As such, they are treated as ordinary fact witnesses and are not entitled to charge expert witness fees. See Engle v. Rigot, 434 So. 2d 954, 957 (Fla. 3d DCA 1983) (holding that a dentist’s subpoenas were erroneously quashed for not being accompanied by expert witness fees); Ryder Truck Rental, Inc. v. Perez, 715 So. 2d 289, 290 (Fla. 3d DCA 1998) [23 Fla. L. Weekly D1400a] (injured motorist’s treating physicians should not have been classified as expert witnesses in her negligence action, but as ordinary fact witnesses); Frantz v. Golebiewski, 407 So. 2d 283, 285 (Fla. 3d DCA 1981) (a treating doctor, while unquestionably an expert, does not acquire her knowledge for the purpose of litigation but rather simply in the course of attempting to make her patient well); and Fittipaldi USA, Inc. v. Castroneves, 905 So. 2d 182, 186 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D867a] (treating physicians are not subject to discovery rules governing expert witnesses because they did not acquire their expert knowledge for the purpose of litigation, but rather simply in the course of attempting to make their patients well).
However, a physician witness can be both simultaneously an expert and a fact witness, depending on the questions asked. Here, whether Dr. Friedman was treated as a fact witness or as an expert witness necessarily turns on the nature of the questions asked at deposition. Unfortunately, United Auto has failed to provide any deposition transcript on appeal, so this Court has no way of determining exactly what his deposition testimony may have been, and whether it asked for facts or opinions from the witness. This Court therefore concludes that it must affirm the trial court’s ruling on the expert fees issue, as there is no deposition transcript to review, and the Appellant failed to demonstrate any error on the part of the trial court. See Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979).
In sum, we reverse in part and affirm in part the trial court’s grant of summary judgment for the medical provider. We deny the Appellee provider’s motion for appellate attorney’s fees because it did not prevail on the significant issue in the case. See §627.428(1), Fla. Stat. (1982), and Fla. R. App. P. 9.400. (ECHARTE and ADRIEN, JJ., concur.)
