18 Fla. L. Weekly Supp. 634a
Online Reference: FLWSUPP 1808SOTO
Insurance — Personal injury protection — Coverage — Reasonable and related treatment — No error in excluding testimony of peer review physician on issue of reasonableness of charges and relatedness of treatment where peer review directly contradicted deposition testimony of insurer’s litigation adjuster admitting that treatment was related and that charges were below usual and customary charges, and insurer has failed to show credible explanation for discrepancy in record or peer review — Providing explanation for contradiction for first time on appeal does not demonstrate reversible error by trial judge
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida Corporation, Appellant, v. NIUVIS SOTOMAYOR, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-336 AP & 10-020 AP. L.C. Case No. 06-00349 CC 05. April 18, 2011. An Appeal from a decision rendered by the Miami-Dade County Court, Bronwyn Miller, Judge. Counsel: Thomas L. Hunker, Office of the General Counsel, United Automobile Insurance Company, for Appellant. Virginia M. Best, for Appellee.
(Before, ZABEL, HIRSCH and ARZOLA, JJ.)
(ARZOLA, Judge.) Appellee/Plaintiff, Niuvis Sotomayor (“Sotomayor”) sued Appellant/Defendant, United Automobile Insurance Company (“United”) for personal injury protection (“PIP”) insurance benefits. Prior to trial, the lower court granted Sotomayor’s Motion in Limine and prevented United from calling Dr. David Goldberg, M.D., as an expert witness to testify as to the reasonableness, relatedness and medical necessity of the medical bills based on his peer review. The lower court also rejected United’s Disclosure & Acknowledgement (“D & A”) defense, finding that diagnostic providers were not required to submit D & A forms. United raised two grounds on appeal: (1) that the trial court erred in excluding United’s peer review on the grounds that it was not supported by an independent medical examination (IME) as well as obtained after the lawsuit was filed; and, (2) that the trial court erred in ruling that the diagnostic provider was not required to submit a D & A form. The latter ground for appeal was withdrawn by United in its Reply Brief. Therefore, the only issue left for this appellate panel to consider is whether the trial court erred in preventing Dr. Goldberg from testifying based on his peer review.
In her answer brief, Sotomayor concedes that under United Auto Ins. Co. v. Santa Fe Medical Center, 21 So. 3d 60 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2051b], and United Auto Ins. Co. v. Metro Injury & Rehab Center, 16 So. 3d 897 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D1516a], the trial court erred in excluding Dr. Goldberg’s peer review as it relates to “medical necessity” on the grounds that it was not supported by an IME, and that it was obtained after the lawsuit was filed.1 However, Sotomayor argues that the “trial court properly excluded Dr. Goldberg from testifying as to reasonableness of the medical charges and relatedness of the medical treatment because United’s litigation adjuster admitted that the medical treatment was related and said explicitly that it was not an issue and that all charges were below usual and customary.”
Sotomayor asserts that the peer review of Dr. Goldberg directly contradicted the deposition testimony of the litigation adjuster, and was correctly stricken by the trial judge. See Ellison v. Anderson, 74 So. 2d 680 (Fla. 1954). United counters by noting that the Ellison rule does not apply when a credible explanation is provided for the discrepancy between the earlier and later opinions. See Futch v. Wal-Mart Stores, 988 So. 2d 687 (Fla. 1st DCA 2008) [33 Fla. L. Weekly D1893a]; Croft v. York, 244 So. 2d 161(Fla. 1st DCA 1971). If such a credible explanation is made, the Ellison exclusionary rule is not applicable and the affidavit may be considered by the court. Futch, 988 So.2d at 691 (citing to Croft, 244 So. 2d at 165). The credible explanation must either appear in the affidavit or be supported by the record. Cary v. Keene Corp., 472 So. 2d 851, 853 (Fla. 1st DCA 1985).
It is well established that the decision of a trial court comes to the appellate court with a presumption of correctness, and the burden is on the appellant to demonstrate error. Applegate v. Barnett Bank, 377 So. 2d 1150, 1152 (Fla. 1979). Specifically, it is the burden of the appellant to bring before the appellate court a proper record adequate to support his appeal. Seal Products v. Mansfield, 705 So. 2d 973, 975 (Fla. 3d DCA 1998) [23 Fla. L. Weekly D319a]; Wright v. Wright, 431 So. 2d 177, 178 (Fla. 5th DCA 1983). If the record brought forth by the appellant is inadequate to demonstrate reversible error, the trial court must be affirmed. Applegate, 377 So. 2d at 1152.
United has failed to carry its burden in this case. Neither the record on appeal, nor the report of Dr. Goldberg provide a credible explanation for the discrepancy between the adjuster’s deposition testimony and the Doctor’s peer review. The trial transcript dated April 22, 2009, is devoid of any explanation, credible or not, as to the reason for the discrepancy. Counsel for the Appellant had an opportunity to provide the trial judge with a credible explanation and failed to do so. As a result, the trial judge stated as follows, “[w]ell, I think you are out of luck on reasonable and relatedness. I think you are bound by your corporate rep.” Trial Transcript, April 22, 2009, p. 23. In its Reply Brief, counsel for United attempts to provide this appellate panel with a credible explanation. However, the time to provide such an explanation was at the trial level so that this panel could adequately determine if reversible error was committed by the trial judge. Providing the explanation for the first time on appeal does nothing to help the appellant carry its burden of providing an adequate record to demonstrate reversible error.
The cases cited by United in its Reply Brief are distinguishable because, unlike here, in both cases the credible explanation was specifically set forth in the affidavits in question. See Croft, 244 So.2d at 165 (credible explanation found in a later filed affidavit where the affiant averred that since giving his deposition he had made further study, had carefully reviewed in his mind the facts and circumstances of the case, and changed his opinion as a result of such reconsideration); Futch, 988 So.2d at 691 (credible explanation for discrepancy between deposition and later filed affidavit found where affiant explained in her affidavit that she misunderstood a word during her deposition).
Because United has failed to show that a credible explanation for the discrepancy between the adjustor’s deposition and Dr. Goldberg’s peer review is supported by either the peer review or the record, the lower court’s decision granting summary judgment on the issues of reasonableness and relatedness must be AFFIRMED. As conceded by Sotomayor, the trial court’s final judgment is REVERSED solely on the issue of medical necessity.
Sotomayor seeks attorney’s fees pursuant to sections 627.736 and 627.428 of the Florida Statutes. Sotomayor has not prevailed on the appellate issue involving medical necessity. However, this Court has found that Sotomayor has prevailed on the D & A form issue and the reasonableness and relatedness issues. Accordingly, we find that if Sotomayor prevails on the underlying PIP claim at the trial court level, she is entitled to recover a portion of her appellate attorney’s fees with regard to the D & A form issue, and the reasonableness/relatedness issue. See Folta v. Bolton, 493 So. 2d 440, 442 (Fla. 1986) (in a multicount action, where each claim is separate and distinct and would support an independent action, as opposed to being an alternative theory of liability for the same wrong, the prevailing party on each distinct claim is entitled to an award of attorney’s fees for those fees generated in connection with that claim”); Zaremba v. Klinger Fla. Co., 550 So. 2d 1131 (Fla. 3d DCA 1989) (plaintiffs were the prevailing parties on only one count of their nine-count complaint, and, under the circumstances of the case, were entitled to appellate attorney’s fees generated only in connection with that one count); Great Southwest Fire Ins. Co. v. DeWitt, 458 So. 2d 398 (Fla. 1st DCA 1984) (appellee entitled to a portion of appellate fees for partial recovery on the underlying case below).
WE REVERSE the lower court’s order awarding Sotomayor’s attorney’s fees and costs. Where a final judgment is no longer enforceable, an attorney fee award in the lower court, based on that judgment is likewise not enforceable. See Nevarez v. Friskney, 819 So. 2d 992, 993 (Fla. 5th DCA 2002) [27 Fla. L. Weekly D1506a]; Marty v. Bainter, 727 So. 2d 1124, 1125 (Fla. 1st DCA 1999) [24 Fla. L. Weekly D695a].
Therefore, this matter is REVERSED in part, AFFIRMED in part, and REMANDED to the trial court with the direction that it conduct the necessary proceedings consistent with this opinion.
__________________
1Both sides and this appellate panel agree that the trial court ruled properly below based on the controlling law at the time that Dr. Goldberg’s testimony was excluded. Both the Santa Fe and Metro Injury decisions were issued after the trial court’s ruling in this case.
