18 Fla. L. Weekly Supp. 352a
Online Reference: FLWSUPP 1804MOLI
Insurance — Personal injury protection — Evidence — Business records — No abuse of discretion in preventing insurer’s litigation adjuster from testifying based on business records contained in claims file where adjuster was not qualified to testify as records custodian, and insurer was unable to avail itself of offered opportunity for continuance to secure testimony of records custodian — Examination under oath — No error in directing verdict in favor of medical provider on EUO-No Show defense where insurer failed to present any evidence that insured failed to attend EUO or that EUO was even requested — Notice of loss — Disclosure and acknowledgment form — No error in directing verdict in provider’s favor on issue of sufficiency of D&A form where form was identical to statutory form except for insertion of provider’s letterhead
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida Corporation, Appellant, vs. HIALEAH DIAGNOSTIC, INC., a/a/o MINERVA MOLINA, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Dade County. Case No. 09-075 AP. L.T. Case No. 07-003693 CC 25. February 7, 2011. On appeal from the County Court for Miami-Dade County. Counsel: Thomas L. Hunker, for Appellant. Arnold R. Ginsberg, and Jon R. Friedland, for Appellee.
(Before ADRIEN, MANNO SCHURR, SANCHEZ-LLORENS, JJ.) Appellant, United Automobile Insurance Company (UAIC), appeals from the trial court’s entry of a final judgment for the Appellee, Hialeah Diagnostic, Inc. (HDI). The underlying facts are as follows: HDI sued UAIC for personal injury protection (PIP) automobile insurance benefits based on treatment allegedly rendered to Minerva Molina. In allegations nine and ten of its complaint, HDI alleged: (1) that it provided UAIC with notice of a covered loss; (2) that it performed all conditions precedent to receiving benefits under Molina’s PIP policy; and (3) that its bills were reasonable, related and necessary (RRN). UAIC argued (1) that HDI did not provide notice of a covered loss because it did not provide a proper disclosure and acknowledgment (D&A) form with the initial set of bills; (2) that all conditions precedent were not performed because Molina failed to attend her examination under oath (EUO); and (3) that HDI’ s bills were not RRN.
At trial, UAIC called its claims adjuster, John O’Hara, who was designated on its witness list as UAIC’s corporate representative and litigation adjuster. Mr. O’Hara testified that he was the litigation adjuster, that he had no personal knowledge of any of the underlying facts in the case before litigation commenced and that the procedure utilized in his office is that after litigation commences, copies of the actual file or documents are printed by another department and handed to him. He further testified that he was not involved in the maintaining, the creating, or the preparation of any of the documents used in this case. As a result, the court did not allow the witness to testify as the records custodian or regarding any of the documents relied upon absent a proper predicate being laid as to the business records. UAIC failed to list a records custodian on its witness list. The court tried to fashion another remedy so that UAIC could call another witness from its records department to lay the proper foundation but this attempt turned out to be futile. As a result the witness was not allowed to testify from the documents.
After both sides rested, the lower court found that the D&A form that was used was in substantial compliance with the form created by the Office of Insurance Regulation and was sufficient to place UAIC on notice as to what treatment was provided. Specifically, the court stated “the doctor testified that he explained that the three treatments she received; he called treatments, one was the comprehensive evaluation and the other two were Hydro something, basically, heat pack and electric stimulation. They were explained to the patient but it was the codes that were put on the form and that the form was the same statutory form only the name at the top was changed to their letterhead. That’s the uncontroverted testimony. . . It is signed by the patient, signed by the doctor dated and we’ve seen this over and over again. . .Based on the testimony that the court has heard that the patient was explained the treatment and exam she received that day, the treatment and the exam in the CPT codes is consistent with the HCFA forms that are attached, I will grant the Motion for Directed Verdict as to the D&A form. . . As to the EUO no show, there is no evidence before the court of the finder of fact that could possibly find that there was an EUO, to find in favor of the Defendant on an EUO defense. So I find in favor of the Plaintiff on the EUO and grant a Directed Verdict on the EUO defense.” This appeal follows.
On appeal, UAIC raises three (3) issues:
I. The trial court erred in preventing UAIC’s insurance adjuster from testifying based on the business records contained in the claims file.
II. The trial court erred in denying UAIC’s motion for directed verdict on the issue of EUO no-show and in granting HDI’s motion for directed verdict on EUO no show.
III. The trial court erred in entering a directed verdict on the issue of HDI’s failure to send a proper D&A form.
On the first issue presented, regarding the ability of the witness to testify as a records custodian, this issue is an evidentiary ruling, which must be reviewed on appeal using an abuse of discretion standard. Florida law is clear,
“In order to prove a fact of evidence of usual business practices, it must first be established that the witness is either in charge of the activity constituting usual business practice or is well enough acquainted with the activity to give the testimony. . .” Speciality Linings, Inc. v. The B.F. Goodrich Company, 532 So.2d 1121 (Fla. App. 2d 1988).
After an extensive voir dire of Mr. O’Hara, herein, in which he stated that that he was the litigation adjuster, that he had no personal knowledge of any of the underlying facts in the case before litigation commenced and that the procedure utilized in his office is that after litigation commences, copies of the actual file or documents are printed by another department and handed to him, that he was not involved in the maintaining, the creating, or the preparation of any of the documents used in this case, the court made a determination that Mr. O’Hara was not qualified to testify as the records custodian and that he was not well enough acquainted with the activity to give this testimony. There is no evidence herein that the court required UAIC to call witnesses from each department, contrary to UAIC’s assertions. As a matter of fact the court tried to fashion a remedy to allow UAIC to present its evidence by continuing the hearing for the next day so that UAIC could bring another witness from its office to testify as the records custodian, however, UAIC was unable to avail itself of that opportunity. Given this fact and the fact that O’Hara was not listed to testify in this capacity on UAIC’s witness list, this court does not find any abuse of discretion by the lower court.
The standard review on motions for directed verdict is de novo. Health Options Inc., v. Palmetto Pathology Services, P.A., 983 So.2d 608, 613 (Fla 3d DCA 2008) [33 Fla. L. Weekly D1044a]. Regarding the second issue of failure to submit to a EUO, the trial court was clear in its findings that UAIC failed to present any evidence, which would have shown that Ms. Molina did not submit to a EUO or that one was even requested. After both sides had rested said evidence was lacking and UAIC was not able to establish that this was an issue. The policy states as follows:
‘As a condition precedent to receiving personal injury protection benefits, ‘you’ must cooperate with ‘us’ in the investigation, settlement or defense of any claim or suit, including submitting to examination under oath by any person named by ‘us’ when or as often as ‘we’ may reasonable require at a place designated by ‘us’ within a reasonable time after ‘we’ are notified of the claim.”
Thus an insurer does not have to request that an insured attend a EUO in every case and when they are requesting one they need to put the insured on notice of same. The requirement to submit to a EUO is not jurisdictional but can be an affirmative defense if properly pled. If so pled, then it is incumbent on the defense to prove that it was requested and that it did not occur, which UAIC failed to do herein. Therefore there was no issue of fact to be resolved. Thus the court properly granted a directed verdict in favor of HDI as to this issue.
Regarding the third issue raised on appeal, the issue of the D&A form, this issue was not raised down below as a basis for UAIC’s request for a directed verdict and therefore will not be considered on appeal. Spann v. State, 857 So.2d 845 (Fla. 2003) [28 Fla. L. Weekly S784a]. Furthermore, the lower court made a finding that the form submitted was in substantial compliance with the statute. The court stated that the form was the same except for the fact that they (HDI) added their letterhead on the top of the form. Once the threshold requirements of Section 627.736(5)(e)(5) are met the form should be allowed. King v. United Auto Ins. Co., 15 Fla. L. Weekly Supp. 430a (Fla. 11th Circuit Appellate 2008), Petition for Certiorari filed 3D08-2725 (Fla. 3rd DCA October 29, 2008). . .” Thus the court properly granted a directed verdict in HDI’s favor because there were no issues of fact remaining before the court to be determined.
Accordingly, the lower tribunal’s order is hereby Affirmed.
