18 Fla. L. Weekly Supp. 19a
Online Reference: FLWSUPP 1801FRED
Insurance — Personal injury protection — Summary judgment — Opposing affidavit — Peer review report and affidavit that contain little more than conclusory statements cannot create genuine issue of material fact in opposition to motion for summary judgment — Rehearing — No abuse of discretion in denying motion for rehearing arguing that insurer had discovered that insured did not disclose previous injury to insurer’s medical expert where trial court found that doctor knew about injury
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. ALL CARE HEALTH & WELLNESS, a/a/o PALILA FREDERIC, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-280 AP & 08-642 AP. Consolidated. L.T. Case No. 06-21284 SP23. October 21, 2010. An appeal from Final Judgment by the County Court of Miami-Dade County. Counsel: Thomas L. Hunker, United Automobile Insurance Company, for Appellant. Marlene S. Reiss, Marlene S. Reiss, P.A., for Appellee.
(Before DIAZ, BUTCHKO and TINKLER MENDEZ, J.J.)
(PER CURIAM.) Palila Fredric injured herself in a car accident on February 10, 2005. Beginning February 18, 2005, she received treatment for those injuries from All Care Health & Wellness. All Care Health submitted bills to Fredric’s Insurer, United Automobile Insurance Company.
Despite demands, United paid nothing to All Care. A complaint was filed and the matter came before the trial court on motion for summary judgment October 23, 2007. All Care submitted the affidavit of the treating doctor and other relevant evidence. Standing alone this established that the treatment was reasonable, related and necessary under PIP law.
In response, United offered the Independent Medical Examination conducted by Dr. Feder, a Peer Review by Dr. Merrit and moved to continue the hearing to allow it to conduct further depositions. At the hearing, All Care chose not to contest the date on which treatment was cut-off by United; All Care accepted April 21, 2005, (the date of Dr. Feder’s IME) as the relevant cut-off date. This left the peer review of Dr. Merrit as the sole basis for contesting the reasonableness, relatedness and necessity of treatment.
All Care offered multiple grounds for rejecting the peer review affidavit of Dr. Merrit. First, All Care argued the peer review should be rejected as Dr. Merrit did not actually examine the patient. On appeal, this ground has been properly abandoned. Second, All Care claims that Dr. Merrit’s affidavit could not suspend benefits in so far as it came after treatment. Finally, All Care claimed the affidavit itself was legally deficient noting that it lacked any foundation, that the findings were conclusory, and that the affidavit failed to establish that Dr. Merrit was qualified to render the statements he made.
In response, United conceded that the affidavit of Dr. Merrit went only to the reasonableness of the charges. However, United argued that a continuance should be granted to allow it to conduct the deposition of the treating doctor. In reviewing the ore tenus motion, the trial court established that an earlier attempt to depose the treating doctor had been canceled by United without explanation, but that the deposition had just reset.
Ultimately, the trial court concluded that the peer review affidavit report was “weak” and “not specific enough.” The court stated, “[I’m] reviewing and thinking about this peer review here. It is legally insufficient. It’s weak, it really is.” The trial court did not enter a continuance but advised United that it was always free to seek a rehearing. Judgment was granted for All Care. United in fact sought rehearing; that motion was denied.
On appeal, United begins with the assertion that the Trial Court errantly refused to consider the peer review report and affidavit of Dr. Merrit. This appears to be false. The court did not strike the report and affidavit; it found them ‘weak’, ‘insufficient’ and not ‘specific enough.’ Such comments reflect the fact that the Trial read, reviewed the affidavit and, after considering it, determined it did not create a genuine issue of material fact.
At no time did the Court express concern that the report failed to meet the requirements set forth in section 627.736, Florida Statutes (2005). Accordingly, this case has nothing to do with the oft cited cases of United Auto. Ins. Co. v. Bermudez, 980 So. 2d 1213 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D1201a]; United Auto. Ins. Co. v. Rodriguez, 808 So. 2d 82 (Fla. 2001) [26 Fla. L. Weekly S747a]; or United Auto. Ins. Co. v. Viles, 726 So. 2d 320 (Fla. 3d DCA 1998) [24 Fla. L. Weekly D14a].
A second red-herring is the assertion that “Plaintiff’s real objection to the affidavit was that the medical record he reviewed were not attached to the affidavit.” The transcript shows that to be but one objection of the Plaintiff and ignores the trial court’s express concern for lack of specificity. In other words, the insufficiency of the affidavit and peer review did not rest on mere technicalities. Cf. Holl v. Talcott, 191 So. 2d 40, 46-47 (Fla. 1966), “[If] it appears that the defects were largely technical and subject to correction. . . [United should have had] the opportunity to supply the deficiencies.”
An examination of the affidavit and peer-review report, in which we indulge United with every inference and benefit of doubt, shows the affidavit and report contain little more than conclusory statements. As such they cannot create genuine issues of material fact. See Heitmeyer v. Sasser, 664 So. 2d 358 (Fla. 4th DCA 1995) [21 Fla. L. Weekly D39a] (Expert’s affidavit deemed insufficient where it amounted to little more than conclusory assertions); see also Valenzuela v. GlobeGround North America, LLC, 18 So. 3d 17 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D1680a]; Valderrama v. Portfolio Recovery Associates, LLC, 972 So. 2d 239, 239 (Fla. 3d DCA 2007) [33 Fla. L. Weekly D28c]. The failings of Dr. Meritt’s affidavit cannot be fixed by technical corrections or the appending of omitted documents. Only a substantive restatement would create a genuine issue of material fact.
United Auto also contends it was error to refuse to grant its motion for re-hearing. That decision is reviewed for abuse of discretion. J.J.K. Intern., v. Shivbaran, 985 So. 2d 66 (Fla. 4th DCA 2008) [33 Fla. L. Weekly D1648a].
United Auto argues as grounds for re-hearing that it had discovered that the injured insured did not accurately report that she had been injured to the testifying physicians. The trial court faced that issue squarely and rejected the contention. In the words of the trial court, “the doctor knew she injured. [Counsel], the Motion is denied.”
In sum, United’s independent medical examiner knew, as of April 21, 2005, that the injured had a recent, potentially related previous injury for which she was receiving treatment. By October 23, 2007, United still had not examined that relationship. The fact that United subsequently discovered additional, equivocal information which related previous injuries did not compel the trial court to conduct a new hearing.
Finding no material issues of fact on the record before us, nor grounds for rehearing, the trial court’s decision is AFFIRMED. (DIAZ, BUTCHKO and TINKLER MENDEZ, JJ., Concur).
