18 Fla. L. Weekly Supp. 345a
Online Reference: FLWSUPP 1804WEAT
Insurance — Personal injury protection — Summary judgment — Appeals — Where trial court granted motion for summary judgment but never reduced its reason to writing, appellate court cannot know grounds relied upon by trial court to reach its decision and must affirm
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. COMPREHENSIVE HEALTH CENTER a/a/o KEAUDRA WEATHERINGTON, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-372 AP. L.T. Case No. 08-15977 CC 05. February 11, 2011. An Appeal from a decision rendered by the Miami-Dade County Court, Teretha Lundy Thomas, Judge. Counsel: Marlene S. Reiss, Marlene S. Reiss, P.A., for Appellant. Michael J. Neimand and Lara Edelstein, Office of the General Counsel, United Automobile Insurance Company, for Appellee.
(Before FARINA, BAGLEY, and DRESNICK, JJ.)
(PER CURIAM.) This is an appeal from a summary judgment entered in favor of Appellee Comprehensive Health Center (“Comprehensive”). Comprehensive, the Plaintiff in the trial court, sued Appellant United Automobile Insurance Company (“United”), the Defendant in the trial court, for personal injury protection (“PIP”) insurance benefits. United Auto argues a single issue on appeal and maintains the trial court erred with respect to this issue.
On August 22, 2007, Keaudra Weatherington (“Weatherington”) was involved in a motor vehicle accident and subsequently thereafter sought treatment with chiropractic physician Daryl Schleifer, D.C. (“Dr. Schleifer”) and osteopathic physician Rudolph Moise, D.O. (“Dr. Moise”). Weatherington executed an assignment of benefits, assigning her rights to pursue any PIP claims for Dr. Schleifer’s and Dr. Moise’s bills to Comprehensive. On October 18, 2007, United’s expert physician Randy S. Schulman, D.C. (“Dr. Schulman”), conducted an Independent Medical Examination (“I.M.E.”) of Weatherington, finding that no further chiropractic treatment was reasonably necessary. On October 28, 2008, Dr. Schulman performed a subsequent peer review evaluation of Comprehensive’s bills, and determined that certain charges were not customary, and that certain procedures were not reasonable, related, and necessary. Pursuant to its assignment of benefits, and based on nonpayment of the bills, Comprehensive filed suit against United on September 11, 2008.
The issue on appeal concerns the trial court’s grant of Comprehensive’s motion for summary judgment as to the reasonableness, relatedness, and necessity (“RRN”) of the treatment rendered by Drs. Schleifer and Moise. Comprehensive filed the records custodian affidavit of Ron Drapkin on November 4, 2008, authenticating the reports and bills of Drs. Schleifer and Moise and establishing them as business records. Comprehensive also filed separate affidavits of Drs. Schleifer and Moise, on the same day, regarding the qualifications and medical expertise of each; describing the statements and information given to each about Weatherington’s accident for the purpose of medical diagnosis; describing the examinations both doctors conducted on Weatherington; and describing her treatment. The affidavits concluded in separate expert opinions that the treatment and bills were RRN as related to the injuries Weatherington sustained in the accident.
The burden of proof in a summary judgment requires the moving party to show the absence of any genuine issue of material fact; all doubts and inferences must be resolved against the movant. Holl v. Talcott, 191 So. 2d 40, 43-44 (Fla. 1966) (holding in review of summary judgment dealing with numerous expert opinion affidavits regarding the issue of negligence that “opposing party’s papers be liberally read and construed, as opposed to a strict reading of the movant’s paper” and that moving party must demonstrate complete lack of triable issues). All inferences deductible from proofs are drawn against party moving for summary judgment and in favor of adverse party. Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985).
United replied to Comprehensive’s summary judgment motion by filing the affidavit of Dr. Schulman on November 17, 2008. Dr. Schulman’s affidavit contained his qualifications and medical expertise, referred to the I.M.E. he previously conducted, and referred to his review of the medical records pertaining to Weatherington’s treatment and bills. The trial court conducted a hearing on March 4, 2009 on Comprehensive’s motion for summary judgment as to RRN. Comprehensive argued that Dr. Schulman’s affidavit relied on a peer review that was not “first obtained” for purposes of qualifying as a “valid report” under section 627.736(7)(a), Florida Statutes. Comprehensive alternatively argued that considering Dr. Schulman’s peer review and affidavit lacked sworn proof properly authenticating the medical records he reviewed, and thus was inherently trustworthy and inadmissible under Rule 1.510 of the Florida Rules of Civil Procedure. The trial court granted Comprehensive’s motion for summary judgment, but never reduced its reason to writing.
Comprehensive correctly points out that due to the lack of an order delineating the reasons for the grant of the summary judgment, that there is insufficient record evidence. We agree that where no record is made showing the facts and the grounds relied on for the trial court’s determination, we must presume the trial court ruled correctly. Where a record exists, a reviewing court is limited to the factual findings made by the trial court, and should not “second-guess” that court’s findings. Young v. Hector, 740 So. 2d 1153, 1164 (Fla. 3d DCA 1998) [24 Fla. L. Weekly D1636b]. Here the necessary record does not exist; this Court is in no position to guess the trial court’s findings. See South Florida Apartment Ass’n, Inc. v. Dansyear, 347 So. 2d 710, 711 (Fla. 3d DCA 1977).
This is a problem similar to the one faced by another panel of this Appellate Court, in United Automobile Insurance Co. v. Affiliated Health Care Center, Inc. a/a/o William Klein, No. 09-155 AP & 09-341 AP (Fla. 11th Cir. Ct., Nov. 3, 2010) [18 Fla. L. Weekly Supp. 156a]. In Affiliated, Appellee Affiliated argued that there was an insufficient record made of the trial court’s findings, and that “nothing in the record supports United’s assertion that the trial court did not consider the experts’ Affidavit and Peer Reviews.” Id. As the Affiliated Court pointed out, the lower court may have considered the documents, it may have properly refused to consider the documents, or it may have even found that the “purported jurat was insufficient.” Id.
Because the reasons are not clear, the record is insufficient, and we must presume the trial court’s ruling on the motion for summary judgment to be correct, as the burden is on the appellant to furnish a proper record. Nemeth v. De Lauega, 354 So. 2d 418, 418 (Fla. 3d DCA 1978) (“For failure of the appellant to include in the record on appeal the essential photographs which form in part the basis for the summary judgment herein, we have no alternative but to affirm the judgment below.”); Dansyear, 347 So. 2d at 711 (“This court, accordingly, has no alternative but to assume that the trial court ruled correctly and affirm the decision below.”); Gleim v. Gleim, 176 So. 2d 610 (Fla. 3d DCA 1965).
United argues that a summary judgment is reviewed de novo. Major League Baseball v. Morsani, 790 So. 2d 1071 (Fla. 2001) [26 Fla. L. Weekly S465a]. United additionally argues that the law in Crovella v. Cochrane, 102 So. 2d 307 (Fla. 1st DCA 1958), permits it to attach the unauthenticated records of Drs. Schleifer and Moise, to Dr. Schulman’s peer review and affidavit, merely because Comprehensive already placed those documents in the record. The result in Crovella is not controlling here and is distinguishable. Crovella holds that references to documents already part of the court’s record must be so explicit that “there is no question as to their identity.” Id. at 310. However, the trial court was free to find that the references were not so explicit, and there existed a question as to whether the documents relied on by Dr. Schulman were the same as those authenticated by records custodian Ron Drapkin. Therefore, the trial court would be correct not to consider Dr. Schulman’s peer review and affidavit, since they were inadmissible under Rule 1.510. See Affiliated, No. 09-155 AP & 09-341 AP (Fla. 11th Cir. Ct., Nov. 3, 2010).
Nonetheless, we face the same dilemma the Affiliated Court faced; there is no record explaining the reasoning for the trial court’s grant of Comprehensive’s motion for summary judgment. Without knowing the grounds supporting the trial court’s decision, this Court cannot “reasonably conclude that the trial judge so misconceived the law as to require reversal.” Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979). Simply put, this Court must affirm because we have no way of knowing the grounds relied on by the lower court to reach its decision.
We affirm the summary judgment entered by the trial court. Because Comprehensive is the prevailing party on appeal, Comprehensive’s motion for appellate attorney’s fees is granted.
AFFIRMED.
