18 Fla. L. Weekly Supp. 762a

Online Reference: FLWSUPP 1809FONT

Insurance — Personal injury protection — Summary judgment — Opposing affidavit — No abuse of discretion in finding that attempted incorporation of peer review report into affidavit filed in opposition to summary judgment was void and that, absent incorporation, affidavit’s assertions were insufficient to avoid summary judgment — Moreover, trial court did not abuse discretion in determining that peer review report was inadmissible hearsay that cannot be considered in deciding motion for summary judgment — No abuse of discretion in rejecting corrected affidavit filed after summary judgment hearing — Entry of summary judgment in favor of medical provider is affirmed

UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. ISOT MEDICAL CENTER, a/a/o MARIA FONTALVO, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-319 AP. L.T. Case No. 08-438 SP 26. May 24, 2011. An Appeal from Final Summary Judgment by the County Court in and for Miami-Dade County. Counsel: Lara J. Edelstein, United Automobile Insurance Company, for Appellant. Marlene S. Reiss, Marlene S. Reiss, P.A., Appellee.

(Before FREEMAN, FERNANDEZ, and MILLER, JJ.)

(PER CURIAM.) Maria Fontalvo was in a car accident for which she received treatment in July, 2007, from ISOT Medical Center. Fontalvo’s Personal Injury Protection Insurer, United Automobile Insurance Company, refused to pay ISOT. ISOT sued United.

In 2008, ISOT moved for summary judgment and filed the affidavit of Fontalvo’s treating physician, Dr. Guido Perez. United opposed the motion on the ground that Fontalvo’s medical bills did not represent reasonable, related, or necessary treatment. In support, United filed the affidavit of Dr. David Goldberg, which incorporated by reference his IME and ‘peer review’ reports. At the January 14, 2009 summary judgment hearing, the trial court inquired whether Dr. Goldberg’s affidavit could properly incorporate his peer review report by reference. Following the hearing, United filed a second affidavit from Dr. Goldberg which attempted to cure any deficiencies in the first affidavit.

On May 6, 2009, the trial court granted summary judgment as to the reasonableness, relatedness, and necessity of treatment. The order stated in pertinent part:

Court declines to consider records review report of Dr. Goldberg attached to the January 7, 2009 affidavit of Dr. Goldberg as the report itself is inadmissible hearsay. Furthermore, the references to the records review in the body of Dr. Goldberg’s January 7, 2009 affidavit are conclusory and void of factual conclusions and bases that would otherwise be admissible in evidence. Finally, the records review report was not obtained prior to the denial of benefits. Defendant did not obtain the records review report until December 11, 2008, eleven months after the lawsuit was filed. Defendant denied Plaintiffs bills as unreasonable, unrelated and unnecessary in its Answer and Affirmative Defenses without the records review in its possession. Therefore, the report was not first obtained prior to the denial of benefits as required by Florida Statute § 627.736(a).

(Citations omitted.)

United’s subsequent motion for rehearing was denied. This timely appeal followed.

“ ‘[I]t is apodictic that summary judgments may not be granted . . . absent the existence’ of admissible evidence in the record.” Servedio v. US. Bank Nat. Ass’n, 46 So. 3d 1105, 1107 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D2368a] (quoting TRG-Brickell Point NE, Ltd v. Wajsblat, 34 So. 3d 53, 55 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D547b]); see also Schrank v. Pearlman, 683 So. 2d 559, 563 (Fla. 3d DCA 1996) [21 Fla. L. Weekly D2278a] (competent evidence must support a motion for summary judgment). Inadmissible evidence will not defeat summary judgment. Arce v. Wackenhut Corp., 40 So. 3d 813, 815 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D1471b]; Mack v. Commercial Indus. Park, Inc., 541 So. 2d 800 (Fla. 4th DCA 1989) (exhibits attached to motion were unauthenticated and therefore could not serve as admissible evidence in support of a motion for summary judgment).

The admissibility of evidence rests within the broad discretion of the trial court. Hendry v. Zelaya, 841 So. 2d 572, 575 (Fla. 3d DCA 2003) [28 Fla. L. Weekly D741a] (citations omitted); see also Lodge Const., Inc. v. Monroe County, 891 So. 2d 568, 569 (Fla. 3d DCA 2004) [29 Fla. L. Weekly D2668b] (on motion for summary judgment, the admissibility of evidence rests within the discretion of the court) (dicta). Such discretion is abused only when its exercise is arbitrary, fanciful, or unreasonable. Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980). Accordingly, while this Court reviews summary judgments de novo, Sierra v. Shevin, 767 So. 2d 524 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D1605a], findings related to the admissibility of evidence are reviewed for abuse of discretion.

We observe that the trial court refused to consider the attached records review report on multiple, independent grounds. First, the trial court determined that the affidavit’s attempted incorporation of the records review report was conclusory and void. Second, the trial court found the report itself to be inadmissible hearsay. Finally, the trial court found the records review report deficient on the grounds that it was obtained subsequent to the denial of benefits in violation of section 627.736(a), Florida Statutes.¹

We cannot say that the trial court clearly erred in finding that the affidavit’s were conclusory and the purported incorporation of the attached records were, in fact, and void. Unlike the contract matters to which United cites, the attached report is not inextricably bound to the referring documents. Cf., Collins for Use and Benefit of Dixie Plywood Co. of Tampa v. Nat’l Fire Ins. Co., 105 So. 2d 190, 194-95 (Fla. 2d DCA 1958) (“[W]here a contract expressly provides that it is subject to the terms and conditions of other contracts which are definitely specified, such other contracts must be considered in determining the intent of the parties to the transaction.”). Here, however, the affidavit states a report was prepared, attached, and incorporated. Contrary to the case law United relies upon, the affidavit contains nothing which requires, frames, or necessitates reference to the attachment. Thus, regardless of the boilerplate language of incorporation, both documents may be read independently of the other.

Accordingly, while reasonable people may have decided differently, we find no abuse of discretion in the trial court’s finding that the affidavit’s purported incorporation lacked moment. Absent incorporation, the affidavit’s conclusory assertions are insufficient counter-evidence to avoid summary judgment. 770 PPR, LLC v. TJCV Land Trust, 30 So. 3d 613, 619 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D557a].

If, arguendo, this Court found that the trial court abused its discretion by determining that the affidavit failed to incorporate the attached report, our work would remain unfinished. Because the trial court determined that the object of incorporation was in-and-of-itself inadmissible, this Court must determine if the same was error. Here, too, the trial court’s determination of inadmissibility rests in its sound discretion. Here, too, we cannot find the trial court to have judged in an arbitrary, fanciful, or unreasonable manner concerning the admissibility of the object of incorporation. Canakaris, 382 So. 2d at 1203.

Specifically, the records “incorporated” represent out-of-court statements intended to prove the truth of the matter asserted. As inadmissible hearsay, the trial court cannot consider such evidence in deciding a motion for summary judgment. See Arce v. Wackenhut Corp., 40 So. 3d 813, 815 (affirming summary judgment in the face of inadmissible hearsay); McCarty v. Dade Division of American Hospital Supply 360 So. 2d 436, 438 (Fla. 3d DCA 1978) (on a motion for summary judgment, the trial court cannot consider evidence which is inadmissible under the parol evidence rule); Evans v. Borkowski, 139 So. 2d 472, 475 (Fla. 1st DCA 1962) (“On motion for summary judgment it is the duty of the trial judge under the rule to exclude from consideration all such facts in the proofs ‘as would be inadmissible in evidence.’ ”).

United, in fact, makes no attempt to argue that the incorporated records are directly admissible. Rather, United contends that the trial court committed a third abuse of discretion by failing to consider ‘technical’ corrections to its first, insufficient affidavit.

Florida Rule of Civil Procedure 1.510(c) requires all counter-affidavits to be served on the day prior to the summary judgment hearing. Here, the ‘corrected’ counter-affidavits were filed after the hearing. “Were we to hold that affidavits could be filed late and that a trial judge never had discretion to refuse them, we would effectively destroy what little the Appellate Courts have left of the summary judgment procedure.” Coffman Realty, Inc. v. Tosohatchee Game Preserve, Inc. (Fla. 1982), (adopting Coffman Realty, Inc. v. Tosohatchee Game Preserve, Inc. 381 So. 2d 1164, 1167 (Fla. 5th DCA 1980)).

This Court is mindful that “summary judgment should not be granted because of technical deficiencies in the non-movant’s affidavit.” McCoy v. Hoffmeister, 435 So. 2d 989, 990 (Fla. 5th DCA 1983). At the same time, that determination remains within the sound discretion of the trial court. Holl v. Talcott, 191 So. 2d 40, 46 (Fla. 1966). While acknowledging the discretion of the trial court, however, United cites nothing in the record to explain its failure to file a proper affidavit or justify its post-hearing filing. Rather, it baldly asserts that Dr. Goldberg’ s second affidavit corrected mere “technical deficiencies” and therefore required its acceptance by the trial court. United reads Holl to excuse any technical deficiency whether created by inadvertence or incompetence. We need not opine whether Holl goes so far. Instead, we observe once more that the trial court’s decision to reject the late-filed affidavit was neither arbitrary, fanciful, nor unreasonable.

In sum, this Court defers to the evidentiary rulings of the trial court. We refrain from deciding issues of admissibility left to the trial court’s sound discretion. Having done so, we turn, lastly, to whether the admissible evidence supports ISOT’ s summary judgment motion.

A review of ISOT’s motion and supporting affidavit establishes the absence of any genuine issue of material fact. This determination comes after drawing every possible inference in favor of United and against ISOT. Once ISOT met its burden, it became United’s obligation to show that there were, in fact, issues remaining to be tried. Based upon the record evidence before us, United fails to meet that burden.

We affirm the final summary judgment and the award of attorney’s fees. Appellee’s motion for entitlement to appellate attorney’s fees and costs is granted. We remand this cause to the trial court for a determination of the appropriate amounts.

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¹The Trial Court’s third, independent basis for rejecting the affidavit of Dr. Goldberg’s affidavit rested upon the conclusion that the peer review report was obtained too late. This basis was subsequently rejected in United Automobile Insurance Co. v. Santa Fe Medical Center, a/a/o Telmo Lopez, 21 So. 3d 60 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2051b]. We are bound by the same.