19 Fla. L. Weekly Supp. 323a
Online Reference: FLWSUPP 1905GARRInsurance — Personal injury protection — Denial of benefits — Insurer was not required to obtain valid report prior to denial of benefits — Examination under oath — Notice — No abuse of discretion in refusing to admit affidavit of corporate representative that conflicted with prior deposition testimony of litigation adjuster with regard to EUO notice sent to insured
UNITED AUTOMOBILE INSURANCE CO., Appellant, vs. EDUARDO GARRIDO, D.C., P.A., Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-534 AP and 09-067 AP (Consolidated). L.C. Case No. 06-5014 SP 26. January 30, 2012. An appeal from the County Court for Miami-Dade County. Gloria Gonzalez-Meyer, Judge. Counsel: Lara J. Edelstein, United Automobile Insurance Company, for Appellant. Christian Carrazana, for Appellee.
(Before LEESFIELD, RODRIGUEZ and EMAS, JJ.)
(RODRIGUEZ, Judge.) This is an appeal from a summary judgment entered in favor of the appellee, Eduardo Garrido. Mr. Garrido, filed a complaint against United Auto to recover PIP benefits for medical services rendered to one of its insureds. Throughout the course of the litigation, United Auto denied that the medical bills were reasonable, related or necessary, and based the denial on the peer review report of a Dr. Glen Siegel, who did not physically examine the insured prior to issuing the peer review. United Auto also maintained that the insured failed to perform all conditions precedent by virtue of his failure to attend a properly-scheduled examination under oath (EUO) notwithstanding that a United Auto litigation adjuster testified at deposition that notice of the EUO was mailed to the insured and it was returned “unclaimed.”
Mr. Garrido filed a motion for summary judgment, and, in response, United Auto filed an affidavit of its corporate representative that conflicted with the prior deposition testimony of its litigation adjuster with regard to the EUO notice issue. Specifically, the corporate representative’s affidavit stated that United Auto sent the insured notice of the EUO via two methods — both “via electronic signature confirmation mail, and US Mail” — and that while the signature confirmation was returned “unclaimed,” the “regular mail sent to [the insured] was not returned.”
Mr. Garrido argued that the corporate representative’s affidavit was inadmissible since a party is not permitted to avoid summary judgment by repudiating prior deposition testimony with a later-created affidavit. As such, he argued, no genuine issue of material fact existed as to the insured not receiving notice of the EUO. Mr. Garrido further argued that because Dr. Siegel did not physically examine the insured, his peer review was not valid under Fla. Stat. Sec. 627.736(7)(a), which sets up a procedural requirement that an insurer cannot withdraw or refuse further payments to a treating physician unless the insurer first obtains a “valid report,” as strictly defined by the statute.
The lower court agreed with Mr. Garrido as to both the EUO notice and “valid report” issues and granted summary judgment in his favor. United Auto filed the instant appeal arguing that the lower court used the incorrect portion of Fla. Stat. Sec. 627.736 when it granted summary judgment in favor of Mr. Garrido. United Auto argued that while the court applied subsection 7(a) of the statute, which requires an insurer to present a “valid report” prior to a withdrawal of benefits, it should have applied subsection 4(b) of the statute which pertains to a denial of benefits and does not require a “valid report” before an insurer may deny a claim. United Auto further maintained that the lower court improperly weighed the evidence when it determined that its corporate representative’s affidavit was inadmissible to rebut Mr. Garrido’s argument that no genuine issue of material fact existed to contradict that the insured did not receive notice of the EUO.
While Mr. Garrido initially filed an answer brief in this appeal, several months later he filed a notice of confession of error. There, he confessed error as to both the “valid report” issue and the EUO notice issue based upon the authority of United Auto. Ins. Co. v. Santa Fe Medical Inc., 21 So. 3d 60 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2051b]. The Santa Fe court distinguished between an instance where an insurer denies PIP benefit payments, and an instance where an insurer withdraws further PIP benefit payments. The court concluded that in the case of an insurer who denies payment of PIP benefits, as occurred in the instant case, the trial court should apply Fla. Stat. Sec. 627.736(4)(b), which does not require a “valid report,” as opposed to section 627.736(7)(a), which pertains to benefits withdrawal and does require a “valid report.” The facts of the Santa Fe case did not pertain to EUOs and the court did not discuss notice issues.
Mr. Garrido’s confession of error is well-taken as to the appellant’s first issue on appeal — whether Dr. Siegel’s peer review is admissible under Fla. Stat. Sec. 627.736(4)(b) pertaining to the denial of PIP benefits. The above-cited Santa Fe case is on point and remains good law in this circuit. As such, this Court reverses the lower court’s ruling on the issue of Dr. Siegel’s peer review as United Auto was not required to prepare a “valid report” prior to denying benefits payment.
The confession of error is not well-taken, however, as to the appellant’s second issue on appeal — whether United Auto’s corporate representative’s affidavit was admissible and, as such, constituted a genuine issue of material fact regarding whether the insured obtained notice of the EUO. A trial court’s ruling on the admissibility of evidence is reviewed for abuse of discretion. Dessaure v. State, 891 So. 2d 455 (Fla. 2004) [29 Fla. L. Weekly S744c]; Golden Yachts, Inc. v. Hall, 920 So. 2d 777 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D494a]. This Court finds that the trial court did not abuse its discretion and, as such, affirms the lower court’s ruling as to the inadmissibility of the corporate representative’s affidavit.
AFFIRMED IN PART, REVERSED IN PART and REMANDED for proceedings consistent with this opinion, including a determination of reasonable attorney fees.(LEESFIELD and EMAS, JJ., concur.)
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