20 Fla. L. Weekly Supp. 362a
Online Reference: FLWSUPP 2004GAVIInsurance — Personal injury protection — Coverage — Medical expenses — Trial court correctly denied provider’s motion for directed verdict where the only issue at trial was whether treatment provided to claimant was related to accident, and there was conflicting evidence that indicated someone other than claimant occupied vehicle at time of accident
JOHN S. VIRGA, D.C., P.A., a/a/o Martha Gaviria Appellant-Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Appellee-Defendant. Circuit Court, 11th Judicial Court in and for Miami-Dade County. Case No. 10-065 AP. L.T. Case No. 06-507 SP 26 (02). December 21, 2012. On review from a final judgment rendered by Miami-Dade County Court, Hon. Gladys Perez. Counsel: Marlene S. Reiss, for Appellant-Plaintiff. Thomas L. Hunker, Office of the General Counsel, for Appellee-Defendant.
(Before TUNIS, SAYFIE, SMITH, JJ.)
(SMITH, Judge.) By amended complaint, John S. Virga, D.C., P.A. (“chiropractor”) alleged that United Automobile Insurance Company (“insurer”) failed to pay personal injury protection benefits as required by section 627.736(4)(b), Florida Statutes. This litigation progressed into trial. After the insurer completed its evidentiary presentation during trial, the chiropractor moved for a directed verdict. The trial court denied the chiropractor’s motion for a directed verdict and submitted the case to the jury. The jury concluded that the chiropractic treatment did not relate to the accident. On appeal, the chiropractor challenges the order denying his request for a directed verdict.The Transcript Complication
This case developed complications regarding the trial transcript’s accuracy. We focus upon this issue to substantiate treating the second amended trial transcript as part of the appellate record. This chiropractor argues that we must remand for a new trial since the court reporter purportedly transcribed three (3) trial transcripts, which do not accurately reflect the trial. In particular, the second amended transcript allegedly omits a sidebar in which the chiropractor “moved for a mistrial” because the insurer violated a pre-trial order, which barred it from reading Ms. Barrios’ deposition testimony involving Paula Sierra’s pregnancy.
This appellate division relinquished jurisdiction for the parties to prepare a statement of evidence pursuant to Florida Rule of Appellate Procedure 9.200(b)(4). See App. A-12. In response, the county court wrote a detailed order, which we interpret as declining to settle or approve the statement of evidence for appellate review. Fla. R. App. P. 9.200(b)(4). The trial court entered this order on November 15, 2011. After the November 15, 2011 order, the county court received the second amended trial transcript at latest by December 9, 2011. App. A-16 & A-29. Thus, the trial court’s November 15, 2011 order did not involve the second amended trial transcript. On January 24, 2012, this appellate division’s administrative judge prohibited any further efforts at reconciling the disputed statement. Virga v. United Auto. Ins. Co., 19 Fla. L. Weekly Supp. 314a (Fla. 11th Cir. Ct. Jan. 24, 2012). We consider this appellate record as including1 the second amended trial transcript since (1) the county court’s order did not involve the second amended trial transcript, and (2) no noticeable gaps within this transcript obstructed our directed verdict analysis.2Directed Verdict Analysis
The chiropractor argues entitlement to a directed verdict because the insurer failed to show that the treatment did not result from the accident. In opposition, the insurer asserts that the county court correctly denied the directed verdict based upon Ms. Barrios’ testimony that Paula Sierra drove the insured vehicle during the accident rather than the claimant.
We review an order resolving a directed verdict motion de novo. Demchak v. Davia, 89 So. 3d 253, 255 (Fla. 3d DCA 2012) [37 Fla. L. Weekly D293a]. The party requesting a directed verdict admits all facts in evidence and every reasonable inference drawn from such evidence favorable to the non-moving party. Id. Trial courts should enter a directed verdict “when the evidence and all inferences from the evidence, considered in the light most favorable to the non-moving party, support the movant’s [chiropractor’s] case as a matter of law and there is no evidence to rebut it.” Id. Stated more simply, a conflict in the trial testimony or evidence will preclude a directed verdict and require submitting the case to a jury. Hernandez v. Stoffer, 736 So. 2d 151 (Fla. 3d DCA 1999) [24 Fla. L. Weekly D1593b].
The insurer and chiropractor agreed that whether the treatment related to this accident presented the sole issue at trial. Whether this accident involved this claimant became an additional issue at trial.3 As for this collateral issue, the claimant testified that she drove the car during the accident and that no one else sat in the car when the accident occurred. She communicated that the accident occurred at “approximately” 9:00 p.m. The claimant stated that she felt the impact when the other vehicle struck the vehicle she drove and experienced pain after the accident. See Trial Tr. 173:15-178:18, Nov. 2, 2009. The claimant also testified:“After the accident, my friends arrived and my daughter [Paula Sierra] arrived” Id. at 178:8-9 (emphasis added).
During trial, the county court admitted a factual stipulation as the plaintiff-chiropractor’s fourth (4th) exhibit. Trial Tr. 110:3-6, Nov. 3, 2009; R. 963. The parties, stipulated that American High School’s records “evidence that Paula Sierra” attended school “on March 9, 2005 from 6:30 p.m. to 9:00 p.m.” (R. 684). See Trial Tr. 151:20-22, Nov. 2, 2009; Id. at 110:9-20, Nov. 3, 2009. We consider the stipulation as established fact that Paula Sierra attended school until 9:00 p.m.4
In contrast to the claimant’s testimony, the chiropractor testified that the claimant indicated on an office form that the accident happened at 9:45 p.m. Trial Tr. 94:20-95:1, Nov. 3, 2009. The insurer also read to the jury sections within the Barrios deposition. Ms. Barrios’ deposition indicated that after impacting the claimant’s automobile and exiting her vehicle, she recognized the claimant’s daughter, Paula Sierra, a girl she knew from middle school. Id. at 159:2-9. Ms. Barrios further testified that after the accident, she used Paula Sierra’s phone. Id. at 167:16-18.
Drawing inferences in the non-moving party’s (insurer’s) favor, the trial court could find that the evidence conflicted regarding the time the accident occurred, thus inferring that the accident occurred at 9:45 p.m. Deducing that the accident occurred at 9:45 p.m. contextually with (1) the stipulation that Paula Sierra attended school until 9:00 p.m. and (2) Ms. Barrios’ testimony that she recognized Paula Sierra after impacting the vehicle, the court could reasonably infer that the accident involved Paula Sierra as a vehicle occupant. Because an evidentiary conflict exists, the trial judge correctly denied the request for a directed verdict. Accordingly, we affirm the order denying the directed verdict and the final judgment.
AFFIRMED. (JUDGE SAYFIE concurs. JUDGE TUNIS concurs in part and dissents in part, with written opinion.)
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(JUDGE TUNIS, concurring in part and dissenting in part.) The chiropractor contends that the second amended trial transcript “does not include many sidebars, and actually omits sidebars” included in the first amended transcript (Initial Br. 33 n.8). In particular, the second amended transcript allegedly omits a sidebar in which the chiropractor “moved for a mistrial” because the insurer violated, a pre-trial order barring it from reading Ms. Barrios’ deposition testimony involving Ms. Sierra’s pregnancy. Id. The chiropractor expresses the harm to his appeal by questioning how he may demonstrate preserved error when three (3) transcript versions omit the motion for mistrial, request for a curative instruction, and the curative instruction. Id. at 34 n.8.
The lower tribunal’s November 15, 2011 order and the administrative judge’s order indicate that the trial court did not review the second amended trial transcript and did not settle a statement of evidence regarding this transcript. See Virga, 19 Fla. L. Weekly Supp. 314a. “If no report of the proceedings was made, or if the transcript is unavailable, a party may prepare a statement of the evidence.” Fla. R. App. P. 9.200(b)(4) (emphasis added).5 I interpret “no report of the proceedings was made,” Id., as encompassing the omissions from the second amended transcript about which this chiropractor complains. Indeed, a Rule 9.200(b)(4) evidentiary statement may involve only part of a proceeding. O’Byrne v. Miller, 965 So. 2d 316, 317 (Fla. 2d DCA 2007) [32 Fla. L. Weekly D2225a]. Therefore, we may remand for a limited Rule 9.200(b)(4) proceeding.
I concur with my colleagues that conflicting evidence in the second amended trial transcript warrants affirming the order denying the directed verdict motion. However, the alleged omissions from the second amended transcript preclude the chiropractor from asserting reversible error as to those events. Rather than affirm the final judgment, I would remand for the parties to pursue limited settlement regarding the motions, evidence, and statements purportedly missing from the second amended transcript. If the trial court approves a statement of evidence after remand, I would permit the chiropractor and insurer to file amended briefs only addressing the issues resolved by the statement of evidence. I respectfully dissent from the affirmance.
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1See Fla. R. App. P. 9.200(a) (“the record shall consist of . . . any transcript(s) of proceedings filed in the lower tribunal”).
2We also justify our reliance upon the second amended transcript based upon the chiropractor’s intention to reference the second amended transcript in his initial brief. See Initial Br. 1 (“Record citations are to the second amended trial transcript, filed by United, but that transcript deviates from the others and still is incomplete and inaccurate”) (emphasis removed).
3The insurer’s fifth (5th) affirmative defense alleged that the claimant “was not involved in” the accident (Am. Answer ¶ 16).
4When parties try a case upon stipulated facts, the stipulation becomes binding upon the trial and appellate court and “ ‘no other or different facts will be presumed to exist’.” Lopez v. Dublin Co., 489 So. 2d 805, 807 (Fla. 3d DCA 1986).
5The Florida Supreme Court amended Florida Rule of Appellate Procedure 9.200(b)(4); however, the amendment does not impact this analysis. See In re: Amendments to the Florida Rules of Civil Procedure, No. SC11-399 (Fla. Oct. 18, 2012).
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