20 Fla. L. Weekly Supp. 880a

Online Reference: FLWSUPP 2009ALVAInsurance — Personal injury protection — Examination under oath — Failure to attend — Error to enter summary judgment in favor of medical provider on insurer’s EUO no-show defense where question of whether insured’s failure to attend EUO was unreasonable and whether insured otherwise cooperated to sufficient level that nonattendance was not material breach of policy are fact questions for jury — Independent medical examination — Error to enter summary judgment in favor of provider on insurer’s IME no-show defense where question of whether failure to appear was unreasonable is fact question for jury — Discovery — Depositions — Expert witness fee — Provider’s owner/medical director, who was not treating physician but who consulted with treating physician and helped create treatment plan, was entitled to expert witness fee for deposition testimony

UNITED AUTOMOBILE INSURANCE COMPANY, A Florida corporation, Appellant, v. ASSOCIATES IN TRAUMA, INC., a/a/o MODESTA ALVAREZ, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 08-28007. L.T. Case No. 05-003577. May 26, 2011.

OPINION

(PHILLIPS, Judge.) THIS CAUSE comes before the Court upon Appellant’s, United Automobile Insurance Company’s (UAI), appeal of a Final Judgment for Medical Benefits and Final Judgment for Attorney’s Fees and Costs; Appellant’s request for oral argument; and Appellee’s, Associates in Trauma, Inc. (AIT), request for appellate attorney’s fees. The Court having considered same, the record, applicable case law, and otherwise being duly advised in the premises finds and decides as follows:

Modesta Alvarez, the insured, sustained physical injury from an automobile accident that occurred on December 20, 2004. At the time of the accident, Ms. Alvarez was insured by UAI. Subsequently, Ms. Alvarez incurred medical expenses related to the accident and assigned her rights under the insurance policy to AIT. This appeal originated from AIT seeking reimbursement from UAI for Ms. Alvarez’s medical bills and AIT’s attorney’s fees sustained in collecting those costs.

UAI alleges four errors on appeal. First, UAI argues that the trial court erred as a matter of law when it granted AIT’s Motion for Summary Judgment on UAI’s examination under oath (EUO) no-show affirmative defense. UAI contends that it properly cut-off Ms. Alvarez’s PIP benefits under the policy because she failed to attend one scheduled EUO appointment. UAI also contends that the testimony of two of its employees as to UAI policy and procedure that UAI usually requires an insured to miss two EUO appointments before benefits are cut off is not dispositive. Finally, UAI contends that the trial court incorrectly relied upon Ponders v. Fortune Ins. Co., 578 So. 2d 1129 (3d DCA 1991), in its Final Judgment because the facts in this case are distinguishable.

Second, UAI argues that the trial court erred as a matter of law when it granted AIT’s motion for Summary Judgment on UAI’s independent medical examination (IME) no-show affirmative defense. UAI contends that Section 627.736(4)(b), Florida Statutes (2004), does not require that the insurance company list the reasons for denial in an itemized specification. Additionally, UAI contends that it satisfied all disclosure requirements when it sent its denial of benefits letter noting the EUO no-show as the only reason. UAI argues that it was not required to send an additional itemized specification based on the IME no-show as well.

Third, UAI argues that the trial court erred when it required AIT to pay an expert witness fee to depose Ms. Alvarez’s treating physician. UAI contends that a treating physician obtains their information in the course of making a patient well and not for the purposes of litigation. Thus, the treating physician is an ordinary fact witness not entitled to charge expert witness fees.

Finally, UAI argues that if this Court reverses the Final Judgment in AIT’s favor, the award or attorney’s fees to AIT cannot stand.

The correctness of a summary judgment is a matter of law which is subject to the de novo standard of review. See State v. Presidential Women’s Ctr., 937 So. 2d 114 (Fla. 2006) [31 Fla. L. Weekly S210a]; Tarin v. Sniezek, 942 So. 2d 458 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D2986a]. A trial court should grant summary judgment only if there is a complete absence of genuine issues of material fact. See Holl v. Talcott, 191 So. 2d 40 (Fla. 1966). Moreover, the appellate court must view every possible inference in favor of a party against whom summary judgment was granted. See Wills v. Sears, Roebuck & Co., 351 So. 2d 29 (Fla. 1977).

With regards to Petitioner’s first argument, the Court finds that the trial court did err in granting AIT’s motion for summary judgment on UAI’s EUO no-show affirmative defense. In court, UAI conceded that it agreed to reschedule the January 19th and January 21, 2005 EUO appointments to February 3, 2005, and therefore, those appointments are not at issue in this appeal. Additionally, UAI also agreed to reschedule the 10:30 a.m. appointment to 3:15 p.m. on February 3, 2005, making the failure to attend the 10:30 appointment not a basis to deny benefits either. See Ponders v. Fortune Ins. Co., 578 So. 2d 1129, 1129-1130 (3d DCA 1991) (vacated in part by Ponders v. Fortune Ins. Co., 16 Fla. L. Weekly D1236 (Fla. 3d DCA May 7, 1991) (the insurer waived whatever rights it hand to deny PIP benefits to the insured based on the insured’s failure to keep the initial appointment, when the insurer, through its agent, accommodated the insured and rescheduled the exam). However, Ms. Alvarez failed to attend the rescheduled 3:15 p.m. appointment without explanation, and in response, UAI denied her benefits.

Under the portion of the insurance policy entitled, “Duties After an Accident or Loss,” the policy states:

A Person seeking any coverage or benefits (including any assignees of the injured party) must:

1. Cooperate with “us” in the investigation, settlement or defense of any claim or suit including but not limited to submitting to an examination under oath by any person named by “us” when or as often as “we” may reasonably require at a place designated by “us.”

Under another relevant portion of the insurance policy entitled, “Legal Action Against Us,” the policy states: “No legal action may be brought against ‘us’ until there has been full compliance with all the terms and conditions of this Policy.” Moreover, Section 627.736(7)(a) & (b), Florida Statutes (2004), which governs mental and physical examinations of injured persons in PIP actions, states:

(a) Whenever the mental or physical condition of an injured person covered by personal injury protection is material to any claim that has been or may be made for past or future personal injury protection insurance benefits, such person shall, upon the request of an insurer, submit to mental or physical examination by a physician or physicians. . . .

(b) . . . If a person unreasonably refuses to submit to an examination, the personal injury protection carrier is no longer liable for subsequent personal injury protection benefits.

§627.736(7)(a)&(b), Fla. Stat. (2004) (emphasis added). Thus, Ms. Alvarez, had a contractual obligation under the insurance policy to cooperate with UAI in settling her claim and to submit to an EUO.

UAI cites to Goldman v. State Farm Fire Gen. Ins. Co., 660 So. 2d 300 (Fla. 4th DCA 1995) [20 Fla. L. Weekly D1844a], for the proposition that Ms. Alvarez’s failure to appear for the EUO on February 3, 2005, at 3:15 p.m., permitted UAI to deny her benefits under the policy. However, current case law has clarified that it is not enough that the insured received notice of an EUO and fail to attend. Instead, the Court (and presumably a jury) must also consider: (1) the reason(s) for the non-attendance, and (2) whether the insured otherwise cooperated to a sufficient level that the non-attendance is a not a “material breach.” See e.g., Haiman v. Federal Ins. Co., 798 So. 2d 811 (Fla. 4th DCA 2001) [26 Fla. L. Weekly D2542a]; Fidel S. Goldson, D.C., P.A. v. United Auto. Ins. Co., 16 Fla. L. Weekly Supp. 783a (Decision of Judge Sharon Zeller, County Court, Broward County 2009). As the court expressed in Haiman:

[A] total failure to comply with policy provisions made a prerequisite to suit under the policy may constitute a breach precluding recovery from the insurer as a matter of law. If, however, the insured cooperates to some degree or provides an explanation for its noncompliance, a fact question is presented for resolution by a jury.

Haiman, 798 So. 2d at 812 (citing Diamonds & Denims, Inc. v. First of Georgia Ins. Co., 203 Ga. App. 681, 417 S.E.2d 440, 441-42 (Ga. Ct. App. 1992)); Felicia Hudson v. United Auto. Ins. Co., 12 Fla. L. Weekly Supp. 833b (Dade County Circuit Court Appellate 2005) (“Where the insured cooperates to some degree or provides an explanation for non-compliance with policy provisions that are prerequisites to suit, a fact question is presented for jury resolution.”); R.J. Trapna, M.D., P.A. v. United Auto. Ins. Co., 10 Fla. L. Weekly Supp 132a (Broward County Court, Judge Lee Jay Siedman, 2002); R.J. Trapana, M.D., P.A. v. United Auto. Ins. Co., 10 Fla. L. Weekly Supp. 132b (Broward County Court, Judge Lee Jay Seidman, 2002); see also Silverman v. Pitterman, 574 So. 2d 275, 276 (Fla. 3d DCA 1991) (noting that materiality is a question of fact to be determined by the trier of fact); Beneby v. Midland Nat’l Life Ins. Co., 402 So. 2d 1193, 1194 (Fla. 3d DCA 1981).

The record shows that Ms. Alvarez did cooperate with UAI to some degree. According to Aliea Khayoum, a litigation claims adjuster for UAI, Ms. Alvarez returned a completed application for no-fault benefits to UAI at UAI’s request. Whether Ms. Alvarez’s failure to attend the EUO at 3:15 p.m. on February 3, 2005 by itself was a material breach of the insurance contract is one for a jury — not for a trial judge. See Schnagel v. State Farm Mut. Auto. Ins. Co., 843 So. 2d 1037, 1038 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D1139a].

Next, UAI argues that the trial court erred when it granted AIT’s motion for Summary Judgment on UAI’s independent medical examination (IME) no-show affirmative defense. This Court agrees.

On January 7, 2005, Florida Medical Specialists, Inc., (Florida Medical) on behalf of UAI, sent a letter by regular U.S. mail and certified mail notifying Ms. Alvarez of an IME appointment scheduled for January 24, 2005, which Florida Medical unilaterally set. Florida Medical set the appointment for 9:00 PM.¹ Florida Medical forwarded the green certified mail card to UAI showing that Ms. Alvarez had never claimed it or received the letter. Moreover, Florida Medical never sent a copy of the letter to Ms. Alvarez’s attorney even though her attorney had sent a letter of representation to UAI on January 18, 2005, eight days before the scheduled appointment.² Finally, when Ms. Alvarez missed the January 24, 2005, appointment, UAI sent a letter on February 4, 2005, explaining that her benefits were being cut off for “fail[ing] to attend two properly scheduled Examinations Under Oath,” UAI never mentioned Ms. Alvarez’s failure to attend the IME over a week ago.

As with the EUO, the insurer, in this case UAI, cannot terminate PIP benefits simply because the insured, Ms. Alvarez, failed to appear for a scheduled IME. Ms. Alvarez’s failure to appear must be “unreasonable.” See §627.736(7)(b), Fla. Stat. (2004) (“If a person unreasonably refuses to submit to an examination, the personal injury protection carrier is no longer liable for subsequent personal injury protection benefits.”) (emphasis added); see also the actual Florida Personal Auto Policy with UAI, Part E, Florida Motor Vehicle No Fault Law, Section I, Conditions, Section 3 (a “person making a claim . . . shall submit to [a] mental or physical examination[ ] at ‘our’ expense when and as often as ‘we’ may reasonably require. . . . If the person unreasonably refuses to submit to an examination ‘we’ will not be liable for subsequent personal injury protection benefits.”) (emphasis added); Universal Med. Ctr. of S. Fla. v. Fortune Ins. Co., 761 So. 2d 386, 387-88 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D1068a] (“Because the record does not demonstrate that insured unreasonably refused to attend an IME, we reverse the [final] judgment and remand for further proceedings.”); U.S. Sec. Ins. Co. v. Cimino, 754 So. 2d 697, 702 (Fla. 2000) [25 Fla. L. Weekly S186a] (“By using the term ‘unreasonably refuses to submit’ in both the conditions section of the policy and subsection 627.736(7)(b)[, Fla. Stat.,] it is logical to deduce there are scenarios where the insured ‘reasonably refuses to submit’ to the examination.”); see also United Auto Ins. Co. v. Custer Med. Ctr., 990 So. 2d 633 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D2146a] (noting that an insurer who asserts a defense of IME no-show bears the burden of showing that the refusal to appear was unreasonable). Whether an insured “unreasonably” failed to attend an IME is generally a fact question for a jury.

UAI also argues that the trial court erred in ordering it to pay an expert witness fee to depose Ms. Alvarez’s treating physician, Dr. Calvanese. Contrary to AIT’s argument, this issue is preserved for appellate review. See County Line Chiropractic Ctr. v. United Auto. Ins. Co., 964 So. 2d 802, 803 (Fla. 3d DCA 2007) [32 Fla. L. Weekly D2231e]; Fla. R. App. P. 9.130(a)(3); Valenzuela v. Valenzuela, 648 So. 2d 741 (Fla. 3d DCA 1994).

Florida Rule of Civil Procedure 1.390 defines an “expert witness” as:

[A] person duly and regularly engaged in the practice of a profession who holds a professional degree from a university or college and has had a special professional training and experience, or one possessed of special knowledge or skill about the subject upon which called to testify. . . .

An expert or skilled witness whose deposition is taken shall be allowed a witness fee in such reasonable amount as the court may determine.

Fla. R. Civ. P. 1.390(a) & (c) (2009).

In this case, UAI is contesting the trial court’s order awarding a fee to Dr. Calvanese for taking his deposition. Ms. Alvarez sought treatment from AIT. Dr. Calvanese is the owner/medical director of AIT. Although Dr. Calvanese was not Ms. Alvarez’s actual treating doctor, he did review her file with the treating doctor and helped create a treatment plan for her.

UAI cites to numerous cases where the court classified treating physicians not as experts, but as ordinary fact witnesses. However, those cases categorized treating physicians as ordinary fact witnesses only for the purposes of the discovery rules governing expert testimony at trial, i.e., one expert per specialty rule for each side. See Frantz v. Golebiewski, 407 So. 2d 283 (Fla. 3d DCA 1981); Ryder Truck Rental, Inc. v. Perez, 715 So. 2d 289 (Fla. 3d DCA 1998) [23 Fla. L. Weekly D1400a]. Those cases did not address whether the treating physicians were entitled to a reasonable fee for their testimony.

UAI also cites Engel v. Rigot, 434 So. 2d 954 (Fla. 3d DCA 1983), as being on point. However, Engel involved a disciplinary action against a dentist. 434 So. 2d at 955. In that case, the dentist wanted to depose four dentists that the Florida Department of Professional Regulation, Board of Dentistry, listed as having knowledge of facts and circumstances supporting the complaint. Id. The court found that two of the dentists were unquestionably expert witnesses but the two others may not be an expert under the Florida Rules of Civil Procedure 1.280(b)(3)(C) and 1.390. Id. Regardless of all four of the dentists’ classification, the court reasoned that it would be oppressive to require Dr. Engel in an administrative hearing to pay expert witness fees in advance of the deposition and quashed the Florida Department of Adminstration’s decision mandating that he do so. 434 So. 2d at 956. The court, however, noted that Dr. Engel may ultimately be responsible for these costs at the conclusion of the proceedings. Id. Unlike Engel, the case at hand is not penal in nature. Moreover, UAI is not arguing that it would be oppressive to require it to pay Dr. Calvanese a fee prior to deposing him.

A treating physician’s testimony can be factual in nature and can cross the line into expert testimony. See Fittipaldi USA, Inc. v. Castroneves, 905 So. 2d 182, 185-86 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D867a]. Dr. Calvanese may testify about what he observed with regards to Ms. Alavarez’s physicial condition at the time she was a patient and the course of treatment he and her treating physician recommended. But he may also cross the line and give his expert medical opinion based on his medical experience and training about Ms. Alvarez’s treating physician’s diagnosis and course of treatment and about Ms. Alvarez’s current physical condition.

Regardless of whether Dr. Calvanese testifies as a fact witness or an expert witness, Dr. Calvanese is entitled to a reasonable fee for his time being deposed pursuant to Florida Rule of Civil Procedure 1.390. Dr. Calvanese meets both of the definitions of an “expert witness” under the Florida Rules of Civil Procedure. See Fla. R. Civ. P. 1.390(a) (2009).³ He is “a person duly and regularly engaged in the practice of a profession who holds a professional degree from a university or college and has had special professional training and experienced” and he “possess[es] [a] special knowledge or skill about the subject upon which [is] called to testify.” Id. Moreover, under Florida Rule of Civil Procedure 1.390(c), an “expert or skilled witness” whose deposition is being sought, “shall be allowed a witness fee in such reasonable amount as the court may determine.” Fla. R. Civ. P. 1.390(c) (2009).

Hence, the trial court did not err in awarding UAI to pay Dr. Calvanese $400 per hour for his deposition. See also Schnipper Chiropractic Ctr., Inc. (Venus Beauchant) v. Progressive Am. Ins. Co., 10 Fla. L. Weekly Supp. 836a (Fla. 15th Cir. Ct. August 5, 2003); Milano v. BP Products North America, Inc., 10 Fla. L. Weekly Supp. 417a (Fla. 17th Cir. Ct. April 29, 2003); Tyler v. Acosta, 10 Fla. L. Weekly Supp. 417b (Fla. 17th Cir. April 29, 2003).

It is therefore,

ORDERED AND ADJUDGED that the Final Judgment in favor of AIT for Medical Expenses is REVERSED; the Order on AIT’s motion for Protective Order and to Compel Expert Fees is AFFIRMED; the Final Judgment in favor of AIT for Attorney’s Fees and Costs is REVERSED; UAI’s request for oral argument is DENIED; and AIT’s request for appellate attorney’s fees is DENIED. Accordingly, this case is REVERSED and REMANDED for proceedings consistent herewith.

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¹There is a question of fact as whether the scheduled 9:00 p.m. IME appointment is reasonable or not.

²If the insurer fails to send notice to both the claimant/insured and the claimant’s/insured’s attorney (if he or she has one), the termination of benefits may be challengeable. See, e.g., Chacon v. American Skyhawk Ins. Co., 8 Fla. L. Weekly Supp. 114b (decision of Judge Bonnie Rippingille, County Court of Miami-Dade County, Nov. 4, 2000), affirmed on appeal, American Skyhawk Ins. Co. v. Chacon, 8 Fla. L. Weekly Supp. 593b (decision of Circuit Court, Miami-Dade County, in its appellate capacity, 2001) (“[H]aving been advised of counsel’s representation of [the insured], the [insurer] should have directed the notices scheduling the medical examination to [the insured’s] counsel. Absent such communication, [the insured’s] failure to attend cannot be deemed to have been an unreasonable refusal to attend the examination.”).

³Florida Rule of Civil Procedure 1.390 is broadly written to include other “experts.” The Rule permits a witness to be entitled to witness fee under the rule as long as they possess special knowledge or skill about the subject upon which they are called to testify. See Sihle Ins. Group, Inc. v. Right Way Hauling, Inc., 845 So. 2d 998 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D1259a] (public adjuster who prepared appraisals and negotiated settlements for property owners qualified as an expert witness); Pettry v. Pettry, 706 So. 2d 107 (Fla. 5th DCA 1998) [23 Fla. L. Weekly D542a] (witness qualified as an expert even though she had never previously testified as an expert, when she had treated the wife’s mental or emotional health problems, was licensed and board certified in psychiatric and mental health nursing, was licensed to practice her profession for four years prior to her testifying, and received her master’s degree in counseling two years prior to the hearing).

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