21 Fla. L. Weekly Supp. 628a
Online Reference: FLWSUPP 2107PEREInsurance — Personal injury protection — Claim for penalty and interest for late payment of benefits — Error in allowing paralegal’s hearsay testimony that medical provider told her that he did not receive PIP check that insurer claims to have timely mailed was not harmless where testimony was material to case and likely influenced jury when deciding whether insurer mailed check, and there is reasonable probability that jury would have reached different conclusion if testimony had not been allowed — New trial required
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. GUIDO A PEREZ M.D., INC. a/a/o ALEIDA ORAMA, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 12-268AP April 14, 2014. On appeal from the County Court for Miami-Dade County, Judge Gladys Perez. Counsel: Diane H. Tuff, for Appellant. Maria E. Corredor, Rima C. Bardawil, for Appellee.
(Before THOMAS, FERNANDEZ, and BRENNAN, JJ.)
(FERNANDEZ, J.) Plaintiff/Appellee Guido A. Perez M.D., Inc. provided medical treatment to Aleida Orama for injuries sustained in an automobile accident. Orama assigned her PIP benefits to Dr. Perez, who submitted a claim to Defendant/Appellant State Farm Mutual Automobile Insurance Company. A dispute arose between the parties as to whether State Farm timely paid the claim, or whether Dr. Perez was entitled to a penalty and interest for late payment of the claim.
The trial court determined that the primary issue was whether State Farm timely mailed a check to Dr. Perez on March 20, 2006. To prove that it mailed the subject PIP check on March 20th, State Farm sought to establish that it had a routine business practice of timely mailing PIP checks. State Farm presented evidence of their procedures for mailing PIP checks through the testimony of witness Tracy Mann. To counter State Farm’s evidence, Dr. Perez presented the testimony of Maria Coto, a paralegal working for Dr. Perez’s attorney, who testified that Dr. Perez told her that he did not receive the subject PIP check. At the conclusion of the trial, the jury returned a verdict in favor of Dr. Perez, finding that State Farm did not establish that it had timely mailed the check. State Farm now appeals the final judgment on several grounds.
Having reviewed State Farm’s arguments on appeal, this Court chooses to focus on the trial court’s ruling on State Farm’s post-trial motion for new trial as it relates to the testimony of Maria Coto. Subsequent to the jury verdict, State Farm filed several post-trial motions, including a motion for new trial, wherein State Farm argued that the trial court incorrectly allowed hearsay testimony from Maria Coto. During the post-trial hearing the trial court ruled that the testimony of Dr. Perez’s witness Maria Coto was inadmissible hearsay, and that the witness should not have been allowed to testify to the jury. The trial court, however, denied State Farm’s motion for new trial. The trial court’s rationale was that any error regarding Ms. Coto’s testimony was harmless because the trial court should have directed a verdict for Dr. Perez on the grounds that Tracy Mann was not competent to testify, and therefore State Farm did not present any competent evidence of a routine business practice.
State Farm now claims that the trial court erred in denying its motion for new trial despite conceding error in allowing Ms. Coto’s testimony. While State Farm argues that the standard of review should be de novo because the trial court conceded the underlying error, this Court will review the decision under the abuse of discretion standard, the general standard of review for a motion for new trial. Southwin, Inc. v. Verde, 806 So. 2d 586, 587 (Fla. 3d DCA 2002) [27 Fla. L. Weekly D292b].
To determine whether the trial court abused its discretion, this Court focuses on whether the error in allowing Maria Coto to testify was harmless. To this end, the Court finds this language from Padovano’s Florida Appellate Practice helpful on this issue:
The test for determining the existence of reversible error in a civil case is whether there is a reasonable probability that a result more favorable to the party seeking review would have been reached if the error had not been committed. The first step in applying this standard is to determine whether the error was material to the decision in the case. . . [T]he burden is on the beneficiary of an error to show that the error was harmless. . . . [A]n error is harmless if it is more likely than not that it did not influence the decision made by the trier of fact.
See 2 Fla. Prac., Appellate Practice § 19:11 (2014 ed.) (citing Special v. Baux, 79 So. 3d 755 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D2503a]).
Upon review of the parties’ briefs and arguments, as well as the record and trial transcript, this Appellate Court finds that the trial court’s conceded error to allow the hearsay testimony of Maria Coto cannot be considered harmless error. Ms. Coto’s testimony that Dr. Perez did not receive the subject PIP check was material to the case, likely influenced the trier of fact when deciding whether State Farm mailed the check, and there is a reasonable probability that the trier of fact would have reached a different conclusion if Ms. Coto’s hearsay testimony had not been allowed.
THEREFORE, based on the foregoing analysis, this Appellate Court finds that the trial court’s error regarding Maria Coto’s testimony was not harmless, and that the trial court abused its discretion by denying Appellant’s Motion for New Trial. Accordingly, the Final Judgment is hereby REVERSED and the case is REMANDED for a new trial. Appellant’s Motion for Attorney’s Fees and Costs is hereby GRANTED. (THOMAS and BRENNAN, JJ. concur.)
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