22 Fla. L. Weekly Supp. 52c

Online Reference: FLWSUPP 2201SUARInsurance — Coverage — Summary judgment — Where affidavit filed in opposition to summary judgment and peer review and medical records referenced therein were all clearly listed exhibits to insurer’s summary judgment response, trial court’s rejection of affidavit for failing to attach documents affiant relied upon was overly technical — Summary judgment was improperly granted where documents collectively establish genuine disputed issue of material fact

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. ST. JUDE REHABILITATION CENTER, INC. A/A/O LEDESMY SUAREZ, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 2012-255 AP. L.T. Case No. 2010-7621 CC 26. August 6, 2014. An appeal from a decision by the County Court in and for Miami-Dade County, Florida, Lourdes Simon, Judge. Counsel: Nancy W. Gregoire, for Appellant. David B. Pakula, for Appellee.

(Before ZABEL, ARECES, and LINDSEY, JJ.)

(ZABEL, Judge.) State Farm Mutual Auto Insurance [State Farm], appeals a final judgment on the grounds that the trial court improperly granted summary judgment for St. Jude Rehabilitation Center [St. Jude], on whether Ledesmy Suarez’s medical treatments were “reasonable, necessary, and related to the automobile accident” [RRN]. For the reasons stated below, we reverse and remand this case for further proceedings. We also deny St. Jude’s motion for attorney fees, and grant State Farm’s attorney fee motion pending a favorable trial outcome on remand.

FACTS

On January 14, 2010, Suarez was injured in a car accident, and from January 19, 2010, to April 22, 2010, she received medical care at St. Jude. Suarez paid for this treatment by assigning her State Farm car insurance policy’s payment rights to St. Jude, and State Farm paid for Suarez’s treatment from January 19, 2010, to February 5, 2010. On November 17, 2010, St. Jude sued State Farm for the remaining payments, but State Farm, in pertinent part, contended it did not have to pay because the underlying treatments were not RRN. On June 28, 2011, St. Jude moved for summary judgment, and to support its motion, it filed an affidavit of Suarez’s physician, Dr. Jose Gomez-Cortes, Suarez’s medical records, and an affidavit of Yaris Arce, St. Jude’s office manager and billing clerk to verify the medical records. In this affidavit, Dr. Gomez-Cortes opined that Suarez’s treatments were RRN.

In response, State Farm filed an affidavit of Dr. Michael S. Propper, an individual who peer reviewed Suarez’s medical records and concluded that her treatment was not RRN because it was inconsistent with the medical standard for her diagnosis and not the type, frequency, or duration of treatment advisable for her injuries. In his affidavit, Dr. Propper incorporated his resume and adopted his peer review, which was attached to State Farm’s response as an exhibit; also attached were the same medical records St. Jude included in its summary judgment motion.

This motion went to hearing on November 15, 2011, and in ruling for St. Jude, the court stated that Dr. Propper’s affidavit was “not competent evidence, and therefore decline[d] to consider it.” State Farm requested rehearing on November 28, 2011, but the court never addressed this motion. The court then issued final judgment on June 6, 2012, in which it ordered State Farm to pay St. Jude $8,225.15. This appeal followed.STANDARD OF REVIEW

“Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law. Thus, our standard of review is de novo.” Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a]. “In reviewing a summary judgment, this Court ‘must consider the evidence contained in the record, including any supporting affidavits, in the light most favorable to the non-moving party . . . and if the slightest doubt exists, the summary judgment must be reversed.’ ” Tropical Glass & Const. Co. v. Gitlin, 13 So. 3d 156, 158 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D1163a] (internal citation omitted).

St. Jude, nonetheless, cites two cases from this circuit — State Farm Mutual Automobile Insurance Co. v. Hyma Medical Center., Inc., a/a/p Jorge Pino, 20 Fla. L. Weekly Supp. 120a (Fla. 11th Jud. Cir. Ct. 2012) and United Automobile Insurance Co. v. Isot Medical Center, a/a/o Maria Fontalvo, 18 Fla. L. Weekly Supp. 762a (Fla. 11th Jud. Cir. Ct. 2011) — and argues that the evidentiary findings of a summary judgment are reviewed for abuse of discretion. Hyma and Isot, however, were wrongfully decided as their supporting case law — the main one being Hendry v. Zelaya, 841 So. 2d 572 (Fla. 3d DCA 2003) [28 Fla. L. Weekly D741a] — are inapposite. Hendry, for instance, involved a jury verdict appeal, which is indisputably reviewed for abuse of discretion. Incorporating abuse of discretion rules into summary judgment, moreover, creates confusion because summary judgment must be denied “if the slightest doubt exists” about material facts or matters of law. Tropical Glass, 13 So. 3d at 158. Doubt under the abuse of discretion standard, in contrast, favors affirmation. See Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980).¹ Evidentiary rulings, though, are procedural elements of summary judgment, and given that courts are supposed to grant summary judgment with “[g]reat caution,” Stephens v. Dichtenmueller, 216 So. 2d 448, 450 (Fla. 1968); any deference favoring summary judgment is inappropriate. See Philip J. Padovano, Florida Appellate Practice 361 (2011-12 ed.).²

DISCUSSION

Here, St. Jude contends that Dr. Propper’s affidavit was properly rejected because it did not attach, identify, authentic, or sufficiently describe the documents Dr. Propper relied upon for his findings, thus rendering the documents inadmissible hearsay. Without these documents, the affidavit is conclusory, and summary judgment cannot be based on such statements. Master Tech Satellite, Inc. v. Mastec N. Am., Inc., 49 So. 3d 789, 790-91 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D2381a].

Summary judgment, however, should not be granted for “largely technical” affidavit deficiencies that are “subject to correction.” Holl v. Talcott, 191 So. 2d 40, 47 (Fla. 1966); see also United Auto. Ins. Co. v. Peter F. Merkle, M.D., P.A., 32 So. 3d 159, 161-62 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D620a]. Summary judgments affidavits only need to “be made on personal knowledge, . . . set forth facts as would be admissible in evidence, and . . . show affirmatively that the affiant is competent to testify to the matters stated therein.” Fla. R. Civ. P. 1.510(e); Castro v. Brazeau, 873 So. 2d 516, 517 (Fla. 4th DCA 2004) [29 Fla. L. Weekly D1214b]. “Sworn or certified copies” of any documents referenced in the affidavit may be “attached thereto or served therewith,” Fla. R. Civ. P. 1.510(e) (emphasis added); and the courts have found “the purpose of this rule” to be “fully served” when the affidavit’s reference leaves “no question as to [its] identity or relation to the affiant’s testimony.” Crovella v. Cochrane, 102 So. 2d 307, 310 (Fla. 1st DCA 1958); United Auto. Ins. Co. v. Prof’l Med. Group, Inc., 14 Fla. L. Weekly Supp. 624a (Fla. 11th Cir. Ct. 2007). Affiants also gain personal knowledge from reviewing documents. Progressive Exp. Ins. Co. v. Camillo, 80 So. 3d 394, 399 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D344a].

Given that Dr. Propper’s affidavit and its referenced peer review and medical records were all clearly listed exhibits to State Farm’s Summary Judgment Response, the trial court’s reasons for rejecting this affidavit were overly technical. See Swift Indep. Packing Co. v. Basic Food Intern., Inc., 461 So. 2d 1017, 1018 (Fla. 4th DCA 1984) (stating that courts “should take a strict reading of the papers filed [in support of summary judgment] by the moving party and a liberal reading and construction of the paper filed by the opposing party”); Crovella, 102 So. 2d at 310; United Auto. Ins. Co. v. Prof’l Med. Group, Inc., 14 Fla. L. Weekly Supp. 624a (Fla. 11th Cir. Ct. 2007). When read collectively, these documents establish the existence of a genuine material fact dispute as two doctors reviewed the same documents and reached opposite conclusions. Summary judgment, therefore, was improperly issued. Accordingly, the trial court’s order is REVERSED, and this case is remanded for further proceedings.

MOTIONS FOR ATTORNEY FEES & COSTS

Per Florida Appellate Procedure Rule 9.400, both State Farm and St. Jude filed motions for attorney’s fees and costs as this rule authorizes the prevailing party on appeal to recover these expenses. The statutory basis for State Farm’s motion is section 768.79, Florida Statutes (2012) (the offer of judgment statute), whereas St. Jude’s are sections 627.428(1) and 627.736(8), Florida Statutes (2012). Given the above holding, St. Jude’s motion is DENIED, and State Farm’s motion, pending a favorable outcome at trial on remand, is GRANTED. See USAA Cas. Ins. Co. v. Am. MRI, LLC, 19 Fla. L. Weekly Supp. 534a (Fla. 11th Cir. Ct. 2012).

REVERSED and REMANDED for proceedings consistent with this opinion. (LINDSEY, J. concurs.)

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¹“In reviewing a true discretionary act, the appellate court must fully recognize the superior vantage point of the trial judge and should apply the ‘reasonableness’ test to determine whether the trial judge abused his discretion. If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable, and there can be no finding of an abuse of discretion.”

²“Summary judgments present a classic example of the type of decisions that are subject to the de novo standard of review. . . . an appellate court must view every possible inference in favor of the party against whom a summary judgment has been rendered[. . . .] In any case, the procedural correctness of an order granting a summary judgment presents a question of law.” (Emphasis added).

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(ARECES, J. DISSENTING) I respectfully dissent. It is undisputed that

1. Summary judgment affidavits need to “be made on personal knowledge, . . . set forth facts as would be admissible in evidence, and . . . show affirmatively that the affiant is competent to testify to the matters stated therein.” Fla. R. Civ. P. 1.510(e); Castro v. Brazeau, 873 So. 2d 516, 517 (Fla. 4th DCA 2004) [29 Fla. L. Weekly D1214b];

2. “Sworn or certified copies” of any documents referenced in the affidavit may be “attached thereto or served therewith,” Fla. R. Civ. P. 1.510(e) (emphasis added); and

3. The courts have found “the purpose of this rule” to be “fully served” when the affidavit’s reference leaves “no question as to [its] identity or relation to the affiant’s testimony.” Crovella v. Cochrane, 102 So. 2d 307, 310 (Fla. 1st DCA 1958); United Auto. Ins. Co. v. Prof’l Med. Group, Inc., 14 Fla. L. Weekly Supp. 624a (Fla. 11th Cir. Ct. 2007). Affiants also gain personal knowledge from reviewing documents. Progressive Exp. Ins. Co. v. Camillo, 80 So. 3d 394, 399 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D344a].

However, in this case, the opposing affidavit of Dr. Propper only established that he was competent to testify — he attached his CV. The affidavit of Dr. Propper did not list or even properly reference the medical records allegedly reviewed, and did not even state that he was the one that prepared the peer review.

This case is distinguishable from Crovella in which “. . . the references in the challenged affidavit were so explicit as to leave no question as to their identity or relation to affiant’s testimony.” The affidavit in this case was wholly lacking in specificity, ambiguous and replete with errors. There is a difference between technical deficiencies and substantive deficiencies. The trial court was correct in rejecting the affidavit and granting summary judgment.