22 Fla. L. Weekly Supp. 186a
Online Reference: FLWSUPP 2202LANDInsurance — Personal injury protection — Discovery — Depositions — No abuse of discretion in awarding expert witness fee for deposition testimony of treating physician — Trial court erred in disregarding peer review and affidavit of physician who conducted independent medical examination because they were obtained after PIP suit was filed and, consequently, erred in entering summary judgment in favor of medical provider — Insurer may assert that treatment was not reasonable, related or necessary at any time
UNITED AUTOMOBILE INSURANCE COMPANY Appellant(s), vs. PROFESSIONAL MEDICAL GROUP, INC., a/a/o GERALDO LANDAVERDE, Appellee(s). Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-546 AP AND 09-085 AP. L.T. Case No. 07-021275-CC25. September 12, 2014. An appeal from the County Court for Miami-Dade County, Florida, Judge Lawrence D. King. Counsel: Michael J. Neimand, Office of The General Counsel, for Appellant(s). Virginia M. Best, Lopez & Best, and Armando Brana, Armando Brana, P.A., for Appellee(s).
(Before GENDEN, BAILEY and EMAS, JJ.*(panel))
(PER CURIAM.) This matter came before the Court on United Automobile’s appeal from a witness fee determination and summary judgment in favor of Professional Medical Group (“PMG”). We have jurisdiction pursuant to Fla. R. App. Pro. 9.030.
The case arose out of a claim for failure to pay PIP benefits in connection with a May 2007 accident. PMG filed a motion for summary judgment supported by the affidavit of the insured’s treating physician, Dr. Jose Vazquez. United Auto defended the claim, asserting that the treatment after June 12, 2007 was not reasonable, related or necessary. It relied on a report of independent medical examination conducted by Dr. Richard Glatzer. United filed the report, as well as an affidavit and peer review report from Dr. Glatzer which determined that none of the treatment was reasonable, related or necessary, in opposition to summary judgment.
Initially, United sought to depose Dr. Vazquez and refused to pay an expert witness fee. PMG moved for a protective order seeking a judicial determination on the fee issue. United argued that Dr. Vazquez, as a treating physician, was an ordinary fact witness and not an expert witness and therefore not entitled to a fee. The lower court granted the protective order and directed United to pay $350 perhour as a witness fee. United appeals that determination.
We affirm the lower court’s ruling as being within its discretion under Fla. R. Civ. P. 1.390; which provides that “An expert or skilled witness whose deposition is taken shall be allowed a witness fee in such reasonable amount as the court may determine.” While an expert witness is generally a witness whose opinions are acquired and developed in the course of litigation at the request of counsel, a skilled witness is logically a witness who has knowledge of the facts of the case but whose involvement in the case is due to specialized training, for example, a treating physician. As such, the trial court can determine the appropriate fee in those instances. In this case, United was seeking to depose Dr. Vazquez as a result of his treatment of the insured, which was involvement in the facts due to specialized training. The trial court did not abuse its discretion in setting a reasonable fee of $350 per hour. See Comprehensive Health Ctr., Inc. v. United Auto. Ins. Co., 56 So. 3d 41 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D54b].
United also argues for reversal of the summary judgment in favor of PMG. It argues that the trial court erred in determining that the Glatzer affidavit and peer review were untimely, having been obtained after the PIP lawsuit was filed, and therefore disregarding the Glatzer evidence and granting summary judgment. Under Fla. Stat. § 627.736(4)(b), the insurer may assert that the treatment was not reasonable, related or necessary at any time, including after payment or after the 30-day deadline. The consequences for not paying timely are interest, not the loss of the right to contest reasonableness, relationship or necessity . See also United Auto. Ins. Co. v. Santa Fe Med. Ctr., 21 So. 3d 60 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2051b]. We therefore reverse the summary judgment and remand for further proceedings.
Affirmed in part, reversed in part.
Appellee’s Motion for Attorney’s Fees is hereby:
(X) Granted. The case is remanded to the lower court to determine the amount of a reasonable fee, subject to prevailing in the identifying case.
( ) Denied.
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*Judge Emas heard oral argument but did not participate in decision due to elevation
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