24 Fla. L. Weekly Supp. 103a
Online Reference: FLWSUPP 2402LEONInsurance — Personal injury protection — Summary judgment — Error to enter summary judgment in favor of medical provider on issue of reasonableness, relatedness and necessity of treatment where, even assuming provider’s conclusory affidavit is sufficient to prove non-existence of factual dispute, affidavit of insurer’s expert that court erroneously declined to consider demonstrates factual dispute — Error to refuse to consider expert’s affidavit pursuant to Ellison rule where affidavit stating that treatment was not reasonable, related and necessary as of one date did not baldly repudiate affidavit of insurer’s other expert stating that treatment was not reasonable, related and necessary as of later date
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. HEALTH USA CORP. A/A/O YANEISY LEON, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 2014-195 AP. L.T. Case No. 2007-10833 CC 05. April 27, 2016. An appeal from a decision by the County Court in and for Miami-Dade County. Wendell M. Graham, Judge. Counsel: Matthew D. Hellman & Nancy W. Gregorie, for Appellant. Todd A. Landau, for Appellee.
(Before HENDON, DIAZ, and RODRIGUEZ-CHOMAT, JJ.)
(PER CURIAM.) State Farm Mutual Auto Insurance [State Farm] appeals a final judgment on the grounds that the trial court improperly granted summary judgment for Health USA Corp [Health], on whether Yaneisy Leon’s [Leon] 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 Health’s motion for attorney fees, and grant State Farm’s attorney fee motion pending a favorable trial outcome on remand.
FACTS & PROCEDURAL HISTORY
On October 4, 2006, Leon was injured in a car accident, and from October 6, 2006, to December 20, 2006, she received medical care at Health. Leon paid for this treatment by assigning her State Farm policy payment rights to Health, and State Farm paid for Leon’s care through November 2, 2006. Payment for the remaining weeks, though, was denied because according to Dr. Brett E. Weinstein’s January 14, 2007 peer review of Leon’s medical file [Weinstein Report], the underlying treatments were not RRN.
Treatment for these weeks totaled $6,500, and thus, on June 28, 2007, Health sued. On August 14, 2007, State Farm filed its answer, which cited the Weinstein Report, and discovery ensued until August 29, 2012, when Health moved for summary judgment. Health supported its motion with an affidavit from Dr. Andrew Sands [Sands Affidavit] that said all of Leon’s care was RRN, and a hearing was set for October 25, 2012. However, on October 18, 2012, State Farm filed an affidavit in opposition to the motion from Dr. Michael Mathesie [Mathesie Affidavit]. Health objected to this submission because State Farm did not previously disclose Mathesie as an expert witness, and Mathesie’s conclusions contradicted Weinstein’s. More specifically, Mathesie found only four weeks of treatment RRN, whereas Weinstein approved of four to six weeks of treatment, or fourteen to eighteen visits. Thus, per Mathesie, no treatment was RRN after November 2, 2006, but per Weinstein, treatment was RRN until November 16, 2006. Moreover, the Mathesie Affidavit rejected various individual billing codes and therefore suggested that State Farm overpaid Health by approximately $3,000.
At the hearing, State Farm had no explanation for the length of treatment differences between its experts but said the coding variance arose because Mathesie examined more codes than Weinstein. The trial court, though, found the two documents conflicting, and pursuant to the Ellison Rule,1 it rejected the Mathesie Affidavit and granted Health’s motion. This appeal ultimately followed.2 We have jurisdiction, Fla. R. App. P. 9.030(c)(1); and the standard of review is de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a]. More specifically, “[s]ummary 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.” Id. “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).
DISCUSSION
As a preliminary matter, it is noted that Health correctly conceded that disputed issues of material fact exist over the care Leon received between November 16 and December 20, 2006. The Weinstein Report and Sands Affidavits, after all, reached opposite conclusions on whether said treatment was RRN, and Health is bound by its pleadings, in which it seeks reimbursement for the November 3 to December 20, 2006 treatments. See Sunbeam Television Corp. v. Mitzel, 83 So. 3d 865, 875 (Fla. 3d DCA 2012) [37 Fla. L. Weekly D183a]. Thus, this Court must only decide if summary judgment was properly issued for the weeks of November 3 to 15, 2006, and here, State Farm correctly applies the relevant case law to this case’s facts.
First, it is questionable that the Sands Affidavit definitively proved the non-existence of factual disputes on the RRN issue because it essentially declares all of Leon’s care as RRN without much explanation. The affidavit can therefore be deemed conclusory, especially when this Court must give State Farm, as the non-moving party, the benefit of all reasonable doubt. This determination, though, is immaterial because even if Health satisfied its summary judgment burden with the Sands Affidavit, the Mathesie Affidavit shows these weeks were disputed, and the trial judge improperly refused to consider this document.
Per the Ellison Rule, a party may not attempt to defeat summary judgment by submitting an affidavit or “that of another, [which] baldly repudiate[s a] previous deposition so as to create a jury issue, especially when no attempt is made to excuse or explain the discrepancy.” 74 So. 2d at 681. 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); 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]. A trial court “should [also] take a strict reading of the papers filed by the moving party and a liberal reading and construction of the paper filed by the opposing party,” Swift Indep. Packing Co. v. Basic Food Intern., Inc., 461 So. 2d 1017, 1018 (Fla. 4th DCA 1984); State Farm Mut. Auto. Ins. Co. v. St. Jude Rehab. Ctr., 22 Fla. L. Weekly. Supp. 52c (Fla. 11th Cir. Ct. 2014); and when viewed through said lens, it cannot be said that the Mathesie Affidavit “baldly repudiates” the Weinstein Report, as the documents can be harmonized.3 See Arnold v. Dollar Gen. Corp., 632 So. 2d 1144, 1146 (Fla. 5th DCA 1994) (finding “the contradiction between [Arnold’s] affidavit and deposition [to not be] that blatant or bald”) (emphasis added). The latter, after all, provides a four to six week window of care, and thus, State Farm can reasonably say that four weeks were enough, and that finding is supported by the Mathesie Affidavit.4 “When a subsequent affidavit or testimony ‘at least arguably’ supplements a prior affidavit or testimony, a court should refrain from granting summary judgment.” United Auto. Ins. Co. v. C.M. Med. Ctr., 17 Fla. L. Weekly Supp. 326a (Fla. 11th Cir. Ct. 2010) (quoting Bell v. Bailey, 639 So. 2d 1063, 1064 (Fla. 3d DCA 1994)).
Health’s case law is also inapplicable. United Automobile Insurance Company v. Elite Health & Rehabilitation Center, Case No. 11-17095 (Fla. 17th Cir. Ct. Nov. 14, 2012), for instance, is distinguishable because there, the insurer initially submitted an affidavit authorizing twenty-seven weeks of care, and then, a week before summary judgment,5 submitted one that allowed no care. Said difference is clearly a “bald” rebuke of the prior statement. United Automobile Insurance Company v. Niuvis Sotomayor, 18 Fla. L. Weekly Supp. 634a (Fla. 11th Cir. Ct. Apr. 18, 2011) is also inapplicable since that case turned on whether the record had a creditable reason for a “bald repudiation,” which is the exception to the Ellison Rule. State Farm’s documents, though, do not baldly repudiate each other on the length of treatment issue. Moreover, “it is this state’s policy to favor resolution of disputes on the merits rather than by battle of affidavits and depositions.” Arnold, 632 So. 2d at 1146. While the documents do differ on coding matters, this variance is immaterial for the RRN issue. State Farm also at least arguably explained that Mathesie reviewed more codes than Weinstein, and thus, his report is just more complete. Supplementing a prior sworn statement does not amount to repudiation. United Auto. Ins. Co. v. Seffar, 37 So. 3d 379, 381 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D1302a].6
Accordingly, we REVERSE the order below in its entirety and REMAND this case for further proceedings.
MOTIONS FOR ATTORNEY’S FEES & COSTS
Per Florida Appellate Procedure Rule 9.400, both State Farm and Health 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 (offer of judgment statute), and Health relies on section 627.428(1). Given the above holding, Health’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).
__________________
1Ellison v. Anderson, 74 So. 2d 680, 681 (Fla. 1954) (holding that “a party when met by a Motion for Summary Judgment should not be permitted by his own affidavit, or by that of another, to baldly repudiate his previous deposition so as to create a jury issue, especially when no attempt is made to excuse or explain the discrepancy”).
2State Farm first appealed on December 12, 2012, but the case was remanded to fix a scrivener’s error in the complaint. Summary judgment was reissued on April 30, 2014, and State Farm re-appealed.
3The Ellison Rule is nonetheless applicable to both documents because they are both sworn statements. The Mathesie Affidavit, for instance, is a sworn and notarized document, and the Weinstein Report declares that its statements are “true to the best of my knowledge and information.” Said language is enough to subject the affiant to the penalties of perjury. Fla. Att’y Gen. Op. 95-40 (1995). Moreover, while the Rule does not apply to unswom statements, State Farm’s assertion that Ellison is inapplicable because Weinstein and Mathesie did not make any prior sworn statements is meritless. As noted above, the Rule bars the submission of documents that contradict a prior sworn statement.
4In Arnold, the Plaintiff stated in deposition that aside from the store’s entrance being dirty and littered with trash, she did not know what caused her to fall or its circumstances; she, however, subsequently submitted an affidavit alleging that she tripped on some trash and had previously told the store clerks about the large amount of debris at the store entrance. 632 So. 2d at 1145.
5While the Mathesie Affidavit was also submitted one week before the hearing, Florida Civil Procedure Rule 1.510(c) only requires that an adverse affidavit be served “at least 5 days prior to the hearing . . . or delivered 2 business days” in advance.
6However, it is noted Health undermines State Farm’s explanation on page four of its answer brief by listing several codes that both doctors reviewed but reached opposite conclusions.
