26 Fla. L. Weekly Supp. 766a
Online Reference: FLWSUPP 2609VILLInsurance — Personal injury protection — Summary judgment — Evidence — Hearsay — Exception — Business records — Transcript of examination under oath prepared for purpose of litigation lacks trustworthiness that business records are presumed to have and is not admissible under business records exception to hearsay rule — Further, transcript is not admissible as former testimony where EUO was taken without opportunity for cross-examination or objection, was not deposition, and was not obtained in course of judicial proceeding, and transcript was not reviewed and signed by insured — Pursuant to section 92.33, EUO transcript cannot be used as summary judgment evidence where copy was not provided to insured at time he submitted to EUO — Transcript is not admissible under party admission exception to hearsay rule where insured is not party to case, and plaintiff medical provider and insured have different interests in action — Motion to strike transcript is granted
GABLES MR (A), a/a/o Jose Villaroel, Plaintiffs v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2012-25944 SP (25). October 22, 2018. Linda Diaz, Judge. Counsel: Kenneth B. Schurr, Kenneth B. Schurr, P.A., Coral Gables, for Plaintiff. Stephen G. Mellor, Roig Lawyers, P.A., Deerfield Beach, for Defendant.
ORDER ON PLAINTIFF’S MOTIONTO STRIKE EUO TRANSCRIPT
This matter having come before the Court on August 29, 2018 on Plaintiff’s Motion to Strike the EUO transcript of Jose Villaroel, and the Court having heard the arguments of counsel and being otherwise fully advised therein, it is hereby:
ORDERED and ADJUDGED as follows:
PROCEDURAL HISTORY
On December 23, 2011, the insured, Jose Villarroel, was injured in an automobile accident and later sought medical attention from various medical providers including the Plaintiff, as well as Dr. Manuel V. Feijoo, M.D.
Villarroel incurred medical expenses for his accident related injuries and his medical providers submitted their medical bills to Defendant State Farm for payment. When Defendant refused to remit payment, Plaintiff, as the assignee of Villarroel, filed this action on November 14, 2012.
A companion lawsuit known as Manuel V. Feijoo, M.D., P.A. a/a/o Jose Villaroel vs. State Farm, Case No.: 15-9115 SP 25, was filed on July 23, 2015 which also sought to recover unpaid medical expenses / PIP benefits arising out of the same automobile accident.
Plaintiff contends that the insurance policy issued to Villarroel, was (or should be deemed) a Florida policy with mandatory $10,000 in PIP coverage.
In its answer and affirmative defenses, Defendant asserted that the insurance policy it issued to Villarroel was actually a New Mexico policy with just $5,000 in coverage to pay for the insured’s accident related medical expenses, and that the $5,000 policy limits were exhausted.
During the discovery phase of this case, and in the companion case, Plaintiff requested copies of any Examination Under Oath (EUO) transcripts pertaining to Villarroel.
In both cases, Defendant responded by advising that it requested an EUO of Villarroel pre-suit; that Villarroel submitted to an EUO on September 4, 2012; that Defendant did not have the EUO transcript because it was never ordered; and that the only EUO-related document it had in its possession was a 3-page work-product summary of the EUO.
In the companion case (Feijoo v. State Farm), the parties entered into an agreed order on September 22, 2016, regarding the EUO transcript wherein the Defendant acknowledged that it had requested an EUO of Villarroel; that Villarroel attended an EUO; that Defendant did not have the EUO transcript and that it never even ordered the EUO transcript; and that if Defendant ever located the EUO transcript, it would not use the EUO transcript for any purpose whatsoever.
As this litigation proceeded, the parties exchanged paper discovery and Plaintiff deposed Defendant’s corporate representative, who authenticated various records maintained by Defendant, including materials which indicated that the insured’s wife resided in Florida; that the insured’s minor children attended school in Florida; that the insured had a Florida driver’s license; that the insured vehicle was registered in Florida at all times; and that the insured’s post-accident medical treatment occurred in Florida.
On February 1, 2016, Defendant filed its motion for summary judgment arguing that the insured resided in New Mexico and that while he was residing there, he purchased an insurance policy from Defendant to insure a 2001 Kia Sephia which was the vehicle that was at all times registered in Florida. Defendant argued that Plaintiff and Villaroel are bound by the New Mexico policy, which had just $5,000 in coverage to pay for Villarroel’s accident related medical expenses, and that the $5,000 policy limits had been exhausted. Defendant also argued that it was not obligated to issue a Florida PIP policy. In response, Plaintiff contends that Defendant knew or should have known that the insured resided in Florida and that the insured vehicle was registered in Florida and therefore Defendant should have issued a policy that complied with Florida law, with $10,000 in PIP coverage.
On June 29, 2017 the parties presented arguments to the Court for and against Defendant’s motion for summary judgment. The Court found that there were genuine issues of material fact precluding entry of summary judgment and entered an order dated July 3, 2017 denying Defendant’s Motion for Summary Judgment. On June 29, 2017 Defendant moved for re-hearing / reconsideration. On July 12, 2017, five years after this action was filed, and after Defendant’s motion for summary judgment was denied, Defendant served a Notice of Filing Villarroel’s 2012 EUO transcript, which it previously represented did not exist. The Court denied Defendant’s Motion for Rehearing/Reconsideration on July 21, 2017.
Defendant now seeks to use the EUO transcript in support of a motion for summary judgment. Plaintiff objects to the use of the EUO transcript as summary judgment evidence and on August 28, 2017, filed a motion to strike the EUO transcript claiming that the Villarroel EUO transcript cannot be used as summary judgment evidence.
ANALYSIS & ADMISSIBILITY OF THE EUO
In support of its position that the EUO transcript is inadmissible summary judgment evidence in this case, Plaintiff argues, among other things, that the EUO transcript obtained by Defendant in this case is untrustworthy because it is a document prepared at Defendant’s direction five years after this instant action was filed and it was submitted to the Court for the sole purpose of supporting Defendant’s motion for summary judgment.
Plaintiff argues by analogy that McElroy v. Perry 753 So. 2d 121 (Fla. 2nd DCA 2000) [25 Fla. L. Weekly D111a] (IME report prepared solely for the purpose of litigation lacks the trustworthiness that business records are presumed to have, and therefore, is not admissible under the business records exception), mandates a finding that the EUO transcript is inadmissible summary judgment evidence under the facts and circumstances of this case because the EUO transcript did not exist prior to the initiation of this action, and because it was prepared solely for use in the instant case during the litigation and after Defendant’s motion for summary judgment had already been denied. Plaintiff contends, and this Court agrees, that since the EUO transcript (like the IME report in McElroy) was prepared for the purpose of litigation, it necessarily lacks the trustworthiness of a record generated exclusively for business purposes.
Plaintiff further argues that the EUO transcript is not admissible under Fla. Stat. 90.802 because it was allegedly taken pre-suit pursuant to an insurance contract; it is not a deposition; there was no opportunity for anyone to cross-examine the witness, nor to object; and it was not obtained in the course of a judicial proceeding. This Court agrees.
Furthermore, unlike a sworn affidavit, the EUO transcript in this case was never signed by the witness and it is undisputed that the witness never even saw the EUO transcript, and was never given an opportunity to confirm or deny whether the EUO transcript accurately reflected his testimony. In contrast, a witness in a deposition taken pursuant to the civil procedural rules is always given an opportunity to read his or her testimony to confirm the accuracy of the transcribed testimony and he or she can even submit an errata sheet to correct any errors in the transcribed testimony. See, Rule 1.310(e), ‘Witness Review’ which provides “[I]f the testimony is transcribed, the transcript must be furnished to the witness for examination and must be read to or by the witness unless the examination and reading are waived by the witness and by the parties. The ‘witness review’ safeguards found in Rule 1.310 are not available in a pre-suit EUO.
On July 1, 2013, Defendant filed a copy of the insurance policy at issue in this case and the policy specifically states that the insured “. . .must, at our option, submit to an examination under oath, provide a statement under oath, or do both as reasonably often as we require. Such person or organization must answer questions under oath, asked by anyone we name and sign copies of the answers.” See, Insurance Policy at page 25.
The purpose of the witness signature requirement contained in the EUO provision of the policy is to confirm the accuracy of the testimony. Although the policy obligated Defendant to secure Villarroel’s signature on the EUO, it failed to do so thereby rendering the EUO transcript highly suspect and violative of Defendant’s own policy requirements.
Plaintiff next argues that the EUO transcript is a hearsay document because it is an out of court statement offered to prove the truth of the matter asserted. The EUO transcript is not the statement of a party and it lacks any signature or acknowledgement by the witness. “The chief reasons for the exclusion of hearsay evidence are the want of the sanction of an oath and of any opportunity to cross-examine the witness. But where the testimony was given under oath in a judicial proceeding, in which the adverse litigant was a party and where he had the power to cross-examine, and was legally called upon so to do, the great weight and ordinary test of truth being no longer wanting, the testimony so given is admitted after the decease of the witness, in any subsequent suit between the same parties.” Putnal v. State, 56 Fla. 86, 47 So. 864 (1908).
Florida Statute 90.804(2) reads: Hearsay Exceptions — The following are not excluded under section 90.802, provided that the declarant is unavailable as a witness:
(a) Former testimony. — Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
The “former testimony” rule found in section 90.804(2) (a) is the counterpart of Federal Rule of Evidence 804(b) (1) and it basically codifies the common law rule of evidence previously recognized. Florida has long permitted the use of former testimony. Putnal v. State, 56 Fla. 86, 47 So. 864 (1908); Habig v. Bastian, 117 Fla. 864, 1S8 So. 508 (1935).
However, the rule only applies if the following requirements are met: (a) the former testimony was taken in the course of a judicial proceeding in a competent tribunal; (b) the party against whom the evidence is offered, or his privy, was a party to the former trial; (c) the issues are substantially the same in both cases; (d) a substantial reason is shown why the original witness is not available; (e) the witness who proposes to testify to the former evidence is able to state it with satisfactory correctness. See, Johns-Manville Sales Com. v. Janssens, 463 So.2d 242 (Fla. 1st DCA 1984).
In the instant case, the EUO was taken as part of the requirements of an insurance policy; it was taken prior to this lawsuit being filed; and it was not taken in connection with a judicial proceeding; and there was no opportunity for cross examination or objection; and, it is not a deposition. See, Goldman v. State Farm 660 So. 2d 300 (Fla 4th DCA 1995) [20 Fla. L. Weekly D1844a] (EUO’s and Depositions are not the same and they serve vastly different purposes). Plaintiff contends, and this Court agrees, that Fla. Stat. 90.804(2) serves to exclude Villaroel’s EUO transcript as summary judgment evidence.
Plaintiff next argues that Florida Statute 92.33 prohibits the use of the EUO transcript as summary judgment evidence under the facts of this case. Specifically, Fla. Stat. 92.33 provides that “Every person who shall take a written statement by any injured person with respect to any accident or with respect to any injury to person or property shall, at the time of taking such statement, furnish to the person making such statement a true and complete copy thereof.” (Emphasis supplied). Fla. Stat. 92.33 obligated Defendant State Farm to provide Villarroel with a copy of his EUO transcript immediately after Villarroel submitted to the EUO. Defendant failed to do so and instead waited five years into the instant litigation to produce the EUO transcript, which was readily available to Defendant at all times.
Fla. Stat. 92.33 goes on to state that “No written statement by an injured person shall be admissible in evidence or otherwise used in any manner in any civil action relating to the subject matter thereof unless it shall be made to appear that a true and complete copy thereof was furnished to the person making such statement at the time of the making thereof. . . .” (emphasis supplied).
A plain reading of Fla. Stat. 92.33 supports the conclusion that the EUO transcript in this case cannot be used as summary judgment evidence because the Defendant never provided a copy of it to the witness and Defendant has failed to demonstrate that it provided a copy of the EUO to the witness at the time the witness submitted to the EUO.
In support of its position that the EUO transcript is admissible evidence, Defendant relies on Star Casualty v. Garrido (a/a/o H. Garay) 25 Fla. L. Weekly Supp. 502a (11th Cir. App. 2017), where the Miami-Dade Circuit Court, Appellate Division, found that while an EUO is not an affidavit nor a deposition, it holds the same evidentiary value and fits under “other materials as would be admissible in evidence” pursuant to Rule 1.510(c). However, it is unknown whether the EUO transcript in the Garrido /H. Garay case was provided to the witness at the time the witness submitted to the EUO, unlike the instant case. It is also unknown if the EUO transcript was signed by the witness in the Garrido /H. Garay case, unlike the instant case.
The Garrido /H. Garay court, relying on Smith v. Fortune Ins. Co. 404 So.2d 821 (Fla 1st DCA 1981), further stated that “[A]lthough the EUO transcript is hearsay, it is admissible under the party admission hearsay exception found in Fla. Stat. 90.803(18). Unlike the instant case, the declarant in the Smith case was aligned with the plaintiff in that case in that the plaintiff in Smith was the owner of the burned mobile home, and the declarant was a member of the insured household. In the instant case, the declarant, Villarroel, and the Plaintiff medical provider, are not the same and they have very different interests in this action. Additionally, the Defendant’s reliance on Smith and the cases citing to Smith is misguided because Villarroel cannot be a party since he assigned his rights to the Plaintiff and only the provider or the patient can have standing in a PIP case. See, Progressive Ins. Co. v. McGrath , 913 So. 2d 1281 (Fla 2nd DCA 2005) [30 Fla. L. Weekly D2622b].
More importantly, the Garrido / H. Garay case relies on two county court orders, Millennium Diagnostic v. Allstate, 14 Fla. L. Weekly. Supp. 84a (Fla 11th Cir. Ct. Oct 12, 2006), and Garrido (F. Garay) v. Star Casualty, 23 Fla. L. Weekly Supp. 557c (Miami-Dade Cnty. Ct. Jan. 14, 2015), both of which contain no legal analysis as to how the court concluded that a hearsay EUO transcript was rendered admissible. There was also no indication regarding whether or not the EUO transcripts in those cases were signed by the witnesses, nor if the EUO transcripts were provided to the witnesses at the time of the EUOs, as required by Fla. Stat 92.33 and Defendant’s own policy terms.
Judge Dimitris’ Order in Coral Gables Family Chiro (Pena & Renzo) v. Star Cas. Ins. Co., 24 Fla. Weekly Supp. 222a (Miami-Dade County Ct. July 8, 2016) contains a well-reasoned analysis finding that the EUO of the insured patient is inadmissible summary judgment evidence because “[T]he EUO of Pena was not given under oath at trial, hearing or other legal proceeding and was not subject to cross examination. Further Pena is not a party to this action, and she is the assignee and thereby simply a lay witness. Accordingly, any exceptions to the hearsay rules of evidence that would apply to a party pursuant to the Florida Evidence Code do not apply to the EUO of Pena.”
Similarly, the court in Hollywood Pain (Escamilla) vs. United Auto, 13 Fla. L. Weekly Supp. 162c (Broward Cty Ct. June 5, 2002), found that the EUO of the insured / patient / assignee in a PIP case was not given under oath at a trial, hearing, or other legal proceeding and it was not subject to cross examination and was therefore deemed to be inadmissible hearsay evidence under the Florida Evidence Code. See, also Damadian MRI vs. United Auto 14 Fla. L. Weekly Supp. 498b (Broward County Court, March 13, 2007) (EUO was not given under oath at a trial or legal proceeding and not subject to cross examination and therefore inadmissible).
Defendant claims that EUO’s are substantially similar to affidavits and in support of that position it relies on Stinnett v. Longi Inc., 460 So.2d 528 (Fla. 2d DCA 1984) and Avampato v. Markus, 245 So.2d 676 (Fla. 4th DCA 1971). The Court, however, finds that Stinnett and Avampato are distinguishable because both cases involved the use of a deposition in a summary judgment proceeding where the depositions were taken without the presence of the adverse party, and depositions are expressly authorized by Rule 1.510 (c), but EUOs are not.
In fact, the “substantial similarity” test invoked in Stinnett and Avampato is no longer applicable. Rule 1.510(c) was amended after Stinnett and Avampato were decided to “expand the types of evidence to be considered in a summary judgment motion, by adding the phrase “other materials as would be admissible in evidence.” See, In re Amendments to the Florida Rules of Civil Procedure, 917 So.2d 176, 177 (Fla. 2005) [30 Fla. L. Weekly S848a]. Therefore, whether EUO’s are a permissible form of summary judgment evidence, including the scope of their admissibility, is controlled by the 2005 amendment to Rule 1.510 (c) and the Florida Evidence Code, as stated above.
Finally, an EUO is hearsay because it is an out of court statement allegedly made by the insured and offered to prove the truth of the matter asserted, but once transcribed it becomes hearsay within hearsay because EUO transcripts are not statements by the insured but rather statements by a stenographer memorializing what the insured allegedly said. See Williams v. State, 185 So.2d 718, (Fla. 3rd DCA 1966) (“The transcribed record was not a statement of the appellant and consequently, was not admissible in evidence as such.”). Accordingly, the EUO transcript is inadmissible for substantive purposes unless its accuracy is acknowledged by the declarant. The same is not true for depositions because depositions can serve as summary judgment evidence as a matter of law.
CONCLUSION
Accordingly, this Court finds that the EUO of Villarroel is questionable. It was created five years after this action began and it was submitted to the Court solely for use in this litigation after Defendant represented in the companion case referenced above that if it ever located the EUO transcript (which it had the ability to do so at any time) it would not use the EUO for any purpose. Additionally, the EUO transcript is not a deposition nor an affidavit. It is not signed or acknowledged by Villarroel in any way. It was not given during the course of a trial or other legal proceeding. There was no opportunity for cross examination, or objection at the EUO. The EUO was produced in a manner that violates Defendant’s own insurance policy requirements in that Villarroel was not provided with an opportunity to review and sign the EUO. The EUO was never provided to Villarroel at the time he submitted to the EUO, nor at any time thereafter. Pursuant to Fla. Stat. 92.33, the Defendant is therefore prohibited from using the EUO for any purpose, in any civil action. And, the EUO is hearsay and the EUO transcript is double hearsay.
For the foregoing reasons, this Court finds that the EUO transcript of Villarroel is inadmissible hearsay evidence and cannot be used by the Defendant at summary judgment. Plaintiff’s Motion to Strike the EUO is hereby GRANTED.
