27 Fla. L. Weekly Supp. 303a
Online Reference: FLWSUPP 2703LRODInsurance — Personal injury protection — Coverage — Medical expenses — Summary judgment — Motion for summary judgment, requesting determination that nonresident insured with New Hampshire policy is not entitled to additional Florida PIP benefits for accident that occurred in Florida because he had not been in state for 90 days within 365 days prior to accident so as to be required to maintain PIP insurance under section 627.733, is denied — Evidence — Hearsay — Because PIP policy is non-hearsay, unauthenticated copy of policy is admissible in support of motion for summary judgment without the necessity to lay a foundation for its admission as a business record — Affidavit of claims specialist is admissible in support of motion for summary judgment, but portion of affidavit regarding claims note that relates conversation in which insured told another agent that he had only been in Florida for 3 weeks at time of accident is inadmissible double hearsay — Business records exception is not applicable to claims note where affiant had no personal knowledge of conversation — Admissions exception is not applicable to claims note where statements were made by nonparty insured and were not adopted by medical provider or injured claimant
THE PERSONAL INJURY CLINIC, INC., a/a/o Lany Rodriguez, Plaintiff(s), v. LIBERTY MUTUAL FIRE INSURANCE COMPANY, Defendant(s). County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 2016-000227-SP-21, Section HI 01. May 14, 2019. Milena Abreu, Judge. Counsel: Ryan Peterson, Patino Law Firm, Hialeah, for Plaintiff. Stephen Mellor, Roig Lawyers, for Defendant.
ORDER
COMES NOW, the Court, after a one hour hearing on Defendant’s Motion for Summary Judgment, review of the pleadings, affidavits, relevant case law, applicable Statutes, evidence code and arguments of counsel, hereby rules as follows:
FACTUAL BACKGROUND:
1) The Plaintiff, the Personal Injury Clinic, Inc. as assignee of Lany Rodriguez is a healthcare provider who rendered medical treatment and/or services to Ms. Rodriguez for injuries sustained in a motor vehicle accident that occurred on June 20, 2011 in Florida.
2) Following the accident, Ms. Rodriguez filed a claim for no-Fault benefits with Defendant, Liberty Mutual under a New Hampshire policy of insurance, originally issued to Eduardo & Lymaris Bidot.
3) The policy elected for $ 1,000.00 in medical payments coverage benefits (MPC) which were extended to Ms. Rodriguez for this accident.
4) During the claim, Liberty Mutual made payments to Miami Quality Services, Inc., on August 3, 2011 in the amount of $1,000.00 for medical services rendered to Ms. Rodriguez between 6/21/11 through 7/5/11.
5) Plaintiff’s bills were for dates of service 7/15/11 and 8/16/11, after the above bills were received by Liberty Mutual from Miami Quality Services.
6) The New Hampshire policy provides that “if the state or province where the accident occurs has. . a compulsory insurance or similar law requiring a nonresident to maintain insurance whenever the nonresident uses a vehicle in that state or province, your policy will provide at least the required minimum amounts and types of coverage.”
7) Plaintiff asserts they are entitled to the $ 10,000 Florida PIP limit based on the language of the New Hampshire policy and Florida PIP statutes.
8) Defendant asserts Ms. Rodriguez would not qualify for any additional Florida PIP benefits pursuant to Florida Statute 627.733 and has exhausted the $ 1,000.00 limit under the New Hampshire policy.
Plaintiff’s Motion to Strike the Affidavit of Claudy Sully andUnsworn and Unauthenticated copy of the insurance policy:
Before addressing the merits of Defendant’s Motion for Summary Judgement, the Court will first address Plaintiff’s Motion to Strike the Affidavit of Defendant’s representative and unauthenticated copy of the insurance policy, attached to Defendant’s Motion for Summary Judgment.
An insurance policy is a contract; hence Plaintiff’s claim against Defendant for breach of contract. “Words of a contract, often characterized as verbal acts, are non hearsay because they have independent legal significance; the law attaches duties and liability to their utterance.” A.J. v. State, 677 So.2d 935 (Fla 4th DCA 1996) [21 Fla. L. Weekly D1677e]. See also Deutsche Bank Nat’l Trust Co. v. Alaqua Property, 190 So. 3d 662 (Fla. 5th DCA 2016) [41 Fla. L. Weekly D994b] (holding that a promissory note, which is a contract, is not hearsay and not subject to the hearsay rule because its words have independent legal significance in that they “establish the existence of the contractual relationship and the rights and obligations of the parties regardless of the truth of any assertions made in the document.”) Given that an insurance policy is a contract and it has independent legal significance, the Court finds the insurance policy is not hearsay and Defendant is not required to lay the predicate for a business record exception for the policy as such an exception is only needed when a document is hearsay. Because the insurance policy is non-hearsay, it is admissible in support of Defendant’s Motion for Summary Judgment. Plaintiff’s Motion to Strike the insurance policy is denied.
Plaintiff also moves to strike the affidavit of Claudy Sully. Plaintiff moved to strike the affidavit, including her testimony and documents attached thereto on the basis of hearsay. Defendant asserts the business record exception to the hearsay rule, in addition to admissions against interest (90.803 (18)).
The Court first finds that the affidavit itself is admissible to the extent that the affiant, Claudy Sully is the claims specialist assigned to the instant lawsuit; she has been tasked with handling this particular claim and therefore has knowledge of this claim, including the amounts (if any), the Defendant paid for medical services; when bills were paid (if any), how bills were paid (if any), or why certain medical bills were not paid; that Ms. Sully is also the records custodian for this particular claim file and can attest to the authenticity of documents and information within her own personal knowledge of the claim. Therefore, Plaintiff’s Motion to Strike the entirety of Ms. Sully’s Affidavit is denied.
The “claim note” portion of Ms. Sully’s Affidavit discussing a conversation between the named insured Eduardo Bidot and another Liberty Mutual agent, Vanessa Gonzalez, is a different issue. The Court notes this “claim note” forms the basis of Defendant’s affirmative defense that Plaintiff was not entitled to Florida PIP benefits under 627.733, based upon Mr. Bidot’s statement that he was only in Florida for 3 weeks. The Court also notes that the claim note that purports to reflect the conversation between the insured and agent is not attached to the Affidavit as the Defendant has asserted a work product privilege. Therefore, on the face of Ms. Sully’s affidavit alone without nothing more regarding the claim note, falls squarely within hearsay. Specifically, this conversation is
1) An out of court statement;
2) Made by another declarant (Vanessa Gonzalez)
3) Offered to prove the truth of the matter asserted; (Eduardo Bidot, an insured was only present in the State of Florida for 3 weeks prior to the accident and thus, ineligible for Florida PIP benefits pursuant to 627.733.)
Not only does this purported conversation fall squarely within hearsay, the Court emphasizes the double layer of hearsay within the claim note, as the statement was made by Mr. Bidot (a named insured), to Vanessa Gonzalez (claims agent), who documented said conversation in a claims file that was subsequently read by the present affiant, Claudy Sully.
LEGAL ANALYSIS:
Defendant moves for summary judgment pursuant to Florida Rule of Civil Procedure 1.510 on the basis of benefits exhausted up to the contractual limit of $ 1,000.00 per the New Hampshire insurance policy. Thus, there is no genuine issue as to any material fact and Defendant is entitled to judgment as a matter of law. In support thereof, the Defendant asserts that on June 20, 2011, the named insured in the policy, Eduardo Bidot contacted the Defendant to report the accident and informed a representative/agent (Vanessa Gonzalez) that he and his vehicle had only been in Florida for about three (3) weeks prior to the accident, and that he had not made a decision as to whether he was permanently moving to Florida. Based on this statement, the Defendant denies Ms. Rodriguez qualifies for any Florida PIP benefits under 627.733.
Florida Statute 627.733 titled “Required Security” states in pertinent part under subsection (2):
“Every nonresident owner or registrant of a motor vehicle which, whether operated or not, has been physically present within this state for more than 90 days during the preceding 365 days shall thereafter maintain security as defined by subsection (3) in effect continuously throughout the period such motor vehicle remains with this state.”
As stated above, Florida Statute 627.733(2) only requires PIP insurance to be obtained by the insured on a motor vehicle when non-residents and their vehicles are “physically” present within the State of Florida for more than 90 nonconsecutive days during the preceding 365 days from the date of loss.
The Defendant’s basis for not extending Florida PIP coverage is based on the hearsay statements of Eduardo Bidot to the original claims agent, Vanessa Gonzalez.
The Defendant asserts 2 hearsay exceptions: 1) the business record exception 90.803 (6) and admissions against interest 90.803 (18).
The elements to prove that evidence is admissible under the business record exception are:
1) the record was made at or near the time of the event;
2) was made by or from information transmitted by a person with knowledge;
3) was kept in the ordinary court of a regularly conducted business activity;
4) that it was a regular practice of that business to make sure a record.
Upon review of Ms. Sully’s affidavit, this Court finds that the Affiant does not have the requisite personal knowledge to attest to a conversation between two other people, enough to satisfy the second element of a business record exception. Although Ms. Sully’s testimony arguably establishes that the undisclosed claim note was made at or near the time of the accident during the regular course of business, her testimony does not establish that a person with knowledge created the claim note. Moreover, the testimony of Ms. Sully simply describing the content of the undisclosed claim note is inadmissible double hearsay.
Defendant next argues the undisclosed claim note also falls under the Admissions hearsay exception, 90.803 (18).90.803 (18) that states: A statement that is offered against a party and is:
a) The party’s own statement in either an individual or a representative capacity;
b) A statement of which the party has manifested an adoption or belief in its truth;
c) A statement by a person specifically authorized by the party to make a statement concerning the subject;
d) A statement by the party’s agent or servant concerning a matter within the scope of the agency or employment thereof, made during the existence of the relationship;
e) A statement by a person who was a coconspirator of the party during the court, and in furtherance of the conspiracy.
There has been no evidence presented to this court that either Plaintiff or Ms. Rodriguez made their own statements, that she adopted in any way Mr. Bidot’s alleged statements, or Mr. Bidot was an authorized agent making statements on behalf of Ms. Rodriguez or that she was involved in some sort of conspiracy.
Additionally, the Defendant cites to three cases for the proposition that the insured/non-party/Eduardo Bidot’s statements to the claims agent regarding being in Florida for only three weeks somehow qualifies as an “admission,” against plaintiff The Personal Injury Clinic as assignee of Ms. Rodriguez. Specifically, the Defendant cites to Smith v. Fortune Ins. Co, 404 So2d 821, (1rst DCA 1981), Botte v. Pomeroy, 497 So2d 1275, (4th DCA 1986), and Castaneda v. Redlands Christian Migrant Ass’n, 884 So2d 1087, (4th DCA 2004) [29 Fla. L. Weekly D2346a]. However, the Court finds all three cases cited by the Defendant unpersuasive and highly distinguishable from this case.
The Smith case involved litigation surrounding an insurance company’s refusal to pay out proceeds under a fire insurance policy when the insured’s daughter- confessed to committing arson to a police officer. The Court held the daughter was an “adverse party” even though not a named party in the pleadings and her confession specifically fell under subsection (a)- a party’s own statement, because she too was an insured and a testifying witness at trial. Id at 823.
Here, there is no admission, let alone a confession by Plaintiff, as an assignee of Ms. Rodriguez; nor is Ms. Rodriguez a named or deemed insured; in fact, Defendant asserts Ms. Rodriguez was never a named insured.
Likewise, both the Castaneda case and Botte case involve statements of an employee and whether employee statements can be deemed an “admission” against an employer, specific to subsection (d) of the Admissions hearsay exception, 90.803 (18). There is no evidence in this record to indicate Ms. Rodriguez had an agency or employer/employee relationship with the insured, Mr. Bidot. Again, these cases are inapplicable and distinguishable
Simply put, statements by a declarant who is not a party to the litigation are not admissible under section 90.803(18). Only statements of an adverse party which are offered against the party are admissions.
Lastly, in evaluating whether summary judgment is appropriate, the trial court must determine whether the record evidence conclusively demonstrates that the moving party proved no genuine issues of material fact exist, to establish irrefutably that the nonmoving party cannot prevail were a trial to be held.” Redland Ins Co. v. CEM Site Constructors, Inc., 86 So3d at 1259 [37 Fla. L. Weekly D1115a]. (emphasis in original)
Because Ms. Sully’s affidavit constitutes inadmissible double hearsay regarding the claim note, nor does the undisclosed claim note qualify as an admission against interest, that portion of the affidavit cannot support Defendant’s motion for summary judgment. Defendant’s Motion for Summary Judgment is respectfully denied.
PLAINTIFF’S COUNTER EVIDENCE IN OPPOSITION TODEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Plaintiff has filed an affidavit of an employee of the medical provider in this case to counter Defendant’s Motion for Summary Judgment. However, the Court will not address Plaintiff’s counter-affidavit as the Defendant/moving party has failed to meet their initial burden of proving the absence of any genuine issues of material fact.
