4 Fla. L. Weekly Supp. 380a
Insurance — Personal injury protection — Wrongful withholding of benefits — Appellate court must assume lower court decided factual issues correctly where party seeking reversal for insufficiency of evidence failed to provide transcript of proceedings before lower court or stipulated statement of facts as substitute for transcript — Summary judgment was properly granted in favor of insurer as matter of law where plaintiff never provided insurer with medical bills at issue prior to filing lawsuit — Insurer has no obligation to pay benefits to insured until thirty days after claimant supplies proof that covered loss occurred and proof of amount of loss
RAYMOND GAUVREAU, Appellant, v. FORTUNE INSURANCE CO., Appellee. 17th Judicial Circuit in and for Broward County. Appellate Division. Case No. 94-14403 (02). June 5, 1995 & July 17, 1995. Leonard L. Stafford, Judge.
FINAL ORDER AND OPINION
THIS CAUSE, having come before the Court on appeal from County Court. The Court having heard argument of counsel on May 19, 1995, and being fully advised on the premises, hereby finds:
This is an appeal to review a summary final judgment entered in favor of the appellee/defendant in an action for alleged wrongful withholding of benefits under an automobile insurance policy.
Appellant alleges the evidence before the trial court was not sufficient to support a finding that Plaintiff never provided the Defendant with the medical bills at issue prior to the filing of the lawsuit. The appellant/plaintiff set out certain facts in his brief which he uses as support for reversing. When there are issues of fact the appellant necessarily asks the reviewing court to draw conclusions about the evidence. Without a record of the trial court proceedings, the appellate court cannot properly resolve the underlying factual issues so as to conclude that the trial court's judgment is not supported by the evidence or by an alternative theory. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979).
This appeal does concern issues of fact which were resolved adversely to the Plaintiff in the final summary judgment. This Court was not furnished with a transcript of the hearing which generated the judgment being challenged in this appeal. The Appellant did not attempt to furnish this Court with a stipulated statement of facts as a permissible substitute for a transcript of the evidence. Fla. R. App. P. 9.200(b)(4). Unless this Court is provided with all of the evidence which was before the trial court, either by a transcript of the hearing or a stipulated statement, then this Court cannot fault and reverse a trial judge for a purported error. Beasley v. Beasley, 463 So.2d 1248 (Fla. 5th DCA 1985). This Court must assume the lower court correctly decided the factual issues. See Crusaw v. Crusaw, 637 So.2d 949 (Fla. 1st DCA 1994).
Florida Rule of Appellate Procedure 9.200(f)(2) does provide that “if the court finds the record is incomplete, it shall direct a party to supply the omitted parts of the record''. This rule applies when a record exists below that is needed to complete the appellate record. However, there is no obligation on this Court's part to afford a party on appeal a second opportunity to create a record simply because he ignored the rule the first time around. See Southeast Bank, N.A. v. Steves, 552 So.2d 292 (Fla. 2d DCA 1989); Carter v. Carter, 504 So. 2d 418 (Fla. 5th DCA 1987); Thomas v. Thomas, 498 So.2d 668 (Fla. 5th DCA 1986).
Where an appellant challenges the sufficiency of the evidence, he has the burden of bringing before the Court a complete record of the proceedings below; in the absence of such a record the Court must presume that there was sufficient evidence and testimony presented to the trial court to support its findings of fact, and its consideration is limited to any fundamental error which appears on the face of the order. See In re Guardianship of Georgina H. Read, 555 So.2d 869 (Fla. 2d DCA 1990), Damkohler v. Damkohler, 336 So.2d 1243 (Fla. 4th DCA 1976).
The only remaining question for this Appellate Court is whether the summary judgment was properly granted under the law. The trial court concluded Fla. Statute Section 627.736(4)(b) required written notice consisting of the amount of the claim (medical bills) submitted to the Insurance Company prior to the Plaintiff filing suit. In Obando v. Fortune Insurance Company, 563 So.2d 116 (Fla. 3rd DCA 1990), the Court held that until such time as benefits were wrongfully withheld, the insured was in no position to claim a denial of coverage. An attorney could not recover where there were no unpaid medical bills pending when the complaint was filed. A PIP insurer has thirty days after being “furnished written notice of the fact of a covered loss and of the amount of the same'' to make payment. See Ledesma v. Bankers Insurance Company, 573 So.2d 1042 (Fla. 3rd DCA 1991). Judge Pratt determined that Plaintiff never provided defendant with the medical bills at issue prior to the filing of this lawsuit. Pursuant to statute, the insurer has no obligation to pay benefits to the insured until thirty days after the claimant supplies proof of the fact, and amount of the loss sustained. Section 627.736(1), Florida Statutes.
As such, it is hereby:
ORDERED AND ADJUDGED, Appellant having demonstrated no reversible error, the judgment appealed is AFFIRMED.
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FINAL ORDER OF DISMISSAL
THIS CAUSE, having come before the Court upon Appellant's Motion for Rehearing of this Court's decision rendered on June 5, 1995. The Court having considered the motions, and being fully advised on the premises, hereby finds:
On June 19, 1995, Appellant filed an incomplete record. The record consisted of deposition testimony only. Unfortunately, the transcript of the summary judgment hearing does not appear in the record on appeal, nor did the parties submit a stipulated statement pursuant to Rule of Appellate Procedure 9.200(a)(3). Under these circumstances, this Court must assume the lower court correctly decided the factual issues. See Crusaw v. Crusaw, 637 So.2d 949 (Fla. 1st DCA 1994).
In Accordance with this Court's Order and Opinion dated June 5, 1995, this Court stated that without a record of the trial court proceedings, the appellate court cannot properly resolve the underlying factual issues so as to conclude that the trial court's judgment is not supported by the evidence or by an alternative theory. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979).
This appeal does concern issues of fact which were resolved adversely to the Plaintiff in the final summary judgment. This Court was not furnished with a transcript of the hearing which generated the judgment being challenged in this appeal. The Appellant did not attempt to furnish this Court with a stipulated statement of facts as a permissible substitute for a transcript of the evidence. Fla. R. App. P. 9.200(b)(4). Unless this Court is provided with all of the evidence which was before the trial court, either by a transcript of the hearing or a stipulated statement, then this Court cannot fault and reverse a trial judge for a purported error. Beasley v. Beasley, 463 So.2d 1248 (Fla. 5th DCA 1985). It is the responsibility of the appellant to ensure the record is adequate to permit resolution of issue raised on appeal is prepared and transmitted to the appellate court. Fla. R. App. P. 9.200(e).
The only remaining question for this Appellate Court was whether the summary judgment was properly granted under the law. The trial court concluded Fla. Statute Section 627.736(4)(b) required written notice consisting of the amount of the claim (medical bills) submitted to the Insurance Company prior to the Plaintiff filing suit. The Appellant had originally filed suit against Fortune Insurance in 1992, and the case was dismissed since the plaintiff/appellant was unavailable or missing. The Appellant refiled suit on May 10, 1994. Although the record is incomplete, the appellant clearly admitted the amount of the claim, and the bills were not provided to Fortune Insurance Company until June 9, 1994. The appellant/plaintiff resorted to litigation prior to submitting proof of his claim. In this Court's view of the statute, the insurer has no obligation to pay benefits to the insured until thirty days after the claimant supplies proof of the fact, and amount of the loss sustained. Section 627.736(1), Florida Statutes. In Levy v. Travelers Ins. Co., 580 So.2d 190 (Fla. 4th DCA 1991), the cause of action was a first party claim in contract for failure to pay the contractual obligation for personal injuries sustained, regardless of fault. The coverage is mandated by section 627.736(1), Florida Statutes, in all policies complying with the security requirements of section 627.733, Florida Statutes. The Fourth District Court of Appeal determined that defendant's obligation to pay personal injury protection benefits required by its policy which coverage is mandated by section 627.736(1) did not arise until “loss was incurred'' and benefits “are overdue if not paid within thirty days after the claimant supplies proof of the fact and amount of loss sustained''. The Court concluded that an insured's cause of action to recover the unpaid benefits accrues at the same time. This Court agrees with Judge Pratt's interpretation that the statute requires plaintiff to provide proof of the fact by providing medical bills prior to filing suit.
As such, it is hereby:
ORDERED AND ADJUDGED, the judgment of the trial court be AFFIRMED, and this action be DISMISSED.
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