6 Fla. L. Weekly Supp. 593a
Insurance — Personal injury protection — Action against insurer which discontinued payment of benefits after independent medical examiner advised insurer that injuries were not related to automobile accident — Trial court did not err in finding relevant the testimony of an orthopedic doctor who treated insured prior to date benefits were cut off and who testified regarding medical treatment, future treatment needs, and permanency of insured’s condition — Claim that testimony was cumulative not preserved for appeal where insurer did not object at trial to introduction of doctor’s testimony — Filing of motion for protective order to prevent deposition before trial not sufficient to preserve right to appellate review when the deposition is introduced at trial — No abuse of discretion in excluding portion of deposition in which insurer’s counsel asked physician questions regarding whether he was paid to attend deposition and how much he was paid — Claim that trial court erred in preventing insurer from questioning insured as to whether she had filed third party lawsuit after doctor changed cause of injury in her medical records was not preserved for review where insurer did not make proffer — Ruling was not a clear abuse of discretion — Insurer cannot complain that trial court erred in refusing to advise jury on statutes governing no-fault law and IME cut-offs where insurer made no attempt to introduce evidence relating to IME cut-offs — Attorney’s fees — Error to award 2.0 multiplier without making specific findings
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. JUNE WILLIAMS, Appellee. 9th Judicial Circuit in and for Orange County. Case No. CVA198-14. Lower Ct. Case No. CO95-8930. July 15, 1999. Appeal from the County Court for Orange County, Stephan Carter, Judge. Counsel: Law Offices of Shelley Senecal, Shelley Senecal, for Appellant. Langa & Hardy, Harvey Hardy, for Appellee.
FINAL ORDER AND OPINION
(PER CURIAM.) Appellant, State Farm Mutual Automobile Insurance Company (“State Farm”), appeals a final judgment entered in favor of Appellee, June Williams (“Williams”). This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(c). This Court, having reviewed the briefs of the parties, dispenses with oral argument pursuant to Florida Rule of Appellate Procedure 9.320.
In January 1993, Williams was involved in a motor vehicle accident. Although she was experiencing physical discomfort, she did not seek medical treatment at that time. In October 1993, Williams was moving into a new apartment. As she was carrying a light table inside, she turned in a peculiar fashion and began experiencing increasing pain. Subsequently, Williams sought medical treatment from Dr. Duval. At the time, she attributed her injury to the moving incident. However, after five or six visits, Williams advised Duval about the prior automobile accident and Duval altered Williams’ medical records to reflect that as the cause of her injury.1
Williams submitted her medical bills to State Farm for payment under her Personal Injury Protection (“PIP”) insurance. On June 5, 1994, Dr. Mark Harris conducted an independent medical examination (“IME”) of Williams for State Farm. Harris advised State Farm that Williams’ injuries were not related to the automobile accident. State Farm discontinued payment of benefits as of July 10, 1994.
Williams filed suit against State Farm to collect for medical expenses incurred after July 10,1994. The case was tried before a jury and a verdict was returned in Williams’ favor. A final judgment was entered on February 17, 1998. State Farm filed a timely Notice of Appeal.
On appeal, State Farm argues that the trial court made several erroneous evidentiary rulings and that the trial court erred in granting a 2.0 multiplier for Williams’ attorney’s fees.
Dr. Reynolds’ Testimony
At trial, Dr. Duval, Williams’ treating chiropractor, testified regarding her treatment both before and after July 10, 1994, her future medical needs, and the permanency of her condition. Dr. Reynolds, an orthopedic doctor who treated Williams prior to the cut-off date, also testified regarding her medical treatment, future treatment needs, and the permanency of her condition. State Farm argues that Dr. Reynolds’ testimony was irrelevant and cumulative and that the trial court erred in admitting it into evidence.
Section 90.401, Florida Statutes, provides that relevant evidence is evidence which tends to prove or disprove a material fact. “All relevant evidence is admissible unless its probative value is substantially outweighed by the danger of unfair prejudice, or unless otherwise excluded by law.” White v. Westlund, 624 So. 2d 1148, 1151 (Fla. 4th DCA 1993); see §§ 90.402 and 90.403, Fla. Stat. “[T]rial courts exercise broad discretion in matters relating to the admissibility of relevant evidence, and where a court has weighed probative value against prejudicial impact before reaching its decision to admit or exclude evidence, that ruling will not be overturned absent a clear abuse of discretion.” White, 624 So. 2d at 1151-52; see Trees v. K-Mart Corp., 467 So. 2d 401 (Fla. 4th DCA), rev. denied, 479 So. 2d 119 (Fla. 1985). The trial court did not err in finding that Dr. Reynolds’ testimony was relevant.
State Farm also argues that Dr. Reynold’s testimony was cumulative. Section 90.403, Florida Statutes, provides that “[r]elevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” In order to preserve this type of evidentiary issue for appeal, a party must object at trial contemporaneously with the admission of the contested evidence. Section 90.104, Florida Statutes, provides in pertinent part that:
A court may predicate error, set aside or reverse a judgment, or grant a new trial on the basis of admitted or excluded evidence when a substantial right of the party is adversely affected and: (a) When the ruling is one admitting evidence, a timely objection or motion to strike appears on the record, stating the specific ground of objection if the specific ground was not apparent from the context ….
The record reflects that State Farm failed to object at trial to the introduction of Dr. Reynolds’ testimony. State Farm argues that a Motion for Protective Order filed prior to Dr. Reynolds’ deposition was sufficient to preserve this issue for appeal. This Court finds that simply filing a motion to prevent a deposition before trial is not sufficient to preserve a right to appellate review when that deposition is introduced at trial. Therefore, this Court finds that State Farm failed to preserve this issue for appellate review.2
During his deposition, State Farm asked Dr. Reynolds several questions regarding whether he was paid to attend his deposition and how much he was paid. State Farm sought to introduce this exchange at trial. The trial court sustained an objection to this exchange finding that it had not resulted in admissible evidence.
State Farm argues that it was entitled to show what Dr. Reynolds was paid for his testimony and that Dr. Reynolds’ demeanor during questioning was relevant. The record reflects that evidence regarding Dr. Reynolds’ fee and the payment thereof was introduced in the latter part of his deposition. However, State Farm argues that the mere fact that the jury was aware Dr. Reynolds was paid was not a substitute for the jury’s ability to assess Dr. Reynolds’ demeanor and credibility during the subject exchange.
The trial court weighed the admissibility of the exchange between counsel for State Farm and Dr. Reynolds and found that State Farm was not entitled to introduce the exchange as evidence of Dr. Reynolds’ demeanor and bias because the exchange itself was not otherwise admissible. This Court finds that the trial court’s exclusion of that part of Dr. Reynolds’ deposition testimony was not a clear abuse of discretion. See Trees v. K-Mart, 467 So. 2d at 401.
Williams’ Third Party Claims
At trial, State Farm asked Williams if she had filed a third party lawsuit as a result of the subject accident. Williams’ counsel objected as to relevance. The trial court sustained Williams’ objection. State Farm concedes that bodily injury claims are inadmissible in PIP lawsuits, but argues that the change in the cause of the injury, based upon Dr. Duval’s medical records, served as a relevant basis for the inquiry. State Farm argues that the trial court erred in denying it the opportunity to inquire as to whether Williams’ medical records were altered so that she could pursue a third party claim. Williams again argues that State Farm failed to properly preserve this matter because it did not make a proffer. Williams also argues that the trial court’s ruling was not an abuse of discretion.
At trial, State Farm argued that whether Williams filed a third party claim after the doctor changed the cause of injury in her medical records was relevant to “impeachment-biased motive” of a witness. The trial court found that there was no evidence that Williams’ medical records had been changed at that point in the trial. Therefore, the trial court found that the matter was irrelevant for the moment, although it might later be relevant. After the trial court ruled, State Farm did not attempt to raise this issue with Williams again nor did State Farm make a proffer of what testimony it expected to elicit from Williams.
This matter was not properly preserved. Further, this Court finds that even if it had been properly preserved, the trial court’s ruling was not a clear abuse of discretion.
Opportunity to Explain IME Cut-Offs and PIP Claims
State Farm argues that the trial court erred when it refused to advise the jury on Florida Statutes governing no-fault law and IME cut-offs and that the trial court so narrowly limited the issues to be tried that it was prejudiced. State Farm argues that it should have been permitted to tell the jury that it was acting within its statutory rights when it reviewed Williams’ medical bills and denied them.
Williams argues that State Farm’s attempt to refer to the IME cut-off on appeal is inappropriate because State Farm made no attempt to introduce such evidence at trial. Dr. Harris, who conducted Williams’ IME, did not even testify at trial. At a pre-trial conference, the trial court stated that:
Here’s what we are going to try: What the accident was, what the treatment has been, the opinions as to whether the treatment after the cutoff was medically necessary and related to this accident. The fact that State Farm paid anything, is not coming up. The fact that there was a cutoff at all is not coming in.
(T 19, September 10, 1997 Pre-Trial Hearing). The trial court found that the issue of prior payment and the reason for cut-off were irrelevant to the issue of whether the unpaid bills were related to the subject accident and medically necessary.
State Farm argues that it was unable to put forth a defense without being able to explain that it did pay medical bills prior to July 10, 1994, and why it refused to pay after that date. Thus, State Farm argues, it was prejudiced by its inability to present the entire PIP statutory scheme to the jury. State Farm also argues that the trial court made it clear that any testimony regarding the IME cut-off would not be permitted, therefore, State Farm did not introduce Dr. Harris’ testimony regarding the same because it would have confused the jury.
The trial court did not permit any testimony regarding the fact that State Farm had paid all submitted medical bills on Williams’ behalf prior to the July 10, 1994, cut-off date. The trial court focused only on the non-payment of bills submitted after that date. The trial court’s restriction did not prevent State Farm from asserting that the unpaid bills were not reasonable, necessary and related to the subject accident. State Farm was not prevented in any way from presenting its case or asserting its affirmative defenses. However, State Farm chose not to go forward with its case after Williams rested.
State Farm cannot complain now that the trial court limited the presentation of its case when it did not attempt to offer any testimony at trial. Further, this Court finds that the trial court’s ruling was not erroneous.
Award of a 2.0 Multiplier
State Farm argues that the trial court erred in awarding a 2.0 multiplier because this case does not satisfy the requirement that the issues involved be novel and difficult. See Standard Guaranty Ins. Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990). State Farm also argues that the trial court erred because it did not make any specific findings of fact with respect to the award of a multiplier as required by Florida Patients Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985).
The trial court’s order awarding attorney’s fees states in its entirety:
The Court finds 127.9 is the reasonable number of hours, $175/hour is the reasonable rate, and that plaintiff’s counsel is entitled to a 2.0 multiplier. Plaintiff’s attorney will prepare an appropriate order and judgment.
The Final Judgment did not make any further findings with respect to the award of the multiplier. The trial court’s failure to include specific findings regarding the award of a multiplier was error. See Florida Patients Compensation Fund v. Rowe, 472 So. 2d at 1145; Old Southern Life Ins. Co. v. Kirby, 563 So. 2d 706 (Fla. 5th DCA 1990); Atlantis Building B. Condominium Association, Inc. v. Swaski, 544 So. 2d 1069 (Fla. 4th DCA 1989). Therefore, the attorney’s fee award is reversed and remanded to the trial court for specific findings.
Accordingly, it is hereby,
ORDERED AND ADJUDGED that the Final Judgment in favor of Appellee, June Williams, is AFFIRMED IN PART and REVERSED IN PART.
The attorney’s fee award is reversed and remanded to the trial court for proceedings consistent with this opinion.
The remainder of the final judgment is affirmed. (KIRKWOOD, MIHOK and EVANS, JJ. concur.)
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1Duval testified that he became convinced that Williams’ injury was too severe to have been caused by the moving incident. He discussed the matter with Williams who then advised him of the automobile accident. Duval then attributed her injury to that accident instead of the moving accident.
2Even if the issue was properly preserved, it appears that the trial court’s decision to admit such testimony was not a clear abuse of discretion. See Trees v. K-Mart, 467 So. 2d 401 (Fla. 4th DCA 1985).
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