7 Fla. L. Weekly Supp. 87a
Insurance — Personal injury protection — Assignment of benefits to health care provider — Evidence — Insurer’s senior claims representative was not competent to authenticate health insurance claim forms signed by insured and forwarded to insurer by insured’s medical providers — Forms were not admissible under business records exception to hearsay rule because forms were completed by medical providers, not by insurer — Insurer’s claims representative was not custodian of the forms or otherwise qualified to testify as to the method of preparation and reliability of the forms — Error to grant summary judgment in favor of insurer on ground that insured was deprived of standing by de facto assignment where that determination was based in part on inadmissible evidence
SUSAN WHITNEY, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee. 13th Judicial Circuit in and for Hillsborough County, Appellate Division. Case No. 98-8598, Division “G”. Lower Case No. 97-14931. Opinion filed November 16, 1999. Appeal from County Court, Division K, Hillsborough County; Daniel Gallagher, Judge. Counsel: Karen A. Barnett, for Appellee, State Farm Mutual Automobile Insurance Company. Meena M. Lopez, and Timothy A. Patrick, for Appellant Susan Whitney.
(Whittemore, J., Judge.) Susan Whitney appeals the county court decision granting summary judgment in favor of State Farm Mutual Automobile Insurance Company. The county court’s order was based in part on the affidavit of Richard A. Rini, a senior claims representative for State Farm, which purported to authenticate Health Insurance Claim Forms (HICF) signed by Whitney and forwarded to State Farm by Whitney’s medical providers. These forms necessarily were the basis for the county court’s determination that Whitney had made a de facto assignment to her health care providers, thereby depriving Whitney of standing to bring the action for benefits under her policy.
The county court erred in considering the HICF forms attached to Rini’s affidavit, as Rini was not competent to either authenticate the forms or establish them as the business records of State Farm pursuant to the business records exception to the hearsay rule, §90.803(6), Fla. Stat. (1997).1
State Farm acknowledges in its brief that these forms were mailed to State Farm by Whitney’s providers. Simply put, these forms were not, as State Farm contends, the business records of State Farm, as they were not made by State Farm. In order to lay a foundation for the admission of a business record, it is necessary to call a witness who could show that each of the foundational requirements set out in the statute is present. Forester v. Norman Roger Jewell & Brooks International, Inc., 610 So.2d 1369 (Fla. 1st DCA 1992). Only the records custodian or a qualified witness who has the requisite knowledge to testify as to how the record was made can lay the necessary foundation. If the offering party does not lay the necessary foundation, the evidence is not admissible under §90.803(6), supra. See e.g. Lowe’s of Tallahassee v. Giaimo, 552 So.2d 304 (Fla. 1st DCA 1989) (affidavit failed to make requisite showing to provide proper predicate for admission of doctor’s records under §90.803(6)).
Simply put, Rini was neither the “custodian” of the HICF forms or otherwise qualified to testify as to the method of preparation and reliability of the forms. Accordingly, the forms constituted inadmissible hearsay, lacking the reliability and trustworthiness of a business record as defined in §90.803(6). A movant for summary judgment must demonstrate, by admissible evidence, the non-existence of any genuine issue of material fact. Landers v. Milton, 370 So.2d 368 (Fla. 1979). Since Rini’s affidavit did not establish the foundation for the admissibility for the HICF forms, summary judgment was improper. See e.g. Dutilly v. Department of Health and Rehabilitative Services, 450 So.2d 1195 (Fla. 5th DCA 1984); Bifulco v. State Farm Mutual Automobile Insurance Company, 693 So.2d 707 (Fla. 4th DCA 1997).
Reversed And Remanded.
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1To the extent that State Farm argues that the HICF forms were “maintained by State Farm”… “in the regular course of State Farm’s business”, this is not the requisite foundation for the business record exception in § 90.803(6). The record must have been generated by State Farm in order to constitute a business record of State Farm. Mere receipt of a document from another source, even though maintained in the file of the recipient for business purposes, does not make the record a business record of that recipient.
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