18 Fla. L. Weekly Supp. 1113a
Online Reference: FLWSUPP 1811DESO
Insurance — Personal injury protection — Evidence — Expert witnesses — Abuse of discretion to strike insurer’s billing expert as witness without considering factors discussed in Pascual v. Dozier — Attorney’s fees — Appellate — Insurer failed to demonstrate substantive basis for appellate attorney’s fees where motion for fees does not include, cite, or reference any policy provision discussing attorney’s fees
PROGRESSIVE EXPRESS INSURANCE COMPANY, Appellant-Defendant, v. MED-UNION MEDICAL CENTER, INC, a/a/o Maria V. DeSouza, Appellee-Plaintiff. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-207 AP. L.C. Case No. 05-6454 SP 26 (03). September 22, 2011. No oral argument. On appeal from a final judgment rendered by the Miami-Dade County Court. Honorable Patricia Marino-Pedraza, Judge. Counsel: Douglas H. Stein and Stephanie Martinez, Seipp & Flick, LLP, for Appellant-Defendant. Stuart B. Yanofsky, Stuart B. Yanofsky, P.A., for Appellee-Plaintiff.
(Before SOTO and GORDO, JJ.)
(PER CURIAM.) Med-Union Medical Center, Inc. (“medical provider”) filed an amended complaint against Progressive Express Insurance Company (“insurer”), which alleged that the insurer failed to pay no-fault benefits as required by section 627.736(4)(b), Florida Statutes.
The insurer submitted its supplemental witness and exhibit list. This list disclosed Nicole Bonaparte (“billing expert”) as a medical billing and pricing expert, who would offer her opinions about the provider’s bills, that the provider unreasonably charged, and that the insurer’s “allowances are reasonable.” During the trial, the medical provider’s counsel moved to strike the billing expert as a witness. After the parties examined the witness outside the jury’s presence, the trial court excluded the billing expert as a witness.
On April 20, 2011, this appellate division rendered an order precluding the medical provider from filing an answer brief. Thus, we proceed solely with the insurer’s initial brief. Section 26.012(1), Florida Statutes, grants us appellate jurisdiction to review this matter. We review an order excluding an expert witness from testifying during trial for an abuse of discretion. Pascual v. Dozier, 771 So. 2d 552 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D1921b].
I.
According to the insurer, the trial court erroneously relied upon United Auto. Ins. Co. v. Bermudez, 980 So. 2d 1213 (Fla. 3d DCA) [33 Fla. L. Weekly D1201a], abrogated by United Auto. Ins. Co. v. Santa Fe Med. Center, 21 So. 3d 60; 34 Fla. L. Weekly D2051b (Fla. 3d DCA 2009), as justifying the billing expert’s exclusion as a trial witness. As argued by the insurer, the lower tribunal incorrectly struck the billing expert as a trial witness though she was not required to be a licensed physician or produce a valid section 627.736(7)(a), Florida Statutes, report prior to the insurer reducing the medical provider’s charges.
“The right to call witnesses is one of the most important due process rights of a party.” Pascual, 771 So. 2d at 554. A trial court should exclude an expert’s testimony after “carefully” considering such action and should exclude an expert witness “sparingly.” Id. A trial court should also “exercise caution when” a party moves to exclude the opposing party’s “most important” witness because striking such witness will hinder the opposing party’s ability to “present evidence to support his or her theory of the case.” Id.
Here, the medical provider’s counsel moved to strike the billing expert as an expert witness during the trial (Trial Tr. 7:17-18, Feb. 10, 2009). The trial court summarized the medical provider’s rationale for moving to strike the billing expert: “One, the fact that she is not a physician licensed in the same chapter. Number two . . . her opinion was not timely given prior to the reduction [in benefits],” and “she doesn’t dispute the reasonableness of the charges.” Id. at 8:24-9:4.
After hearing both parties, the trial court reasoned that Bermudez “says a valid report is required when an insurer attempts to reduce, deny or withdraw PIP benefits . . . So the only issue that I see her [sic] is to bolstering [sic] your position.” Id. at 33:10-14 (footnote added). See Id. at 29:18-22. At the time, the trial court correctly stated Bermudez‘s position that “a valid report is required where an insurer attempts to reduce, withdraw, or deny PIP benefits.” 980 So. 2d at 1216. Nonetheless, we disagree that Bermudez justified excluding the expert witness. Pascual, binding precedent since 2000, implemented a standard to use when striking an expert witness. Here, the lower tribunal relied upon Bermudez rather than considering the factors discussed by Pascual, the controlling district court opinion. “Incorrectly applying the law constitutes an abuse of discretion.” Miami Dade County v. Bloom, 18 Fla. L. Weekly Supp. 935a (Fla. 11th Cir. Ct. Aug. 3, 2011). Because the court incorrectly applied the law, we conclude that it abused its discretion. We vacate the final judgment and remand for further proceedings.
II.
The insurer requests section 768.79, Florida Statutes, appellate attorney’s fees.1 Section 768.79 “applies to fees incurred on appeal,” and such “attorney’s fees are not discretionary.” Motter Roofing Inc. v. Leibowitz, 833 So. 2d 788, 789; 27 Fla. L. Weekly D576c (Fla. 3d DCA 2002). Progressive Cas. Ins. Co. v. Galabow-Chiropractic Clinic, Inc. awarded section 768.79 appellate attorney’s fees but made such award “contingent on meeting the criteria set forth in” the statute. 18 Fla. L. Weekly Supp. 160a (Fla. 11th Cir. Ct. Nov. 19, 2010) (emphasis added).2
We consider the statute’s criteria:
(1) In any civil action for damages . . . if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney’s fees incurred . . . on the defendant’s behalf pursuant to a policy of liability insurance . . . .
§ 768.79(1), Fla. Stat. (2010) (emphasis added). We interpret a statute in accord with its plain language. Art Berman Concrete, Inc. v. Sey Constr. Corp., 247 So. 2d 791, 792 (Fla. 3d DCA 1971). Considering the statute’s plain language, we hold that the words “pursuant to a policy of liability insurance,” § 768.79(1), Fla. Stat. (2010), require the insurer to refer to the policy provision providing the substantive basis for fees. Dept. of Highway Safety and Motor Vehicles v. Trauth, 971 So. 2d 906, 908; 32 Fla. L. Weekly D2931a (Fla. 3d DCA 2007); Wilson v. S. Repair Servs., 812 So. 2d 445, 446; 26 Fla. L. Weekly D2836a (Fla. 5th DCA 2001). Because the statute refers to the insurance policy, we also must refer to the policy as providing a substantive basis for awarding appellate attorney’s fees. We will violate the law’s essential requirements if we fail “to state any basis for awarding attorney’s fees.” Trauth, 971 So. 2d at 908.
Here, the insurer’s motion properly attaches three settlement proposals, but the motion fails to attach or cite any insurance policy provision discussing attorney’s fees. The attached settlement proposals also did not reference a policy provision. “Motions . . . should be complete within themselves and must contain such appropriate references to or excerpts from the record as will relieve this court of the burden of reviewing the entire record.” Atlas Travel Service v. Morelly, 97 So. 2d 496, 497 (Fla. 1st DCA 1957) (emphasis added). We find this deficient motion particularly troublesome because Florida Rule of Appellate Procedure 9.300(a) clearly permitted the insurer to submit its motion “accompanied by an appendix, which may include affidavits and other appropriate supporting documents” (emphasis added). Because the motion for appellate attorney’s fees did not include, cite, or reference a policy provision discussing attorney’s fees, we conclude that the insurer failed to demonstrate a substantive basis for appellate attorney’s fees. Consequently, we deny the motion. Home Depot v. Ferreira, 827 So. 2d 371; 27 Fla. L. Weekly D2193a (Fla. 1st DCA 2002).
REVERSED and REMANDED; SECTION 768.79 APPELLATE ATTORNEY’S FEES DENIED.
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1The insurer specifically requests fees pursuant to subsection (3). See § 768.79(3), Fla. Stat. (2010) (“The offer shall be served upon the party to whom it is made, but it shall not be filed unless it is accepted or unless filing is necessary to enforce the provisions of this section”). Subsection (3) alone does not provide a substantive basis to award appellate attorney’s fees.
2The insurer concedes that it must satisfy section 768.79’s criteria. See Mot. for Atty’s Fees ¶ 4.
