18 Fla. L. Weekly Supp. 162a
Online Reference: FLWSUPP 1802PERE
Insurance — Personal injury protection — Coverage — Medical expenses — Denial of benefits — Error for trial court to refuse to consider peer review reports submitted after case was filed — Discovery — Depositions — Treating physician is entitled to expert witness fee for deposition testimony
UNITED AUTOMOBILE INS. CO., Appellant, vs. ALAIN PEREZ, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-031 AP. L.T. Case No. 07-22879 CC 25. November 22, 2010. An appeal from the County Court. Counsel: Michael J. Neimand, for Appellant. Arnold R. Ginsberg, for Appellee.
(Before FRIEDMAN, COHEN LANDO, and THOMAS, JJ.)
(THOMAS, Judge.) The Appellee in this Personal Injury Protection (PIP) denial case has filed a partial confession of error. She concedes that, pursuant to cases that came out after the trial court’s decision below, it was error for the trial court to refuse to consider United Auto’s peer review reports that were submitted after the case was filed, and then grant summary judgment in the Appellee’s favor on the basis that there was no genuine issue of material fact as to reasonableness, relatedness, and necessity (RRN). See United Auto. Ins. Co. v. Eduardo J. Garrido, D.C., P.A, 21 So. 3d 112 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2218b]; United Auto. Ins. Co. v. Santa Fe Med. Ctr., 21 So. 3d 60 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2051b]; United Auto. Ins. Co. v. Metro Injury & Rehab Ctr., 16 So. 3d 897 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D1516a]; United Auto. Ins. Co. v. Millennium Diagnostic Imaging Ctr., Inc., 12 So. 3d 242 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D913c]. Thus, we REVERSE the trial court’s grant of summary judgment on the issue of RRN and REMAND for trial on that issue. We also REVERSE the final judgment which awarded trial court attorney’s fees to Appellee pending the ultimate resolution of the case.
However, there is also a second issue in this case, which is whether the trial court properly required United Auto to pay the treating physician an expert witness fee in order to take his deposition. Although there have been cases from this Circuit going both ways on this issue, we are convinced by the analysis of those cases which hold that a treating physician is entitled to an expert fee for participating in a deposition. See United Auto. Ins. Co. v. Cereceda & Assocs., 15 Fla. L. Weekly Supp. 1048a (Fla. 11th Cir. App. Div., Aug. 27, 2008); Progressive Express Insurance Co. v. Professional Med. Group, 10 Fla. L. Weekly Supp. 973a (Fla. 11th Cir. App. Div., Oct. 14, 2003); see also United Auto. Ins. Co. v. Garrido, 17 Fla. L. Weekly Supp. 10a (Fla. 11th Cir. App. Div., Nov. 10, 2009); but see United Auto. Ins. Co. v. Total Health Ctr., Inc., 17 Fla. L. Weekly Supp. 414a (Fla. 11th Cir. App. Div, Mar. 9, 2010); United Auto. Ins. Co. v. Dade Injury Rehab Ctr., Inc., 17 Fla. L. Weekly Supp. 82a (Fla. 11th Cir. App. Div., Dec. 23, 2009). We therefore AFFIRM the award of expert witness fees to the Appellee’s treating physician.
AFFIRMED in part, REVERSED in part, and REMANDED. (FRIEDMAN and COHEN LANDO JJ., concur.)
