18 Fla. L. Weekly Supp. 152a
Online Reference: FLWSUPP 1802ALVA
Insurance — Personal injury protection — Denial of benefits — Valid medical report — Error to disregard insurer’s medical report filed in opposition to medical provider’s motion for summary judgment — Discovery — Depositions — No error in requiring insurer to pay expert witness fees to take deposition of treating physician
UNITED AUTOMOBILE INSURANCE COMPANY, A Florida Corporation, Appellant, v. TOTAL HEALTH SERVICES, INC., a/a/o Lucy Alvarado, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 09-214 AP & 09-405 AP. L.C. Case No. 08-28809 CC 23. December 7, 2010. An Appeal from a decision rendered by the Miami-Dade County Court, Lisa Walsh, J. Counsel: Michael J. Neimand and Lara J. Edelstein, Office of the General Counsel, United Automobile Insurance Company, for Appellant. Kevin W. Whitehead, Downs Brill Whitehead, for Appellee.
(Before DONNER, CARDONNE ELY and BLAKE, JJ.)
(BLAKE, Judge.) This is an appeal from a final summary judgment in favor of Appellee Total Health Services, Inc. as assignee of Lucy Alvarado (“Total Health”). Total Health sued Appellant United Automobile Insurance Company (“United Auto”), the Defendant in the trial court, for personal injury protection (“PIP”) insurance benefits. Lucy Alvarado (“Alvarado”), the claimant, assigned her PIP benefits to Total Health. United Auto maintains the trial court erred in granting summary judgment, and in requiring the insurer to pay an expert witness fee to take the deposition of the treating physician. We reverse as to the first issue, but affirm on the second issue.
We reverse the grant of summary judgment in favor of Total Health based on the decisions of the Third District Court of Appeal in United Automobile Insurance Co. v. Eduardo J. Garrido, D.C., P.A., 22 So. 3d 120 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2174a]; United Automobile Insurance Co. v. Perez, 21 So. 3d 886 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2267a]; Partners in Health Chiropractic v. United Automobile Ins. Co., 21 So. 3d 858 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2177a]; United Automobile Insurance Co. v. Santa Fe Medical Center, 21 So. 3d 60 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2051b] (en banc), petition for review pending, No. SC09-2100, proceedings stayed (Fla. Jan. 5, 2010); United Automobile Insurance Co. v. Miami Medical Group, Inc., 20 So. 3d 999 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2225a]; United Automobile Insurance Co. v. Metro Injury & Rehab Center, 16 So. 3d 897 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D1516a], petition for review pending, No. SC09-1946, proceedings stayed (Fla. Jan. 5, 2010). We reverse but note that the trial court did not have the benefit of these cases at the time it granted summary judgment.
As to the issue of the requirement of the expert witness fee for the deposition of the treating physician, we find no error in the lower court’s determination that the treating physician is an expert witness and that the act of deposing him entitles him to a fee. See Fla. R. Civ. P. Rule 1.390(c); United Auto. Ins. Co. v. Eduardo Garrido, DC, PA, 21 So. 3d 112 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2218b] (affirming without discussion, the correctness of a non-final order granting the treating physician an expert witness fee for his deposition); Lion Plumbing Supply Inc. v. Suarez, 844 So. 2d 768, 771 (Fla. 3d DCA 2003) [28 Fla. L. Weekly D1171a]; Eppler v. Tarmac America, Inc., 695 So. 2d 775, 777 (Fla. 1st DCA 1997) [22 Fla. L. Weekly D1559d]; Van Sickle v. Allstate Insurance Company, 503 So. 2d 1288, 1289 (Fla. 5th DCA 1987); Haldane v. Hall, 234 So. 2d 739 (Fla. 4th DCA 1970). The trial court did not abuse its discretion under these facts. Progressive Express Ins. Co. v. Professional Medical Group, Inc., 10 Fla. L. Weekly Supp. 973a (Fla. 11th Cir. Ct. Oct. 14, 2003). No legal error appears on the face of the trial court’s order. See Porteous v. Porteous, 937 So. 2d 1179 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D2319b]; Prymus v. Prymus, 753 So. 2d 742 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D711a].
Because Appellee is not the prevailing party with respect to the summary judgment issue, appellate attorney’s fees are not attainable for this portion. § 627.428(1), Fla. Stat. (2010). Therefore, we deny appellate attorney’s fees as to the summary judgment issue. However, where a case is affirmed in part and reversed in part, the appellant may be entitled to a portion of the appellate attorneys’ fees. Great Southwest Fire Ins. Co. v. DeWitt, 458 So. 2d 398 (Fla. 1st DCA 1984). We direct the trial court to enter an order conditionally granting appellate attorney’s fees with respect to the portion affirmed (the order granting expert witness fees), contingent on Total Health being the prevailing party at the conclusion of the case. See Brass & Singer, P.A. v. United Auto. Ins. Co., 919 So. 2d 473, 475 n.3 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D2252c]; Allstate Ins. Co. v. De La Fe, 647 So. 2d 965 (Fla. 3d DCA 1994).
For these reasons, we direct the lower court to vacate the order granting final judgment in favor of Appellee, and this cause is remanded to the trial court for further proceedings consistent with this opinion. Reversed in part, affirmed in part. (DONNER and CARDONNE ELY, J., concur.)
