18 Fla. L. Weekly Supp. 564a
Online Reference: FLWSUPP 1807HALL
Insurance — Personal injury protection — Appeals — Briefs — In appeal concerning whether medical fee schedules in PIP statute reenacted in 2008 after sunsetting of statute are permissive or mandatory, motion to strike appendix to initial brief which contains governor’s veto message explaining reasons for rejection of 2006 attempt to reenact sunsetted law that was not part of record before trial court and references to veto message in brief is denied where veto message is part of legislative history that can be reviewed de novo on appeal
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. HALLANDALE BEACH ORTHOPEDICS, INC., a/a/o BIANCA GONZALEZ, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 10-255 AP and 10-520 AP (Consolidated). L.C. Case No. 09-27840-SP-23. March 29, 2011. Counsel: Mark J. Neimand, Office of the General Counsel, Miami, for Appellant.
[Editor’s note: Subsequent decision on appeal published at FLWSUPP 1904BGON.]
ORDER DENYING APPELLEE’S MOTION TO STRIKE APPENDIX TO INITIAL BRIEF
(LEBAN, Judge.) The Court has before it Appellee’s MOTION TO STRIKE APPELLANT’S APPENDIX and MOTION TO STRIKE PORTIONS OF INITIAL BRIEF, which is virtually identical to a similar motion filed in Case No. 10-335 AP, in which this Court, by order dated March 22, 2011, DENIED Appellee’s MOTION TO STRIKE. The MOTION is directed, as was the Motion in Case No. 10-335 AP, to Governor Bush’s veto message dated May 31, 2006, which document was neither a part of the record on appeal in the case at bar, nor presented to the trial court below.
Inasmuch as the parties are represented by the same counsel, and the issue raised in both Case Nos. 10-335 AP, and the instant case is identical, the Court will not undertake a repetition of the 13 page ORDER entered in Case No. 10-335 AP. Instead, the Court hereby incorporates by reference herein (but does not attach) its ORDER in Case No. 10-335 AP, DENYING Appellee’s MOTION TO STRIKE APPENDIX and references to said appendix in Appellant’s initial brief [18 Fla. L. Weekly Supp. 503a].
The Court, however, will simply note the binding precedent that guided its order in Case No. 10-335 AP, including the following:
· Legislative history often includes a Governor’s veto. See, e.g., North Florida Women’s Health & Counseling Services v. State, 862 So.2d 612, 640 (Fla. 2003) (“the history of the legislation at issue reflects explicit legislative staff warnings and a prior Governor’s veto of the same legislation. . .”), Anstead C. J., concurring specially. [Emphasis added].
· It is appropriate and proper for an appellate court, in construing legislative intent, to consider legislative history, even if that history was not presented to the court below. Amos v. Conkling, 99 Fla. 206, 217-218, 126 So. 283, 288 (Fla. 1930); Watson v. Holland, 155 Fla. 342, 351, 20 So.2d 388, 393 (Fla. 1944), rev. denied, 325 U.S. 839 (1945) [internal quotation marks omitted].
· To discern legislative intent, “courts must consider the statute as a whole, including. . . the language, title, and history of its enactment. . .”. State v. Anderson, 364 So.2d 848, 849 (Fla. 3d DCA 2000). [Emphasis added].
· Appellate courts may consider legislative staff summaries in construing statutes “in the course of the court’s independent research, [or] through advocacy. . .”. Ellsworth v. Insurance Co. of North America, 508 So.2d 395, 398 (Fla. 1st DCA 1987); the same is true even where the legislative history “[w]as not part of the record, nor. . . cited by the parties [below].” The Justice Coalition v. The First Dist. Court of Appeal Judicial Nominating Com’n, 823 So.2d 185, 191 n.5 (Fla. 1st DCA 2002) [27 Fla. L. Weekly D1645b].
· Legislative history, including consideration of the legislative debate “may be judicially noticed by the court to. . . illuminate the judiciary as to legislative intent.” Byte Intern. Corp. v. Maurice Gusman Residuary Trust No. 1, 629 So.2d 191, 192 (Fla. 3d DCA 1993) [emphasis added].
Accordingly, Appellee’s MOTION TO STRIKE APPENDIX AND INTIAL BRIEF and MOTION TO STRIKE PORTIONS OF INITIAL BRIEF is hereby DENIED.
