Health and Wellness Evolution Co. a/a/o Earl Esperon v. Infinity Auto Insurance Company

• Court: District Court of Appeal of Florida
• Decided: April 10, 2024
• Docket: 2022-1865
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed April 10, 2024. Not final until disposition of timely filed motion for rehearing.

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No. 3D22-1865 Lower Tribunal No. 17-11486CC ________________

Health and Wellness Evolution Co. a/a/o Earl Esperon, Appellant,

vs.

Infinity Auto Insurance Company, Appellee.

An appeal from the County Court for Miami-Dade County, Elijah A. Levitt, Judge.

Douglas H. Stein, P.A. and Douglas H. Stein, for appellant.

Gladys Perez Villanueva, and Law Offices of Terry M. Torres & Associates, and David A. Villarreal, for appellee.

Before SCALES, LINDSEY, and MILLER, JJ.

MILLER, J. Appellant, Health and Wellness Evolution Company (“HWE”), as the

assignee of Earl Esperon, challenges a final judgment rendered in favor of

appellee, Infinity Auto Insurance Company (“Infinity”), following a jury trial.

On appeal, HWE contends the trial court erred in denying its motion for

judgment notwithstanding the verdict because Infinity failed to present

competent, substantial evidence establishing the insured was properly

noticed for an examination under oath. We affirm and write only to reiterate

two longstanding evidentiary principles. The first is that documents received

and relied upon in the regular course of business may become the business

records of the receiving party so long as they carry adequate indicia of

reliability. See § 90.803(6)(a), Fla. Stat. (2022); Ocwen Loan Servicing, LLC

v. Gundersen, 204 So. 3d 530, 533–34 (Fla. 4th DCA 2016). The second is

that “‘it is not necessary to call the person who actually prepared the

document’ in order to lay the foundation for the business records exception

to the hearsay rule.” United Auto. Ins. Co. v. Chiropractic Clinics of S. Fla.,

PL., 345 So. 3d 952, 955 (Fla. 3d DCA 2022) (quoting United Auto. Ins. Co.

v. Affiliated Healthcare Ctrs., Inc.,43 So. 3d 127, 130 (Fla. 3d DCA 2010)).

Instead, “[t]he record custodian or any qualified witness who has the requisite

knowledge to testify as to how the record was made can lay the necessary

foundation.” Mann v. State, 787 So. 2d 130, 135 (Fla. 3d DCA 2001).

2 Consistent with these principles, the records custodian testimony presented

by the insurer in this case sufficiently established that both the challenged

letter of representation and examination under oath notices qualified for

admission under the business records exception. Accordingly, whether the

letters provided Esperon with adequate notice evolved into a factual question

properly resolved by the jury. See Comprehensive Health Ctr., Inc. v. United

Auto. Ins. Co., 56 So. 3d 41, 43 (Fla. 3d DCA 2010) (“[N]otice to the attorney

constitutes notice to the client.”); see also Gracia v. Sec. First Ins. Co., 347

So. 3d 479, 482 (Fla. 5th DCA 2022) (“[C]redibility determinations and

weighing the evidence are jury functions . . . .”) (internal quotation marks

omitted) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).

We therefore affirm.

Affirmed.