UNITED AUTOMOBILE INSURANCE COMPANY, etc. v. GABLES REHAB, INC., etc.

• Court: District Court of Appeal of Florida
• Decided: April 14, 2021
• Docket: 21-0091
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed April 14, 2021. Not final until disposition of timely filed motion for rehearing.

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No. 3D21-91 Lower Tribunal Nos. 19-243AP; 11-1525CC ________________

United Automobile Insurance Company, etc., Appellant,

vs.

Gables Rehab, Inc., etc., Appellee.

An Appeal from the County Court for Miami-Dade County, Lawrence D. King, Judge.

Michael J. Neimand, for appellant.

David B. Pakula, P.A., and David B. Pakula (Pembroke Pines); Corredor & Husseini, P.A., and Maria E. Corredor, for appellee.

Before FERNANDEZ, LINDSEY, and BOKOR, JJ.

FERNANDEZ, J. United Automobile Insurance Company appeals the trial court’s order

granting summary judgment in favor of Gables Rehab, Inc. and the final

judgment awarding personal injury protection (“PIP”) benefits to Gables

Rehab. Upon review of the record, we reverse the order and remand for

further proceedings.

On February 28, 2011, Gables Rehab filed suit against United Auto to

recover PIP benefits after accepting an assignment of benefits from the

insured in exchange for medical services. United Auto previously denied

payment based on an independent medical examination (“IME”) of the

insured.

On July 24, 2018, Gables Rehab moved for final summary judgment

on the contested issues of reasonableness, relatedness, and medical

necessity. The evidence presented in support of the motion for summary

judgment consisted of: (1) the affidavit of the treating chiropractor, Dr. Jeffrey

Draisel, D.C., stating that the services were related and necessary; (2) the

bills of Gables Rehab to establish that the amount billed was reasonable;

and (3) the deposition testimony of Gables Rehab’s corporate representative

regarding the reasonableness of the bills.

In opposition to the issue of reasonableness, United Auto relied on the

affidavit of its litigation adjuster, Lizbeth Velazquez. In opposition to the

2 issues of relatedness and medical necessity, United Auto relied on the

February 7, 2019 affidavit testimony of chiropractor, Michael Weinreb, D.C.

In the affidavit, Dr. Weinreb discussed his IME of the insured, performed on

February 2, 2010. On April 13, 2018, Dr. Weinreb provided deposition

testimony based on the IME.

On February 12, 2019, Gables Rehab filed a motion to strike Dr.

Weinreb’s affidavit based on the “bald repudiation” doctrine. 1 Gables Rehab

claimed that Dr. Weinreb’s deposition testimony was baldly repudiated by

his subsequent affidavit. Gables Rehab argued that, contrary to the

deposition, the affidavit concludes that chiropractic care would not be

medically necessary.

On July 16, 2019, a hearing was held on Gables Rehab’s motion to

strike. On July 24, 2019, the trial court granted the motion, and Dr. Weinreb’s

affidavit was stricken for baldly repudiating the deposition testimony.

Specifically, the order finds that the affidavit conflicts with the deposition

testimony in that the affidavit states that the injuries were not related to the

accident and that chiropractic treatment was not medically necessary.

1 Ellison v. Anderson, 74 So. 2d 680, 681 (Fla. 1954) (“[A] party when met by a Motion for Summary Judgment should not be permitted by his own affidavit, or by that of another, to baldly repudiate his previous deposition so as to create a jury issue, especially when no attempt is made to excuse or explain the discrepancy.”).

3 Following a hearing on the issues, the trial court granted Gables

Rehab’s motion for final summary judgment. The trial court then entered final

judgment awarding Gables Rehab PIP benefits and interest totaling $7,808.

This appeal followed.

A trial court’s ruling on a motion for summary judgment is reviewed de

novo. See Major League Baseball v. Morsani, 790 So. 2d 1071, 1074 (Fla.

2001). “Once the moving party establishes that there are no genuine issues

of material fact, the burden shifts to the nonmoving party to show the

existence of a disputed issue of fact.” Master Tech Satellite, Inc. v. Mastec

N. Am., Inc., 49 So. 3d 789, 790 (Fla. 3d DCA 2010) (citations omitted). The

striking of an affidavit submitted in opposition to summary judgment under

the bald repudiation doctrine is reviewed for an abuse of discretion. See

Lesnik v. Duval Ford, LLC, 185 So. 3d 577, 580 (Fla. 1st DCA 2016).

Upon review of the trial court’s order striking Dr. Weinreb’s affidavit,

the affidavit, and the deposition testimony, we find that the trial court abused

its discretion by striking the affidavit, as the record does not reflect that the

affidavit baldly repudiates the deposition testimony. In the order granting the

motion to strike, the trial court found that in contrast to the deposition, Dr.

Weinreb’s affidavit opined: 1) that the injuries were not related to the subject

accident and 2) that chiropractic treatment was not medically necessary. To

4 the contrary, Dr. Weinreb’s affidavit does state that the injuries were causally

related: “After the examination, I formed the following impressions: a.

Cervical sprain resolved. b. Right shoulder strain. c. Lumbar strain. The

diagnosed injuries can be considered causally related as stated by the

claimant to the accident of January 6, 2010.” As to Dr. Weinreb’s opinion that

chiropractic treatment was not medically necessary, in both his deposition

and in his affidavit, he stated verbatim 2:

Based upon my history, the subjective complaints, the objective findings, my clinical evaluation reveals although positive findings were reported the claimant reported sustaining previous similar injuries for which she reported continue to cause her pain. It is my opinion that chiropractic treatment as a result of the motor vehicle accident in question would not be medically reasonable, related and necessary for the accident of January 6, 2010. The injuries appear to be more related to an old injury, soft tissue in nature and do not appear to be significant at this time.

Thus, the trial court erred in striking Dr. Weinreb’s affidavit concluding that it

constituted bald repudiation of his prior testimony. See Ellison v. Anderson,

74 So. 2d 680 (Fla. 1954).

Dr. Weinreb’s testimony undoubtedly raises a genuine issue of

material fact as it clearly conflicts with the testimony of the treating

chiropractor, Dr. Draisel. Therefore, we reverse the order granting summary

2 There are minor, non-substantive differences in punctuation and date format.

5 judgment and remand for further proceedings. Because we are reversing for

further proceedings, we do not reach any other issue raised on appeal.

Reversed and remanded.