UNITED AUTOMOBILE INSURANCE COMPANY v. CHIROPRACTIC CLINICS OF SOUTH FLORIDA, PL, etc.

• Court: District Court of Appeal of Florida
• Decided: August 17, 2022
• Docket: 21-0714
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed August 17, 2022. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D21-714 Lower Tribunal No. 14-3923 SP ________________

United Automobile Insurance Company, Appellant,

vs.

Chiropractic Clinics of South Florida, PL., etc., Appellee.

An Appeal from the County Court for Miami-Dade County, Linda Melendez, Judge.

Michael J. Neimand, for appellant.

George A. David, P.A., and George A. David, for appellee.

Before EMAS, SCALES and HENDON, JJ.

HENDON, J. United Automobile Insurance Company (“United Auto”) appeals from

an agreed final judgment of medical benefits in favor of Chiropractic Clinics

of South Florida, PL, a/a/o Manuel Ortiz (“CCSF”), for medical bills and

interest, totaling $792.75. United Auto reserved the right to appeal the trial

court’s order denying United Auto’s motion for summary judgment. We

reverse and remand consistent with this opinion.

On April 11, 2010, Manuel Ortiz (“Ortiz”) sustained injuries that

resulted from a car accident. Ortiz made a claim for PIP benefits under his

insurance contract with United Auto. United Auto made several benefit

payments to various providers and Ortiz. The only payment issues on

appeal involve the following items: 1) a payment to Custer Medical for

$559.59, which check was not cashed; 2) a payment of $105.71 for

transportation expenses, which check was not cashed; 3) a payment of

$73.72 for benefits and $14.20 for interest, which check was not cashed; 4)

payment of $55.29 for benefits and $9.27 for interest, which check was not

cashed; and 5) the reissued payment of $559.59 in benefits and $98.98 for

interest to Custer Medical for the previous uncashed check. CCSF filed a

complaint against United Auto, claiming breach of contract for failure to pay

full PIP benefits.

2 United Auto moved for summary judgment, relying on the affidavit of

Jhonny Navarro (“Navarro”), a litigation adjuster for United Auto, to claim

that PIP benefits had been paid and the benefits were exhausted. At the

summary judgment hearing, the trial court did not allow United Auto to

admit Navarro’s affidavit under the business records exception to the

hearsay rule, section 90.803(6)(a) Florida Statutes (2014). In denying

United Auto’s request to admit Navarro’s affidavit, the trial court determined

that because United Auto’s records were generated before Navarro’s

involvement in the case, Navarro’s affidavit failed to establish that he has

knowledge of United Auto’s record-keeping system prior to his involvement

in the case. The trial court also found that Navarro’s affidavit did not

establish payment to Ortiz for his PIP transportation reimbursement

because payment was only established by a check ledger which the court

deemed to be inadmissible hearsay and not proof of payment. The court

further determined that Ortiz’s PIP benefits were not exhausted because

United Auto improperly created a “reserve fund” of $559.59. The trial court

lastly concluded that United Auto’s payment of $34.77 to Custer Medical

did not count towards the benefits exhaustion because it should not have

been treated as benefits. The trial court entered an agreed final judgment

in favor of CCSF for $559.59 in medical bills and $233.75 in interest,

3 totaling $792.75. United Auto specifically reserved the right to appeal the

trial court's exclusion of Navarro's affidavit. This appeal followed.

We find that Navarro’s affidavit should have been admitted pursuant

to section 90.803(6). This Court has consistently held 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. Affiliated Healthcare Ctrs., Inc., 43 So. 3d 127, 130

(Fla. 3d DCA 2010) (quoting Mann v. State, 787 So. 2d 130, 135 (Fla. 3d

DCA 2001)). It is well settled that “[t]he records custodian or any person

‘who has the requisite knowledge to testify as to how the record was made

can lay the necessary foundation.’” Mann, 787 So. 2d at 135. “To secure

admissibility under this exception, the proponent must show that (1) the

record was made at or near the time of the event; (2) was made by or from

information transmitted by a person with knowledge; (3) was kept in the

ordinary course of a regularly conducted business activity; and (4) that it

was a regular practice of that business to make such a record.” Yisrael v.

State, 993 So. 2d 952, 956 (Fla. 2008). “No additional foundation is

required by the statute or by any case from this Court, and we reject the

notion that the witness must also detail the basis for his or her familiarity

with the relevant business practices of the company or give additional

4 details about those practices as part of the initial foundation.” Jackson v.

Household Fin. Corp. III, 298 So. 3d 531, 536 (Fla. 2020). Because

Navarro’s affidavit laid the proper foundation, we hold that the trial court

erroneously withheld Navarro’s affidavit from being admitted into evidence

pursuant to section 90.803(6)(a).

The trial court also erroneously determined that benefits were not

properly exhausted because United Auto allegedly created a $559.59

“reserve fund.” Navarro’s deposition does not support this finding. On the

contrary, Navarro’s testimony indicates that United Auto had previously

found treatment for services in the amount of $559.00 were payable, and

that check was never cashed. United Auto simply reissued the check as

benefits already allocated. Thus, the reissuance of the check did not

constitute a “reserve fund,” and therefore, the benefits were properly

exhausted.

Lastly, the trial court erroneously determined that the check stubs

were inadmissible hearsay as the business records exception in section

90.803(6) was not applicable. In order for a check stub to be admitted

under the business records exception, “the stub would first have to qualify

as a business record of the transaction or come within some other

exception to the rule against hearsay.” Walker v. State, 83 So. 3d 840, 841

5 (Fla. 4th DCA 2011) (quoting Franklin Inv. Co. v. Smith, 383 A.2d 355, 357

(D.C. 1978)). Here, Navarro averred in his affidavit that “the documents

and/or records generated by the defendant . . .were. . . kept in the ordinary

course of Defendant’s business and were made as a regular practice in the

course of the regularly conducted business of the Defendant.” Because

Navarro testified that the check stubs are kept within United Auto’s regular

course of business, the check stubs qualify under the business records

exception to the hearsay rule and were admissible. See Walker, 83 So. 3d

at 840 (affirming the exclusion of a check stub from evidence as hearsay

because “the party offering the check failed to qualify the stub under any

exception to the rule against hearsay”). Accordingly, we reverse the order

under review and remand with instructions to enter summary judgment in

favor of United Auto.

Reversed and remanded.