UNITED AUTOMOBILE INSURANCE COMPANY v. NB SPORTS MASSAGE AND REHAB CORP. A/A/O DAISY DEPAULA

• Court: District Court of Appeal of Florida
• Decided: July 28, 2021
• Docket: 21-0107
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed July 28, 2021. Not final until disposition of timely filed motion for rehearing.

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No. 3D21-0107 Lower Tribunal Nos. 20-0086 AP & 12-5879 CC ________________

United Automobile Insurance Company, Appellant,

vs.

NB Sports Massage and Rehab Corp., a/a/o Daisy DePaula, Appellee.

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

Michael J. Neimand, for appellant.

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

Before LOGUE, SCALES, and LINDSEY, JJ.

LINDSEY, J. United Automobile Insurance Company appeals a final judgment

entered after the county court directed a verdict in favor of NB Sports

Massage and Rehab Corp. for $1500.62 in benefits and $646.98 in

interest.1 Because the lower court did not permit United to lay a foundation

for the past recollection recorded hearsay exception, we reverse and remand

for further proceedings consistent with this opinion.

This appeal arises out of a claim for medical services under a personal

injury protection (“PIP”) policy of insurance, following an automobile

accident. NB Sports, as assignee of Daisy DePaula, the insured, sued

United for breach of contract for PIP benefits. The sole issue below was

whether the services NB Sports rendered to the insured after the

Independent Medical Examination (“IME”) cutoff date were related to the

subject accident and medically necessary. 2

On the day of trial, NB Sports moved to prevent United from reading

the deposition testimony of its medical expert, Dr. Michael Weinreb, who

1 This circuit court appeal was transferred to this Court in January 2021. See Chapter 20-61, section 3, Laws of Florida (amending section 26.012(1) and repealing section 924.08 to remove circuit court jurisdiction over the majority of the appeals of county court orders or judgments and vesting jurisdiction of those appeals in the district courts of appeal). Thus, we have jurisdiction. 2 To be entitled to benefits under a PIP policy of insurance, it must be shown that the charges billed are reasonable, related, and medically necessary. See § 627.736, Fla. Stat. (2020).

2 conducted the IME. NB Sports argued that Dr. Weinreb’s deposition

testimony, which read directly from the IME report, was inadmissible

because Dr. Weinreb did not remember the contents of the report, and the

report did not refresh his recollection. 3 NB Sports did not object to Dr.

Weinreb testifying at trial and suggested that he could testify regarding the

contents of the IME report if a proper foundation were laid. United argued

that although the IME report was hearsay, it was admissible as a past

recollection recorded. See § 90.803(5), Fla. Stat. (2020). 4

3 As this Court explained in K.E.A. v. State, 802 So. 2d 410, 411 (Fla. 3d DCA 2001):

When a witness testifies that he or she has no present recollection or memory of a fact, counsel may show the witness a writing or other object in an attempt to refresh the witness’ recollection. If, after seeing the document or object, the witness’ memory is jogged so that the witness has a present recollection of the fact, the witness may testify to the fact from his or her present memory. However, if the witness does not have a present recollection of the fact, the witness may not testify to the fact. It is the witness’ testimony as to the substance of his recollection which constitutes the evidence, when a writing revives present recollection. 4 “The practice of refreshing the recollection of the witness must be distinguished from past recollection recorded. When a witness's recollection is refreshed by the use of a document or other item, the witness is testifying from his or her own present memory and not the document. It is not necessary in that situation to comply with section 90.803(5).” Charles W. Ehrhardt, 1 Fla. Prac., Evidence § 803.5 (2021 ed.).

3 The lower court granted NB Sports’ motion to preclude Dr. Weinreb’s

deposition testimony, finding that the IME report did not refresh Dr.

Weinreb’s recollection and that an insufficient foundation had been laid to

satisfy the past recollection recorded hearsay exception. The court reserved

ruling on whether Dr. Weinreb could provide live witness testimony but stated

that the live testimony would have to meet the requirements for the past

recollection recorded hearsay exception.

At trial, NB Sports’ medical expert, Dr. Kevin Woods, testified that the

treatment was reasonable, related, and necessary. After NB Sports rested,

United sought to call Dr. Weinreb as a live witness to lay a proper foundation

for the IME report under the past recollection recorded exception to the

hearsay rule. Although NB Sports acknowledged that a proper foundation

might be laid for Dr. Weinreb to read the contents of the IME report, it argued

that it would be improper for Dr. Weinreb to take the stand because portions

of the IME report contained statements from the insured and were therefore

double hearsay. The lower court agreed with NB Sports, concluding that the

IME report is “a hearsay document, nothing changes that.”

United then sought to voir dire Dr. Weinreb to lay the required

foundation to allow him to read his report pursuant to the past recorded

recollection exception to the hearsay rule. The lower court denied this

4 request. Since United had no other witnesses to call in rebuttal to NB Sports’

case in chief, the court directed a verdict in favor of NB Sports. The lower

court then entered a final judgment, and United timely appealed.

A trial court’s decision to admit evidence is reviewed under the abuse

of discretion standard; however, that discretion is limited by the rules of

evidence. Hudson v. State, 992 So. 2d 96, 107 (Fla. 2008), as revised on

denial of reh’g (Sept. 25, 2008) (citations omitted). United argues that the

lower court abused its discretion when it completely precluded Dr. Weinreb

from testifying. We agree.

NB Sports initially objected to the introduction of Dr. Weinreb’s

deposition testimony because his recollection was not refreshed after seeing

the IME report. See Ehrhardt, supra, at § 613.1 (“[I]f the witness does not

have a present memory of the fact after seeing the document, the witness

may not testify to the fact.”). It is undisputed that Dr. Weinreb’s memory was

not refreshed. However, testimony regarding the IME report may be

admissible on another independent ground, specifically, the past recollection

recorded hearsay exception. See Garrett v. Morris Kirschman & Co., Inc.,

336 So. 2d 566, 569 (Fla. 1976) (“A writing may serve to jog a witness’

memory and also be admissible on some independent ground.”).

5 Section 90.803(5) sets forth the requirements for the past recollection

recorded hearsay exception:

(5) Recorded recollection.--A memorandum or record concerning a matter about which a witness once had knowledge, but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made by the witness when the matter was fresh in the witness's memory and to reflect that knowledge correctly. A party may read into evidence a memorandum or record when it is admitted, but no such memorandum or record is admissible as an exhibit unless offered by an adverse party.

These requirements are usually established through the testimony of

the witness who made the prior record. See Polite v. State, 116 So. 3d 270,

275 (Fla. 2013); see also Ehrhardt, supra, at § 803.5. Here, however, the

lower court never permitted Dr. Weinreb to testify. We hold that this was

error. United should have been allowed to lay a proper foundation pursuant

to section 90.803(5). 5 As such, we reverse and remand for further

proceedings.

Reversed and remanded.

5 To the extent the IME report contains double hearsay, United should have been allowed to lay a proper foundation under other exceptions to the hearsay rule. See § 90.805 (“Hearsay within hearsay is not excluded under s. 90.802, provided each part of the combined statements conforms with an exception to the hearsay rule as provided in s. 90.803 or s. 90.804.”).