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
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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
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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.”).
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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
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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.
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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.
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