PROGRESSIVE EXPRESS INS CO

v.

MED-UNION MEDICAL CENTER A/A/O MARIA V DE SOUZA

PER CURIAM.

' Med-Union Medical Center, Inc. (“medical provider") filed an amended complaint against Progressive Express Insurance Company (“insurer”), which alleged that the insurer failed to pay no-fault benefits as required by section 627.736(4)(b), Florida Statutes. The insurer submitted its supplemental witness and exhibit list. This list disclosed Nicole Bonaparte (“billing expert”) as a medical billing and pricing expert, who would offer her opinions about the provider’s bills, that the provider unreasonably charged, and that the insurer’s “allowances are reasonable.” During the trial, the medical provider’s 1:

NOT FINAL UNTIL TIME EXPIRES

TO FILE REI-IEAEG MOTION,

AND IF FILED, DISPOSED OF

IN THE CIRCUIT COURT OF THE

_ ELEVENTH JUDICIAL CIRCUIT I1fsI,AN,}) -,., ‘ K2 FOR MIAMI—DADE COUNTY, FLOJITID :3 63$] U3" {I

APPELLATE DIVISION

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PROGRESSIVE EXPRESS

INSURANCE COMPANY, LOWER CASE NO.: 05-64 SP I )~.‘? Z⁵ DeSouza, \\, Appellee-Plaintrff. ) Opinion filed S , , 2011. No oral argument. ,..._- _,..Q On appeal from a final judgment rendered by the Miami-Dade County Court, Hon. Patricia Marino-Pedraza. Douglas H. Stein and Stephanie Martinez, of Seipp & Flick, LLP, for the Appellant-Defendant. Stuart B. Yanofsky, of Stuart B. Yanofsky, P.A., for the Appellee-Plaintiff. Before SOTO and GORDO, JJ.

PER CURIAM.

' Med-Union Medical Center, Inc. (“medical provider") filed an amended complaint against Progressive Express Insurance Company (“insurer”), which alleged that the insurer failed to pay no-fault benefits as required by section 627.736(4)(b), Florida Statutes. The insurer submitted its supplemental witness and exhibit list. This list disclosed Nicole Bonaparte (“billing expert”) as a medical billing and pricing expert, who would offer her opinions about the provider’s bills, that the provider unreasonably charged, and that the insurer’s “allowances are reasonable.” During the trial, the medical provider’s [*2] counsel moved to strike the billing expert as a witness. After the parties examined the witness outside the jury’s presence, the trial court excluded the billing expert as a witness. On April 20, 2011, this appellate division rendered an order precluding the medical provider from filing an answer brief. Thus, we proceed solely with the insurer’s initial brief. Section 26.0l2(l), Florida Statutes, grants us appellate jurisdiction to review this matter. We review an order excluding an expert witness from testifying during trial for an abuse of discretion. Pascual v. Dozier, 771 So. 2d 552 (Fla. 3d DCA 2000).

I.

According to the insurer, the trial court erroneously relied upon United Auto. Ins. C0. v. Bermudez, 980 So. 2d 1213 (Fla. 3d DCA), abrogated by United Auto. Ins. C0. v. Santa Fe Med. Center, 21 So. 3d 60; 34 Fla. L. Weekly D2051 (Fla. 3d DCA 2009), as justifying the billing expert’s exclusion as a trial witness. As argued by the insurer, the lower tribunal incorrectly struck the billing expert as a trial witness though she was not required to be a licensed physician or produce a valid section 627.73‘6('/')(a), Florida Statutes, report prior to the insurer reducing the medical provider’s charges. “The right to call witnesses is one of the most important due process rights of a party.” Pascual, 771 So. 2d at 554. A trial court should exclude an expert’s testimony after “carefully” considering such action and should exclude an expert witness “sparingly.” Id. A trial court should also “exercise caution when” a party moves to exclude the opposing party’s “most important” witness because striking such witness will hinder the opposing party’s ability to “present evidence to support his or her theory of the case.” Id. Here, the medical provider’s counsel moved to strike the billing expert as an expert witness during the trial (Trial Tr. 7:17-I8, Feb. 10, 2009). The trial court summarized the medical provider’s rationale for moving to strike the billing expert: “One, the fact that she is not a physician licensed in the same chapter. Number two . . . her opinion was not timely given prior to the reduction [in benefits],” and “she doesn’t dispute the reasonableness of the charges.” Id. at 8:24-9:4. After hearing both parties, the trial court reasoned that Bermudez “says a valid report is required when an insurer attempts to reduce, deny or withdraw PIP benefits . . . So the only issue that I see her [sic] is to bolstering [sic] your position.” Id. at 33:10-14 (footnote added). See Id. at 29:18-22. At the time, the trial court correctly stated counsel moved to strike the billing expert as a witness. After the parties examined the witness outside the jury’s presence, the trial court excluded the billing expert as a witness. On April 20, 2011, this appellate division rendered an order precluding the medical provider from filing an answer brief. Thus, we proceed solely with the insurer’s initial brief. Section 26.0l2(l), Florida Statutes, grants us appellate jurisdiction to review this matter. We review an order excluding an expert witness from testifying during trial for an abuse of discretion. Pascual v. Dozier, 771 So. 2d 552 (Fla. 3d DCA 2000).

I.

According to the insurer, the trial court erroneously relied upon United Auto. Ins. C0. v. Bermudez, 980 So. 2d 1213 (Fla. 3d DCA), abrogated by United Auto. Ins. C0. v. Santa Fe Med. Center, 21 So. 3d 60; 34 Fla. L. Weekly D2051 (Fla. 3d DCA 2009), as justifying the billing expert’s exclusion as a trial witness. As argued by the insurer, the lower tribunal incorrectly struck the billing expert as a trial witness though she was not required to be a licensed physician or produce a valid section 627.73‘6('/')(a), Florida Statutes, report prior to the insurer reducing the medical provider’s charges. “The right to call witnesses is one of the most important due process rights of a party.” Pascual, 771 So. 2d at 554. A trial court should exclude an expert’s testimony after “carefully” considering such action and should exclude an expert witness “sparingly.” Id. A trial court should also “exercise caution when” a party moves to exclude the opposing party’s “most important” witness because striking such witness will hinder the opposing party’s ability to “present evidence to support his or her theory of the case.” Id. Here, the medical provider’s counsel moved to strike the billing expert as an expert witness during the trial (Trial Tr. 7:17-I8, Feb. 10, 2009). The trial court summarized the medical provider’s rationale for moving to strike the billing expert: “One, the fact that she is not a physician licensed in the same chapter. Number two . . . her opinion was not timely given prior to the reduction [in benefits],” and “she doesn’t dispute the reasonableness of the charges.” Id. at 8:24-9:4. After hearing both parties, the trial court reasoned that Bermudez “says a valid report is required when an insurer attempts to reduce, deny or withdraw PIP benefits . . . So the only issue that I see her [sic] is to bolstering [sic] your position.” Id. at 33:10-14 (footnote added). See Id. at 29:18-22. At the time, the trial court correctly stated [*3] Bermudez’s position that “a valid report is required where an insurer attempts to reduce, withdraw, or deny PIP benefits.” 980 So. 2d at 1216. Nonetheless, we disagree that Bermudez justified excluding the expert witness. Pascual, binding precedent since 2000, implemented a standard to use when striking an expert witness. Here, the lower tribunal relied upon Bermudez rather than considering the factors discussed by Pascual, the controlling district court opinion. “Incorrectly applying the law constitutes an abuse of discretion.” Miami Dade County v. Bloom, M Fla. L. Weekly Supp. _ (Fla. llth Cir. Ct. Aug. 3, 2011). Because the court incorrectly applied the law, we conclude that it abused its discretion. We vacate the final judgment and remand for further proceedings.

II.

The insurer requests section 768.79, Florida Statutes, appellate attorney’s fees.‘ Section 768.79 “applies to fees incurred on appeal,” and such “attorney’s fees are not discretionary.” Matter Roofing, Inc. v. Leibowitz, 833 So. 2d 788, 789; 27 Fla. L. Weekly D576 (Fla. 3d DCA 2002). Progressive Cas. Ins. Co. v. Galabow-Chiropractic Clinic, Inc. awarded section 768.79 appellate attorney’s fees but made such award “contingent on meeting the criteria set forth in” the statute. 18 Fla. L. Weekly Supp. 160a (Fla. llth Cir. ct. Nov. 19, 2010) (emphasis added)? A We consider the statute’s criteria: (1) In any civil action for damages . . . if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney’s fees incurred . . . on the defendant’s behalf pursuant to a policy of liability insurance . . . . § 768.79(l), Fla. Stat. (2010) (emphasis added). We interpret a statute in accord with its plain language. Art Berman Concrete, Inc. v. Sey Constr. C0rp., 247 So. 2d 791, 792 (Fla. 3d DCA I971). Considering the statute’s plain language, we hold that the words “pursuant to a policy of liability insurance,” § 768.79(l), Fla. Stat. (2010), require the insurer to refer ' The insurer specifically requests fees pursuant to subsection (3). See § 768.79(3), Fla. Stat. (2010) (“The offer shall be served upon the party to whom it is made, but it shall not be filed unless it is accepted or unless filing is necessary to enforce the provisions of this section”). Subsection (3) alone does not provide a substantive basis to award appellate attorney’s fees. 2 The insurer concedes that it must satisfy section 768.79’s criteria. See Mot. for Atty’s Fees 1] 4. Bermudez’s position that “a valid report is required where an insurer attempts to reduce, withdraw, or deny PIP benefits.” 980 So. 2d at 1216. Nonetheless, we disagree that Bermudez justified excluding the expert witness. Pascual, binding precedent since 2000, implemented a standard to use when striking an expert witness. Here, the lower tribunal relied upon Bermudez rather than considering the factors discussed by Pascual, the controlling district court opinion. “Incorrectly applying the law constitutes an abuse of discretion.” Miami Dade County v. Bloom, M Fla. L. Weekly Supp. _ (Fla. llth Cir. Ct. Aug. 3, 2011). Because the court incorrectly applied the law, we conclude that it abused its discretion. We vacate the final judgment and remand for further proceedings.

II.

The insurer requests section 768.79, Florida Statutes, appellate attorney’s fees.‘ Section 768.79 “applies to fees incurred on appeal,” and such “attorney’s fees are not discretionary.” Matter Roofing, Inc. v. Leibowitz, 833 So. 2d 788, 789; 27 Fla. L. Weekly D576 (Fla. 3d DCA 2002). Progressive Cas. Ins. Co. v. Galabow-Chiropractic Clinic, Inc. awarded section 768.79 appellate attorney’s fees but made such award “contingent on meeting the criteria set forth in” the statute. 18 Fla. L. Weekly Supp. 160a (Fla. llth Cir. ct. Nov. 19, 2010) (emphasis added)? A We consider the statute’s criteria: (1) In any civil action for damages . . . if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney’s fees incurred . . . on the defendant’s behalf pursuant to a policy of liability insurance . . . . § 768.79(l), Fla. Stat. (2010) (emphasis added). We interpret a statute in accord with its plain language. Art Berman Concrete, Inc. v. Sey Constr. C0rp., 247 So. 2d 791, 792 (Fla. 3d DCA I971). Considering the statute’s plain language, we hold that the words “pursuant to a policy of liability insurance,” § 768.79(l), Fla. Stat. (2010), require the insurer to refer ' The insurer specifically requests fees pursuant to subsection (3). See § 768.79(3), Fla. Stat. (2010) (“The offer shall be served upon the party to whom it is made, but it shall not be filed unless it is accepted or unless filing is necessary to enforce the provisions of this section”). Subsection (3) alone does not provide a substantive basis to award appellate attorney’s fees. 2 The insurer concedes that it must satisfy section 768.79’s criteria. See Mot. for Atty’s Fees 1] 4. [*4] to the policy provision providing the substantive basis for fees. Dept. ofHighway Safety and Motor Vehicles v. Trauth, 971 So. 2d 906, 908; 32 Fla. L. Weekly D2931 (Fla. 3d DCA 2007); Wilson v. S. Repair .S'ervs., 812 So. 2d 445, 446; 26 Fla. L. Weekly D2836 (Fla. 5th DCA 2001). Because the statute refers to the insurance policy, we also must refer to the policy as providing a substantive basis for awarding appellate attorney’s fees. We will violate the iaw’s essential requirements if we fail “to state any basis for awarding attorney’s fees.” Traztth, 971 So. 2d at 908. Here, the insurer’s motion properly attaches three settlement proposals, but the motion fails to attach or cite any insurance policy provision discussing attorney’s fees. The attached settlement proposals also did not reference a policy provision. “Motions . . . should be complete within themselves and must contain such appropriate refizrences to or excerpts fiom the record as will relieve this court of the burden of reviewing the entire record.” Atlas Travel Service v. Morelly, 97 So. 2d 496, 497 (Fla. lst DCA 1957) (emphasis added). We find this deficient motion particularly troublesome because Florida Rule of Appellate Procedure 9.300(a) clearly permitted the insurer to submit its motion “accompanied by an appendix, which may include affidavits and other appropriate supporting documents” (emphasis added). Because the motion for appellate attorney’s fees did not include, cite, or reference a policy provision discussing attorney’s fees, we conclude that the insurer failed to demonstrate a substantive basis for appellate attorney’s fees. Consequently, we deny the motion. Home Depot v. Ferreira, 827 So. 2d 371; 27 Fla. L. Weekly D2193 (Fla. lst DCA 2002). REVERSED and REMANDED; SECTION 768.79 APPELLATE ATTORNEY’S FEES

DENIED.

£Z’€li’ii'ii?-; "r-:3 €;€lUt<l%‘§l. or arcane Av?) roaster-An. -3 -. , Vgptttil aaeaasaitrnsa .i l to the policy provision providing the substantive basis for fees. Dept. ofHighway Safety and Motor Vehicles v. Trauth, 971 So. 2d 906, 908; 32 Fla. L. Weekly D2931 (Fla. 3d DCA 2007); Wilson v. S. Repair .S'ervs., 812 So. 2d 445, 446; 26 Fla. L. Weekly D2836 (Fla. 5th DCA 2001). Because the statute refers to the insurance policy, we also must refer to the policy as providing a substantive basis for awarding appellate attorney’s fees. We will violate the iaw’s essential requirements if we fail “to state any basis for awarding attorney’s fees.” Traztth, 971 So. 2d at 908. Here, the insurer’s motion properly attaches three settlement proposals, but the motion fails to attach or cite any insurance policy provision discussing attorney’s fees. The attached settlement proposals also did not reference a policy provision. “Motions . . . should be complete within themselves and must contain such appropriate refizrences to or excerpts fiom the record as will relieve this court of the burden of reviewing the entire record.” Atlas Travel Service v. Morelly, 97 So. 2d 496, 497 (Fla. lst DCA 1957) (emphasis added). We find this deficient motion particularly troublesome because Florida Rule of Appellate Procedure 9.300(a) clearly permitted the insurer to submit its motion “accompanied by an appendix, which may include affidavits and other appropriate supporting documents” (emphasis added). Because the motion for appellate attorney’s fees did not include, cite, or reference a policy provision discussing attorney’s fees, we conclude that the insurer failed to demonstrate a substantive basis for appellate attorney’s fees. Consequently, we deny the motion. Home Depot v. Ferreira, 827 So. 2d 371; 27 Fla. L. Weekly D2193 (Fla. lst DCA 2002). REVERSED and REMANDED; SECTION 768.79 APPELLATE ATTORNEY’S FEES

DENIED.

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NOT FINAL UNTIL TIME EXPIRES

TO FILE RE-HEARING MOTION,

AND IF FILED, DISPOSED OF. IN THE CIRCUIT COURT OF THE

ELEVENTH JUDICIAL CIRCUIT.

IN

AND

FOR

MIAMI-DADE

COUNTY, FLORIDA

APPELLATE DIVISION

CASE NUMBER: I l~006 AP TRIAL CASE NUMBER: 07-023224 SP 05 »'» v _____ .¢ Y ,~= I7 " llZ CUSTER MEDICAL CENTER INC., -Ti -- Fl a/a/0 VENEZIA ABRBU, e; ' I-1‘! 2: “ Cf) "1 it

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~'n F'l U : . Appellant, '9. =1.lT§‘_f U vs. 33-“‘~'.' 5-" E15 la ____,.t F-"1 :-- " ,---_ ,,_ _._ . _. UNITED AUTOMOBILE INSURANCE CO., it ____ Appcl lcc. _ _ 7_/ An appeal from a decision by the County Couflin and fof Miami-Dade County, Florida, Shelley J. Kravitz, Judge. t Nlark J. Fcldman. F.sq.. for Appellant. Michael J. Neimand, Esq., for Appellee. Hearmg on: October 31, 2012. Opinion filed: m 1. 2013 Page 1 of 2 y 3% y 672->/)6} .1‘. I s I-‘ t A1 -z-:1 \ *’ \ L efg/m/mg" §A;/3 ¢/

NOT FINAL UNTIL TIME EXPIRES

TO FILE RE-HEARING MOTION,

AND IF FILED, DISPOSED OF. IN THE CIRCUIT COURT OF THE

ELEVENTH JUDICIAL CIRCUIT.

IN

AND

FOR

MIAMI-DADE

COUNTY, FLORIDA

APPELLATE DIVISION

CASE NUMBER: I l~006 AP TRIAL CASE NUMBER: 07-023224 SP 05 »'» v _____ .¢ Y ,~= I7 " llZ CUSTER MEDICAL CENTER INC., -Ti -- Fl a/a/0 VENEZIA ABRBU, e; ' I-1‘! 2: “ Cf) "1 it

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~'n F'l U : . Appellant, '9. =1.lT§‘_f U vs. 33-“‘~'.' 5-" E15 la ____,.t F-"1 :-- " ,---_ ,,_ _._ . _. UNITED AUTOMOBILE INSURANCE CO., it ____ Appcl lcc. _ _ 7_/ An appeal from a decision by the County Couflin and fof Miami-Dade County, Florida, Shelley J. Kravitz, Judge. t Nlark J. Fcldman. F.sq.. for Appellant. Michael J. Neimand, Esq., for Appellee. Hearmg on: October 31, 2012. Opinion filed: m 1. 2013 Page 1 of 2 y 3% y 672->/)6} .1‘. I s I-‘ t A1 -z-:1 \ [*6] Before: PEDRO P. ECHARTE, .lR., SPENCER EIG, and BEATRICE BUTCI-IKO JJ. Al?FIRMEI). BIG, 1., dissents without opinion. Appellant's Motion for Attorney's Fees is hereby DENIED. Appellee‘s Motion for Appellate Att0rney’s Fees is hereby GRANTED. The action is remanded to the trial court for a determination of attorney's fees with reference to section 768.79, Florida Statutes and the proposal for settlement offered in this case.

COPIES FURNISHED TO COUNSEL

OF RECORD AND TO ANY PARTY

NOT REPRESENTED BY COUNSEL

Page 2 of 2 Before: PEDRO P. ECHARTE, .lR., SPENCER EIG, and BEATRICE BUTCI-IKO JJ. Al?FIRMEI). BIG, 1., dissents without opinion. Appellant's Motion for Attorney's Fees is hereby DENIED. Appellee‘s Motion for Appellate Att0rney’s Fees is hereby GRANTED. The action is remanded to the trial court for a determination of attorney's fees with reference to section 768.79, Florida Statutes and the proposal for settlement offered in this case.

COPIES FURNISHED TO COUNSEL

OF RECORD AND TO ANY PARTY

NOT REPRESENTED BY COUNSEL