Opinion
3D22-1865
06-19-2024
Health and Wellness Evolution Co. a/a/o Earl Esperon, Appellant, v. Infinity Auto Insurance Company, Appellee.
Douglas H. Stein, P.A., and Douglas H. Stein, for appellant. Gladys Perez Villanueva, Law Offices of Terry M. Torres &Associates, and David A. Villarreal, for appellee.
Not final until disposition of timely filed motion for rehearing.
An appeal from the County Court for Miami-Dade County, Lower Tribunal No. 17-11486 CC Elijah A. Levitt, Judge.
Douglas H. Stein, P.A., and Douglas H. Stein, for appellant.
Gladys Perez Villanueva, Law Offices of Terry M. Torres &Associates, and David A. Villarreal, for appellee.
Before SCALES, LINDSEY, and MILLER, JJ.
MILLER, J.
On Motion for Rehearing
Appellant, Health and Wellness Evolution Company, petitions for rehearing, and appellee, Infinity Auto Insurance Company, cross-petitions for clarification. We now grant the petition for rehearing, withdraw our earlier opinion, and substitute the following in its stead.
Appellant, Health and Wellness, the medical provider and holder of an assignment of personal injury protection benefits, challenges a final judgment rendered in favor of appellee, Infinity, the insurer, following a jury trial. The dispositive issue raised on appeal is whether the trial court reversibly erred in admitting a letter of representation into evidence in the absence of an established hearsay exception. Concluding it did, we reverse.
BACKGROUND
This is a run-of-the-mill personal injury protection dispute. Health and Wellness sought compensation for services rendered to an Infinity-insured following an automobile accident. Infinity set the insured for an examination under oath. Notice was furnished to a law firm reflected in a letter of representation Infinity purportedly received following the accident. The insured failed to appear on the scheduled date. Infinity set a second examination, and the insured again failed to appear.
Health and Wellness then filed suit in the county court. Infinity answered the complaint and raised as an affirmative defense the failure to appear at the examination under oath.
The case proceeded to trial. The transcript of record reflects the testimony of but a single witness, Iran Richie, Infinity's corporate representative and litigation specialist. During Richie's testimony, Infinity offered the letter into evidence. Health and Wellness objected on hearsay grounds, and Infinity argued the letter was intended solely to show the effect on the listener and establish subsequent conduct. The trial court overruled the objection and admitted the document into evidence.
At the conclusion of the testimony, Health and Wellness renewed the objection and moved for directed verdict on the grounds that Infinity failed to establish notice. The court denied the motion, and the parties proceeded to closing argument. During closing, Infinity's counsel told the jury that the return receipt from the examination notices matched the address of the law firm set forth in the letter of representation. This, he contended, was sufficient to establish proper notice.
By way of a written verdict, the jury determined that the insured failed to appear for a properly noticed examination. Renewing its prior hearsay objection yet again, Health and Wellness moved for a judgment notwithstanding the verdict. The court denied relief, and this appeal ensued.
STANDARD OF REVIEW
A trial court enjoys wide latitude in admitting evidence. See Wilchcombe v. State, 842 So.2d 198, 199 (Fla. 3d DCA 2003). This discretion, however, is constrained by the application of the Florida Rules of Evidence, Davis v. State, 121 So.3d 462, 491 (Fla. 2013), and "the question of whether evidence falls within the statutory definition of hearsay is a matter of law, subject to de novo review." Burkey v. State, 922 So.2d 1033, 1035 (Fla. 4th DCA 2006) (emphasis omitted).
ANALYSIS
Section 90.802, Florida Statutes (2022), provides: "[e]xcept as provided by statute, hearsay evidence is inadmissible." The term "hearsay," in turn, is defined in section 90.801(1)(c) as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." See Charles W. Ehrhardt, Florida Evidence, § 801.2 (2016 ed.).
In the instant case, the trial court overruled the hearsay objection with the understanding that the letter would only be used to show the effect on the listener and explain the subsequent conduct of the insurer. This proffered limitation, however, did not achieve fruition.
Instead, Infinity argued that the insured was indeed represented by the firm reflected in the letter and notice to the law firm constituted notice to the client. See Reizen v. Fla. Nat'l Bank at Gainesville, 237 So.2d 30, 32 (Fla. 1st DCA 1970); State v. White, 794 So.2d 682, 683 (Fla. 2d DCA 2001). This placed the truth of the contents of the letter at issue.
Because no hearsay exception was satisfied and there was no independent evidentiary support corroborating the contention that the firm in question represented the insured, the jury verdict necessarily rested upon inadmissible hearsay. See Summerall v. State, 171 So.3d 150, 152 (Fla. 1st DCA 2015). Accordingly, we are constrained to reverse the final judgment under review.
Reversed and remanded.