STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. PALMETTO LAKES THERAPY & REHABILITATION a/a/o MAIRELY GONZALEZ ( 2021 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,
Appellant,
v.
PALMETTO LAKES THERAPY & REHABILITATION
a/a/o MAIRELY GONZALEZ,
Appellee.
No. 4D21-0030
[November 17, 2021]
Appeal from the County Court for the Seventeenth Judicial Circuit,
Broward County; John D. Fry, Judge; L.T. Case Nos.
062013SC014136AXXXCE and 062018AP015957AXCCCE.
Ezequiel Lugo and DeeAnn McLemore of Banker Lopez Gassler P.A.,
Tampa, Nancy W. Gregoire of Birnbaum, Lippman & Gregoire, PLLC, Fort
Lauderdale, and Christopher L. Kirwan and R. Ryan Smith of Kirwan
Spellacy Danner Watkins & Brownstein, P.A., Fort Lauderdale, for
appellant.
Mac S. Phillips of Phillips|Tadros, P.A., Fort Lauderdale, for appellee.
KUNTZ, J.
State Farm Mutual Automobile Insurance Company appeals a final
judgment for Palmetto Lakes Therapy & Rehabilitation as assignee of
Mairely Gonzalez. State Farm argues the county court erred when it
struck the affidavit of State Farm’s sole witness as to the reasonableness
of the provider’s charges. We agree with State Farm and reverse.
During a summary judgment hearing, the court ordered State Farm to
select the areas on which each witness intended to testify. State Farm
selected one expert witness to testify to the reasonableness of the
provider’s charges. That expert asserted that Florida law considered the
amount a provider charged in determining the reasonableness of a
provider’s charges. But the expert did not believe the amount charged was
a reliable factor because providers did not expect to receive the amount
charged. Based on that belief, the court struck the expert’s entire affidavit.
State Farm argues the court erred when it struck the expert’s entire
affidavit based on one paragraph. We agree.
A court may strike an expert’s affidavit for various reasons. For
example, if an expert repudiates matters previously attested to, the
affidavit may be stricken. See United Auto. Ins. Co. v. Seffar, 37 So. 3d
379, 381 (Fla. 3d DCA 2010) (citing Ellison v. Anderson, 74 So. 2d 680,
681 (Fla. 1954)) (analyzing whether an expert repudiated testimony).
Similarly, an expert affidavit may be stricken if the expert opined on a
question of law because questions of law fall outside the scope of an
expert’s opinion. Luckman v. Wills, 306 So. 3d 990, 994 (Fla. 3d DCA
2020).
Neither of those situations is present in this case. At most, the court
found one paragraph of the expert’s ten-page affidavit to be an opinion on
a question of law. In that situation, a “court may strike the insufficient
portions of the affidavit and consider the valid portions.” Marrero v.
Corcino, 813 So. 2d 1049, 1050 (Fla. 4th DCA 2002) (citing Humphrys v.
Jarrell, 104 So. 2d 404, 410 (Fla. 2d DCA 1958)).
If the rest of the affidavit demonstrated questions of fact, summary
judgment was not appropriate. See id. Here, a review of the rest of the
affidavit shows that State Farm’s expert considered multiple sources and
explained the relevance of each to his analysis about the reasonableness
of the charges.
The court erred when it struck the expert’s entire affidavit. Had the
affidavit not been stricken, the existence of material facts would have
precluded the entry of summary judgment. As a result, we reverse the
court’s summary judgment and remand for further proceedings.
Reversed and remanded.
KLINGENSMITH and ARTAU, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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