The appellate court reversed the trial court's ruling requiring the insurer to pay an expert witness fee to the treating physician. The court ruled that this was a legal issue subject to de novo review and had recently been directly addressed by the same court in United Auto. Ins. Co. v. Comprehensive Health Center, Inc. (a/a/o Erla Telusnor), 16 FLW Supp. 1143 (Oct. 21, 2009). The Telusnor court had examined the rules and extensive case law to conclude that treating physicians are not subject to discovery rules governing expert witnesses because they did not acquire their expert knowledge for the purpose of litigation, but rather simply in the course of attempting to make their patients well. (citing Fittipaldi USA, Inc. v. Castroneves, 905 So.2d 182, 186 (Fla. 3rd DCA 2005)).

The appellate court affirmed the trial court's summary judgment in favor of the provider. United had denied payment of the bills, claiming that they had received late notice of the accident and thus they were not obligated to pay. The court reasoned that the PIP statute, which requires notice "as soon as practicable after an accident," §627.736(4)(a), Fla. Stat. (2009), does not specifically define the time period in which notice must be given. They thus found they should "yield" to the trial court's determination on the issue. They cited to the fact that the insurer waited from February 19th until March 11th to review the file and request an EUO. The EUO did not occur until May 5th and the insurance adjuster did not review the transcript of the EUO until July 16th. The court further noted that the record contained no evidence of any prejudice to the insurer. Thus, the insured was entitled to summary judgment as to that defense.

The court then found that because late notice was the only defense raised by United and this defense had been rejected, the provider had prevailed on the substantive issues and was entitled to attorney's fees. The court did not address whether the court should attempt any apportionment between issues on which the provider had prevailed and those on which the provider had lost.

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