STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

v.

GUIDO A PEREZ M.D., INC., A/A/O ALEIDA ORAMA

Before THOMA$, FERNANDEZ, and BRENNAN, J1.

FERNANDEZ, J.

ell Guido A Perez MD. Inc. provided medical tr eatment to Aleide Orama ‘_. .-. 5- '-§..'_‘ G503-325 teee eteeeeite? Plaintiff‘/App ee . . , ' ' ed her PIP benefits to Dr. Perez, ' ‘ ties sustained in an automobile acetdent. Orama assign _ for min _ who submitted a claim to DefendantlAppellant State Farm Mutual Automobile Insurance l rties as to whether State Farm timclyipaid the claim, or Company. A dispute arose between t 1e pa .. cl . ntitled to apenalty and Interest for late payment ofthe aim. whether Dr. Perez was e A g‘ ' ' h ti r State Farm timely mailed a ial court determined that the primary Issue was W e Ie The tr ' ailed at subject PIP amt-.1< on Match ' k to D¹ To prove that ll. m ehec -. _ 20th, State Farm. sought to establish that it had e routine business practice of timely mailing PIP checks. State Farm presented evidence of their procedures for mailing PIP checks through the ' ' P ez resented the testimony of witness Tracy Mann. To counter State Fantfs evidence, D1. er p l [*2] - ll-’l¢i 14140 FREMlestirnony of Maria Colo, a. paralegal working for Dr. Perez’s attorney, who testified that Dr. Perez told her that he did not receive the subject PIP check. At the conclusion of the trial, the jury returtled a verdict in favor of Dr. Perez, finding that State Farm did not establish that it had timely mailed the check. State Farm now appeals the finaljudgment on several grounds. Having reviewed State Farnfs argntnents on appeal, this Court chooses to focus on the trial oourt’s ruling on State Ft1rm’s post-trial motion for new trial as it relates to the testimony of Maria Coto. Subsequent to the jury verdict, State Farm filed several post-trial motions, including a motion for new trial, wherein State Farm argued that the trial court incorrectly allowed heat-say testimony front Maria Cote. During the post-trial hearing the trial coutt ruled that the testimony of Dr. Perez’s witness Maria Cote was inadmissible heaisay, and that the witness should not have been allowed to testifyto the jury. The trial court, however, denied State Fann’s motion for new trial. The trial c0urt’s rationale was that any error regarding Ms. Coto"s testimony was harmless because the trial court should have directed a verdict for Dr. Perez on the grounds that Tracy Menu was not conipetent to testify, and therefore State Farm did not present any competent evidence ofe routine business practice. i . State Form now claims that the trial court erred in denying its motion for new trial despite conceding error in allowing Ms. Coto’s testimony. While State Farm argues that the standard of review should be de nova because the trial court conceded the underlying error, this Court will review the decision under the abuse of discretion standard, the general standard of review for a motion for new trial 3outl1win Inc v. Verde, 806 So. 2d 586, 58~7(l¹‘la. 3d DCA_ 2002). To determine whether the trial court abused its discretion, this Court focuses on whether the error in allowing Maria Colo to testify was harmless. To this end, the Court finds this language from" Paciovano’s Florida Appellate Practice helpful on this issue: The test for detennining the existence ofreversible error in a civil case iswhether there is a reasonable probability that a result more favorable tothe party seeking review would have been reached if the error had not been committed. The first step in applying this standard is to determine Whether the error was material to the decision in the case... {'I‘]he burden is on the beneficiary of an error to show that the error was harmless. . .. [A]n error is harmless ifit is more likely than not that it did not influence the decision made by the trier of fact. _ - E 2. Fla. Prac., Appellate Practice § 19:11 (2014 ed.) (citing fipecial v. Bans, 79 So. 3d 755 (Fla. 4th DCA 2011)). T-094 Pfililliifllilill F—i 84 44-<-=~_.-,._-------.- A ..==_-=~._;-—;.,.,._ -. u [*3] 4 40 tent T-G94 P0010/0910 t-tea A 04- 4-’14 : — Upon review of the patties’ briefs and argruncnts, as well as the record and trial i¹'anscript, this Appellate Court finds that the trial coutt’s conceded error to allow the hearsay testimony of Maria Coto cannot be eonsidored hannless error. Ms. Cotofs testimony that Dr. Perez did not receive the subject PIP cheek was material to the case, likely influenced the trier of fact when, deciding whether State Farm mailed the check, and there is a reasonable probability that the trier of fact would have reached a different ‘conclusion if Ms.‘ Coto’s hearsay testimony had net been allowed. V THEREFORE, based on the foregoing analysis, this Appellate Court finds that the trial eourt’s error regarding Maria Co_to’s testimony was not l1_61‘l'l1lOSS? and that the trial court abused its discretion by denying Appellanfs Motion for New Trial. Accordingly, the Final Judgment is hereby REVERSED and the case is REMANDED’ for 5 new trial. Appeilaltfs Motion toi- Attorneys Fees and Costs is hereby GRANTED. c t THOMAS.end BRENNAN, JJ. concur. \

HON. JO

L. FE

ANDEZ

urr con

JUDGE

(¢\%m' b 0 ‘l%‘§\ HbN.WtLLE THOMAS ‘ "_ crncurtr count JUDGE

HON. VICTORIA R. BRENNAN

'

CIRCUIT COURT JUDGE

COPIES FURNISHED TO

COUNSEL OF RECORD

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