Application of 90.803(6): Uncashed Checks- How Business Records Saved the Day

A PIP carrier that has paid everything it owes still has to prove it, and proof means getting the payment ledger into evidence. In United Automobile Insurance Co. v. Chiropractic Clinics of South Florida, PL, 345 So. 3d 952 (Fla. 3d DCA 2022), the Third District Court of Appeal reversed a judgment against an insurer because the trial court demanded more foundation for the business records exception than section 90.803(6), Florida Statutes, actually requires. The brief below sets out the facts, the issues, the holding, and the rationale.

Facts: United Auto v. Chiropractic Clinics of South Florida

The parties. Manuel Ortiz was injured in an April 11, 2010 automobile accident and claimed personal injury protection benefits under his United Automobile Insurance Company policy. Ortiz assigned his benefits to Chiropractic Clinics of South Florida, PL, which sued United Auto as his assignee, claiming the carrier had not paid all PIP benefits owed. United Auto’s position was that it had paid the policy limits in full and that benefits were exhausted.

The uncashed checks. United Auto had issued a series of payments, several of which were never negotiated — among them a $559.59 check to Custer Medical, a $105.71 transportation payment, and smaller amounts of $73.72 and $55.29. United Auto later reissued the original $559.59 check together with $98.98 in accrued interest. Those uncashed and reissued checks became the heart of the dispute over whether benefits had truly been exhausted.

Procedural history and judgment. United Auto moved for summary judgment, supporting the motion with the affidavit of litigation adjuster Jhonny Navarro and the company’s payment ledger and check stubs. The trial court excluded the affidavit and the stubs as hearsay, holding that the business records exception had not been satisfied, and further found that the reissued $559.59 check amounted to an improper “reserve fund” so that benefits were not exhausted. Summary judgment was denied and an agreed final judgment of $792.75 in medical bills and interest was entered for the clinic in the Miami-Dade County Court (lower tribunal no. 14-3923 SP). United Auto appealed to the Third District Court of Appeal.

Issues on Appeal

United Auto raised two evidentiary questions, both turning on the business records exception, and one coverage question:

• Foundation. Did the adjuster’s affidavit lay a sufficient predicate under the business records exception, or must the sponsoring witness also explain the basis for his familiarity with the company’s recordkeeping practices?
• The check stubs. Were United Auto’s payment ledger and check stubs themselves admissible as records of a regularly conducted business activity?
• Exhaustion. Did the reissued $559.59 check represent an impermissible reserve fund, or benefits already allocated and therefore exhausted?

Holding: The Business Records Exception Applied

• Foundation. The affidavit was sufficient. Section 90.803(6) imposes a four-part predicate and nothing more. The business records exception does not require the sponsoring witness to have prepared the record, and it does not require him to detail why he is familiar with the company’s practices.
• The check stubs. The ledger and stubs qualified as business records and should have been admitted.
• Exhaustion. The reissued check was not a reserve fund. Because the original check was never cashed, the money remained allocated benefits, and the PIP limits were exhausted.
• Disposition. Reversed and remanded with instructions to enter summary judgment for United Auto.

Rationale

The statutory predicate is the whole test. The business records exception admits a record where it was (1) made at or near the time of the event, (2) made by, or from information transmitted by, a person with knowledge, (3) kept in the course of a regularly conducted business activity, and (4) made as the regular practice of that business activity. The predicate may be laid by the records custodian “or other qualified witness.”

The sponsoring witness need not be the author. The court reiterated that it is not necessary to call the person who actually prepared the document; any witness with the requisite knowledge of how the record is made and kept can lay the foundation. Navarro’s affidavit recited that United Auto created and maintained its payment records and check stubs in the ordinary course of its business, which tracked each element of the statute.

No extra-statutory foundation. The Third DCA squarely rejected the additional showing the trial court had demanded, holding that no further foundation is required by the statute or by its own case law and declining to require a witness to detail the basis of his familiarity with the relevant business practices. Grafting that requirement onto the business records exception was error, and excluding the affidavit and the stubs on that basis was reversible.

Uncashed does not mean unpaid-out. On exhaustion, the court reasoned that a check the payee never negotiated does not convert allocated benefits into a reserve. United Auto had committed the $559.59 to the claim, the payee simply never cashed it, and reissuing it with interest confirmed rather than undermined that the benefits had been paid out. With the ledger and stubs admitted under the business records exception, the summary judgment record established exhaustion as a matter of law.

Practice Points Under the Business Records Exception

• Track the four elements, then stop. Draft the affidavit so it recites each element of the business records exception in the statute’s own language. Adding narrative about the affiant’s tenure or training is harmless, but its absence is not a defect.
• “Other qualified witness” is broad. A litigation adjuster who knows how the file is maintained can sponsor the record. Opposing counsel’s demand for the author of the entry is not a ground for exclusion.
• Consider the certification route. Section 90.803(6)(c), read with section 90.902(11), allows a written certification in place of live testimony — useful where a hearing on the business records exception would otherwise be required.
• Document reissuance. In an exhaustion defense, show the original issuance, the failure to negotiate, and the reissuance with interest. The paper trail is what distinguishes allocated benefits from a reserve.
• Preserve the evidentiary ruling. The appeal turned entirely on the excluded affidavit and stubs; without a clean record of the objection and ruling there is nothing to review.

Why This Matters

Most Florida commercial and insurance litigation is won or lost on documents — ledgers, invoices, statements, payment histories, work orders. The business records exception is the door those documents come through, and a trial court that adds requirements the Legislature did not write can keep an otherwise complete defense out of the record. Cox Law, PLLC builds records predicates on the front end, for carriers and for businesses, so that the proof is admissible when it matters.

Read the Opinion

United Automobile Insurance Co. v. Chiropractic Clinics of South Florida, PL, No. 3D21-714, 345 So. 3d 952 (Fla. 3d DCA Aug. 17, 2022). The slip opinion is available from the Florida courts opinion archive, and a copy is attached below.

---

Disclaimer: The information provided in this article is for general informational purposes only and does not constitute legal advice. Reading this article or contacting Cox Law, PLLC through this website does not create an attorney-client relationship. You should not act or refrain from acting based on any information in this article without first seeking professional legal counsel. Every case is different, and past results do not guarantee future outcomes.