12 Fla. L. Weekly Supp. 1098a
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary treatment — Summary judgment — Where medical provider’s motion for summary judgment with supporting affidavit establishes prima facie entitlement to relief on issue of whether treatment provided to insured was reasonable, related and necessary, and insurer’s affidavit in opposition to motion was untimely served, summary judgment is granted in favor of provider — No merit to argument that summary judgment cannot be granted because insurer has filed motion to amend answer and affirmative defenses to allege misrepresentation — Court will not condone insurer’s dilatory conduct in waiting nine months after insurer became aware of possible misrepresentation to file motion to amend
COASTAL WELLNESS CENTER, INC. (a/a/o Modeline Jean-Louis), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 04-13313 COCE 53. September 21, 2005. Robert W. Lee, Judge. Counsel: Cris Boyar, Margate, for Plaintiff. Todd Landau, Coral Gables, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT
This cause came before the Court on September 19, 2005 for hearing of the Plaintiff’s Motion for Summary Judgment, and the Court’s having reviewed the Motion and entire Court file, heard argument, reviewed the relevant legal authorities, and been sufficiently advised in the premises, finds as follows:
Background.
1. On August 12, 2004, the Plaintiff filed its complaint for unpaid PIP benefits against Defendant.
2. On September 29, 2004, the Defendant filed its Answer and Affirmative Defenses, asserting three defenses: (1) failure to provide the required statutory and disclosure form; (2) fraudulent misrepresentation based on CPT code issues; and (3) failure of condition precedent due to failure to timely provide pre-suit demand.
3. On December 16, 2004, the Plaintiff filed its Motion for Summary Judgment on all issues, but withdrew the Motion on December 21, 2004 as inadvertently filed.
4. On January 3, 2005, the Plaintiff filed its Notice of Trial.
5. On January 31, 2005, the Plaintiff filed its Motion for Summary Judgment with supporting affidavits. The Plaintiff did not seek a hearing on its Motion.
6. On February 7, 2005, the Plaintiff filed its Motion to Stay, acknowledging that it had prematurely filed the lawsuit. The Plaintiff sought a 15-day stay to provide the Defendant an opportunity to pay the claim with penalty, interest, costs, or fees. This Motion was granted on February 16, 2005. The Defendant did not pay the claim within the stay period.
7. On February 9, 2005, the matter was set for mediation for March 15, 2005. The matter proceeded to mediation on March 15th, but did not settle.
8. On March 18, 2005, the case was referred to mandatory non-binding arbitration. The matter was set for arbitration for July 14, 2005. The arbitrator served her decision on July 23, 2005.
9. On July 14, 2005, the Plaintiff filed its Motion for Partial Summary Judgment on the issue of Defendant’s first affirmative defense, failure to provide the required disclosure and acknowledgment form.
10. On July 19, 2005, the Plaintiff filed its renewed Motion for Summary Judgment. The Motion was set for hearing for August 17, 2005.
11. On August 8, 2005, the Defendant filed its Motion for Trial de Novo on the arbitrator’s decision.
12. On August 11, 2005, the Court entered its Order Setting Pretrial Conference for October 11, 2005.
13. On August 18, 2005, the Court reset the hearing on the Plaintiff’s Motion for Summary Judgment for September 19, 2005.
14. On September 12, 2005, the Defendant filed its Motion to File Amended Answer and Affirmative Defenses, seeking for the first time to assert the additional defense of fraudulent misrepresentation in applying for insurance policy. The Defendant did not seek a hearing on its Motion.
15. On September 19, the summary judgment hearing was heard before the Court. At the hearing, the Defendant produced an unfiled affidavit of Marvin J. Merrit, D.C. which it desired to use in opposition to the Motion for Summary Judgment.
Conclusions of Law. Summary Judgment is appropriate where the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits conclusively show that there remain no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fla.R.Civ.P. 1.510.
The burden is on the moving party to establish the non-existence of any genuine issue of material fact. Romero v. All Claims Insurance Repairs, Inc., 698 So.2d 605, 606 (Fla. 3d DCA 1997). In determining that no issue of material fact exists, the trial court may rely upon exhibits, affidavits and pleadings on file. See Mack v. Commercial Industrial Park, Inc., 541 So.2d 800, 800 (Fla. 4th DCA 1989). Once the movant tenders competent evidence to support the motion, the party against whom judgment is sought must present contrary evidence to reveal a genuine issue. It is not enough for the party opposing summary judgment merely to assert that an issue exists. Buitrago v. Rohr, 672 So.2d 646, 648 (Fla. 4th DCA 1996). The issue for the Court is whether the pleadings on file and record evidence establish that the medical treatment provided to Modeline Jean-Louis was reasonable, medically necessary, and related to the accident. In this case, the pleadings on file and record evidence submitted herewith demonstrates conclusively that no genuine issue of material fact exists on this issue.
The Plaintiff’s Motion, with supporting affidavits, is sufficient to establish its prima facie entitlement to the relief, as cogently stated by Plaintiff’s counsel on the record at the hearing on this matter in open court. The issue then is whether the Defendant has demonstrated any disputed issue of material fact. The Court first considers the Affidavit of Marvin Merrit filed in opposition to the Plaintiff’s Motion. The affidavit was clearly served untimely under Rule 1.510(c). See Coffman Realty, Inc. v. Tosohatchee Game Preserve, Inc., 381 So.2d 1164, 1166 (Fla. 5th DCA 1980), approved 413 So.2d 1 (Fla. 1982) (judge has discretion to decline to consider late-filed affidavits). As the affidavit refers to a report conducted in October 2004, the Defendant clearly had more than sufficient time to get the affidavit filed timely. As a result, the Court declines to consider it.
Next, the Defendant argues that Summary Judgment should not be granted because it has filed a Motion to File Amended Answer and Affirmative Defenses. By the Defendant’s own admission, however, it was aware of the existence of the alleged defense by at least December 2004. The Defendant waited nine months to file its Motion. It waited until after mediation was conducted. It waited until after arbitration occurred. It waited until after the Plaintiff filed its Motion for Summary Judgment. It waited until after the Court had set the matter for hearing. And it waited until after the Court had set the matter for pretrial conference. As with Dr. Merrit’s affidavit, the Defendantşs actions are clearly dilatory. This dilatory conduct simply cannot be condoned by the Court, particularly when this Defendant has demonstrated a continuing pattern of dilatory conduct which has the effect of delaying the prompt resolution of PIP claims. See Ellis v. United Automobile Ins. Co., 12 Fla. L. Weekly Supp. 498 (Broward Cty. Ct. 2005). Accordingly, it is hereby
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Summary Judgment is GRANTED. The Plaintiff shall within ten (10) days submit a proposed summary final judgment conforming to the terms of this Order.
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