13 Fla. L. Weekly Supp. 359a
Insurance — Personal injury protection — Where insurer failed to respond to valid requests for admission, summary judgment is proper based on those admissions, and insurer’s opposing affidavits were filed in untimely manner, medical provider’s motion for summary judgment is granted
DENIX LOPEZ, Plaintiff(s), vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant(s). County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 05-2497 SP 26 (03). November 16, 2005. Judith Rubenstein, Judge. Counsel: DeWayne Terry. Martin I. Berger, Samole & Berger, P.A., Miami.
ORDER GRANTING PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT AND FINAL SUMMARY JUDGMENT
THIS CAUSE, having come before the Court upon Plaintiff, Denix Lopez’s, Motion for Summary Judgment. The Court having considered the matter, and otherwise being duly advised on the premises, finds and rules as follows:
Plaintiff filed his Complaint on or about May 13, 2005. Along with the Complaint, Plaintiff served Interrogatories, Request for Production and Request for Admissions. The Chief Financial Officer served the Defendant on May 26, 2005 via certified mail. The parties waived their appearances at Pretrial Conference.
This Court granted Defendant’s Motion to Invoke the Florida Rules of Civil Procedure and to Respond to the Complaint and to Plaintiff’s Initial Discovery Requests Within Twenty Days of the Pretrial Conference and Demand for Jury Trial.
Defendant did not respond to Plaintiff’s discovery requests in the time required by the aforementioned Order or within the time prescribed in Florida Rule of Civil Procedure 1.370. Defendant filed an Answer and Affirmative Defenses on July 20, 2005.
Plaintiff moved for Summary Judgment on August 29, 2005 based upon Defendant’s failure to respond to Plaintiff’s Request for Admissions within the time prescribed by Florida law. The Court holds that mere inadvertence is not an excuse for failing to respond to requests for admissions, and summary judgment is proper based upon the admissions. See Farish vs. Lum’s, Inc, 267 So. 2d 325 (Fla. 1972); Asset Management Consultants of Virginia, Inc. vs. City of Tamarac, 2005 WL 2509140 (Fla. 4th DCA 2005).
The Court further refuses to consider documents filed by Defendant as they were filed untimely. Defendant, United Auto, submitted a Notice of Filing the Peer Review By Peter J. Millheiser, M.D. and an IME Report of Pedro Musa-Ris, M.D. via facsimile at 5:40 p.m. on Friday, October 14, 2005. Florida Rule of Civil Procedure 1.510(c) states that “The adverse party may serve opposing affidavits by mailing the affidavits at least five days prior to the day of the hearing, or by delivering the affidavits to the movant’s attorney no later than 5:00 p.m. two business days prior to the day of the hearing.” Fla. R. Civ. Pro. 1.510(c). This Court holds that the Notice of Filing was filed in an untimely manner.
Based upon the Defendant’s failure to respond to valid Requests for Admissions and failure to file opposing affidavits within the time allowed by the Rules of Civil Procedure, this Court grants Plaintiff’s Motion for Summary Judgment.
ORDERED and ADJUDGED that Final Judgment is hereby entered in favor of the Plaintiff, and Plaintiff shall recover the amount of $446.40 in benefits, $19.04 in interest, and as the prevailing party as to Count I of the Plaintiff’s Complaint, Plaintiff’s counsel is entitled to attorney’s fees and costs under Fla. Stat. 627.428 in an amount to be determined at a later hearing.
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