27 Fla. L. Weekly Supp. 889b
Online Reference: FLWSUPP 2710RODRInsurance — Personal injury protection — Continuance — Pending discovery — Denial — Motion to continue summary judgment hearing to allow insurer to depose claimant is denied — Insurer has had ample opportunity to depose claimant in seven years that case has been in litigation
VENUS MEDICAL CENTER CORP., a/a/o Susy Rodriguez, Plaintiff, v. UNITED AUTO. INS. CO., Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2012-020781-CC-25, Section CG03. November 12, 2019. Patricia Marino Pedraza, Judge. Counsel: Majid Vossoughi and David J. Mannering, Majid Vossoughi, P.A., Miami, for Plaintiff. Paula Elkea Ferris, House Counsel for United Auto. Ins. Co., Miami Gardens, for Defendant.
ORDER ON DEFENDANT’S MOTION TO CONTINUE
THIS CAUSE came before the Court on November 1, 2019 on Defendant’s Amended Emergency Verified Motion to Continue Both Plaintiff’s Motion for Summary Judgment, Now Set for November 1, 2019 and the Trial Date of November 12, 2019, and to Take the Matter of the Trial Calendar, Thereby Extending the Jury Trial Order Deadline(s).
The parties were represented by counsel at the hearing who presented arguments to this Court. Paula Elkea Ferris, Esq. appeared on behalf of the Defendant, and Majid Vossoughi, Esq. and David J. Mannering, Esq. appeared on behalf of the Plaintiff.
The Court having reviewed Defendant’s motion, the entire Court file, the relevant legal authorities, and having heard argument from counsel and being otherwise sufficiently advised in the premises, hereby enters this Order DENYING Defendant’s motion to continue the summary judgment hearings of November 1, 2019 and GRANTING Defendant’s motion to continue the trial date of November 12, 2019 and makes the following factual findings and conclusions of law.
BACKGROUND & FACTUAL FINDINGS
Plaintiff filed this breach of contract action seeking payment of Personal Injury Protection (“PIP”) benefits on September 12, 2012 and the case has been in litigation for more than seven (7) years.
On August 2, 2019 the Court entered its Jury Trial Order setting deadlines for the completion of discovery, including any depositions, with a trial period to commence November 12, 2019. The case was selected for trial because it significantly exceeded the Florida Rules of Judicial Administration Time Standards.
The Court’s Jury Trial Order specifically admonished the parties that discovery must be completed within the deadlines set by the Court, that the parties must preserve the testimony of any witnesses not available during the trial period, and further placed the parties on notice that due to the age of this case no continuances would be granted based on lack of preparation and/or unavailability.
Since inception more than seven (7) years ago, the only issues framed by the pleadings in this case have been the reasonableness, relatedness, and medical necessity of treatment rendered by the Plaintiff to the claimant due to injuries sustained in the subject automobile accident. A hearing on Plaintiff’s dispositive (i) Motion for Summary Judgment as to Reasonableness of Plaintiff’s Charges and (ii) Motion for Partial Summary Judgment as to Related and Medically Necessary Treatment was noticed for November 1, 2019.
On October 17, 2019 Defendant filed its Amended Emergency Verified Motion to Continue Both Plaintiff’s Motion for Summary Judgment, Now Set for November 1, 2019 and the Trial Date of November 12, 2019, and to Take the Matter of the Trial Calendar, Thereby Extending the Jury Trial Order Deadline(s).
Defendant’s motion sought a continuance of both the trial of this matter as well as the summary judgment hearings noticed for November 1, 2019 and as grounds in support of same alleged a need to conduct the deposition of the claimant and to amend[1] its Answer to Plaintiff’s Complaint.
LEGAL ANALYSIS
A party seeking to continue a summary judgment hearing based on pending discovery has “the burden of showing, by affidavit, the existence and availability of other evidence, its relevance, the efforts taken to produce it, and that any failure to do so is not the result of the movant’s inexcusable delay”. Carbonell v. Bellsouth Telecommunications, Inc., 675 So.2d 705, 706 (Fla. 3d DCA 1996) [21 Fla. L. Weekly D1476a] (affirming denial of motion for continuance since the party offered no such support); see also Periera v. Florida Power & Light Co., 680 So.2d 617 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D2163c] (finding no error in trial court’s refusal to continue summary judgment hearing noting that “little was done to move [the] case along during the more than three years between the filing of the law suit and the motion for summary judgment”); DeMesme v. Stephenson, 498 So.2d 673 (Fla. 1st DCA 1986) (affirming denial of motion for continuance in a medical malpractice case so as to secure the deposition of an expert witness and noting that “more than one year had elapsed from the time of the filing of the instant suit and the time of the filing of the motion for continuance”).
Stated otherwise, the entry of summary judgment may not be deemed premature, due to pending discovery, where the party seeking a continuance “ha[s] not been diligent in seeking discovery”, but only when the party “through no fault of its own” has been unable to complete discovery. Southern California Funding, Inc. v. Hutto, 438 So.2d 426, 430 (Fla. 1st DCA 1983) (affirming entry of summary judgment by trial court where party seeking a continuance “waited until the hearing on [the] motion for summary judgment to seek a ruling on their motion to compel discovery, and motion for continuance”).
While Defendant’s motion seeks a continuance so as to depose the claimant, a review of the Court file reflects that the Defendant has had ample opportunities to complete its desired discovery in this case, but for the Defendant’s own inexcusable delay. Specifically, the instant matter has been pending for years in excess of the recommended time standards set forth in in Fla. R. Jud. Admin. 2.250(a)(1)(B) [providing 18 months for this civil matter to be completed from filing to disposition].
A review of the Court’s file reflects that the instant matter was filed on September 12, 2012. It was not until April 8, 2015 or some two and a half (2 ½) years later that Defendant ever noticed a deposition of claimant to occur on June 24, 2015. This deposition was unilaterally noticed and on June 16, 2015 the Court entered an Order requiring the parties to mutually coordinate the deposition which was ultimately re-noticed to occur on October 16, 2015. Thereafter, on November 25, 2015 Defendant filed its Petition for Rule to Show Cause Against Non-party Witness, but in the intervening years (2015, 2016, 2017, 2018, 2019) the Defendant failed to set its petition for rule to show cause for hearing. On February 22, 2016 the Defendant again noticed a deposition of the claimant to occur on July 20, 2016, which was rescheduled on June 22, 2016 to occur on January 13, 2017. Since then, and despite the passage of another three (3) years, Defendant failed to take any action whatsoever to otherwise secure its desired deposition. That is, the Defendant “sat on its hands” for years and made no further efforts to secure the deposition of the claimant.
Likewise, in the ninety (90) days since this Court entered its Jury Trial Order the Defendant made no efforts to secure the deposition of the claimant as was otherwise required by the express mandates of the Court’s Order. Specifically, the Defendant failed to comply with the deadlines imposed by the Court’s Jury Trial Order and heed the clear admonishments regarding continuances set forth therein. This Court has a duty to see to it that litigation can finally come to an end. This duty is all the more apparent when a case has been extensively litigated for more than seven (7) years with ample time and opportunity afforded for the parties to engage in discovery.
In sum, the facts, circumstances, and procedural posture of this case reflect that a continuance of the summary judgment hearings is not warranted. Specifically, the Defendant had no less than seven (7) years to secure a deposition of the claimant in this PIP case but failed to do so. As such, this Court finds that any failure to secure a deposition of the claimant in this case was the result of the Defendant’s own failure to act with due diligence in conducting discovery and its own inexcusable delay.
Therefore, based on this Court’s analysis set forth above, it is
ORDERED AND ADJUDGED that Defendant’s motion to continue the summary judgment hearings of November 1, 2019 is DENIED. The Defendant’s motion to continue the trial date of November 12, 2019 is GRANTED due to the ore-tenus grounds articulated by defense counsel at the hearing.
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1Defendant’s Motion to File (Second Corrected) Amended Answer sought to amend Defendant’s Answer to Plaintiff’s Complaint to untimely inject a previously unpled affirmative defense in this late stage of the litigation resulting in clear prejudice to the Plaintiff and same was Denied by separate Order of this Court [FLWSUPP 2710SROD].