10 Fla. L. Weekly Supp. 858a

Insurance — Summary judgment — Factual issues — Error to enter summary judgment where there exist material issues of fact concerning whether insureds refused to attend required examination under oath

ALLCARE HEALTH AND WELLNESS CENTER, P.A., a/a/o Stella Swartz and Marguerite Swartz, Appellant, vs. UNITED AUTOMOBILE INSURANCE COMPANY, a Florida Corporation, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 02-389 AP. L.C. Case No. 01-17872 SP 23. September 2, 2003. An appeal from the County Court for Miami-Dade County, Mary Jo Francis, Judge. Counsel: James M. Loren, Loren & Associates, P.A., for Appellant. Craig J. Trocino, Troy D. Ferguson & Associates, P.A., for Appellee.

(Before NORMAN GERSTEIN, JOEL BROWN and ROBERT N. SCOLA, JR., JJ.)

(SCOLA, J.) This is an appeal of the lower court’s entry of summary judgment in favor of Appellee, United Automobile Insurance Company (United). A trial court should grant a motion for summary judgment only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fla. R. Civ. P. 1.510(c); Wills v. Sears, Roebuck & Co., 351 So. 2d 29, 30(Fla.1977). The burden to conclusively prove the nonexistence of a material fact is on the moving party. See Holl v. Talcott, 191 So. 2d 40, 43 (Fla. 1966); Albelo v. Southern Bell, 682 So.2d 1126, 1129 (Fla. 4h DCA 1996).

This Court finds that material issues of fact exist such that summary judgment was improper. Specifically, factual issues exist concerning whether the Appellants refused to attend a required examination under oath. The lower court’s entry of summary judgment is therefore reversed, and the case remanded to the trial court.

REVERSED, and the cause is REMANDED. (GERSTEIN and BROWN, JJ., concur.)

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