10 Fla. L. Weekly Supp. 488b
Civil procedure — Summary judgment — Outstanding discovery directed to movant
GILBERT ADAME, Appellant, vs. BANKER’S SECURITY INSURANCE COMPANY and HANOVER INSURANCE COMPANY, Appellees. Circuit Court, 20th Judicial Circuit (Appellate) in and for Lee County. Case No. 01-10199 AP. L.C. Case No. 00-3381 CC. March 28, 2003. Appeal from the County Court for Collier County; John W. Dommerich, Judge. Counsel: Mark C. Menser, Fort Myers, for Appellant. Bonita K. Brown, Tampa, for Appellee.
Affirmed.
(BROUSSEAU, and PELLECCHIA, JJ., concur.)
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(THOMPSON, J., dissents with opinion.) Based upon the record presented, I submit that summary judgment was premature. At the time of the summary judgment hearing, there was outstanding discovery directed to the movant that remained unresolved. It is aximactic that summary judgment is improper under such circumstances Brandauer v. Publix Super Markets, Inc., 657 So. 2d 932 (Fla. 2d DCA 1995); but see Colby v. Ellis, 562 So. 2d 356 (Fla. 2d DCA 1990).
Specifically, the corporate representative of the Defendant failed to attend a scheduled deposition, and documents that were the subject of a request for production were not produced for approximately eight months.
The untimely response ultimately provided by the Defendant below contained objections; and except for any privileged matters, all were waived by the Defendant’s noncompliance with Fla. R. Civ. P. 1.280. See, Insurance Company of North America v. Noya, 398 So. 2d 836 (Fla. 5th DCA 1981). It thus appears that the trial court entered summary judgment based solely upon the terms and provisions of the policy which serves as the basis for the complaint.
Of course this court, sitting in its appellate capacity, is not in a position to determine whether outstanding discovery would or would not bear upon the ultimate issue in dispute, nor is it within this court’s province to do so.
However, even assuming non-materality of the outstanding discovery, because the response by the Defendant was provided on the eve of the summary judgment hearing, the trial court should have, at a minimum, granted the Plaintiff’s motion to continue to the summary judgment hearing. The failure to do so was, in my judgment, an abuse of discretion. Brandauer, supra.
And even if one were to further assume that the outstanding discovery would have played no material role in determining the ultimate issue before the trial court, this Court finds itself in a most curious position.
I have reviewed the same policy provisions upon which the trial court relied and the majority herein rely to rule in favor of the Appellee, and yet I would reach the exact opposite conclusion. Put another way, there are no applicable exclusions under the medical expenses coverage provided by the subject insurance policy that would preclude recovery under the facts and circumstances alleged in the complaint.
I respectfully dissent.
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