10 Fla. L. Weekly Supp. 972a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 11 Fla. L. Weekly Supp. 404b

Insurance — Personal injury protection — Summary judgment — Factual issue — Error to grant summary judgment in favor of plaintiff on issue of liability where accident report which fails to indicate that plaintiff was passenger in vehicle at time of accident created genuine issue of material fact

UNITED AUTOMOBILE INSURANCE CO., Appellant, v. EDY MARIO ARRIBA, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 03-069 AP. L.T. No. 02-5125 SP 25. October 14, 2003. On appeal from the County Court for Miami-Dade County, Teretha L. Thomas, Judge. Counsel: Mark A. Gatica, Office of the General Counsel, United Automobile Insurance Company, Miami, for Appellant. Mari Sampedro-Iglesia, Jose R. Iglesia, P.A., Miami, for Appellee.

(Before CINDY S. LEDERMAN, IVAN F. FERNANDEZ, and DIANE WARD, JJ.)

(FERNANDEZ, J.) This case is on appeal from an order of the trial court granting summary judgment in favor of Appellee. Appellee, the insured, filed suit against Appellant, the insurer, for personal injury protection (PIP) benefits when Appellant refused to provide benefits after Appellee suffered injuries from an automobile accident. The trial court granted summary judgment in favor of Appellee on the issue of liability. For the reasons discussed below, we reverse the trial court’s grant of summary judgment and remand this matter for further proceedings.

I

Appellee was involved in an automobile accident as a passenger with his wife as the driver. Both he and his wife were insured by Appellant. After the accident, he received medical treatment from a medical provider at a total cost of $5,440.00. The medical provider submitted claims on his behalf to Appellant on several occasions, but all claims were denied. Appellant never sought a physician’s opinion regarding whether Appellee’s treatment was reasonable, related, or necessary before denying the claims.

Appellee brought suit seeking PIP benefits to cover his medical bills. Before trial, he filed a motion for summary judgment on the issue of liability claiming there was no issue as to the reasonableness, relatedness, or necessity of the treatment. Appellant filed a response arguing that there was an issue of material fact in that the accident report did not list Appellee as a passenger in the car that his wife was driving; Appellant attached the accident report to its motion in opposition.

The trial court granted summary judgment, concluding that Appellant failed to set forth any evidence creating issues of material fact. The trial court’s order focuses on the lack of any medical opinion stating the medical treatment was not reasonable, related, and necessary. The order is silent, however, as to whether the accident report created any issues of material fact. Appellant filed a motion for rehearing, reiterating its argument with respect to the accident report. This motion was denied.

II

The standard of review for summary judgments is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000); Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000). In order to prevail on a motion for summary judgment, the moving party must “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c). The burden is on the moving party to conclusively prove the nonexistence of any genuine issue of material fact. McQueen v. Roye, 785 So. 2d 512, 514 (Fla. 3d DCA 2000); Novotny v. Estate of Dantone, 848 So. 2d 398, 400 (Fla. 4th DCA 2003); City of Cocoa v. Leffler, 762 So. 2d 1052, 1055 (Fla. 5th DCA 2000). A trial court is not authorized to try or weigh facts in ruling on a motion for summary judgment. Sierra, 767 So. 2d at 525; Cole Taylor Bank v. Shannon, 772 So. 2d 546, 550 (Fla. 1st DCA 2000).

Conspicuously absent from the trial court’s order is any mention of the accident report which failed to list Appellee as the passenger when the accident occurred — despite a blank space on the form for such passenger information. Whether this failure was because Appellee was not a passenger, or whether it was because the police officer neglected to write his name in the report is immaterial under a summary judgment analysis. The report is a piece of evidence which tends to show that Appellee was not a passenger in the car at the time of the accident. If he was not a passenger, he is not entitled to PIP benefits. It should be noted that all reasonable inferences must be drawn in favor of the nonmovant. Villazon v. Prudential Health Care Plan, Inc., 843 So. 2d 842, 853 (Fla. 2003); Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985). The only way the trial court could have concluded there was no genuine issue of material fact was by ignoring the accident report or by improperly weighing the accident report versus Appellee’s and his wife’s affidavits which state he was a passenger in the car at the time of the accident. Such actions were improper and constitute error.

The accident report was properly entered into the record twice, and this created a genuine issue of material fact. The accident report was attached to Appellant’s motion in opposition and its motion for rehearing. See Fatherly v. California Fed. Bank, FSB, 703 So. 2d 1101, 1102 (Fla. 2d DCA 1997) (almost any additional evidence, whether newly discovered or not, is sufficient for relief on a timely motion for rehearing of a summary judgment if it presents triable issues of material fact); McGowan v. Miami-Dade County, 724 So. 2d 683, 684 (Fla. 3d DCA 1999). Therefore granting summary judgment was premature. It must be emphasized that it was Appellee’s burden, as the movant, to conclusively show there was no genuine issue of material fact — a burden it failed to carry.

III

Accordingly, we reverse the trial court’s grant of summary judgment and remand this matter. (LEDERMAN and WARD, JJ., concur.)

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