11 Fla. L. Weekly Supp. 801a
Insurance — Personal injury protection — Coverage — Where record evidence refuted insurer’s claim that claimant owned operable vehicle at time of accident that precluded coverage, trial court correctly entered summary judgment concerning that issue — Where provider testified that he treated claimant involved in three accidents for two months for one of the accidents, and claimant testified that she only received two treatments for that accident, there was genuine issue of material fact concerning cost and number of treatments, and summary judgment was precluded on that issue
PROGRESSIVE EXPRESS INS. CO., Appellant, vs. McGRATH COMMUNITY CHIROPRACTIC f/k/a NAPLES COMMUNITY CHIROPRACTIC, as Assignee of Elisenia Joseph, Appellee. Circuit Court, 20th Judicial Circuit (Appellate) in and for Lee County. Case No. 03-00025 AP. L.C. Case No. 01-2987 SP. April 21, 2004. Appeal from the County Court for Lee County; Edward J. Volt, Jr., Judge. Counsel: Valeria Hendricks, Davis & Harmon, P.A., Tampa, for Appellant. Jack C. Morgan III, Geraghty, Dougherty, Edwards, Goldberg, McQuagge, Bosseler & Morgan, P.A., Fort Myers, for Appellee.
(PER CURIAM.) Progressive Express Insurance Company (hereinafter Progressive), the Defendant below, appeals the trial court’s order which granted final summary judgment in favor of the Appellee/Plaintiff (hereinafter McGrath) in the amount of $5,000.00. For the reasons set forth below, we affirm in part and reverse in part the trial court’s decision.
On June 22, 2001, McGrath filed a Statement of Claim seeking personal injury protection (PIP) benefits for services rendered to Elisenia Joseph for injuries she sustained in an automobile accident on October 1, 1999.
Progressive filed its answer and affirmative defenses, which generally denied the material allegations and affirmatively defended on the grounds that McGrath failed to comply with statutory and policy prerequisites. Specifically, Progressive claimed: that McGrath failed to comply with the statutory and policy prerequisites of providing written notice of a covered loss; that McGrath’s services were not medically necessary or related to the accident; that McGrath failed to submit reasonable proof of covered loss as required by Florida Statute §627.736(4); that McGrath lacked standing; and that McGrath had agreed to specific amounts of payment as a preferred provider pursuant to a contract with Beech Street.
McGrath filed a Motion for Summary Judgment on January 30, 2003, which contended that as a matter of law he was entitled to summary judgment because the record evidence refuted Progressive’s claim that Joseph owned an operable vehicle at the time of the accident which precluded coverage. (If Joseph owned her own automobile, her insurance would have been the primary source of coverage for personal injury.)
On May 5, 2003, a hearing was held on the Motion for Summary Judgment, at which time Progressive conceded that Joseph did have PIP coverage under the policy, because Joseph did not own an operable vehicle at the time of the accident. However, Progressive maintained that a final judgment should not be entered because there was a discrepancy relating to the number and extent of treatments that Joseph received from McGrath for the October 1, 1999, accident.
The problem appeared to be that Joseph was involved in three separate accidents. Two of the three accidents had many similarities, which were the accidents that occurred on September 26, 1999, and on October 1, 1999. Joseph, during an Examination Under Oath, stated that she had only received two treatments for the October 1, 1999, accident. However, McGrath testified in a deposition that he treated Joseph from October 1, 1999, until November 29, 1999, for the October 1, 1999, accident.
Progressive argued that summary judgment should be granted as to the issue of coverage only, and that final summary judgment should not be granted until additional discovery had been completed to determine the number of treatments and the cost.
The trial court disagreed with Progressive and granted final summary judgment in the amount of $5,000.00. The following discussion occurred prior to the trial court’s decision. After asking how old Ms. Joseph was, and finding that she was 78 years old, the court stated “I would rely more on the doctor, I think. I’m going to grant the motion.” Progressive asked “As to final summary judgment?” The court replied, “Everything.”
On review, an appellate court reviews a trial court’s order granting of a Motion for Summary Judgment de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000).
Florida Rule of Civil Procedure 1.510(c) provides “[t]he judgment sought shall be rendered forthwith if the pleadings, depositions . . . 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. The burden is on the moving party to “conclusively” prove that no genuine issue of material fact exists. Dade County School Board v. Radio Station WQBA, 731 So. 2d 638 (Fla. 1999); Christian v. Overstreet Paving Company, 679 So. 2d 839, 840 (Fla. 2d DCA 1996). “If the record reflects the existence of any genuine issue of material fact, or the possibility of an issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper.” Christian, at 840. “An opposing affidavit need only raise a material issue of fact to survive the motion . . . All inferences, doubts, and conclusions must be construed in favor of the party opposing summary judgment.” Smith v. Harr, 571 So. 2d 575, 577 (Fla. 1st DCA 1990).
In the case of Bishop v. City of Clearwater, 258 So. 2d 337, 339 (Fla. 2d DCA 1972), the Second District stated when considering a motion for summary judgment the trial court is not privileged to weigh the evidence or pass upon the credibility of the witnesses. His judgment may not be influenced by the chances of success, which he thinks either party may have at trial. Id.
In the instant case, the issue concerning coverage was an undisputed material fact and the trial court was correct when it granted summary judgment concerning that issue. However, there was a genuine issue of material fact concerning the number and cost of treatment, which was reflected in the deposition of Dr. McGrath and the Examination Under Oath of Ms. Joseph. That issue should have been construed in favor of the party opposing summary judgment, which in this case was Progressive. Accordingly, the trial court’s decision, as to coverage, is affirmed. However, on the issue of cost and number of treatments, the trial court’s decision is reversed and remanded for further consideration.
AFFIRMED IN PART AND REVERSED IN PART. (STARNES, CARLIN, and STEINBECK, JJ., concur.)
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