11 Fla. L. Weekly Supp. 297b
Insurance — Personal injury protection — Coverage — Defenses — Fraud — Order striking insurer’s affirmative defense of fraud was warranted where allegations of fraud were too general and conclusory to establish affirmative defense — Claim that hearing on motion to strike proceeded without adequate notice to insurer was resolved by trial court granting insurer’s motion for rehearing and reconsideration of order striking affirmative defense — Summary judgment — Although insurer did not submit any evidence in opposition to summary judgment, entry of summary judgment in favor of insured was error where insured’s reliance on hearsay patient account ledger as proof of medical expenses caused him to fall short of establishing prima facie case — Reversed and remanded
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Appellant, vs. JUAN LOPEZ, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 03-220 AP & 03-416AP. L.C. Case No. 01-8053 CC 26 (04). February 24, 2004. An Appeal from the County Court for Miami-Dade County, Cristina Pereyra-Shuminer, Judge. Counsel: Mark A. Gatica, of United Automobile Insurance Co., for Appellant. John H. Ruiz, P.A. and Bernard H. Butts, Jr., P.A. and John H. Ruiz, Marleen Colominas Naab, and Luisa M. Linares, for Appellee.
(Before CINDY S. LEDERMAN, WILLIAM JOHNSON, and LESTER LANGER, JJ.)
(LESTER LANGER, J.) This is an appeal by United Automobile Insurance Company from an Order Granting Final Summary Judgment in favor of the plaintiff/appellee, Juan Lopez, for personal injury protection insurance (“PIP”) benefits. The appellant has also appealed the trial court’s subsequent award of attorney’s fees and costs to the appellee. The court has consolidated the two appeals.
On November 4, 2000, the appellee sustained injuries in a motor vehicle accident. He sought medical treatment for his injuries and incurred expenses for the treatment. He submitted claims to the appellant for PIP benefits, but appellant denied the claims.Procedural History
The appellee filed suit against the appellant for non-payment of PIP benefits. The appellant answered and alleged one affirmative defense. Subsequently, pursuant to an agreement between the parties, the appellant amended its answer to include a second and third affirmative defense. After amending, the appellant had alleged as defenses: 1) fraud; 2) the appellee’s violation of section 627.736(5)(a) of the Florida Statutes because the appellee failed to countersign the invoice, bill, or claim form for medical treatment submitted for payment; and, 3) the appellee’s failure to timely furnish requested medical reports as required by section 627.736(6)(b) of the Florida Statutes.
The trial court granted the appellee’s motion for summary judgment on the second and third affirmative defenses,1 but denied summary judgment on the affirmative defense of fraud. Thereafter, the appellee moved to strike the appellant’s affirmative defense of fraud. On February 7, 2003, the trial court struck the affirmative defense. On February 12, 2003, the appellant moved for rehearing and reconsideration of the order striking its affirmative defense.
On March 7, 2003, the trial court heard the appellant’s motion, but did not disturb the previous ruling. For the remainder of the hearing, the court entertained the appellee’s motion for final summary judgment. After hearing argument, the court reset the matter to allow the parties to supplement the record. At the continuation of the hearing on March 31, 2003, the court granted final summary judgment for the appellee.
Appellant has essentially raised two points on appeal: 1) disputed issues of fact existed that precluded summary judgment; and 2) the trial court improperly struck its affirmative defense of fraud. We address the trial court’s order striking the appellant’s affirmative defense of fraud first.Affirmative Defense of Fraud
The court struck the affirmative defense of fraud because the appellant had failed to plead fraud with specificity. Fla. R. Civ. P. 1.120(b) required the appellant to plead its affirmative defense of fraud with “such particularity as the circumstances may permit.” “In order to raise an affirmative defense of fraud, the ‘pertinent facts and circumstances constituting fraud must be pled with specificity, and all the elements of fraudulent conduct must be stated.’ ” Zikofsky v. Robby Vapor Systems, Inc., 846 So. 2d 684 (Fla. 4th DCA 2003), citing Cocoves v. Campbell, 819 So. 2d 910, 912 (Fla. 4th DCA 2002). The striking of a pleading is not favored and all doubts are to be resolved in favor of the pleading. Menke v. Southland Specialties Corp., 637 So. 2d 285 (Fla. 2d DCA 1994). No such doubts exist with the appellant’s affirmative defense. The appellant’s allegations of fraud were too general and conclusory to establish the affirmative defense. See Zikofsky, 846 So. 2d at 684. A defense of fraud must be legally sufficient to be appropriate for submission to the trier of fact. See Ton-Will Enterprises, Inc. v. T & J Losurdo, Inc., 440 So. 2d 621 (Fla. 2d DCA 1983). The patent legal insufficiency of the appellant’s affirmative defense warranted the order striking it. See Cocoves, 819 So. 2d at 913.2
The appellant also argues that the trial court improperly struck its affirmative defense of fraud because it failed to provide it with an opportunity to argue the motion. However, the record clearly contradicts this argument. The transcript of the hearing on March 7, 2003 shows that the trial court granted the appellant’s motion for rehearing and reconsideration of the order striking its affirmative defense. Interestingly, the transcript indicates that counsel for the appellant conceded that the affirmative defense of fraud had not been repled after the court had provided an opportunity to amend. By granting the motion for rehearing and reconsideration, the trial court resolved the appellant’s argument that the original hearing proceeded without adequate notice to the appellant and without providing the appellant with an opportunity to be heard. As the trial court’s ruling has come to this court clothed with a presumption of correctness, and the appellant has not shown how the trial court erred, the order striking the affirmative defense of fraud is affirmed. See Morgan, 611 So. 2d 1315.Summary Judgment
The standard of review of the final summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000); Sierra v. Shevin, 767 So. 2d 524 (Fla. 3d DCA 2000). On a motion for summary judgment, a reviewing court must consider the evidence contained in the record, including any supporting affidavits, in a light most favorable to the non-moving party. Sierra, 767 So. 2d at 525. If the slightest doubt exists, the summary judgment must be reversed. Id.
When the case came before the trial court on the appellee’s motion for final summary judgment, the court had already disposed of the appellant’s affirmative defenses. The appellant has not challenged the partial summary judgment entered against it as to its second and third affirmative defenses. However, the appellant contends that the final summary judgment was improper as disputed issues of material fact remained even without any affirmative defense. Contrary to the appellant’s argument, the record does not demonstrate the existence of the disputed issues of material fact which it claims. The final judgment correctly states that “. . . there [was] no evidence to controvert the medical [expenses] as being reasonable, related and necessitated by the November 4, 2000 auto accident[.]” The appellant did not submit any affidavit, deposition transcript, or evidence in opposition to Dr. Contreras’ deposition testimony in opposition to summary judgment. As the trial court found, the doctor’s testimony, in and of itself, did not create a genuine issue of material fact that precluded summary judgment. It was insufficient for the appellant to merely assert that a genuine issue of material fact existed in opposition to summary judgment. See Johnson v. Gulf Line Insurance Co., 429 So. 2d 744 (Fla. 3d DCA 1983).
As the appellant did not submit an affidavit or other proof in opposition to summary judgment, the appellee only needed to establish a prima facia case to prevail on his motion. Latour Auto Sales, Inc. v. Stromberg Carlson Leasing Corp., 335 So. 2d 600, 601 (Fla. 3d DCA 1976). Irrespective of the appellant’s inability to defeat summary judgment, our de novo review of the record reveals that the appellee’s mistaken reliance upon hearsay, the Patient Account Ledger, as proof of his medical expenses caused him to fall short of establishing a prima facia case. See Bifulco v. State Farm Mutual Automobile Insurance Co., 693 So. 2d 707 (Fla. 4th DCA 1997). It is solely on this point, that the appellee failed to prove a prima facia case which entitled him to final summary judgment.
The appellee attached the Patient Account Ledger to the doctor’s deposition transcript as an exhibit. The ledger indicates that the appellee accumulated $15,550 in medical expenses. However, merely attaching the ledger, which was not “sworn to or certified,” to the doctor’s deposition transcript and including it in the motion for summary judgment, did not, without more, satisfy the procedural strictures inherent in Fla. R. Civ. P. 1.510(e). Id. The ledger is a business record that required authentication by a records custodian to come under an exception to the hearsay rule. See Id.; § 90.803(6), Fla. Stat. (2003). A business record not authenticated by a records custodian is inadmissible as hearsay at a summary judgment hearing. Id. To prevail, the appellee had to establish his medical expenses through competent substantial evidence. De Groot v. Sheffield, 95 So. 2d 912 (Fla. 1957). Since, the ledger was hearsay, it was not competent substantial evidence to support the entry of final summary judgment. Id. Accordingly, the final summary judgment is reversed and remanded to the trial court.
As a result of our reversal of the final summary judgment, the trial court’s judgment awarding the appellee attorney’s fees and costs must be reversed. Furthermore, the appellee’s motion for appellate attorney’s fees is denied.
AFFIRMED in part; REVERSED and REMANDED in part; and, appellee’s motion is DENIED. (CINDY S. LEDERMAN and WILLIAM JOHNSON, JJ., concur.)
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1Appellant has not appealed the order granting partial summary judgment in favor of the appellee on these affirmative defenses.
2Because the affirmative defense was legally insufficient, it could not have defeated the appellee’s motion for summary judgment as appellant argued.
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