11 Fla. L. Weekly Supp. 96a
Insurance — Appeals — Timeliness — Where there was no order vacating first “agreed” summary judgment entered in case, but it is clear that first summary judgment was not truly agreed and therefore it was necessary to enter another summary judgment after hearing, appeal from second summary judgment is timely — Claims form — Countersignature — Dismissal for insured’s failure to countersign claim must be reversed where there was assignment of benefits obviating need for countersignature
WEST GABLES OPEN MRI, A/A/O ZITHA ROMERO, Plaintiff/Appellant, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant/Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Dade County. Case No. 02-179 AP. L.C. Case No. 01-2065-SP-25 (3). December 2nd, 2003. On Appeal from the County Court for Miami-Dade County, Florida before the Honorable Wendell M. Graham. Counsel: Marlene S. Reiss, Stephens, Lynn, Klein, Lacava, Hoffman & Puya, P.A., for Appellant. Mark A. Gatica, Troy D. Ferguson & Associates., P.A., for Appellee.
(Before HERBERT STETTIN, CELESTE HARDEE MUIR, and MARC SCHUMACHER, JJ.)
(CELESTE HARDEE MUIR, J.) In this proceeding, we sua sponte questioned jurisdiction on the basis that the appeal may not have been timely, because a previous summary judgment (“agreed”) has been entered in the same case. The first summary judgment (R-273) had one of two consolidated case numbers, but the motion to vacate (missing its attachment) had a different case number (R-302.) The second summary judgment (R-275) had the same case number as the first summary judgment. Nevertheless, we will consider the first summary judgment to have been superceded by the second summary judgment.
It is error that no order vacating the first summary judgment was entered; however, it is clear that the first “agreed” summary judgment was not agreed, requiring the entry of another summary judgment after a hearing on the matter (R-283-298.) We thus conclude that the appeal in this case is timely.
Having considered the summary judgment on the merits, we find that the recent opinion in Total Health Care of Florida, Inc. v. United Automobile Insurance Co., 9 Fla. L. Weekly Supp. 737a (Fla. 11th Cir. App., August 13, 2002) is dispositive. The trial court’s dismissal for an insured’s failure to countersign an insurance claim must be reversed, as there was an assignment of benefits obviating the necessity for another signature.
On remand, the trial court shall consider the effect of the order consolidating the two cases and correct the case number(s) so if there is another appeal, this court may determine if both cases are involved or, if only one, which one.
Reversed, for further proceedings consistent with this opinion. (Muir, Schumacher, Stettin, JJ., concur.)
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