12 Fla. L. Weekly Supp. 485a
Insurance — Personal injury protection — Summary judgment — Rehearing — Court refuses to consider counter-affidavits submitted for first time in motion for rehearing filed by insurer after summary judgment was entered in favor of medical provider — Motion for rehearing denied — Question certified whether it is abuse of discretion for trial court to refuse to consider counter-affidavits submitted for first time in a motion for rehearing by nonmoving party after summary judgment has been entered against that party where counter-affidavits create genuine issues of material fact
CICERO ORTHO-MED CENTER, a/a/o MARIA PINEDA, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendants. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 03-10738-25 (01). February 9, 2005. Mark King Leban, Judge. Counsel: Kevin W. Whitehead, Coral Gables. O. Oliver Wragg, Coral Gables.ORDER DENYING DEFENDANT’S MOTION FORREHEARING ON PLAINTIFF’S MOTION FOR SUMMARYJUDGMENT AND CERTIFICATION OF QUESTIONOF GREAT PUBLIC IMPORTANCE[Original Opinion at 12 Fla. L. Weekly Supp. 376a]
THIS CAUSE having come before the Court on Defendant’s Motion for Rehearing on Plaintiff’s Motion for Summary Judgment and the Court having considered said motion, together with Plaintiff’s Response to Motion for Rehearing, and being otherwise fully advised in the premises, hereby finds and concludes as follows:
STATEMENT OF FACTS
Plaintiff, Cicero Ortho-Med Center, provided medical services for Maria Pineda, the defendant’s insured, and, upon defendant’s denial of benefits, sued defendant, United Automobile Insurance Company. Subsequently, plaintiff filed its motion for summary judgment on numerous grounds1 on September 20, 2004. The motion for summary judgment was noticed for hearing on October 6, 2004, and the hearing was held before this Court on December 29, 2004. Although defendant’s fourth affirmative defense alleged that the medical expenses in this case were not reasonable, related, or necessary based upon the opinion of its independent medical examination (IME) doctor, defendant failed to file any affidavit from its IME doctor, Dr. Herry Kijner, nor a properly authenticated and sworn report from Dr. Kijner prior to, or even at, the December 29, 2004, summary judgment hearing.2 Accordingly, with nothing to refute the showing by plaintiff that its medical services were reasonable, related, and necessary, this Court orally granted summary judgment in favor of plaintiff, and, on January 24, 2005, entered its written Order and Final Judgment for Plaintiff.
In its final judgment order, this Court ruled: “Without a sworn affidavit or properly authenticated and sworn to IME report under the penalties of perjury, there is nothing on file to refute the sworn testimony contained in the Plaintiff’s treating physician’s sworn testimony that the subject medical service was reasonable, related and necessary.” See Order at paragraph 6.
On January 27, 2005, defendant filed its Motion for Rehearing on Plaintiff’s Motion for Summary Judgment, to which it appended a notice of filing of affidavit and IME report of Herry Kijner. The notice of filing was filed on January 27, 2005, and Dr. Kijner’s affidavit is dated January 15, 2005.3 In addition to Dr. Kijner’s affidavit, defendant appended to its rehearing motion its notice of filing of a peer review conducted by Dr. Peter J. Millheiser. The defendant actually filed the peer review report on January 12, 2005, fourteen days after this Court orally granted summary judgment in plaintiff’s favor. It is unclear precisely when Dr. Millheiser prepared his peer review report; it makes reference to a “DOS” [date of service] of November 12, 2004, and it is undisputed that the accident giving rise to this cause occurred on January 17, 2003, with the pertinent date of service occurring on May 15, 2003.
Defendant’s rehearing motion fails to set forth the reasons why it did not submit Dr. Kijner’s affidavit and Dr. Millheiser’s peer review report within the 5 day mailing period prior to the date of the summary judgment hearing (or by delivering them no later than 5:00 p.m. two business days prior to the date of hearing) allowed by Rule 1.510(c), Fla.R.Civ.P., or at anytime between the filing of the summary judgment motion on September 20, 2004, and the December 29, 2004, hearing date.4
CONCLUSIONS OF LAW
The issue of late-filed affidavits accompanying a motion for rehearing after an adverse ruling on summary judgment is not new to the courts. It is controlled by the Florida Supreme Court’s Coffman Realty, Inc. v. Tosohatchee Game Preserve, Inc., 413 So.2d 1 (Fla. 1982), adopting 381 So.2d 1164 (Fla. 5th DCA 1980), where the nonmoving party “filed a timely petition for rehearing six days after the entry of the summary judgment. They then filed a memorandum of law two days later. . ., and with it affidavits in opposition to the summary judgment already entered eight days before.” 381 So.2d at 1166. Regardless of the fact that these late-filed affidavits would have created material issues of fact precluding summary judgment, the Supreme Court, in adopting the decision of the Fifth District, held:
Florida Rule of Civil Procedure 1.510(c) requires all counter-affidavits to be served on the day prior to the hearing,5 yet the instant counter-affidavits were not filed until eleven days after the hearing. Were we to hold that affidavits could be filed late and that a trial judge never had discretion to refuse them, we would effectively destroy what little the Appellate Courts have left of the summary judgment procedure. 381 So.2d at 1167 [original emphasis].
Unwilling to permit such a result, the Coffman Court “align[ed] ourselves with the Second District’s opinion that “it is not an abuse of discretion for a trial judge to hold that an affidavit filed with the petition for rehearing is too late.” 381 So.2d at 1167 [emphasis added; citations omitted]. One of the omitted citations is to Willis v. Foster Sportswear Co., 352 So.2d 922 (Fla. 2nd DCA 1977), where the Second District held that once summary judgment has been entered, the losing party may not, for the first time, submit counter-affidavits that create issues of fact to be filed with a timely motion for rehearing:
It is one thing for a court to receive an amended or supplementary affidavit on a motion for rehearing; it is quiet another to allow a nonmovant to initially create an issue of fact at this late stage. To permit the latter would allow a nonmoving party to sit back, review the entire proceedings, and not attempt to negate the nonexistence of a material issue of fact until rehearing. 352 So.2d at 924.
This is precisely what defendant United Automobile would have this Court do in the case at bar were it to permit the late-filed affidavits to be considered on rehearing.
The Third District Court of Appeal has steadfastly adhered to Coffman Realty in refusing to permit counter-affidavits submitted with rehearing motions after an adverse ruling on summary judgment. See Krouse v. Avis Rent-A-Car System, Inc., 459 So.2d 1132 (Fla. 3rd DCA 1984) (trial court well within its discretion in rejecting untimely affidavits filed with motion for rehearing of summary judgment order); Freeman v. Coldwell Banker Klock, Co., 594 So.2d 874 (Fla. 3rd DCA 1992); Konski v. Mitek Industries, Inc., 588 So.2d 1000 (Fla. 3rd DCA 1991); Wood v. Whittaker Corp., 519 So.2d 1044 (Fla. 3rd DCA 1988); National Union Fire Ins. Co. of Pittsburgh, P.A. v. Freeport International of America, Inc., 478 So.2d 93 (Fla. 3rd DCA 1985); Murchison v. Banque Arabe et Internationale, 466 So.2d 1201 (Fla. 3rd DCA 1985); Lufthansa German Airlines Corp. v. Mellon, 444 So.2d 1066 (Fla. 3rd DCA 1984).
Even had the defendant’s Kijner affidavit and Millheiser peer review report been served the day prior to the December 29th summary judgment hearing, this Court would have been within its discretion to strike said documents as untimely. Independent Fire Insurance Company v. Rogers, 580 So.2d 1229 (Fla. 3rd DCA 1991) (no abuse of discretion for trial court to strike as untimely affidavit mailed three days before the hearing mailed on a Friday for a Monday hearing).
Defendant relies upon the very recent decision of the Eleventh Circuit sitting in its appellate capacity in Active Spine Center, Inc. a/a/o Odalys Ruiz v. United Automobile Insurance Company, Case No. 04-021-AP (January 11, 2005) [12 Fla. L. Weekly Supp. 318b], where the trial judge refused to allow the non-moving party (there the insured) to introduce an affidavit which would have created a genuine issue of material fact on the day of the summary judgment hearing. On appeal, the appellate panel reversed holding that the trial court “abused its discretion in refusing to consider the affidavit in support of the motion for rehearing.6 Additional evidence, whether newly discovered or not, provided on a motion for rehearing, can present material factual issues.” Slip opinion at page 3. In support, the appellate panel cited Berrol v. Concord Florida, Inc., 305 So.2d 310 (Fla. 3rd DCA 1975), a decision that predated the Supreme Court’s Coffman decision, discussed above.7 To the extent that Active Spine Center, Inc. a/a/o Odalys Ruiz v. United Automobile Insurance Company, supra would allow an untimely filed affidavit on the day of the summary judgment hearing, this Court respectfully declines to follow that decision, as it ignores the Supreme Court’s decision of Coffman, supra, as well as the myriad decisions following Coffman cited above, and is, in any event, clearly distinguishable since here, no affidavit was filed until approximately one month after the summary judgment hearing where this Court granted summary judgment. Of course, this Court is bound to follow binding decisions of the Florida Supreme Court as well as the intermediate District Courts of Appeal, even where such opinions appear to be in conflict with a decision of the circuit court acting in its appellate capacity. See Pardo v. State, 596 So.2d 665, 666 (Fla. 1992) (“in the absence of interdistrict conflict, district court decisions bind all Florida trial courts.”). Clearly, the Willis, Coffman, Krouse, appellate decisions are binding upon this Court.
Finally, this Court relies upon yet another appellate panel decision of the Eleventh Circuit, in United Automobile Insurance Company v. Michael Rose, a/a/o Joyce McElwee, 12 Fla. L. Weekly Supp. 116a (11th Cir., Case No. 03-641, December 7, 2004),8 where, citing Coffman Realty, supra, the appellate panel held that the defendant’s affidavit filed 27 days after the summary judgment hearing was untimely:
The trial court ruled on the record that was before it at the time of the hearing, which demonstrated no genuine issue of material fact. That summary judgment should be affirmed. The Florida Supreme Court has held that it is not an abuse of discretion for a trial judge to deny a motion for rehearing of a motion for summary judgment where the affidavit filed in support thereof is too late.9
Moreover, the McElwee court held that
United Auto’s motion for rehearing also had properly been denied by the lower court. United Auto’s motion for rehearing failed to bring to the attention of the court any matter it had overlooked or misunderstood. The standard of review as to the denial of a motion for rehearing is abuse of discretion. See Willis v. L.W. Foster Sportswear, Co. Inc., 352 So.2d 922 (Fla. 2nd DCA 1977).
The McElwee Court’s citation to Coffman and Willis also compels this Court to follow those binding District Court of Appeal opinions. Simply stated, late-filed affidavits accompanying motions for rehearing of adverse summary judgment orders need not be considered by the trial court.
The Court must comment that the practice of filing affidavits on the day of or, as here, well after, summary judgment hearings and rulings is all too familiar to the Civil Division of the County Court. There are some decisions which appear to permit such a practice. See e.g. Fatherly v. California Federal Bank, 703 So.2d 1101 (Fla. 2nd DCA 1997).10 Accordingly, in view of the inconsistent rulings on this all too common occurrence by the appellate division of the Eleventh Circuit, compare Ruiz with McElwee, as well as disparate results both within and between District Courts of Appeal, and because of the voluminous nature of the cases wherein late-filed affidavits appear, and pursuant to rule 9.160(a) and (d), Fla.R.App.P., this Court hereby certifies that this case presents the following question of great public importance for direct review by the District Court of Appeal of Florida, Third District:11
IS IT AN ABUSE OF DISCRETION FOR THE TRIAL COURT TO REFUSE TO CONSIDER COUNTER-AFFIDAVITS SUBMITTED FOR THE FIRST TIME IN A MOTION FOR REHEARING BY THE NONMOVING PARTY AFTER SUMMARY JUDGMENT HAS BEEN ENTERED AGAINST THAT PARTY WHERE THE COUNTER-AFFIDAVITS CREATE GENUINE ISSUES OF MATERIAL FACT?
For the reasons set forth above, the Court hereby DENIES defendant’s Motion for Rehearing.
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1For purposes of this order, only the issues of IME cut-off and whether the medical service provided herein was reasonable, related, and necessary, are addressed.
2Dr. Kijner performed his independent medical examination on Ms. Pineda on March 12, 2003, a fact not brought before the Court until defendant filed its rehearing motion.
3Thus, the affidavit of Dr. Kijner was filed almost exactly one month after the December 29th summary judgment hearing, and three days after this Court’s written final judgment.
4The closest defendant comes to offering a reason for its failure to file Dr. Kijner’s affidavit prior to its rehearing motion is that it was unable “to locate Dr. Kijner and obtain an affidavit.” See Rehearing at paragraph 3. No mention of any reason whatsoever is given as to the late-filing of Dr. Millheiser’s peer review report. This, despite defendant’s acknowledgment that both doctors’ “reports were obtained well in advance of the hearing date on plaintiff’s motion.” Rehearing at paragraph 10. The fault, according to defendant, lies with defense counsel “for inadvertently failing to file these reports with the Court.” Id.
5At the time, the rule allowed for service on the day prior to the summary judgment hearing, whereas the present version of the rule allows service of counter-affidavits “at least 5 days prior to the day of the hearing. . .”. Rule 1.510(c), Fla.R.Civ.P.
6It should be observed that the affidavit in question in Ruiz was sought to be admitted at the summary judgment hearing, not on rehearing after summary judgment was granted against the nonmoving party.
7It must be observed that the appellate panel in Ruiz appears to have overlooked Independent Fire Insurance Company v. Rogers, 580 So.2d 1229 (Fla. 3rd DCA 1991).
8The McElwee decision is, itself, arguably in conflict with the Ruiz decision.
9The appellate panel correctly cited to Coffman for this rule.
10The Court must observe that the Second District’s Fatherly appears to be in conflict with the Second District’s 1977 decision in Willis, supra.
11To the extent that this order is or may become a “final order” this certification is intended to facilitate review directly to the District Court of Appeal for the Third District. See Rule 9.030(b)(4)(A), Fla.R.App.P., which provides for discretionary review by the District Courts of Appeal of “final orders of the county court, otherwise appealable to the circuit court under these rules that the county court has certified to be of great public importance. . .” [Emphasis added].
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