12 Fla. L. Weekly Supp. 390a
Insurance — Personal injury protection — Summary judgment — Motion for summary judgment is premature where answer has not yet been filed, medical provider has not conclusively established that insurer cannot properly serve answer which could raise issue of material fact, and discovery has not been completed — Further, motion is not supported by affidavit or other sworn proof
DR. FIDEL GOLDSON CENTER (a/s/o Prudence Forbes), Plaintiff, vs. OCEAN HARBOR CASUALTY INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 03-0467 COSO 62. November 15, 2004. Robert W. Lee, Judge. Counsel: Marie G. Miles, Sunrise. Albert E. Moon, Miami.
ORDER DENYING PLAINTIFF’S MOTIONFOR SUMMARY JUDGMENT
THIS CAUSE came before the Court on November 9, 2004 for hearing of the Plaintiff’s Motion for Summary Judgment, and the Court having reviewed the Motion and entire Court file; reviewed the relevant legal authorities; heard argument, and been sufficiently advised in the premises, the Court finds as follows:
The Motion is DENIED as premature. No Answer has yet been filed by the Defendant, and the Plaintiff has not conclusively established that the Defendant cannot properly serve an answer which could raise an issue of material fact. See Valhalla, Inc. v. Carbo, 487 So.2d 1125, 1126 (Fla. 4th DCA 1986). Additionally, the motion is not supported by affidavit or other sworn proof. See Nichols v. Preiser, 849 So.2d 478, 481 (Fla. 2d DCA 2003). Finally, discovery has not been completed. The Court notes that there is an outstanding deposition of the insured that the Defendant has been trying to set but has yet been unable to do so. See Payne v. Cudjoe Gardens Property Owners Association, Inc., 837 So.2d 458, 461 (Fla. 3d DCA 2002).
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