12 Fla. L. Weekly Supp. 985b
Insurance — Personal injury protection — Coverage — Medical expenses — Reduction — Preferred provider — Insurer not party to PPO contract — Medical provider’s motion for summary judgment is granted where provider has provided substantial record evidence that insurer is not party to contract or affiliate of parties to contract, insurer acknowledges it is not named party to contract, and insurer’s conclusory affidavit which fails to set forth source of affiant’s information or establish that affiant was competent to testify on issue is insufficient to create disputed issue of material fact as to whether insurer is affiliate of parties to contract
HOLY CROSS MEDICAL GROUP (a/a/o Brigette Weir), Plaintiff, vs. THE FIRST LIBERTY INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 03-14004 COCE 53. July 14, 2005. Robert W. Lee, Judge. Counsel: Robert G. Nichols, Fort Lauderdale, for Plaintiff. Brian Pabian, Boca Raton, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court on July 13, 2005 for hearing of the Plaintiff’s Motion for Summary Judgment, and the Court’s having reviewed the Motion and entire Court file; heard argument; reviewed the relevant legal authorities; and been sufficiently advised in the premises, rules as follows:
The parties agree that the only issue in this case is whether the Defendant is a party to the PPO Contract. The Plaintiff has provided substantial record proof that the Defendant is not a party to the contract, and that it is not an “Affiliate” of the parties to the contract. The Defendant has filed an affidavit by a “Litigation Specialist in the No-Fault Unit” which the Defendant argues creates a disputed issue of material fact as to whether the Defendant is an “Affiliate.” (The Defendant acknowledges that it is not a named party to the contract.) The Plaintiff responds that the affidavit is insufficient to create a disputed issue of material fact. The Court agrees.
Rule 1.510(e), Fla. R. Civ. P., requires that an affidavit show “such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” The Defendant’s affidavit in the instant case fails to meet these requirements. First, the affidavit is conclusory, without any affirmative showing of admissible underlying facts. See Samuels v. Magnum Realty Corp., 431 So.2d 241, 242 (Fla. 1st DCA 1983). The affidavit fails to set forth “the source of her information” that the Defendant is a wholly-owned subsidiary. See Stolzenberg v. Forte Towers South, Inc., 430 So.2d 558, 559 (Fla. 3d DCA 1983) (merely stating that the affiant knew the hall was used by other business, without more, is facially insufficient). Moreover, nothing in the affidavit established that the affiant was competent to testify on this issue. See Samuels, 431 So.2d at 242; Lenhal Realty, Inc. v. Transamerica Commercial Finance Corp., 615So.2d 207, 208-09 (Fla. 4th DCA 1993). See also Montejo Investments, N.V. v. Green Companies, Inc. of Florida, 471 So.2d 158, 159 (Fla. 3d DCA 1995) (merely stating a party is a vice president of the company “thoroughly familiar with the facts of this case” is insufficient to establish competence). Accordingly, it is hereby
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Summary Judgment is GRANTED. The Plaintiff shall submit a proposed final summary judgment to the Court.
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