12 Fla. L. Weekly Supp. 319a
Insurance — Personal injury protection — Trial — Continuance — Denial — Abuse of discretion to deny insurer’s emergency motion for continuance where less than two weeks before trial both named owners of medical provider were arrested for allegedly rendering fraudulent treatment and making improper solicitation of patients, and insurer sought continuance to depose owners and insured to determine whether insured received fraudulent treatment or improper solicitation
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. BRASS & SINGER, D.C.P.A., a/a/o MILDRED SOLAGES, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 04-173 AP. L.T. Case No. 01-18679 SP-23. February 1, 2005. An appeal from the County Court for Miami-Dade County, the Honorable Jacqueline Schwartz presiding. Counsel: Michael J. Neimand, Office of the General Counsel, United Automobile Insurance Co., for Appellant. Marlene S. Reiss, Stephens, Lynn, Klein, et al., for Appellee.
(Before MARIA M. KORVICK, GISELA CARDONNE ELY, and RONALD DRESNICK, JJ.)
(CARDONNE ELY, J.) The underlying claim involved the reasonableness of PIP payments from United Auto Insurance to its insured. The insured, Mildred Solages, assigned her benefits to the appellee doctors, Brass & Singer, P.A. The trial was set for March 24, 2004. On March 18, 2004, appellant filed a motion for continuance of the trial since both treating doctors, Brass and Singer, were arrested on March 11, 2004 for fraudulent treatment and improper solicitation of patients. Appellant wanted the continuance to depose the doctors and the insured to determine whether the insured in this case received fraudulent treatment or received an improper solicitation. The trial court denied the motion. During oral arguments, appellant stated that it had received two prior continuances.
The decision to grant or deny a motion for continuance lies within the trial court’s discretion and review of that decision may only be distributed on appeal on an abuse of discretion standard. Taylor v. Institute for Med. Weight Loss, 863 So. 2d 398 (Fla. 4th DCA 2003). Where it appears from the circumstances of the case that the situation was unforeseeable, did not result from counsel’s dilatory practice, and the non-movant would not suffer prejudice or inconvenience as a result of the continuance, a denial of a motion for continuance is an abuse of discretion. Id., see also, Citrin v. DeVenny, 833 So. 2d 871 (Fla. 4th DCA 2003).
Under the circumstances of this case, where the named owners of Brass & Singer, P.A. were both arrested for allegedly rendering fraudulent treatment and making improper solicitation of patients, less than two weeks prior to trial, it was an abuse of discretion to deny appellant’s emergency motion for continuance.
Therefore, we reverse and remand this matter for further proceedings consistent herewith. The appellee’s motion for appellate attorney’s fees is denied. (KORVICK and DRESNICK, JJ., CONCUR.)
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