12 Fla. L. Weekly Supp. 1035a
Insurance — Personal injury protection — Discovery — Admissions — No error in entering final summary judgment based upon deemed admissions resulting from insurer’s failure to timely respond to request for admissions where insurer acknowledges that responses were inadvertently not filed, and trial court found prejudice to medical provider due to insurer’s delay in moving forward with case — Coverage — Summary judgment — Opposing affidavit — No abuse of discretion in excluding peer review report from consideration on motion for summary judgment where there is no indication in record that report met requirements of affidavit sworn to, certified or accompanied by affidavit of records custodian or other proper person attesting to its authenticity or correctness and admissibility, and report failed to meet requirement of section 627.736(7) because of failure to indicate that physician who prepared report examined insured or that treatment records reviewed were complete — No merit to argument that insurer should have been granted continuance based on claim that it needed more time to file opposing affidavit where totality of inexcusable delays by insurer and fact that peer review report was dated prior to initial hearing on motion for summary judgment suggest that report was filed in bad faith
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant. vs. WESCHEL PAIN & REHAB CENTRE, INC. A/A/O MARIA POSADA, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 04-18908 CACE 25. July 19, 2005.
ORDER
(ROBERT A. ROSENBERG, J.) THIS CAUSE is before the court upon United Automobile Insurance Company’s appeal of the County Court’s Final Summary Judgment. The court having considered the matter, and otherwise being duly advised in premises, finds and decides as follows:
The appellant raises two issues on appeal. First, it argues that the trial court erred in entering final summary judgment based upon deemed admissions resulting from appellant’s failure to timely respond to the appellee’s request for admissions. Florida Rule of Civil Procedure Rule 1.370(b) states, “Any matter deemed admitted under this rule is conclusively established unless the court permits withdrawal or amendment of the admission.” The trial court, within its proper discretion, denied appellant’s motion for relief from admissions. Appellant, moreover, acknowledges that the responses were inadvertently not filed (R. 36-37). Following the precedent set forth in Farish v. Lums, Inc., 267 So.2d 325, 327 (Fla. 1972), mere inadvertence is no excuse for the noncompliance of Florida Rule of Civil Procedure 1.370(b). Further, the trial court found prejudice to the appellee due to the appellant’s impermissible delay in moving forward with this case. (R. 95). Therefore, the trial court did not err in entering final summary judgment.
Second, the appellant argues that the trial court abused its discretion by excluding the peer review report from consideration on the motion for summary judgment. Florida Rule of Civil Procedure 1.510(e) requires that opposing affidavits be made on personal knowledge, set forth facts that would be admissible as evidence, and show affirmatively that the affiant is competent to testify on the matters stated. An affidavit is a written or printed declaration or statement of facts, made under oath administered by a duly authorized person. Jackson v. State, 881 So.2d 666 (Fla. 5th DCA 2004).
The appellant failed to provide authority supporting its position that Dr. Merrit’s “peer review” is an affidavit as defined by Florida Rule of Civil Procedure 1.510(e). Rather, they rely on the distinguishable medical malpractice case of Mieles v. South Miami Hospital, 659 So.2d 1265 (Fla. 3d DCA 1995). Mieles dealt with a “verified medical expert opinion” to satisfy medical malpractice pre-suit screening requirement. Further, the item filed in opposition of a motion for summary judgment must be admissible in evidence. In Bifulco v. State Farm Mutual Automobile Insurance Co., the district court held that documents attached to a summary judgment motion should not have been considered since they were not sworn to, certified, or accompanied by an affidavit of records custodian or other proper person attesting to their authenticity or correctness, and were not admissible. 693 So.2d 707 (Fla. 4th DCA 1997). There is no indication in the record that Dr. Merrit’s “peer review” report meets the requirements set forth in Bifulco. (R. 71-73).
Dr. Merrit’s “peer review” also fails to meet the requirement of Section 627.736(7)(a), Florida Statutes, due to the failure of the record to indicate that he examined Ms. Posada, or that the treatment records reviewed were complete.
Finally, during the hearing on the motion for summary judgment on August 17, 2004, the appellant claimed it needed more time to file an “affidavit” in opposition to the motion. (T. Page 4). The argument is unpersuasive. Under Florida law, the party moving for the continuance has the burden of proving, by affidavit, that there is existence of, and availability of, other relevant evidence and that any failure to produce such evidence has not been the result of the movant’s inexcusable delay. Carbonell v. Bellsouth Telecommunications, 675 So.2d 705 (Fla. 3d DCA 1996). The totality of the inexcusable delays by the appellant, coupled with the fact that Dr. Merrit’s “peer review” was dated July 8, 2004, prior to the initial hearing on the motion for summary judgment suggest that the report was filed in bad faith. (R. 71-73).1
Accordingly, it is hereby
ORDERED AND ADJUDGED that the trial court’s Order Granting Final Summary Judgment is AFFIRMED.
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1It appears that the request for continuance was merely an attempt to circumvent impermissibly this court’s ruling on the summary judgment motion. See Inman v. Club on Sailboat Key, Inc., 342 So.2d 1069 (Fla. 3d DCA 1977) (While the policy in Florida is to liberally allow amendments to pleadings, a trial judge in the exercise of discretion may deny further amendments when it is found that the sole purpose is to defeat summary judgment).
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