13 Fla. L. Weekly Supp. 35a
NOT FINAL VERSION OF OPINION
Subsequent Changes at 13 Fla. L. Weekly Supp. 431a
Insurance — Personal injury protection — Summary judgment — Rehearing — Where insurer moved for rehearing of denial of motion for summary judgment but did not set matter for hearing, insurer asked that motion for rehearing be heard when parties appeared for trial before different judge, trial court indicated over medical provider’s objection that it would entertain motion for rehearing on next day, and on next day court heard and granted motion for rehearing and motion for summary judgment, one-day notice violated provider’s right to reasonable notice of hearing — Independent medical examination — Failure to attend — Error to enter summary judgment where record shows only that insured failed to attend IME and does not establish that insured refused to attend IME or that any refusal was unreasonable — Until insurer proved unreasonable refusal to attend IME, provider was under no obligation to show otherwise, and trial court erred in relying on insured’s silence to prove unreasonable refusal — Trial court also erred in refusing to consider deposition on rehearing where, although deposition was not filed prior to original summary judgment hearing, deposition was taken pursuant to notice and physically in existence “before the court” at time of that hearing
COMPREHENSIVE HEALTH CENTER, INC., Appellant, v. UNITED AUTOMOBILE INSURANCE CO., Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 04-484 AP. L.T. Case No. 01-13202 SP 23. October 18, 2005. On appeal from Final Summary Judgment by the County Court in and for Miami-Dade County. Counsel: Joseph Littman, for Appellant. Marc Gatica and Michael J. Neimand, United Automobile Insurance Company, Office of General Counsel, for Appellee.
(Before Rosinek, Rodriguez and Areces, JJ.)
(Per Curiam.) This is an insurance case brought pursuant to the Florida Motor Vehicle No-Fault Law, § 627.730, et seq., Fla. Stat. Comprehensive Health Center, Inc., as assignee of the insured, seeks relief from summary judgment by the trial court.
The procedural facts are straightforward. United Automobile Insurance Company moved for summary judgment. The motion was denied June 9, 2004. On June 16, 2004, United Automobile moved for rehearing but did not set the matter for hearing.
On June 21, 2004, the parties appeared for trial before a different judge. At that time, United Automobile asked that its motion for rehearing be heard.
The trial court indicated, over Comprehensive’s objection, that it would entertain United Auto’s motion for rehearing on the following day. On June 22, 2004, the trial court granted United Auto’s motion for rehearing and simultaneously granted the motion for final summary judgment. This appeal ensued.
Of preliminary concern is the lack of notice accorded Comprehensive. One day notice of United Auto’s motion for rehearing, (and less than a week after service thereof), violated Comprehensive’s right to reasonable notice of hearing. Fla. R. Civ. P. 1.090(d); J.B. v. Florida Dept. of Children and Family Services, 768 So. 2d 1060, 1066-1067 (Fla. 2000) (“the fundamental rights involved here demand more than a mere twenty-four hours’ notice”); Medina v. Florida East Coast Ry., L.L.C., 866 So. 2d 89, 90 (Fla. 3d DCA 2004); Sklandis v. Walgreen Co., 832 So. 2d 942, 943 (Fla. 3d DCA 2002); Butts v. Hegmann, 705 So. 2d 1007, 1008 (Fla. 4th DCA 1998); Montgomery v. Cribb, 484 So. 2d 73, 75 (Fla. 2d DCA 1986) (holding two days’ notice of hearing on motion to strike unreasonable); Hart v. Hart, 458 So. 2d 815, 816 (Fla. 4th DCA 1984); Henzel v. Golstein, 349 So. 2d 824, 825 (Fla. 3d DCA 1977) (holding 24 hours’ notice of hearing on motion to dismiss inadequate); Reynolds v. Reynolds, 187 So. 2d 372, 373 (Fla. 2d DCA 1966) (holding plaintiff had been denied due process of law by only 24 hours’ notice of a hearing on an order to show cause why she should not be held in contempt).
Review of the underlying basis for summary judgment also countenances reversal. That review is conducted de novo and requires viewing the evidence in the light most favorable to the non-moving party. Sierra v. Shevin, 767 So. 2d 524 (Fla. 3d DCA 2000). Judgment may only be granted if the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fla. R. Civ. P. 1.510(c). If the slightest doubt exists, summary judgment must be reversed. Sierra, 767 So. 2d at 525, citing Hancock v. Department of Corrections, 585 So. 2d 1068 (Fla. 1st DCA 1991).
Review of the record shows, at most, that the insured did not attend the scheduled IME. With Comprehensive being entitled to every inference and benefit of the doubt, such facts do not establish, on summary judgment, that the insured refused to attend the scheduled IME. Moreover, the term “unreasonably refuses to submit” in both the conditions section of the policy and subsection 627.736(b), presupposes “there are scenarios where the insured ‘reasonably refuses to submit’ to the examination.” U.S. Sec. Ins. Co. v. Cimino, 754 So. 2d 697, 702 (Fla. 2000). Hence, even if the facts established that the insured refused to attend the scheduled IME, there are no facts which establish, on summary judgment, that such refusal was unreasonable.
Ultimately, United Auto was required to prove more than the fact that the insured “failed” to attend. Indeed, United Auto was required to prove more than the fact that the insured “refused” to attend. What United Auto was required to prove, on motion for summary judgment, was that the insured unreasonably refused to attend the IME. Until United proved that the insured unreasonably refused to attend the IME, Comprehensive was under no obligation to show otherwise. Holl v. Talcott, 191 So. 2d 40 (Fla. 1966). Here, the trial court turned Talcott on end by relying upon the insured’s silence to prove unreasonable refusal.
U.S. Sec. Ins. Co. v. Silva, 693 So. 2d 593 (Fla. 3d DCA), relied upon by United Auto, is irrelevant to a motion for summary judgment. There, the parties agreed to a Final Judgment in the County Court in favor of Silva, based on stipulated facts. There is no suggestion that Silva was entitled to any inferences or benefit of the doubt.
Griffin v. Stonewall Ins. Co., 346 So. 2d 97, 98 (Fla. 3d DCA 1977), is similarly unhelpful. There the insured affirmatively refused to attend an IME unless it was a doctor of his choosing. Thus, the record in Griffin contained evidence of a refusal and as well as the basis for that refusal. Such evidence is missing here.
The trial court further erred by refusing to consider the deposition testimony of Mary Vojstasek. That deposition was duly noticed and taken December 3, 2003. It was physically before the trial court at the time of June 9, 2004 summary judgment hearing. “Although the depositions the trial judge employed in reaching his decision were not filed prior to the [summary judgment hearing], they were taken pursuant to notice and were physically in existence ‘before the court,’ satisfying that provision of the summary judgment rule.” Ferguson v. V.S.L. Corporation, 528 So.2d 32 (Fla. 3d DCA 1988); Florida Indus. Machinery, Inc. v. Executive Life Ins. Co., 560 So.2d 413, 415 (Fla. 1st DCA 1990); Elliott v. Dugger, 542 So.2d 392, 394 (Fla. 1st 1989). Accordingly, the Vojtasek deposition was “on file” pursuant to Fla. R. Civ. P. 1.510(c) and the trial court erred in refusing to consider the deposition testimony on rehearing.
Based upon the foregoing, we REVERSE the trial court.
In the event Comprehensive should ultimately prevail, it shall be entitled to attorney’s fees incurred as a result of this appeal pursuant to §§ 627.736(8) and 627.428, Florida Statutes.
