13 Fla. L. Weekly Supp. 1235a
Insurance — Personal injury protection — Summary judgment — Opposing affidavits — Affidavit of doctor who performed peer review but did not perform physical examination or make complete medical records review is insufficient as matter of law — Summary judgment entered in favor of insured
REVERSED. 16 Fla. L. Weekly Supp. 630a.(United Automobile Ins. Co. v. Adams, 17 Cir. May 14, 2009.)
ELIZABETH ADAMS, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 05-008725 COCE 55. September 6, 2006. Eric M. Beller, Judge. Counsel: Cris Evan Boyar, Boyar and Freeman, Margate, for Plaintiff. Julio Diaz, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come on to be heard on Plaintiff’s Motion for Summary Judgment and the Court having heard argument of counsel, and being otherwise advised in the Premises, it is hereupon,
ORDERED AND ADJUDGED as follows:
1. The Court finds the Plaintiff filed a timely Motion for Summary Judgment with valid affidavits. The parties completed reasonable discovery prior to the hearing. No motions for continuances were filed by the Defendant or requested by the Defendant at the time of the Summary Judgment hearing. This matter was ripe to be decided by Summary Judgment.
2. In response to Plaintiff’s Summary Judgment Motion, the Defendant filed an affidavit of Dr. Millheiser who was an expert on behalf of the Defendant. Attached to the affidavit was allegedly a peer review performed by Dr. Millheiser.
3. The Plaintiff argued at the time of the hearing the affidavit the Plaintiff received was untimely and did not include a peer review.
4. At the time of the hearing, the Court file did not reflect the Defendant’s affidavit of Dr. Millheiser.
5. However, the Court finds the affidavit of Dr. Millheiser, provided to the Court at the hearing, is insufficient as a matter of law without regard to the allegations made by Plaintiff’s counsel relating to the defects of the affidavit. The Court finds the peer review and affidavit prepared by Dr. Millheiser makes it clear he did not perform a physical examination or make a complete review of the medical records before the time of the Summary Judgment hearing. The Court relies upon Judge Rosenberg’s decision in United v. Wechsel, 12 Fla. L. Weekly Supp. 1035a (Fla. 17th Cir. Court 2006) in support of this decision.
6. Therefore, the Court will not consider the affidavit of Dr. Millheiser and grants Plaintiff’s Motion for Summary Judgment.
7. The Plaintiff is entitled to attorney’s fees and costs pursuant to Fla. Stat. §627.428 as the prevailing party in a first party insurance litigation case.
8. The Plaintiff is ordered to provide the Court with a Final Judgment consistent with this order.
