13 Fla. L. Weekly Supp. 641b
Insurance — Personal injury protection — Coverage — Where insurer failed to identify to medical provider’s responses to interrogatories that insurer relied on to oppose summary judgment, court will not consider responses — Where provider attached uncertified copies of bills to affidavit in support of summary judgment and did not attest in affidavit that attachments were true and correct copies, court will not consider copies — Partial summary judgment is entered as to uncontroverted matters on which provider’s affidavit is not conclusory, including fact that insured was injured in accident, total amount of treatment rendered, assignment of benefits to provider, and proper licensure of provider
EVAN J. SLATKIN, D.C., P.A. d/b/a MEDICAL REHAB OF SOUTH FLORIDA (a/a/o Violeta Williams), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 05-14141 COCE 53. April 4, 2006. Robert W. Lee, Judge. Counsel: Michael J. Fischetti, Margate, for Plaintiff. Wendy Brewster Maroun, Coral Gables, for Defendant.
ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court on March 29, 2006 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, finds as follows:
Background. On September 12, 2005, the Plaintiff filed its Complaint for unpaid PIP benefits. On November 7, 2005, the Defendant filed its Answer and Affirmative Defenses, which set forth three defenses: (1) the expenses are not reasonable, related and/or medically necessary; (2) failure to meet deductible; and (3) failure to provide or properly complete the statutory disclosure and acknowledgment form. In its Answer, the Defendant admitted the following:
1. United issued a policy of insurance to Violeta Williams which provides for the payment of PIP benefits including payment for medical expenses.
2. On or about April 10, 2005, Violeta Williams was involved in an automobile accident.
3. On the day of the accident, the PIP policy was in full force and effect.
4. The bills were submitted to Defendant in a timely fashion.
5. United has received the bills for the dates of service of April 18, 2005 through June 8, 2005.
6. United received an assignment of benefits from Violeta Williams to the Plaintiff.
7. United failed to provide Plaintiff a copy of the PIP payout sheet and insurance declaration sheet as requested in Plaintiff’s pre-suit demand letter.
On November 28, 2005, the Plaintiff filed the affidavit of Violeta Williams which averred that as a result of the accident, she was injured; that the total amount of treatment she received from Plaintiff was $4,310; and that it was her intention to assign her benefits under the PIP policy to Plaintiff.
On December 12, 2005, the Defendant filed its Response to Request for Admissions. In addition to the matters admitted in its Answer, the Defendant also admitted:
8. United does not have any reports prepared by a medical provider stating that the dates of service was not reasonable, related, or medically necessary.
On January 17, 2006, the Defendant filed its Notice of Withdrawing Affirmative Defense pertaining to Plaintiff’s failure to provide a properly completed disclosure and acknowledgment form.
On February 28, 2006, the Plaintiff served its Motion for Summary Judgment on all remaining issues. As exhibits to the Motion, the Plaintiff attached the Affidavit of Evan J. Slatkin, D.C., which included a copy of the bills at issue; and the Affidavit of Violeta Williams. The motion also referred to Defendant’s Responses to Plaintiff’s Request for Admissions previously filed. The matter was set for hearing before the Court on March 29, 2006. The Defendant filed nothing in opposition to the Motion.
At the hearing, the Defendant made three arguments as to why final summary judgment should not be granted. First, the Defendant argued that its own answers to Plaintiff’s interrogatories reveal a disputed issue of material fact. Second, the Defendant argued that Dr. Slatkin’s affidavit fails to include a certification that the attached bills are true and correct copies. Third, the Defendant argued that Dr. Slatkin’s affidavit was conclusory and, as a result, insufficient to establish much of Plaintiff’s prima facie case.
Conclusions of Law. The Court first addresses the Defendant’s argument that its responses to interrogatories previously filed in the case demonstrate the existence of disputed issues of material fact. The Defendant failed, however, to identify to Plaintiff by notice mailed or hand delivered “any summary judgment evidence on which the adverse party relies.” This notice is required by Rule 1.510(c), as amended effective January 1, 2006. As stated in the Committee Notes to the 2005 amendment, the new requirement was put in place “to ensure that the moving party and the adverse party are each given advance notice of and, where appropriate, copies of the evidentiary material on which the other party relies in connection with a summary judgment motion” (emphasis added). As it is undisputed that the Defendant failed to do this, the Court will not consider the responses to interrogatories referred to by Defendant.
Next, the Court considers the Defendant’s argument that Dr. Slatkin’s affidavit fails to attached certified copies of the bills in question. Rule 1.510(e) provides that “[s]worn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith” (emphasis added). The act of certifying a paper is merely “to attest as being true or as represented.” Black’s Law Dictionary 207 (5th ed. 1979). And while clearly Dr. Slatkin could attest to the true nature of his own invoice, a review of his affidavit reveals that he simply did not do so. Nowhere does Dr. Slatkin aver that the invoices are true and correct copies of the actual bills for this dispute. The Court simply cannot infer that they are so.
As a result, the Court need not consider the Defendant’s third argument that the affidavit is facially insufficient as conclusory as to the issue of the treatment rendered. There are several matters in the affidavits of Dr. Slatkin and Violeta Williams which are clearly not conclusory, and which remain uncontroverted. They are:
9. Violeta Williams was injured in the accident.
10. The total amount of treatment rendered by Plaintiff was $4,310.
11. Violeta Williams assigned her benefits under the PIP policy to Plaintiff.
12. Evan J. Slatkin was at all times material to this case a properly licensed chiropractic doctor in the State of Florida.
13. Dr. Slatkin was the treating chiropractor responsible for and ordered the care and treatment of Violeta Williams.
Pursuant to Rule 1.510(d), the Plaintiff is entitled to partial summary judgment on these uncontroverted matters. Accordingly, it is hereby
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Summary Judgment is GRANTED IN PART. Pursuant to Rule 1.510(d), the matters set forth in numbered paragraphs 1-13 in this Order are deemed established, and at any further hearing or trial in this matter, they shall be deemed established with no further evidence being required.
Further, the Defendant’s First Affirmative Defense is hereby STRICKEN, as it is not a defense but rather nothing more than a restatement of the Plaintiff’s prima facie case.
