13 Fla. L. Weekly Supp. 380a
Insurance — Personal injury protection — Coverage — Exhaustion of policy limits — Evidence — Affidavit in support of insurer’s motion for summary judgment claiming exhaustion of benefits is deficient where affidavit provides no information demonstrating that affiant is competent to testify to matters stated therein — Where only remaining materials filed in support of motion for summary judgment are hearsay, motion is denied
HOWARD J. GELB, M.D., P.A., F.A.A.O.S. (a/a/o Sonila Fuentes), Plaintiff, vs. PROGRESSIVE CONSUMERS INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 04-2512 COCE 53. November 30, 2005. Robert W. Lee, Judge. Counsel: Andrew J. Weinstein, Weinstein & Associates, P.A., Coral Springs, for Plaintiff. Lynne M. French, Miami, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court on November 16, 2005 for hearing of the Defendant’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 23, 2005, the Defendant served its Motion for Summary Judgment, claiming that it is not liable for any amount sought by Plaintiff because benefits due under the policy have been exhausted. In support of its Motion, the Defendant attached a “MP/PIP Medical Detail List” which purports to show that the Plaintiff has paid out $9,500.73 on this claim. When the $500.00 deductible is included, the Defendant argues that the benefits under the policy have been exhausted.
On October 5, 2005, the Defendant served its Affidavit of Steven Tabor in support of its Motion for Summary Judgment. The Affidavit purports to establish that the benefits due under the policy have been exhausted. On November 15, 2005, the Plaintiff served its Motion to Strike Affidavit of Steven Tabor. The Plaintiff argues that the “affidavit is legally defective and must be stricken as such.” Specifically, the Plaintiff argues that the averments in the affidavit are not based upon personal knowledge.
Conclusions of Law. Pursuant to Rule 1.510(e), an affidavit in support of a motion for summary judgment must “be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matter stated therein.” At a minimum, the affidavit in the instant case is deficient as to the third prong. The affidavit provides no information which demonstrates to the Court that Steven Tabor “is competent to testify to the matters” set forth in the affidavit. As a result, while the Court can surmise that, as suggested by Plaintiff, that the information is based on Tabor’s review of other materials, it is not necessary for the Court to do so. The affidavit is insufficient as a matter of law.
The only remaining materials filed in support of the Motion are hearsay, and as such, are insufficient to meet the Defendant’s burden of showing the absence of a disputed material fact. Accordingly, it is hereby
ORDERED AND ADJUDGED that the Defendant’s Motion for Summary Judgment is DENIED.
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