13 Fla. L. Weekly Supp. 552b
Insurance — Personal injury protection — Misrepresentations — Use of vehicle for commercial purposes — Evidence — In entering summary judgment in favor of insurer that denied claim based on insured’s alleged use of vehicle for commercial purposes, trial court erred in considering as fact unsworn statements made by insured during telephone conversation with claims representative
MIAMI DADE MEDICAL CENTERS, INC., a/a/o Raul Fiafe, Appellant, vs. MGA INSURANCE COMPANY, INC., Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 04-457 AP. L.T. Case No. 03-19176 SP 05. April 3, 2006. On Appeal from the County Court for Miami-Dade County, Honorable Caryn C. Schwartz. Counsel: Stuart B. Yanofsky, for Appellant. Paul E. Susz, for Appellee.
(Before STANFORD BLAKE, MANUEL CRESPO and WILLIAM JOHNSON, JJ.)
(MANUEL CRESPO, J.) This appeal arises from a summary judgment entered in favor of MGA Insurance Company. At issue is the admission, by the trial court judge, of a transcript of a telephone conversation between the insured and two representatives of the insurer.
On June 20, 2003, Raul Fiafe was involved in an automobile accident. He sought treatment with and assigned his PIP benefits to the Appellant, Miami Dade Medical Center. Mr. Fiafe was insured with MGA Insurance Company. Mr. Fiafe provided a telephonic interview to MGA’s claim representatives. As a result of this interview, MGA denied Mr. Fiafe’s claim for insurance benefits stating that the vehicle was used for business or commercial purposes in violation of the insurance policy.
The provider, as assignee of the insurance benefits, filed a complaint against MGA. MGA answered the complaint and filed an affirmative defense of misrepresentation by the insured. MGA filed a motion for summary judgment and submitted a copy of the insurance application completed by Mr. Fiafe; the insurance policy; a copy of the transcript of the telephone conversation between Mr. Fiafe and the claim representatives; and an affidavit by a claims adjusters describing the contents of the telephone conversation and advising that the carrier would not have issued such a policy. The trial judge granted MGA’s motion for summary judgment. Miami Dade Medical Center appeals the decision claiming that the trial court erroneously granted summary judgment based upon the transcript of an unworn statement taken by telephone. MGA claims that the trial court properly determined that an admission by a party was properly admissible as an exception to the hearsay rule.
Summary judgment is proper if there are no genuine issues of material fact and if the moving party is entitled to a judgment as a matter of law. The standard of review is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000). The initial burden, in summary judgment proceedings, is upon the movant. When he tenders evidence sufficient to support his motion, then the opposing party must come forward with counter-evidence sufficient to reveal a genuine issue. DeMesme v. Stephenson, 498 So.2d 673 (Fla. 1st DCA 1986). The movant, however, does not initially carry the burden of exhausting the evidence pro and con, or even examining all of his opponent’s witnesses. Id. To fulfill his burden, the movant must offer sufficient admissible evidence to support his claim of the nonexistence of a genuine issue. Id. If he fails to do this his motion is lost. If he succeeds, then the opposing party must demonstrate the existence of such an issue either by countervailing facts or justifiable inferences from the facts presented. If he fails in this, he must suffer a summary judgment against him. Id.
The general rule is that an unsworn witness is not competent to testify. Winters v. Florida Bd. of Regents, 834 So.2d 243 (Fla. 2d DCA 2002). In Arnold v. Arnold, 889 So. 2d 215 (Fla. 2d DCA 2004), the District Court of Appeal determined that “unsworn statements cannot serve as a basis for a trial court’s factual determination.” “Unsworn statements do not establish facts.” Id.
In this case, the statements made by Mr. Fiafe amounted to unsworn testimony. During the telephone interview, Mr. Fiafe did not submit to an oath or affirmation. The statement did not bear a notary seal of a court reporter after transcription. In addition, it is unknown if the statement was translated by a certified translator from Spanish to English. When reaching its decision, the trial court erroneously considered the unsworn statement as a fact and entered judgment for MGA. As a result, the issue of whether the vehicle was used for business or commercial purposes has not been resolved. Therefore, a material fact exists in this case and the decision of the trial court is reversed and remanded to the trial court.
Appellant’s Motion for Appellate Attorneys Fees is granted under the authority of § 627.428, Fla. Stat. (2001). See Arango v. United Auto. Ins. Co., 901 So. 2d 320 (Fla. 3d DCA 2005).
REVERSED and REMANDED. (BLAKE and JOHNSON, JJ., concur.)
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