13 Fla. L. Weekly Supp. 106a

Insurance — Personal injury protection — Summary judgment — Where documents relied upon by insurer in support of motion for summary judgment are not sworn or certified, court cannot consider or rely upon them — Motion denied

OCEAN RIDGE CHIROPRACTIC d/b/a OCEAN CHIROPRACTIC CENTER, as an assignee for Alexa Pettry, Plaintiff, v. PROGRESSIVE AUTO PRO INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 502004SC012143XXXXMB. October 11, 2005. Laura S. Johnson, Judge. Counsel: Shannon M. Mahoney, Lesser, Lesser, Landy & Smith, Palm Beach, for Plaintiff. Cymonie S. Rowe, Fort Lauderdale, for Defendant.

ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

THIS CAUSE came before this Court on “Defendant’s Motion for Summary Judgment.” This Court has reviewed the motion and the court file, has reviewed the parties’ arguments, and is otherwise fully advised in the premises.

Factual Background

This case arose out of Plaintiff’s Complaint alleging that an insured patient assigned to Plaintiff the insured’s rights to recover personal injury protection benefits from Defendant, and that Defendant has failed to pay those benefits.

Defendant filed a motion for summary judgment pursuant to Fla.R.Civ.P. 1.510. Defendant’s motion argues that Plaintiff failed to attach an assignment of benefits to the pre-suit demand letter as required by Section 627.736(11), Florida Statutes (2003). Defendant further argues that Plaintiff’s pre-suit demand letter failed to provide a sufficient itemized statement as required by Section 627.736(11). Defendant supported its motion by attaching various documents; however, the documents, identified as Exhibits “A”, “B” and “C”, were not sworn to or certified in any manner whatsoever as required by Fla.R.Civ.P.1.510(e).

Plaintiff countered that its pre-suit demand letter complied with all of the requirements of Section 627.736(11). Plaintiff attached an affidavit attesting to its compliance with the statute. More importantly, Plaintiff responds that this Court should deny Defendant’s Motion on procedural grounds because Defendant failed to comply with the requirements of Fla.R.Civ.P. 1.510(e) by failing to attach any sworn or certified documents to the motion for summary judgment.

Defendant responds by acknowledging that the documents it relies upon in support of its motion for summary judgment are not sworn to or certified. Nevertheless, Defendant urges this Court to reach the substantive arguments within its motion.Analysis

In reversing a summary judgment for failure to comply with Rule 1.510(e) in Bifulco v. State Farm Automobile Insurance Company, 693 So. 2d 707, 709 (Fla. 4th DCA 1997), the fourth district court of appeal instructed:

Merely attaching documents which are not “sworn to or certified” to a motion for summary judgment does not, without more, satisfy the procedural strictures inherent in Fla.R.Civ.P. 1.510(e). Moreover, rule 1.510(e)¹ excludes from consideration on a motion for summary judgment any document that is not one of the enumerated documents or is not a certified attachment to a proper affidavit.

. . .[A] trial court, in passing upon a motion for summary judgment, is bound by the procedural strictures inherent in Fla.R.Civ.P. 1.510, in this instance rule 1.510(e), which mandates that copies of all papers or parts thereof used to support or oppose a motion for summary judgment shall be sworn to or certified. . . . The function of summary judgment procedure is to determine if there is sufficient evidence to justify a trial upon the issues framed by the pleadings, to expedite litigation, and to obviate expense. The granting of a summary judgment, in most instances, brings a sudden and drastic conclusion to a lawsuit, thus foreclosing the litigant from the benefit of and right to a trial on the merits of his or her claim. It is for this very reason that caution must be exercised in the granting of summary judgment, and the procedural strictures inherent in the Florida Rules of Civil Procedure governing summary judgment must be observed. The procedural strictures are designed to protect the constitutional right of the litigant to a trial on the merits of his or her claim. They are not merely procedural niceties nor technicalities. Id. at 709, citing, Page v. Staley, 226 So.2d 129, 130, 132 (Fla. 4th DCA 1969); Coastal Caribbean Corp. v. Rawlings, 361 So.2d 719, 721 (Fla. 4th DCA 1978).

The documents relied upon by Defendant in the instant case are not in compliance with rule 1.510, as such, this Court cannot consider or rely upon them.

Based on the foregoing, it is ORDERED AND ADJUDGED that “Defendant’s Motion for Summary Judgment” is denied.

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¹Florida Rule of Civil Procedure 1.510(e) states as follows:

Supporting and opposing affidavits shall 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 matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.

“The last requirement, by its language, excludes any document from the record on a motion for summary judgment that is not one of the enumerated documents or is not a certified attachment to a proper affidavit.” Bifulco v. State Farm Automobile Insurance Company, 693 So. 2d 707, 709 (Fla. 4th DCA 1997). See Harris v. Wilson, 656 So.2d 512 (Fla. 1st DCA 1995), approved, 22 Fla. L. Weekly S137, 693 So.2d 945 (Fla. March 20,1997).