14 Fla. L. Weekly Supp. 1089a
Insurance — Personal injury protection — Error to enter summary judgment in favor of insurer based on insurer’s affirmative defense of fraud where discrepancies between insured’s examination under oath, claim forms, insured’s medical record, and depositions of insured and treating physician raised issue of fact as to what services were rendered, an issue which is material to fraud defense — Burden never shifted to medical provider to file anything in opposition to insurer’s motion for summary judgment where insurer failed to demonstrate absence of genuine issue of material fact
DYNAMIC MEDICAL SERVICES (a/a/o MANUEL ROSSITCH), Appellant, vs. PROGRESSIVE EXPRESS INSURANCE CO., Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 06-120AP. L.C. Case No. 03-715 CC 26. September 11, 2007. An appeal from the County Court for Miami-Dade County. Counsel: Marlene S. Reiss, for Appellant. Douglas H. Stein, for Appellee.
[Editor’s note: County court order at 13 Fla. L. Weekly Supp. 366a]
(Before SCOTT M. BERNSTEIN, MINDY SUE GLAZER, and ROBERT N. SCOLA, JR., JJ.)
(SCOLA, JR., J.) Appellant, Dynamic Medical Services (a/a/o Manuel Rossitch) (“Dynamic”) appeals a final order of the trial court granting summary judgment to Appellee, Progressive Express Ins. Co. (“Progressive”). We find that genuine issues of material fact exist which preclude entry of a summary judgment and, therefore, reverse.
I.
Manuel Rossitch was injured in a car accident on July 28, 2000. Rossitch was covered by Personal Injury Protection (PIP) insurance from Progressive at the time of the accident. He sought treatment for his injuries from Dynamic and assigned his rights to Dynamic to recover PIP benefits from Progressive. When Progressive did not timely pay the submitted bill for medical services provided to Rossitch by Dynamic, Dynamic filed a Complaint against Progressive for those unpaid bills.
Progressive eventually filed an Amended Answer which set forth the following affirmative defense: “Defendant alleges the defense of fraud in that Plaintiff knowingly submitted bills to Progressive for treatment that was not actually rendered to Mr. Rossitch.”
Progressive filed its Motion for Summary Judgment claiming that each of the Health Care Finance Administration (“HCFA”) claim forms submitted to Progressive for payment of PIP benefits contained claims for payment of services which were not rendered in support of its motion. Progressive filed portions of the Examination Under Oath (“EUO”) taken of Rossitch on October 25, 2000, the HCFA forms, Rossitch’s Medical records, the depositions of Rossitch and his treating physician, Dr. Rodriguez-Izanga, and the affidavit of Progressive’s Litigation Specialist, Michele Buck.
Dynamic filed no response to Progressive’s Motion for Summary Judgment. The trial court entered an Order Granting Progressive’s Motion for Summary Judgment. The court ruled that Dynamic had not timely submitted its bills for the services allegedly rendered from August 4, 2000 through August 22, 2001 and that it was undisputed that Dynamic billed Progressive for services that Dynamic did not render. Subsequently, the trial court entered the Final Judgment and Dynamic appealed.
II.
The standard of review for an order granting summary judgment is de novo in a light most favorable to the non-moving party. Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000). If the slightest doubt exists, summary judgment must be reversed. Id. at 525. Additionally, this court must “draw every possible inference in favor of the party against whom the motion is made.” Wills v. Sears, Roebuck & Co., 351 So. 2d 29, 30 (Fla. 1977).
Summary judgment is proper only where there are no genuine issues of material fact and where the moving party is entitled to judgment as a matter of law. See Fla. R. Civ. P. 1.510(c); Wills, 351 So. 2d at 32; Collections, USA, Inc. v. City of Homestead, 816 So. 2d 1225, 1227 (Fla. 3d DCA 2002). The moving party bears the initial burden of proving the nonexistence of a genuine issue of material fact. See Holl v. Talcott, 191 So. 2d 40, 43 (Fla. 1966); Williams v. Garden City Claims, Inc., 796 So. 2d 586, 588 (Fla. 3d DCA 2002); Albelo v. Southern Bell, 682 So. 2d 1126, 1129 (Fla. 4th DCA 1996). Only after this burden has been met does the burden shift to the nonmoving party. Holl, 191 So. 2d at 44.
III.
Progressive did not demonstrate the absence of genuine issues of material fact as to its defense. Discrepancies between Rossitch’s EUO statements, the HCFA forms, Rossitch’s Medical records, and the depositions of Rossitch and his treating physician, Dr. Rodriguez-Izanga, on their face create questions of fact. The facts as to which services were rendered are essential to the resolution of the legal questions raised in this case, and thus are material.
Since Progressive did not demonstrate the absence of any genuine issues of material fact, the burden never shifted to Dynamic to file anything in opposition to Progressive’s motion. Holl v. Tolcott, 191 So. 2d 40 (Fla. 1966) (until it is determined that the movant has successfully met the burden of proving the absence of any genuine issue of material fact, the opposing party is under no obligation to show that any issues do remain to be tried). Thus, the trial court erroneously concluded that “Dynamic failed to meet its burden as it did not file anything in opposition to raise a genuine issue of material fact.” The fact that Dynamic did not file any opposition did not, in and of itself, entitle Progressive to summary judgment as the trial court’s order suggests.
REVERSED in part and REMANDED for further proceedings. Dynamic’s Motion for Appellate Attorney’s Fees is granted subject to the provisions of Florida Statutes §627.428(1) and Florida Rules of Appellate Procedure 9.400.
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1The Motion for Summary Judgment also claimed that certain of the bills were not timely submitted. Dynamic has conceded that the court below was correct in granting summary judgment as to those untimely bills and that part of the Order Granting Summary Judgment is not disturbed by this opinion.
