14 Fla. L. Weekly Supp. 681a
Insurance — Personal injury protection — Declaratory judgments — Summary judgment — Factual issues — Where claims adjuster’s deposition testimony and affidavit state that adjuster personally sent copy of policy and declarations page to medical provider in response to presuit demand letter, motion for summary judgment on claim that insurer failed to provide documents is denied
EMERGENCY PHYSICIANS OF CENTRAL FLORIDA, LLP, as assignee of MICKEY GOEHRING, Plaintiff, vs. PROGRESSIVE CASUALTY INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 05-SC-1793. May 1, 2007. C. Vernon Mize, Judge. Counsel: George Milev, Adams & Diaco, P.A., Tampa. Michael Mills.
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON COUNT II
THIS CAUSE having come before the Court on April 17, 2007 on Plaintiff’s Motion for Summary Judgment on Count II, and the Court further having heard arguments by Plaintiff and Defendant, and otherwise being fully advised in the premises, hereby FINDS, ORDERS AND ADJUDGES:
1. Plaintiff filed lawsuit in part for declaratory judgment claiming that Defendant has failed to provide Plaintiff with a copy of the insurance policy at issue, declarations page and PIP payout log in response to Plaintiff’s pre-suit demand.
2. During the course of litigation Plaintiff filed an affidavit by Leslie Jones claiming that the Law Firm of Rutledge M. Bradford, P.A., never received a response to Plaintiff’s pre-suit demand nor any of the documents requested in said demand.
3. Plaintiff also claimed pursuant to the deposition of Lisa Campbell, pre-suit demand handler for Defendant, that Defendant had no records whatsoever of a response to Plaintiff’s pre-suit demand and/or documents provided except for Ms. Campbell’s adjuster’s notes.
4. Ms. Campbell testified during her deposition that she personally responded to Plaintiff’s pre-suit demand and enclosed with the response a copy of the Ohio insurance policy at issue together with the declarations page.
5. Defendant also filed an affidavit by Lisa Campbell in opposition to Plaintiff’s Motion for Summary Judgment on Count II.
6. A movant for a summary judgment has “the burden of proving conclusively the non-existence of any genuine issue of material fact. . . . The evidence and affidavits are required to be examined in light most favorable to the non-movant and if the slightest doubt exists, summary judgment is improper.” Gast v. Mak Enterprises of Gainesville, 944 So. 2d 1119 (Fla. 5th DCA 2006).
WHEREFORE, Plaintiff’s Motion for Summary Judgment on Count II is DENIED as there exists an issue of material fact whether Defendant responded to Plaintiff’s pre-suit demand and enclosed any documents requested in said demand.
