14 Fla. L. Weekly Supp. 821b
Insurance — Personal injury protection — Summary judgment — Hearing — Continuance — Denial — Abuse of discretion to deny continuance of summary judgment hearing and grant summary judgment before medical provider had opportunity to complete discovery
EXCELLENT DIAGNOSTIC CENTER, INC. (a/a/o Ricardo Morales), Appellant, vs. INTEGON CASUALTY INSURANCE CO., Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 05-410 AP. L.T. Case No. 04-7301 SP. June 28, 2007. An appeal from the County Court in and for Miami-Dade County, Nuria Saenz De La Torre, J. Counsel: Marlene S. Reiss, for Appellant. Eric G. Belsky, for Appellee.
(Before THOMAS S. WILSON, JR., MICHAEL A. GENDEN and MARC SCHUMACHER, JJ.)
(MARC SCHUMACHER, J.) Ricardo Morales was injured in a car accident in June 2004. At the time, he was a passenger in the car of one Ms. Infante, an insured of Integon Casualty Insurance Company. Morales sought treatment from Excellent Diagnostic Center, Inc. Excellent made a claim for PIP benefits under Ms. Infante’s policy. In August 2004, Integon scheduled Morales for two separate examinations under oath, both of which he failed to attend. Excellent sued Integon for PIP benefits. In its answer and affirmative defenses, Integon asserted that Morales’ failure to attend either examination under oath, a condition precedent to coverage, precluded his recovery.
In July 2005, Integon moved for summary judgment, citing Morales’ failure to attend the examination. Integon’s motion was supported by the affidavit of Marcy Sessions, a litigation claims representative for Integon. The summary judgment hearing was scheduled for September 13, 2005. Excellent took Sessions’ deposition on September 9, 2005. On September 12, Excellent filed a motion for continuance of the summary judgment hearing, together with an affidavit from the court reporter, stating that she would not have the deposition transcript ready until September 23, 2005. The trial court denied the motion for continuance and entered a summary judgment for Integon. Integon appeals the trial court’s grant of summary judgment.
This Court is mindful of the precedent which states that a trial court’s ruling on a motion to continue a summary judgment is reviewable only for an abuse of discretion. Carbonell v. Bell South, 675 So. 2d 705 (Fla. 3d DCA 1996). However, the Court also notes that a trial court’s discretion to continue a hearing is tempered if discovery is not completed and is necessary for the disposition of the case. Smith v. Smith, 734 So. 2d 1142 (Fla. 5th DCA 1999). We find that the trial court abused its discretion by granting summary judgment before appellant had an opportunity to complete discovery, under Crowell v. Kaufman, 845 So. 2d 325 (Fla. 2d DCA 2003). Accordingly, we reverse the trial court’s order granting summary judgment and remand this cause for further proceedings. (WILSON and GENDEN, JJ., concur.)
