14 Fla. L. Weekly Supp. 178a
Insurance — Personal injury protection — Summary judgment — Affirmative defenses — Insurer’s statement in prior motions that its only affirmative defense was insured’s alleged failure to attend examination under oath constituted tacit admission that failure to attend EUO was insurer’s only defense — Insurer may not assert additional affirmative defenses in attempt to defeat summary judgment
SCOTT DRUMMOND & DAVID AUSLANDER, Plaintiffs, v. AMICA MUTUAL INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 05-8060-CC, Division I. December 7, 2006. Charlotte W. Anderson, Judge. Counsel: Timothy A. Patrick, Nicholas, Lipscomb & Patrick, P.A., Tampa, for Plaintiff. Douglas Fraley, for Defendant.
[Editor’s note: Final judgment in this case REVERSED at 32 Fla. L. Weekly D2907a.]
ORDER GRANTING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come before the Court on November 28, 2006 on Plaintiffs’ Motion for Summary Judgment. Present before the Court were Plaintiffs’ counsel, Timothy A. Patrick, and Defendant’s counsel, Douglas Fraley. The Court after hearing argument of counsel and for the reasons stated on the record, rules as follows:
It is ORDERED and ADJUDGED as follows:
(1) The court bases its ruling on the record filings in this case and in the case of AMICA Mutual Ins. Co. v. Scott Drummond and David Auslander, Case No. 04-9957.
(2) The court finds that the Defendant filed a Motion for Judgment on the Pleadings or in the Alternative, Motion for Summary Judgment, along with a Motion for Protective Order, wherein it asserted that its only defense was an alleged failure to attend EUO’s by the Plaintiffs.
(3) The court finds that said motions constitute a tacit admission that its only defense was the failure to attend EUO’s. Thus, it is too late to assert additional affirmative defenses in an attempt to defeat summary judgment.
(4) Plaintiffs’ Motion for Summary Judgment is HEREBY GRANTED as to the following medical charges which were incurred prior to October 5, 2004:
Scott Drummond:
Gulf Coast Injury Center, LLC $3,132.00
Erik Grana, M.D. $ 700.00
Gary Moskovitz, M.D. $ 318.00
$4,140.00
David Auslander:
Gulf Coast Injury Center, LLC $ 436.80
