14 Fla. L. Weekly Supp. 1090a
Insurance — Personal injury protection — Examination under oath — Failure to attend — Summary judgment — Factual issues — Error to enter summary judgment in favor of insured where motion for summary judgment did not disprove or establish legal insufficiency of EUO no-show defense raised by insurer
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. MAIRA POSADA COOK, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 06-529 AP. L.C. Case No. 06-6085-CC-05. September 7, 2007. An Appeal from the County Court for Miami-Dade County, Catherine M. Pooler, Judge. Counsel: Lara J. Edelstein, for Appellant. Mark J. Feldman, for Appellee.
(Before SIMONS, CARDONNE-ELY, and BROWN, JJ.)
(PER CURIAM.) United Automobile Insurance Company appeals an order of the trial court which granted Final Summary Judgment for Appellee Maira Posada Cook.
The standard of review on appeal for reviewing the entry of a final summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000); Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000). When reviewing the entry of a summary judgment, the Court must examine the record and any supporting affidavits in the light most favorable to the non-moving party. Fla. R. Civ. P. 1.510; Turner v. PCR, Inc., 754 So. 2d 683, 684 (Fla. 2000).
A motion for summary judgment is appropriate when the moving party has shown that there are no issues of material fact, and that all that is left is a question of law. Dade County Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 643 (Fla. 1999). It is well established that summary judgment should only be granted if the moving party demonstrates conclusively that no genuine issues exist as to any material fact, with all reasonable inferences drawn in favor of the opposing party. Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985). If the record reflects the existence of any issue of material fact, or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper. Pennco, Inc. v. Meritor Sav., 617 So. 2d 739, 739 (Fla. 2d DCA 1993).
Summary judgment is appropriate in response to affirmative defenses propounded by a defendant when a plaintiff’s affidavits eliminate those defenses. Pompano Paint Co. v. Pompano Beach Bank & Trust Co., 208 So. 2d 152, 153 (Fla. 4th DCA 1968). Conversely, when the plaintiff’s affidavits do not eliminate the defenses but still set forth a sufficient case based on the pleadings alone, a plaintiff is not entitled to summary judgment. Id.
In order for a plaintiff to obtain summary judgment where a defendant asserts affirmative defenses, a plaintiff must either disprove those defenses by evidence or establish their legal insufficiency. O’Neal v. Brady, 476 So. 2d 294 (Fla. 3d DCA 1985); Moseley v. Turrell, 354 So. 2d 121 (Fla. 3d DCA 1978); Johnson & Kirby, Inc. v. Citizens Nat. Bank, 338 So. 2d 905, 906 (Fla. 3d DCA 1976).
The record reflects that the Appellant filed an Affirmative Defense and an affidavit which averred that an Examination under Oath (“EUO”) was a condition precedent of the subject claim and that this condition had not been satisfied by the Appellee. The Appellant further averred that an EUO was scheduled and properly noticed to the Appellee and that Appellee failed to appear and unreasonably refused to attend such EUO.
In its motion for summary judgment, it is the movant’s burden to disprove this defense or establish its legal insufficiency. Moseley, 354 So. 2d at 121. The record reflects that Appellee’s motion for summary judgment did not state with particularity any such evidence or claim regarding the EUO no-show Affirmative Defense. The Appellee’s Motion for Summary Judgment failed to disprove the EUO no-show affirmative defense. Similarly, it did not establish the legal insufficiency of that defense. In consideration of the foregoing, it is found that the Appellee, as the moving party, failed to demonstrate conclusively that no genuine issues exist as to any material fact, specifically such that relate to the EUO no-show defense. Therefore, this Court holds that the trial court’s grant of Final Summary Judg-ment was improper.
REVERSED and REMANDED for further proceedings consistent with this opinion.
