14 Fla. L. Weekly Supp. 827a
Insurance — Personal injury protection — Summary judgment — Opposing affidavit — Defects — Insurer should have been permitted to correct technical deficiency in affidavit stating information was true to best of affiant’s knowledge prior to entry of summary judgment against insurer
UNITED AUTOMOBILE INSURANCE COMPANY, Appellee, vs. FLORIDA OPEN MRI, INC., D/B/A/ FLORIDA MRI, Appellant. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 06-8474 (25). L.T. Case No. 05-8965 (55). July 9, 2007. Counsel: Steven Lander, Lander & Goldman, Ft. Lauderdale. Steven M. Goldsmith, Boca Raton. Michael Neimand, Office of General Counsel, Coral Gables.
ORDER
(CAROL-LISA PHILLIPS, J.) THIS CAUSE is before the Court on appeal from Broward County Court. This Court, having reviewed the parties’ briefs, having reviewed the record, and being otherwise fully advised in the premises, hereby finds and decides:
On May 2, 2006, the Assignee filed a motion for summary judgment as to the last remaining issues in the case, namely the reasonableness, relatedness and necessity of the medical treatment provided. During the following hearing, the trial court struck the affidavit of the doctor as technically deficient and granted the Assignee’s motion for partial summary judgment. The affidavit, provided by Dr. Marifisi, the independent medical examination physician, stated that “I declare under the penalties of perjury that the information contained within the comment was prepared by and is the work product of the undersigned and is true to the best of my knowledge and information.” The lower court entered a final judgment on June 6, 2006, which the appellant now appeals and argues that the trial court should not have allowed an opportunity to cure this defect. This Court agrees.
In reviewing a summary judgment, the standard of review is de novo, which requires this Court to view the evidence in a light most favorable to the non-moving party. Sierra v. Shevin,767 So.2d 524, 525 (Fla. 3d DCA 2000). To determine whether summary judgment was properly granted, this Court must determine whether there is a genuine issue of material fact and whether the trial court correctly applied the rule of law. Volusia County v. Aberdeen at Ormond Beach, L.P.,760 So.2d 126, 130 (Fla. 2000).
The affidavit provided by the Appellee was insufficient to satisfy Fla. R. Civ. P. 1.510(e), which requires that “[s]upporting and opposing affidavits shall be made on personal knowledge . . . .” see also Castro v. Brazeau, 873 So.2d 516, 517 (Fla. 4th DCA 2004). However, “summary judgment should not be granted because of technical deficiencies in the non-movant’s affidavit. The deficiency . . . is correctable, and appellants should have been permitted to make the correction.” McCoy v. Hoffmeister,435 So.2d 989, 990 (Fla. 5th DCA 1983). See also Holl v. Talcott, 191 So.2d 40 (Fla. 1996).
It is hereby:
ORDERED AND ADJUDGED that the Order under review is REVERSED and the cause REMANDED for further proceedings consistent herewith.
