15 Fla. L. Weekly Supp. 1122b
Insurance — Personal injury protection — Motion to continue trial and strike from trial docket, on ground that discovery was incomplete when insurer noticed case for trial, is denied where pleadings are complete and, as matter of law, action is at issue and ready for trial
DIAGNOSTIC CLINICAL IMAGING, INC., Plaintiff, vs. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County, Civil Division. Case No. 502006SC010738, Division RB. September 16, 2008. Ted Booras, Judge.
ORDER
THIS CAUSE came before the Court upon Plaintiff’s Motion to Continue Trial and Strike from the Trial Docket stating that the case is not at issue because of pending discovery issues.
A notice for trial is properly filed when the action is ready for trial. Sarasota Cattle Co. v. Mikos, 431 So.2d 260 (Fla. 2d DCA 1983), aff’d, 453 So.2d 402 (Fla. 1984). Whether the case is at issue and ripe to be set for trial depends on the status of pleadings and not the status of motions or discovery. Globe Life v. Preferred Risk, 539 So.2d 1192 (Fla. 1st DCA 1989); Kubera v. Fisher, 483 So.2d 836 (Fla. 2d DCA 1986); and, Bennett v. Continental Chem., 492 So.2d 724 (Fla. 1st DCA 1986). In Bennett, the First District pointed out that the terms “at issue” and “ready for trial” are not synonymous. See also, Kubera v. Fisher, supra.
Therefore, after the pleadings are complete the case is at issue and may be set for trial. In Kubera, the Second District held that:
An action is ready for trial, or is “at issue,” after any motions directed to the last pleading have been disposed of, or, if no motions have been served, twenty days after service of the last pleading.
Id. at 838.
In the instant case, Plaintiff has moved for a trial continuance of this two year old small claims action because “discovery was incomplete” at the time Defendant noticed the case for trial. Plaintiff further states that they have served a request for production and expert witness interrogatories, and “additional depositions may become necessary”. The Court finds that the pleadings are complete and as a matter of law this action is at issue and ready for trial.
IT IS THEREFORE ORDERED AND ADJUDGED that Plaintiff’s Motion to Continue and Strike from the Trial Docket is hereby DENIED.
