15 Fla. L. Weekly Supp. 234a
Insurance — Personal injury protection — Summary judgment — Error to enter summary judgment in favor of medical provider based on determination that provider submitted medical records to insurer before filing suit where trial court relied on affidavit and deposition of provider’s billing clerk although documents were not timely filed and served, court rejected evidence that there was genuine issue of material fact on timely delivery of records, and court applied “more likely than not” standard rather than “undisputed facts and legal entitlement” standard
PROGRESSIVE EXPRESS INSURANCE COMPANY, Appellant, v. STEVEN D. GELBARD, M.D., P.A., (a/a/o Graciela Miceli), Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. CA CE 06-965 (13). November 29, 2007. Counsel: Nancy W. Gregoire. Stuart B. Yanofsky.
(Moe, J.) Progressive Express Insurance Company (“PEIC”) appeals the lower court’s December 20, 2005 Final Judgment entered against it on the basis of the “confession of judgment” doctrine.
This is a case involving section 627.736, Florida Statutes, the “PIP” statute, and the “confession of judgment” doctrine. The disputed issue that led to the final summary judgment in favor of Gelbard was whether he had submitted Ms. Miceli’s medical treatment records to PEIC before filing suit against it for failure to timely pay his bills under the PIP statute. Both parties moved for entry of summary judgment on the issue.
At the hearing on the motions, Gelbard relied on the affidavit and deposition of his billing clerk. PEIC relied on the affidavit of its litigation specialist. In granting Gelbard’s motion and denying that of PEIC, the lower court committed three errors. First, the court entertained the affidavit and deposition of Gelbard’s billing clerk although they were not filed and served in compliance with the time frames of Florida Rule of Civil Procedure 1.510. Second, the court rejected evidence that there was a genuine issue of material fact on Gelbard’s timely delivery of the medical records. Third, the court applied a “more likely than not” standard in entering summary judgment rather than the “undisputed facts and legal entitlement” standard required by Florida law.
Because of the errors, the Court reverses the Final Judgment and remands this case to the lower court for further proceedings. The Court does not preclude further summary judgment proceedings but finds that on the present record summary judgment for either party is unavailable.
