15 Fla. L. Weekly Supp. 908b
Insurance — Personal injury protection — Summary judgment is granted in favor of medical provider where affidavit of physician is sufficient to establish that fees charged were reasonable and necessary — No merit to argument that summary judgment cannot be granted due to insufficient discovery where insurer failed to request continuance or file and schedule a motion to compel discovery, and insurer did not raise argument until amended motion for summary judgment was filed
SPINE & REHAB MEDICINE, P.A. (As assignee of Melissa Fernandez), Plaintiff, vs. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 5th Judicial Circuit in and for Hernando County. Case No. H-27-SP-2007-632. June 24, 2008. Donald E. Scaglione, Judge. Counsel: Nicholas & Patrick, P.A., Tampa, for Plaintiff. Adams & Diaco, P.A., for Defendant.
ORDER ON SUMMARY JUDGMENT
THIS MATTER having come before the Court on the Plaintiff’s Motion for Summary Judgment on Tuesday, June 17, 2008 at 3:00 and the Court having reviewed the file, received argument of counsel and reviewed case law finds
1. Complaint was filed April 30, 2007.
2. Defendant was served May 10, 2007.
3. Defendant’s answer was filed July 18, 2007.
4. The file reflects ongoing discovery.
5. Plaintiff scheduled a Summary Judgment Motion on May 28, 2008. It was cancelled.
6. Plaintiff rescheduled Motion for Summary Judgment for June 17, 2008.
7. Defendant filed evidence and objection to Plaintiff’s Motion for Summary Judgment on June 16, 2008. (Certificate dated June 13, 2008)
8. The Court notes that Defendant never filed any motions to compel discovery nor objections to Plaintiff’s discovery until the Plaintiff’s Summary Judgment Hearing of June 17, 2008.
Wherefore, the Court has reviewed the Plaintiff’s Amended Motion for Summary Judgment and finds
9. The Affidavit of Dr. Kulkarni is sufficient. (Note the Honorable Judge Kurt Hitzemann has previously ruled on the same affidavit/different cases and has found the affidavit format to be sufficient).
10. The fees are reasonable and necessary.
11. See Spine & Rehab v. Dairyland Insurance, 14 Fla. L. Weekly Supp. 504 H-27-SP-2006-255 (March 25, 2007)
Spine & Rehab v. Dairyland Insurance, 14 Fla. L. Weekly Supp. 504 H-27-SP-2006-270 (March 23, 2007)
Spine & Rehab v. Progressive Select, 15 Fla. L. Weekly Supp. 85 H-27-SP-2007-610 (October 25, 2007)
12. Plaintiff’s issue as to time of opposing affidavit filing is moot due to further ruling of the Court, but the Court notes that the Defendant could have/should have filed their affidavit more timely.
13. Defendant contends that the Plaintiff’s Summary Judgment cannot be Granted due to insufficient discovery, but the Court notes that the Defendant failed to motion for continuance, nor did the Defendant ever file and schedule a motion to compel. The court acknowledges that the Defendant is aware of the procedure due to this Court granting (2) two motions to compel and awarding sanction to the Defendant on (2) two other Spine & Rehab v. Progressive cases on June 13, 2008 (see H-27-SP-2007-631 and H-27-SP-2007-2135)
See also Building Educ. Corp. v. Ocean Bank, 33 Fla. L. Weekly D987
14. The Court notes the age of this case and discovery issues in the file, yet the Defendant never alleged insufficient discovery until Plaintiff’s Amended Motion for Summary Judgment. Defendant did not move for a continuance. Leviton v. Philly Steak-Out, Inc., 533 So.2d 905 (3rd 1988)
15. The Court also notes the Plaintiff’s Notice of Filing dated June 8, 2008 and finds all the case law listed persuasive and accepts each case proposition.
Wherefore, the Court GRANTS the Plaintiff’s Amended Motion for Summary Judgment.
