15 Fla. L. Weekly Supp. 563a
Insurance — Personal injury protection — Summary judgment — Factual issues — Where summary judgment motion and supporting affidavits failed to address insurer’s affirmative defenses, trial court had discretion to enter partial summary judgment as to whether medical bills were reasonable, related and necessary but not to enter summary judgment as to affirmative defenses
UNITED AUTOMOBILE INSURANCE CO., Appellant, vs. RAMIRO LOPEZ, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 06-426 AP. L.C. Case No. 04-19971 CC 05. April 10, 2008. An appeal from the County Court for Miami-Dade County, Teretha Lundy Thomas, Judge. Counsel: Lara Edelstein, United Automobile Insurance Company, for Appellant. Mark J. Feldman, for Appellee.
(Before MARIA M. KORVICK, MARGARITA ESQUIROZ, and BERNARD S. SHAPIRO, JJ.)
(SHAPIRO, J.) This is an appeal of the lower court’s entry of summary judgment in favor of Ramiro Lopez, the insured and appellee. Mr. Lopez filed a complaint for personal injury protection benefits following his involvement in a motor vehicle accident. The appellant, United Auto, filed an answer and affirmative defenses. Thereafter, Mr. Lopez filed a motion for summary judgment. The lower court granted the motion finding that Mr. Lopez’s medical bills were reasonable, related and necessary. In this appeal, United Auto concedes that the trial court had the discretion to enter a partial summary judgment as to the reasonableness, relatedness and necessity of Mr. Lopez’s medical bills. We agree and affirm as to that issue. United Auto’s sole argument on appeal concerns the fact that Mr. Lopez’s summary judgment motion failed to disprove affirmative defenses two and three and/or establish their legal insufficiency.
The standard of review for summary judgment is de novo and requires this court to view the evidence in the light most favorable to the non-moving party. Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000). Summary judgment is proper if there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000).
It is well settled that where a defendant asserts an affirmative defense, in order to succeed on a motion for summary judgment, the plaintiff must either disprove those defenses or establish their legal insufficiency. Martin County v. Edenfield, 609 So. 2d 27, 29 (Fla. 1992); Haven Fed. Sav. & Loan Ass’n v. Kirian, 579 So. 2d 730, 733 (Fla. 1991); O’Neal v. Brady, 476 So. 2d 294 (Fla. 3d DCA 1985). Here, Mr. Lopez’s summary judgment motion and supporting affidavits failed to even address United Auto’s affirmative defenses two and three much less disprove them or establish their insufficiency. As such, the trial court erred in granting the motion.
We affirm as to the trial court’s ruling on the reasonableness, relatedness and necessity of Mr. Lopez’s medical bills. This case is reversed, however, on the issue of Mr. Lopez’s failure to disprove United Auto’s affirmative defenses or establish their legal insufficiency.
AFFIRMED IN PART and REVERSED IN PART. REMANDED for proceedings consistent with this opinion. (KORVICK and ESQUIROZ, JJ., concur.)
