16 Fla. L. Weekly Supp. 140b

Online Reference: FLWSUPP 162ALVAR

Civil procedure — Insurance — Summary judgment — Error to fail to consider opposing affidavit when deciding issues related to damages on motion for summary judgment

ANDRE ALVAREZ, Appellant/Defendant, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., a/s/o DEENESH MAHARAJ and DEENESH MAHARAJ, individually, Appellees/Plaintiffs. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 07-561 AP. L.T. Case No. 05-4258 CC 05. December 16, 2008. On appeal from a decision by the County Court in and for Miami-Dade County. Counsel: Larry R. Fleurantin, for Appellant. Samuel Bookhardt, for Appellee.

(Before: RONALD M. FRIEDMAN, DAVID C. MILLER, and SARAH I. ZABEL, JJ.)

(PER CURIAM.) The trial court failed to consider the affidavit filed by Defendant when it decided issues concerning damages which are inherently a part of this case and that was an abuse of discretion. As set forth in National Airlines, Inc. v. Florida Equipment Co., 71 So. 2d 741, 744 (Fla. 1954), ultimate facts must be relied on to grant a summary judgment. “The function of the rule authorizing summary judgments is to avoid the expense and delay of trials when all facts are admitted or when a party is unable to support by any competent evidence a contention of fact.” Id. (emphasis supplied). By not allowing the admission of Defendant’s affidavit, the trial court excluded competent evidence by which ultimate facts could be inferred and determined in this case.

REVERSED and REMANDED.