16 Fla. L. Weekly Supp. 212a
Online Reference: FLWSUPP 163FINAL
Insurance — Personal injury protection — Continuance — Denial — Error to deny motion for continuance of hearing on motion for summary judgment to allow medical provider to complete discovery and file deposition transcripts in opposition to summary judgment
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. LEYDA FINALE, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 07-012 AP. L.C. Case No. 06-13935 SP 05 (04). June 27, 2008. On appeal from the County Court, Miami-Dade County, Catherine Pooler, Judge. Counsel: Lara J. Edelstein, United Automobile Insurance Company, Office of General Counsel, Miami, for Appellant. Mark J. Feldman, Mark J. Feldman, P.A., for Appellee.
(Before COHEN, DIAZ, and SAYFIE, JJ.)
(SAYFIE, Judge.) This is an appeal of a summary judgment order entered by the County Court in Miami-Dade County. On September 1, 2006, the Appellee-insured, Leyda Finale, (“Finale”) filed a breach of contract suit against the Appellant, United Automobile Insurance Company (“United Auto”), for failure to submit payment on a Personal Injury Protection (“PIP”) claim. United Auto responded by submitting its ‘Answer and Affirmative Defenses.’ For its affirmative defenses, it stated that the medical bills were not reasonable, related or necessary and that the medical providers failed to provide the proper disclosure and acknowledgement forms as required by section 627.736, Florida Statutes.
On October 30, 2006 Appellee filed a Motion for Summary Judgment and set it for hearing on December 5, 2006. On November 8, 2006, the Appellant filed its Motion to Continue Hearing on Plaintiff’s Motion for Summary Judgment. In its motion, United Auto argued that the hearing on Finale’s summary judgment motion was unilaterally set without consultation and that counsel for the Appellant was unavailable for the hearing date, and that Appellant did not have ample time to conduct discovery. Appellant was unable to secure a hearing date prior to the December 5th date. Appellant’s counsel contacted counsel for the Appellee requesting that the hearing be rescheduled and requesting dates to depose three witnesses. On November 14, 2006, Appellant mailed a letter to the trial court requesting an emergency hearing on the Motion to Continue.
Hearing nothing from the Appellee or the Trial Court, Appellant filed its Response in Opposition to Plaintiff’s Motion for Summary Final Judgment. In its motion, Appellant argued, in relevant part, that the Motion for Summary Judgment was premature and should be denied because discovery was not yet complete. On or about December 4, 2006, Appellant took the deposition of witness and treating physician, Dr. Victor De Pina.
At the hearing on December 5, 2006, the parties learned that the Court had in fact previously granted the Appellant’s Motion to Continue. However, because the parties were all present the Court chose to proceed with the hearing over the objection of the Appellant.
The Trial Court granted the Appellee’s Motion for Summary Judgment and Final Summary Judgment for Plaintiff [Finale] was entered. Appellant filed an Emergency Motion for Rehearing on Plaintiff’s Motion for Summary Final Judgment and Defendant’s Motion to Vacate Order on Final Summary Judgment for Plaintiff and Memorandum of Law which was denied by the Trial Court. Subsequently, this appeal ensued.
The standard of review for the denial of a motion for continuance is abuse of discretion. Taylor v. Mazda Motor of Am., Inc., 934 So. 2d 518 (Fla. 3d DCA 2005). The standard of review for a lower court’s summary judgment order is de novo.1 Mem’l Hosp. — West Volusia, Inc. v. News-Journal Corp., 927 So. 2d 961, 965 (Fla. 5th DCA 2006).
Appellant argues that it was entitled to a continuance on the motion for summary judgment in order to obtain and file the deposition of Finale’s treating physician in order to create a genuine issue of material fact. Finale’s treating physician was deposed the day before the scheduled Motion for Summary Judgment hearing.
It is undisputed that the Trial Court had already granted the emergency motion for continuance and that the parties appeared at the hearing because neither side was aware that the motion had been granted. We see no reason why the Trial Court should not have affirmed that order at the December 5, 2006 hearing. The circumstances warranting a continuance had not changed and the Appellant was still moving for the continuance. Moreover, we note that Appellee’s Motion for Summary Judgment was filed less than two months after the complaint was filed. In most cases two months does not afford even a seasoned civil litigator the opportunity to adequately conduct discovery. Florida case law is well settled that “parties to a lawsuit are entitled to discovery as provided in the Florida Rules of Civil Procedure including the taking of depositions, and it is reversible error to enter summary judgment when discovery is in progress and the deposition of a party is pending.” Smith v. Smith, 734 So. 2d 1132 (Fla. 5th DCA 1999). This was not a situation where either side was delaying discovery. In fact, one deposition, the treating physician’s, had already been taken. At the very least, Appellant should have been granted a brief continuance to afford counsel the opportunity to file the deposition.
Therefore, we reverse the trial court’s order denying the motion for continuance, to permit Appellant to complete discovery and file deposition transcript(s) in support of its opposition to the Summary Judgment motion.
Because we reverse on the motion for continuance, we need not consider the merits of the summary judgment ruling.
FOR THESE REASONS, the order entering summary judgment in favor of the Appellee is REVERSED, and this cause is REMANDED to the trial court for further proceedings consistent with this opinion. (COHEN, DIAZ, JJ. concur.)
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1De novo review simply means the appellate court is free to decide the question of law, without deference to the trial judge, as if the appellate court had been deciding the question in the first instance. See Philip J. Padovano, Florida Appellate Practice, Vol. 2, § 9.4, 129 (2006 ed., West 2005).
