17 Fla. L. Weekly Supp. 57a
Online Reference: FLWSUPP 1701GARC
Insurance — Personal injury protection — Summary judgment — Medical provider’s motion for summary judgment is granted where evidence attached to motion establishes prima facie case, insurer’s opposing affidavit was technically and materially deficient, and insurer has not produced amended or corrected affidavit despite being given an extension of time to do so
MARUCCI WELLNESS CENTER, LLC (a/a/o Jennifer Garcia), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 08-19023 COCE (53). November 3, 2009. Robert W. Lee, Judge. Counsel: Cris E. Boyar, Margate, for Plaintiff. Fesner Petion, Miami, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court on October 21, 2009 for hearing of the Plaintiff’s Motion for Summary Judgment, and the Court’s having reviewed the Motion, the entire Court file, and the relevant legal authorities; having heard argument; having made a thorough review of the matters filed of record; and having been sufficiently advised in the premises, the Court finds as follows:
Background. On September 11, 2009, the Plaintiff served its Motion for Summary Judgment. The Court set the matter for hearing for October 21, 2009. Prior to the hearing, the Defendant timely served the purported affidavit of Bradley Simon, D.C., in an effort to contravene the Plaintiff’s Motion as to treatment after March 3, 2004.
The “summary judgment evidence” attached to Plaintiff’s Motion established a prima facie case for summary judgment. The “affidavit” which was filed in an attempt to contravene the Plaintiff’s prima facie case was, however, technically and materially deficient under rule 1.510(e). See United Automobile Ins. Co. v. Damadian MRI in Pompano, P.A., 13 Fla. L. Weekly Supp. 244 (17th Cir. Ct. 2005) (appellate capacity); United Automobile Ins. Co. v. Weschel Pain & Rehab Centre, Inc., 12 Fla. L. Weekly Supp. 1035 (17th Cir. Ct. 2005) (appellate capacity). As a result, the Court exercised its discretion to give the Defendant an extension of time of ten (10) days to produce an amended or corrected affidavit to the Court in chambers.1 The Defendant did not do so. As a result, the Court declines to consider the deficient affidavit of Bradley Simon, D.C. See United Automobile Ins. Co. v. Broward Rehab Center, Inc., 15 Fla. L. Weekly Supp. 232 (17th Cir. Ct. 2007) (appellate capacity) (technically deficient affidavit should only be disregarded if the party has first been provided an opportunity to correct the deficiency). Accordingly, it is hereby
ORDERED and ADJUDGED that the Plaintiff’s Motion for Summary Judgment is GRANTED. The Plaintiff shall submit a proposed final judgment conforming to the terms of this Order.
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1At some point, the Court’s exercise of discretion in favor of granting extensions to correct technical deficiencies will wane. This is at least the SIXTH time in the past two years that the Court has had to hold rulings and grant extensions for this SAME PARTY to correct affidavits to comply with Rule 1.510. See MRI Scan Center, Inc. v. United Automobile Ins. Co., 15 Fla. L. Weekly Supp. 743a, Case No. 04-236 COCE 53 (hearing held 2008); NDNC Neurological Treatment Centers, Inc. v. United Automobile Ins. Co., 16 Fla. L. Weekly Supp. 199b, Case No. 06-19689 (hearing held 2008); MRI Scan Center, Inc. v. United Automobile Ins. Co., Case No. 04-244 COCE 53 (hearing held March 13, 2008); Advanced Chiropractic and Rehabilitation Center Corp. v. United Automobile Ins. Co., Case No. 06-9127 COCE 53 (hearing held March 10, 2008).
