17 Fla. L. Weekly Supp. 94b
Online Reference: FLWSUPP 1702DONE
Insurance — Personal injury protection — Summary judgment — Opposing affidavit — Where trial court entered summary judgment in favor of medical provider upon finding that affidavit of physician who conducted independent medical examination was defective, and appellate court held that insurer should have been allowed to correct technical deficiencies in affidavit and instructed trial court to consider affidavit, trial court erred in deviating from appellate mandate by not considering amended affidavit because it found insurer failed to provide notice of intent to rely on affidavit in opposition to motion for summary judgment
UNITED AUTOMOBILE INSURANCE COMPANY, A Florida Corporation, Appellant, v. FLORIDA OPEN MRI, INC. D/B/A FLORIDA MRI a/a/o RICHARDSON DONET, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 08-5115 CACE 18. L.T. Case No. 05-8965 COCE 55. November 17, 2009. Counsel: Office of the General Counsel, United Automobile Insurance Company, Miami. Steven M. Goldsmith, Boca Raton.
OPINION OF THE COURT
(JOHN T. LUZZO, J.) THIS CAUSE comes before the Court, sitting in appellate capacity, upon Appellant’s timely appeal of the trial court’s order granting Plaintiff’s/Appellee’s motion for partial summary judgment as to reasonableness, relatedness, and necessity. Having considered the briefs of both parties, the trial court record, and applicable law, this Court finds as follows:
Richardson Donet, the insured, was involved in an automobile accident on October 13, 2004, sustained bodily injuries as a result of the accident, and sought medical treatment from the Appellee, Florida Open MRI, Inc. The Appellee sought payment for the treatment from the Appellant/Insurer, United Automobile Insurance Company. The Appellant failed to pay the Appellee and therefore, the Appellee filed a lawsuit against Appellant to recover payments for medical benefits in accordance with a personal injury protection (“PIP”) insurance policy.
At trial, the Appellee filed a motion for partial summary judgment on the basis that the affidavit of Dr. Marfisi’s independent medical examination was defective. The trial court granted the motion for partial summary judgment and thereafter the Appellant amended the affidavit and filed for reconsideration, which was denied and final judgment entered. The Appellant appealed the trial court’s decision and the appellate court reversed the summary judgment and remanded to the trial court for further proceedings finding that the affidavit was technically deficient and that the trial court should have allowed appellant to correct the deficiency.
Appellant amended and re-filed affidavit of Dr. Marfisi in accordance with the appellate order. On November 20, 2007, the trial court re-heard the Appellee’s motion for partial summary judgment. At the hearing, Appellee argued that Appellant did not meet the notice requirements of Fla. R. Civ. P. 1.510(c) since Appellant did not specifically state, in its notice, the intent to rely on the affidavit of Dr. Marfisi in opposition to the motion for summary judgment. Appellant, however, argued that there was a mandate from the appellate court on this matter, directing the trial court to consider the affidavit of Dr. Marfisi, and that this order is the law of the case which the trial court cannot deviate from.
The trial court found that Appellant’s notice did not comply with Fla. R. Civ. P. 1.510(c), therefore Appellant had no evidence in opposition of Appellee’s motion for partial summary judgment. The trial court accordingly granted the motion for partial summary judgment.
In its initial brief, Appellant claims that the trial court erred in granting Appellee’s motion for partial summary judgment, where there was a mandate from appellate court requiring the trial court to consider Dr. Marfisi’s affidavit in opposition to the motion for summary judgment. The standard of review for a trial court’s ruling on a motion for summary judgment is de novo review. The Florida Bar v. Green, 926 So. 2d 1195, 1200 (Fla. 2006).
During the initial hearing regarding the motion for partial summary judgment, it was recognized by both parties that Appellant filed the affidavit of Dr. Marfisi in opposition to the motion for summary judgment. The appellate court then held that “summary judgment should not be granted because of technical deficiencies in the non-movant’s party. The deficiency. . .is correctable, and appellants should have been permitted to make the correction.” United Auto. Ins. Co. v. Florida Open MRI, Inc., d/b/a Florida MRI, 14 Fla. L. Weekly Supp. 827a (Fla. 17th Cir. Ct. 2007)(citing McCoy v. Hoffmeister, 435 So. 2d 989, 990 (Fla. 5th DCA 1983). Upon remand, and in accordance with the appellate order, Appellant amended the affidavit fixing any technical deficiencies. It is well established in Florida law that “[a] trial court is without authority to alter or evade the mandate of an appellate court.” Blackhawk Heating & Plumbing Co. v. Data Lease Fin. Corp., 328 So. 2d 825, 827 (Fla. 1975). Appellee did not re-file the motion for summary judgment. This was a re-hearing of a previous motion, in which the trial court was instructed by the appellate court to consider the amended affidavit. Since it had already been established that the affidavit of Dr. Marfisi was filed in opposition to the motion for summary judgment, the trial court deviated from the appellate mandate and erred by not considering the affidavit upon remand.
Accordingly, it is
ORDERED AND ADJUDGED that the trial court’s order granting Appellee’s motion for partial summary judgment is hereby REVERSED and REMANDED for further proceedings consistent with this opinion.
