17 Fla. L. Weekly Supp. 1012a
Online Reference: FLWSUPP 1710PONS
Insurance — Personal injury protection — Error to enter summary judgment for medical provider based on technical admissions where insurer responded to request for admissions prior to hearing on motion for summary judgment, and record is replete with evidence contradicting technical admissions
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Appellant, v. FLORIDA WELLNESS & REHAB, (a/a/o Maria Pons), Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Appeal No. 08-55203 (13). Case No. 09-08621 (11) consolidated. L.T. Case No. 07-05752 COCE (52). August 16, 2010. Counsel: Michael Niemand and Lara J. Edelstein, Office of General Counsel Trial Division, Miami. Joseph R. Dawson, Fort Lauderdale.
OPINION
(TUTER, Judge.) THIS CAUSE is before the Court, sitting in its appellate capacity upon the appeal by Appellant, UNITED AUTOMOBILE INSURANCE COMPANY (“UAIC”), of the lower court’s order on the Motion for Summary Judgment in favor of Appellee, FLORIDA WELLNESS & REHAB CENTER, a/a/o Maria Pons (“FWRC”).
On November 26, 2006, Maria Pons (the “Insured”) was involved in a motor vehicle accident in which she sustained injuries. As a result of the accident, the patient sought medical treatment from FWRC for which charges of $5,399.00 were incurred.
Following UAIC’s failure to pay for the charges, FWRC filed a Complaint against UAIC to recover Personal Injury Protection (PIP) benefits for the medical services rendered to the Insured. Along with the Complaint, FWRC also filed a Request for Admissions, Request for Production, and Interrogatories in which service was obtained on May 9, 2007.
Following UAIC’s Motion for Enlargement of Time to Respond to Plaintiff’s Complaint and Discovery filed on May 29, 2007, UAIC failed to set the motion for hearing and never received an order extending the time to respond to the complaint or discovery. The Response to Admissions was filed by UAIC on July 13, 2007, forty five (45) days after the Motion for Enlargement of Time. As a result, these matters were conclusively admitted by operation of Rule 1.370(b) of the Florida Rules of Civil Procedure on June 24, 2007.
On November 8, 2007, UAIC served an Offer of Judgment upon FWRC. On March 10, 2008, UAIC filed a Motion for Leave to File its Responses directed to the Plaintiff’s Request for Admissions. This motion was denied on April 2, 2008.
On April 2, 2008, FWRC filed a Motion for Final Summary Judgment and a hearing was held whereby UAIC argued that the responses were not timely filed due to an inadvertence while the case was being transferred to the handling firm. This motion also relied upon the deposition transcripts of Luana Ortega, Mark Cereceda, D.C. and Darwin Bone, as well as Appellee’s Technical Admissions.
On October 17, 2008, the trial court conducted a hearing and granted FWRC’s Motion for Final Summary Judgment and a Final Judgment was entered in favor of FWRC on October 20, 2008. The trial court held that “Defendant cannot contradict its admissions if the record is devoid of any substantial evidence that would otherwise contradict the admissions.” UAIC has timely filed this appeal.
Review of Summary Judgment
The standard of appellate review applicable to a trial court’s entry of summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla. 2000). Summary judgment is appropriate if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fla. R. Civ. P. 1.510(c).
The burden to prove the non-existence of genuine triable issues is on the moving party, and the burden is not shifted to the opposing party until the movant has successfully met his burden. Holl v. Talcott, 191 So.2d 40 (Fla. 1966). If the moving party meets this initial burden, then summary judgment is appropriate as a matter of law against the nonmoving party if they fail to make a showing sufficient to establish the existence of an essential element to that party’s case. Food Fair Stores of Florida v. Patty, 109 So.2d 5 (Fla. 1959); DeMesne v. Stephenson, 498 So.2d 673 (Fla. 1st DCA 1986). The evidence presented by the nonmoving party is to be believed and all reasonable inferences are to be drawn in his favor. Holl, 191 So.2d.
In the instant case, UAIC advances two points on appeal: (1) that the trial court erred in entering final summary judgment based on technical admissions where the record was replete with evidence to contradict the admissions, and (2) that the reversal of the underlying judgment in favor of FWRC requires reversal of the statutory fee award in its favor. Following a review of the record, this Court finds that trial court erred in entering final summary judgment based upon technical admissions.
Under Florida Rule of Civil Procedure 1.370, “the court may permit withdrawal or amendment (of a pretrial order) when the presentation of the merits of the action will be subserved by it and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining an action or defense on the merits . ..” Fla. R. Civ. P. 1.370(b) (2007).
There is also a liberal reading of the civil procedural rule allowing the court to relieve a party from the effect of a technical admission when it is not prejudicial to the party who obtained the admission, thereby allowing disposition on the merits. See Ramos v. Growing Together, Inc., 672 So.2d 103 (Fla. 4th DCA 1996). The use of admissions obtained through a technicality should not form the basis to preclude adjudication of a legitimate claim. Id. The Court in Sterling also held that, “while it is normally within the discretion of the trial court as to whether to grant relief . . . , we hold that the trial court should not have used the technically deemed admission to support a final summary judgment. Sterling v. City of West Palm Beach, 595 So.2d 284 (Fla. 4th DCA 1992).
The record in the instant case is replete with evidence contradicting the technical admissions. This is evident by the record evidence including the affidavits of Dr. Shulman and Nicole Bonaparte. Furthermore, UAIC’s Answer expressly denied that the bills were “reasonable, related or necessary,” thereby creating a genuine issue of material fact and precluding the granting of summary judgment.
FWRC relied on the case of Asset Management Consultants of Virginia, Inc. v. City of Tamarac, 913 So.2d 1179 (Fla. 4th DCA 2005). However, it is clearly distinguishable from the instant case. In Asset Management, the Court held that the trial court did not abuse its discretion in entering summary judgment based on technical admissions. Id. However, the court stressed that the lower court did not abuse its discretion as a result of appellant’s failure to file belated answers until after appellee’s motion for summary judgment was heard. Id. (emphasis added). In the instant case, and although a significant amount of time had lapsed, UAIC filed their response to FWRC’s request for admissions well before the hearing on the motion for summary judgment, eliminating the prejudice that was found in Asset Management.
FWRC also relied on the case of Farish in the April 2, 2008 hearing. Farish v. Lum’s, Inc., 267 So.2d 325 (Fla. 1972). However, it is also distinguishable from the instant case as well. In Farish, the Florida Supreme Court held that “inadvertence” was insufficient to excuse a failure to properly respond to a request for admissions. Farish, 267 So.2d. However, in Farish, the record was devoid of any evidence contradicting the technical admissions. Therefore, Farish does not apply to the instant case as the record, in the instant case, is replete with evidence contradicting the technical admissions.
Although we cannot condone counsel’s failure to comply with discovery procedures in a timely manner, we cannot approve the entry of a final judgment for such failure whereby the record is replete with evidence contradicting the technical admissions.
Finally, the award of attorney’s fees and costs pursuant to section 627.428 of Florida Statutes is predicated upon entry of judgment in favor of the insured. §627.428(1), Fla. Stat. (1982); see also Hart v. Bankers Fire & Casualty Insurance Company, 320 So.2d 485 (Fla. 4th DCA 1975). Reversal of the underlying judgment in this case, therefore, mandates reversal of the statutory fee award.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the trial court’s Final Judgment is VACATED and REMANDED for further proceedings.
It is further ORDERED AND ADJUDGED that the Plaintiff’s Motion for Attorney’s Fees and Costs should await the outcome of the benefits appeal.
