17 Fla. L. Weekly Supp. 990a
Online Reference: FLWSUPP 1710CARU
Insurance — Personal injury protection — Summary judgment — Peer review report — No merit to claim that medical records referenced in peer review affidavit were not authenticated where insured provided records to insurer during discovery and relied on same records to present her claim — Where affidavit that corrected all technical deficiencies in original stricken affidavit was attached to insurer’s motion for reconsideration of order granting summary judgment, judgment in favor of insured is reversed and case is remanded for consideration on merits — Motion for entry of mandate or order directing clerk to return file to lower court denied
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. ANGELA CARUSO, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-387 AP. L.T. Case No. 06-00972-CC-25. March 8, 2010. Order on Motion for Entry of Mandate, July 23, 2010. An Appeal from the County Court for Miami-Dade County, Florida Judge Andrew S. Hague. Counsel: Michael J. Neimand and Thomas L. Hunker, for Appellant. Marlene S. Reiss, for Appellee.
(Before FRIEDMAN, GERSTEIN, & ELY, JJ.)
The appellant, United Automobile Insurance Company, appealed the entry of a summary judgment in favor of the appellee, Angela Caruso.
The appellee, who was the insured, filed her complaint for PIP benefits, and filed a motion for summary judgment. The tortuous progress of the case is irrelevant. Eventually, United opposed appellee’s motion with an affidavit from Dr. Richard Glatzer. The affidavit made reference to his review of medical records of the insured appellee. The appellee herself had provided the records during discovery to the insurer, and relied on them to present her PIP claim, therefore, appellee’s claim that the records were not authenticated is without merit.
The appellant next argued that the Dr.’s affidavit did not comply with all the requirements of the PIP statute. The Court below struck Dr. Glatzer’s affidavit. After it granted the motion for summary judgment, United Automobile Insurance Company filed a motion for reconsideration, with an affidavit which corrected all the technical deficiencies of the original affidavit.
The judgment in favor of appellee is reversed for considerations on the merits of the case. This Court also grants appellee’s motion for attorneys’ fees and costs, to be determined by the lower court.
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ORDER DENYING MOTION FOR ENTRY OF MANDATE OR DIRECTING CLERK TO RETURN FILE TO LOWER COURT
(LEBAN, Judge.) THIS CAUSE having come before the Court on APPELLEE’S MOTION FOR ENTRY OF MANDATE, OR IN THE ALTERNATIVE ORDER DIRECTING CLERK TO RETURN FILE TO LOWER COURT, and the Court, having reviewed the files and record in this cause and made inquiry of the Clerk of the Appellate Division, hereby finds and concludes as follows:
While Appellee correctly observes that the mandate in this cause has not yet been entered and, accordingly, the Clerk of the Appellate Division has not yet returned the file in this cause to the lower court and, apparently for that reason the lower court will not set this cause for trial pursuant to the opinion of this Court dated March 8, 2010, Appellee neglects to recite in her MOTION that the reason for the failure of a mandate to be issued is that there is presently pending a motion for hearing with respect to the lower tribunal’s reward of attorneys’ fees and costs which award appears to have been entered in error by the appellate panel. Upon adjudication of the pending rehearing motion, the mandate will undoubtedly issue, and the Clerk of the Appellate Division will, in due course, return the file to the lower tribunal for proceedings consistent with the panel’s resolution of this appeal.
The undersigned Administrative Judge of the Appellate Division takes this occasion to politely advise counsel that is it not the undersigned’s function, nor authority for that matter, to “micro-manage” when, how, or what to rule on regarding pending rehearing motions. If counsel is of the view that any of the eighty (80) circuit judges, or clerks of court, are dilatory in performing what counsel may deem as ministerial functions, counsel may resort to the remedy of a Petition for Writ of Mandamus, which the undersigned need not remind counsel, may be filed in the District Court of Appeal of Florida for the Third District.
Accordingly, Appellee’s motion be and the same is hereby, most respectfully, DENIED, without prejudice to seek any appropriate remedy it wishes in any other tribunal.
