17 Fla. L. Weekly Supp. 1062a
Online Reference: FLWSUPP 1711MCFA
Insurance — Personal injury protection — Summary judgment — Opposing affidavit — Abuse of discretion to refuse consideration of opposing affidavit attached to motion for rehearing following grant of summary judgment where affidavit would have raised genuine issue of material fact had it been filed and served concurrently with motion for summary judgment, and compelling and exigent circumstances explain late filing of affidavit — Such circumstances exist where insurer’s failure to attach affidavit to notice of filing affidavit in opposition to summary judgment was due to clerical error, and when medical provider was notified of missing affidavit, provider led insurer to believe that it did have affidavit
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. ADVANCE HEALTHCARE SERVICES, III, a/a/o MAUREEN MCFARLANE, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 09-136 & 09-366 AP. L.C. Case No. 07-006758 CC 26. September 17, 2010. An Appeal from the County Court for Miami-Dade County, Florida, Judge Gloria Gonzalez Meyer. Counsel: Thomas L. Hunker, for Appellant. Brigid F. Cech Samole, for Appellee.AMENDED OPINION[Original Opinion at 17 Fla. L. Weekly Supp. 987a]
(Before LEDERMAN, GLAZER, SAMPEDRO-IGLESIA, JJ.)
(PER CURIAM.) United Automobile Insurance Company (“United”) appeals from the final summary judgment entered in favor of Advance Health Services, III, Inc., (“Advance”), and the order denying its motion for rehearing. An abuse-of-discretion standard of review applies to a motion for rehearing filed pursuant to Florida Rule of Civil Procedure 1.530(b). Poulsen v. Lenzi, 869 So. 2d 658 (Fla. 4th DCA 2004). We find that the trial court abused its discretion in denying United’s motion for rehearing and reverse the trial court’s decision.
United issued an insurance policy to Maureen McFarlane for personal injury protection (“PIP”) benefits and medical expense coverage. The policy was in full effect when McFarlane sustained personal injuries in an automobile collision. McFarlane sought medical and chiropractic care for her injuries from Advance. She assigned her PIP benefits to Advance. When United failed to make payments to Advance for overdue medical bills relating to McFarlane’s medical assistance, Advance sued United for PIP benefits. Advance moved for summary judgment, arguing that its treatment to McFarlane was reasonable, related and necessary for injuries suffered by McFarlane in the automobile collision. An evidentiary hearing for Advance’s motion for summary judgment was set for February 11, 2009.
On February 5, 2009, United served and filed a “Notice of Filing Affidavit of Marvin J. Merrit, D.C.” in opposition to Advance’s motion. Attached to the notice was Dr. Merrit’s peer review report, his independent medical examination report, and medical bills and records from Advance. In essence, Dr. Merrit’s reports opined that many of the treatments billed by Advance were medically unnecessary, that the prices charged by Advance were unreasonable and excessive, and that further treatment of McFarlane would be unreasonable, unrelated and unnecessary because the patient was healed. However, a copy of Dr. Merrit’s affidavit was missing from the Notice of Filing.
At the February 11 hearing, Advance asserted that it was entitled to summary judgment because United failed to file the affidavit of Dr. Merrit. United argued that it must have inadvertently failed to attach it to the Notice of Filing, and requested a brief continuance to allow it to serve the affidavit. Advance objected to United’s request, arguing that the filing of the affidavit was untimely pursuant Florida Rule of Civil Procedure 1.510(c), which provides in relevant part:
“The adverse party shall identify, by notice mailed to the movant’s attorney at least 5 days prior to the day of the hearing, or delivered no later than 5:00 p.m. 2 business days prior to the day of the hearing, any summary judgment evidence on which the adverse party relies. To the extent such summary judgment evidence has not already been filed with the court, the adverse party shall serve copies on the movant by mailing them at least 5 days prior to the day of the hearing, or by delivering them to the movant’s attorney no later than 5:00 p.m. 2 business days prior to the day of the hearing.”
The Court agreed with Advance that Dr. Merrit’s affidavit was “supposed to be docketed 48 hours prior to the hearing in order for [him] to consider it” and denied United’s request for continuance and granted Advance’s motion for summary judgment.
Subsequently, United filed a motion for rehearing and reconsideration. In its motion, United explained that the affidavit had been inadvertently excluded from the Notice of Filing due to clerical error. With its motion, United included the affidavit of Dr. Merrit, asserting that there was no prejudice to Advance because Dr. Merrit’s affidavit mirrored the information contained in his independent medical examination and peer review reports, which were timely served and filed in United’s original Notice of Filing. The Court denied United’s motion for rehearing and entered final judgment in favor of Advance. This timely consolidated appeal follows.
Numerous courts have held that it is an abuse of discretion to refuse the consideration of an affidavit on rehearing following the grant of summary judgment, where the affidavit would have raised a genuine issue of material fact had it been filed and served concurrently with the opposing party’s motion for summary judgment. In Fernandes v. Boisvert, 659 So. 2d 412 (Fla. 2d DCA 1995), the trial court declined to consider an affidavit attached to a motion for rehearing, even though the affidavit would have raised an issue of material fact precluding summary judgment. The district court reversed, stating that it recognized the trial court’s broad discretion in matters of this kind, but that the trial court nonetheless abused its discretion in refusing to consider the affidavit and denying the motion for rehearing: “We are thus confronted with the question of whether the trial court abused its discretion in refusing to rescue Fernandes from the apparent incompetence of her lawyer. . . While we do not know the underlying reasons which compelled the attorney to pursue this matter in the way he did, it is apparent to us that something has gone awry.” Fernandes, 659 So. 2d at 413.
Similarly, in Fatherly v. California Federal Bank, FSB, 703 So. 2d 1101 (Fla. 2d DCA 1997), the trial court abused its discretion when it refused to consider Fatherly’s sworn allegations on rehearing of a summary judgment entered against her. In its order denying Fatherly’s motion for rehearing, the circuit court grounded its reasoning in Rule 1.510(c). It concluded that “[n]eglect by the defendant’s prior counsel in failing to timely file opposing affidavits. . . should not be considered as sufficient grounds for the granting of a rehearing under Rule 1.530.” Id. at 1103. In reversing the trial court’s decision, the district court disagreed that the neglect of Fatherly’s prior counsel should have had no bearing on the court’s consideration of Fatherly’s motion for rehearing. Instead, the district court held that the Rule did not serve to undermine the holdings of a majority of relevant cases, being that almost any evidence whether newly discovered or not, is sufficient to grant a motion for rehearing of a summary judgment, if in the discretion of the court, it presents a triable issue of fact: “Most assuredly, something has gone awry here. The allegations in Fatherly’s sworn motion for rehearing would defeat California Federal’s motion for summary judgment. . . We conclude that the circuit court abused its discretion in refusing to consider Fatherly’s sworn allegations on rehearing.” Id. at 1103. See also Kash N’ Karry Wholesale Supermarkets, Inc. v. Garcia, 221 So. 2d 786 (Fla. 2d DCA 1969).
The circumstances in the instant case are similar to those found in Fernandes and Fatherly, where “something has gone awry.” Analogously, this case involves the apparent negligent legal representation of the party opposing the summary judgment. United’s motion for rehearing included an affidavit from Dr. Merrit raising questions of material fact which, if true, would preclude summary judgment.
Advance argues that this Court is bound by the Florida Supreme Court’s decision in Coffman Realty, Inc. v. Tosohatchee Game Preserve, Inc., 413 So. 2d 1 (Fla. 1982), which held that a trial court does not abuse its discretion in refusing to consider a late affidavit. However, the trial court in Coffman did not even address the issue of whether an affidavit filed with a motion for rehearing should be considered, because in that case, there was no affidavit concurrently filed with the motion. In Coffman, the affidavits in question were filed eleven days after the hearing, in violation of Rule 1.510(c). Therefore, the issue of material fact was simply not examined in Coffman. The facts in Coffman areexpressly distinct from the instant facts in this respect. Dr. Merrit’s affidavit does pose a genuine issue of material fact, and thus, the holding in Coffman should not be applied here.
Moreover, in this case, it is clear that United’s failure to attach Dr. Merrit’s affidavit was an oversight and not a willful or flagrant act. Advance had notice that the affidavit may have been missing from the file due to United having served and filed a “Notice of Filing Affidavit of Marvin J. Merrit, D.C.” in opposition to Advance’s motion. “On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect . . .” Fla. R. Civ. P., Rule 1540(b). Florida courts have long recognized that this rule should be construed liberally.
This case is very fact specific. Obviously the rules of civil procedure were implemented for a reason and should be followed. Normally if an affidavit is not timely filed in accordance with the rules, it should not be considered. However, in this particular case, the record on appeal makes it abundantly clear that the Appellant, UAIC let the Appellee know of the missing affidavit and the Appellee’s response was that her file was complete. As fate would have it, the person covering the hearing was not privy to this conversation and was not aware of it, and that attorney simply requested a continuance without the specifics of the previous day’s conversation.
Thus in this particular case, not only was the Appellee totally on notice of the missing affidavit but the Appellant UAIC, was led to believe that they did have the affidavit only to have the Appellee then state at the hearing that they did not. The only equitable thing to do in this case was to have allowed the other side time to simply file its affidavit. Furthermore, in its motion for rehearing, the Appellant included affidavits attesting to these facts. Nothing in the record on appeal disputes that this is what occurred in this case. Thus, it was an abuse of discretion for the court not to have granted either a continuance and/or a motion for rehearing when it was timely filed.
Moreover, an affidavit is to be filed no later than 5:00 p.m., two (2) business days prior to the date of the hearing. Fla. R. Civ. P. 1.510, Goldstein v. Wortmann, 712 So. 2d 397 (4th DCA Fla. 1998). This opinion does not, in any way, alter that rule. However, in this particular case, the Notice of Filing affidavit was filed timely (regardless of the human error that it was omitted from the court file). The facts and circumstances laid out in this particular appeal are unique to this opinion. This opinion is not intended to curtail a trial judge’s inherent authority to refuse to consider an untimely affidavit. However, in the circumstances of this case, this opinion is what is appropriate.
Although the trial court has discretion to disregard an affidavit filed for the first time on rehearing, it is an abuse of discretion when it refuses to consider such an affidavit where compelling or exigent circumstances explain its late filing. Dalrymple v. Franzese and Mimi Products, Inc., 944 So. 2d 1240 (Fla. 4th DCA 2006) (citing Pangilinan v. Broward County, 914 So. 2D 1094, 1098 (Fla. 4th DCA 2005). Accordingly, we reverse denial of the motion for rehearing and remand for proceedings consistent with this opinion.
REVERSED and REMANDED. (LEDERMAN, GLAZER, SAMPEDRO-IGLESIA, JJ., CONCUR).
