17 Fla. L. Weekly Supp. 877a

Online Reference: FLWSUPP 1710GENE

Insurance — Personal injury protection — Coverage — Where injured party claimed PIP benefits as a resident relative of the insured, and insurer obtained an affidavit from insured stating that on date of accident, claimant did not live with her and was not her relative, second affidavit in which insured contradicted her first affidavit was not sufficient to create genuine issue of material fact, particularly given insured’s statement in her deposition that she had not read her second affidavit and her concession, when pressed at deposition, that original affidavit was correct — No error in granting insurer’s motion for summary judgment

WEST SIDE CHIROPRACTIC, INC., A/A/O ROMANN GENEUS, Appellant, v. GEICO INDEMNITY COMPANY, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA1 08-12. L.C. Case No. 06-CC-6514. February 4, 2010. On Appeal from the County Court for Orange County, Antoinette Plogstedt, Judge. Counsel: Crystal L. Eiffert, Orlando, for Appellant. Deborah Cross, Orlando, for Appellee.

(Before BRONSON, LAUTEN and DAWSON, JJ.)

ORDER AFFIRMING FINAL SUMMARY JUDGMENT FOR GEICO INDEMNITY COMPANY

(PER CURIAM)

I. INTRODUCTION

Plaintiff/Appellant, West Side Chiropractic, as assignee of Roman Geneus (“Appellant” or “West Side”) appeals a final order of the County Court granting the motion for summary judgment of Defendant/Appellee, GEICO Indemnity Company (“Appellee” or “GEICO”). This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(c)(3). We dispense with oral argument, Fla. R. App. P. 9.320, and affirm.

II. FACTS

This is a PIP case.¹

Romann Geneus sustained injuries in a motor vehicle accident. He sought treatment from West Side to which he assigned his PIP benefits. West Side sought payment of its bills for treatment of Geneus under the PIP coverage of a policy issued by GEICO to Natacha Bacoup.² GEICO denied payment and West Side brought the instant action.

Geneus was not the named insured, was not owner of the accident vehicle, was not the named insured, was not the driver, was not a passenger and was not a pedestrian. He claimed PIP benefits as a resident relative of the insured, Bacoup. Geico denied that Genus was a resident relative of the insured and obtained an affidavit (“the first affidavit”) from Bacoup stating that on the date of the accident Geneus did not live with her and that Geneus was not her relative. This affidavit is dated September 26, 2006 and was forwarded to plaintiff’s counsel on October 2, 2006. On or about November 8, 2006, GEICO filed a motion for summary judgment. Appellant’s counsel then secured an affidavit (“the second affidavit”) from Bacoup stating that she retracted the first affidavit as “some of the contents were not completely accurate.” (Aff of Natacha McCoy Bacoup, Nov. 8, 2006).

Appellee’s summary judgment motion was apparently adjourned although the record does not indicate why. In any event, the parties conducted discovery including the deposition of Bacoup. At her deposition, Bacoup testified that the first affidavit was provided to her after speaking with GEICO’s counsel. She further testified that she read the affidavit and signed it even though it was false because she was “pissed” at Geneus because “he was trying to get money from [her].” (Bacoup dep. 32:12-13, Feb. 23, 2007.) While Bacoup swore in the second affidavit that Geneus lived with her (contrary to the first affidavit), she testified at her deposition that she “[didn’t] even know him from scratch.” (Bacoup dep. 32:12-13, Feb. 23, 2007.) Geneus’s (West Side’s???) attorney then contacted Bacoup and told her to come to her office and sign and affidavit which counsel had drafted. Bacoup did not read the second affidavit but signed it anyway. When asked directly which of the two affidavits was correct, Bacoup indicated the first one and when asked again she said that the second one was incorrect.

GEICO again moved for summary judgment and argued that Geneus was not a resident relative of Bacoup, the insured. This motion was filed in June of 2007. It was scheduled to be heard on November 16, 2007 but rescheduled for January 22, 2008. Appellant’s counsel did not file any opposition and did not show up for the hearing. On the hearing date, the trial court judge contacted Appellant’s attorney by phone. Counsel requested a continuance and her request was denied. The court below granted GEICO’s motion for summary judgment and found that 1) there were no material facts in dispute; 2) there was no record evidence that Geneus was a resident relative of Bacoup; and 3) Geneus maintained a separate residence from Natacha Bacoup at all times relevant in this matter. Thus, Geneus was not covered by the Bacoup policy with GEICO.

II. PARTIES’ ARGUMENTS

West Side contends, first, that the judge below should have granted its request for a continuance. Secondly, it argues that the second affidavit of Bacoup creates an issue of fact sufficient to defeat GEICO’s motion for summary judgment.

GEICO responds that the trial court did not abuse its broad discretion when it denied Appellant’s motion for a continuance. As to the merits, GEICO claims that, even if Bacoup’s second affidavit is considered, its summary judgment motion was properly granted.

III. DISCUSSION

West Side’s first argument is not without merit.

“Typically, it is more appropriate for the trial court to require the trial attorney to atone for his own sins rather than visit them upon the attorney’s unfortunate client.” Anthony v. Schmitt, 557 So. 2d 656, 662 (Fla. 2d DCA 1990) (citing Beasley v. Girten, 61 So. 2d 179 (Fla. 1952)).

Remanding this matter, however would be an ineffectual waste of time and resources. Appellant asks us to review Bacoup’s second affidavit and we have done so. “Our courts have consistently held ruled that a party who opposes summary judgment will not be permitted to alter the position of his or her previous pleadings, admissions, affidavits, depositions or testimony in order to defeat a summary judgment.” DeCosmo v. Fisher, 683 So. 2d 659, 600 (Fla. 5th DCA 1996). Simply contradicting oneself does not make for a genuine issue of material fact. Bacoup’s second affidavit was obviously drafted solely for the purpose of contradicting her first one. In addition, she performed poorly at her deposition. She admitted not reading her second affidavit or even paying attention to it when she went to her attorney’s office to sign it. Her second affidavit was conclusory in the extreme and offered no explanation for why she it diametrically contradicts her prior one. When pressed at deposition as to which was correct, she conceded that the original was.

While, in another case, it might have been better for the trial court judge to have granted a brief continuance, a remand here would be a waste of time and serve no purpose.³

WHEREFORE it is hereby ORDERED AND ADJUDGED that the Final Order granting the motion for summary judgment of Appellee, GEICO Indemnity Company, be and hereby is AFFIRMED.

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¹“PIP” is an acronym for “personal injury protection.” With limited exception, “each motor vehicle owner or registrant required to be licensed in Florida is required to carry a minimum amount of personal injury protection, or PIP insurance, for the benefit of the owner and other designees.” Warren v. State Farm Mut. Auto. Ins. Co., 899 So. 2d 1090, 1094 (Fla. 2005). These “other designees” include “residents residing in the same household” as the named insured. § 627.736(1), Fla. Stat. (2005). PIP coverage includes benefits for accident-related medical expenses, disability (lost wages) and death. § 627.736(1)(a),(b),(c), Fla. Stat. (2005).

²Ms. Bacoup is also known as Natacha McCoy. We will refer to her as Bacoup for consistency sake.

³As Appellant has not prevailed its motion for fees is, of course, denied.