18 Fla. L. Weekly Supp. 923a
Online Reference: FLWSUPP 1809MARC
Insurance — Personal injury protection — Coverage — Summary judgment — Factual issues — Error to enter summary judgment on issue of lack of coverage where record does not contain sufficient documentary evidence to support material facts upon which trial court’s legal conclusions are based
HALLANDALE OPEN MRI, LLC, A/A/O JEAN MARCELLUS, Appellant, v. UNITED AUTOMOBILE INSURANCE CORPORATION, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 09-65988 (12). July 15, 2011. Counsel: Russel Lazega, Law Office of Russel Lazega, P.A., North Miami, for Plaintiff. Michael Neimand, for Defendant.
OPINION
(GATES, Judge.) THIS CAUSE comes before this Court upon Appellant’s, Hallandale Open MRI, LLC, appeal of the November 10, 2009 Order granting Appellee’s Motion for Final Summary Judgment on the issue of lack of coverage and the subsequent November 12, 2009 Final Judgment in favor of Appellee. This Court, dispensing with oral argument, having considered the briefs, the transcripts of the August 17, 2009 hearing, the record on appeal, and otherwise being duly advised in the premises, hereby finds and decides as follows:
“The standard of review [on appeal] for an order granting summary judgment is de novo.” 5th Ave. Real Estate Dev., Inc. v. Aeacus Real Estate Ltd. P’ship, 876 So. 2d 1220, 1221 (Fla. 4th DCA 2004) [29 Fla. L. Weekly D1391a]. “Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a]; see also Hartford Ins. Co. of the Se. v. St. Mary’s Hosp., Inc., 771 So. 2d 1210 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D2523a]. “In reviewing a summary judgment, this court ‘must consider the evidence contained in the record, including any supporting affidavits, in the light most favorable to the non-moving party . . . and if the slightest doubt exists, the summary judgment must be reversed.’ ” 5th Ave., 876 So. 2d at 1221 (quoting Krol v. City of Orlando, 778 So. 2d 490, 492 (Fla. 5th DCA 2001) [26 Fla. L. Weekly D577a]).
A party moving for summary judgment, pursuant to Florida Rule of Civil Procedure 1.510, has the initial burden of showing that there exists no genuine issue of material fact. This burden can only be satisfied by submitting sworn testimony or verified documents. Examples of admissible documentary evidence can include admissions in pleadings, sworn deposition testimony, sworn interrogatory answers and admissions, and sworn affidavits. See Fla.R.Civ.P. 1.510(c) (“The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence ON FILE show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”) (emphasis added). Conclusions in pleadings are not sufficient. See Mack v. Commercial Indus. Park, Inc., 541 So. 2d 800 (Fla. 4th DCA 1989) (noting that a court may consider only the verified statements and documents provided in connection with the motion). Furthermore, a court commits reversible error, even in the absence of objection, if it considers testimony at a summary judgment hearing. See, e.g., Estate of Bain v. Bibolini, 711 So. 2d 92, 93 (Fla. 3d DCA 1998) [23 Fla. L. Weekly D993c]; Campbell-Settle Pressure Grouting & Gunite Co., Inc. v. David M. Abel Constr. Co., 395 So. 2d 247 (Fla. 3d DCA 1981) (reversing summary judgment where the trial judge considered oral testimony at summary judgment hearing, despite absence of objection below); see also Orange Lake Country Club, Inc. v. Levin, 645 So. 2d 60, 62 (Fla. 5th DCA 1994) (“oral testimony is inappropriate at a hearing on a motion for summary judgment,” as “[t]he determination of disputed material facts cannot be properly accomplished during a hearing for summary judgment.”).
In this case, this Court need not address the trial court’s legal conclusions concerning the application of Florida’s No-Fault Statute with regards to the claimaint’s PIP claim with Appellee, since this Court finds that Appellee failed to meet its initial burden of showing that there exists no disputed issues of material fact entitling it to summary judgment as a matter of law. A careful review of the record shows that the factual findings upon which the trial court issued its Order in favor or Appellee’s motion and which must be ascertained prior to addressing the parties’ legal arguments, are not supported by documentary evidence.1 For instance, material facts concerning Nadege Morel’s insurance policy with Appellee were testified to by counsel at the summary judgment hearing and not supported by a sworn affidavit or by the insurance policy itself. See generally Fla.R.Civ.P. 1.130(a) (“All bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading.”); see also DiSarro v. Mills, 711 So. 2d 1355, 1357 (Fla. 2d DCA 1998) (“Argument by counsel who is not under oath is not evidence.”), but see Campbell-Settle Pressure Grouting & Gunite Co., 395 So. 2d at 248. In fact, the trial court referenced the claimant’s deposition testimony in its order when explaining the material facts upon which its decision was based, yet the appellate record does not contain that deposition or a sworn affidavit explaining that testimony.2 Since the record on appeal does not contain sufficient documentary evidence to support the material facts upon which the trial court’s legal conclusions are based, this Court need not address the trial court’s legal conclusions, but must reverse the order granting Appellee summary judgment and remand for proceedings consistent herewith.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the November 10, 2009 Order granting Appellee’s Motion for Final Summary Judgment on the issue of coverage and the subsequent November 12, 2009 Final Judgment in favor of Appellee are both REVERSED.
It is further ORDERED AND ADJUDGED that (1) Appellant’s motion for appellate attorney’s fees is hereby GRANTED; and (2) Appellant’s motion for sanctions, pursuant to Florida Statute 57.105 is hereby DENIED. This matter is remanded for proceedings consistent herewith.
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1For example, the trial court’s order and the facts asserted by the parties in their brief conflict on material points: whether the claimant and Nadege Morel were married or dating at the time of the accident; whether the claimant resided in the same household with Nadege Morel at the time of the accident; and whether the claimant was driving the insured vehicle or was a passenger at the time of the accident.
2The trial court notes in its order that the Appellant conceded at the summary judgment hearing that the claimant did not have PIP coverage at the time of the accident. However, counsel explained at the hearing, without providing any documentary evidence in support, that claimant’s Geico policy was taken out on October 18, 2007, during the sunset period of Florida’s No-Fault Statute when claimant was not required to obtain PIP coverage, and ran through April 18, 2008. Appellee’s asserted in its affirmative defenses, however, that the claimant, as registered owner of a car not involved in this accident, was required to maintain a PIP policy on that car, and should seek recovery under the claimant’s policy. Appellee further argued on appeal and at the summary judgment hearing that the claimant’s failure to maintain his own PIP coverage, relinquished his right to seek PIP coverage from Appellee to pay for his MRI. Without knowing the effective dates of claimant’s insurance policy with Geico, this Court cannot ascertain as a matter of law whether or not claimant had a legal duty to obtain his own PIP policy when he executed the insurance contract. See Lumbermens Mut. Cas. Co. v. Ceballos, 440 So. 2d 612, 613 (Fla. 3d DCA 1983) (“It is well settled in Florida that the statute in effect at the time the insurance contract is executed governs any issues arising under that contract.”)
