18 Fla. L. Weekly Supp. 740a
Online Reference: FLWSUPP 1809MAR3
Insurance — Personal injury protection — Summary judgment — Opposing affidavit — Error to disregard affidavit offered in opposition to insured’s motion for summary judgment on ground that it was not supported by physical examination of insured — On reconsideration, appellate court reaches and rejects argument that affirmance is warranted because affidavit is insufficient on other grounds
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida Corporation, Appellant, v. ROSE MARCANO, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-103 AP. L.C. Case No. 05-16988 CC 25 01. March 21, 2011. On Appeal from the County Court for Miami-Dade County, Andrew Hague, Judge. Counsel: Gedety N. Serralta, General Counsel of United Automobile Insurance Company, for Appellant. Virginia M. Best, Law Office of Lopez & Best, for Appellee.
(Before DONNER, MUIR, and REYES, JJ.)
ORDER ON APPELLEE’S MOTION FOR REHEARING, CLARIFICATION ANDRECONSIDERATION AND CORRECTED OPINION
[Original Opinion at 17 Fla. L. Weekly Supp. 1184a]
THIS CAUSE having come before the Court upon Appellee, Rose Marcano’s Motion for Rehearing, Clarification and Reconsideration, and the Court having considered the same, and being otherwise duly advised in the premises, finds as follows:
On August 24, 2010, this Court filed an opinion. Appellee now moves for rehearing, clarification and reconsideration of the original opinion found at 17 Fla. L. Weekly Supp. 1184a. Upon review of the opinion, this Court finds that the original opinion should be corrected, which is attached below.
Accordingly it is hereby ORDERED AND ADJUDGED that the Appellee’s Motion for Rehearing, Clarification and Reconsideration is hereby GRANTED.
__________________
CORRECTED OPINION
(PER CURIAM.) In the opinion dated August 24, 2010, this Court rejected the Appellee’s argument that the affidavit of the late Dr. Richard Glatzer should be dismissed as an improper “paper I.M.E.” and for its conclusory findings. We rejected the argument without reviewing the merits of the argument, as we overlooked the supplemental record on appeal that reconstructed the record at the trial level.
The Glatzer affidavit was presented by the Appellant to demonstrate that there were issues of fact remaining to be tried, as to whether the Appellee insured’s claim for medical expenses were reasonable, related and necessary, as well as covered by personal injury protection insurance.
Counsel for United Auto provided to the clerk, pursuant to a motion to supplement the record, a “clocked in” copy of the Glatzer affidavit. This affidavit was initially filed with the clerk on October 10, 2007, according to the clerk’s time stamp, but only after the record on appeal was completed.
The record was completed and filed on April 10, 2008, consisting of three volumes. The clerk made a note in its index for the Record on Appeal that “Notice of Filing: Original affidavit of Richard Glatzer in Opposition to Summary Judgment dated October 15, 2007 cannot be located by the Appellate Clerk.” Inadvertently, we overlooked that the Appellant supplemented the record on appeal with the Glatzer affidavit in June, 2009.
On the motion for Rehearing, Clarification, and Reconsideration, the Court grants reconsideration as it appears in the transcript that the trial court had a copy of the affidavit at the January 9, 2008 summary judgment hearing. Thus, the affidavit was timely considered by the trial court before entry of the summary judgment on the issues of reasonable, related, and necessary.
Having again considered the matter on the merits, we reverse the decision of the learned trial judge on the authority of United Auto. Ins. Co. v. Santa Fe Medical Center, 21 So. 3d 60 (Fla. 3rd DCA 2009) [34 Fla. L. Weekly D2051b].
The summary judgment on appeal is REVERSED and REMANDED for trial.
