19 Fla. L. Weekly Supp. 423a
Online Reference: FLWSUPP 1906JOSEInsurance — Personal injury protection — Coverage — Summary judgment — Factual issues — Error to grant summary judgment in favor of insurer where there was conflicting deposition testimony as to whether claimant resided with insured on date of accident
CHIRO-MEDICAL REHAB OF NORTH MIAMI, a/a/o Devince Joseph, Appellant, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 09-20474 (07). L.T. Case No. 07-10390 (COCE). February 2, 2012. Honorable Leonard Feiner, Judge. Counsel: Marlene S. Reiss, Marlene S. Reiss, P.A., Miami, for Appellant. Michael J. Neimand, UAIC, Miami, for Appellee.
OPINION
(STREITFELD, Judge.) This CAUSE came before the Court, sitting in its appellate capacity, upon Appellant’s, Chiro-Medical Rehab of North Miami, appeal from a County Court Final Summary Judgment in favor of Appellee, United Automobile Insurance Company. The Court having considered the briefs filed by the parties and being duly advised in the premises and law, dispenses with oral argument, and finds and decides as follows:
On June 25, 2007, Chiro-Medical of North Miami, Inc. (“Chiro-Medical”) as assignee of Devince Joseph (“Joseph”), filed a Complaint against United Automobile Insurance Company (“UAI”) for personal injury protection (“PIP”) benefits arising from an automobile accident that occurred on or about July 11, 2003. Chiro-Medical treated Joseph for injuries he sustained as a result of the accident. Pursuant to an insurance policy issued to Jacquelin Joseph (“the Insured”), Chiro-Medical sought payment for medical bills submitted to UAI for medical services rendered to Joseph. UAI filed an Answer and Affirmative Defenses, specifically asserting that the insurance policy issued to the Insured does not provide PIP benefits to Joseph.
On March 9, 2009, UAI moved for summary judgment arguing that Joseph was not covered under the Insured’s policy because he did not “reside” with the Insured at the time of the accident. Contrary to the position taken by UAI, Chiro-Medical argued that Joseph “resided” with the Insured at the time of the accident, and therefore, as assignee of Joseph, is entitled to PIP benefits.
On March 17, 2009, the trial court granted UAI’s motion for summary judgment as to coverage. In doing so, the trial court stated that the summary judgment evidence indicated that Joseph did not reside with the Insured on the date of the accident, therefore precluding him or Chiro-Medical from receiving PIP benefits under the Insured’s policy. Subsequently, Chiro-Medical filed this appeal, arguing that the trial court erred in entering Final Summary Judgment in favor of UAI because there was conflicting evidence as to where Joseph “resided” on the date of the accident.
When reviewing a trial court’s entry of summary judgment, an appellate court applies a de novo standard of review. Major League Baseball v. Morsani, 790 So. 2d 1071, 1074 (Fla. 2001) [26 Fla. L. Weekly S465a]. Summary judgment is appropriate “if the pleadings and summary judgment 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.” Fla. R. Civ. P. 1.510 (c). The party moving for summary judgment has the burden of showing the absence of a genuine issue of fact. Unless the material facts are so crystallized that nothing remains except questions of law, summary judgment should not be granted. Moore v. Morris, 475 So. 2d 666 (Fla. 1985). Moreover, “the burden to prove the non-existence of genuine triable issues is on the moving party, and the burden of proving the existence of such issues is not shifted to the opposing party until the movant has successfully met his burden.” Holl v. Talcott, 191 So. 2d 40, 43-44 (Fla. 1966).
After a review of the record on appeal, the Court finds that there are material issues of disputed fact. As one example, the Court finds that the deposition testimony of Joseph and his wife, Emmanuella Celestin, conflicts as to the issue of where Joseph “resided” on the date of the accident. “Normally, when there is conflicting deposition testimony, the trial court will not grant summary judgment, as this means there are disputed issues of fact.” Sbory v. Am. Optical Corp., 958 So. 2d 474, 476 (Fla. 4th DCA 2007) [32 Fla. L. Weekly D1285a] (citing Maroone Chevrolet, L.L.C. v. SunTrust Bank, 904 So. 2d 618 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D1557a]). See also Liberty Mut. Ins. Co. v. Ryan, 500 So. 2d 735, 737 (Fla. 2d DCA 1987) (noting that summary judgment was improperly granted because the evidence presented at the summary judgment hearing created a question of fact concerning the residence of the applicant for PIP benefits). As such, summary judgment was prematurely entered.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the trial court’s Final Summary Judgment in favor of Appellee, dated March 17, 2009, is REVERSED AND REMANDED for proceedings consistent with this Opinion.
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