19 Fla. L. Weekly Supp. 229a
Online Reference: FLWSUPP 1904JAIMInsurance — Personal injury protection — Discovery — Admissions — Abuse of discretion to deny insurer’s request for relief from admissions where, although insurer lacked due diligence in seeking relief, record shows evidentiary conflict on admitted issue of medical necessity, and medical provider failed to show that it would be prejudiced if relief were granted since it had notice that insurer was contesting issue — Error to enter summary judgment in favor of provider where record was replete with evidence contrary to admissions, and there was genuine factual dispute
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. INTERSCAN, INC. A/A/O ALEXIS JAIME, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 10-120 AP. L.C. Case No. 2006016294 SP 05. December 15, 2011. On Appeal from the County Court for Miami-Dade County. Bronwyn C. Miller, Judge. Counsel: Lara J. Edelstein, United Automobile Insurance Company, Office of General Counsel, for Appellant. Marlene S. Reiss, Marlene S. Reiss P.A., for Appellee.
(Before MURPHY, ZABEL, and BLOOM, JJ.)
(BLOOM, Judge.) Appellant, United Automobile Insurance Company (“United”) brings this appeal from a final judgment entered by the trial court in favor of Appellee, Interscan, Inc. (“Interscan”) based upon the trial court’s denial of United’s motion for relief from technically admitted admissions. This court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(c)(1)(A).
On or about January 7, 2006 an automobile accident occurred involving Alexis Jaime (“Insured”). The Insured suffered injuries and received treatment from medical provider Interscan and then assigned her insurance policy benefits to Interscan. The Insured submitted the medical bills to United for payment in accordance with the insurance policy’s personal injury protection provision and said payments were declined. On October 12, 2006, Interscan filed suit against United for payment.
United’s initial answer filed on December 6, 2006, amended answer and affirmative defenses filed on March 21, 2007, denied that it was responsible for the payment of the medical expenses subsequent to February 7, 2006, as not being reasonable and/or necessary based on the opinion of Peter Sciarretta, M.D. On January 10th 2007, Interscan propounded two sets of requests for admissions. United responded to the second request for admissions on February 20, 2007. However, United failed to respond to the first request for admissions. Interscan never filed a motion to compel a response to the first request for admissions. United made no effort to obtain relief from its technical admissions prior to the date of trial. On May 14, 2007, United filed a pre-trial catalogue indicating that the medical bills submitted on behalf of Interscan were for services that were not reasonable or necessary. On July 14, 2008 Interscan filed a pre-trial catalogue listing witnesses that would testify as to the medical necessity of the treatment. A supplemental pre-trial catalogue was filed on July 20, 2009, indicating the experts who were to testify to medical necessity. On July 21, 2008, Interscan filed an affidavit from Dr. Robert Rodriguez attesting to the medical necessity of the treatment received. In August, 2008, United filed affidavits of both Dr. Glen Siegel, D.C. and Dr. David Goldberg, M.D.. Dr. Siegel concluded that further chiropractic treatment and diagnostic testing were not reasonable, related or necessary. Dr. Goldberg concluded that the MRI, x-ray studies and physical therapy were medically unnecessary.
The parties convened for trial on March 15, 2010. The main issue remaining at trial was whether the treatment received by the insured was medically necessary. Before the jury was selected, it was revealed to the trial court that United never responded to the first request for admissions. United claimed that it never received the first request for admissions. United then moved to strike the first request for admissions arguing that both requests for admissions mirrored each other. The trial court denied this request. After the jury was selected, United then sought relief from the first request for admissions. The trial court denied this request finding that the Interscan would be procedurally prejudiced if relief were given to United on the day of trial. The court entered judgment in favor of Interscan based on the first request for admissions having been deemed to be admitted.
On appeal, United challenges the judgment resolving the medical necessity of the treatment. United claims that the trial court erred in entering judgment based on technical admissions where the record was replete with evidence that contradicted the admissions. United also claims that Interscan did not establish that it would be prejudiced if United was allowed to amend its admissions. In opposition, Interscan alleges that United engages in a pattern and practice of seeking late relief from technical admissions. It contends that this “gotcha” tactic of United should not be condoned and the trial court correctly denied United’s requested relief from admissions.
REVIEW OF DENIAL OF MOTION FORRELIEF FROM ADMISSIONS
When a trial court denies relief from admissions, the standard of appellate review is an abuse of discretion. Farish v. Lum’s Inc., 267 So. 2d 325 (Fla. 1972). An abuse of discretion standard requires a reviewing court to determine that no reasonable person would take the view adopted by the trial court. Allstate v. Manasse, 707 So. 2d 1110 (Fla. 1998) [23 Fla. L. Weekly S30a]. Florida Rule of Civil Procedure 1.370 states that unanswered admissions are deemed admitted unless the court permits withdrawal or amendment when the presentation of the merits of the action will be subserved by it and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining an action or defense on the merits. “Where the defendant maintains a position contrary to the automatic admission in all other pleadings and affidavits filed prior to summary judgment, the withdrawal of the admission and acceptance of the belated response serve to allow presentation of the case on the merits.” In re Forfeiture of 1982 Ford Mustang v. Bartow Police Dep’t, 725 So. 2d 382 (Fla. 2d DCA 1998) [23 Fla. L. Weekly D2653a].
We consider the following factors in deciding whether the trial court abused its discretion in failing to grant United relief from admissions: (1) The length of time during which the Interscan relied on the admissions; (2) Whether Interscan would be prejudiced if relief from technical admissions were granted; (3) Whether there is evidence in the record that contradicts the technical admissions; and (4) The reason given for United’s failure to comply with Florida Rule of Civil Procedure 1.370. See, e.g., Asset Mgmt. Consultants of Virginia, Inc. v. City of Tamarac, 913 So. 2d 1179, 1180-1181 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D2415a]; Thomas v. Chase Manhattan Bank, 875 So. 2d 758 (Fla. 4th DCA 2004) [29 Fla. L. Weekly D1528a].
In considering the first factor, although the first request for admissions was propounded more than three years before a request for relief was made on the day of trial, the record does not reflect that the Interscan relied on the admissions during this time. Interscan did not file a motion to compel responses to the admissions. Furthermore, the pre-trial catalogue filed by the Interscan indicates that their experts were to testify as to the medical necessity of the treatment. In Istache v. Pierre, 876 So. 2d 1217, 1218 (Fla. 4th DCA 2004) [29 Fla. L. Weekly D1407a], the Fourth District Court of Appeal found that allowing a party to amend responses to request for admissions was warranted at trial where the pre-trial stipulation listed the issues as disputed and the wrong responses were filed due to clerical error.
Similar to the Plaintiff in Istache, there was reason to believe that the issue of medical necessity was being challenged. Neither of the parties’ pre-trial catalogues listed the issue of medical necessity as a stipulation. Rather, this issue remained disputed as evidenced by each party’s witnesses and exhibits. Furthermore, United’s initial answer, amended answer and affirmative defenses all contested medical necessity.
Interscan’s reliance on Asset Mgmt. Consultants of Virginia, Inc. v. City of Tamarac, 913 So. 2d 1179 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D2415a], is misplaced. In Asset, the court held that the trial court did not abuse its discretion in entering summary judgment based on technical admissions. The court noted found that there was nothing in the record showing evidence to contradict the technical admissions. Here, the record is replete with evidence that is contrary to the admissions. United filed an affidavit by Dr. Siegel indicating that further chiropractic treatment and diagnostic testing was not reasonable, related or necessary for the accident in question. United also filed an affidavit by Dr. Goldberg that stated that the MRI, x-ray studies and physical therapy were medically unnecessary. Both affidavits were filed more than two years prior to the trial. Furthermore, number twenty-one (#21) of the first request for admissions which was deemed admitted by United states:
“Admit that the only reason Defendant is denying further PIP payments in the above captioned case is that Defendant contends patient’s treatment and medical expenses are unnecessary and unreasonable and therefore are not covered under the applicable PIP policy.”
Therefore, the very admission relied on by the trial court in entering judgment in favor of Interscan created a genuine issue of material fact.
We next consider whether Interscan would be prejudiced if relief were granted. Prejudice is not found solely because the relief was sought on the day of trial. “Having to prepare for trial on the merits is not the type of prejudice which the plaintiff can raise to combat the defendant’s motion for leave to file late answers because preparing for trial on the merits was the plaintiff’s burden from the beginning.” Durrance v. Thompson, 486 So. 2d 711, (Fla. 5th DCA 1986). In Durrance, the Fifth District held that the trial court abused its discretion in refusing to allow defendant to file late answers to plaintiff’s request for admissions three weeks before trial. Id. Just because the motion for relief was made on the day of trial does not per se make it prejudicial. The record reflects that both Interscan and United had witnesses listed on their pre-trial catalogues and available to testify as to the issue of medical necessity on the day of trial. Rather, Interscan was on notice that United was contesting the issue. Therefore, there is a lack of showing of prejudice to Interscan if the admissions were allowed to be withdrawn.
The third factor this court considered is whether there is evidence in the record that contradicts the technical admissions. United’s initial answer, amended answer and affirmative defenses, affidavits, pre-trial catalogue, and responses to the Second Request for Admissions all clearly showed that United denied that the services rendered were medically necessary.
The last factor considered is the explanation given by United for its failure to comply with Florida Rule of Civil Procedure 1.370. United reasoned that its failure to respond to the request for admissions was due to the fact that only one request for admissions was docketed and it never received the first request for admissions. United clearly lacked due diligence since the request for admissions that it responded to was titled “second request for admissions”. However, that fact alone does not support the trial court’s decision and United should have been granted relief from admissions, because the presentation of the merits of the action will be subserved by it. The record showed an evidentiary conflict as to medical necessity and the Interscan failed to show that it would be prejudiced. According, we hold that the trial court abused its discretion in failing to grant United relief from the technical admissions.
REVIEW OF FINAL JUDGMENT ORDER
When the court reviews an order entering judgment, it is purely a question of whether the prevailing party is entitled to judgment as a matter of law. Therefore, the standard of review is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000) [25 Fla. L. Weekly S390a]. The Court must determine whether after drawing every inference in favor of the non-moving party, there is any genuine issue of material fact. Flueras v. Royal Caribbean Cruises, LTD., 69 So.3d 1101, 1107 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D2131a]. It is well settled under Florida law that “summary judgment should not be granted unless facts are so crystallized that nothing remains but questions of law”. Moore v. Moore, 475 So. 2d 666 (Fla. 1985). A trial court cannot enter summary judgment solely based on a party’s failure to respond to requests for admissions. Brown v. Travelers Indemnity Co., 755 So. 2d 167 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D630c]. Trial courts may not grant summary judgment “unless the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, conclusively 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.” Romero v. All Claims Ins. Repairs, Inc., 698 So. 2d 605, 606 (Fla. 3d DCA 1997) [22 Fla. L. Weekly D1919b]. Stembridge v. Mintz, 652 So. 2d 114 (Fla. 3d DCA 1995) [20 Fla. L. Weekly D721a] (holding where given a party’s sworn answers to interrogatories and sworn answer to the complaint, there remained disputed issues of material fact which precluded summary judgment). While it is normally within the trial court’s discretion to use a technically deemed admission to support summary judgment, it is error if the record contains evidence to the contrary of the admission. In re Forfeiture of 1982 Ford Mustang, 725 So. 2d 382 (Fla. 2d DCA 1998) [23 Fla. L. Weekly D2653a]. The use of admissions obtained through a technicality should not form a basis to preclude adjudication of a legitimate claim. Sterling v. City of West Palm Beach, 595 So. 2d 284, 285 (Fla. 4th DCA 1992).
This court finds Singer v. Nationwide, 512 So. 2d 1125 (Fla. 4th DCA 1987) distinguishable. In Singer, the court affirmed the granting of a summary judgment for the defendant insurance company, observing that the matters contained in request for admissions, which plaintiff failed to answer and were deemed admitted, constituted material misrepresentations, thus avoiding the policy. However, in that case, the plaintiff never moved for relief from admissions and only filed an affidavit just prior to the summary judgment hearing opposing the motion. In granted the summary judgment, the court noted that no material issue of fact existed because the misrepresentations made by the plaintiff insured were considered to be material as a matter of law. Id. at 1126. The defendant in Singer had already relied on the admissions for six months. Id. at 1127. Here, however, United filed affidavits creating genuine issues of material fact in August 2008, nearly two years before the Judgment was granted in favor of Interscan. Unlike Singer, the facts here were always contested, as apposed to newly contested facts at the final judgment hearing. Since the record was replete with evidence that was contrary to the admissions, there was clearly the existence of genuine disputed facts and Interscan was not entitled to judgment as a matter of law. We hold that the trial court erred when it entered judgment in favor of Interscan.
Although we do not condone United’s failure to comply with discovery procedures, we cannot affirm the entry of a final judgment as a result of such failure when the record is replete with evidence contradicting the technical admissions. Accordingly, we conclude that the final judgment entered for Interscan should be vacated and remanded for further proceedings.
CLAIM FOR APPELLATE ATTORNEY’S FEES
We find that Interscan is not entitled to appellate attorney’s fees because it did not prevail on appeal. § 627.428(1), Fla. Stat. (1982). Thus, Interscan’s motion for appellate attorney’s fees is denied.
Accordingly, it is hereby ORDERED AND ADJUDGED that the trial court’s final judgment is VACATED and REMANDED for further proceedings. (MURPHY and ZABEL, JJ, concur.)
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