20 Fla. L. Weekly Supp. 889a
Online Reference: FLWSUPP 2009KJEAInsurance — Personal injury protection — Admissions — No abuse of discretion in denying insurer’s motion for relief from admissions where affidavit contradicting admissions was not filed until after motion for relief from admissions was denied, and medical provider argued that it would have suffered unfair prejudice from withdrawal of technical admissions — Trial court did not err in striking affidavit offered solely to defeat provider’s motion for summary judgment where affidavit contradicted insurer’s technical admissions — Final summary judgment in favor of provider is affirmed
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Appellant, vs. WEST HOLLYWOOD PAIN & REHABILITATION CENTER, a/a/o Kathleen Jean, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 10-010958 CACE (26), consolidated with 10-030431 (21). L.T. Case No. 07-004511 COCE (50). May 23, 2013.
OPINION
(HENNING, Judge.) THIS CAUSE came before the Court, sitting in its appellate capacity, upon appeal by Appellant United Automobile Insurance Company (“UAIC”), of the trial court’s February 24, 2010 final summary judgment in favor of West Hollywood Pain and Rehabilitation Center, Inc., (a/a/o Kathleen Jean) (“West Hollywood”) and upon appeal of the trial court’s July 21, 2010 final judgment of attorney’s fees and costs.1 The court, having considered the brief filed by the appellant2 and being otherwise duly advised in the premises, dispenses with oral argument and finds and decides as follows:
On November 7, 2006, Kathleen Jean sustained injuries as a result of an automobile accident and sought medical treatment for those injuries. On March 15, 2007, Appellee West Hollywood filed suit against UAIC seeking payment of personal injury protection (“PIP”) benefits as assignee of UAIC’s insured, Kathleen Jean. On April 11, 2007, West Hollywood served a copy of the complaint, along with a request for admissions. The record reveals that UAIC failed to timely respond to the request for admissions. On June 20, 2007, UAIC requested leave to file its responses to West Hollywood’s request for admissions. Subsequently, on April 3, 2008, UAIC filed an amended verified motion for leave to file its responses to West Hollywood’s request for admissions. On May 12, 2008, Plaintiff moved for final summary judgment, relying on UAIC’s technical admissions of liability and amount of damages. On June 17, 2008, the trial court denied UAIC’s motion for relief from admissions. On December 3, 2009, West Hollywood filed a Supplemental Motion for Final Summary Judgment. On February 17, 2010, Plaintiff filed a Renewed Motion for Summary Judgment. On February 24, 2010, the trial court held a hearing and granted final summary judgment in favor of West Hollywood in the amount of $2,600. West Hollywood then moved for and was awarded $25,296 in attorney’s fees and costs. On March 5, 2010, UAIC timely filed its notice of appeal of the trial court’s February 24, 2010 Final Judgment for medical benefits. On July 27, 2010, UAIC timely filed its notice of appeal of the trial court’s July 21, 2010 Final Judgment for attorney’s fees and costs.
The standard of review for a lower court’s order granting summary judgment is de novo. Major League Baseball v. Morsani, 790 So. 2d 1071, 1074 (Fla. 2001) [26 Fla. L. Weekly S465a]. Summary judgment is appropriate only where there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a] (citation omitted).
The record clearly establishes that UAIC failed to timely respond to West Hollywood’s Request for Admissions. Further, the record reveals that the trial court granted West Hollywood’s motion for summary judgment, relying on UAIC’s technical admissions to requests for admission numbers eight3 (8) and ten4 (10).
Florida Rule of Civil Procedure 1.370(a) provides that the failure to timely respond to a party’s request for admissions automatically deems those unanswered requests as admitted. See Fla. R. Civ. P. 1.370(a). However, “the court may permit withdrawal or amendment [of a technical admission] 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.” See Fla. R. Civ. P. 1.370(b). Florida courts have observed that this “liberal standard favors amendment in most cases in order to allow disposition on the merits.” Ramos v. Growing Together, Inc., 672 So. 2d 103, 104 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D991b] (citations omitted). Further, “the use of admissions obtained through a technicality should not for a basis to preclude adjudication of a legitimate claim.” Id. (citations omitted).
Appellant argues that the trial court erred in denying UAIC’s motion for relief from admissions and in granting Plaintiff’s motion for final summary judgment where the record contained evidence contradicting the admissions and Plaintiff failed to show that it would have suffered unfair prejudice resulting from the withdrawal of the technical admissions. Under Florida law, it is an abuse of discretion to deny a motion for relief from technical admissions where there is an affidavit that clearly contradicts those technical admissions, and where the opposing party “failed to show ‘prejudice’ within the meaning of the rule.” Thomas v. Chase Manhattan Bank, 875 So. 2d 758, 760 (Fla. 4th DCA 2004) [29 Fla. L. Weekly D1528a]. Despite Appellant’s argument to the contrary, the record reveals that at the time the trial court denied the motion for relief from admissions, UAIC had not yet filed the affidavit of Dr. Bradley Simon. Dr. Simon conducted a peer review of Kathleen Jean’s medical records and opined that some of the treatment was unnecessary and that some of the charges were excessive. Dr. Simon’s affidavit was not filed until December 28, 2009. The trial court’s order denying UAIC’s motion for relief from admissions was entered on June 17, 2008. Furthermore, the record and transcript of the proceedings reveals that the parties argued the issue of prejudice. Thus, this Court determines that the trial court did not abuse its discretion when it denied UAIC’s motion for relief from its admissions.
Next, Appellant argues that the trial court erred in granting summary judgment where the record contained evidence contradicting the technical admissions. At issue isthe affidavit of Dr. Bradley Simon, which wassubmitted in opposition to the motion for summary judgment. The February 24, 2010 transcript of the proceedings reveals that the affidavit of Dr. Simon was the subject of a motion to strike. West Hollywood, in its motion to strike, argued that a party cannot submit an affidavit in opposition to a summary judgment that controverts a prior admission. Although there is no written order, the transcript of the proceedings reveals that the trial court agreed with Plaintiff, struck the affidavit of Dr. Simon, and entered summary judgment in favor of West Hollywood.
This Court has reviewed the affidavit of Dr. Bradley Simon. The affidavit clearly contradicts the technical admissions. Under Florida law, a party cannot submit an affidavit which deviates from a party’s previous admission solely to defeat a summary judgment. See McKean v. Kloeppel Hotels, Inc., 171 So. 2d 552, 555 (Fla. 1st DCA 1965); See also, Jordan v. State Farm Ins. Co., 515 So. 2d 1317, 1319 (Fla. 2d DCA 1987). Thus, this Court determines that the trial court did not err when it struck the affidavit of Dr. Simon. Therefore, upon a review of the record and in light of the summary judgment evidence before the court, there is no genuine issue of material fact that West Hollywood is entitled to judgment as a matter of law. West Hollywood met its burden on summary judgment based on its own affidavits and the technical admissions of UAIC. UAIC did not submit any summary judgment evidence to demonstrate that a genuine issue of material fact exists. Thus, West Hollywood was entitled to summary judgment as a matter of law. Furthermore, since the trial court did not err in entering Final Judgment for medical benefits in favor of West Hollywood, the Final Judgment for attorney’s fees and costs judgment must also be affirmed.
Accordingly, it ishereby:
ORDERED AND ADJUDGED that the trial court’s February 24, 2010 final summary judgment is AFFIRMED.
IT IS FURTHER ORDERED AND ADJUDGED that the trial court’s July 21, 2010 final judgment of attorney’s fees and costs is AFFIRMED.
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1On August 19, 2010, this Court entered an agreed order transferring Appeal No. 10-030431 CACE (21) from Division 2 and consolidating into Appeal No. 1010958 CACE (26).
2This court permitted extensions of time to file an answer brief on: (1) 7/28/2011; (2) 8/30/2011; (3) 10/5/2011; (4) 11/22/2011; (5) 12/13/2011; (6) 1/19/2012; (7) 2/22/2012; (8) 4/17/2012; (9) 5/4/2012; (10) 6/12/2012; (11) 8/10/2012; and (12) /14/2013. Appellee failed to file an answer brief.
3UAIC technically admitted that the “defendant refuses to pay to the Plaintiff the contractual portion of the medical charges incurred by [Kathleen Jean] with the Plaintiff since the date of the subject accident, and the Defendant is liable for those sums under the personal injury protection insurance provisions of the above automobile policy.” (Req. for Admission #8).
4UAIC technically admitted that the “Defendant is fully liable to Plaintiff for the medical service rendered on behalf of its insured.” (Req. for Admission #10).
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