20 Fla. L. Weekly Supp. 887a
Online Reference: FLWSUPP 2009SURDInsurance — Personal injury protection — No abuse of discretion in granting summary judgment for medical provider despite pendency of petition for rule to show cause why proposed deponents should not be held in contempt for failing to appear at depositions where insurer failed to act diligently in seeking discovery and did not request continuance of summary judgment hearing to complete discovery
UNITED AUTOMOBILE, INSURANCE COMPANY, Appellant, v. MICHAEL SURDIS, JR., D.C., P.A., (a/a/o Sheila Hung-Long, as guardian of Jamecia Tomlinson, a minor), Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. CACE-10-011957(02). L.T. Case No. COCE-06-004522(55). February 20, 2013. Sharon Zeller, Judge.
OPINION OF THE COURT
(BOWMAN, Judge.) THIS CAUSE came before the court sitting in its appellate capacity, upon, the Appellant, United Automobile Insurance Company’s (“UAIC”) timely appear of the trial court’s October 27, 2009, order granting the Appellee/Plaintiff’s Motion for Summary Judgment. This Court, dispensing with oral argument, having considered the briefs from both parties, the record on appeal, applicable case law, and being otherwise fully advised in the premises, finds as follows:
On July 10, 2001, Jamecia Tomlinson, as a passenger in a vehicle owned by her grandmother (Marie Hung-Long) and driven by her mother (Sheila Hung-Long), was involved in an automobile accident which required medical treatment. Marie Hung-Long was insured by UAIC. As a result of the accident, Jamecia received medical treatment from Michael Surdis, Jr., D.C., P.A. (“Surdis”) for her injuries. Surdis is the assignee and made a claim to UAIC for the costs of medical services rendered to Jamecia pursuant to Florida Statute § 627.736. UAIC denied the claim and Surdis filed its complaint on March 20, 2006.
UAIC’s alleges that a claim for PIP benefits should be made under Richard Tomlinson’s (Tomlinson) insurance as he was a resident relative. It is UAIC contention that Tomlinson is Jamecia’s father and that at the time of the accident she was residing with both Tomlinson and her mother and therefore under Florida Statute § 627.736(4)(d)(4)(b) a claim cannot make a claim with the insurer of the vehicle but with Tomlinson’s insurance. On December 17, 2008, UAIC attempted to depose Tomlinson and Shelia Hung-Long, but neither appeared despite receiving proper service of subpoenas. On May 18, 2009, UAIC petitioned the court to hold the proposed deponents in contempt and the motion was heard at the October 27, 2009 hearing.
On October 30, 2008 UAIC moved for summary judgment and on September 16, 2009, Surdis filed its cross motion, both on the sole issue of coverage. A hearing was held on the two motions on October 27, 2009, where the trial court judge found in favor of Surdis. On February 25, 2010, the trial court entered a final judgment in favor of Surdis with an award in the amount of $1,092.00. UAIC appeals the trial court’s ruling on the summary judgment motions claiming that the trial court erred in granting summary judgment because: 1) Surdis failed to meet its burden of proving the nonexistence of all genuine issue of material fact and 2) the trial court denied UAIC’s petition for to hold Tomlinson and Sheila Hung-Long in contempt for failure to attend their scheduled depositions.
The standard of appellate review applicable to a trial court’s entry of summary judgment is de novo. Volusia Cnty v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000) [25 Fla. L. Weekly S390a]. Summary judgment is appropriate if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fla. R. Civ. P. 1.510(c).
Surdis claims that UAIC failed to file admissible evidence to demonstrate an exclusion to coverage of Jamecia by showing that Jamecia 1) is a relative of Tomlinson; 2) resided with Tomlinson on the date of the accident; and 3) that Tomlinson was required to carry PIP insurance on his automobile. UAIC had entered into evidence proof that Tomlinson had owned a car that was insured at the time of the accident. However, was unable to show that Tomlinson and Jamecia are related and/or that they resided with each other at the time of the accident.
UAIC attempted to introduce the examination under oath (EUO) of Sheila Hung-Long from October of 2001. Surdis objected claiming that the EUO was hearsay, and inadmissible as substantive evidence. Without a determination of whether or not the EUO was admissible, the trial court ruled that the EUO did not conclusively establish that Tomlinson and Jamecia relationship or that they shared the same residence at the time of the accident.
UAIC claims that the depositions of Tomlinson and Sheila Hung-Long were “clearly needed in order to clear up the question of fact regarding whether Richard [Tomlinson] was Jamecia’s father and whether he resided with her on the date of the accident.” (Initial Brief p. 14). At the motion for summary judgment hearing UAIC argued that the trial court should grant its petition for rule to show cause for the failure of the two to appear at their scheduled deposition. The trial court denied the petition and stated:
COURT: — well why would I hear this post discovery cut-off?
KIM: The depositions were set prior to discovery cut-off. The motion unfortunately wasn’t set until post cut-off —
COURT: — yeah, you said the operative word, unfortunately.
KIM: Yes.
COURT: Yes.
KIM: We did also notice both —
COURT: — motion is denied.
(HT p. 4, lines 4-14)
Surdis points out that UAIC lacked diligence in obtaining its “clearly necessary” discovery, in that it was nearly three years after the filing of the complaint that UAIC set the depositions of Tomlinson and Sheila Hung-Long and thereafter waited five months to files its “Petitions for Rule to Show Cause,” and the hearing on the petition was ten months after the scheduled depositions. Further, UAIC did not request a continuance of the summary judgment hearing to complete discovery. In Leviton, the Third District Court of Appeal affirmed the trial court’s granting of summary judgment despite the pendency of discovery where the defendants conducted very little discovery over a seven-month period and did not request a continuance of the summary judgment hearing to complete discovery. Leviton v. Philly Steak-Out, Inc.; See also, Cong. Park Office Condos II, LLC v. First-Citizens Bank & Trust Co., 2013 WL 163435 (Fla. 4th DCA Jan. 16, 2013) [38 Fla. L. Weekly D145a](Borrowers failed to act diligently in seeking discovery and thus fact that discovery remained pending did not bar award of summary judgment to assignee.).
Evidentiary rulings are generally within the sound discretion of the trial court and absent an abuse of discretion its rulings will not be disturbed. Hendry v. Zelaya, 841 So. 2d 572 (Fla. 3d DCA 2003) [28 Fla. L. Weekly D741a]. When it is challenged on appeal, a trial court’s exercise of judicial discretion is “clothed with a presumption of correctness.” Clayton v. Clayton, 275 So. 2d 588 (Fla. 1st DCA 1973). The burden rests on the appellant to show abuse. Hamlet v. Hamlet, 583 So. 2d 654 (Fla. 1991). UAIC has failed to show that the trial court was arbitrary or unreasonable or in any other way abused its discretion in its ruling. Dennison v. Dennison, 852 So. 2d 422 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D1971b].
Accordingly, for the above-stated reasons and after due consideration, it is
ORDERED AND ADJUDGED that the trial court’s October 27, 2009 order granting Surdis’ motion for summary judgment is AFFIRMED.
It is also
ORDERED AND ADJUDGED that Surdis’ motions to supplement record on appeal filed on June 4, 2012 and June 7, 2012, and UAIC’s motion to supplement record on appeal filed on October 17, 2012 are GRANTED.
Further, it is
ORDERED AND ADJUDGED that UAIC’s motion for appellate attorney’s fees is DENIED. Surdis’ motion for appellant attorney’s fees is GRANTED pursuant to Fla. R. App. P. 9.400 and Florida Statute § 627.428. The amount of appellate attorney’s fees to which Surdis’ is entitled is to be determined by the trial court upon REMAND.
* * *
