21 Fla. L. Weekly Supp. 593b
Online Reference: FLWSUPP 2106WRIGInsurance — Personal injury protection — Discovery — Admissions — Medical provider is entitled to summary judgment based on deemed admissions where insurer did not respond to request for admissions for two years, did not file motion for relief from technical admissions when it finally filed response to request for admissions, and failed to appear at hearing on motion for summary judgment
PHOENIX EMERGENCY MEDICINE OF BROWARD, LLC, as assignee of Cheryl Wright, Plaintiff, v. EQUITY INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 2011-SC-1375. February 14, 2014. Jerri L. Collins, Judge. Counsel: David B. Alexander, Orlando, for Plaintiff. Nadine Gabay-Babyack, Miami, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONFOR SUMMARY JUDGMENT
THIS CAUSE is before the Court on Plaintiff’s Motion for Summary Judgment certificate date September 24, 2013. The Court having considered same, and having considered the submissions by each party and the evidence submitted, and being otherwise duly advised in the premises, orders as follows:
I. Findings of Fact and Procedural History
On August 5, 2010, Defendant’s insured, Cheryl Wright, was injured in a motor vehicle accident. Subsequently, on the day of the accident, Plaintiff, Phoenix Emergency Medicine of Broward, LLC, rendered medical services to the Defendant’s insured. The services rendered to the insured were related to the insured’s motor vehicle accident, and were medically necessary. After examining and treating the insured, Plaintiff issued a bill to Defendant, in the amount of $505.00, for the services rendered to the insured on August 5, 2010. Although the Plaintiff’s medical expenses were reasonable in amount, and despite the fact that Defendant does not have reasonable proof that it was not responsible for payment, Defendant failed to issue any payment to Plaintiff for the services Plaintiff rendered to Defendant’s insured on August 5, 2010.
Since Plaintiff obtained an assignment of PIP benefits from Defendant’s insured, Plaintiff issued Defendant a Notice of Intent to Initiate Litigation as a result of Defendant’s failure to issue payment for the services rendered on August 5, 2010. Defendant failed to respond to Plaintiff’s Notice of Intent to Initiate Litigation and, as a result, Plaintiff filed the instant breach of contract action on July 5, 2011. On July 18, 2011, Plaintiff served its First Request for Admissions upon Defendant. Defendant failed to serve any responses for over two years. As a result, on September 30, 2013, Plaintiff filed a Motion for Summary Judgment based upon the deemed admissions. The hearing on Plaintiff’s Motion for Summary Judgment was set for January 30, 2014. Finally on October 31, 2013, Defendant served responses to Plaintiff’s First Request for Admissions. However, Defendant failed to file a Motion for Relief from Technical Admissions by the hearing date, and Defendant never filed any Affidavit that would explain the reasons behind the delay of over two years.
On the day of the hearing on Plaintiff’s Motion for Summary Judgment, Defendant’s counsel contacted this Court and requested to appear telephonically. This Court’s Rules prohibit telephonic appearances on Motions for Summary Judgment unless the party files a Motion and Order at least two weeks prior to the hearing date. Even then, it is the Court’s discretion regarding whether or not the party’s Motion is granted. In the case at bar, Defendant’s counsel never filed a Motion to Appear Telephonically. Instead, Defendant’s counsel waited to the day of the hearing to inform the Court of its desire to appear telephonically. This Court, in accordance with its Rules, denied the Defendant’s same day request to appear telephonically.
II. Findings of Law
Pursuant to Florida Rule of Civil Procedure 1.370, if a party does not respond to a Request for Admissions within the timeframe set forth in the Rule, the requested matters are conclusively admitted and established and remain so unless the court on motion permits withdrawal or amendment. See Morgan v. Thomson, 427 So. 2d 1134 (Fla. 5th DCA 1983). A motion must be made for relief from the admissions automatically resulting from a failure to timely answer a request for admissions. Id. at 1135. If no motion for relief is filed with the court, summary judgment may be awarded based on the deemed admissions. Id. at 1134-35; see also Singer v. Nationwide Mutual Fire Ins. Co., 512 So. 2d 1125, 1126 (Fla. 4th DCA 1987); see also In re Forfeiture of 1982 Ford Mustang, 725 So. 2d 382, 384-385 (Fla. 2d DCA 1988).
III. Opinion
In the case at bar, the hearing on Plaintiff’s Motion for Summary Judgment was mutually coordinated and set by the parties on November 25, 2013. Thus, not only did Defendant have over two years to file a Motion for Relief for Technical Admissions, Defendant was also afforded a “last-chance” window of two additional months to file the Motion. Similarly, Defendant had the same window of time within which to file an Affidavit which could have explained the reasons behind its failure to respond to the Request for Admissions. Nevertheless, Defendant failed to file any Motion or Affidavit by the hearing date. While Defendant did file responses to the Request for Admissions, Florida law is clear that the responses themselves are not sufficient when the requests are already “conclusively established.”
Moreover, Defendant’s counsel failed to show up for the hearing. Perhaps had Defendant read this Court’s rules, and timely filed a Motion to Appear Telephonically, the Court may have been amenable to having counsel appear remotely. However, counsel cannot disregard this Court’s rules by making a last minute effort to appear telephonically. Counsel had two months to make arrangements for its appearance, and cannot avoid the repercussions for its failure to file a Motion for Relief from Technical Relief and its failure to show up at the hearing.
Therefore, based upon the deemed admissions, this Court finds no issues of material fact and holds that Plaintiff is entitled to summary final judgment as a matter of law. Judgment is hereby entered in favor of the Plaintiff in the principal amount of $505.00, plus pre-judgment interest in the amount of $104.10, for a total amount of $609.10. The total sum shall bear interest at the prevailing statutory interest rate of 4.75% per year from the date of this judgment through December 31st of the current year, FOR WHICH LET EXECUTION ISSUE. Thereafter, on January 1 of each succeeding year until the judgment is paid, the interest rate will adjust in accordance with section 55.03, Florida Statutes. This Court reserves jurisdiction for an award of attorney’s fees and costs incurred by Plaintiff.
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