22 Fla. L. Weekly Supp. 187b
Online Reference: FLWSUPP 2202DBROInsurance — Coverage — Trial court violated insurer’s due process rights by granting medical provider’s motion for summary judgment, without conducting hearing, one day after provider filed supplemental motion for summary judgment containing newly filed affidavits
UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, vs. HIALEAH MEDICAL ASSOCIATES, INC., a/a/o Demetrius Brown, Respondent. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 12-372 AP. L.T. Case No. 08-13587 CC 05 (08). October 2, 2014. An Appeal from a decision rendered by the County Court for Miami-Dade County, Wendell Graham, Judge. Counsel: Thomas L. Hunker, United Automobile Insurance Company, for Petitioner. Marlene Reiss, Law Offices of Marlene S. Reiss, P.A., for Respondent.
(Before BLAKE, SCHUMACHER, and CABALLERO, JJ.)
(PER CURIAM.) United Automobile Insurance Company (“United Auto”) petitions for reversal of the order granting summary judgment in favor of Hialeah Medical Associates, Inc. as assignee of Demetrius Brown (“Hialeah Medical”).
Demetrius Brown received medical services from Hialeah Medical, Jackson Memorial Hospital, and other providers for injuries resulting from a motor vehicle accident. United Auto paid all other providers except Hialeah Medical because Hialeah Medical rejected United Auto’s payment offer. Hialeah Medical filed suit for the unpaid portion of its claim on July 15, 2008. United Auto asserted exhaustion of benefits in its answer due to Jackson Memorial Hospital requesting payment for services provided to Mr. Brown. Jackson Memorial Hospital recorded a lien for $27,164.45 on February 1, 2008 for services rendered to Mr. Brown. On February 27, 2009 Jackson sent a bill to United Auto for Mr. Brown’s care. United Auto paid the hospital the policy’s remaining funds of $9,780.24.
Hialeah Medical moved for summary judgment contending that United Auto’s payment to Jackson Memorial Hospital was gratuitous and United Auto failed to exhaust the policy’s benefits. On July 9, 2012, the trial court denied Hialeah Medical’s motion for summary judgment regarding the exhaustion of benefits. On September 13, 2012, Hialeah Medical filed a supplement to its summary judgment motion. Therein, it restated its original arguments and attached three affidavits filed in the case for the first time. On September 14, 2012, the trial court, without holding a hearing, entered an order granting Hialeah Medical’s motion for summary judgment.
On appeal, United Auto argues that Hialeah Medical’s affidavits filed on September 13, 2012 were untimely under Florida Rule of Civil Procedure 1.510. United Auto contends that the trial court violated its due process rights when it entered the summary judgment order, without a hearing, where three new affidavits were newly filed on September 13, 2012. United Auto maintains that summary judgment was proper because United Auto waived its due process argument by failing to move for rehearing and by failing to proffer evidence prior to the entry of the final judgment.
A court may consider supplemental affidavits in deciding a motion for summary judgment if the parties are properly notified. Fla. R. Civ. 1.510(e) (2013); Florida Dep’t of Financial Svcs. v. Associated Industries Ins., 868 So. 2d 600, 602 (Fla. 1st DCA 2004) [29 Fla. L. Weekly D368b] (“a movant may file supplemental affidavits less than twenty days prior to the summary judgment hearing only upon written stipulation and agreement by the adverse party affected or upon leave of court granted by written order after written application, notice to the adverse party, and the opportunity for a hearing”); Marlar v. Quincy State Bank, 463 So. 2d 1233, 1233-34 (Fla. 1st DCA 1985)(trial court granted summary judgment and committed reversible error by relying on an affidavit filed one day before the hearing and served on opposing counsel at the summary judgment hearing); Kendel v. City of Miami, 281 So. 2d 566, (Fla. 3d DCA 1973)(pursuant to rule 1.510(e), the record needs to clearly reflect the court’s approval for filing affidavits two days after the partial summary judgment hearing).
Providing a summary judgment hearing is not discretionary under rule 1.510. State Farm Fire and Cas. Co. v. Lezcano, 22 So. 3d 632, 633 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2105a] (rule 1.510 contemplates a hearing on a motion for summary judgment). Failure to properly notice the nonmoving party of the summary judgment hearing pursuant to rule 1.510(c) constitutes reversible error. Parker v. Lower Florida Keys Hosp. Dist., 432 So. 2d 169, 169-70 (Fla. 3d DCA 1983). Due process requires that the nonmoving party have “full and fair opportunity” to oppose the motion for summary judgment before the entry of the summary judgment order. John K. Brennan Co. v. Central Bank & Trust Co., 164 So. 2d 525, 526 (Fla. 2d DCA 1964). The failure by the trial court to conduct a summary judgment hearing prior to ruling on the motion denies the party the due process right of notice and the opportunity to be heard. Kozich v. Hartford Ins. Co. of Midwest, 609 So. 2d 147, 148 (Fla. 4th DCA 1992)(“The rule does not provide the trial court with discretion to decide whether ‘a hearing is required.’ ”).
The trial court erred when it violated United Auto’s due process rights by granting Hialeah Medical’s motion for summary judgment, without hearing, one day after Hialeah Medical filed the supplemental motion for summary judgment containing newly filed affidavits.
United Auto’s appellate attorneys’ fees are granted pursuant to Florida Statute sections 768.79 and 59.46. Motter Roofing, Inc. v. Leibowitz, 833 So. 2d 788, 789 (Fla. 3d DCA 2002) [27 Fla. L. Weekly D576c]. Hialeah Medical’s request for appellate attorneys’ fees is denied. This case is remanded to the trial court for proceedings consistent with this opinion.
REVERSED.
