23 Fla. L. Weekly Supp. 389b
Online Reference: FLWSUPP 2305LGREInsurance — Personal injury protection — Wage loss — Summary judgment — Small claims — Trial court did not err in proceeding under rule 1.510 regarding summary judgment in wage loss claim that had been transferred from circuit court to county court where parties continued to litigate case in county court under rules of civil procedure without objection — Error to grant summary judgment in favor of insurer on basis that insured had not filed affidavit or other hard evidence in opposition to motion for summary judgment where complaint that included insured’s ledger showing loss of income from his mobile barbeque business and admissions in which insured denied that he had not suffered any wage loss as result of accident were already filed with court when it heard motion — Further, trial court erred in granting summary judgment when good faith discovery was still in progress
LORENZO GREENE, Appellant, vs. USAA CASUALTY INSURANCE COMPANY, a foreign corporation, Appellee. Circuit Court, 5th Judicial Circuit (Appellate) in and for Lake County. Case No. 2014-AP-09. L.T. Case No. 2012-SC-787. September 1, 2015.OPINION
(FALVEY, C., Judge.) Appellant appeals an order granting summary final judgment to Appellee as to a personal injury protection (PIP) wage loss claim under an auto insurance policy. For the reasons outlined below, we reverse and remand.
Appellant, Lorenzo Greene, operated a mobile barbeque business from which he reported net earnings of $1,050.00 per week. On May 8, 2010, he was involved in a rear-end collision while driving his personal vehicle and claimed related personal injuries. He filed a multi-count complaint in circuit court against a number of defendants, including his auto insurer, USAA Casualty Insurance Company (“USAA”). After most of Greene’s claims were resolved in the circuit court, Greene and USAA stipulated to transfer his remaining PIP wage loss claim to county court and, in November 2011, the circuit court entered an order granting transfer. Greene paid the transfer fee and the Clerk designated the action as a small claims case. Despite the transfer to small claims jurisdiction, the parties continued to litigate the claim utilizing the Florida Rules of Civil Procedure.
In January 2014, USAA filed an amended motion for summary judgment regarding the PIP wage loss claim, arguing as follows: (1) Greene’s ledger attached to the complaint which he provided to USAA as proof of the claim did not constitute written notice of a claim pursuant to section 627.736(4)(b), Florida Statutes; and (2) Greene failed to cooperate with USAA as required by his policy.1 At the hearing held in May 2014, USAA reiterated the arguments in its motion. Greene, through counsel, argued USAA requested documents the statute does not require, written notice of wage loss was provided, a doctor’s note excusing Greene from work coupled with Greene’s business license was evidence of wage loss, Greene’s own testimony as well as his wife’s would show wage loss, and a deposition of a meat market vendor would also prove wage loss. In summation, Greene’s counsel argued existence of a genuine issue of material fact precluded summary judgment and summary judgment was premature, especially when discovery was not yet closed. At one point in the hearing while the court was deliberating what types of summary judgment evidence were necessary to defeat the motion, Greene’s counsel stated it would be necessary to “look at the small claims rules on that.” The court replied as follows:
Well, it’s not small claims, because none of this is in small claims. There’s no summary judgment, there’s no nothing in small claims. There’s a mediation and a pretrial and a trial. I was just looking to see if we had done an order invoking the rules of civil procedure in here.
Thereafter, the parties continued to discuss Rule 1.510(c) regarding summary judgment, when Greene’s counsel replied as follows:
Um, so I think this case is a small claims case. I think the defendant moved it down into small claims, and so I’m not sure that that particular rule would apply without having — doing the research on that, quite frankly. I — maybe I could, you know, provide this Court with that information later on, but I don’t — I don’t have it in front of me at the moment. I’d have to go through my file.
After this exchange, the court decided Greene failed to file evidence such as an affidavit or “other hard evidence” required by Rule 1.510 to defeat the motion and, accordingly, ruled there was no “choice but to grant the motion.”2 Thereafter, the court entered an order granting USAA’s amended motion for summary judgment and Greene timely filed a notice of appeal.
We review the matter de novo. Town of Ponce Inlet v. Pacetta, LLC, 63 So. 3d 840, 840 (Fla. 5th DCA 2011) [36 Fla. L. Weekly D1092b] citing Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla. 2001) [26 Fla. L. Weekly S465a] (holding the de novo standard of review applies to a trial court’s decision to grant or deny summary final judgment). On appeal, Greene argues this court should reverse because Rule 1.510 does not apply in small claims actions or, alternatively, if Rule 1.510 applies, genuine issues of material fact preclude summary judgment. In reply, USAA argues Rule 1.510 applies because the parties litigated under the Rules of Civil Procedure by mutual consent without objection and the claim of $5,040.00 exceeded the jurisdictional amount for small claims actions.3 Further, USAA contends summary judgment was appropriate because Greene’s ledger did not constitute written notice of the wage loss, Greene did not cooperate as required by the policy and Greene failed to file any evidence in opposition to the motion for summary judgment.
To begin, this Court must resolve the issue as to whether the Rules of Civil Procedure or the Small Claims Rules applied to this action. Rule 7.010(b) of the Small Claims Rules dictates the scope of “[t]hese rules are applicable to all actions of a civil nature in the county courts which contain a demand for money or property, the value of which does not exceed $5,000 exclusive of costs, interests, and attorney’s fees.” Rule 7.020(a) specifies that “Florida Rules of Civil Procedure 1.090(a), (b), and (c); 1.190(e); 1.210(b); 1.260; 1.410; and 1.560 are applicable [in Small Claims actions].” Fla. Sm. Cl. R. 7.020(a). However, Rule 7.020(c) adds that “[i]n any particular action, the court may order that action to proceed under 1 or more additional Florida Rules of Civil Procedure on application of any party or the stipulation of all parties or on the court’s own motion.” Fla. Sm. Cl. R. 7.020(c).
A review of the underlying record reveals the parties stipulated to and the circuit court approved a transfer of jurisdiction to county court. Subsequent to transfer of the action to small claims jurisdiction, the parties continued to litigate under the Rules of Civil Procedure without objection. Thus, while the hearing transcript reveals some confusion about application of the Rules of Civil Procedure, this Court finds the action was properly transferred to county court and further finds Greene’s counsel failed to make an unequivocal objection to application of the Rules of Civil Procedure or invoke the Small Claims Rules. Thus, the trial court properly proceeded under the Rule 1.510.
Having decided Rule 1.510 applies to this action, we must now determine whether the trial court’s grant of summary judgment was proper. According to Rule 1.510, a motion for summary judgment “shall state with particularity the grounds upon which it is based and the substantial matters of law to be argued and shall specifically identify any affidavits, answers to interrogatories, admissions, depositions, and other materials as would be admissible in evidence (“summary judgment evidence”) on which the movant relies.” Fla. R. Civ. P. 1.510(c). “The adverse party shall identify . . . any summary judgment evidence on which the adverse party relies.” Id. The rule provides some time requirements for the adverse party to serve the movant his opposing summary judgment evidence “[t]o the extent that summary judgment evidence has not already been filed with the court . . . .” Id. “The judgment sought shall be rendered forthwith if the pleadings and summary judgment evidence on file 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.” Id. The following describes the standard for the moving party to prevail on summary judgment:
The burden is on the party moving for summary judgment to prove a “complete absence of a triable issue of material fact, and the proof must be such as to overcome all reasonable inferences which could be drawn in favor of the” nonmoving party. Aagaard — Juergensen, Inc. v. Lettelier, 540 So.2d 224, 225 (Fla. 5th DCA 1989) (citing Landers v. Milton, 370 So.2d 368 (Fla. 1979)). This is a high burden as “all doubts regarding the existence of an issue in a motion for summary judgment are resolved against the moving party, and all evidence before the court plus favorable inferences reasonably justified thereby are to be liberally construed” in favor of the non-moving party. Id. Additionally, the moving party must disprove or establish as legally insufficient the non-moving party’s affirmative defenses. Stop & Shoppe Mart, Inc. v. Mehdi, 854 So.2d 784, 786 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D2089b]. Since “summary judgments deprive the losing party of his or her day in court,” such motions should be granted only when there are no genuine issues of material fact to be resolved by the trial court. Villages at Mango Key Homeowners Ass’n, Inc. v. Hunter Dev., Inc., 699 So.2d 337, 338 (Fla. 5th DCA 1997) [22 Fla. L. Weekly D2271b].
Martins v. PNC Bank, Nat. Ass’n, 2015 WL 4577400, *3 (Fla. 5th DCA 2015) [40 Fla. L. Weekly D1813a]
In this case, the complaint, including Greene’s ledger, and his answers to request for admissions were already filed with the court when it heard the summary judgment motion. Count XI of Greene’s complaint alleged USAA breached its contract of insurance with Greene by failing to pay his wage loss claim and, as suggested by his counsel, Greene’s ledger would be admissible in evidence with proper predicate. In the request for admissions, USAA asked Greene to admit he has not suffered any loss of wages as a result of the accident. Greene denied the request. The trial court’s reliance on the necessity for an affidavit or “other hard evidence,” is misplaced. There was sufficient “summary judgment evidence” relied upon that when liberally construed in favor of Greene, it created a genuine issue of material fact as to whether Greene suffered a wage loss. Further, discovery was not yet complete and a deposition of one of Greene’s meat market vendors was contemplated. Martins, 2015 WL 4577400 at *4 (“If there is good faith discovery still in progress, the trial court should not grant the moving party’s motion for summary judgment.”). In sum, there were genuine issues of material fact to be resolved by the trial court such that summary judgment was inappropriate.
Accordingly, we reverse the trial court’s order granting USAA’s amended motion for summary judgment and remand for further proceedings.
REVERSED AND REMANDED. (SEMENTO and HODGES, JJ., concur.)
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1USAA argues that other than the self-created ledger, Greene did not provide any documentation to support his wage loss claim, such as tax returns, wage receipts, bank statements, checking account book, deposit slips, purchase orders, etc.
2There was also a motion pending from USAA requesting sanctions pursuant to section 57.105, Florida Statutes, for Greene’s failure to support his wage loss claim. The Court denied the motion and the ruling is not on appeal.
3USAA originally calculated the claim’s value at $3,024.00 (60% of $5,040.00) when it filed the motion to transfer jurisdiction.
