25 Fla. L. Weekly Supp. 811a
Online Reference: FLWSUPP 2509CALIInsurance — Personal injury protection — Discovery — Admissions — Insurer’s motion for relief from technical violation of rule 1.370 is denied, as insurer has shown no excusable neglect surrounding its failure to timely respond to request for admissions — Summary judgment is entered in favor of medical provider based on admissions regarding prior global settlement of all expired pre-suit demands
STAND-UP MRI & DIAGNOSTIC CENTER, P.A., as assignee of Ashley Caliendo, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2016-21621-CONS. October 27, 2017. Shirley A. Green, Judge. Counsel: David Alexander and Stacey L. Schwartz, Orlando, for Plaintiff. Scharome Wolfe and Michael A. Alfonso, Deerfield Beach, for Defendant.
ORDER ON PLAINTIFF’S MOTION FOR FINALSUMMARY JUDGMENT AND DEFENDANT’SMOTION FOR RELIEF FROM TECHNICALVIOLATION OF F.R.C.P. 1.370
THIS MATTER having come before this Honorable Court on Plaintiff’s Motion for Final Summary Judgment and Defendant’s Motion for Relief from Technical Violation of F.R.C.P. 1.370, and this Honorable Court having heard arguments of counsel on October 19, 2017 and being otherwise fully advised in the premises, finds as follows:
1. Plaintiff filed Plaintiff’s Complaint in this matter on November 11, 2016.
2. On January 6, 2017, the Court executed an order invoking the Florida Rules of Civil Procedure.
3. On March 29, 2017, Plaintiff served Defendant with Plaintiff’s First Request for Admissions to Defendant.
4. Responses to Plaintiff’s First Request for Admissions to Defendant were due on or before May 3, 2017 (inclusive of five (5) days for mailing).
5. Defendant failed to timely respond to Plaintiff’s First Request for Admissions and failed to timely move for an extension of time to so respond. Therefore, Plaintiff’s First Request for Admissions to Defendant, pursuant to Fla. R. Civ. P. 1.370, were deemed admitted.
6. On May 5, 2017, Defendant filed an untimely motion for extension of time to respond to Plaintiff’s First Request for Admissions and Plaintiff’s First Set of Interrogatories to Defendant.
7. On May 11, 2017, Defendant filed untimely responses to Plaintiff’s First Request for Admissions.
8. On May 23, 2017, Plaintiff filed Plaintiff’s Motion for Final Summary Judgment.
9. Thereafter, on May 23, 2017, Defendant filed its motion for relief.
10. Fla. R. Civ. P. 1.090(b) states in pertinent part as follows:
“When an act is required or allowed to be done at or within a specified time by order of court, by these rules, or by notice given thereunder, for cause shown the court at any time in its discretion (1) with or without notice, may order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made and notice after the expiration of the specified period, may permit the act to be done when failure to act was the result of excusable neglect, but it may not extend the time for making a motion for new trial . . .” (emphasis added).
11. Defendant has failed to file any evidence in opposition to Plaintiff’s Motion for Final Summary Judgment and has shown no excusable neglect surrounding its failure to respond to Plaintiff’s First Request for Admissions.
12. No affidavit, sworn statement, or verified motion was presented to this Court by Defendant at the hearing on Plaintiff’s Final Summary Judgment. Unsworn to representations of counsel are insufficient to prove excusable neglect. See Polygram Latino, U.S. v. Torres, 751 So. 2d 90 (Fla. 3rd DCA 1999) [25 Fla. L. Weekly D58a]. Also see, Vanguard Group, Inc. v. Vanguard Security, Inc., 409 So. 2d 1219 (Fla. 3rd DCA 1982); Yu v. Weaver, 364 So. 2d 539 (Fla. 4th DCA 1978); Callaghan v. Callaghan, 337 So. 2d 986 (Fla. 4th DCA 1976).
13. “The failure of a party to take the required steps necessary to protect its own interests, cannot, standing alone, be grounds to vacate judicially authorized acts to the detriment of other innocent parties. The law requires certain diligence of those subject to it, and this diligence cannot be lightly excused.” Goldome v. Davis, 567 So. 2d 909, 910 (Fla. 2nd DCA 1990) citing John Crescent, Inc. v. Schwartz, 382 So. 2d 383, 385-86 (Fla. 4th DCA 1980).
14. Plaintiff has been prejudiced by Defendant’s failure to timely respond to Plaintiff’s First Request for Admissions, and Defendant has offered no evidence to rebut Plaintiff’s summary judgment evidence.
It is therefore, ORDERED AND ADJUDGED that:
1. Defendant’s Motion for Relief from Technical Violation of F.R.C.P. 1.370 is hereby DENIED. It is hereby deemed admitted that:
A. State Farm authorized contact with Bradford Cederberg, P.A. on or about April 1, 2015 to discuss global resolution of all expired demands dated before March 15, 2015 that had been served upon any State Farm entity and for which suit had not yet been filed.
B. State Farm was represented by John Morrow, Esquire, Matthew Corker, Esquire and Bruce Tompkins, Esquire in the settlement discussions between Bradford Cederberg, P.A. and State Farm on all expired demands dated before March 15, 2015 that had been served upon any State Farm entity and for which suit had not yet been filed.
C. State Farm was represented by John Morrow, Esquire, Matthew Corker, Esquire and Bruce Tompkins, Esquire in the settlement agreement between Bradford Cederberg, P.A. and State Farm on all expired demands dated before March 15, 2015 that had been served upon any State Farm entity and for which suit had not yet been filed.
D. State Farm entered into a global settlement agreement with Bradford Cederberg, P.A. on all expired demands dated before March 15, 2015 that had been served upon any State Farm entity and for which suit had not yet been filed.
E. The settlement terms were reached between Bradford Cederberg, P.A. and State Farm on April 10, 2015 on all expired demands dated before March 15, 2015 that had been served upon any State Farm entity and for which suit had not been filed.
F. The settlement terms included a single sum per identified matter for benefits, interest, costs and attorney’s fees on all expired demands dated before March 15, 2015 that had been served upon any State Farm entity and for which suit had not yet been filed.
G. State Farm made an initial wire transfer to the trust account of Bradford Cederberg, P.A. on or about April 15, 2015 said payment representing a partial payment on all expired demands dated before March 15, 2015 that had been served upon any State Farm entity and for which suit had not yet been filed, in accordance with the settlement terms.
H. Prior to April 10, 2015, State Farm provided Bradford Cederberg a spreadsheet that contained a total of 1509 separate claims it was seeking to settle as part of all expired demands dated before March 15, 2015 that had been served upon any State Farm entity and for which suit had not yet been filed.
I. Upon receiving State Farm’s Spreadsheet containing 1509 separate claims, Bradford Cederberg promptly, prior to April 10, 2015 and before negotiating a settlement advised that there were thousands of additional claims not included on the spreadsheet provided by State Farm and that a compilation of all expired demands dated before March 15, 2015 that had been served upon any State Farm entity and for which suit had not yet been filed by Bradford Cederberg P.A. would take several weeks.
J. After being apprised of the additional claims of Bradford Cederberg State Farm agreed, on April 10, 2015, to settle all expired demands dated before March 15, 2015 that had been served upon any State Farm entity and for which suit had not yet been filed including all claims that Bradford Cederberg, P.A. could provide documentation establishing that the claim met the stated criteria.
K. On April 10, 2015 State Farm agreed to make an initial wire transfer of $1,509,000 on April 15, 2015, representing payment of a portion of the expired demands dated before March 15, 2015 that had been served upon any State Farm entity for which suit had not been filed and agreed to make a second wire transfer on April 30, 2015, representing the balance of the settlement of expired demands dated before March 15, 2015 that had been served upon any State Farm entity for which suit had not been filed, pending receipt of a spreadsheet and supporting documentation from Bradford Cederberg on or before April 24, 2015.
L. Pursuant to State Farm’s request, a spreadsheet with supporting documentation was provided by Bradford Cederberg, P.A. to State Farm’s counsel on April 21, 2015, that contained the balance of all expired demands dated before March 15, 2015 that had been served upon any State Farm entity and for which suit had not yet been filed, in accordance with the terms of the settlement agreement.
M. State Farm did not make the agreed per claim wire transfer in accordance with the settlement agreement by the stated date of April 30, 2015.
N. State Farm provided no written explanation for the breach of the settlement agreement and its non-payment of the balance of the settlement proceeds to be wired to the trust account of Bradford Cederberg, P.A. on April 30, 2015.
O. State Farm never refuted the assertions by Bradford Cederberg, P.A. that State Farm breached the settlement agreement.
P. John Morrow, Esquire authored a letter dated April 10, 2015 which was sent to Bradford Cederberg, P.A. confirming settlement of all expired demands dated before March 15, 2015 that had been served upon any State Farm entity and for which suit had not yet been filed.
Q. Matthew Corker, Esquire reiterated to Bradford Cederberg, P.A. both before and after April 10, 2015 that benefits remaining under any particular policy was not a term of the settlement agreement of all expired demands dated before March 15, 2015 that had been served upon any State Farm entity and for which suit had not yet been filed.
R. State Farm’s counsel, Matthew Corker, Esquire advised Bradford Cederberg, P.A. to disregard the portion of the April 10, 2015 letter in the last line on page 1 that includes, “that the policy has benefits remaining”.
S. State Farm included in the global settlement of all expired demands dated before March 15, 2015 that had been served upon any State Farm entity and for which suit had not yet been filed, matters in which the statute of limitations had run.
T. State Farm included in the global settlement of all expired demands dated before March 15, 2015 that had been served upon any State Farm entity and for which suit had not yet been filed, matters in which benefits were exhausted.
U. State Farm included in the global settlement of all expired demands dated before March 15, 2015 that had been served upon any State Farm entity and for which suit had not yet been filed, matters in which State Farm’s policy had expired.
V. State Farm included in the global settlement of all expired demands dated before March 15, 2015 that had been served upon any State Farm entity and for which suit had not yet been filed, matters in which State Farm asserted that the policy at issue was an out of state policy.
W. State Farm included in the global settlement of all expired demands dated before March 15, 2015 that had been served upon any State Farm entity and for which suit had not yet been filed, matters in which State Farm contended the injured claimant was not a State Farm insured.
X. State Farm included in the global settlement of all expired demands dated before March 15, 2015 that had been served upon any State Farm entity and for which suit had not yet been filed, matters in which State Farm asserted there was no coverage for the loss.
Y. State Farm included in the global settlement of all expired demands dated before March 15, 2015 that had been served upon any State Farm entity and for which suit had not yet been filed, matters in which State Farm contended the policy in effect was a motorcycle policy for which there was no PIP coverage.
Z. State Farm included in the global settlement of all expired demands dated before March 15, 2015 that had been served upon any State Farm entity and for which suit had not yet been filed, matters in which pre-suit demands were never served by Bradford Cederberg, P.A.
2. Plaintiff’s Motion for Final Summary Judgment is hereby GRANTED.
3. Plaintiff may file a Motion for Final Judgment and the Court will entertain same without the need for a hearing.
