27 Fla. L. Weekly Supp. 96a
Online Reference: FLWSUPP 2701MORAInsurance — Personal injury protection — Coverage — Medical expenses — Related and medically necessary treatment — Summary judgment is entered in favor of medical provider on issues of relatedness and medical necessity of treatment where provider’s affidavit establishes prima facie case, insurer failed to file timely notice of intent to rely on filed summary judgment evidence in opposing motion for summary judgment, and insurer’s motion for continuance to allow for late-filed notice was not supported by affidavit and merely asserted “clerical oversight” as reason for delay
WEST KENDALL REHAB CENTER, INC. (a/a/o Zoravis Morales), Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 15-7443 COCE (53). April 4, 2017. Robert W. Lee, Judge. Counsel: Majid Vossoughi, Majid Vossoughi, P.A., Miami, for Plaintiff. Jairo Lanao, for Defendant.
SECOND ORDER ON PLAINTIFF’S MOTIONFOR SUMMARY FINAL JUDGMENT(RE: ISSUES TAKEN UNDER ADVISEMENT)
THIS CAUSE came before the Court on March 29, 2017 for hearing of the Plaintiff’s for Summary Final Judgment, and the Court’s having reviewed the Motion, the entire Court file, and the relevant legal authorities; having heard argument; having made a thorough review of the matters filed of record; and having been sufficiently advised in the premises, the Court finds as follows:
Background: By Order of March 31, 2017, this Court granted the Plaintiff’s Motion on all issues except for relatedness and medical necessity of all treatment but the initial examination and x-rays. As to these remaining issues, the Defendant failed to timely provide notice that it intended to rely on any filed “summary judgment evidence.” The Defendant sought a continuance to cure this problem, asserting that “clerical oversight” led to the untimely notice of intent to rely pursuant to Rule 1.510(c). The Defendant did not elaborate on what constituted this “clerical oversight.” The Defendant also argued that even if it failed to timely submit its notice of intent to rely, the Plaintiff’s affidavit of Dr. Jason Levine was nevertheless insufficient to establish a prima facie case. The Court took the matter under advisement, giving the parties until April 2 to provide the Court any case law on these issues for the Court to consider. The Plaintiff submitted its case law; the Defendant did not.
Conclusions of Law. It is undisputed that the Defendant’s notice of intent to rely was untimely and therefore ineffective to thwart summary judgment. See State Farm Mutual Automobile Ins. Co. v. Figler Family Chiropractic, 189 So.3d 970 (Fla. 4th DCA 2016) [41 Fla. L. Weekly D805b]. The Defendant attempted to cure the problem by seeking a continuance to allow for the late-filed notice. A motion for continuance for this purpose must be supported by an affidavit explaining the problem. Rule 1.510(f). Additionally, the delay in filing the required summary judgment evidence must be “excusable.” Giroux v. Ronald W Williams Construction Co., Inc., 705 So.2d 663, 664-65 (Fla. 1st DCA 1998) [23 Fla. L. Weekly D348c] (affidavit required to support motion for continuance of a summary judgment hearing); Carbonell v. BellSouth Telecommunications, Inc., 675 So.2d 705, 706 (Fla. 3d DCA 1996) [21 Fla. L. Weekly D1476a] (finding no support in opposing party’s motion to conclude that the delay was excusable); DeMesme v. Stephenson, 498 So.2d 673, 676 (Fla. 1st DCA 1986) (finding motion for continuance insufficient when it contained no supporting affidavit). There was no supporting affidavit filed in this case, nor was the motion for continuance verified.
Moreover, even if an affidavit were provided, it is insufficient to merely assert that there was a “clerical oversight,” without more. To argue that one’s delay is excusable, the party must explain in detail what happened that arguably constitutes the clerical oversight. See Baptist Hospital of Miami, Inc. v. Demario, 661 So.2d 319, 322 (Fla. 3d DCA 1995) [20 Fla. L. Weekly D2044b] (party’s affidavit did not establish excusable neglect when it did not explain what happened to the lawsuit papers when they were routed to the wrong department); Mathews Corp. v. Green’s Pool Service, 584 So.2d 1006, 1007 (Fla. 3d DCA 1990) (filed affidavits “contain[ed] only conclusory assertions”). Here, the Defendant’s allegations were conclusory and therefore insufficient. Therefore, the Court concludes that the Defendant’s motion for continuance of the summary judgment hearing to file a timely notice of intent to rely is legally insufficient.
As for the Plaintiff’s prima facie case based on Dr. Levine’s affidavit, the Court finds that the affidavit is sufficient, particularly taking into consideration the extensive medical records reviewed by Dr. Levine, and his opinion detailed in paragraphs 6-8 of the affidavit. Accordingly, it is hereby
ORDERED and ADJUDGED that the Plaintiff’s Motion for Final Summary Judgment is GRANTED. The Plaintiff shall submit a proposed Final Judgment conforming to the provisions of this Order. As this Order resolves the outstanding issues in this case, the pretrial conference set for May 26, 2017 is hereby CANCELED.
