PEGGY J. BURKETT, APPELLANT,
v.
DON L. PARKER AND WIFE, JERENE L. PARKER; AND UNITED SERVICES AUTOMOBILE ASSOCIATION, APPELLEES
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The dissenting judge argued that there was no competent evidence of permanent injury to allow a tort action following a motor vehicle accident, and thus the trial court's summary judgment for the defendant was correct.
The dissenting judge believed the trial court's summary judgment for the defendant was correct because the plaintiff failed to present competent evidence of a permanent injury that would meet the statutory threshold for a tort action.
The plaintiff sustained a fracture and scar tissue from a motor vehicle accident. The treating physician testified there was no likely permanent injur…
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PER CURIAM.
Peggy J. Burkett appeals a summary final judgment entered by the trial court dismissing her complaint for personal injuries for failure to meet the threshold requirements of Section 627.737(2), Florida Statutes, allowing a tort action for damages suffered in a motor vehicle accident for “permanent injury,” other than “scarring or disfigurement.” We reverse. Summary judgment procedure is not a trial by affidavit or deposition, and may not be used as a substitute for trial. Manucy v. Manucy, 362 So. 2d 478 (Fla. 1st DCA 1978); Navison v. Winn and Lovett Tampa, Inc., 92 So. 2d 531 (Fla.1957); Jones v. Stoutenburgh, 91 So. 2d 299 (Fla.1957). Where the evidence before the trial court is susceptible of more than one inference, one of which will support the plaintiff’s view of the facts, a summary judgment for the defendant should not be entered. Titan Agencies, Inc. v. S. Kornreich & Sons, 355 So. 2d 457 (Fla. 3rd DCA 1978). The burden of the movant in a motion for summary judgment is not simply to show that the facts support his own theory of the case but rather to demonstrate that the facts show that the party moved against cannot prevail. Mejiah v. Rodriguez, 342 So. 2d 1066 (Fla. 3rd DCA 1977).
Under the foregoing principles, we conclude that a genuine issue existed of whether plaintiff’s injury comes within the “permanent injury” requirement of the statute, Section 627.737(2), precluding summary judgment. See Johnson v. Phillips, 345 So. 2d 1116 (Fla. 2nd DCA 1977).
Although Section 627.737 has been held unconstitutional in Dillon v. Chapman, 404 So. 2d 354 (Fla. 5th DCA 1981), the constitutional issue was not raised in the trial court. Therefore, the statute is still applicable in this case, unless and until the ruling in Dillon v. Chapman, supra, is affirmed by the Florida Supreme Court.
REVERSED.
LARRY G. SMITH and WIGGINTON, JJ., concur. ROBERT P. SMITH, Jr., C. J., dissents with opinion.
ROBERT P. SMITH, Jr., Chief Judge,
dissenting.
The question here is whether there is competent evidence tending to show that Burkett sustained a permanent injury entitling her to pursue a tort action arising out of a motor vehicle accident. She sustained a one-centimeter fracture in her left foot and, as is always the case, the resulting scar tissue is permanent in the sense that it will always be there. No physician, however, testified that by reason of scar tissue or otherwise Burkett would likely suffer permanent disability, discomfort, or other adverse effects. Plaintiff sued two months after her injury and defendant’s motion for summary judgment was determined eight months later. The treating physician expressed an opinion that there was no permanent injury though conceded, when pressed, “Is it possible? Yes, I suppose it is possible, yes,” permanency “could be possible.” His testimony that there was no likely permanent injury distinguishes this case from Graff v. McNeil, 322 So. 2d 40 (Fla. 1st DCA 1975).
No permissible inference of permanent injury otherwise arises from this record. Compare Sullivan v. Price, 368 So. 2d 614 (Fla. 1st DCA 1979).
I therefore think the trial court’s summary judgment was entirely correct, and that this claim is barred by section 627.737, Florida Statutes (1981).
I would affirm.
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Connelly v. Arrow AIR, Inc., 568 So. 2d 448 (Fla. 3d DCA 1990)…City of Live Oak v. Arnold, 468 So. 2d 410 (Fla. 1st DCA 1985); Kent Ins. Co. v. Glades Liquors, Inc., 418 So. 2d 1101 (Fla. 3d DCA 1982), rev. denied, 429 So. 2d 6 (Fla.1983); Davis v. Hathaway, 408 So. 2d 688 (Fla. 2d DCA 1982); Burkett v. Parker, 410 So. 2d 947 (Fla. 1st DCA 1982); Campanella v. Shuford, 336 So. 2d 1257 (Fla. 1st DCA 1976). On the record before us, jury issues are present. Reversed and remanded for further proceedings. . Fisher v. Shenandoah Gen. Constr. Co. and Spivey v. Battaglia, infr…
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Theresa Singer Ad Litem for Ann Doe v. Star, 510 So. 2d 637 (Fla. 4th DCA 1987)…the movant is entitled to judgment as a matter of law. If the evidence is susceptible of several inferences, one of which will support the non-moving party's theory of the case, the issue should be determined by the trier of fact. Burkett v. Parker, 410 So. 2d 947 (Fla. 1st DCA 1982). 486 So. 2d at 638. The trial court did not specifically address the apparent agency theory in its final summary judgment, but simply stated that the identification badges were irrelevant. Since the identification badges and th…
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Fla. E. Coast Ry. Co. v. Metro. Dade Cnty., 438 So. 2d 978 (Fla. 3d DCA 1983)…o. 2d 40 (Fla.1966). The burden of the movant for summary judgment is not simply to show that the facts support its own theory of the case, but rather to demonstrate that the facts show that the party moved against cannot prevail. Burkett v. Parker, 410 So. 2d 947 (Fla. 1st DCA 1982); Mejiah v. Rodriguez, 342 So. 2d 1066 (Fla. 3d DCA 1977). The moving party has the burden of conclusively showing the absence of genuine issues of material fact. Wills v. Sears, Roebuck & Co., 351 So. 2d 29 (Fla.1977); Seinfeld v…
Previewing 3 of 18 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jones v. Stoutenburgh, 91 So. 2d 299 (Fla. 1956)
- Mejiah v. Olivio Rodriguez & Integon Indem. Corp., 342 So. 2d 1066 (Fla. 3d DCA 1977)
- Graff v. McNEIL, 322 So. 2d 40 (Fla. 1st DCA 1975)
- Brayton v. State, 404 So. 2d 354 (Fla. 4th DCA 1981)
- Shirmon v. State, 362 So. 2d 478 (Fla. 1st DCA 1978)
- Myron M. Navison v. Winn & Lovett Tampa, Inc., 92 So. 2d 531 (Fla. 1957)
- Johnson v. Phillips, 345 So. 2d 1116 (Fla. 2d DCA 1977)
- Titan Agencies, Inc. v. S. Kornreich & Sons, Inc., 355 So. 2d 457 (Fla. 3d DCA 1978)
- Sullivan v. Price, 368 So. 2d 614 (Fla. 1st DCA 1979)