BARBARA MYERS AND WARREN MYERS, HER HUSBAND, APPELLANTS,
v.
CHARLOTTE COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA, APPELLEE
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The court held that conflicting evidence regarding the mailing and receipt of statutory notice precludes summary judgment.
Appellants claim they sent written notice to the Department of Insurance as required by statute, supported by an affidavit and office procedures. The …
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PER CURIAM.
This controversy concerns whether or not the appellants gave written notice to the Department of Insurance as is required by section 768.28(6)(a), Florida Statutes (1987). The trial court granted a summary judgment on this issue in favor of the appellee. We reverse.
By affidavit and deposition, Stephen Rush, a legal assistant in the law firm representing appellants, testified that he had such a letter prepared and that he signed it. The firm’s file copy of the letter is in evidence. He further related the normal office procedures of the firm which, if followed, would have resulted in the letter being mailed.
Representatives of the Department of Insurance testified as to its office procedures pertaining to the receipt and handling of mail, which if followed, reflect that the letter was not received. This conflicting evidence must be resolved by the trier of fact, in this case the jury, and summary judgment was improper. See Robinson v. Hillsborough Area Regional Transit Authority, 545 So. 2d 478 (Fla. 2d DCA 1989).
Reversed and remanded.
SCHEB, A.C.J., and. FRANK and PATTERSON, JJ., concur.
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Margaree Scarlett v. Pub. Health Tr. OF Dade Cnty., 584 So. 2d 75 (Fla. 3d DCA 1991)…as was routine office procedure. Jackson Memorial Hospital submitted the affidavit of an administrator of the Department of Insurance, stating that no claim by either of the Scarletts had been received. As in the case of Myers v. Charlotte County, 555 So. 2d 1322 (Fla. 2d DCA 1990), faced with such conflicting evidence, the issue must be resolved by the trier of fact, and summary judgment as to Ms. Scarlett’s claim was improper. See Robinson v. Hillsborough Area Regional Transit Auth., 545 So. 2d 478 (Fla. 2…
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Brewer v. Gulfcoast Transit Co., Inc., 679 So. 2d 341 (Fla. 2d DCA 1996)…avit of Raymond Carl Smith and the exhibits attached to it. The affidavit attempts to explain conflicts within the exhibits. Resolution of such conflicts is for the trier of fact and cannot be resolved by summary judgment. Myers v. Charlotte County, 555 So. 2d 1322 (Fla. 2d DCA 1990). The discrepancy in Gulfcoast’s own proof raises a genuine issue of material fact as to the ownership of the crane. See, e.g., Knight v. Roberts RV Resort, 671 So. 2d 298 (Fla. 2d DCA 1996) (reversing summary judgment in negligenc…
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- Early Robinson v. Hillsborough Area Reg'l Transit Auth., 545 So. 2d 478 (Fla. 2d DCA 1989)