SOUTH FLORIDA WELLNESS

v.

PROGRESSIVE SELECT INSURANCE

Before: TRAWICK, WALSH and SANTOVENIA, JJ.

Filing # 116884978 E-Filed 11/18/2020 01:20:31 Roni Mayo, an insured of Progressive Select Insurance Company (“Progressive”), was allegedly injured in an automobile accident and received treatment from South Florida Wellness, Inc. (“South Florida” or “Provider”). Mayo alleged she was injured when her husband hit her with his car during an altercation. Mayo assigned her benefits under her Progressive policy (the “Policy”) to Provider, who filed a claim with Progressive. The bills for Mayo’s treatment which were submitted for payment to Progressive indicated an accident date of June 23, 2017 and that the medical services were provided to Mayo by South Florida commencing on July 11, 2017, outside of the 14-day period in Section 627.736, Fla. Stat. (2016). Progressive denied the claim, arguing that Mayo had failed to seek treatment for her alleged injuries within 14 days of the alleged motor vehicle accident. Provider demanded payment and later filed suit alleging that Progressive failed to pay personal injury protection (“PIP”) benefits claimed due under the Policy. The complaint, however, alleges that the motor vehicle accident occurred not on June 23, 2017, but on July 10, 2017. Consistent with its pre-suit denial of the claim, Progressive asserted, inter alia, an affirmative defense based on Section 627.736(1)(a), Fla. Stat. that Mayo had failed to seek treatment within 14 days of the accident and filed a summary judgment motion premised on that affirmative defense. [*3] Page 3 of 11 The trial court granted summary judgment in favor of Progressive by order dated January 7, 2018. This appeal followed. Analysis The standard of review for summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). “Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to summary judgment as a matter of law.” Id. “[T]he court must draw every possible inference in favor of the party against whom a summary judgment is sought.” Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985). “A summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law”. Id. In evaluating whether summary judgment is appropriate, the trial court must determine whether the record evidence conclusively demonstrates that the moving party proved no genuine issues of material fact exist, i.e., “to ‘establish irrefutably that the nonmoving party cannot prevail were a trial to be held.’ ” Redland Ins. Co. v. Cem Site Constructors, Inc., 86 So. 3d 1259, 1261 (Fla. 2d DCA 2012) (emphasis in original) (quoting Land Dev. Servs., Inc. v. Gulf View Townhomes, LLC, 75 So. 3d 865, 868 (Fla. 2d DCA 2011)); Hervey v. Alfonso, 650 So. 2d 644, 645-46 (Fla. 2d DCA 1995); accord Estoril Inc. v. Mayfield Condo. Ass'n, Inc., 104 So. 3d 386, [*4] Page 4 of 11 388-89 (Fla. 3d DCA 2013). Once the movant produces competent evidence in support of summary judgment, “the opposing party must come forward with counterevidence sufficient to reveal a genuine issue” of material fact. Landers v. Milton, 370 So. 2d 368, 370 (Fla. 1979); accord Valderrama v. Portfolio Recovery Assocs., Inc., 972 So. 2d 239 (Fla. 3d DCA 2007). However, “[u]ntil it is determined that the movant has successfully met this burden, the opposing party is under no obligation to show that issues do remain to be tried.” Holl v. Talcott, 191 So. 2d 40, 43 (Fla. 1966); see Deutsch v. Global Fin. Servs., LLC, 976 So. 2d 680, 682 (Fla. 2d DCA 2008) (“The burden of proving the existence of genuine issues of material fact does not shift to the opposing party until the moving party has met its burden of proof.”); Berenson v. S. Baptist Hosp. of Fla., Inc., 646 So. 2d 809, 810 (Fla. 1st DCA 1994) (noting that “the nonmoving party need make no showing in support of his claim until the moving party has, by affidavit or otherwise, completely negated all allegations and inferences raised by the nonmoving party”). Progressive’s summary judgment motion is premised on Section 627.736(1)(a), Fla. Stat., which provides in relevant part that: An insurance policy complying with the security requirements of s. 627.733 must provide personal injury protection to the named insured…and other persons struck by the motor vehicle and suffering bodily injury while not an occupant of a self-propelled vehicle, subject to subsection (2) and paragraph (4)(e), to a limit of $10,000 in medical and disability benefits and $5,000 in death benefits resulting from [*5] Page 5 of 11 bodily injury, sickness, disease, or death arising out of the ownership, maintenance, or use of a motor vehicle as follows: (a) Medical benefits.—Eighty percent of all reasonable expenses for medically necessary medical, surgical, X-ray, dental, and rehabilitative services, including prosthetic devices and medically necessary ambulance, hospital, and nursing services if the individual receives initial services and care pursuant to subparagraph 1. within 14 days after the motor vehicle accident. (emphasis added). Progressive filed the affidavit of Lisa A. Campbell, its litigation adjuster, in support of its summary judgment motion. The Campbell affidavit states only that the Policy was in full force and effect on the date of the alleged accident, June 23, 2017. (R. 36). No other factual allegations are included in the affidavit regarding the date of the motor vehicle accident. Mayo’s medical records include a treatment note from Nathalie Leroy, M.D. at a different clinic, Miami Beach Community Health Center, indicating treatment on June 22, 2017 for a motor vehicle accident on June 16, 2017. Provider filed the affidavit of Mayo’s treating physician at South Florida, Zachary Dvorkin, D.C., which attached Dr. Leroy’s June 22, 2017 treatment note. Mayo sought to admit Dr. Leroy’s treatment note contained in Dr. Dvorkin’s records as a business record. Mayo also filed her affidavit stating that her review of her doctor’s treatment note [*6] Page 6 of 11 had refreshed her recollection and that the motor vehicle accident had occurred on June 16, 2017, and not on June 23, 20171. However, Plaintiff filed but did not identify the Mayo or Dvorkin affidavits as evidence in opposition to Progressive’s summary judgment motion. The trial court thus rejected the affidavits as not complying with Rule 1.510(c)’s requirement that 5 days prior to the hearing, the party opposing a summary judgment motion must identify the evidence that it relies on in opposition to the summary judgment motion. See Rule 1.510(c), Fla. R. Civ. P. The rule provides that: The motion 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. The movant shall serve the motion at least 20 days before the time fixed for the hearing, and shall also serve at that time a copy of any summary judgment evidence on which the movant relies that has not already been filed with the court. The adverse party shall identify, by notice served pursuant to rule 1.080 at least 5 days prior to the day of the hearing, or delivered no later than 5:00 p.m. 2 business days prior to the day of the hearing, any summary judgment evidence on which the adverse party relies. To the extent that summary judgment evidence has not already been filed with the court, the adverse party shall serve a copy on the movant pursuant to rule 1.080 at least 5 days prior to the day of the hearing, or by delivery to the movant's attorney no later than 5:00 p.m. 2 business days prior to the day of hearing.

[*7] Page 7 of 11 Fla. R. Civ. P. 1.510(c) (emphasis added).

The trial court rejected Provider’s affidavits, found that Provider had not presented any evidence in opposition to Progressive’s summary judgment motion and granted the motion, relying on State Farm Mutual Automobile Ins. Co. v. Figler Family Chiropractic, P.A., 189 So. 3d 970 (Fla. 4th DCA 2016). Provider argues on appeal that summary judgment should not have been entered in Progressive’s favor below because there are disputed issues of material fact precluding summary judgment as to the date of the accident and that Progressive’s affidavit is insufficient to satisfy Progressive’s burden on its summary judgment motion. We agree. The burden of showing an absence of a material issue of fact is on the movant. Jones v. State Farm Mutual Automobile Insurance Company, 694 So. 2d 165 (Fla. 5th DCA 1997). While it is true that an opposing party must go beyond merely asserting that an issue exists to defeat summary judgment, Landers, supra., 370 So. 2d at 370, the non-moving party has no obligation to file a counter-affidavit or counterevidence if the moving party has failed to meet its initial burden of proving the absence of any genuine issues of material fact. Gidwani v. Roberts, 248 So. 3d 203, 207-08 (Fla. 3d DCA 2018) (citing Deehl v. Sparks Constr. Co., 191 So. 2d 605, 607 (Fla. 3d DCA 1966) (“The burden of showing absence of any genuine issue is on the moving party for summary [*8] Page 8 of 11 judgment, and the burden of proving the existence of such issue is not shifted to the opposing party until the movant has successfully met such burden.”). As to the date of the accident, the affidavit of Campbell, Progressive’s adjuster and records custodian, states only that the Policy was in full force and effect on the date of the alleged accident, June 23, 2017. Campbell’s affidavit is based on the documents in her file. She concludes that because Provider failed to submit to Progressive any records showing Mayo received medical treatment within 14 days of the alleged accident date of June 23, 2017, PIP benefits were properly denied by Progressive and that no PIP benefits are due. We find that the Campbell affidavit is conclusory. See Gidwani, supra., 248 So. 3d at 207-08 (only competent evidence may be considered on motions for summary judgment); Land Dev. Servs., Inc. v. Gulf View Townhomes, LLC, 75 So. 3d 865, 870 (Fla. 2d DCA 2011) (holding that a bare assertion in an affidavit without any supporting facts or documents was nothing more than a factual conclusion); see also Ramsey v. Home Depot U.S.A., Inc., 124 So. 3d 415 (Fla. 1st DCA 2013) (conclusory expert affidavit does not create issue of fact); Heitmeyer v. Sasser, 664 So. 2d 358 (Fla. 4th DCA 1995) (holding that an expert’s affidavit was conclusory because it did not provide any reasoning to support the expert’s conclusions). [*9] Page 9 of 11 Campbell bases her conclusion on the absence of evidence presented by the Provider. This does not establish affirmatively the absence of a material disputed fact regarding the date of the accident. We find the case of Gulf View Townhomes, supra., to be informative on this issue. In that case, the court addressed the inappropriate grant of summary judgment to a defendant based upon the failure of the Plaintiff’s proof: Because summary judgment is not a substitute for trial, when a defendant moves for summary judgment, the court is not called upon to determine whether the plaintiff can actually prove its cause of action… In this case, when Gulf View moved for summary judgment, it argued that Land Development could not prevail because the original note and mortgage were not “in evidence.” However, at that point Land Development…had no burden to come forward with the evidence necessary to prove its case. Instead, the burden was on Gulf View to prove that Land Development could never prove its case—not that it had not already done so. Gulf View's bare assertion that the original note was not “in evidence” at the time of the hearing was legally insufficient to meet its burden to prove that Land Development could not prevail were a trial to be held. Thus, the trial court erred in granting final summary judgment in favor of Gulf View at this stage of the proceedings based on the absence of the original note from the court file.

75 So. 3d at 869 (citations omitted) (emphasis in original). The Campbell affidavit is based on the absence of evidence - that Mayo did not submit records to Progressive indicating that she received treatment within 14 [*10] Page 10 of 11 days of the date of the alleged accident. This affidavit is not sufficient to show the absence of a dispute as to the material facts of the accident date or the treatment dates. Applying the analysis in Gulf View Townhomes, Progressive’s affidavit does not establish that Provider cannot prove at trial that Mayo received treatment within 14 days of the accident. As such, the Campbell affidavit lacks the necessary evidentiary foundation for the opinion statements made therein. Also, the affidavit refers to one of the alleged accident dates, but does not aver that the accident did occur on any specific date. Accordingly, we find that Progressive failed to meet its initial burden so that the burden never shifted to Provider to show that there is a disputed issue of material fact. Also, since the complaint alleges that the date of accident was July 10, 2017, the pleadings and the Campbell affidavit conflict and do not show that there is no genuine issue of material fact evident in the record below. Contrast Rule 1.510(c), Fla. R. Civ. P. (“The judgment sought must be rendered immediately 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”) (emphasis added). Applying the foregoing standards, the trial court erred in granting Progressive’s summary judgment motion where the Campbell affidavit did not satisfy Progressive’s burden of proof to show that there were no genuine issues of [*11] Page 11 of 11 material fact. Even if Provider failed to comply with Rule 1.510(c), Fla. R. Civ. P. and Figler so that Provider’s affidavits in opposition to Progressive’s summary judgment motion were properly excluded, the burden to show that there is a material issue of fact precluding summary judgment never shifted to Provider. Accordingly, the trial court erred in granting summary judgment in favor of Progressive. For the foregoing reasons, the summary judgment in favor of Progressive is REVERSED. Appellant’s Motion for Attorney’s Fees is conditionally GRANTED upon Appellant prevailing below. The case is remanded to the lower court to determine the amount of a reasonable fee. TRAWICK, WALSH and SANTOVENIA, JJ. Concur. COPIES FURNISHED TO COUNSEL

OF RECORD AND TO ANY PARTY

NOT REPRESENTED BY COUNSEL.

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