ORTHOPEDIC & SPINE INJURIES, LLC A/A/O GIANNINA BARRANTES
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
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The plaintiff appealed a county court's dismissal of its action for unpaid Personal Injury Protection (PIP) benefits based on the plaintiff's failure to comply with an order to file a motion for summary judgment. The appellate court accepted the defendant's confession of error and reversed, finding the trial court violated due process and improperly required summary judgment when both parties had requested a jury trial.
The appellate court reversed the dismissal order, holding that the trial court violated due process by failing to provide notice and an opportunity to be heard before dismissing the action, and improperly required a motion for summary judgment when both parties had requested a jury trial on the factual question of medical necessity.
[1] Whether a medical service is 'necessary' under Florida's Personal Injury Protection statute is a question of fact for the jury and cannot be resolved by summary judgment…
[2] A trial court must provide notice and an opportunity to be heard before dismissing an action, even sua sponte.
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Join FLexlaw to unlock all legal intelligence“Due process requires notice and an opportunity to be heard prior to dismissal.”
Court's citation to Comprehensive Spine Ctr., PLLC v. Equity Ins. Co.
The plaintiff filed an action seeking unpaid PIP benefits. Both the plaintiff and defendant requested a jury trial on the disputed issue of whether th…
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Appeal from the County Court for the Seventeenth Judicial Circuit, Broward County; Ellen Feld, Judge; L.T. Case No. COWE-20-004299.
John C. Daly and Matthew C. Barber of Daly & Barber, P.A., Plantation, for appellant.
Nancy A. Copperthwaite and Marcy Levine Aldrich of Akerman LLP, Miami, for appellee.
ON CONFESSION OF ERROR PER CURIAM. The plaintiff appeals from the county court’s final order sua sponte dismissing its action for unpaid PIP benefits. The court entered the dismissal order on the basis that the plaintiff failed to comply with the court’s previous order giving the plaintiff a certain time period to file a motion for summary judgment. Notably, the court required the plaintiff to file a motion for summary judgment despite both parties requesting a jury trial on the disputed issue of whether the plaintiff’s services were medically necessary and/or related to the automobile accident. The defendant has filed a confession of error on the basis that the court: (1) failed to give the plaintiff notice or the opportunity to be heard before dismissing the action; and (2) improperly required the submission of a motion for summary judgment when both parties had requested a jury trial. We accept the defendant’s confession of error. See Comprehensive Spine Ctr., PLLC v. Equity Ins. Co., 330 So. 3d 35, 37 (Fla. 4th DCA 2021) (“Due process requires notice and an opportunity to be heard prior to dismissal.” (quoting Fed. Nat’l Mortg. Ass’n v. Sanchez, 187 So. 3d 341, 342 (Fla. 4th DCA 2016))); Derius v. Allstate Indem. Co., 723 So. 2d 271, 274 (Fla. 4th DCA 1998) (“Whether a given medical service is ‘necessary’ under [Florida’s PIP statute] is a question of fact for the jury.”). Based on the foregoing, we reverse the final order of dismissal and remand for further proceedings consistent with this opinion.
Reversed and remanded. WARNER, GROSS and DAMOORGIAN, JJ., concur. * * * Not final until disposition of timely filed motion for rehearing.
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Scott v. Gunter, 447 So. 2d 272 (Fla. 1st DCA 1983)…1980) (30 days prior residency required before bar exam); Gordon v. Committee on Character and Fitness, 48 N.Y.2d 266, 397 N.E. 2d 1309, 422 N.Y.S.2d 641 (1979) (six months prior residency required of applicants for bar admission); Kuczka v. Clark, 110 Misc.2d 273, 441 N.Y. S.2d 854 (N.Y.Sup.Ct.1981) (four months prior residency required of applicants for municipal jobs), rev’d on other grounds, 86 A.D.2d 980, 448 N.Y.S.2d 325 (N.Y.App.Div.1982) (applicant above age limit; residency issue not reached). Altho…
Authorities Cited
- Derius v. Allstate Indem. Co., 723 So. 2d 271 (Fla. 4th DCA 1998)
- Fed. Nat'l Mortg. Ass'n v. Astrid Sanchez, 187 So. 3d 341 (Fla. 4th DCA 2016)