WILLIAM MEJIAH ET AL., APPELLANTS,
v.
OLIVIO RODRIGUEZ AND INTEGON INDEMNITY CORPORATION, APPELLEES
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Plaintiffs sued defendants for injuries from an automobile accident, alleging permanent injury under Florida's no-fault act. The trial court granted summary judgment for defendants based on a treating physician's deposition testimony that he had not yet determined permanent injury existed. The appellate court reversed, holding that the defendants failed to meet their burden of conclusively showing the absence of genuine issues of material fact.
Summary judgment was improperly granted because the defendants failed to meet the required standard of conclusively showing the absence of genuine issues of material fact. The pleadings and deposition did not satisfy the burden necessary to establish defendants' right to summary judgment.
[1] A party moving for summary judgment must conclusively demonstrate the absence of genuine issues of material fact.
[2] The burden on a party moving for summary judgment is to show that the non-moving party cannot prevail, not merely that the facts support the moving party's theory.
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Join FLexlaw to unlock all legal intelligence“The party moving for summary judgment must show conclusively that no material issue remains for trial.”
Establishes the high burden required of the moving party in summary judgment motions
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Join FLexlaw to unlock all legal intelligencePlaintiffs brought suit against defendants for injuries resulting from an automobile accident, alleging permanent injury sufficient to meet Florida's …
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PER CURIAM.
These appeals are from a summary final judgment and an order denying motion to vacate summary judgment. They have been consolidated for all appellate purposes. Plaintiffs brought suit against the defendants alleging injuries resulting from an automobile accident. Permanent injury sufficient to meet the threshold requirements under Florida’s no fault act was alleged by the plaintiffs and denied by the defendants. The deposition of the treating physician was taken. The physician testified that the plaintiffs had not reached maximum medical improvement and, at the time of the deposition, he had not determined the existence of permanent injury. Defendants moved for summary judgment based upon the pleadings and the deposition of the treating physician. Summary final judgment for the defendants was entered. Thereafter, a motion for order vacating summary judgment was filed upon the ground that the treating physician was prepared to testify that the injury was permanent.
The plaintiff may prevail at trial on the basis of a mere preponderance of evidence. However, the party moving for summary judgment must show conclusively that no material issue remains for trial. Visingardi v. Tirone, 193 So. 2d 601 (Fla.1966). The burden of a party moving for summary judgment is greater, not less, than that of the plaintiff at trial. 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. Megdell v. Wieder, 327 So. 2d 781 (Fla.3d DCA 1976). The moving party, upon a motion for summary judgment, has the burden of conclusively showing the absence of genuine issues of material fact. If the existence of such issues or the possibili ty of their existence is reflected in the record, or the record even raises the slightest doubt in this respect, the summary judgment must be reversed. Furlong v. First National Bank of Hialeah, 329 So. 2d 406 (Fla.3d DCA 1976); Williams v. Florida Realty & Management Co., 272 So. 2d 176 (Fla.3d DCA 1973).
The pleadings and the deposition in the instant case did not meet the standard necessary to establish defendants’ right to summary judgment. Therefore, the summary judgment is reversed. Inasmuch as we find that the summary judgment was improperly entered, we need not discuss the issues raised upon plaintiffs’ motion for order vacating summary judgment.
Reversed and remanded.
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Citator
Cited By (21 total)
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Snyder v. Cheezem Dev. Corp., 373 So. 2d 719 (Fla. 2d DCA 1979)…0 (Fla.1966). If the record reflects the existence of any genuine issue of material fact, or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper. Mejiah v. Rodriguez, 342 So. 2d 1066 (Fla. 3d DCA 1977); see Visingardi v. Tirone, 193 So. 2d 601 (Fla.1966). In the Snyder contract, there is an ambiguity as to the identity of the seller between the language on page one and the execution on page two. The trier of fact should resolve…
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Fla. E. Coast Ry. Co. v. Metro. Dade Cnty., 438 So. 2d 978 (Fla. 3d DCA 1983)…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. Commercial Bank & Trust Co., 405 So. 2d 1039 (Fla. 3d DC…
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Burkett v. Don L. Parker and wife, 410 So. 2d 947 (Fla. 1st DCA 1982)…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 Johnso…
Previewing 3 of 21 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Visingardi v. Tirone, 193 So. 2d 601 (Fla. 1966)
- Williams v. Fla. Realty & Mgmt. Co., 272 So. 2d 176 (Fla. 3d DCA 1973)
- Furlong v. First Nat'l Bank OF Hialeah, 329 So. 2d 406 (Fla. 3d DCA 1976)
- Sol Megdell v. Wieder, 327 So. 2d 781 (Fla. 3d DCA 1976)