Casualty

The lower court suit in this matter involved the appellee’s contention that the personal injury protection (PIP) policy limit of $10,000 had exhausted and therefore, no policy benefits remained in light of the appellant’s contention that it had been underpaid PIP benefits for services it had rendered to Eileen Thibodeaux. 

The appellee filed its motion for summary judgment related to its policy exhaustion defense on February 15, 2023, and filed its supporting affidavit on February 21, 2023. The hearing on the motion occurred on February 22, 2023, with the court ruling in favor of the appellee. 

On appeal, one of the arguments that the appellant put forward was that the motion should not have been granted due to the appellee’s failure to comply with Florida Rule of Civil Procedure 1.510’s procedural requirements, namely the summary judgment evidence rule as enumerated under Florida Rule of Civil Procedure 1.510(b), which requires that evidence supporting the summary judgment be filed at least 40 days before the hearing. In analyzing the issue, the Fourth District relied on its ruling in Coastal Caribbean Corp v. Rawlings, 361 So. 2d 719 (Fla. 4th DCA 1978,) which requires that the time requirement set forth in procedural rules shall be followed “in all but extraordinary circumstances.” 

In response, the appellee argued a lack of prejudice on the part of the appellant, arguing that the late affidavit in no way would have affected the appellant from being able to prepare for the hearing. 

The Fourth District Court found this argument irrelevant and reversed the lower court’s decision granting the motion, albeit without prejudice, giving the appellee another chance to refile its motion in accordance with Rule 1.150. 

This case should be noted by carriers as notice that the summary judgment evidence rule is one that must be followed. Though it is highly likely that the appellee’s argument about a lack of prejudice was true, as carriers often notify medical providers of exhaustion of PIP benefits well in advance of suit, this case demonstrates that court’s will not be able to cite a lack of prejudice as a basis for not strictly following Rule 1.150. 

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_{Case Law Alerts, 3rd Quarter, July 2024 is prepared by Marshall Dennehey to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2024 Marshall Dennehey, all rights reserved. This article may not be reprinted without the express written permission of our firm.}