DORAL HEALTH CENTER, P.A., A/A/O PEDRO SANCHEZ v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

• Court: District Court of Appeal of Florida
• Decided: July 7, 2021
• Docket: 21-0037
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed July 7, 2021. Not final until disposition of timely filed motion for rehearing. ________________

Nos. 3D21-37; 3D21-38 Lower Tribunal Nos. 13-464 SP; 19-127 AP; 13-466 SP; 19-128 AP ________________

Doral Health Center, P.A., a/a/o Pedro Sanchez, and a/a/o Nancy Sanchez, Appellants,

vs.

State Farm Mutual Automobile Insurance Company, Appellee.

Appeals from the County Court for Miami-Dade County, Diana Gonzalez-Whyte, Judge.

Patiño Law Firm, Richard Patiño and Ryan Peterson, for appellants.

Cole, Scott & Kissane, P.A., Thomas L. Hunker and Sarah Hafeez (Fort Lauderdale), for appellee.

Before EMAS, LINDSEY and GORDO, JJ.

PER CURIAM. Affirmed. See Vasquez v. State, 777 So. 2d 1200, 1203 (Fla. 3d DCA

2001) (“[T]he trial court may draw an adverse inference against a party in a

civil action who invokes his privilege against self-incrimination.” (citing Baxter

v. Palmigiano, 425 U.S. 308 (1976))); Rollins Burdick Hunter of N.Y., Inc. v.

Euroclassics Ltd., Inc., 502 So. 2d 959, 962 (Fla. 3d DCA 1987) (“A civil

litigant’s fifth amendment right to avoid self-incrimination may be used as a

shield but not a sword. This means that a plaintiff seeking affirmative relief

in a civil action may not invoke the fifth amendment and refuse to comply

with the defendant’s discovery requests, thereby thwarting the defendant’s

defenses.” (citing City of St. Petersburg v. Houghton, 362 So. 2d 681, 683

(Fla. 2d DCA 1978))); see also Campbell v. Riggs, 310 So. 3d 68, 70 (Fla.

4th DCA 2021) (“[O]nce there is a motion for summary judgment that is

supported by affidavit or other factual showing, the burden shifts to the

opposing party to show by appropriate means that genuine and material

issues do remain to be tried.” (quoting Holl v. Talcott, 191 So. 2d 40, 42 (Fla.

1966))); Raven v. Roosevelt REO US LLC, 278 So. 3d 245, 246 (Fla. 3d

DCA 2019) (“Summary judgment is proper . . . where the moving party shows

conclusively that there are no genuine issues of material fact and that it is

entitled to judgment as a matter of law.” (citation omitted)).