ORTHOPEDIC & SPINE INJURIES, LLC a/a/o GIANNINA BARRANTES v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

• Court: District Court of Appeal of Florida
• Decided: April 20, 2022
• Docket: 21-3200
• Status: Published

Opinion

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT

ORTHOPEDIC & SPINE INJURIES, LLC, a/a/o GIANNINA BARRANTES, Appellant,

v.

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.

No. 4D21-3200

[April 20, 2022]

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.