County Civil Court: INSURANCE – summary judgment – trial court erred in entering summary judgment for insurer – insurance company never filed answer which necessarily created issues of fact – issue of fact remained as to whether insured had moved to Florida and notified her agent of move - Amended Final Judgment reversed and remanded. Hill v. State Farm Mutual, No. 03-5080AP-88A and 04-0038AP-88A (Fla. 6th Cir. App. Ct. April 11, 2005).
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNTY, FLORIDA
Appeal No. 03-5080AP-88A
vs. Appeal No. 04-0038AP-88A
STATE FARM MUTUAL AUTOMOBILE
Appeal from Amended Final Judgment and
Judgment for Attorney’s Fees and Costs
Pinellas County Court
Judge Karl B. Grube
Angela M. Stone, Esquire
Attorney for Appellant
Phil S. Yurecka, Esquire
Attorney for Appellee
ORDER CONSOLIDATING APPEALS AND
ORDER AND OPINION
THIS CAUSE came before the Court on appeal, filed by Crystal Hill (Hill), from the Amended Final Judgment, entered November 20, 2003, Appeal No. 03-5080AP-88A, and the Order on Defendant’s Motion for Taxation and Entry of Judgment for Attorney’s Fees and Costs, entered April 26, 2004, Appeal No. 04-0038AP-88A. Initially, the Court finds that the Appeal No. 04-0038AP-88A should be consolidated into Appeal No. 03-5080AP-88A, as both orders stem from the same trial court proceeding and involve the same parties. Accordingly, upon review of the briefs, the record and being otherwise fully advised, the Court reverses the trial court’s Amended Final Judgment and Judgment for Attorney’s Fees and Costs as set forth below.
The record shows that Hill filed, on February 25, 2002, a Complaint, against the Appellee, State Farm Mutual Automobile Insurance Company (State Farm), seeking to recover PIP benefits under a policy issued by State Farm. At the time of filing the Complaint, Hill also served State Farm with Plaintiff’s Interrogatories, Request for Admissions, and Request for Production. Hill filed an Amended Complaint on June 4, 2002, which reflected that the action was for damages exceeding $5,000.00. While not in the record, the docket shows that State Farm filed, on August 22, 2002, objections to Plaintiff’s Interrogatories and Request for Production, and a response to the Request for Admissions; State Farm filed a response to Plaintiff’s Request for Production the following day. State Farm did not file an Answer to the Complaint.
On January 24, 2003, State Farm filed a Motion for Summary Judgment which was denied without prejudice by the trial court on April 29, 2003, due to pending discovery. On November 17, 2003, the trial court reheard the matter and summarily granted the Motion for Summary Judgment. On November 20, 2003, the trial court, albeit a different judge, entered an Amended Final Judgment that added language to reserve jurisdiction to address any issues related to attorneys fees and costs.
Before this Court, Hill raises a myriad of issues. Without the need to address each one, the Court finds that in conducting a de novo review of the record the trial court erred in granting summary judgment. See Volusia County v. Aberdeen at Ormond Beach, 760 So.2d 126, 130 (Fla. 2000). Summary judgment can only be granted when the moving party irrefutably establishes that the nonmoving party cannot prevail. See Hervey v. Alfonso, 650 So.2d 644, 645-46 (Fla. 2d DCA 1995). As emphasized by the Second District Court of Appeal in Hervey, “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, that doubt must be resolved against the moving party and summary judgment must be denied.” Id.
First, the Court finds that State Farm never filed an Answer thereby admitting the averments set forth in the Amended Complaint. See Fla. R. Civ. P. Rule 1.110(e). State Farm’s failure to file an Answer necessarily created issues of fact that would preclude the entry of summary judgment in its favor. Indeed, the Court could find no case law wherein a defendant was granted summary judgment where no answer had been filed.
Second, the Court finds that State Farm sought summary judgment under two theories: (1) that the policy was issued in West Virginia and did not provide for PIP benefits; and (2) that Hill failed to file a demand letter pursuant to Florida Statutes, § 627.736(11). State Farms sets forth in its summary judgment motion that the only way Hill would be entitled to PIP benefits was if, upon moving to Florida, Hill notified State Farm of her move and State Farm determined to replace the West Virginia policy with a new policy pursuant to Florida law. The “Change of Residence” condition under the West Virginia policy states:
When we receive notice that the location of principal garaging of the vehicle described on the declarations page has been changed, we have the right to recalculate the premium based on the coverages and rates applicable in the new location. When the change of location is from one state to another and you are a risk still acceptable to us at the time you notify us of the change, we shall replace this policy with the policy form currently in use in the new state of garaging. (emphasis original).
State Farm filed the sworn affidavit of Melissa Grant, claims adjuster, who averred that no PIP benefits were available under the West Virginia policy and that Hill had failed to provide written notice of intent to initiate litigation. Hill countered by filing her own sworn affidavit and that of her mother, Dolly Hambrick, who both averred that Hill had moved to Florida in October 2002 (sic) and that State Farm’s agent, Judson Walker, had been notified of the move prior to the underlying accident on December 14, 2000. Ms. Hambrick further averred that she personally made an insurance payment to Mr. Walker after Hill moved to Florida.
The Court finds that an issue presented by the competing affidavits that would preclude summary judgment, was whether Hill had moved to Florida and whether Hill had notified State Farm of her change in residence before the accident occurred. See Hervey, 650 So.2d at 646-47 (finding the summary judgment was erroneously entered when opposing affidavits created genuine issues of material fact); Suris v. Tropical Federal Savings & Loan Association, 515 So.2d 1049 (Fla. 3d DCA 1987)(same). To the extent that the trial court determined Hill had not properly framed her cause of action, Hill should have been given the opportunity to amend the Amended Complaint, particularly since no Answer had been filed. See e.g. Brumer v. HCA Health Services of Florida, Inc., 662 So.2d 1385 (Fla. 4th DCA 1995)(concluding that doctor was entitled to amend pleading to add necessary allegations where summary judgment was in essence a substitute for a motion to dismiss and plaintiff possibly had a viable cause of action); Hervey, 650 So.3d at 647 (explaining that the plaintiff should be given an opportunity to amend complaint if record reasonably indicates that plaintiff can raise a justiciable issue through an amended complaint). Additionally, as expressed by State Farm in its summary judgment motion, the Court finds that Hill may have a bona fide cause of action if Hill had moved to Florida and timely notified her State Farm agent. See Suris, 515 So.2d at 1050 (explaining that appellate court should ensure a party is not deprived of his day in court by summary proceedings if the record indicates that he has a bona fide cause of action or defense).
In determining whether the Amended Final Judgment can be affirmed on an alternative theory, the Court cannot conclude that summary judgment should have been granted on the basis that Hill did not serve State Farm with a demand letter as required by Florida Statutes, § 627.736(11). Although Hill stated below that no demand letter was sent because it was unwarranted under the facts of this case, neither party has raised or argued this issue on appeal. See e.g. Norris v. Edwin W. Peck, Inc., 381 So.2d 353, 354-55 (Fla. 5th DCA 1980)(stating that appellate court should not address portions of orders which have not been raised on appeal and about which the parties are not complaining); Truxell v. Truxell, 259 So.2d 766, 768 (Fla. 1st DCA 1972)(finding that errors not assigned or made a point on appeal are considered waived).
Lastly, as the Order on Defendant’s Motion for Taxation and Entry of Judgment for Attorney’s Fees and Costs was premised on the Amended Final Judgment, it too must be reversed.
Therefore, it is,
ORDERED AND ADJUDGED that the Amended Final Judgment and the Order on Defendant’s Motion for Taxation and Entry of Judgment for Attorneys Fees and Costs are reversed and this cause is remanded for action consistent with this Order and Opinion.
It is further,
ORDERED AND ADJUDGED that the Appellant’s Motion for Attorney’s Fees is granted contingent upon the Appellant ultimately prevailing in the proceedings below. The trial court shall determine the reasonable amount of attorney’s fees to be awarded. The Appellee’s Motion for Attorney’s Fees and Costs is denied.
DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ______ of March 2005.
JOHN A. SCHAEFER
Circuit Judge, Appellate Division
Copies furnished to:
Judge Karl B. Grube
Angela M. Stone, Esquire
1234 9th Street North
St. Petersburg, FL 33705
Phil S. Yurecka, Esquire
8700 4th Street North
St. Petersburg, FL 33702
 These documents are not included in the record on appeal. This Court can only assume that they were not considered by the trial court and/or were not pertinent to the trial court’s summary judgment ruling.
 See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979)(stating that a conclusion or decision of a trial court will generally be affirmed if the evidence or an alternative theory supports it).
 The Court notes that at the time the underlying action was commenced in February 2002, the applicable version of § 627.736(11)(2001), provided several exceptions to serving a demand letter.