Insurance — Civil procedure — Relief from technical admissions — Circuit
court, in affirming county court’s final summary judgment against insurer who
had inadvertently filed a response to chiropractic facility’s request for
admissions but promptly moved for relief, violated a clearly established
principle of law, resulting in a miscarriage of justice — Circuit court
correctly recognized that county court had abused its discretion in denying
insurer’s motion for relief from technical admissions, where such denial is
contrary to the true facts of the case and where the opposing party has not
shown prejudice, but the circuit court erroneously affirmed on grounds insurer
had not yet filed its affidavit opposing summary judgment — A party seeking
relief from admissions is not required to file affidavits before the court hears
the request — Circuit court also applied incorrect law to uphold trial court’s
striking of insurer’s affidavit opposing summary judgment as repudiating
previous depositions, but such case law does not apply to technical
admissions

UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, v. WEST HOLLYWOOD PAIN &
REHABILITATION CENTER, a/a/o KATHLEEN JEAN, Respondent. 4th District. Case No.
4D13-2232. October 15, 2014. Petition for writ of certiorari to the Circuit
Court for the Seventeenth Judicial Circuit, Broward County; Patti Englander
Henning, Judge; L.T. Case Nos. 10-030431 CACE (21), 10-010958 CACE (26), and
07-004511 COCE (50). Counsel: Thomas L. Hunker, Office of the General Counsel,
United Automobile Insurance Company, Miami, for petitioner. Joseph R. Dawson of
the Law Offices of Joseph R. Dawson, P.A., Fort Lauderdale, for respondent.

(PER CURIAM.) United Automobile Insurance Company (“United”) petitions for
second-tier certiorari review of an appellate decision of the circuit court
which affirmed a county court’s final summary judgment and a judgment for
attorney’s fees and costs against United and in favor of West Hollywood Pain and
Rehabilitation Center, a chiropractic facility (“West Hollywood”). We grant the
petition, concluding that the circuit court violated a clearly established
principle of law resulting in a miscarriage of justice. See generally Custer
Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086, 1092 (Fla. 2010)
(setting forth the standard for second-tier certiorari review).

West Hollywood sued United in county court seeking payment of personal injury
protection benefits as assignee of United’s insured. Along with the complaint,
West Hollywood served requests for admissions which included requests that
United essentially admit liability. United inadvertently filed a response to
West Hollywood’s requests for admissions a few weeks late but promptly moved for
relief. On the same day, United filed its answer to the complaint denying that
the expenses were reasonable, related, and necessary and asserting that the
charges billed were excessive. Nearly a year later, West Hollywood, as the
plaintiff below, moved for summary judgment. The trial court refused to grant
United relief from the technical admission of liability finding that mere
inadvertence was insufficient. Subsequently, the trial court struck an affidavit
that United filed opposing summary judgment and awarded final summary judgment
to West Hollywood. The court later entered a judgment for attorney’s fees and
costs in favor of West Hollywood.

In a consolidated appeal, the circuit court affirmed the summary judgment and
the judgment for fees and costs entered by the trial court.1 This petition follows.

The county court erroneously relied on Farish v. Lum’s, Inc., 267 So.
2d 325 (Fla. 1972), which applied a prior version of Florida Rule of Civil
Procedure 1.370. The rule was substantially amended and liberalized some forty
years ago, in 1972. The liberalized version of the rule does not require a
showing of excusable neglect to permit relief from a technical admission. See
Wilson v. Dep’t of Admin., Div. of Ret., 538 So. 2d 139 (Fla. 4th DCA 1989);
Love v. Allis-Chalmers Corp., 362 So. 2d 1037 (Fla. 4th DCA 1978). If the
adverse party is not prejudiced, relief may be granted for mere inadvertence.
Wilson, 538 So. 2d at 141. The liberal standard of the amended rule
“favors amendment in most cases in order to allow disposition on the merits.”
Ramos v. Growing Together, Inc., 672 So. 2d 103, 104 (Fla. 4th DCA 1996).
“The use of admissions obtained through a technicality should not form a basis
to preclude adjudication of a legitimate claim.” Sterling v. City of W. Palm
Beach, 595 So. 2d 284, 285 (Fla. 4th DCA 1992).

The circuit court correctly recognized that it is an abuse of discretion to
deny a motion for relief from technical admissions where it is contrary to the
true facts of the case and where the opposing party has not shown prejudice.
Thomas v. Chase Manhattan Bank, 875 So. 2d 758, 760 (Fla. 4th DCA 2004).
The circuit court affirmed, however, because United had not yet filed its
affidavit opposing summary judgment when the motion for relief was heard.
Thomas, however, does not require a party seeking relief from admissions
to file affidavits before the court hears the request.

At the time the request for relief was denied in this case, United had filed
its answer and its responses to the request for admissions. West Hollywood was
aware that United was disputing liability and made no showing that it would be
prejudiced in maintaining an action or defense on the merits. Fla. R. Civ. P.
1.370(b). Therefore, Ramos states the correct law. Where the defendant
timely filed a motion to grant relief from admissions, and the plaintiff has
shown no prejudice, it is an abuse of discretion not to allow relief from the
admissions. Under these circumstances, the circuit court departed from the
essential requirements of law in affirming the trial court’s refusal to grant
relief from the admissions.

The circuit court also applied the wrong law by relying on the rule of
Ellison v. Anderson, 74 So. 2d 680 (Fla. 1954), to uphold the trial
court’s striking of United’s affidavit opposing summary judgment. The Ellison
court explained that “a party when met by a Motion for Summary Judgment
should not be permitted by his own affidavit, or by that of another, to baldly
repudiate his previous deposition so as to create a jury issue, especially when
no attempt is made to excuse or explain the discrepancy.” Id. at 681. But
Ellison does not apply to technical admissions under rule 1.370. See
Gross v. Home Expanded Corp., 77 So. 3d 835, 838 (Fla. 4th DCA 2012);
Sterling, 595 So. 2d at 285. Additionally, the circuit court’s
reliance on McKean v. Kloeppel Hotels, Inc., 171 So. 2d 552, 555 (Fla.
1st DCA 1965), is conspicuously misplaced as McKean involved sworn
affirmative admissions, not technical admissions.

We grant the petition and quash the circuit court’s appellate decision. The
circuit court shall conduct further proceedings consistent with this opinion.

Petition granted. (Warner, Taylor and Ciklin, JJ., concur.)

__________________

1Respondent failed to file an answer brief
in the appeal in circuit court despite having been granted twelve extensions of
time to do so.