Affidavits and Declarations Used for Summary Judgment
When a party moves or opposes a motion for summary judgment, the party will include an affidavit or declaration. The affidavit or declaration MUST be legally sufficient to have any weight. Do not take it from me. Take it from the recent appellate decision in Savoy v. American Platinum Property & Casualty Insurance, 48 Fla.L.Weekly D1241a (Fla. 4th DCA 2023) where the appellate court held the movant’s affidavit was insufficient because it was not based on the affiant’s personal knowledge. The legally insufficient reason served as a basis for the appellate court to reverse the summary judgment in favor of the moving party. The appellate court explained:
“An affidavit or declaration used to support or oppose a motion [for summary judgment] must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fla. R. Civ. P. 1.510(c)(4). “When a supporting summary judgment affidavit fails to establish its basis in the affiant’s personal knowledge, the affidavit should be found legally insufficient to support the entry of summary judgment in favor of the moving party.” This is true regardless of whether the witness is a corporate representative. In other words, corporate representative affidavits in support of summary judgment are not excepted from the personal knowledge requirement.
Here, … the affiant provided no basis for the affiant’s personal knowledge or competency. The corporate representative simply stated his knowledge was “based upon my review of [the insurer’s] file” and he was “serving as Corporate Representative in these actions for [the insurer].” He did not provide any further basis for his knowledge, much less indicate any employment, training, or experience that might provide him with personal knowledge of the insurer’s recordkeeping practices [for purposes of the business records hearsay exception]. He did not even claim any personal knowledge of these practices (apart from a conclusory restating of the elements of the business records exception).
The corporate representative therefore failed to demonstrate his affidavit was “made on personal knowledge, set out facts that would be admissible in evidence, and show[ed] . . . [his] competen[cy] to testify on the matters stated” regarding the business record exception. Accordingly, the trial court should have disregarded the affidavit and the attached documents.
Savoy, supra (internal citations omitted).
Keep this in mind. Summary judgments are part of litigation. What you don’t want to do is obtain an affidavit or declaration and either (i) get the affidavit or declaration from the wrong witness, or (ii) not properly prepare the affidavit or declaration to demonstrate its legal sufficiency.
Please contact David Adelstein at [email protected] or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.