11 Fla. L. Weekly Supp. 533a
Insurance — Personal injury protection — Coverage — Affirmative defenses — Failure to attend examination under oath — Notice — Imputed notice — Jury instructions — Abuse of discretion to refuse to accept jury instruction on imputed notice where requested instruction that notice of EUO to insured’s attorney constitutes notice to insured contained accurate statement of law, facts of case supported giving of imputed notice instruction, and instruction was necessary for jury to properly resolve notice issue — New trial required
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. SAINTHELENE JEAN, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 03-128AP. L.C. Case No. 01-17043 CC 23(03). April 6, 2004. On appeal from the County Court, Miami-Dade County, Linda Singer Stein, Judge. Counsel: Lawrence Root and Eric Bowsky, Office of the General Counsel UAIC, for Appellant. Marc A. Chandler, Pape & Chandler, P.A., for Appellee.
(Before LEONARD E. GLICK, PEDRO P. ECHARTE, JR., MARIA ESPINOSA DENNIS, JJ.)
(DENNIS, J.) This is an action under Florida’s No Fault Personal Injury Protection {PIP} law for failure to pay medical benefits. It is Appellant’s position that even though it submitted an untimely jury instruction the lower court should have accepted it into the record because it was pertinent to an “examination under oath (“EUO”) no-show defense.” We reverse based on the lower court’s refusal to accept the jury instruction of imputed notice.
Florida law is clear that decisions regarding jury instructions rest within the sound discretion of the trial court and should not be overturned on appeal absent a showing of prejudicial error. Gonzalez v. Rose, 752 So. 2d 39, 41 (Fla. 3d DCA 2000). As such, the standard of review applied to a court’s decision to give or withhold a jury instruction is abuse of discretion. Barton Protective Services, Inc. v. Faber, 745 So. 2d 968 (Fla. 4th DCA 1999). To demonstrate reversible error, an appellant must establish that the requested instruction(s) contained an accurate statement of the law; the facts in the case supported a giving of the instructions; and, the instructions were necessary for the jury to properly resolve the issues in the case. Id.
Appellant argues that the lower court’s failure to give a jury instruction on imputed notice was prejudicial. Specifically, Appellant orally requested that the lower court instruct the jury that notice to Appellee’s attorney constitutes notice to Appellee (See Oral Motion in Transcript V4, T 179-180). It is Appellant’s position that prejudicial error exists since the sole issue was whether Appellee failed to perform her duties under the contract by not cooperating/attending an examination under oath (“EUO”). We find that an integral facet of whether Appellant cooperated is whether she or her attorney received notice of the EUO.
Our research indicates that the requested jury instruction did contain an accurate statement of the law. Appellant orally requested that the lower court instruct the jury as follows:. . . “Under the principles of agency, the attorneys (sic) serves as an agent for his or her client. Therefore, notice to an attorney is imputed to the client. Accordingly, notice to appear at an examination under oath that is sent to Plaintiff’s counsel is notice to Plaintiff.” (See Oral Motion in Transcript V4, T 179-180). Pursuant to Fla. R. Jud. Admin. 2.060(k) “in all maters concerning the prosecution or defense of any proceeding in the court, the attorney of record shall be the agent of the client, and any notice by or to the attorney or act by the attorney in the proceeding shall be accepted as the act of or notice to the client.” See also King-Coleman v. Geathers, 841 So. 2d 593, 595 (Fla. 4th DCA 2003). Thus, notice to an attorney serves as notice to an attorney’s client. Since, the requested instruction contains language which reflects existing case law, the Appellant has established that the jury instruction contained an accurate statement of the law.
Moreover, the facts in this case support giving the imputed notice instruction. A review of the record indicated that Appellee testified that she hired an attorney to represent her against Appellant. Appellant then testified that once a party is represented by counsel any correspondence or notice is sent to the attorney, not the insured. Thus, Appellant stated that it sent two notices scheduling EUOs for November 12, 1999 and December 13, 1999 or in the alternative, December 27, 1999. Both EUO notices were sent to Appellee’s attorney, not Appellee, via certified mail receipt. Despite the fact that Appellant listed the incorrect zip code on both return receipts, it received both signed return receipts from Appellee’s attorney’s office indicating that it was delivered. However, Appellant testified that Appellee did not appear for any of the scheduled EUOs, nor did Appellee or her attorney communicate with Appellant regarding an excuse or reason for Appellee’s absence. Moreover, Appellant testified that Appellee attended an IME on February 16, a day later than it was scheduled and two hours and thirty minutes after the scheduled time. Appellant admitted that on this occasion it sent a copy of the scheduled IME to Appellee. We find that these facts were essential to establish Appellee’s cooperation or non-cooperation with respect to the EUO.
Furthermore, the instruction was necessary for the jury to properly resolve the issue of notice in this case. For the jury to decide whether Appellee failed to perform her duties under the contract by not cooperating/attending an EUO, it would have to consider whether Appellee ever received notice of the EUOs. Since Appellee was represented by counsel this would require a jury to determine whether Appellant served the Appellee with personal notice or imputed notice upon Appellee’s attorney. Unless instructed of the law, a jury is without knowledge that an attorney is an agent of a client, and that notice to a client’s attorney is notice to the client. Fla. R. Jud. Admin. 2.060(k). Since the jury was not instructed to consider whether Appellee’s attorney received notice of the EUOs [imputed notice], we must conclude that the jury only considered whether Appellee received personal notice of the EUOs. We find that this surmounts to reversible error.
Reversed and remanded for a new trial. Appellee’s attorney’s request for attorneys fees are denied, because the reversal of the underlying judgment requires the reversal of the award of attorney’s fees. Nevarez v. Friskney, 819 So. 2d 992 (Fla. 5th DCA 2002). (GLICK, ECHARTE, JJ. concur.)
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