11 Fla. L. Weekly Supp. 531b
Insurance — Personal injury protection — Coverage — Conditions precedent — Examination under oath — Error to enter partial summary judgment on issue of whether insured was required to submit to EUO — Whether contract language requiring insured to give written proof of claim and/or submit to EUO was ambiguous was issue of material fact that should have been left to jury — Error to enter directed verdict on issue of whether bills were reasonable, related, and necessary where ruling was based on weight of insurer’s evidence
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. VICTOR ESCOBAR, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 02-212 AP. L.C. Case No. 2000006601CC 24. April 13, 2004. An appeal from the County Court for Miami-Dade County, Mercedes Bach, Judge. Counsel: Craig J. Trocino, Troy D. Ferguson & Associates, P.A.; Mark A. Gatica, for Appellant. John H. Ruiz and Luisa M. Linares, John H. Ruiz, P.A., for Appellee.
QUASHED in part; remanded. 30 Fla. L. Weekly D329a.
Opinion on remand at 12 Fla. L. Weekly Supp. 536a (receding from this opinion).
(Before THOMAS M. CARNEY, STANFORD BLAKE and MANUEL A. CRESPO, JJ.)
(CARNEY, J.) This is an appeal of the lower court’s entry of partial summary judgment and a directed verdict in favor of Victor Escobar. The appellant, Escobar, sustained personal injuries as a result of a car accident and received medical treatment. The appellee, United Auto, declined to pay Escobar’s medical bills because: 1) Escobar failed to attend a contractually compulsory examination under oath (EUO); 2) Escobar failed to attend an independent medical examination (IME); and 3) United Auto determined that the medical charges were not reasonable, related and necessary. Escobar filed suit for payment of the bills.
Prior to trial, Escobar moved for partial summary judgment on the issue of his failure to attend the EUO on the grounds that the language in the insurance contract was ambiguous. Specifically, the contract states that Escobar “shall give [United Auto] written proof of claim, under oath if required, and/or submit to an examination under oath . . .” (emphasis added). The trial court granted Escobar’s partial summary judgment motion agreeing that the language was ambiguous since the “and/or” language made it unclear whether Escobar needed only to provide written notice of the claim or needed only submit to an EUO, or whether he was required to do both. A trial then proceeded on the issues of Escobar’s failure to attend the IME and whether the medical bills were reasonable, related and necessary.
In order to establish that his medical bills were reasonable, related and necessary, Escobar testified about his treatments, stated that he examined the bills, and indicated that the treatments made him feel better. On the morning of the trial, a litigation adjuster for United Auto performed a usual and customary review of the medical bills. The adjuster testified that the bills were not reasonable and concluded that United Auto was over-billed by some $1400. Escobar attempted to call into question the reliability of the adjuster’s review by pointing out that in her four years as an adjuster, she had only performed 10 of these types of reviews.
At the close of evidence, the trial court granted Escobar’s motion for a directed verdict on the issue of whether the bills were reasonable, related and necessary. The remaining IME issue was submitted to the jury and a verdict was returned in Escobar’s favor. Thereafter the trial court awarded Escobar attorney’s fees. This appeal followed.
The standard of review for summary judgment is de novo and requires this court to view the evidence in the light most favorable to the non-moving party. Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000). If the “slightest doubt” exists, then summary judgment must be reversed. Id. (quoting Hancock v. Department of Corrections, 585 So. 2d 1068, 1070-71 (Fla. 1st DCA 1991)).
Florida Rule of Civil Procedure Rule 1.510(c) permits summary judgment to be entered only if the record reveals that there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fla. R. Civ. P. 1. l 50(c); Johnson v. Gulf Life Ins. Co., 429 So.2d 744, 746 (Fla. 3d DCA 1983). Here, the issue of whether the contract language was ambiguous is an issue of material fact that should have been left to the jury. The court’s entry of summary judgment was improper and must be reversed since there exists, at a minimum, the “slightest doubt” that the partial summary was improper. This leaves for our determination the propriety of the court’s directed verdict.
The standard of review from an order granting a motion for directed verdict is the same test used by the trial court in initially ruling on the motion. Cecile Resort, Ltd. v. Hokanson, 729 So. 2d 446 (Fla. 5th DCA 1999). That is, “a motion for directed verdict should be granted where there is no reasonable evidence upon which a jury could legally predicate a verdict in favor of the non-moving party.” Wright v. Ring Power Corp., 834 So. 2d 329 (Fla. 5th DCA 2003). Further, courts are prohibited from passing on the credibility of witnesses or weighing the evidence in ruling on the motion. Powell v. Napilitano, 578 So. 2d 747, 748 (Fla. 2d DCA 1991).
Here, the directed verdict was entered in error since the trial court ruled on the motion based on the weight of United Auto’s evidence. Such considerations are improper when considering a motion for a directed verdict. Instead, the trial court is only permitted to determine whether there is reasonable evidence upon which the jury could return a verdict in United Auto’s favor. Wright, 834 So. 2d at 329. Escobar’s attempts to minimize the United Auto adjuster’s competence and qualifications go only to the weight of the testimony, not to whether the jury should be permitted to consider the testimony at all.
Because the trial court departed from the proper standard used in considering motions for summary judgment and directed verdicts, the court’s orders granting the partial summary judgment and the directed verdict are reversed and the case remanded for a trial on the merits. REVERSED, and the cause is REMANDED. (BLAKE and CRESPO, JJ., concur.)
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