12 Fla. L. Weekly Supp. 3a
Insurance — Personal injury protection — Coverage — Defenses — Notice of loss — Jury instruction on late notice was against manifest weight of evidence where policy provided for notification of insured’s accident rather than injury, insurer’s assertion that it raised affirmative defense of untimely notice of injury as opposed to accident conflicted with its written defense referring to notice of “alleged loss accident,” and insurer’s litigation adjuster admitted in deposition that it was not defending case on basis that it did not get notice as soon as practicable after accident — Remand for new trial
NEUROLOGY ASSOCIATES GROUP A/A/O JOSE LEON, Appellant, vs. UNITED AUTOMOBILE INSURANCE CO., Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 03-367AP. L.C. Case No. 01-11258 SP 23 04. November 9, 2004. An appeal from the County Court, Miami-Dade County, Fred Seraphin, Judge. Counsel: Marlene S. Reiss, Cory W. Eichhorn, Stephens Lynn Klein La Cava Hoffman & Puya, P.A., for Appellant. Mark A. Gatica, United Automobile Insurance Company, Office of General Counsel, for Appellee.
(Before KORVICK, MUIR, HUBBART, JJ.)
(HUBBART, Judge.) 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 the jury verdict entered in this case was against the manifest weight of the evidence, because the jury decided an issue on which they heard no evidence. In addition, Appellant contends that the lower court erred by allowing Appellee to assert the defense of late notice since it could not show prejudice as a result of the late notice. Basil on the two arguments asserted Appellant insists it is entitled to a new trial.
An order on a motion for new trial is reviewed under the abuse of discretion standard. Brown v. Estate of A.P., 749 So. 2d 490, 497 (Fla. 2000). A trial judge may order a new trial on the grounds that the verdict is inadequate or excessive, against the manifest weight of the evidence, or both. Id. at 498. When reviewing the order granting a new trial, an appellate court must recognize the broad discretionary authority of the trial judge and apply the reasonableness test to determine whether the trial judge committed an abuse of discretion. Id. In applying the reasonableness test, the appellate court must determine whether reasonable persons could differ as to the propriety of the action taken by the trial court. Id. If the appellate court determines that reasonable persons could differ, then there can be no finding of an abuse of discretion. Id.
At issue is the jury question proffered by the lower court which was: “Did Plaintiff [Appellant] fail to timely provide written notice of the injury to UNITED AUTOMOBILE INSURANCE COMPANY of his claim?” Appellant argues that the use of the word “injury” is against the manifest weight of the evidence, since evidence was not presented on this issue at trial. It is Appellant’s contention that “injury” should have been substituted with “accident.” In support of its argument, Appellant relies on the language of Appellee’s policy which defines “notice.” The policy states that “in the event of an accident, written notice of the loss must be given to ‘us’ or any of ‘our’ authorized agents as soon as practicable.” A clear reading of the policy indicated that the policy does not provide for written notification of the insured’s injury, rather it provides for written notice of the insured’s accident. Furthermore, there is no express definition of “loss” provided by Appellee’s policy. However, whenever the word “loss” is used, it is associated with property.
Appellee asserts that its affirmative defense was that it received untimely notice of the injury as opposed to the accident. We find this to be in direct conflict with the written affirmative defense provided in Appellee’s answer. Appellee’s written affirmative defense states:
“Plaintiff [Appellant] failed to provide written notice as soon as practicable to the Defendant [Appellee] of the alleged loss accident.”
Accident was Appellee’s word choice, not injury. Further, evidence that notice of the accident was paramount to an insured’s injury is Appellee’s own admission provided by the deposition of its litigation adjuster. The litigation adjuster admitted: (a) that the only reason it refused to pay Appellant’s medical bills was because the HCFA forms were not countersigned; (b) that it was not defending this case on the basis that it did not get written notice as soon as practicable after the accident; and, (c) that the notification of this claim was within a reasonable time after the accident.
Furthermore, the record is devoid of trial testimony with respect to late notice of the Appellant’s injury. Instead, the record is replete with testimony which addressed the reasonable, necessary, and relatedness of the medical bills and countersignature of the HCFA forms. Since the cumulative evidence does not support the need to proffer a late notice jury instruction, we find that the lower court’s presentation of this instruction was against the manifest weight of the evidence.
FOR THESE REASONS, the verdict in favor of the Appellee is REVERSED and this cause is REMANDED to the trial court for a new trial with the instruction not to consider late notice of Appellant’s injury.
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