12 Fla. L. Weekly Supp. 714a
Insurance — Personal injury protection — Complaint — Dismissal — Error to grant motion in limine and dismiss suit on ground that subsequent bills incurred after insured failed to attend independent medical examination were not pleaded in complaint and those pled were already paid where complaint was sufficient to include subsequent bills incurred, as evidenced by fact that insurer did not seek voluntary dismissal after paying bills incurred before IME but instead asserted affirmative defense of failure to attend IME, and it is clear that insurer knew that complaint included subsequent bills incurred after IME — Further, ruling on motion in limine was erroneous where motion was actually motion for summary judgment or motion for judgment on pleadings
SHARON TURNER, Appellant, vs. UNITED AUTOMOBILE INSURANCE COMPANY, a Florida Corporation, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 03-551AP. L.C. Case No. 97-14255 CC 23(1). May 17, 2005. An Appeal from the County Court for Miami-Dade County, Myriam Lehr, Judge. Counsel: Pamela Beckham, for Appellant. Mark A. Gatica, for Appellee.
(Before ESQUIROZ, MUIR and FREEMAN, JJ.)
(PER CURIAM.) This appeal arises from the trial court’s order dismissing Appellant’s, Sharon Turner (“Turner”/”Appellant”), lawsuit against Appellee, United Automobile Insurance Company (“United Auto”/“Appellee”), with prejudice.
On April 15, 1997, Turner sustained physical injuries in an automobile accident while insured by United Auto. As a result, Turner sought and received medical treatment for her injuries. Thereafter, Turner submitted her medical bills to United Auto for payment. United Auto denied payment after Turner failed to appear for a scheduled IME1.
Due to United Auto’s failure to pay, Turner, on September 23, 1997, filed a complaint for personal injury protection (PIP) insurance benefits. Consequently, United Auto sought and received an extension of time to answer Turner’s complaint while the parties negotiated. As result of the parties’ negotiation, United Auto paid Turner’s medical bills which were incurred before she missed her IME. On February 6, 1998, United Auto answered and asserted Turner’s failure to attend the scheduled IME, as an affirmative defense.
On September 16, 2003, United Auto served a motion in limine which sought to confine Turner to her pleadings. In support of its motion, United Auto claimed that its payment of Turner’s medical bills after the lawsuit was filed operated as an accord and satisfaction. Turner objected stating that United Auto did not plead accord and satisfaction as an affirmative defense, which United Auto conceded. Thereafter, Turner stated to the Court that United Auto’s motion in limine was really a motion for judgment on the pleadings or a motion for summary judgment, which required a twenty-day notice period that was not given.
Agreeing with Turner’s interpretation and in order to avoid an “ambush”, the court took a short break. After returning from the short break, Turner requested to amend the complaint although she did not believe it was necessary. In support of her request, Turner stated that the amendment would relate back so the claims for the unpaid bills would not be barred by the statute of limitations. Turner also stated that United Auto was noticed that the disputed bill would be litigated. Thereafter, the trial court dismissed the case. This appeal followed.
Appellee contends that the trial court properly dismissed Appellant’s lawsuit because the medical bills pleaded in the complaint were paid, and there were no allegations in the complaint as to the subsequent bills incurred. If we accept Appellee’s argument, then plaintiffs in PIP’s cases would be required to file a new complaint every time a new bill is incurred. Appellee has not cited, and this court’s independent research has not disclosed, any authority in support of this proposition. Thus, we reject it. Appellant’s complaint was sufficient as pleaded to include the subsequent bills incurred. This is evidenced by the fact that after paying the medical bills incurred before the IME, Appellee did not seek a voluntary dismissal. Instead, Appellee answered Appellant’s complaint and asserted as an affirmative defense that Appellant was not entitled to benefit because she missed the IME. The record also reflects that the disputed medical bills were provided to Appellee in 1998 and were the subject of several correspondences between the parties until day of trial. It is clear in this case, which has been pending for six years, that Appellee understood that the complaint’s allegation included those subsequent medical bills incurred after the IME. It cannot reasonably be said otherwise. Requiring Appellant to file a new complaint for each subsequent bill incurred which arose from the same automobile accident would be a useless act. It is well settled that the law does not require a futile or useless act. See Howard v. State, 616 So. 2d 484 (Fla. 3d DCA 1993).
Further, we find that the trial court’s ruling on Appellee’s motion in limine was erroneous because the motion was really a motion for summary judgment or a motion for judgment on the pleadings. The purpose of a motion in limine is to generally prevent introduction of improper evidence, mere mention of which at trial would be prejudicial at trial. Dailey v. Multicon Development, Inc., 417 So. 2d 1106, 1107 (Fla. 4th DCA 1982); Saunders v. T. Alois, 604 So. 2d 18, 20 (Fla. 4th DCA 1992); Devoe v. Western Auto Supply Co., 537 So. 2d 188, 189 (Fla. 2d DCA 1989). Appellee, by way of its motion in limine, attempted to dismiss Appellant’s case, which it successfully achieved. Essentially, Appellee asked the trial court to dismiss Appellant’s lawsuit because the subsequent bills incurred were not pleaded in the complaint and those pled were already paid. A motion in limine cannot be used as substitute of motions for summary judgment or judgment on the pleadings. Saunders, 604 So. 2d at 20.
Having determined that the complaint was well pled as to include the subsequent medical bills incurred after the IME and finding the trial court’s dismissal improper, it is unnecessary to address Appellant’s argument as to leave to amend or supplement the original complaint. Instead, we proceed to discuss Appellant’s Motion for Attorney’s fees. Appellant’s Motion for Attorney’s Fees must be granted conditioned upon Appellant ultimately prevailing in county court. Section 627.428 of the Florida Statute states in pertinent part:
(1) Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had. Fla. Sta. § 627.428 (1995).
The plain language of the statute authorizes the appellate court to “adjudge or decree against the insurer and in favor of the insured or its beneficiary a reasonable sum as fees or compensation when prosecuting the suit in which recovery is had.” Clearly, this action falls within the scope of section 627.428, Florida Statute. Thus, Appellant should be entitled to attorney’s fees under this section if it ultimately prevails with a recovery on the policy.
Based on the forgoing, we REVERSE the trial court’s order, AWARD Appellate attorney’s fees if Appellant ultimately prevails on the merits of the case, and REMAND this matter for further proceedings.
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1Turner was never informed of the scheduled IMEs because her attorney did not have her correct address or telephone number in his file.
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