13 Fla. L. Weekly Supp. 431b
Insurance — Personal injury protection — Independent medical examination — Failure to attend — Where there was no evidence in case showing why insured failed to attend IME, directed verdict in favor of insurer was premature — Insurer had burden to show insured’s failure to attend IME was unreasonable — Simple showing of failure to attend did not shift burden of proof to medical provider to prove why insured failed to attend IME
REMANDED to District Court by Florida Supreme Court for Reinstatement of Circuit Court’s Decision. 35 Fla. L. Weekly S640a (Custer Medical Center v. United Auto. Ins. Co., SC08-2036, 11-4-2010) [Editor’s note: District Court Opinion which was reviewed by Florida Supreme Court–and quashed–was published at 33 Fla. L. Weekly D2146a].
CUSTER MEDICAL CENTER, a/a/o Maximo Masis, Appellant, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and Miami-Dade County. Case No. 04-520 AP. L.T. Case No. 02-002197 CC 24. February 14, 2006. On Appeal from the County Court for Miami-Dade County, Honorable Jeffrey D. Swartz. Counsel: Marlene Reiss, Stephens, Lynn, Klein, et al., for Appellant. Michael J. Neimand, for Appellee.
(Before JENNIFER BAILEY, MARC SCHUMACHER and SCOTT SILVERMAN, JJ.)
(PER CURIAM.) On January 1, 2002, Maximo Masis was injured in an automobile accident. Mr. Masis’s insurance company was United Automobile Insurance. Mr. Masis sought treatment from Custer Medical Center. On March 27, 2002 United notified Mr. Masis of an IME scheduled for April 11, 2002. On March 28, 2002, Custer Medical center submitted bills for treatment of Mr. Masis to United. Mr. Masis did not appear for the IME. On April 12, 2002 United sent another letter scheduling another IME for April 29, 2002. Once again, Mr. Masis did not appear for the IME. United suspended Mr. Masis’s benefits as of April 12, 2002.
Custer filed this lawsuit as assignee of Mr. Masis. At trial, following the plaintiff’s case, United moved for a directed verdict arguing that Mr. Masis’s failure to appear for his scheduled IME was “unreasonable” as a matter of law. Mr. Masis did not testify at trial. During the plaintiff’s case, the only evidence adduced was that Mr. Masis did not appear for the required medical examinations. There was no evidence as to why Mr. Masis did not appear.
The trial judge granted the directed verdict, agreeing that Mr. Masis’s failure to appear for his scheduled IME was “unreasonable” as a matter of law. Custer appeals the final judgment.
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). Moreover, the motion must be denied if the evidence is conflicting or if a different conclusion can be drawn from it. Powell v. Napilitano, 578 So. 2d 747, 748 (Fla. 2d DCA 1991).
The trial court erred in granting the directed verdict in favor of United. Motions for directed verdict should be resolved with extreme caution since the granting thereof holds that one side of the case is essentially devoid of probative evidence. Perry v. Red Wing Shoe Co., 597 So.2d 821, 822 (Fla. 3rd DCA 1992). The trial judge is authorized to grant such motion only if there is no evidence or reasonable inferences to support the opposing position. Id., see also, Salem v. Benmelech, 590 So.2d 1008 (Fla. 3rd DCA 1991). The evidence must be considered in the light most favorable to the nonmoving party. Id.
In this case, the trial judge failed to consider the evidence in a light most favorable to the non-moving party. There is no legal authority supporting United’s position that failure to appear is “unreasonable” as a matter of law. United claimed the affirmative defense that the failure to appear was unreasonable. United therefore had the burden to show, by evidence, that the failure to attend the IME was unreasonable. Nor does the simple showing of failure to appear shift the burden of proof to the Plaintiff to prove why the insured failed to appear. There was no evidence in the Plaintiff’s case as to why Mr. Masis failed to appear. Therefore, in the absence of evidence supporting the affirmative defense, the directed verdict is premature.
The award of attorney’s fees shall be conditioned upon the prevailing party’s success on the merits on remand. According to Marty v. Bainter, 727 So. 2d 1124, 1125 (Fla. 1st DCA 1999):
Once a final judgment is reversed and remanded by an appellate court, there can be no prevailing party for purposes of an award of prevailing party attorney’s fees. Consequently, an award of attorney’s fees and costs predicated on a reversed or vacated final judgment also must be reversed. See Jupiter Mall Realty Corp. v. Rosner’s, Inc., 614 So. 2d 52 (Fla. 4th DCA 1993); Association Financial Services, Inc. v. Lewis, 551 So. 2d 590, 591 (Fla. 5th DCA 1989); Thornburg v. Pursell, 476 So. 2d 323, 324 (Fla. 2d DCA 1985).
REVERSED and REMANDED for a trial on the merits.
