13 Fla. L. Weekly Supp. 545a
Insurance — Personal injury protection — Discovery — Failure to comply — Sanctions — Prejudice — Exclusion of letter from insured’s attorney requesting that insurer reschedule examination under oath and testimony of insured and insured’s attorney regarding letter was too drastic a sanction for medical provider’s failure to list letter as exhibit and attorney as witness until after court-ordered discovery deadline where there was no attempt by insurer to cure perceived prejudice; insurer, who was aware of attorney and letter for two and half years before trial, had independent knowledge of existence of witness; provider’s noncompliance with discovery deadline was not intentional or in bad faith since it was not aware of letter until after expiration of deadline; and allowing attorney and insured to testify briefly as to EUO rescheduling would not have disrupted orderly and efficient flow of trial — New trial required — Jury instructions — Abuse of discretion to fail to give requested instruction asking jury to determine whether insured breached insurance contract by unreasonably refusing to attend EUO where requested instruction was accurate statement of law, instruction actually given erroneously created strict liability standard for EUO attendance, facts in case supported requested instruction, and requested instruction was necessary for jury to properly resolve issues in case
NORTHEAST PAIN MANAGEMENT, LLC., Appellant, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 05-167 AP. LT. Case No. 01-25729 CC 23. March 23, 2006. An appeal from the County Court for Miami-Dade County, Linda S. Stein, Judge. Counsel: Roberts J. Bradford, Marks & Fleischer, P.A., for Appellant. Mark Gatica, the Office of the General Counsel, United Automobile Insurance Company, for Appellee.
(Before BERTILA SOTO, ELLEN SUE VENZER and MARK KING LEBAN, JJ.)
(LEBAN, J.) This is an appeal of a jury verdict in favor of United Automobile Insurance Company (United Auto). The insured in this case was involved in an automobile accident in June 2001. At the time of the accident, the insured was covered by a policy of personal injury protection (PIP) insurance issued by the appellee, United Auto. Following the accident, the insured received several months of medical treatment by doctors at Northeast Pain Management, LLC (Northeast).
In July 2001, United Auto mailed a request to the insured’s attorney for an examination under oath (EUO) of the insured. Later that month, the insured’s attorney timely mailed a reply letter to United Auto indicating that the EUO required rescheduling as he would be on vacation and thus unable to attend. As far as this Court can determine, United Auto did not contact the insured’s attorney to reschedule. As a result, the insured never sat for an EUO.
At the conclusion of his treatment, the insured assigned his PIP benefits to Northeast. When United Auto refused payment of the claims, Northeast filed suit seeking PIP benefits. United Auto answered the complaint asserting various affirmative defenses including breach of the policy by the insured for failure to attend the EUO.
Northeast was unaware for the majority of the pre-trial proceedings of the existence of the letter from the insured’s attorney requesting that the EUO be rescheduled. The letter was not produced until the United Auto insurance adjuster’s deposition — which occurred after the court ordered deadline for discovery and shortly before trial. Once the letter was finally produced, Northeast amended its previously submitted witness list to include the insured’s attorney. That amendment occurred after the court ordered deadline.
Immediately before trial, the lower court ruled that Northeast could not call the insured’s attorney to testify regarding his correspondence requesting a rescheduling of the EUO and that the contents of the attorney’s letter could not be disclosed to the jury. The court also precluded the insured himself from testifying as to the attempt at EUO rescheduling. The court’s rationale was that such evidence would be improper because Northeast had not listed the letter as an exhibit or the attorney as a witness until after the court ordered deadline. The court made this ruling despite Northeast’s assertion that the need for the testimony came to light only after United Auto’s inexplicable and suspiciously tardy production of the attorney’s letter.
After close of evidence, the trial court instructed the jury that the insured’s failure to submit to an EUO constituted a complete defense to the suit. The jury verdict form included as its first question: “Did the [insured] fail to submit to a properly noticed examination under oath as required by the policy of insurance?” It went on to state that if the answer to that question is “yes,” then the jury will have found in favor of United Auto and need not consider any further issues. Those instructions were given in favor of Northeast’s proposed instruction which asked the jury to determine “whether [the insured] breached the contract of insurance by unreasonably refusing to attend an examination under oath scheduled by [United Auto].” (emphasis added). The jury eventually returned a verdict in favor of United Auto and this appeal followed.
In this appeal, Northeast argues that the trial court erred in excluding the letter from the insured’s attorney requesting an EUO rescheduling and that it erroneously prohibited both the attorney and insured from testifying as to their understanding that the EUO would be rescheduled. It further contends that the trial court erred in failing to give an appropriate jury instruction regarding the insured’s reasonable failure to appear for the EUO.
Exclusion of Evidence
The standard of review for evidentiary decisions is whether the trial court abused its discretion. Hendry v. Zelaya, 841 So. 2d 572, 575 (Fla. 3d DCA 2003); Castaneda v. Redlands Christian Migrant Assoc., Inc., 884 So. 2d 1087, 1090 (Fla. 4th DCA 2004). The admission of evidence is within the sound discretion of the trial court whose decision must be viewed in the context of the entire trial. Forester v. Norman Roger Jewell & Brooks Int’l, Inc., 610 So. 2d 1369, 1372 (Fla. 1st DCA 1993).
Judges should certainly expect compliance with their orders and this Court understands the trial judge’s frustration with any party who apparently disregards a court’s authority. But as the Florida Supreme Court explained in Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981), not every discovery violation should result in the automatic exclusion of a witness. Instead, the lower court must evaluate and make findings as to the prejudice visited upon the complaining party. Id. at1314; see also Westerly v. King, 782 So. 2d 997 (Fla. 1st DCA 2001) (finding of prejudice is necessary in order to strike a party’s witness).
“Prejudice in this sense refers to the surprise in fact of the objecting party. . .” Binger, 401 So. 2d at 1314. Furthermore, the lower court must examine: “(i) the objecting party’s ability to cure the prejudice or, similarly, his independent knowledge of the existence of the witness; (ii) the calling party’s possible intentional, or bad faith, noncompliance with the pretrial order; and (iii) the possible disruption of the orderly and efficient trial of the case . . .” Id.
Given the circumstances of the instant case, the exclusion of the insured’s attorney was too drastic a sanction and thus erroneous. First, there was no attempt by United Auto to cure its perceived prejudice. United Auto could have, for example, requested leave to depose the insured’s attorney. It did not. Instead, United Auto waited until the day of trial to object to the attorney’s testimony. Further, United Auto did have “independent knowledge of the existence of the witness” since it was aware of the insured’s attorney as well as the contents of the attorney’s letter for a full two and a half years before trial. Indeed, United Auto was in possession of the letter for the entirety of the pre-trial discovery period.
Secondly, Northeast’s non-compliance with the trial court’s ordered deadline was not intentional or in bad faith. Northeast was not aware of the existence of the attorney’s letter, and thus the need to call the attorney as a witness, until after the expiration of the court’s deadline. Thus, Northeast was not attempting to ambush United Auto with a surprise witness. In fact, if there was any “bad faith” to be had in this case, it would originate from United Auto’s failure to timely produce the attorney’s letter at the start of discovery.
Thirdly, allowing the attorney and insured to testify as to the EUO rescheduling request would not have disrupted the orderly and efficient flow of the trial. This brief testimony would not have caused significant delay or disruption.
The right to call witnesses is one of the most important due process rights of a party. Dos Santos v. Carlson, 806 So. 2d 539, 541 (Fla. 3d DCA 2002) (citing Pascual v. Dozier, 771 So. 2d 552, 554 (Fla. 3d DCA 2000)). Accordingly, the exclusion of the testimony of witnesses must be carefully considered and sparingly done. Id. at 554. Moreover, a trial court should exercise caution when the witness sought to be excluded is one of the party’s most important witnesses since the exclusion of such a witness leaves that party unable to present evidence to support his or her theory of the case. Id. This is precisely the result in the instant case — the exclusion of the letter and any testimony stemming from the letter left Northeast unable to establish certain crucial aspects of its case. This result is unfair under the circumstances of the case and the lower court’s rulings constituted an abuse of discretion requiring a new trial.
Jury Instruction
The standard of review for decisions regarding jury instructions is an abuse of discretion. Smith v. Orhama, Inc., 907 So. 2d 594, 595 (Fla. 3d DCA 2005). 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. Barkett v. Gomez, 908 So. 2d 1084, 1086 (Fla. 3d DCA 2005). In order to demonstrate that the failure to give a requested jury instruction constitutes reversible error, an appellant must establish that: a) the requested instruction contained an accurate statement of the law; b) the facts in the case supported a giving of the instruction; and c) the instruction was necessary for the jury to properly resolve the issues in the case. Id.
Here, the appellant has met its burden with regard to part (a) of the test enumerated above — the requested instruction was an accurate statement of the law as it relates to failure to appear for an EUO. Florida courts seem to acknowledge that mere failure to appear at an EUO, without more, is insufficient to justify insurer non-payment, and that “reasonableness,” “fairness,” “explanations,” and “excuses” are relevant in making the determination of whether an insured refused to attend an EUO.
This reading of EUO attendance law is reinforced by Haiman v. Federal Ins. Co., 798 So. 2d 811 (Fla. 4th DCA 2001). There, the court stated that a total failure to comply with a policy-required EUO may constitute a breach precluding recovery from the insurer as a matter of law. Id. at812. But it went on to state that “[i]f . . . the insured cooperates to some degree or provides an explanation for its noncompliance, a fact question is presented for resolution by a jury.” Id. (emphasis added).
The Haiman court’s language was mirrored by this Court in Hudson v. United Auto. Ins. Co., 12 Fla. L. Weekly Supp. 833b (11th Judicial Circuit, June 14, 2005). There, we reversed summary judgment for the insurer stating that there remain genuine issues of material fact on whether the insured’s “ ‘refusal’ to attend the EUO was unreasonable.” Id. (emphasis added). We went on to state that “[i]f the insured cooperates to some degree or provides an explanation for noncompliance with policy provisions that are prerequisites to suit, a fact question is presented for jury resolution.” Id. (citing Diamonds & Denims, Inc. v. First Georgia Ins. Co., 417 S.E.2d 440, 441-442 (Ga. Ct. App. 1992) (emphasis added)); see also United Auto. Ins. Co. v. Jean, 11 Fla. L. Weekly Supp. 533a (11th Judicial Circuit, April 6, 2004) (“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.”) (emphasis added); and All Health Chiropractic v. State Farm Mut. Auto. Ins. Co., 10 Fla. L. Weekly Supp. 449a (15th Judicial Circuit, March 21, 2003) (“Subject to the ordinary standards of reasonableness and fairness, if a claimant does not cooperate with the policy EUO provisions, he or she is not entitled to PIP benefits”) (emphasis added).
While the above cited case law alone is sufficient to establish that Florida courts can consider reasonableness, fairness and excuses in connection with failure to appear for EUO’s, United Auto’s own notice of EUO sent to the insured in this case contemplates this result as well. The last sentence of that notice states: “Your failure to appear [at the scheduled EUO] without prior excuse may result in denial of benefits.” (emphasis added).
The lower court’s jury instruction, on the other hand, was inconsistent with Florida law. The erroneous instruction created, for all intents and purposes, a strict liability standard for EUO attendance — that is, the court’s instruction was written such that failure to attend an EUO equated to loss of PIP benefits under all circumstances, without exception and without regard to reasonableness or fairness. This strict attendance standard is not a reflection of Florida law as it prevents the jury from considering the circumstances surrounding the failure to appear. Northeast’s requested instruction, however, was an accurate representation of Florida law. And as such, this court holds that Northeast has met the first prong of the jury instruction test.
The appellant also meets its burden under part (b) of the jury instruction test since the facts in this case supported the requested instruction. Northeast presented evidence of the existence of a letter from the insured’s attorney responding to the EUO. The existence of the letter combined with the insured’s testimony that if he had known about the EUO he would have attended, are sufficient to meet Northeast’s burden of establishing that the evidence presented supported the requested instruction.
Moreover, this Court notes that had the lower court allowed Northeast to both disclose the contents of the attorney’s letter and allowed the attorney and insured to testify as to their understanding that the EUO would be rescheduled, there would have been additional factual support for the requested instruction. That is, the lower court’s erroneous rulings as to the letter as well as the attorney and insured’s testimony adversely affected Northeast’s ability to present further factual support for the requested jury instruction.
Lastly, Northeast has fulfilled part (c) of the jury instruction test because the requested instruction was, in fact, necessary for the jury to properly resolve the issues in the case. United Auto’s defense of EUO non-compliance was a threshold issue since it was a complete defense to Northeast’s claim. In other words, a finding that the insured did not attend the EUO rendered moot any questions concerning whether the insured’s medical treatment was reasonable, necessary and related to the subject car accident. Given that EUO attendance was such a central issue at trial, the jury had to be properly instructed on the EUO non-compliance defense to appropriately decide the case.
Here, the jury was instructed to consider only whether or not the insured attended the EUO — no justification or excuses for failure to appear could factor in to the jury’s consideration. This was erroneous since it resulted in the jury not receiving proper instructions on the key portions of law needed to properly resolve the issues at trial. Conclusion
The trial court abused its discretion in excluding the content of the attorney’s letter requesting a rescheduling of the EUO as well as the attorney and insured’s testimony regarding the EUO rescheduling. Further, the lower court’s improper jury instruction as to the issue of EUO non-compliance and failure to give Northeast’s proposed jury instruction constituted reversible error. Thus, we reverse the judgment entered in favor of United Auto, remand the case for a new trial and grant Northeast’s motion for attorney’s fees in accordance with Rule 9.400(b), Fla. R. App. P. REVERSED and REMANDED for a new trial. ( SOTO and VENZER, JJ., concur.)
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