13 Fla. L. Weekly Supp. 334a
Insurance — Personal injury protection — Appeal of judgment against driver’s insurer in action brought by plaintiff who was struck by driver’s vehicle while sleeping in garage — Standing — Assignment — Waiver — Trial court correctly found that insurer waived affirmative defense of assignment by failing to raise defense by motion to dismiss or in responsive pleading, even where insurer asserted that it was surprised by existence of assignment introduced at trial — Coverage — Pedestrian — No merit to argument that trial court erroneously shifted burden of proof by requiring insurer to prove that plaintiff was not entitled to PIP benefits — Plaintiff was entitled to insurer’s PIP benefits as a pedestrian not entitled to PIP coverage from any household vehicle — Medical expenses — Reasonable, related and necessary treatment — No error in denying insurer’s motion for directed verdict on issue of reasonableness and necessity of medical bills despite absence of expert testimony on issue where medical records and lay testimony laid sufficient predicate for issue to be presented to jury
SOUTHERN GROUP INDEMNITY, INC., Appellant, v. RACQUEL JOSEY, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 04-17553 CACE (21). January 5, 2006.
OPINION
(MIETTE K. BURNSTEIN, J.) THIS CAUSE having come before the Court on Appellant’s, Southern Group Indemnity, Inc. (“Southern”), Appeal of the trial court’s Final Judgment. The Court having reviewed the appellate file in its entirety and being otherwise advised in the premises, finds and decides as follows:
On May 21, 2001, Racquel Josey was sleeping in a garage when a motor vehicle collided with the garage door. Thereafter, Josey received medical treatment for injuries resulting from the incident. The owner of the vehicle in question was insured under an automobile policy issued by Southern.
After being treated for her injuries, Josey made a claim to Southern for PIP benefits. Thereafter, Southern denied the claim and Josey filed suit. Following a jury verdict, the trial court entered a Final Judgment in favor of Josey on October 26, 2004.
Appellant raises three points on appeal. First, Appellant argues the trial court erroneously denied its Motion for Directed Verdict on the issue of standing. Second, Appellant argues the trial court erroneously shifted the burden of proof to the defense regarding Josey’s entitlement to PIP benefits. Third, the lower court erroneously denied Southern’s motion for directed verdict on the issues of reasonableness and necessity of the medical bills.
The standard of review on appeal of the trial court’s ruling on a motion for directed verdict is the same test used by the trial court in ruling on the motion. Sims v. Cristinzio, 898 So.2d 1004 (Fla. 2nd DCA 2005). In considering a motion for directed verdict, the court must evaluate the testimony in the light most favorable to the nonmoving party. Id. Furthermore, a trial court may only direct a verdict when the evidence and reasonable inferences therefrom fail to prove the plaintiff’s case. Nunez v. Lee County, 777 So.2d 1016 (Fla. 2nd DCA 2000).
In the instant matter, Southern asserts that since the existence of the assignment of Josey’s PIP benefits came as a surprise when it was first introduced into evidence during trial by Josey, Southern should not be deemed to have knowledge of the assignment for purposes of a waiver of the defense. However, the trial court, in the instant case, correctly found that a party waives affirmative defenses not raised by a motion to dismiss or in a responsive pleading. Fla. R. Civ. P. 1.140(h)(1). Thus, Southern should have raised assignment as a defense and by not doing so, the issue was waived. Krivanek v. Take Back Tampa Political Comm., 625 So.2d 840 (Fla. 1993).
Next, Southern asserts that the trial court erroneously shifted the burden of proof to the defense regarding Josey’s entitlement to PIP benefits. In particular, Southern argues that the trial judge shifted the burden of proof to Southern by forcing them to prove that Josey did not qualify for PIP coverage. However, at the time of the accident, Josey did not own a motor vehicle. No evidence was presented to show that Josey resided with a relative who owned an insured vehicle. Thus, this argument is not persuasive. As a pedestrian, not entitled to PIP from any household vehicle, Josey was entitled to Southern’s PIP pursuant to Florida Statutes § 627.736.
Lastly, Florida law has established the party bringing the PIP claim bears the burden of proving the reasonableness and necessity of medical expenses. Derius v. Allstate Indemnity Co., 723 So.2d 271 (Fla. 4th DCA) rev. denied, 719 So.2d 892 (Fla. 1998). However, expert testimony is not needed to prove the reasonableness and necessity of medical bills. Albertson’s Inc. v. Brady, 475 So.2d 986 (Fla. 2d DCA 1985) rev. denied, 486 So.2d 595 (Fla. 1986). In the instant case, the medical records submitted and the lay testimony provided by Josey laid a sufficient predicate for the question of reasonableness and necessity to be presented to the jury. Irwin v. Blake, 589 So.2d 973 (Fla. 4th DCA 1991); Donovan v. State Farm Mutual Automobile Insurance Co., 560 So.2d 330 (Fla. 4th DCA 1990). Given Josey’s testimony associating the medical bills with injuries resulting from the accident the trial court did not err by denying Southern’s motion for directed verdict on this issue. Albertson’s, 475 So.2d at 988.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the Final Judgment in favor of the Appellee by the lower is AFFIRMED.
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