16 Fla. L. Weekly Supp. 138b
Online Reference: FLWSUPP 162ESTRA
Insurance — Personal injury protection — Jurors — Challenge — Cause — Error to refuse request to excuse juror whose statements showed that she would be biased against insurer and could not accept that insurer had right to hire independent doctor to dispute reasonableness of treatment — Error to refuse to excuse second juror whose statements indicated that she would be biased against insurer — Juror’s statement, “I think I will give it a fair trial,” did not overcome reasonable doubt of her impartiality — Continuance — Denial — No abuse of discretion in denying request to continue trial to afternoon due to unavailability of insurer’s expert witness on reasonableness, relatedness and necessity of charges where insurer did not show due diligence in securing witness’s presence despite trial court’s clear expression of time at which witness needed to appear, and case had been pending for several years before several judges — Moreover, there was no prejudice to insurer in omission of witness’s testimony since trial court indicated that on cross-examination of medical provider’s witnesses insurer had elicited legally sufficient impeachment to show that charges may not have been reasonable, related or necessary
UNITED AUTOMOBILE INSURANCE COMPANY, A Florida Corporation, Appellant, v. ADVANCE HEALTH CENTER, INC., A/A/O SYLVIA ESTRADA, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 07-411 AP. L.C. Case No. 05-6276 SP 26. December 10, 2008. An appeal from the County Court for Miami-Dade County, Patricia Marina Pedraza, Judge. Counsel: Ivy R. Ginsberg, United Automobile Insurance Company, Office of the General Counsel, for Appellant. Virginia M. Best, Lopez & Best, for Appellee.
(Before: BLAKE, RODRIGUEZ, and PRESCOTT, JJ.)
(PER CURIAM.) The Appellant, United Automobile Insurance Company (“United”), appeals a final judgment for Personal Injury Protection (PIP) benefits entered below in favor of the Appellee, Advance Health Center, Inc. a/a/o Sylvia Estrada (“Advance Health”), after a jury verdict. United contends that the judgment should be quashed and the matter remanded for a new trial based on the lower court’s commission of reversible error in failing to excuse two jurors for cause. United also contends that the court abused its discretion in failing to grant United a continuance and a delay of the trial so that a United expert, who was then unavailable, could testify that the “vast majority” of Advance Health’s bills were unreasonable, and that the insured had reached maximum medical improvement at a certain date which, because of a deductible, would have ultimately resulted in a verdict in favor of United.
We agree that the lower court committed reversible error in failing to excuse two jurors for cause. However, we disagree that the court abused its discretion in failing to grant the continuance. Nevertheless, because of the court’s reversible error committed during the venire conference, we quash the judgment and remand the matter back to the trial court for a new trial.
During the venire conference, the following pertinent exchanges took place between United’s counsel and two prospective jurors, Carmen Artime and Alicia Hadida-Hassan:
COUNSEL: Do you have a problem with an automobile insurance company investigating a claim before they pay it?
ARTIME: I don’t have a problem with the investigation. I do believe that the doctor that investigate[s] should be, like she said earlier, a third party, not necessarily paid by the insurance company. I feel there is a conflict of interest there.
COUNSEL: Can you explain that to me a little bit? I’m not quite sure I understand.
ARTIME: If you have a doctor that is agreed to by both parties and he reviews the case, I would feel a little bit differently than if it’s the insurance company’s doctor, is what I’m trying to tell you.
COUNSEL: Well, so you would believe that the insurance company’s doctor would be slanting the truth because he was hired by the insurance company?
ARTIME: I think he could be leaning towards that. If I have a medical doctor and I’m in need of care, and it’s given to me, and at that time my doctor feels that’s what I need, I’m going to be very angry if somebody else second guesses him later and says well, now I’m not paying the bill because this and that and that should have been done.
COUNSEL: Do you feel that doctors always prescribe services that are medically necessary?
ARTIME: I have to feel yes, otherwise I wouldn’t go there.
COUNSEL: Thank you, Ms. Artime.
The questioning of Hadida-Hassan went as follows:
COUNSEL: Do you ever work with insurance companies in your work?
HADIDA-HASSAN: No, I bill the insurance companies for the services I serve.
COUNSEL: And do you, yourself, bill the insurance companies, or do you have an assistant that bills them?
HADIDA-HASSAN: No, I do it myself.
COUNSEL: Have you ever had a problem with one of the insurance companies paying a bill?
HADIDA-HASSAN: Sometimes, but we clarify and we are able to resolve it.
COUNSEL: Now, in this case, you know that I represent an insurance company. Would you rule against me right off the bat, hold it against my client, because we represent an insurance company, or would you give us a fair trial?
HADIDA-HASSAN: No, I think I will give it a fair trial.
COUNSEL: Because we are contending that we should not have to pay the medical bills in this particular case.
HADIDA-HASSAN: Mm hmm.
COUNSEL: That, in and of itself, would not cause you to rule against us [-] the fact that we are taking this position?
HADIDA-HASSAN: Yeah, I have a certain doubt about it.
COUNSEL: A certain doubt —
HADIDA-HASSAN: Yes.
COUNSEL: About us?
HADIDA-HASSAN: Because if it’s a doctor said that he served the patient in her best ability and according to the symptoms he presented and the treatment was fine for the patient and for the doctor, so I don’t — I don’t know how is the base to judge another doctor says the opposite.
COUNSEL: Well, do you think that doctors always render treatment that is medically necessary, or do you think sometimes doctors will render treatment that is not medically necessary in order to charge more?
HADIDA-HASSAN: I think —
MR. ALVAREZ: Objection, it’s argumentative, Your Honor.
THE COURT: I’m going to sustain the objection and ask you to move on.
COUNSEL: Well, in this case, you are going to hear testimony, you will probably hear testimony that United Automobile Insurance Company had their own doctor. We paid for that doctor to conduct an examination to review the medical records. Do you think it is wrong, there is something wrong with an insurance company doing that before they decide to pay a bill? I know I’m really pushing you here.
HADIDA-HASSAN: Yeah, it’s a very difficult answer. The same answer that I will have if you ask me is there are lawyers that also take some clients because of an ailment that they don’t have and they claim because they fell the steps or whatever. So, in any profession there is some professional who commits fraud and it goes beyond the science, the specialty, and the knowledge.
Based on this testimony, United moved to strike Artime and Hadida-Hassan for cause. The trial court denied United’s motions, although noting, with respect to Hadida-Hassan, that “she did say unequivocally that she can be fair and impartial. So I am going to deny it.”
United used two peremptory challenges to strike Artime and Hadida-Hassan. Before the final jury was selected, however, United requested two additional peremptory challenges in order to strike two jurors, Mary Jewell and Heather Undorfer, based on the court’s denial of the cause challenges for Artime and Hadida-Hassan. The court denied United’s request and Jewell and Undorfer, with four other members, were impaneled.
Initially, it is important to note that, although Artime and Hadida-Hassan eventually did not sit on the panel, the failure of the trial court to excuse them for cause is properly preserved for appellate review. See Trotter v. State, 576 So. 2d 691 (Fla. 1990); Joseph v. State, 983 So. 2d 781 (Fla. 4th DCA 2008).
The question of the competency of a challenged juror is one of mixed law and fact to be determined by the trial court in its discretion, and its decision will not be disturbed unless manifest error is shown. Singer v. State, 109 So. 2d 7, 22 (Fla. 1959). As this discretion is not absolute, it is abused where the court refuses to excuse for cause a prospective juror who responds with equivocal or conditional answers, thus raising a reasonable doubt as to whether the prospect possesses the state of mind necessary to render an impartial decision. See e.g. Price v. State, 538 So. 2d 486 (Fla. 3d DCA 1989). When a party seeks to strike a potential juror for cause, the trial court must allow the strike when “there is basis for any reasonable doubt” that the juror had “that state of mind which w[ould] enable him to render an impartial verdict based solely on the evidence submitted and the law announced at the trial.” Singer, 109 So. 2d at 23-24; see also Ault v. State, 866 So. 2d 674, 683 (Fla. 2003) (same). Courts have held that ambiguities or uncertainties about a juror’s impartiality should be resolved in favor of excusing the juror. See Cottrell v. State, 930 So. 2d 827, 829 (Fla. 4th DCA 2006) (quoting Huber v. State, 669 So. 2d 1079, 1081 (Fla. 4th DCA 1996) (“This court has held that it is error not to grant a challenge for cause when there is a basis for any reasonable doubt as to the juror’s ability to render an impartial verdict, and that close cases should be resolved in favor of excusing the juror rather than leaving doubt.”)); Smith v. State, 907 So. 2d 582, 585 (Fla. 5th DCA 2005) (same).
Applied here, based on Artime’s voir dire quoted above, it is clear that she would not have been impartial. Based on her statements, she would have been biased in favor of Advance Health and against United. She could not accept the fact that United had a legal right to hire an independent doctor, one not necessarily agreed to by both parties, who could then dispute the bills submitted by Advance Health to United. She stated that she, personally, would be “very angry” if a second doctor subsequently “second guesse[d]” the treatment she previously received from her treating physician. Lastly, in response to whether doctors always prescribe services that are medically necessary, she stated that she felt that they do, “otherwise [she] wouldn’t go there.”
With respect to Hadida-Hassan’s voir dire, she stated that she had a “certain doubt” with respect to United’s contention that it should not have to pay Advance Health’s bills, and that if an initial treating doctor states that he treated the patient to the best of his ability, she would not know how to “base” another doctor’s [United’s] testimony to the “opposite.” Again, as with Artime’s testimony, we have to conclude that Hadida-Hassan’s testimony exhibited bias against United and its legal defense against Advance Health’s claim. Moreover, we find that her statement “I think I will give it a fair trial,” to the extent that it can be deemed to render her total voir dire ambiguous in the first instance, does not overcome a reasonable doubt of her impartiality clearly shown by her other statements.
Accordingly, based on the responses elicited in the voir dire, we have no other choice but to conclude that Artime and Hadida-Hassan should have been excused for cause, and the court’s failure to do so constitutes reversible error, as United was not required to exhaust its peremptory challenges on jurors which should have been excused for cause by the court. Reversible error is shown because, upon a later request, the court refused to grant United extra peremptories to excuse two identified jurors who eventually served on the panel.
United also argues that the trial court abused its discretion by denying a motion for continuance. On the third and final morning of the trial, United requested that the court delay the trial until the afternoon because of the unavailability of one of its witnesses, Dr. Mervin Merritt. However, United had previously and specifically informed the court that Dr. Merritt was not available to testify in the afternoon and had to be scheduled for the morning. Dr. Merritt was to offer expert testimony as to the reasonableness, relatedness and necessity of the charges billed by Advance Health to United.
In considering whether the trial court abused its discretion in denying a motion for continuance, the factors to be considered include whether the denial of the continuance creates an injustice for the movant, whether the cause of the request was unforeseeable by the movant and not the result of dilatory conduct, and whether the opposing party would suffer any prejudice or inconvenience as a result of the continuance. See e.g. Bryan v. Bryan, 824 So. 2d 920 (Fla. 3d DCA 2002); Michigan National Bank v. Ibis Landing Venture, LTD., 899 So. 2d 328 (Fla. 4th DCA 2005).
Applied here, based on the record before us, we conclude that the trial court did not abuse its discretion in failing to grant the continuance. United did not show due diligence in securing Dr. Merritt’s presence despite the fact that the trial court clearly expressed the time that he needed to appear, to which United concurred. Despite his importance to United’s case, United opted not to subpoena Dr. Merritt to insure his presence at the trial. Further, the case was a 2005 one, and had apparently been noticed for trial before several other judges. Lastly, although Dr. Merritt’s testimony was not heard, it is noted that the lower court, in denying Advance Health’s motion for directed verdict, found that United, on cross examination of Advance Health’s witnesses, elicited legally sufficient impeachment to ultimately show that the charges may not have been reasonable, related and necessary. Indeed, this was urged by United. Thus, we find that there was no injustice or prejudice suffered by United by the court’s refusal to delay the trial so that Dr. Merritt could testify.
Notwithstanding the court’s correctness in its decision not to grant the continuance, we must reverse and remand the decision based on its reversible error committed during the voir dire by refusing to exclude Artime and Hadida-Hassan for cause.
REVERSED and REMANDED.
