5 Fla. L. Weekly Supp. 733a
Insurance — Personal injury protection — No error in excluding from evidence insured’s refusal to submit to independent medical examination where claim against insurer was for medical bills submitted prior to IME request, and policy did not make IME a condition precedent to coverage, but provided only that refusal of insured to submit to IME would eliminate insurer’s liability for subsequent PIP benefits — No error in denying insurer’s motion for directed verdict — Insured’s failure to attend IME scheduled well after he had submitted his application for PIP benefits and after his treatments had terminated was not, as matter of law, so unreasonable as to absolve insurer of all liability for PIP benefits — Attorney’s fees award supported by sufficient competent evidence
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Appellant, vs. HARRY SYLVAIN, Appellee. 11th Judicial Circuit in and for Dade County, Appellate Division. Case Nos. 96-299 AP & 97-105 AP. Opinion filed July 17, 1998. An Appeal from the County Court in and for Dade County. Roger A. Silver, Judge. Counsel: Hinda Klein and Albert E. Moon, for appellant. Diego C. Asencio, and Mark A. Kaire, for appellee.
(Before MARGARITA ESQUIROZ, STEVEN D. ROBINSON and AMY N. DEAN)
(PER CURIAM.) The appellant, United Automobile Insurance Company (“United”), seeks reversal of a final judgment entered pursuant to a jury verdict in favor of appellee, Harry Sylvain (“Sylvain”). Appellant further requests this Court to reverse the attorney’s fee award entered by the lower court, and to remand to the lower court with instructions to reduce the number of hours awarded. The record contains sufficient evidence to support both the jury verdict and the order on attorney’s fees. Therefore, we affirm both the Final Judgment and the Order under review.
On October 12, 1994, the appellee, Sylvain, was involved in a car accident. At the time of the accident, Sylvain had an automobile insurance policy with the appellant, United, which included PIP benefits. As a result of the injuries, Sylvain underwent medical treatment from October 14, 1994 to February 1, 1995, and incurred medical bills. United’s insurance policy provides that “in the event of an accident, written notice of the loss must be given to the company or any of its authorized agents as soon as practicable.” On November 2, 1994, Sylvain, through his attorney, wrote a letter to Ed’s Insurance Agency, United’s authorized insurance agent, notifying them of Sylvain’s accident and injury, and advising them that he would be making a claim. On December 12, 1994, Sylvain, again through his attorney, mailed a letter directly to United advising them of the incident and providing formal notice of Sylvain’s PIP claim. Sylvain, via his attorney, submitted itemized medical bills to United on January 31, 1995 (PIP application attached), March 7, 1995, and May 15, 1995. On March 21, 1995, United requested that Sylvain attend an I.M.E. scheduled for April 6, 1995. Sylvain did not attend the scheduled I.M.E., but on April 5, 1995, filed a breach of contract suit due to United’s failure to pay the medical bills submitted prior to the I M.E. request. The jury returned a verdict in favor of Sylvain, and United timely filed this appeal.
First, Appellant contends that the lower court erred in granting appellee’s motion in limine, thus disallowing any reference to Sylvain’s failure to attend the scheduled I.M.E. Appellant argues that, in effect, the lower court precluded appellant from proving its affirmative defense that Sylvain’s failure to attend the I.M.E. was a breach of both a condition precedent to suit and a breach of the cooperation clause of the policy. The purpose of a motion in limine is to exclude irrelevant and immaterial matters, or to exclude evidence when its probative value is outweighed by the danger of unfair prejudice. In the absence of an abuse of discretion, a trial judge’s ruling on a motion in limine must be accepted by the appellate court if the record supports that finding. State v. Garcia, 431 So. 2d 651, 651 (Fla. 3d DCA 1983); State v. Battleman, 374 So. 2d 636, 637 (Fla. 3d DCA 1979).
Under the circumstances present in this case, we reject United’s contention that the failure to attend an I.M.E. is a breach of a condition precedent and a violation of the policy’s cooperation clause. Sylvain’s policy provides under “Conditions” in Part E as follows:
3. Proof of Claim; Medical Reports and Examinations; Payment of Claim Withheld. As soon as practicable the person making claim shall give to the Company written proof claim, under oath if required, which may include full particulars of the nature and extent of the injuries and treatment received and contemplated, and such other information as may assist the Company in determining the amount due and payable. Such person shall submit to mental or physical examinations at the Company’s expense when and as often as the Company may reasonably require. A copy of the medical report shall be forwarded to such person if requested in writing. If the person unreasonably refuses to submit to an examination the Company will not be liable for subsequent personal injury protection benefits. (Emphasis added.)
Thus, under the very terms of the policy, an insured’s unreasonable refusal to submit to a physical or mental examination only partially absolves the insurer, that is, it simply eliminates liability for subsequent personal injury protection benefits, and by definition such a refusal cannot therefore constitute a condition precedent to coverage. In this regard, Appellant’s reliance upon De Ferrari v. Government Employees Ins. Co., 613 So. 2d 101, 103 (Fla. 3d DCA 1993) is misplaced. TO begin with, the claim in De Ferrari was for uninsured motorist benefits, and therefore its reasoning does not assist in interpreting the personal injury protection provision of this policy (such as the language concerning subsequent benefits quoted above). In sum, the resolution of the issue before us is not affected by De Ferrari’s holding that the insured’s failure to comply with the proof of claim policy provision therein which required that the insured submit to the reasonably requested I.M.E. was a condition precedent to coverage. In the instant case, the lower court correctly determined that because Sylvain was not raising any claim with regard to subsequent personal injury protection benefits, and the issue before the court was whether United was liable for PIP benefits incurred prior to its request for an examination, the fact that Sylvain did not attend the independent medical examination (I.M.E.) was not relevant to that issue.
Moreover, the lower court’s order in limine is supported by case law. In U.S. Security Ins. Co. v. Silva, 693 So. 2d 593 (Fla. 3d DCA 1997), the Third District Court reviewed the independent medical examination requirement contained within Section 627.736(7)(a)-(b), and determined that the words “subsequent personal injury protection benefits” as used in the statute refer to the payment of medical bills. Under the statute as well, an unreasonable refusal of a claimant to submit to an examination alleviates the insurer of any subsequent liability for personal injury protection (PIP) benefits, but it does not relieve an automobile insurer of its obligation to pay medical bills for treatment prior to the request for an examination. See Tindall v. Allstate Ins. Co., 472 So. 2d 1291, 1292 (Fla. 2d DCA 1985), rev. denied, 484 So. 2d 10 (Fla. 1986); see also Jones v. State Farm Mut. Auto. Ins. Co., 694 So. 2d 165, 167 (Fla. 5th DCA 1997), § 627.736(7)(b), Fla. Stat. (1997). Based upon the foregoing, we conclude that the lower court did not abuse its discretion in granting Sylvain’s motion in limine.
Turning to the second issue, we conclude that the lower court did not err in denying the appellant’s motion for directed verdict. Generally’ the failure of a party to establish a prima facie case results in the entry of a verdict directed in the opposing party’s favor. See Sterling v. Sapp, 229 So. 2d 850, 852 (Fla. 1969) (motions for directed verdict should be resolved with extreme caution). Directed verdict is proper if there is no evidence or reasonable inference to support the opposing position. Id. In the case at bar, Sylvain’s complaint was sufficient to state a cause of action, and the evidence raised factual issues which were properly submitted to the jury, precluding a grant of directed verdict.1
As stated in U.S. Sec. Ins. Co. v. Silva, 693 So. 2d at 596, it is clear that the I.M.E. requirement of Section 627.736(7)(b) is intended to give insurers an opportunity to determine the legitimacy of a claim so that an appropriate decision can be made as to whether benefits should be paid. However, it is equally clear that section 627.736(4)(b) requires insurers to pay personal injury protection benefits within 30 days of written notice to guarantee swift payment of PIP benefits, in the absence of reasonable proof to establish that the insurer is not responsible for the payment. See Crooks v. State Farm Mutual Auto. Ins. Co., 659 So. 2d 1266 (Fla. 3d DCA 1995) (“insurance company has thirty days to verify the claim after receipt of an application for benefits”). There is no provision in the statute to toll this time limitation. Id. at 1268. Even counting from February 2, 1995, the date United’s claims adjuster testified she received Sylvain’s PIP application2, more than thirty (30) days passed before United requested an I.M.E. on March 21, 1995, and the personal injury protection benefits were overdue. Section 627.736(7)(a), Florida Statutes, and appellant’s insurance policy, require an injured person claiming PIP benefits to submit to an insurer’s reasonable request for an I.M.E. if the insured’s mental or physical condition is “material to any claim.” United had a substantial amount of time to make a request that Sylvain submit to an independent medical examination Sylvain’s failure to attend the medical examination scheduled well after submitting his application for personal injury benefits, and after his treatments terminated was not, as a matter of law, “unreasonable” so as to absolve United of all liability for PIP benefits.3
Finally, United requests this court to reverse the lower court’s attorneys’ fee award entered following the jury trial held below. We find that the record contains sufficient, competent evidence upon which the trial court based its award. The trial judge set forth his findings as required by Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985). We affirm the attorneys’ fee award.
Accordingly, we approve the decision below, grant Appellee’s motion for attorney’s fees in connection with this proceeding, and remand to the trial court for a determination of reasonable attorney’s fees incurred by Appellee in connection with this proceeding.
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1See Cruz v. Union General Ins., 586 So. 2d 91 (Fla. 3d DCA 1991) (claim for incurred medical expenses required factual determination of whether such expenses were reasonable, related or necessary).
2At trial, United argued that Sylvain filed an untimely notice of claim for the PIP benefits. This matter was properly submitted to the jury, which found that Sylvain had not unduly delayed the notice of claim, nor failed to cooperate with United. The jury verdict is supported by competent and substantial evidence in this regard.
3See Jones v. State Farm Mutual Auto Ins. Co., 694 So. 2d 165, 167 (Fla. 5th DCA 1997). In footnote one (1), the court states that under section 627.736(b), even if Jones’ refusal to submit to an examination was unreasonable “State Farm would appear to remain liable for PIP benefits incurred before the request for an examination was made.”
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