7 Fla. L. Weekly Supp. 242a
Insurance — Personal injury protection — Medical bills — Denial of coverage on ground that insured failed to attend independent medical examination, which insured contended had been canceled — Attorney’s fees — Insured entitled to PIP benefits for medical bills he submitted to insurer before the first scheduled independent medical examination — Any error arising from trial court’s failure to grant insurer’s request for jury trial was harmless — Because determination of whether a condition precedent has been met is a legal issue, and trial court found that under totality of circumstances the overwhelming evidence indicated that insured’s failure to appear at IMEs was reasonable, judgment was correctly entered in favor of insured — Insured, as prevailing party, entitled to attorney’s fees and costs
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. HECTOR DE LA O, Appellee. 11th Judicial Circuit in and for Miami-Dade County, Appellate Division. Case No. 98-456 AP. Lower Case No. 97-1736 SP 25. Opinion filed January 26, 2000. An Appeal from County Court for Miami-Dade County, Jeffrey D. Swartz, Judge. Counsel: June G. Hoffman, for Appellant. John H. Ruiz, for Appellee.
(Before JEFFREY ROSINEK, PAUL SIEGEL, and PEDRO P. ECHARTE, JJ.)
(PER CURIAM.) Appellant/insurer, United Automobile Insurance Company (“UAIC”), appeals from two Final Judgments entered by the trial court, in favor of the Appellee/insured, Hector De La O (“De La O”), for medical bills submitted under the Personal Injury Protection (“PIP”) provisions of his policy; and for Attorney’s Fees and Costs, entered pursuant to § 627.428, Fla. Stat. (1997).
On August 10, 1996, De La O sustained personal injuries as a result of an automobile accident. UAIC received notice of this accident on October 6, 1996. De La O completed medical treatment on December 18,1996. He submitted medical bills to UAIC on January 21, 1997 and January 24, 1997. On January 10, 1997, UAIC scheduled an IME to take place on January 27, 1997. De La O never attended this IME. The IME was then rescheduled for February 11, 1997, and again De La O did not attend. He did not attend either of the scheduled IME’s because he stated that he was informed that they had been canceled. UAIC subsequently refused to pay the medical bills submitted, due to De La O’s unreasonable failure to attend. De La O filed suit on March 13, 1997. On April 2, 1997, UAIC filed its Answer and Affirmative Defenses, which included a demand for jury trial. As an affirmative defense, UAIC asserted that the IME’s had not been canceled.
On February 12, 1998, the Court entered an Agreed Order Granting Partial Summary Judgment. That Order provided that the reasonableness, relation, and medical necessity of De La O’s claimed medical expenses had been established. The Order also provided that the issue of coverage or liability was still in dispute. On October 27,1998, the Court conducted a trial, without a jury, and found that the overwhelming weight of the evidence indicated that De La O’s failure to appear at the scheduled IME’s was not unreasonable.
UAIC argues that the trial court erred in rendering a judgment for De La O. They contend that they are not liable for De La O’s medical bills because he failed to attend the scheduled IME’s. The Florida P.I.P. statute states, pursuant to § 627.736(7)(b), Fla. Stat. (1997),
(a) Whenever the mental or physical condition of an injured person covered by personal injury protection is material to any claim that has been or may be made for past or future personal injury protection insurance benefits, such person shall, upon the request of an insurer, submit to mental or physical examination by a physician or physicians.
(b). . . If a person unreasonably refuses to submit to an [IME] examination, the personal injury protection carrier is no longer liable for subsequent personal injury protection benefits. (Emphasis added).
For purposes of this P.I.P. statute, the term “benefits” has been defined as medical bills subsequently payable upon the insurer’s receipt. U.S. Security Insurance Company v. Silva, 693 So. 2d 593 (Fla. 3d DCA 1997). Therefore, it is well settled that an insured is entitled to PIP benefits for medical bills submitted prior to an unreasonable failure to submit to an IME examination. Silva, 693 So. 2d at 595; Jones v. State Farm Mut. Auto Ins. Co., 694 So. 2d 165, 167 (Fla. 5th DCA 1997) (insurer is liable for PIP benefits incurred before request for IME is made); Tindall v. Allstate Ins. Co., 472 So. 2d 1291, 1293 (Fla. 2d DCA 1985).
In Silva, the insured had unreasonably failed to attend a scheduled IME on September 2. Silva, 693 So. 2d at 595. However, she had completed treatment on August 27th. Id. at 596. Consequently, she was only claiming benefits for medical services rendered prior to the scheduled IME. Id. The insurer did not receive bills for those services until after September 2. Id. The insured argued that although she had unreasonably failed to attend the IME, the insurer was still obligated to pay medical bills incurred prior to her refusal to attend the IME, but not yet received by the insurer. The court held that the insurer was responsible only for those medical bills it received prior to the insured’s unreasonable refusal to attend the IME. Id. at 596.
Similarly, in Jones, the insured was injured on April 1st. Jones, 694 So. 2d at 166. He had surgery for the injury on September 28th. Id. The bills for the surgery were received by the insurer on October 13th. Id. Thereafter, the insurer scheduled the insured for an IME on November 30th. Id. The insured did not attend this IME. Id. The insurer argued that it was no longer liable to pay the insured benefits, because of the insured’s failure to attend the November IME. Id. The Fifth District Court of Appeal ruled that even if the insured had unreasonably refused to attend the IME, the insurer was not relieved from all liability for PIP payments. Id. at 167. Rather, the insurer would appear to remain liable for PIP benefits incurred prior to the request for an IME. Id.
In this case, De La O submitted all of his medical bills prior to his failure to attend the first IME. UAIC incorrectly asserts that the pivotal date, for determining when medical bills must be received by, is when the first IME was actually scheduled, on January 10, 1997. However, the important date is when De La O refused to attend the IME. That date is January 27, 1999. Consequently, whether the IME’s were unreasonably canceled, or not, is immaterial. The effect of De La O’s failure to attend the IME’s was that he was no longer entitled to subsequent PIP benefits. However, De La O is not seeking “subsequent PIP benefits”. He is seeking benefits for medical bills incurred and submitted to UAIC before the first scheduled IME. So, even if De La O had unreasonably failed to attend the scheduled IME’s, UAIC would still be liable for bills received prior to the failure to attend. Consequently, De La O is clearly entitled to PIP benefits for medical bills he submitted to UAIC before the first scheduled IME.
UAIC also argues that the trial court erred by failing to grant their request for a jury trial. It is well-settled that a demand for jury trial is to be preserved inviolate. Jaye v. Royal Saxon, Inc., 720 So. 2d 214 (Fla. 1998); Christiania Holding, Inc. v. Koalick, 695 So. 2d 491 (Fla. 3d DCA 1997). Once a party properly and timely makes a demand for jury trial in their pleading, it requires affirmative action on their part, such as a written waiver or an announcement in open court, to waive that constitutional right. Fla. R. Civ. Pro. 1.430(a); Kies v. Ins. Guar. Ins. Ass’n, Inc., 435 So. 2d 410, 411 (Fla. 5th DCA 1983). A right to a jury trial is not waived by acquiescence to a non-jury trial. Barth v. Florida State Constructors Service, Inc., 327 So. 2d 13 (Fla. 1976).
However, any error, in denying UAIC’s request for a jury trial, was harmless error. Under Silva, the determination as to whether a condition precedent has been met is a legal issue. 693 So. 2d at 595. The condition precedent was a reasonable cancellation on the part of De La O. To that end, the trial judge found that under the totality of the circumstances, the overwhelming weight of the evidence indicated that De La O’s failure to appear at the IME’s was indeed reasonable.1
It is a long established common law principle that although questions of fact must be decided by a jury, the question of whether there is sufficient evidence to raise a question of fact, is a question of law. Comment to Fla. R. Civ. Pro. 1.430(a). Consequently, the determination of the legal sufficiency of the evidence was properly within the purview of the trial judge. In this case, the judge conducted a hearing to determine the sufficiency of UAIC’s evidence. Thus, the burden was on UAIC to produce sufficient evidence to prove their affirmative defense that the IME’s had not been reasonably canceled. Public Health Trust of Dade County, Florida v. Holmes, 646 So. 2d 266, 267 (Fla. 3d DCA 1994). UAIC failed to meet this burden. At trial, UAIC’s only witness was Ms. Lopez, the UAIC employee who scheduled De La O’s IME’s. When asked about the cancellations, she stated she could not remember if the IME’s had been canceled.2 As a result, the lower court found the evidence insufficient to raise any issue of fact for a jury to decide. Therefore, although the lower court may have erred in denying UAIC’s demand for a jury trial, it was a harmless error. Judgment was correctly entered in favor of De La O.
As the prevailing party, De La O is also statutorily entitled to Attorney’s Fees and Costs, pursuant to § 627.428, Fla. Stat. (1997).
Accordingly, the judgment of the lower court is hereby AFFIRMED, and this cause REMANDED back to the lower court for the determination of Attorney’s Fees and Costs.
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1Trial Transcript Pg.71, Ln.14 through Pg.72, Ln.6.
2Trial Transcript Pg.6, Lns.13-17.
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