8 Fla. L. Weekly Supp. 542a
Insurance — Personal injury protection — Setting aside of clerk’s default which was rendered 19 days after service and without notice affirmed — Denial of motion to reopen the evidence based upon setting aside of clerk’s default affirmed where counsel failed to proffer testimony he sought to introduce — Independent medical examination — Error to direct verdict against insured in action for PIP benefits for unreasonable failure to appear at IME where there was no evidence of refusal to submit to IME — Evidence established that insured had to work at time of first IME; insured missed second IME due to delay at work, transportation problems, and physical therapy; and insured called after second missed IME and was told that she could reschedule — Reasonableness of insured’s conduct was question of fact for jury — Insured’s motion for attorney’s fees granted
Editor’s note: Additional orders in this case published at 9 Fla. L. Weekly Supp. 85a and at 12 Fla. L. Weekly Supp. 114a.]
MARIA LAMORA, Appellant, v. UNITED AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 00-031 AP. Lower Court Case No. 98-10613 CC 05. Opinion filed June 19, 2001. An Appeal from County Court, Miami-Dade County, Florida, Judge A. Leo Adderly. Counsel: Michael I. Libman, for Appellant. Hinda Klein, for Appellee.
(Before D. BRUCE LEVY, JENNIFER D. BAILEY, MICHAEL B. CHAVIES, JJ.)
(Per Curiam.) Ms. Lamora appeals an adverse final judgment rendered upon a directed verdict by the trial judge. For the reasons stated below, we reverse and remand for trial.
This is a claim for personal injury protection benefits for injuries resulting from an automobile accident. The first two points upon appeal are susceptible to quick disposition. First, Ms. Lamora argues that the court erred in setting aside the clerk’s default which was rendered 19 days after service and without notice. We affirm the trial court’s ruling without comment. See, Crawford v. American Household, 509 So. 2d 1358, 1359 (Fla. 4th DCA 1987), review denied 518 So. 2d 1274 (Fla. 1987). Second, we affirm the trial court’s denial of Ms. Lamora’s motion to re-open the evidence based upon the setting aside of the default. Counsel failed to proffer the testimony he sought to introduce. That failure is fatal. See, Stager v. Florida East Coast Railway Co., 163 So. 2d 15 (Fla. 3d DCA 1964); Connell v. Guardianship of Connell, 476 So. 2d 1381, 1382 (Fla. 1st DCA 1985).
The third issue merits reversal. The trial court directed a verdict against Ms. Lamora for unreasonable failure to appear for her independent medical examination. The record established that Ms. Lamora had been scheduled for independent medical examination twice. Clearly, she did not appear for either examination. Her testimony reveals that she had to work at the time of the first examination, although there was conflicting testimony that she had transportation problems. She testified she called and asked to reschedule. She was subsequently rescheduled. At the time of the second examination, she was delayed at work, had transportation problems, and was due for her physical therapy. She went to therapy instead of the appointment. She testified she called again afterwards, and was told that she could reschedule. Upon this evidence, the trial court found that she had unreasonably refused to submit to examination in violation of her policy obligations.
To sustain a judgment entered pursuant to directed verdict, the record must conclusively establish a total absence of facts or reasonable inferences from facts which could support the non-movant’s case. Easton-Babcock & Assoc., Inc. v. Fernandez, 706 So. 2d 916 (Fla. 3d DCA 1998). “Where the evidence is conflicting or permits different reasonable inferences, it should be submitted to the jury as questions of fact and not passed upon by the court as questions of law.” Id. at 919. Pursuant to Florida’s statutory scheme, an insurance company is entitled to ascertain whether benefits should be paid pursuant to a PIP policy by independent medical examination and evaluation. § 627.736(7)(b), Fla. Stat. (1998). United Automobile, appellee, convinced the judge that because Ms. Lamora had failed to appear twice, that she had unreasonably refused to submit to an examination which therefore relieved the insurer of liability. Id.; Tindall v. Allstate Insurance Co., 472 So. 2d 1291 (Fla. 2d DCA 1985). The burden is upon the insurance company to establish the absence of any material issue of fact in this case.
However, this is not a case of outright refusal to submit to a specified examination, see, De Ferrari v. Government Employees Ins. Co, 613 So. 2d 101 (Fla. 3d DCA 1993); Griffin v. Stonewall Insurance Co., 346 So. 2d 97 (Fla. 3d DCA 1977); Nor did Ms. Lamora refuse due to geography or location, see, Jones v. State Farm Mut. Auto Insurance Co., 694 So. 2d 165 (Fla. 5th DCA 1997). As noted by the Florida Supreme Court in U.S. Security Insurance Co. v. Cimino, 754 So. 2d 697 (Fla. 2000), there are scenarios in which an insured could reasonably refuse to submit to an examination. Assuming arguendo that her failure to appear could be determined as a matter of law to be a “refusal,” a jury could find her to have acted reasonably. Reasonableness is generally a jury question. Easton-Babcock, 706 So. 2d at 919. Indeed, Ms. Lamora testified that she never refused to be examined, she simply attempted to reschedule the examinations. There is no evidence of refusal in this record. The reasonableness of her conduct is a question of fact for the jury, not law for the court. Therefore, this matter is reversed and remanded for trial. The appellant’s motion for attorneys fees is granted and remanded to the trial court to fix the amount.
REVERSED and REMANDED with INSTRUCTIONS.
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