8 Fla. L. Weekly Supp. 601b
Insurance — Personal injury protection — Directed verdict — No error in entertaining motion for directed verdict which was not renewed at close of all evidence where insurer made motion after insured rested his case, and trial court expressed intent to reserve ruling on motion until end of trial — Error to set aside verdict in favor of insured, where insured presented substantial evidence from which jury could have concluded that insured had not received notification of independent medical examination and therefore did not unreasonably fail to attend IME — Error to impose extreme sanction of directed verdict upon finding that insured gave false testimony regarding prior accidents where record does not establish that insured engaged in willful, repeated, and pervasive misconduct or that he attempted to defraud the court, but instead demonstrates that insured stated that he did not recall making statements in deposition in prior case
OMAR MONTERO, Appellant, vs. OAK CASUALTY INS. CO., Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 99-435 AP & 00-008 AP. Opinion filed July 24, 2001. An appeal from the County Court for Miami-Dade County, Florida, Harvey Goldstein, Judge. Counsel: Mark Feldman, for Appellant. Diana T. Matigian, and Jeanne Heyward, for Appellee.
(Before Arthur L. Rothenberg, Sandy Karlan, and Rosa I. Rodriguez, JJ.)
(PER CURIAM.) Appellant, Omar Montero (“Montero”) appeals the trial court’s order granting Appellee’s motion for directed verdict notwithstanding the jury verdict. We reverse the trial court’s order and remand with instructions to vacate the judgment notwithstanding the verdict and enter judgment for Appellant.
Following an automobile accident, Montero sued Appellee, Oak Casualty Insurance Company (“Oak”), for breach of contract based upon Oak’s failure to pay certain personal injury protection (PIP) benefits. A jury returned a verdict for Montero in the amount of $13,000.00 for medical services incurred by him as a result of the accident. Approximately one week later, the trial court entered a Directed Verdict Notwithstanding the Jury Verdict for Oak and entered a final judgment in favor of Oak.
The trial court issued an order stating:
The Court finds that this case does not pass the “small [sic] test.” The Plaintiff has given false testimony regarding prior accidents, injuries and medical treatment. The Plaintiff failed to attend a scheduled (IME) Independent Medical Exam. Also the jury in this case was not allowed to hear testimony and argument about the financial interest the Plaintiff may have had in the outcome of this case. Therefore, the Defendant’s motion for Directed Verdict is granted.
As a preliminary matter, Montero argues that Oak had not properly renewed its motion at the close of all the evidence as required by law, and as a result the lower court erred procedurally by entertaining the motion. We disagree.
Generally, a party’s failure to renew its motion for directed verdict at the close of the evidence would result in a waiver of the right to have the motion considered. See Honda Motor Co., LTD. v. Marcus, 440 So. 2d 373, 375 (Fla. 3d DCA 1983) rev. dismissed 447 So. 2d 886 (Fla. 1984); Laird v. Potter, 367 So. 2d 642, 664 (Fla. 3d DCA 1979) cert. denied 378 So. 2d 347. However, a defendant’s failure to technically “renew” a motion for directed verdict at the close of all the evidence is inconsequential if the motion was made at the end of the plaintiff’s case, and the trial judge expressed his intent to reserve ruling until after the defendant’s case or after the jury reached a verdict. As the Court stated in 6551 Collins Avenue Corp. v. Millen, 104 So. 2d 337, 341 (Fla. 1958):
Or if the record shows clearly and unequivocally that the trial judge’s reservation of decision was for the express purpose of deferring until after verdict, and after a consideration of the entire evidence, his ruling on defendant’s motion, then it would seem to be an unnecessary adherence to the technicalities of procedure to hold that the defendant must make the useless gesture of `renewing’ his motion at the close of all the evidence in order to avoid a charge of `waiver’ — since, obviously, the defendant cannot waive a motion that is resting in the bosom of the court, so to speak. (emphasis in original).
Here, the record reflects that Oak moved for a directed verdict after Montero rested his case, and the trial court stated, “I am going to save some time here because this is getting late. Defendant’s motion may have some merit. But I am not going to grant it at this time. And we will move forward with the trial.” Thus, although Oak may not have specifically renewed its motion, the record reflects that it was the court’s intent to address it at the end of the trial. Accordingly, the trial court did not err by entertaining the motion.
Montero also argues that even if Oak had effectively renewed its motion at the end of its case, the evidence, when construed in favor of Montero, the non-moving party, required denial of the directed verdict. In response, Oak argues that the lower court’s directed verdict should be affirmed because Montero failed to submit to an IME, a condition precedent to coverage, which entitled Oak to cancel or deny coverage. Oak also argues that the lower court’s order should be affirmed because the court had found that Montero had given false testimony regarding prior accidents, injuries and treatment and that Montero may have had a financial interest in the outcome of the case. Oak asserts that because of these additional findings, the court exercised its inherent authority in directing a verdict and did not err.
We agree with Montero and reverse.
The law is clear that:
[t]he power to direct a verdict should be cautiously exercised, and a motion for a directed verdict should never be granted unless the evidence is such that under no view which the jury might lawfully take of the evidence favorable to the adverse party could a verdict for the latter party be sustained.
Atkin v. Tittle & Tittle, 730 So. 2d 376, 377 (Fla. 3d DCA 1999) (citations omitted). See also Perry v. Red Wing Shoe Co., 597 So. 2d 821, 822 (Fla. 3d DCA 1992); Salam v. Benmelech, 590 So. 2d 1008 (Fla. 3d DCA 1991); Zilber Cab Company v. Capeletti Brothers, Inc., 303 So. 2d 360, 362 (Fla. 3d DCA 1974).
At issue in this case was whether Montero actually received notification of Oak’s request for an IME and whether Montero unreasonably refused to submit to Oak’s request for an IME which would have relieved Oak of liability. Each party presented conflicting evidence in support of its position on this factual issue. It is the function of the jury to weigh and evaluate the evidence. See Perry, 597 So. 2d at 822. Further, Montero presented substantial evidence from which the jury could have concluded that he had not received notification of the IME, and therefore did not unreasonably fail to attend. “It was, therefore error for the trial judge to `sit as a seventh juror’ and set aside the jury’s verdict.” Id.
In setting aside the jury’s verdict, the trial court also found that Montero gave “false testimony regarding prior accidents.” The court apparently did not find Montero’s testimony regarding prior accidents credible and concluded that he committed fraud on the court by having lied in a deposition related to a prior accident.
It is well settled that a litigant who has engaged in willful, repeated and pervasive misconduct or fraud in the prosecution of a civil proceeding should not be permitted to maintain his action. See Metropolitan Dade County v. Martinsen, 736 So. 2d 794 (Fla. 3d DCA 1999); Figgie International, Inc. v. Alderman, 698 So. 2d 563 (Fla. 3d DCA 1997) rev. dismissed 703 So. 2d 476; O’vahey v. Miller, 644 So. 2d 550 (Fla. 3d DCA 1994) rev. denied 654 So. 2d 919 (Fla. 1995); Rosenthal v. Rodriguez, 750 So. 2d 703 (Fla. 3d DCA 2000).
In this case, however, the record does not establish that Montero engaged in willful, repeated and pervasive misconduct, or that he attempted to defraud the Court. Instead, the record demonstrates that Montero testified that he did not recall or remember making certain statements in a deposition in a prior case. Accordingly, the Court erred in imposing the extreme sanction of directing a verdict in favor of Oak notwithstanding the jury’s verdict in favor of Montero.
Reversed and remanded with instructions to vacate the judgment not withstanding the verdict and enter judgment for Montero.
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