Custer Med. Ctr. A/A/O Maximo Masis v. United Auto. Ins. Co.

62 So.3d 1086

CUSTER MEDICAL CENTER a/a/o Maximo Masis, Petitioner,

v.UNITED AUTOMOBILE INSURANCE COMPANY, Respondent.

No. SC08–2036.

Supreme Court of Florida.

Nov. 4, 2010.Rehearing Denied May 18, 2011.

Marlene S. Reiss, Miami, FL, for Petitioner.Michael J. Neimand, Miami, FL, for Respondent.PER CURIAM.

Custer Medical Center seeks review of the decision of the Third District Court of Appeal in United Automobile Insurance Co. v. Custer Medical Center, 990 So.2d 633, 635 (Fla. 3d DCA 2008), on the basis that it expressly and directly conflicts with the decisions of this Court in Allstate Insurance Co. v. Kaklamanos, 843 So.2d 885 (Fla.2003), U.S. Security Insurance Co. v. Cimino, 754 So.2d 697 (Fla.2000), and Dorse v. Armstrong World Industries, Inc., 513 So.2d 1265 (Fla.1987). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. We quash the decision below and remand for reinstatement of the decision of the circuit court appellate division. The Third District's decision misapplied the standard of review for second-tier certiorari review and in doing so erroneously created new appellate jurisdiction that expressly and directly conflicts with multiple decisions involving various areas of Florida law.

FACTS AND PROCEDURAL HISTORY

On January 4, 2002, the insured, Maximo Masis, was injured in an automobile accident in Miami. Masis was a passenger in a vehicle that was involved in a collision with a second vehicle that had failed to halt at a stop sign. He sought treatment from Custer Medical Center (Custer) for pain in his neck, shoulder, and lower back. Masis received medical treatment at Custer from January 8 through March 1, 2002, for which he incurred $4,250 in charges.

On January 8, 2002, Masis also completed and submitted an application for personal injury protection (PIP) benefits. Subsequently, on January 11, 2002, a law firm submitted an attorney representation letter to Masis's insurer, United Automobile Insurance Company (United), which notified United that Masis would be making a claim for PIP benefits under his policy. In response, United established a claim file.

Upon the termination of Masis's treatment on March 1, 2002, Custer submitted a final bill of $4,250 to United which was admittedly received by United on March 26, 2002, according to a United internal claim register and also reflected on an acknowledgment of claim letter from United dated March 26, 2002. After all medical treatment had been completed and all the respective bills submitted, United sent certified letters to Masis and his counsel dated March 27, 2002, which notified them that United had scheduled a medical examination of Masis for April 11, 2002, a date long after completion of both treatment and submission of all bills. Masis did not appear for the medical examination or answer United's letter. United sent another request on April 12, 2002, for Masis to attend a medical examination scheduled for April 29, 2009. Masis also did not appear or answer United's letter. As a result, on May 10, 2002, United suspended or denied Masis's PIP benefits, effective as of April 11, 2002. ¹

In June of 2002, Masis's attorney notified United that the firm had withdrawn from representation of Masis. Thereafter, as Masis's assignee, Custer filed an action in the County Court of Miami–Dade County for reimbursement of the $1,250 in medical treatment expenses that were in excess of Masis's policy deductible. United asserted the affirmative defense that Masis's failure to appear for the scheduled medical examination was “unreasonable” as a matter of law under section 627.736(7), Florida Statutes (2001). The relevant portion of this statute provides:

If a person unreasonably refuses to submit to an examination, the personal injury protection carrier is no longer liable for subsequent personal injury protection benefits.

§ 627.736(7)(b) (emphasis supplied). There were no claims for “subsequent” PIP benefits. All treatment was completed by March 1, 2002, and all bills and claims for benefits for this treatment were submitted before any exams were scheduled and long before the purported denial date of April 12, 2002, established by United.

During the jury trial, Custer presented the testimony of (1) a person who was in the vehicle with Masis when the accident occurred; (2) a doctor who treated Masis at Custer Medical Center; (3) the corporate representative and litigation adjuster for United; and (4) the corporate representative and records custodian for Custer. After Custer rested its case, United moved for a directed verdict without having presented any evidence on its affirmative defense.

The trial court granted United's motion on the basis that (1) two failures to appear for medical examinations without excuse or objection to the notices constituted an unreasonable refusal to submit to the requested medical examination, and (2) in U.S. Security Insurance Co. v. Silva, 693 So.2d 593 (Fla. 3d DCA 1997), the Third District held that an insurer is not liable for subsequent benefits after the time of an insured's unreasonable refusal to appear at a medical examination.² Moreover, the trial court stated that the only basis upon which United prevailed was Masis's failure to appear at a medical examination, and that judgment would otherwise have been rendered in favor of Custer because it had satisfied all the elements of its claim (i.e., reasonable, related, and necessary medical expenses). The trial court discharged the jury in light of its ruling on the motion for directed verdict. Thereafter, the trial court entered a final judgment in favor of United.

Custer appealed the judgment to the Circuit Court of the Eleventh Judicial Circuit. The circuit court appellate division reversed the judgment entered pursuant to the directed verdict and remanded for a trial on the merits by reasoning that

[m]otions for directed verdict should be resolved with extreme caution since the granting thereof holds that one side of the case is essentially devoid of probative evidence. Perry v. Red Wing Shoe Co., 597 So.2d 821, 822 (Fla. 3d DCA 1992). The trial judge is authorized to grant such a motion only if there is no evidence or reasonable inferences to support the opposing position. Id.[;] see also Sal[a]m v. Benmelech, 590 So.2d 1008 (Fla. 3d DCA 1991). The evidence must be considered in the light most favorable to the nonmoving party. Id.

In this case, the trial judge failed to consider the evidence in a light most favorable to the non-moving party. There is no legal authority supporting United's position that failure to appear is “unreasonable” as a matter of law. United claimed the affirmative defense that the failure to appear was unreasonable. United therefore had the burden to show, by evidence, that the failure to attend the [medical examination] was unreasonable. Nor does the simple showing of failure to appear shift the burden of proof to the Plaintiff to prove why the insured failed to appear.... Therefore, in the absence of evidence supporting the affirmative defense, the directed verdict is premature.

Custer Med. Ctr. v. United Auto. Ins. Co., No. 04–520 AP, at 2–3 (Fla. 11th Cir.Ct. Feb. 14, 2006) (amended opinion) (emphasis supplied).

On March 1, 2006, United petitioned the Third District Court of Appeal for a writ of certiorari, contending that the circuit court appellate division violated clearly established principles of law, resulting in a miscarriage of justice. On September 5, 2007, the district court issued an initial opinion that quashed the circuit court's decision based solely on the authority of Griffin v. Stonewall Insurance Co., 346 So.2d 97 (Fla. 3d DCA 1977), and Goldman v. State Farm General Insurance Co., 660 So.2d 300 (Fla. 4th DCA 1995). In Griffin, the Third District considered the 1975 version of the PIP statute, which did not include the “ unreasonable refusal ” provision, and held that an insured's failure to comply with the condition precedent of attendance at a medical examination constituted grounds to enter judgment for the insurer. See 346 So.2d at 98. Goldman involved a homeowner's insurance policy and the insured's failure to attend an examination under oath pursuant to the contractual terms of the policy, which has no application in the statutorily required coverage context. See 660 So.2d at 301. The Florida No–Fault statute is mandatory and does not recognize such a condition. It is therefore invalid and contrary to the statutory terms. Consequently, Custer filed a motion for rehearing or rehearing en banc on the grounds that (1) the decision rested on inapplicable authority (i.e., the distinction in the earlier statute at issue in Griffin ); (2) the district court shifted the burden to the plaintiff to disprove the defendant's affirmative defense; and (3) the district court exercised certiorari jurisdiction despite United's failure to demonstrate any departure from the essential requirements of law.

Thereafter, the district court ordered the parties to supplement the record with the trial exhibits, specifically the insurance policy, and the appendix to the initial brief filed in the circuit court. In a corrected opinion, the Third District denied the motion for rehearing and rehearing en banc and elaborated on its basis for review. See United Aut. Ins. Co. v. Custer Med. Ctr., 990 So.2d 633, 635 (Fla. 3d DCA 2008) ( Custer II ). The Third District (1) granted the petition for writ of certiorari, (2) quashed the decision by the circuit court appellate division, and (3) remanded with directions to reinstate the directed verdict in favor of United. See id. In so holding, the Third District stated that the circuit court appellate division had departed from the essential requirements of law, but did not state the manner in which the circuit court had violated a clearly established legal principle by requiring United to present some proof of its affirmative defense before it could obtain a directed...