NOT FINAL UNTIL TIME EXPIRES
TO FILE REHEARING MOTION
AND, IF FILED, DISPOSED OF.
IN THE DISTRICT COURT OF APPEAL
JANUARY TERM, A.D. 2005
UNITED AUTOMOBILE INSURANCE
CASE NO. 3D04-2233
TRIBUNAL NO. 02-212
Opinion filed Febraury 2, 2005.
A Writ of Certiorari to the Appellate Division, of the
Circuit Court for Miami-Dade County, Thomas M. Carney, Stanford
Blake, and Manuel A. Crespo, Judges.
Stephens, Lynn, Klein, et al. and Marlene S. Reiss, for
Mark A. Gatica, for respondent.
Before LEVY, GREEN, and RAMIREZ, JJ.
By way of a petition for writ of certiorari, Victor Escobar
seeks review from the appellate division of the circuit court’s
holding that the question of whether an ambiguity exists in an
insurance contract is one for the jury to decide rather than the
departure from clearly established principles of law resulting
in a miscarriage of justice, we grant the petition.
The facts of this case, as set forth in the circuit court
opinion, are as follows:
injuries as a result of a car accident and received
The appellee, United Auto,
declined to pay Escobar’s medical bills because: 1)
Escobar failed to attend a contractually compulsory
examination under oath (EUO); 2) Escobar failed to
attend an independent medical examination (IME); and
3) United Auto determined that the medical charges
were not reasonable, related and necessary.
filed suit for payment of the bills.
Prior to trial, Escobar moved for partial summary
judgment on the issue of his failure to attend the EUO
on the grounds that the language in the insurance
contract was ambiguous.
Specifically, the contract
states that Escobar “shall give [United Auto] written
proof of claim, under oath if required, and/or submit
to an examination under oath . . .” (emphasis added).
The trial court granted Escobar’s partial summary
judgment motion agreeing that the language was
ambiguous since the “and/or” language made it unclear
whether Escobar needed only to provide written notice
of the claim or needed only submit to an EUO, or
whether he was required to do both.
A trial then
proceeded on the issues of Escobar’s failure to attend
the IME and whether the medical bills were reasonable,
related and necessary.
In order to establish that his medical bills were
reasonable, related and necessary, Escobar testified
about his treatments, stated that he examined the
bills, and indicated that the treatments made him feel
On the morning of the trial, a litigation
adjuster for United Auto performed a usual and
customary review of the medical bills.
testified that the bills were not reasonable and
concluded that United Auto was over-billed by some
Escobar attempted to call into question the
reliability of the adjuster’s review by pointing out
that in her four years as an adjuster, she had only
performed 10 of these types of reviews.
At the close of evidence, the trial court granted
Escobar’s motion for a directed verdict on the issue
of whether the bills were reasonable, related and
The remaining IME issue was submitted to
the jury and a verdict was returned in Escobar’s
Thereafter, the trial court awarded Escobar
attorney’s fees. This appeal followed. [A-11].
things, reversed the trial court’s partial summary judgment in
favor of Escobar on the grounds that the insurance contract was
ambiguous as to the need for Escobar to attend the EUO.
court found that the question of whether there was an ambiguity
Therefore, the court remanded this issue back to the county
court for a jury trial.
portion of the decision on grounds that it is a departure from
the essential requirements of law.
He also seeks to have us
remand this case back to the circuit court with directions that
it enter an order affirming the partial summary judgment.
We begin by acknowledging that the scope of our certiorari
appellate division is necessarily limited.
See Allstate Ins.
Co. v. Kaklamanos, 843 So. 2d 885, 889-90 (Fla. 2003); Ivey v.
Allstate Ins. Co., 774 So. 2d 679, 682 (Fla. 2000); Haines City
County Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995).
Auto. Ins. Co. v. Total Rehab & Med.
Ctr., 870 So. 2d 866, 869
appellate in character in the sense that it involves a limited
review of the proceedings of an inferior jurisdiction.
Haines City County Dev. v. Heggs, 658 So. 2d at 525.
review, however, is not to be utilized as a second appeal and is
limited to those instances where the lower court did not afford
requirements of law.
See id. at 526.
In Ivey v. Allstate Ins. Co., the supreme court explained
that the departure from the essential requirement of the law
necessary for the issuance of a writ of certiorari is something
more than simple legal error.
See Ivey, 774 So. 2d at 682.
[T]he district court should examine the seriousness of
the error and use its discretion to correct an error
only when there has been a violation of [a] clearly
miscarriage of justice.
In the instant case, we agree with Escobar that we have
certiorari jurisdiction because the lower court’s determination
that the question of whether an ambiguity exists in a insurance
contract is a question of fact for the jury is a misapplication
of well-established law.
It is well-settled in this state that
ambiguous is a question of law for the court.
See Jones v.
Utica Mut. Ins. Co., 463 So. 2d 1153, 1157 (Fla. 1985) (“It is
well-settled that the construction of an insurance policy is a
question of law for the court.”); Team Land Dev., Inc. v. Anzac
Contractors, Inc., 811 So. 2d 698, 699-700 (Fla. 3d DCA 2002)
ambiguous is a question of law for the court, and, if the facts
of the case are not in dispute, the court will also be able to
resolve the ambiguity as a matter of law.”).
See also Bayco
Dev. Co. v. Bay Med. Ctr., 832 So. 2d 921 (Fla. 1st DCA 2002);
Lab. Corp. of Amer. v. McKown, 829 So. 2d 311 (Fla. 5th DCA
2002); North Star Beauty Salon, Inc. v. Artzt, 821 So. 2d 356
(Fla. 4th DCA 2000).
The circuit court’s determination that this
was an issue of fact for the jury was a clear departure from
determination was tantamount to a miscarriage of justice where
there could be no appellate recourse thereafter.
We therefore grant certiorari and quash that portion of the
opinion that reversed the partial summary judgment and remanded
the question of whether an ambiguity existed in the contract for
a jury’s determination.
We further remand this issue back to
the circuit court for its own de novo review of whether the
county court was correct in its legal determination that the
language in the insurance contract was ambiguous.
existence of an ambiguity in a contract is a question of law,
therefore our review is de novo.”).