10 Fla. L. Weekly Supp. 865a
Insurance — Personal injury protection — Coverage — Conditions precedent — Independent medical examination — Trial court erred in granting summary judgment in favor of insurer where, although insured did not dispute allegation that her absence from all IMEs was unreasonable, insured was entitled to payment of medical bills incurred by insured and received by insurer prior to notice of suspension of benefits
LILIA FONSECA, Appellant, vs. STAR CASUALTY INSURANCE CO., Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 02-089AP. L.C. Case No. 00-04334CC25. September 2, 2003. On appeal from the County Court, Miami-Dade County, Wendell M. Graham, J. Counsel: Mari Sampedro-Iglesia, Jose R. Iglesia, P.A., for Appellant. Mark A. Gatica, Office of the General Counsel UAIC, Trial Division, for Appellee.
(Before LEON M. FIRTEL, LAWRENCE A. SCHWARTZ, DAVID H. YOUNG, JJ.)
(FIRTEL, J.) On May 12, 2000 Appellant, Lilia Fonseca, filed suit against Appellee, Star Casualty Insurance Co., for failure to pay Appellant’s no fault PIP benefits for the period from December 11, 1999 to April 9, 2000 in the amount of ten thousand four hundred and sixty dollars ($10, 460.00). Appellee responded to the complaint on July 21, 2000 by submitting its answer and affirmative defenses. For its affirmative defenses, Appellee listed: (a) Appellant’s failure to perform conditions precedent, namely, the independent medical examination (“IME”); (b) the medical bills were excessive for the injuries set forth in the complaint; (c) payment of the medical bills are not overdue; (d) medical bills were not reasonable and necessary; and, (e) there was no justiciable issue of law or fact. Thereafter Appellant, on December 5, 2000, submitted her motion for partial summary judgment, which the lower court denied. Then, on January 24, 2001, Appellee submitted its motion for summary judgment and applicable law in support thereof, which the lower court granted. Appellant then filed her notice of appeal.
The standard of review for a lower court’s order granting summary judgment is de novo. Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000). To analyze summary judgment properly this Court must determine (1) whether there is a genuine issue of material fact, and (2) whether the trial court applied the correct rule of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000); see also Philip J. Padovano, Florida Appellate Practice, Vol. 2, §9.4, pp. 130-131 (2003 ed., West 2002). Appellant contends that she is entitled to payment of the medical bills incurred before she refused to attend her IME. On the other hand, Appellee argues that Appellant is not entitled to payment of any of her medical bills as a matter of law. We agree with Appellant in part and reverse in part.
The first prong of summary judgment review requires this Court to determine whether there is a genuine issue of material fact. The material fact, in this instance, is whether Appellant unreasonably refused to submit to an IME scheduled by Appellee. Whether an insured unreasonably refused to attend a scheduled IME is a factual question that should be determined by a jury. In the instant case, Appellant never disputed Appellee’s allegation that her absence at all IMEs was unreasonable, nor did Appellant rebut Appellee’s affidavit, which stated that she did not attend any of her scheduled IMEs. Since the record is devoid of any dispute of Appellant’s unreasonable refusal to attend her scheduled IME, this Court finds that the first prong of summary judgment review has been satisfied. Thus, we shall turn to the second prong of review.
The second prong of summary judgment review requires this Court to determine whether the lower court applied the correct rule of law. Volusia County, 760 So. 2d at 130. The lower court denied Appellant’s partial summary judgment, but granted Appellee’s motion for summary judgment. The lower court based its decision on its interpretation of U.S. Security Insurance Co. v. Silva, 693 So. 2d 593, 595 (Fla. 3d DCA 1997). It is the lower court’s position that Silva ruled that an insured’s [Appellant’s] unreasonable refusal to attend an IME precludes her from payment of any of the PIP benefits of her policy. Id. at 595. This appellate court reviewed Silva and found that the lower court’s interpretation was incorrect, and in effect, resulted in misapplication of the law. This Court finds that Silva stood for the position that if an insured unreasonably refuses to attend an IME, then the insurance company is not required to pay any medical bills they receive thereafter, even if the bills resulted from treatment rendered prior to the date of the suspension of benefits. Id. at 596. In other words, for the insured to be entitled to payment of her benefits, the medical bills would have to have been incurred by the insured, and received by the insurance company, prior to the notice of suspension of benefits.
Appellant notified Appellee that as of March 21, 2000, her benefits were suspended since she failed to appear for scheduled IMEs, and did not offer a valid reason or excuse for her failure to attend. Appellee’s no-fault payment register indicates that all the bills listed on lines one (1) through six (6) were incurred by Appellant and received by Appellee before March 21, 2000. Thus, Appellee should have paid the benefits incurred by the insured and received by Appellee before March 21, 2000, as required by Silva, 693 So. 2d at 595. Therefore, this Court reverses the lower court’s order granting Appellant’s motion for summary judgment to the extent stated.
As the prevailing party, Appellant is statutorily entitled to attorney’s fees and costs, pursuant to §627.428, Fla. Stat. (1997), provided she prevails on remand.
FOR THESE REASONS, the summary judgment in favor of the Appellee is REVERSED, and this cause is REMANDED to the trial court for further proceedings consistent with this opinion. (SCHWARTZ, YOUNG, JJ. concur.)
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