10 Fla. L. Weekly Supp. 203a
Insurance — Personal injury protection — Independent medical examination — Because IME may be videotaped by insured’s representative, decision of IME physician to not proceed with IME was not legally correct although physician has right to choose not to proceed — Where insurer unilaterally scheduled second IME without coordinating with insured’s attorney, insured filed a motion for protective order which insurer never called up for hearing, and insurer terminated coverage when insured failed to attend IME, insurer breached contract by terminating coverage without any basis to find that insured acted “unreasonably” in failing to attend IME
TAO LI, Plaintiff, vs. ALLSTATE INDEMNITY COMPANY, a foreign corporation, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. CC0-01-7334. December 19, 2002. C. Jeffery Arnold, Judge. Counsel: Jeffrey M. Byrd, Orlando. Virgil W. Wright, III, and Mary Adkins, Ocala.
ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
This cause came to be heard before the Court on Plaintiff’s Motion for Summary Judgment on November 20, 2002 at 3:45 p.m., and the Court having reviewed the evidence of record, and considered the testimony and arguments presented, it is hereby
ORDERED AND ADJUDGED that:
The undisputed evidence in this case shows that the Plaintiff initially attended an independent medical examination upon the request of his insurance carrier on May 16, 2001. The Plaintiff’s counsel placed the PIP carrier, the IME company and the IME physician on notice of the Plaintiff’s intention to videotape the proceedings, consistent with the Florida Supreme Court’s ruling in U.S. Security Insurance Company v. Cimino, 754 So.2d 697 (Fla. 2000). Notwithstanding the advanced notice of the election to videotape the examination, the Defendant’s IME physician declined to proceed forward with the scheduled examination, to the financial expense of the Plaintiff.
The Court finds that the law is and should be that an independent medical examination may be videotaped by the patient’s representative. The IME physician’s decision not to proceed forward with the examination was not the correct decision as far as the law is concerned, but the Court recognizes the physician may choose not to proceed at his own election.
The Court also notes that after the IME did not proceed as originally contemplated, the Plaintiff filed suit seeking declaratory relief and judicial guidance as to his duties and obligations, and seeking reimbursement of the expenses he felt were unnecessarily incurred by him.
The Court also recognizes that three (3) months after suit was filed by the insured, the carrier requested another IME, which they unilaterally scheduled for September 18, 2001; however, prior to such examination, the Plaintiff had filed a Motion for Protective Order, which Allstate never called up for hearing. When the Plaintiff did not attend the subsequent examination while awaiting a ruling on his Motion for Protective Order, Allstate terminated benefits for failure to attend.
The Court finds that if Allstate had a good faith interest in obtaining an independent medical examination, then they could have requested that the examination be conducted pursuant Florida Rues of Civil Procedure, 1.360. The Court further finds that the Florida Statute 627.736 implies that the insurer has an obligation to coordinate an examination in advance to ensure the attendance of the insured, especially when requested by Plaintiff. The record clearly shows that Allstate was aware that Plaintiff was represented by counsel, which counsel requested all IME appointments be coordinated through his office to ensure his client could attend. However, that request was not honored by Defendant. The Court finds the IME should be coordinated with Plaintiff’s counsel. The fact that the Defendant chose to hire a third party vendor to coordinate such examination does not relieve the insurer from its good faith duties and obligations to try to ensure the Plaintiff can actually attend.
Further, the Court finds that the Plaintiff’s counsel had requested the PIP carrier reschedule the examination while awaiting a Court ruling in advance of the September exam. Therefore, when the adjuster chose to terminate coverage, he took the decision out of the Court’s hands, and essentially deprived the insured of his legal rights to seek relief. Lastly, the Court finds that between September 13, 2001 (the date of Plaintiff’s counsel’s letter to Allstate advising of a Motion for Protective Order) and October 4, 2001 (the date Allstate issued a letter terminating coverage) Allstate had sufficient time to evaluate its position to determine whether the Plaintiff actually “unreasonably” failed to attend the examination, as required by Florida Statute 627.736(7)(b), but Allstate did not do so. The Defendant, during this relevant time period, did not attempt to communicate with Plaintiff’s counsel, nor the Plaintiff, but yet concluded the insured acted “unreasonably”. The Court has viewed all evidence of record in a light most favorable to Allstate, and notes that Allstate offered no evidence to support its determination that Plaintiff acted “unreasonably” prior to hearing. The insurer carries the burden of showing the Plaintiff acted “unreasonably” before it decides to terminate coverage since the insurer must at all times act in good faith and in the insured’s best interests.
Accordingly, in light of the undisputed facts, and upon the review of the record evidence, the Court hereby grants Plaintiff’s Motion and enters Summary Judgment for the Plaintiff, orders the Defendant to reimburse Plaintiff for the expenses associated with the first examination that the physician declined to proceed with, and finds Allstate in breach of contract for terminating the Plaintiff’s coverage without any basis to find the Plaintiff acted “unreasonably”.
* * *
