11 Fla. L. Weekly Supp. 830a
Insurance — Personal injury protection — Coverage — Denial — Independent medical examination — Motion for summary judgment based on claim that notice of IME was defective for identifying only first of two dates of accident while denial letter sent to insured as result of IME contained only second date of accident is denied where neither statute nor insurance policy contain particular requirements for IME notice and referral form for IME, IME report, and explanation of benefits sent to insured address both dates of accident — Motion for summary judgment is denied on claim that IME is null and void because IME doctor was selected by third party vendor which scheduled IME, rather than by insurer, in contravention of insurance policy provision and statutory requirement that IME be upon request of insurer where there is evidence that IME was requested by insurer, insurer complied with statutory requirements in conducting IME, and insurance policy contains express provision conforming policy to statutory requirements
LUTHER L. HENDERSON, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. CCO-02-122. July 14, 2004. Wayne J. Shoemaker, Judge. Counsel: George Milev. Gregory C. Maaswinkle.
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come before the Court on June 23, 2004, on Plaintiff’s Motion for Summary Judgment, and the Court having heard arguments of counsels for Plaintiff and Defendant and being otherwise fully advised in the premises, hereby FINDS, ORDERS and ADJUDGES as follows:
1. This is an action for alleged breach of automobile insurance contract.
2. The Plaintiff was involved in motor vehicle accidents on October 4, 2000 and November 28, 2000 and as a result sustained injuries and received medical treatment.
3. Defendant denied some of the Plaintiff’s medical bills based on the results of an Independent Medical Examination (IME).
4. Plaintiff alleges that the IME was null and void because the Defendant did not select the IME doctor as stated by the terms of the insurance policy at issue since Defendant hired a third party vendor to schedule the IME and in fact did not comply with the requirement of §627.736(7)(a), Fl. Stat. (2001) that the IME be “upon the request of an insurer”.
5. Plaintiff further alleges that the Notice of the IME was defective as it identified only the October 4, 2000 date of accident and the denial letter sent to Plaintiff contained only the November 28, 2000 date of accident.
6. Defendant relies on parts of the insurance policy at issue stating that if any provision of the policy fails to conform with Florida’s legal requirements the provision “shall be deemed amended to conform with such legal requirements”, and on Standard Accident Ins. Co. v. Gavin, 196 So. 2d 440 (Fla. 1967) for the proposition that if an insurance policy contains limiting provisions not contained in the statutory law “the insurance policy would be construed and applied as if such limiting provisions are not contained therein.”
7. Defendant further argues that under an agency theory Defendant did select the doctor for the IME at issue since an action by an agent for an insurance principle may be imputed to the principle based on Almerico v. RLI Ins. Co., 716 So. 2d 774 (Fla. 1998), and in the alternative, that Plaintiff has not been damaged if the IME doctor was selected by a third party vendor.
8. Neither §627.736(7)(a), Fl. Stat. (2001) nor the insurance policy at issue contain provisions with particular requirements for the Notice asking the insured to appear for an IME or for the letter to be sent to an insured in case of denial of insurance benefits. In the current case the record shows that the referral form for the IME, the report of the IME doctor and the Explanations of Benefits sent to Plaintiff’s medical providers address both dates of accident.
9. A party moving for summary judgement must show the absence of any genuine issue of material fact. See Moore v. Morris, 475 So. 2d 666 (Fla. 1985). Further, summary judgment is appropriate only if the facts are so crystallized that nothing remains but questions of law. See Shaffran v. Holness, 93 So. 2d 94 (Fla. 1957). The Florida Legislature has not defined the term “upon request of an insurer” and Plaintiff has not presented this Court with any case law defining that term. The record before the Court contains an affidavit by Defendant’s adjuster on the claim as well as deposition testimony by the same adjuster and by the third party vendor who scheduled the IME stating that the IME was requested by Defendant thus creating a genuine issue of material fact. The Plaintiff has failed to successfully meet its burden of proving a negative as to overcome all reasonable inferences which may be drawn in favor of Defendant. See Holl v. Talcott, 191 So. 2d 40 (Fla. 1966). Further, based on the record, it appears that Defendant has complied with the requirements under §627.736(7)(a), Fl. Stat. (2001) in conducting Plaintiff’s IME. Defendant’s insurance policy at issue contains express provision conforming the policy to statutory requirements.
WHEREFORE, Plaintiff’s Motion for Summary Judgment is hereby DENIED.
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