12 Fla. L. Weekly Supp. 673c
Insurance — Personal injury protection — Coverage — Denial — Independent medical examination — Failure to attend — Where medical provider agreed to reschedule IME at request of insured’s attorney, insurer is prohibited from using first IME date as date of suspension of benefits — Where insured unreasonably failed to attend second scheduled IME, insurer is not obligated to pay medical bills received after insured’s nonattendance but is required to pay bills received prior to nonattendance — Notice of loss — Failure of insured to provide notice of loss until sixteen days after accident is insufficient to deny payment where insured provided notice of claim as soon as practicable and, even if notice was late, there is no allegation that insurer was prejudiced by late notice — Summary judgment granted in favor of medical provider
CICERO ORTHO-MED CENTER, a/a/o Blanca Rivera, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 03-7328 SP 25 (02). March 31, 2005. Cristina Pereyra-Shuminer, Judge. Counsel: Kevin W. Whitehead, Downs Brill Whitehead, Coral Gables. Michael Joyce.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come to be heard on Plaintiff’s, CICERO ORTHO-MED CENTER, a/a/o Blanca Rivera’s, Motion for Summary Judgment, after due notice to all parties, the Court having heard argument of counsel and having been otherwise fully advised in the premises, it is,
ORDERED AND ADJUDGED:
1. The Plaintiff’s Motion for Final Summary Judgment is GRANTED. After reviewing the court file, including deposition transcripts, pleadings, and filed affidavits, and hearing argument of counsel, there does not appear to exist any genuine issues of material facts, thereby entitling the Plaintiff to Final Summary Judgment as a matter of law.
2. The Plaintiff’s medical expenses in the amount of $450.00 for date of service August 27th, 2002 is reasonable, related to the motor vehicle accident of August 18th, 2002 and medically necessary.
3. As the Defendant’s first affirmative defense, it alleges the assignor unreasonably failed and/or refused to attend two duly scheduled IMEs scheduled by the Defendant, or on Defendant’s behalf. As such, Assignor/Plaintiff failed to comply with conditions precedent and Defendant is not obligated to pay the medical charges received by Defendant subsequent to assignor’s non-attendance. Assignor’s failure and/or refusal also constitutes a violation of Fla. Stat. 627.736.
4. This affirmative defense does not address the insurer’s obligation to pay for medical expenses submitted and received prior to the insured’s alleged failure/refusal to attend an independent medical examination.
5. The Defendant received the Plaintiff’s only bill prior to the claimant’s alleged failure/refusal to attend the second scheduled M.D. independent medical examination. The Plaintiff is entitled to payment for these medical bills submitted and received prior to when the insured unreasonably refused to attend the IMEs. US Security v. Silva, 693 So.2d 593 (Fla. 3rd DCA 1997).
6. Further, the Defendant is legally prohibited from using the first IME date as the suspension date because it agreed to re-schedule the appointments at the request of the insured’s attorney. See Tomas v. U.S. Security Ins. Co., 9 Fla. L. Weekly Supp. 21b (Fla. 11th Cir. Court 2001).
7. The Plaintiff filed the deposition transcript of the Defendant’s adjuster, Carlos Plana, taken on 10/19/04. He is the person with the most knowledge of the subject claim.
8. Mr. Plana testified the Defendant scheduled IMEs for the claimant for 10/9/02 and 10/11/02 with Drs. Peter Millheiser, MD, and Neil Fleischer, DC. The claimant failed to appear and the Defendant rescheduled the appointments for 10/30/02 and 11/1/02, respectively, for the same physicians. The claimant did not appear for either of these appointments.
9. Mr. Plana also stated the Defendant received the Plaintiff’s bill on 10/17/02 and that nothing was paid as of the date of the deposition.
10. As the Defendant’s second affirmative defense, it alleges the claimant failed to provide written notice as soon as practicable to this Defendant of the alleged loss/accident. This failure and/or refusal constitutes a failure of a condition precedent and is a breach of the insurance contract. This failure of a condition precedent by the Plaintiff and/or claimant prohibits, prevents, voids and/or obviates coverage for the alleged loss. This furthermore is a violation of Fla. Stat. 627.736 and the terms of the insurance policy.
11. This affirmative defense is insufficient to deny payment as the claimant did provide notice of the subject claim as soon as practicable. Even if notice was not provided as soon as practicable, the Plaintiff has overcome any alleged prejudice to the Defendant.
12. Mr. Plana testified that he did not know how the Defendant was prejudiced by the alleged late notice.
(See page 16, lines 4-14, of Mr. Plana’s deposition).
Q: You said that the accident was 8/18/02 and was reported on 9-4 of 2002. How was United prejudiced by this late notice?
A: I don’t know.
Q: Are you aware of anything that United Automobile Insurance Company was unable to do in its investigation as a result of the notice being reported roughly I guess two and a half weeks after the accident occurred?
A: Not that I’m aware of.
13. The Defendant does not have any basis under its contract or §627.736(4) or (7) to establish that it is not responsible for the subject medical expenses in the amount of $450.00 from CICERO for services provided on 8/27/02.
14. The Defendant failed to establish that the subject charges are not reasonable, related or necessary or that the Plaintiff has not complied with any conditions precedent.
15. Because there does not exist any questions of material fact regarding the related, reasonable and necessary medical expenses incurred by the Plaintiff, and the Defendant’s failure to pay the Plaintiff’s medical expenses at full 80% pursuant to the terms of the policy and § 627.736, this Court must grant the Plaintiff’s Motion for Summary Judgment.
16. The Plaintiff complied with all conditions precedent prior to instituting this lawsuit, and is entitled to Judgement as a Matter of Law regarding payment of the subject bills at 80% plus 10% interest from 30 days after receipt of each bill up to and including the present.
17. The Plaintiff is the prevailing party and this Court reserves jurisdiction to award the Plaintiff attorney’s fees and costs pursuant to §§ 627.736 and 627.428 as the prevailing party.
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