12 Fla. L. Weekly Supp. 492b
Insurance — Personal injury protection — Independent medical examination — Failure to answer material questions — Where facts are not in dispute, question of whether information sought in IME is material is question of law that may be decided at summary judgment stage — Where insured refused at IME to discuss how accident occurred and failed to disclose after inquiry prior automobile accident in which he had been knocked unconscious, insured failed to provide material information, thereby failing to comply with condition precedent to submit to IME, and is barred from recovery — Summary judgment is granted in favor of insurer
PHYSICIAN’S PAIN & REHABILITATION CENTER (a/a/o Charles Ibanez), Plaintiff, vs. SECURITY NATIONAL INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 03-3182 COCE 53. February 17, 2005. Robert W. Lee, Judge. Counsel: Bryan P. Levy, Weston, for Plaintiff. Jacob C. Jackson, Hollywood, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; and FINAL SUMMARY JUDGMENT IN FAVOR OF DEFENDANT
THIS CAUSE came before the Court on February 10, 2005 for hearing of the Defendant’s Motion for Summary Judgment, and the Court’s having reviewed the Motion and entire Court file; heard argument; reviewed the relevant legal authorities; and been sufficiently advised in the premises, finds as follows:
Background: This is an action for unpaid PIP benefits. As required by the insurance policy and Florida law, the insured, Charles Ibanez, appeared for an independent medical examination (IME). The examining physician made inquiry concerning several matters, two of which are at issue in this Motion. First, the doctor asked how the accident had occurred. Ibanez declined to answer the question, stating that his attorney had told him not to discuss how the accident occurred. Second, the doctor inquired concerning “the patient’s past medical history.” According to the doctor, Ibanez’s response was “innocent of any related informative data,” and that he “denied any pre-existing or predisposing conditions relevant to the inquiry of tissue.” During his deposition about a year and a half later, Ibanez revealed that he had previously been involved in another automobile accident in which he had been knocked unconscious and suffered a burn of his arm.
The Defendant argues that the insured’s failure to provide this information during the IME was tantamount to not submitting to the IME, thus eliminating any coverage under the policy.
Conclusions of Law. Under Florida law, an insured’s failure to “submit” to an independent medical examination or examination under oath required by an insurance policy “constitutes a material breach which bars recovery.” Goldman v. State Farm Fire Gen. Ins. Co., 660 So.2d 300, 303 (Fla. 4th DCA 1995). The appellate court further held that submission to the required examination is a condition precedent to suit. Id. at 304. In Goldman, the insureds completely failed to attend the examination under oath. Id. at 302. Under such a circumstance, the appellate court upheld a summary judgment in the insured’s favor. Id. at 306. The question for the Court then is whether the insured’s failure to describe how the accident occurred, and failure to disclose the prior automobile accident involving his being knocked unconscious, results in a finding as a matter of law that Ibanez failed to “submit” to the IME.
Clearly, the mere attendance at an IME or EUO is insufficient to meet the requirement to “submit” to an examination. The word “submit” means “[t]o yield or surrender [. . .] to the will or authority of another [. . .]; [t]o subject to some condition or process.” American Heritage Dictionary of the English Language 1283 (1976). Although the parties were unable to provide a reported case from Florida addressing this precise issue, the Court was able to locate several cases from other jurisdictions which hold that failure to answer material questions constitutes failure to submit to an examination under oath. Stover v. Aetna Casualty & Surety Co., 658 F. Supp. 156, 159 (S.D.W.Va. 1987); Russo v. Northern Assurance Co. of America, 1982 WL 533653, * 1 (Del. Super. Ct. 1982); Kisting v. Westchester Fire Ins. Co., 290 F. Supp. 141, 148 (W.D. Wis. 1968); Gipps Brewing Corp. v. Central Manufacturer’s Mutual Ins., 147 F.2d 6, 13 (7th Cir. 1945).
The next question then is what constitutes a “material” question. In the context of an insurance policy, the definition of materiality does not focus on how relevant a question is; rather, if a question is on a relevant matter, it is deemed material. Passero v. Allstate Ins. Co., 196 Ill. App. 3d 602, 608-09, 554 N.E.2d 384, 388 (App. Ct. 1990). Florida authority suggests that materiality pertains to the insured’s ability to properly assess the case. See Mims v. Old Line Life Ins. Co. of America, 46 F. Supp. 2d 1251, 1261 (M.D. Fla. 1999). The Delaware Superior Court defined materiality as being broad in scope: “While [the] insured is obligated to answer only such questions as are material[,] the examination should be liberal in scope and everything fairly relevant and pertinent to the insurance and the loss and the circumstance and amount thereof may be inquired into.” Russo, 1982 WL 533653 at *1, citing 45 C.J.S. Insurance §1024 (emphasis added). See also Stover, 658 F. Supp. at 160 (analyzing materiality in the context of what is “pertinent”).
Under this standard, the Court next considers whether the information sought in the examination under oath was material. Initially, the Court must determine whether this question is one of law for the Court, or whether it is a question of fact for the jury. In Florida, the question of materiality is a question of law when the facts are not in dispute. DeGuerrero v. John Hancock Mutual Life Ins. Co., 522 So.2d 1032, 1033 (Fla. 3d DCA 1988); National Union Fire Ins. Co. of Pittsburgh v. Sahlen, 807 F. Supp. 743, 747 (S.D. Fla. 1992), affirmed, 999 F.2d 1532 (11th Cir. 1993); 31B Fla. Jur.2d Insurance §3524 (2002). As a result, when the facts are not in dispute, summary judgment is appropriate if the court finds the matters to be material. See DeGuerrero, 522 So.2d at 1033; Mims, 46 F. Supp.2d at 1251.
Additionally, in several cases outside of Florida, the question of materiality was decided as a matter of law at the summary judgment stage. See Passero, 196 Ill. App. 3d at 604, 554 N.E.2d at 385 (affirming summary judgment in favor of insurer); Stover, 658 F. Supp. at 161 (granting summary judgment in favor of insurer); Russo, 1982 WL 533653 at *2 (abating summary judgment for 30 days in favor of insurer); Kisting, 290 F. Supp. at 150 (granting summary judgment in favor of insurer). Moreover, the Illinois Court of Appeals has held specifically that the question of materiality is a question of law. 196 Ill.App.3d at 608, 554 N.E.2d at 388. See also Kisting, 290 F. Supp. at 149.
In the instant case, the facts are undisputed: the insured refused to discuss how the accident occurred, and the insured failed to disclose after inquiry a prior automobile accident in which he had been knocked unconscious. The Court holds that these questions were relevant to the independent medical examination for several reasons. First, how the accident occurred is directly relevant to the physician’s examination and inquiry concerning the nature of the injury suffered. Moreover, the fact that the insured had previously been knocked unconscious is likewise relevant to the physician’s examination and whether the treatment recommended was related to the accident at issue or the prior accident. In both cases, the information is vital to how the insurer might assess the case. By failing to provide this material information, the insured failed to comply with a condition precedent of the insurance policy. As a result, recovery under the policy is barred and summary judgment is appropriate. See Goldman, 660 So.2d at 303. Accordingly, it is hereby
ORDERED AND ADJUDGED that the Defendant’s Motion for Summary Judgment is GRANTED. Final Summary Judgment is hereby entered in favor of Defendant. The Plaintiff shall take nothing in this action, and the Defendant shall go hence without day. The Court reserves jurisdiction to consider the issue of costs and attorney’s fees.
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