13 Fla. L. Weekly Supp. 641a
Insurance — Personal injury protection — Insurer waived its right to discontinue benefits based on insured’s alleged failure to appear for independent medical examination when it rescheduled IME appointment — Insurer is not entitled to deny PIP benefits to insured as to medical bills received prior to issuance of notice of suspension letter
FLAMINGO PINES HEALTH CENTER (a/a/o Jean Vargas-Valere), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 03-05852 COCE 49. March 24, 2006. Kathleen Ireland, Judge. Counsel: Sisy A. Mukerjee, The Law Offices of Justin G. Morgan, P.A., Weston, for Plaintiff. Wendy Brewster-Maroun, Office of the General Counsel, Coral Gables, for Defendant.
ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come before the Court on Plaintiff’s Motion for Summary Judgment and the Court being otherwise fully advised on the premises, is HEREBY ORDERED AND ADJUDGED that Plaintiff’s Motion for Summary Judgment is GRANTED as to the affirmative defense of IME no-show.
1. This Court finds that Defendant’s logic regarding the United Automobile Insurance Company vs. Marisol Rodriguez, 808 So.2d 82 (Fla. 2001) decision, that an insurer has beyond 30 days from the receipt of a bill before the insured is “entitled to payment” is flawed due to the fact that Defendant fails to distinguish between being “entitled to payment” and the issue in Rodriguez, which was “what is the penalty for an overdue PIP claim.”
2. This Court finds as a matter of law, that United Automobile Insurance Company waived its right to discontinue benefits for an alleged IME no show as of the first IME appointment, December 27, 2002, when it re-scheduled the IME for a second appointment of January 24, 2003.
3. This Court, in following Fonseca v. Star Casualty Insurance Co., 10 Fla. L. Weekly Supp. 865a (11th Judicial Circuit, Appellate, Miami-Dade 2003) finds that the medical bills incurred by the insured and received by the insurance carrier prior to the alleged failure to attend the IME are payable upon receipt. This Court further finds that United Automobile Insurance Company is not entitled to deny PIP benefits to the insured as to those medical bills received by United Auto prior to the issuance of the notice of suspension letter, which is dated February 21, 2003. The full amount of the bills at issue in the amount of $7,125.00, which is reflective of items 1, 2, 4, 5, and 6 of the PIP Payment Register were all received by United Auto prior to the February 21, 2003 suspension letter.
4. As such, this Court finds that the Defendant’s affirmative defense of the assignor/insured’s alleged failure to attend IME’s as scheduled by the Defendant to be stricken as a matter of law.
