13 Fla. L. Weekly Supp. 434a
Insurance — Personal injury protection — Independent medical examination — Failure to attend — Insurer was liable for benefits for which it received requests for payment prior to date of missed IME that occurred during 30-day investigative period — Benefits were due and payable immediately as loss accrued and upon receipt of bill or reasonable proof of loss by insurer
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. EDUARDO J. GARRIDO D.C., As assignee of Elier Frometa, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 05-214 AP. February 7, 2006. On appeal from the County Court for Miami-Dade County, Judge Mercedes A. Bach. Counsel: Michael J. Neimand and Nicholas Babinsky, for Appellant. Christian Carrazana and David Sampedro, for Appellee.
(Before LEESFIELD, PINIERO and LOPEZ, JJ.)
(LOPEZ, J.) This appeal arises from a personal injury protection (PIP) action. Appellant, United Automobile Insurance Company, requests that this court reverse the trial court’s final summary judgment and the award of attorney’s fees granted in favor of the appellee, Dr. Eduardo J. Garrido, D.C. For the reasons discussed below, we hereby AFFIRM the trial court’s rulings.
In this case, the appellant/insurer, United Automobile Insurance Company, scheduled an independent medical examination (IME) for the insured to attend on July 18, 2002. The insured, without seeking to cancel the examination or giving a reason for nonattendance, failed to appear. The appellant rescheduled the insured’s IME for August 8, 2002. Again, the insured failed to attend the IME without providing any explanation.
In the interim, on July 11 and August 6, 2002, the insurer received requests for benefits for treatment of the insured that had occurred prior to July 18, 2002. These requests were denied. The medical provider, as assignee of the insured, filed a complaint for personal injury protection (PIP) benefits. The insurer filed an answer with affirmative defenses, including the insured’s unreasonable refusal to attend the IMEs of July 18, 2002 and August 8, 2002.
Subsequently, the medical provider filed a renewed motion for summary judgment addressing the insurer’s affirmative defense of unreasonable refusal to attend the IME. The trial court granted summary judgment in favor of the medical provider, finding the requests for benefits were received by the insurer prior to the date of the missed IME on August 8, 2002, and as a consequence, the insurer was liable for benefits.
The standard of review for a summary judgment is de novo. See Volusia County v. Aberdeen at Ormond Beach, L. P., 760 So. 2d 126, 130 (Fla. 2000). The pertinent issue before this court is whether the trial court erred in granting summary judgment in favor of the medical provider as to the insurer’s affirmative defense of unreasonable refusal to attend the IME. This issue requires the court to determine when benefits are due and payable by the insurer pursuant to Section 627.736(4) of the Florida Statutes.
Appellant alleges that according to Rodriguez v. US, 808 So. 2d 82 (Fla. 2002), the PIP benefits are not due until thirty (30) days after the receipt of the bill, thereby allowing time for the insurer to investigate the claim. The appellant maintains that to hold otherwise would render the insurer’s thirty (30) day investigative period under Rodriguez meaningless. Therefore, since the benefits were not due until thirty (30) days after receipt, the insured’s failure to attend the IME during the investigatory period alleviated the insurer of liability.
In contrast, appellee contends that the plain language of Section 627.736(4) indicates that benefits shall be due and payable upon receipt of a bill, and not thirty (30) days after receipt. Further, appellee argues that Rodriguez does not rewrite Section 627.736(4) to read that benefits “shall be due and payable as loss accrues, upon [the 30th day after] receipt of reasonable proof. . .” Therefore, since the requests for benefits were received prior to the missed IME of August 8, 2002, the insurer is liable.
Section 627.736(4) reads, in pertinent part, as follows:
(4) Benefits; when due: — benefits from an insurer under 627.730-627.7405 . . . shall be due and payable as the loss accrues, upon receipt of reasonable proof of such loss and the amount of expenses and loss incurred which are covered by the policy issued under ss. 627.730-627.7405.
“Statutes must be given their plain and obvious meaning, and courts should assume that the legislature knew the plain and ordinary meaning of the words when it chose to include them in the statute.” Hankey v. Yarian, M.D., 755 So. 2d 93, 96 (Fla. 2001). When examining the plain language of Section 627.736(4), it states that benefits are “due” as the loss accrues and upon receipt of reasonable proof of the loss. The definition of “due” is “payable immediately or on demand.” American Heritage Dictionary, 429 (2d college ed. 1982). According to the plain language of the statute, benefits are due and payable immediately as the loss accrues, and upon the insurer’s receipt of reasonable proof of the loss.
In examining Rodriguez, the Florida Supreme Court held that benefits are “overdue” if not paid within thirty (30) days after receiving written notice of a covered loss. However, the Supreme Court in Rodriguez addressed the issue of when benefits become overdue, but did not address the issue of when benefits are due, which is the pertinent question before this court.
Additionally, appellant contends that the holding in U.S. Security Ins. Co. v. Silva, 693 So. 2d 593 (Fla. 3d DCA 1997) is consistent with the intent of the IME requirement to give insurers an opportunity to investigate. When analyzing Silva, the Third District Court of Appeal defined “benefits” under section 627.736(7)(a,b) as payment of medical bills, and not medical treatment. As a result, the Silva Court held that if the insured unreasonably refuses to submit to an IME, the insurer is no longer liable for medical bills incurred before termination of benefits, but received after termination of benefits. Although the Silva Court defined the term “benefits” under Section 627.736, it did not define the term “due” under this statutory provision. Moreover, Silva, like Rodriguez, did not address the question of when benefits are due pursuant to Section 627.736.
Based on the foregoing, this Court finds that the holdings in Rodriguez and Silva are not in conflict with the plain meaning of Section 627.736(4) of the Florida Statutes. Therefore, we find that benefits are due immediately as the loss accrues, and upon receipt of the bill or reasonable proof of loss by the insurer.
Accordingly, we hereby AFFIRM the trial court’s order granting summary judgment in favor of the medical provider and its award of attorney’s fees to the medical provider.
As to appellee’s motion for appellate attorney’s fees, it is hereby GRANTED pursuant to Section 627.428 of the Florida Statutes. (LEESFIELD AND PINIERO, JJ., concur.)
