14 Fla. L. Weekly Supp. 1021a
Insurance — Personal injury protection — Claims — Medical bills — Statutory requirement that physician’s license number be included on medical bills does not apply retroactively to policy that predates requirement — Independent medical examination — Failure to attend — Rescheduling IME after insured failed to attend initial IME did not constitute waiver of right to terminate benefits as of date of first IME where there was no indication that insurer rescheduled IME to correct some statutory deficiency that would make scheduling of first IME unreasonable as matter of law or that first IME was, in fact, unreasonably scheduled — Remand for determination of whether insurer unreasonably set or insured unreasonably missed IME
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. PROFESSIONAL MEDICAL GROUP, a/a/o ROGELIO D. RAYMOND, Appellees. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 06-506 AP & 06-583 AP. L.T. Case No. 04-9583 CC 25. August 13, 2007. An appeal from the County Court in and for Miami-Dade County, Lawrence D. King, J. Counsel: Michael J. Neimand, for Appellant. David Sampedro, for Appellee.
(Before ELLEN L. LEESFIELD, PEDRO P. ECHARTE, JR., and DAVID C. MILLER, JJ.)
(DAVID C. MILLER, J.) United Automobile Insurance Company (“United”) and its insured, Mr. Raymond, entered into a contractual relationship governed by a Personal Injury Protection (PIP) insurance policy that was in full force and effect from April 28, 2003 to April 28, 2004. Mr. Raymond was involved in an automobile accident during the policy period.1 He thereafter sought and received medical treatment from Professional Medical Group (“PMG”). PMG, as an assignee to the PIP policy, billed United for Mr. Raymond’s medical expenses. PMG filed this breach of contract suit in the court below, when United failed to reimburse the expenses. United asserted three affirmative defenses, all of which were dismissed by the trial court on summary judgment. United now appeals the dismissal of two of these affirmative defenses.2
I.
First, United argues that the bills submitted by PMG were “not properly completed in their entirety as to all material provisions” because they failed to include the treating physician’s license number, as required by Fla. Stat. § 627.736(5)(d) (2006). Although the policy at issue predates this statutory requirement, United asserts that the trial court erred by not applying the statute retroactively. The Court disagrees with United.
Retroactive application of a statutory requirement may only be permissible if the requirement is procedural, and not substantive, in nature. Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1358 (Fla. 1994). Furthermore, a court may refuse to retroactively apply a procedural requirement if it impairs a vested right, creates new obligations, or imposes new penalties. State Farm Mutual Auto Ins. Co. v. Laforet, 658 So. 2d 55, 58-61 (Fla. 1995)3; Mancusi, 632 So. 2d at 1358; State v. Lavazzoli, 434 So. 2d 321, 323-24 (Fla. 1983). The statutory requirement at issue creates a new affirmative obligation for PMG, and imposes a new and severe penalty for noncompliance. Id. Moreover, as the Third District Court has noted, “it is well settled in Florida that the statute in effect at the time the insurance [policy] is executed governs all issues arising under that [policy].” Lumbermen’s Mutual Casualty Co. v. Ceballos, 440 So. 2d 612, 613 (Fla. 3d DCA 1983) (emphasis added). Therefore, the Statute does not apply retroactively, and thus, the bills submitted by PMG were properly completed in their entirety.
II.
Second, United argues that PMG forfeited its rights to reimbursement because the insured, Mr. Raymond, unreasonably failed to attend the scheduled independent medical examinations (“IME”). (citing Fla. Stat. § 627.736(7)(a) and (b) (2006)). “Whenever the mental or physical condition of an injured person covered by personal injury protection is material to any claim that has been or may be made for past or future personal injury protection benefits, such person shall, upon request of an insurer, submit to mental or physical examination by a physician or physicians,” according to pertinent portions of Fla. Stat. § 627.736(7)(a) (emphasis added). Subsection (b) states that “[i]f a person unreasonably refuses to submit to an examination, the personal injury protection carrier is no longer liable for subsequent personal injury protection benefits.” (emphasis added).
This Florida Statute, as interpreted by Florida’s courts, makes submission to one or more reasonably set IMEs a condition precedent for reimbursement of medical bills incurred before the termination of benefits, but received after the termination. U.S. Security Ins. Co. v. Silva, 693 So. 2d 593, 595-96 (Fla. 3d DCA 1997). However, the insurer remains liable for medical bills that are received before the termination of benefits. See e.g. Jones v. State Farm Mutual Auto. Ins. Co., 694 So. 2d 165, 167 (Fla. 5th DCA 1997); United Auto. Ins. Co. v. De La O, No. 98-456 AP (Fla. 11th Cir. 2000) [7 Fla. L. Weekly Supp. 242a]. In the instant case, Mr. Raymond’s bills were submitted after the first missed IME, but before the second missed IME. Therefore, if the date of the first missed IME is used as the termination date, United will not have to reimburse PMG for the bills. Silva, 693 So. 2d at 595-96. Id. However, if the date of the second missed IME is used as the termination date, United must reimburse PMG. See Jones, 694 So. 2d at 167; De La O, No. 98-456 AP.
The trial court held that United, as a matter of law, waived its right to terminate benefits as of the first missed IME because it unilaterally scheduled a second IME. In other words, the trial court held that any unilateral rescheduling of an IME by an insurer is an implicit admission that the insured missed the first IME reasonably, and thus, the insurer is still liable for medical bills under Florida’s Statute. However, this conclusion can only be reached by ignoring the specific factual underpinnings of the Third District’s decision in Ponders v. Fortune Ins. Co., 578 So. 2d 1129 (Fla. 3d DCA 1991), and by failing to consider whether the insured unreasonably missed the IME as mandated by the Statute.
This Court, constrained by the Third District’s factual specificity in Ponders and the Florida Legislature’s mandate that a PIP claimant reasonably attend the IME(s) set by the insurer, disagrees with the trial court’s holding. In Ponders, the insured missed the first scheduled IME, after which the insurer unilaterally scheduled a second IME at a location closer to the insured’s home to comply with Fla. Stat. § 627.736(7)(a) (1989). Id. at 1129-30. Prior to the second IME (but after the first IME) the insurer canceled. The Third District held that by rescheduling the exam closer to the insured’s home; the insurer admitted that the first IME appointment was not in “an area of the closest proximity to the insured’s residence where there was a qualified physician as required by the . . . statute.” Id. at 1130 (emphasis added). Thus, according to Ponders, the insurer “was not privileged to thereafter cancel the [second IME] and deny PIP benefits to the insured based on the latter’s failure to keep the first appointment, ” which was now reasonably missed as a matter of law. Id.
Ponders, therefore, stands for the limited proposition that an insurer is precluded from terminating benefits as of the date of a missed IME, if that IME is illegally set by the insurer, thus making the setting unreasonable as a matter of law. Id. Accordingly, only under such a scenario does an insured’s failure to attend become reasonable as a matter of law. See id. We decline to read Ponders to stand for the general proposition that an insurer’s mere act of rescheduling an IME constitutes a waiver of their right to terminate benefits as of the previously scheduled IMEs. Such a reading would negate the legislature’s “reasonability” qualifier, and negate an insured’s obligation to submit to one or more IMEs. Furthermore, it would create a disincentive for insurers to reschedule IMEs, thus, forcing litigation and an immediate cut-off of often needed benefit payments.4
Here, unlike Ponders, there is no indication in the record that United rescheduled the IME to correct a statutory deficiency (which would make the previous setting unreasonable as a matter of law), nor are there facts in the record suggesting United unreasonably scheduled the IME. Similarly, there is no indication that Mr. Raymond reasonably missed the first IME as a matter of law or fact.5 Therefore, this Court is in no position to determine whether United unreasonably set or Mr. Raymond unreasonably missed the first IME, and therefore an issue of fact remains for the trial court to resolve.
Accordingly, the judgment of the trial court is AFFIRMED in part and REVERSED6 in part, as explained in the opinion, and the case is REMANDED for further proceedings consistent with this opinion.
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1Specifically on March 25, 2004.
2The standard of review for summary judgment is de novo. Fla. Bar. v. Rapoport, 845 So. 2d 874, 877 (Fla. 2003).
3Laforet also stands for the proposition that even if the legislature has clearly expressed its intent for a statute to operate retroactively, the court may refuse to apply it as such if the statute impairs a vested right, creates a new obligation, or imposes new penalties. Laforet, 658 So. 2d at 61.
4If the insurer’s mere act of rescheduling an IME were to constitute a waiver of its right to terminate benefits as of the first IME, then the insurer would always be liable for bills received between the two IMEs regardless of whether the insured ever submitted to an IME. Thus, this would give an unscrupulous insured the incentive to submit as many bills as possible, between the IMEs, knowing that the bills would have to be paid as a matter of law without his ever having submitted to an IME as contemplated by the Florida Statutes.
In response, a rational insurer would stop rescheduling IMEs, and thus, stop PIP benefit payments if an insured missed the first, and now only, IME. The only way for a legitimately injured insured to then receive the benefits would be by initiating a breach of contract action against the insurer. Surely, this rush to litigate undermines the PIP Statutes, which were “designed for the protection of injured persons.” Flores v. Allstate Ins. Co., 819 So. 2d 740, 744 (Fla. 2002) (citations omitted).
5The Court notes, for the sake of clarity, that Mr. Raymond could have reasonably missed the first IME because of
(1) his own actions, for example calling ahead and requesting a rescheduled IME, or
(2) because United, like the insurer in Ponders, unreasonably scheduled the IME.
6Since this case is being reversed in part, fees and costs pursuant to Fla. Stat. § 627.428 are also REVERSED. See Hart v. Bankers Fire & Casualty Co., 320 So. 2d 485.
