14 Fla. L. Weekly Supp. 1102b
Insurance — Personal injury protection — Independent medical examination — Failure to appear — Where insurer unilaterally rescheduled IME after insured failed to appear for first appointment in order to give insured benefit of doubt, and insured failed to appear for second IME, insurer did not waive right to terminate benefits as of date of first missed IME
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. SOUTHEAST ELECTRO-NEURODIAGNOSTIC, INC., A/A/O MARIA RIBERA, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 05-1763 (11). May 30, 2006. Counsel: Michael J. Neimand, Office of the General Counsel, United Automobile Insurance Company, Coral Gables, for Appellant.
ORDER AND OPINION
(BARRY E. GOLDSTEIN, J.) THIS CAUSE comes before the Court upon Appellant, United Automobile Insurance Company’s appeal of a Summary Judgment. Having reviewed appellate record, applicable law, and being otherwise fully advised in the premises, the Court hereby decides as follows:
The insured person in this case, Maria Ribera, assigned any rights that she may have had against the Appellant, United Automobile Insurance Company, to the Appellee, Southeast Electro-Neurodiagnostic, Inc. Ms. Ribera was scheduled by United Auto to appear for an independent medical examination (hereinafter referred to as IME) on August 24, 1999, for which she failed to appear. Thereafter, United Auto “automatically” scheduled another IME for September 9, 1999 for which Ms. Ribera again failed to appear. The testimony of a corporate representative of United Auto was that United Auto had a company policy to automatically give a second date for an IME whenever the first date is not kept.
The only issue at the trial level was whether United Auto waived the right to deny payment as of August 24, 1999 by voluntarily scheduling a second IME after Ms. Ribera failed to appear at the first IME. The county court granted Summary Judgment in favor of Southeast. The standard of review on appeal of a Summary Judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla. 2000).
The Appellee relies upon Ponders v. Fortune Insurance Company, 578 So.2d 1129 (Fla. 3d DCA 1991), for the proposition that an insurer waives its right to terminate PIP benefits to an insured if the insurer schedules another IME after the insured has failed to appear to the first scheduled IME.
In Ponders v. Fortune Insurance Company, the first IME exam was scheduled for January 4, 1990 and the insured failed to appear. Id. The insurance company then rescheduled the exam for January 24, 1990 at a location closer to the insured’s home. Prior to January 24, 1990, but after January 4, 1990, the insurance company cancelled the exam for that date. The 3rd DCA held that by rescheduling the exam closer to the insured’s home, the insurance company admitted that the January 4, 1990 appointment was not in “an area of the closest proximity to the insured’s residence” as the statute required. Id. at 1130. The court stated that “this being so, Fortune was not privileged to thereafter cancel the January 24 exam and deny PIP benefits to the insured based on the latter’s failure to keep the first appointment.” Id.
In the case sub judice, the second IME was not set at a place closer to the insured’s home, was not reset to correct a statutory deficiency, nor was it cancelled by the insurance company. The insured did not show up to the second exam either. This Court finds that Summary Judgment should not have been granted in favor of Southeast and the judgment of the county court is reversed.
“Waiver is the voluntary and intentional relinquishment of a known right, or conduct which implies the voluntary and intentional relinquishment of a known right.” Major League Baseball v. Morsani, 790 So.2d 1071 (Fla. 2001). In order for United Auto to have waived its right to terminate benefits as of August 24, 1999, one of three things would have had to occur. Either the insured would have had contacted United Auto and requested a rescheduling of the IME, or United Auto would have had to reschedule the IME, on its own, in order to comply with the statutory requirements as stated in Ponders v. Fortune Insurance Company, 578 So.2d 1129 (Fla. 3d DCA 1991), or if the insured had appeared for the second appointment.
In the scenario that this case presents, United Auto, on its own, rescheduled the IME after the insured missed the first appointment in order to give the insured the benefit of the doubt. This unilateral action by Appellant, for the benefit of the insured, did not constitute a waiver of its right to terminate benefits as of the date that the insured missed the first IME. To hold otherwise would give further credence to the saying “no good deed goes unpunished.”
The trial court granted Appellee fees and costs pursuant to §627.428 of the Florida Statutes. Since this action is being reversed, the fees and costs granted must also be reversed.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the fees and costs granted to the Appellee are REVERSED.
ORDERED AND ADJUDGED that the Order Granting Summary Judgment in favor of Appellee is REVERSED and REMANDED for further proceedings consistent with this opinion.
