15 Fla. L. Weekly Supp. 950a
Insurance — Personal injury protection — Independent medical examination — Location — Where insurer did not have IME conducted in limited areas required by PIP statute, IME report was invalid, and suspension of benefits based solely on IME violated statute prohibiting withdrawal of payment without first obtaining valid report stating treatment was not reasonable, related or necessary — Request by insured’s mother that IME take place in certain area does not constitute valid waiver of statutory requirement regarding IME locations
LOUIS CURREN, SR., as parent and natural legal guardian of LOUIS CURREN, JR., Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 02-SC-001074-19-S. August 9, 2007. Donald L. Marblestone, Judge. Counsel: Lee M. Jacobson, Law Offices of Michael Brehne, P.A., Maitland, for Plaintiff. Neil Andrews, Adams & Diaco, for Defendant.ORDER
THIS CAUSE having come on before the Court on May 15, 2007 on the Plaintiff’s Motion for Summary Judgment, and the Court having heard argument of counsel, and being otherwise fully advised, it is hereby
ORDERED and ADJUDGED that:
1. Plaintiff filed a Motion for Summary Judgment arguing that Defendant failed to conform to the strictures of F.S. §627.736(7)(a) (2001).
2. Plaintiff maintains that since the IME was not performed in the requisite locations offered by the statute, the report is invalid and thus Defendant wrongfully terminated the insured’s PIP benefits.
3. F.S. §627.736(7)(a) (2001) states:
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 insurance benefits, such person shall, upon the request of an insurer, submit to mental or physical examination by a physician or physicians. Such examination shall be conducted within the municipality where the insured is receiving treatment, or in a location reasonably accessible to the insured, which, for purposes of this paragraph, means any location within the municipality in which the insured resides, or any location within 10 miles by road of the insured’s residence, provided such location is within the county in which the insured resided. Personal protection insurers are authorized to include reasonable provisions in personal injury protection insurance policies for mental and physical examination of those claiming personal physician without the consent of the injured person covered by the personal injury protection, unless the insurer first obtains a valid report by a physician licensed under the same chapter as treatment was not reasonable, related or necessary. A valid report is one that is prepared and signed by the physician examining the injured person or reviewing the treatment records of the injured person and is factually supported by the examination and treatment records if reviewed and that has not been modified by anyone other than the physician. The physician preparing the report must be in active practice, unless the physician is physically disabled. Active practice means that during the 3 years immediately preceding the date of the physical examination or review of the treatment records the physician must have devoted professional time to the active clinical practice of evaluation, diagnosis, or treatment of medical conditions or to the instruction of students in an accredited health professional school or accredited residency program or a clinical research program that is affiliated with an accredited health professional school or teaching hospital or accredited residency program.
4. Defendant initially scheduled an IME to commence on February 13, 2002 at 1410 West Broadway Street, Suite 101, Oviedo, FL 32765, which was approximately thirty miles away from insured’s residence.
5. Defendant contends that the insured waived its argument under F.S. §627.736(7)(a) by requesting that IME take place in the “Kissimmee” area and by attending the IME at the selected location, 316 Church Street, Kissimmee, FL 34741.
6. The IME occurred in Osceola County while the insured lived in Orange County. The IME location was less than 10 miles from the insured’s residence.
7. Defendant further contends that an IME report cannot be deemed invalid solely based on location as the definition of valid as outlined in F.S. §627.736(7)(a) (2001).
8. In support of its arguments Defendant provides the affidavit of Rita Grasso, office manager for Professional Evaluation Group of Florida, Inc.
9. Professional Evaluation Group is the IME vending company that coordinated the IME of the insured for Progressive.
10. In her affidavit, Ms. Grasso states, “In the course of my normal duties as office manager, I was responsible for coordinating an independent medical examination for the above-referenced case (claim 00-5661237). The following statements are based upon my own personal knowledge and/or review of computer documents kept by Professional Evaluation Group, in the ordinary course and scope of its business.”
11. The affidavit contains no attachments.
12. Plaintiff contends the sole affidavit presented by the Defendant does not comply with rule 1.510(e).
13. Rule 1.510(e) states:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.
14. F.S. §627.736(7)(a) states, in pertinent part:
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 insurance benefits, such person shall, upon the request of an insurer, submit to mental or physical examination by a physician or physicians. Such examination shall be conducted within the municipality where the insured is receiving treatment, or in a location reasonably accessible to the insured, which, for purposes of this paragraph, means any location within the municipality in which the insured resides, or any location within 10 miles by road of the insured’s residence, provided such location is within the county in which the insured resides.
15. The word “shall,” as used by the legislature in the above paragraph, is mandatory language and must be given its literal meaning. DeGregorio v. Balkwill, 853 So.2d 371 (Fla. 2003) (Generally, where the word “shall” refers to some required action preceding a possible deprivation of a substantive right, the word is given its literal meaning.) Citations omitted.
16. Defendant did not have the IME conducted in the limited areas required by F.S. §627.736(7)(a) (2001).
17. As such, Plaintiff contends Defendant’s IME report is invalid as it was obtained in violation of the statute.
18. F.S. §627.736(7)(a) also states:
An insurer may not withdraw payment of a treating physician without the consent of the injured person covered by the personal injury protection, unless the insurer first obtains a valid report by a Florida physician licensed under the same chapter as the treating physician whose treatment authorization is sought to be withdrawn, stating the treatment was not reasonable, necessary or related (emphasis added).
19. Therefore, Defendant’s suspension of the PIP benefits based solely upon the invalid IME report violated Florida Statute 627.736.
20. As such, Defendant had no valid reason to suspend the PIP benefits of Mr. Curren, Jr. and all bills denied on the basis of IME suspension are overdue and owing.
The court finds:
a) F.S. §627.736(7)(a) (2001) is the applicable statute in this case.
b) The IME did not take place in one of the prescribed locations listed in 627.736(7)(a) (2001).
c) The insured’s mother’s request to have the IME take place in the “Kissimmee area” does not constitute a valid waiver under 627.736(7)(a) (2001).
d) Defendant’s affidavit in opposition to the Plaintiff’s Motion for Summary Judgment is invalid.
WHEREFORE, Plaintiff’s Motion for Final Summary Judgement is GRANTED.
