15 Fla. L. Weekly Supp. 563b
Insurance — Personal injury protection — Independent medical examination — Failure to attend — Error to find that insurer’s act of automatically rescheduling missed IME waived its right to rely on first scheduled IME date as date of suspension of PIP benefits where insured did not notify insurer of inability to attend first IME, IME was not rescheduled to correct statutory deficiency, and insured did not attend rescheduled IME
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. FUTURE MEDICAL CENTER, INC., a/a/o ALEJANDRO CRESPO, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 06-639 Ap. L.C. Case No. 2003-003028-CC-24. April 3, 2008. An Appeal from the County Court for Miami-Dade County, Darrin P. Gayles, J. Counsel: Michael J. Neimand, Office of the General Counsel, United Automobile Insurance Company, for Appellant. Richard Shuster and Adam Saben, Shuster & Saben, LLC, for Appellee.
(Before ARECES, THOMAS and SCHLESINGER, JJ.)
(THOMAS, Judge.) This is an appeal from a final judgment and order of attorney fee entitlement involving the denial of Appellant United Automobile Insurance Company’s motion in limine with respect to the operative date of an IME no show. We find that the final judgment and order of attorney fee entitlement entered below by the trial court should be reversed and remanded for further proceedings.1
The undisputed facts are that Alejandro Crespo (insured), entered into an automobile insurance policy (policy) with the Appellant. He was involved in an automobile accident on March 14, 2003 and sustained personal injuries. He assigned his personal injury protection (PIP) benefits under his policy to Appellee Future Medical Center, Inc. The Appellant sent a notice by certified mail and set the first independent medical examination (IME) for April 15, 2003; the insured failed to attend. Appellant sent a notice and unilaterally and automatically rescheduled the second IME for April 29, 2003 and the insured failed to attend. Appellant had received the first set of medical bills on April 23, 2003 in between the two scheduled IME dates.
Appellee sued for breach of contract, declaratory relief, and for a violation of section 627.736, Florida Statutes (2002). The Appellant filed an answer including the affirmative defense of the insured’s unreasonable refusal to attend the IME’s. The trial court considered a grant of the motion in limine as effectively preventing the ability of the Appellee to assert the argument that Appellant waived the first scheduled IME date as the cut off date for the suspension of PIP benefits. The trial court denied the motion and found that since Appellant elected to provide the option of the two IME dates to the insured when both were missed, the first IME date could not be used as the billing suspension date, and the second IME date had to be used.
We find that the trial court misapplied the law when it found that Appellant waived its right to suspend PIP benefits from the date of the first scheduled IME. Under the relevant PIP statute, section 627.736(7)(a) and (b), Florida Statutes (2002), the submission by an insured to one or more reasonably set IMEs is a condition precedent to reimbursement of medical bills incurred before an insurer’s termination of benefits (but received by the insurer after the termination). United States Sec. Ins. Co. v. Silva, 693 So. 2d 593, 595-96 (Fla. 3d DCA), review denied, 700 So. 2d 689 (Fla. 1997). Based on Silva, it is undisputed that the IME no show affirmative defense is inapplicable to bills received by the Appellant prior to April 15, 2003 (the first missed IME by the insured) and bills received after April 29, 2003 (the rescheduled IME). Cicero Ortho-Med. Ctr., a/a/o Blanca Rivera v. United Auto. Ins. Co., 12 Fla. L. Weekly Supp. 673c (Fla. 11th Cir. Ct. Mar. 5, 2005).
In construing the above statute, neither party mentions United Automobile Insurance Co. v. Custer Medical Center, 32 Fla. L. Weekly D2105a (Fla. 3d DCA 2007) [opinion not yet final] which relies on Griffin v. Stonewall Insurance Co., 346 So. 2d 97, 98 (Fla. 3d DCA 1977) which is factually on point. Custer reinstated a directed verdict in favor of the insurer, and held that an automobile insurer is not liable for PIP benefits for treatment of the insured who failed without explanation to appear at two consecutive IMEs, a condition precedent under the terms of the policy. Although the trial court did not have the benefit of Custer below, the facts in Custer are similar to the case at bar in that two IMEs had been properly noticed by the insurer and neither the insured or counsel responded to the insurer. Id. Further, no reason or excuse for such refusal to appear was given at the time. Id.
Both parties rely on the seminal case of Ponders v. Fortune Insurance Co., 578 So. 2d 1129, 1130 (Fla. 3d DCA 1991), where, based on the above PIP statute, the court held that the rescheduling of an IME by the insurer at a closer location to the insured’s residence constituted an admission by the insurer that the IME was not scheduled in compliance with the statute. Id. However, we find that Ponders is distinguishable from the case at bar since nothing in the record exists that Appellant rescheduled the IME to correct a statutory deficiency. Further, in Ponders, unlike this case, the insured had notified the insurer by objecting to the time, location, or other circumstances. Id.
The Appellee completely relies on Tomas v. United States Security Insurance Co., 9 Fla. L. Weekly Supp. 21b (Fla. 11th Cir. Ct. Nov. 6, 2001) which reversed a summary judgment in favor of the insurer on its unreasonable failure to attend an IME. The Tomas court construed Ponders as holding that by rescheduling the IME, an insurer waives its right to deny PIP benefits under the above PIP statute irrespective of whether the insured unreasonably failed to attend the IME. The Appellant argues that Tomas is no longer good law in light of the holding in United Automobile Insurance Co. v. Southeast Electro Neurodiagnostic, Inc., a/a/o Maria Ribera, 14 Fla. L. Weekly Supp. 1102b (17th Cir. Ct. May 30, 2006), cert. denied, No. 4D06-2586 (Fla. 4th DCA Jan. 22, 2007)2 which reversed a summary judgment in favor of an insured. In interpreting Ponders, the Ribera court held that the insurer did not waive reliance on the first scheduled IME date as a suspension of benefits date even if it reschedules the IME automatically (as required under the policy provisions) unless: 1) the insured contacted the insurer and requested a rescheduled date or 2) the insurer rescheduled to comply with a statutory requirement as stated in Ponders or 3) the insured attended the second IME. The Appellee correctly points out that the Ribera decision does not mention the Tomas decision. However, Appellee further argues that irregardless of the Ribera criteria, any unilateral and automatic rescheduling of the IME itself is a waiver of the first IME date by the Appellant under Tomas. We disagree.
Upon a closer examination of Tomas, the facts, unlike in the case at bar, reveal that the insured had notified the insurer that she could not attend the first IME even though she offered no explanation. She also failed to attend the rescheduled IME because the notice from the insurer was misfiled by the insured’s counsel. Further, unlike the case at bar and Ribera, the holding of the Tomas court involved an intentional waiver by the insurer of its right to automatically reschedule the IME because its own policy prohibited it. In following Ponders, the insurer in Tomas, unlike in Ribera where no deficiency existed under the above statute, was legally prohibited from relying on the first IME date because its rescheduling notice violated public policy by permitting it to reschedule and suspend benefits even if the insured attended the second IME. Further, in following Tomas, the Ribera court, supra, held that an insurer is legally prohibited from utilizing the first IME date as the suspension date when it reschedules the IME at the request of the insured’s attorney.
Appellant also relies upon United Automobile Co. v. Professional Medical Group a/a/o Rogilio Raymond, 14 Fla. L. Weekly Supp. 1021a (Fla. 11th Cir. Ct. Aug. 13, 2007) which reversed in part a summary judgment for the insured based on Ponders. Raymond does not involve a statutory deficiency like Ponders or Tomas which are factually distinguishable. Raymond holds that an insurer does not as a matter of law waive its right to suspend PIP benefits as of the date of the first missed IME because of any unilateral scheduling of a second IME. Id. at 1023. Any unilateral rescheduling is not an implicit admission that the insured missed the first IME reasonably. Most importantly, the Raymond court declined to interpret Ponders as holding the general proposition that an insurer’s unilateral act of rescheduling an IME constitutes a waiver of its right to suspend PIP benefits from the date of the first missed IME. Raymond would not interpret Ponders thusly because it would ignore the specific facts of Ponders, negate the legislature’s “reasonability qualifier” and negate the insured’s obligation to submit to an IME. Id. at 1022.
In this case, the Appellant’s unilateral and automatic act of rescheduling was to give the insured the benefit of the doubt. The Raymond case contains similar facts to the case at bar. Like Raymond, nothing in the record exists that Appellant unreasonably rescheduled the IME and nothing exists that the insured reasonably missed the first IME as a matter of law or fact. Therefore, like Raymond, this Court is in no position to determine whether Appellant unreasonably set or the insured unreasonably missed the first IME, and therefore an issue of fact remains for the jury to resolve as to whether the insured reasonably missed the first IME.
Therefore, we find based on Custer and Raymond, that the Appellant’s act of unilaterally and automatically rescheduling the IME itself did not as a matter of law, waive its right to rely on the first scheduled IME date as the date of suspension of PIP benefits. Consequently, we reverse the final judgment and order of attorney fee entitlement entered below and remand for further proceedings.
REVERSED AND REMANDED. (ARECES and SCHLESINGER, JJ. concur.)
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1The Appellee is correct that Appellant’s motion sought to prevent it from arguing waiver of Appellant’s IME no show affirmative defense by not filing a reply. Appellee responded to that procedural issue as delineated in numbers 1) and 2) of the Final Judgment. But, Appellant is not appealing the denial of that procedural issue in the Final Judgment.
2Appellant argues that Ribera is binding precedent because the petition was “denied on the merits” by the Fourth District Court of Appeals. We reject this argument because, although this statement exists, it is well established that a denial of the writ of certiorari should not be relied upon when no opinion exists of the case. See Bared & Co. v. McGuire, 670 So. 2d 153, 158 (Fla. 4th DCA 1996).
