16 Fla. L. Weekly Supp. 338a
Online Reference: FLWSUPP 164MADRI
Insurance — Personal injury protection — Independent medical examination — Failure to appear — Where insured provided excuse for nonappearance at IMEs and cooperated with insurer by attending examination under oath, factual issue exists as to whether insured unreasonably refused to submit to IME — Defendant’s motion for partial summary judgment denied
ADVANCED CHIROPRACTIC & REHABILITATION CENTER, a Florida Corporation (assignee of Madrid, Ricardo), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 07-11242 CC 23 (04). Claim No. 756541. February 12, 2009. Eric Wm. Hendon, Judge. Counsel: Jonathan J. Warrick, Law Office of Russel Lazega, P.A., North Miami, for Plaintiff. Stephanie Vo, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT
(re: IME No-Show)
THIS CAUSE, came before the court for hearing on February 9, 2009, and the Court, having reviewed the Motion, the court file, legal authorities and having heard argument of counsel, finds as follows:
Factual Background:This is a multi-count P.I.P. case. Defendant has moved for partial summary judgment alleging that the insured’s failure to attend two (2) Independent Medical Examinations (“I.M.E.’s”) results in the termination of liability for it to pay any benefits under the policy of insurance. Plaintiff responds that: 1. Material discovery is still pending (the deposition of the insured is currently scheduled for March 20, 2009); 2. The insured did in fact cooperate to a significant degree where he attended a full-blown Examination Under Oath (“EUO”) and a time and location of the Defendant’s choosing; and, 3. The only evidence before this Court relative to the reason for the no-show is the EUO transcript of the insured (which was both attached to Defendant’s motion for partial summary judgment and provided in response to Plaintiff’s request to produce), which provides an excuse for the insured’s non-appearance; to wit: employment obligations precluded his attendance at the I.M.E.
Conclusions of Law:Section 627.736(7)(a)(b), Florida Statutes (1997) provides in pertinent part that if the mental or physical condition of an injured person covered by personal injury protection is at issue, upon request of an insurer, such person shall submit to mental or physical examination by a physician or physicians; and if a person unreasonably refuses to submit to an examination, the PIP carrier is no longer liable for subsequent personal injury protection. See, e.g., U.S. Sec. Ins. Co. v. Silva, 693 So. 2d 593, 596 (Fla. 3d DCA 1997).
Here, the undisputed record evidence reveals that the insured provided an excuse for his non-appearance at the I.M.E.’s (employment obligations) and did in fact cooperate to a significant degree (attended an EUO). As such, a fact question exists as to whether the insured unreasonably refused to submit to the I.M.E.
Accordingly, it is hereby:
ORDERED AND ADJUDGED that Defendant’s Motion for Partial Summary Judgment (re: IME No-Show) is DENIED.
