16 Fla. L. Weekly Supp. 953a
Online Reference: FLWSUPP 1610TUCK
Insurance — Personal injury protection — Independent dental examination — Refusal to submit to exam — Provision of PIP statute governing location of independent medical examinations did not apply where insured’s PIP benefits had been exhausted at time insurer requested IME, and only med pay coverage was available to pay dental bills — Where policy does not restrict IME location, insurer did not act unreasonably in requiring insured to attend IME in location other than city and county of residence — Where it is undisputed that insured traveled to IME location but then refused to submit to exam, and insured previously appeared for IME and then refused to allow IME to be performed, refusal was unreasonable
ANNE TUCKER, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 3rd Judicial Circuit, Columbia County. Case No. 2006-1245-CC. July 24, 2009. Tom Coleman, Judge. Counsel: Wesley R. Douglas, Lake City. James B. Eubanks, James C. Rinaman, III & Associates, P.A., Jacksonville.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come before the Court on May 13, 2009, on Defendant’s Motion for Summary Judgment, Defendant’s Motion for Summary Judgment — Invalid Demand, Defendant’s Amended Motion for Summary Judgment, and Defendant’s Second Amended Motion for Summary Judgment (collectively “Defendant’s Motion for Summary Judgment”) and Plaintiff’s Motion for Summary Judgment, Plaintiff’s Motion for Summary Judgment on Reasonableness of State Farm’s Efforts in Obtaining a Dental Examination, Plaintiff’s Supplement to Motion for Summary Judgment (collectively “Plaintiff’s Motion for Summary Judgment”), and Plaintiff’s Reply to Defendant’s Second Amended Motion for Summary Judgment, the Court having heard arguments of counsel, reviewed the pleadings, motion, and papers filed with the Court, and being otherwise advised in the premised, the Court makes the following findings of fact and conclusion of law:
1. The Plaintiff, Ms. Anne Tucker, filed the case sub judice, alleging non-payment of No Fault/Personal Injury Protection (“PIP”) benefits and Medical Payments Coverage related to injuries allegedly sustained in an incident that occurred November 14, 2004. Specifically, the Plaintiff is seeking PIP benefits and Medical Payment Coverage for future dental and/or jaw treatment.
2. The Defendant, State Farm, insured the Plaintiff under a policy of insurance which provided $10,000.00 in PIP benefits and $100,000.00 in Medical Payment Coverage. The subject policy of insurance contained a provision that requires the person(s) making a claim for PIP or Medical Payment Coverage, “be examined by physicians chosen and paid by us as often as we reasonably may require.” The subject policy also contains a provision that states, “[t]here is no right of action against us: a) until all of the terms of the policy have been met. . . .”
3. The vast majority of the litigation in this case has centered on whether the Defendant unreasonably required, in violation of section 627.736(7)(a), the Plaintiff to attend an Independent Medical Exam (“IME”) in Jacksonville, Florida. The second issue is whether Plaintiff unreasonably refused to participate in the IME.
4. Plaintiff was initially scheduled for an Independent Medical Exam (“IME”) in Lake City, Florida on October 20, 2005 with Dr. Gerard M. Gerling, M.D. Upon appearing at for examination, Dr. Gerling introduced himself to the Plaintiff and began the examination. Plaintiff stated that she had only appeared to find out what was wrong with her and refused to allow the examination to continue.
5. Medical Service Consultants, Inc. was retained by Defendant to coordinate an independent dental exam for the Plaintiff.
6. Ms. Bertha Ball, a 20 year owner of Medical Service Consultants, Inc., testified that she reasonably investigated, but could not secure a qualified dentist in either Lake City, Florida or Gainesville, Florida to conduct an independent dental examination of Plaintiff.
7. On or about March 2, 2006, Plaintiff’s husband, Mr. Tucker, learned of and expressed concerns regarding the possibility of having to drive to Jacksonville, Florida to attend an independent dental examination due to his wife’s, the Plaintiff’s “anxiety.”
8. In a letter dated March 6, 2006, the Plaintiff was put on notice that an independent dental examination was scheduled for March 29, 2006, at 10:00 a.m., at the office of Solomon G. Brotman, DDS, in Jacksonville, Florida.
9. At no time after the March 6, 2006 letter did Plaintiff or Plaintiff’s husband object to the examination being held in Jacksonville, Florida.
10. In fact, on March 9, 2006, Mr. Tucker called the State Farm adjuster to make State Farm aware that the Plaintiff would not be able to pick up her x-rays personally and asked State Farm to ensure that the x-rays were delivered to the examination site.
11. On the day of the scheduled examination, Plaintiff presented to the office of Dr. Brotman, in Jacksonville, Florida, for the independent dental exam. Mrs. Tucker was brought into an examination room to review her history and to have a clinical exam preformed. Upon entering the examination room, Dr. Brotman introduced himself and explained the exam process. Plaintiff then refused to allow Dr. Brotman to perform a dental exam and left his office.
12. In a letter dated April 20, 2006, Defendant notified Plaintiff that it would not be paying for any outstanding or future dental expenses because of the Plaintiff’s refusal to allow the dental exam to be completed and therefore failed to comply with the terms of the insurance policy.
13. Section 627.736(7)(a), Florida Statutes provides:
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. The costs of any examinations requested by an insurer shall be borne entirely by the insurer. 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. If the examination is to be conducted in a location reasonably accessible to the insured, and if there is no qualified physician to conduct the examination in a location reasonably accessible to the insured, then such examination shall be conducted in an area of the closest proximity to the insured’s residence.
14. Section 627.736(7)(b), Florida Statutes provides:
If a person unreasonably refuses to submit to an examination, the personal injury protection carrier is no longer liable for subsequent personal injury protection benefits.
15. As pointed out in Plaintiff’s Supplement to Motion for Summary Judgment, Plaintiff’s PIP benefits had already been exhausted at the time of the requested examination. Plaintiff’s Medical Payments Coverage is not covered under Florida’s No Fault Law. In fact, medical payment coverage was removed from Florida Statues prior to 2001. Therefore, the $100,000.00 in Medical Payment Coverage falls solely under the applicable provision of the Plaintiff’s policy of insurance and provision of section 627.736(7)(a) are inapplicable because the benefits covered by that section were already exhausted at the time of the requested examination.
16. Turning to the contractual provision that actually controls the examination in question, the contract merely states, “[t]he person making claim also shall. . .be examined by physicians chosen and paid by us as often as we reasonably may require.” This language is clear and unambiguous. When the terms of a contract are clear and unambiguous, the express terms control. Armstrong v. State, 985 So.2d 1156 (Fla. 3rd DCA 2008). Accordingly, this Court answers the first question in the negative, the Defendant did not act unreasonably and in violation of section 627.736(7)(a) in requiring the Plaintiff to attend an IME in Jacksonville, Florida.
17. Turning to the second issue, the undisputed facts are that the Plaintiff traveled to Jacksonville, Florida for the schedule IME but once there refused to allow the doctor to perform the IME. Also, it is undisputed that this is the second time that the Plaintiff was present for an IME scheduled by the Defendant but refused to allow the IME to be performed. Under the circumstances, this Court finds that Plaintiffs refusal was unreasonable.
18. Any other issues raised in either party’s motions not addressed in this order are deemed denied.
Therefore, it is ORDERED and ADJUDGED:
Defendant’s Motion for Summary Judgment is hereby GRANTED.
Plaintiff’s Motion for Summary Judgment is hereby DENIED.
