16 Fla. L. Weekly Supp. 444b
Online Reference: FLWSUPP 165LEMA
Insurance — Personal injury protection — Independent medical examination — Failure to attend — Where insured failed to attend IME that was condition precedent to filing suit, medical provider may not pursue benefits, even for treatment rendered and billed before IME date — No merit to arguments that policy that is more stringent than statute in requiring submission to IME as condition precedent to suit is invalid, that there was no notice of IME because certified mail was returned, that insurer waived IME no-show defense by failing to cite failure to attend IME on explanation of benefits, that policy conditions precedent are not applicable to claimant who is not named insured, that failure to attend IME bars recovery for subsequent treatment but is not condition precedent to entire suit, that notice which states insured may forfeit rights under policy by failing to attend IME rather than affirmatively stating that rights will be forfeited is insufficient, and that appearance at examination under oath is partial compliance that precludes summary judgment for failure to attend IME
CHIROCORP, INC. (a/a/o Veronica Lema), Plaintiff, vs. BRISTOL WEST INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 05-5883 SP 23 (3). February 13, 2009. Lisa Walsh, Judge. Counsel: David Kuczenski, for Plaintiff. Joshua Meadow, Law Offices of Timothy W. Ross & Associates, Davie, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGEMENT AND FINAL JUDGMENT
THIS CAUSE came before the Court upon Defendant’s Motion for Final Summary Judgment pursuant to Florida Rule of Civil Procedure 1.510(a). The Court, having reviewed the submissions by Defendant, and noting the failure by Plaintiff Millennium Diagnostic Imaging Center, Inc. to submit any affidavits in opposition to Defendant’s motion, and having heard the arguments of both parties at a hearing dated January 21, 2009, and the Court being otherwise fully advised in the premises, hereby grants Defendant’s motion for the reasons set forth herein:
Undisputed Facts
1. On or about September 8, 2004, Veronica Lema was involved in a motor vehicle accident.
2. On or about October 5, 2004, in accordance with the policy of insurance and the Florida PIP statute, Southern Diagnostic Associates, acting on direction of the Defendant, sent to the claimant notice of an independent medical examination (hereinafter “IME”) to take place on October 21, 2004.
3. The notice was sent to the address provided by the Plaintiff on the “Month to Month Addendum” of the lease for Veronica Lema.
4. The claimant did not appear for the independent medical examination and gave no reason for the failure to attend.
5. On or about October 22, 2004, in accordance with the policy of insurance and the Florida PIP statute, Southern Diagnostic Associates, acting on direction of the Defendant, sent to the claimant notice of an independent medical examination (hereinafter “IME”) to take place on October 29, 2004.
6. The claimant did not appear for the IME and gave no reason for the failure to attend.
Policy Language at Issue
The policy of insurance at issue in this lawsuit (Attached as attachment to Exhibit A) reads, in relevant part:
PERSONAL INJURY PROTECTION COVERAGE — FLORIDA
. . .
III. PART E — DUTIES AFTER AN ACCIDENT OR LOSS
A person seeking Personal Injury Protection Coverage must:
. . .
D. Submit as often as we reasonably require to mental or physical exams.
PART F — GENERAL PROVISIONS
LEGAL ACTION AGAINST US
A. No legal action may be brought against us until there has been full compliance with all the terms of this policy. . . .
Analysis & Legal Conclusions
It is well settled that summary judgment is proper when there are no genuine issues as to any material fact and when the moving party is entitled to judgment as a matter of law. Florida Bar v. Greene, 926 So. 2d 1195 (Fla. 2006). “The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fla. R. Civ. P. 1.510(c).
A movant for summary judgment has the initial burden of demonstrating the nonexistence of any genuine issue of material fact, but once competent evidence to support the motion is tendered, the opposing party must come forward with counter-evidence sufficient to reveal a genuine issue of material fact. Landers v. Milton, 370 So. 2d 368 (Fla. 1979); Kolnick v. Fountainview Association, Inc. # 2, 737 So. 2d 1192 (Fla. 3d DCA 1999). It is not enough for the opposing party to merely assert that an issue does exist. Landers, 370 So. 2d, at 370; Peoples Gas System, Inc. v. Acme Gas Corp., 689 So. 2d 292 (Fla. 3d DCA 1997).
This Court finds that Defendant has met its initial burden of demonstrating the non-existence of a genuine issue of material fact. The Court further finds that Plaintiff, in choosing to not submit any counter-evidence, has failed to meet its burden of demonstrating a genuine dispute of material fact.
As there are no factual issues, the substantive issue for this Court to determine is whether the conditions precedent to filing suit have been met by the Plaintiff’s assignor (as the Plaintiff stands in the shoes of its assignor), and if they have not, whether that is sufficient to grant the Defendant final summary judgment.
Custer Analysis
Florida’s Third District Court of Appeal recently decided a case with virtually identical facts. In deciding United Automobile Ins. Co. vs. Custer Medical Center (a/a/o Maximo Masis), 990 So.2d 633 (Fla. 3rd DCA 2008), the Third DCA was presented with the following:
a. A claimant that refused to submit to two (2) independent medical examinations;
b. A policy of insurance which reads, in relevant part, “No action shall lie against [United], unless, as a condition precedent thereto, there shall have been full compliance with all terms of this insurance policy . . .”;
c. A decision by United to decline to afford any personal injury protection benefits coverage because of the claimant’s failure to attend the scheduled IMEs, which was a condition precedent to filing suit;
d. United’s defense at trial was simply that the claimant failed to satisfy a reasonably established condition precedent to payment of his medical bills; and
e. The trial court’s decision to grant a directed verdict for United in that the condition precedent to filing the lawsuit, submitting to the independent medical examinations, was not complied with.
The Third DCA held that the trial court was correct in granting a directed verdict in favor of United, even for bills for treatment occurring, and submitted for payment, before the subject examinations. The Third DCA, based on language in the statute and in the policy, reads language in the statute that contains the word subsequent to the failure to satisfy condition precedent to suing at all. As a result, the Plaintiff medical provider was not entitled to recovery of any medical benefits at all.
This fact is highlighted by the dissent, in which Judge Ramirez lamented the Court’s opinion. He wrote:
By our decision, the insured is foreclosed from arguing to a jury that the request for a medical examination was unreasonable in this case. The insured was in an accident on January 4, 2002, and filed a PIP application on January 8, 2002. He was discharged from treatment, and a bill was submitted to United on March 26, 2002. The next day, United made its first request for an examination. What possible purpose could be served for such an examination after the insured had been discharged and no further treatment was contemplated? If the medical examination revealed that no further treatment was necessary, how would this assist the insurer in evaluating the claim where no further treatment was contemplated anyway? The panel would force an insured to miss time from work, travel to a doctor’s office, sit in a waiting room, and submit to a medical examination that can serve no useful purpose. On the contrary, the only point for making an insured jump through this particular hoop is the hope that the insured will not attend the examination and thereby forfeit all PIP benefits.
The case before the Court is virtually identical to the case before the Third DCA in Custer. Here, we have a policy of insurance that requires full compliance with the terms of the contract before suit can be filed (it doesn’t use the words “condition precedent”, but it uses the definition of the term) and a Plaintiff’s assignor that refused to attend two (2) IMEs.
Plaintiff’s Counter-Arguments
Plaintiff raised eight (8) arguments against the entry of Final Summary Judgment. The Court addresses them as follows:
I. Plaintiff argued that its filing of a reply to the affirmative defenses saying the policy is more stringent than the statute and somehow the policy is not valid as a result. This Court does not find that the filing of the reply changes the argument in this case or somehow creates a disputed issue of fact or changes the legal landscape for this case. As such, this Court rejects this counter- argument.
II. Plaintiff argued that there was no notice of the examination because the certified mail was returned. However, all that is required is that notices be placed in the US mail, which was done by the Defendant’s agent, Southern Diagnostic Associates. There is a presumption “. . . that mail properly addressed, stamped and mailed was received by the addressee . . .” Brown vs. Giffen Industries, Inc., 281 So.2d 897 (Fla. 1973). As Defendant provided proof that the notices were properly mailed, this Court rejects this counter-argument.
III. Plaintiff argued that the Defendant waived its defense (or alternatively, was trying to “mend the hold”) by failing to identify on the explanation of benefits that the IME no show was the reason that it was not paying the claim (rather a material misrepresentation was cited). In response, Defendant argued that it was not yet possible to waive the defense when it was adjusting the claim, as the defense of the Plaintiff’s failure to comply with condition precedent to filing suit cannot actually exist until suit is filed; or alternatively, that the IME no-show was not a defense that can be waived, citing to United Automobile Insurance Co. vs. Eduardo J. Garrido, D.C., P.A., 990 So.2d 574 (Fla. 3rd DCA 2008), which is best elucidated by Judge Dishowitz, in Chiropractic Radiology Consultants, P.A. (a/a/o Juan Carnejo-Lopez) vs. United Automobile Insurance Co., 16 Fla. L. Weekly Supp. 106b (October 31, 2008). Judge Dishowitz held that based on the Garrido case, that “there is no waiver of an affirmative defense when the failure is not a failure that can be cured based on notice.” As the assignor/patient’s failure to attend a properly scheduled IME is not curable even if notice is provided, this Court rejects this counter-argument.
IV. Plaintiff argued that the patient was not the named insured, rather a statutory insured, and as such notice of the policy requirements could not be imputed to her as the policy was never provided to her (despite the fact that the undisputed testimony reveals she never requested a policy from the Defendant). This Court was not provided with, nor is it aware of, any requirement that the Defendant insurer provide every claimant with a copy of the policy. Further, this Court finds that Ms. Lema is bound to the obligations of the policy if she is seeking benefits under the policy. This Court rejects this counter-argument.
V. Plaintiff argued that the policy, like the statute, says “subsequent” insurance benefits and as such the Court should apply the Third DCA’s decision in U.S. Security Insurance Co. vs. Silva, 693 So.2d 593 (Fla. 3rd DCA 1997). Plaintiff argues that Custer does not specifically overrule Silva, and that Silva is more appropriate for the case at bar as Ms. Lema is a statutory insured. However, in Custer, the Third DCA based its holding not only on the policy language, but in the statute as well. The Third DCA, based on language in the statute and in the policy, reads language in the statute that contains the word subsequent to the failure to satisfy condition precedent to suing at all. As a result, this Court rejects this counter-argument.
VI. Plaintiff argued that the notices in Custer were different than the notices provided in the case at bar, and this distinction distinguishes Custer. The distinction is that the Defendant’s notices only state that the patient may forfeit their rights under the policy, whereas in Custer, the notice affirmatively states that the failure to appear shall result in a forfeiture of rights under the policy. This Court finds that it is enough for a Defendant to inform the patient that they must attend, and the basis for the requirement. As a result, this Court rejects this counter-argument.
VII. Plaintiff’s seventh counter-argument is closely related to its fourth argument and fails for the same reasons.
VIII. Finally, Plaintiff argues that under Haiman vs. Federated Insurance Co., 798 So.2d 811 (Fla. 4th DCA 2001), Ms. Lema’s submission to an examination under oath precludes summary judgment due to her “partial compliance”. However, a close look at the opinion from the 4th DCA shows that the case is factually distinguishable from the case at bar. In Haiman, the insurer requested the claimant submit to an examination under oath and to produce documents at that time. The claimant did appear, and did produce voluminous documents. However, as not all the documents were produced, the insurer claimed that the claimant did not submit as required. Because the claimant did in fact comply, at least in part, with the EUO request, that the Court said it was a question for the jury that precluded summary judgment on the issue of whether claimant failed to submit to the EUO in compliance with the contract of insurance. That is substantially different from what is before this Court. Here we do not have a partial compliance with the request. The claimant did not appear for the IME at all. Satisfying one requirement under the policy does not excuse the unexplained failure to satisfy another requirement under the policy, and as such, the Haiman case is inapplicable and this Court rejects this counter-argument.
Conclusion
This Court finds that it is bound by the Third DCA’s in Custer, as were the Courts in Millennium Diagnostic Imaging Center, Inc. (a/a/o LaBastida) vs. State Farm Fire and Casualty Ins. Co., 15 Fla. L. Weekly Supp. 826b (May 27, 2008) and DC Health & Rehab Center, Inc. (a/a/o Bolanos) vs. State Farm Fire and Casualty Ins. Co.,15 Fla. L. Weekly Supp. 1199a (October 2, 2008). The facts are virtually the same, and as such the legal ramification must be the same. As there was a failure to comply with the conditions precedent to filing suit, the Plaintiff medical provider may not pursue the benefits, even for treatment rendered and billed for before the scheduled independent medical examinations.
Accordingly, It is hereby
ORDERED and ADJUDGED:
Defendant’s Motion for Final Summary Judgment is hereby GRANTED.
__________________
FINAL JUDGMENT
Pursuant to the above Order granting Defendant’s Motion for Final Summary Judgment, Final Judgment is hereby entered in favor of BRISTOL WEST INSURANCE COMPANY, and against CHIROCORP, INC. (a/a/o Veronica Lema). CHIROCORP, INC. (a/a/o Veronica Lema) shall take nothing from this action, and Defendant, BRISTOL WEST INSURANCE COMPANY shall go hence without day.
It is further,
ORDERED AND ADJUDGED:
That this Court reserves jurisdiction to tax Defendant’s Attorneys’ fees and costs, if authorized by law.
