16 Fla. L. Weekly Supp. 918a

Online Reference: FLWSUPP 1610GAIT

Insurance — Personal injury protection — Independent medical examination — Failure to attend — Trial court erred in entering summary judgment in favor of insurer based on insured’s failure to attend second, chiropractic IME after insurer terminated benefits based on earlier IME performed by medical doctor — Whether request to attend chiropractic IME was reasonable is at best question of fact precluding summary judgment where IME could have no effect on benefits because benefits were already terminated and insured received no chiropractic benefits

Cert. denied. 35 Fla. L. Weekly D1240d (United Auto. Ins. Co. v. Gaitan, No. 3D09-2456, June 2, 2010)

NOHEMI GAITAN, Appellant, v. UNITED AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-053 AP. L.C. Case No. 05-17435 CC 05. August 21, 2009. An Appeal from the County Court of the Eleventh Judicial Circuit of Florida in and for Miami-Dade County, Bronwyn Miller, Judge. Counsel: Marlene S. Reiss, Marlene S. Reiss, P.A., for Appellant. Lara J. Edelstein, United Automobile Insurance Company, Office of General Counsel, for Appellee.

(Before BLAKE, MURPHY, and SCHUMACHER, JJ.)

(SCHUMACHER, J.) Appellant Nohemi Gaitan (“Gaitan”), the insured, appeals the final summary judgment on a breach of contract action entered in favor of Appellee United Auto (“United Auto”). Gaitan was involved in a vehicular accident and received medical treatment pursuant to personal injury protection benefits. Upon request, Gaitan was scheduled for a March 31, 2004 IME (Independent Medical Examination) (Ex. A-1). An IME was also scheduled on April 19, 2004. On April 16, 2004 United Auto sent the insured a cut-off letter suspending benefits based on the March 31, 2004 IME¹ with Dr. Musa-Ris (Ex. A-5).

At the summary judgment hearing, the trial court relied only on the April 19, 2004 IME, which was not attended, stating that because Gaitan did not attend the scheduled chiropractic IME on April 19, Gaitan was unreasonably absent from the IME. Gaitan states that United Auto anticipatorily repudiated the insurance contract when it suspended benefits on April 16, 2004 and also she did not have any chiropractic treatment. Accordingly, Gaitan argues that she should not have been requested to attend any chiropractic IME.

We review this matter de novo to determine whether there is a genuine issue of fact and whether the court applied the correct rule of law. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000); Sierra v. Shevin, 767 So. 2d 524 (Fla. 3d DCA 2000). We find that the trial court erred by not considering the fact that United Auto anticipatorily breached the insurance policy contract when it sent a suspension of benefits (cut-off) letter on the earlier of the two instances in April 2004, the first being on April 16, 2004 and the second on April 26, 2004.

It is undisputed that all the medical treatment involved in this case was with a medical doctor, not a chiropractor. United Auto asserts that it scheduled two IMEs for the same day (a chiropractor IME and a medical IME) on March 31, 2004, but that only one medical IME ultimately took place. As such, United Auto asserts that any action it took was as a result of Gaitan’s breach. Alternatively, Gaitan states that United Auto’s position essentially expected her to attend a chiropractor IME after her benefits had been suspended, effective retroactively to March 31, 2004.

The record confirms that an affidavit from United Auto requested a chiropractor IME scheduled on March 31, 2004. A second notice for a chiropractor IME was sent out with a date of April 19, 2004 (R. at 257). For whatever reason (which neither party discusses), the originally scheduled chiropractor IME did not take place on March 31, 2004.

The facts indicate that United Auto sent its April 16, 2004 letter suspending benefits based on the attended medical IME on March 31, 2004. It subsequently sent a letter dated April 26, 2004 suspending benefits again, based on the unreasonable failure to attend either of the rescheduled April 19, 2004 chiropractor IME and or the originally scheduled March 31, 2004 chiropractor IME.

A letter from Gaitan’s counsel to United Auto dated April 13, 2004 stated:

Ms. Nohemi Gaitan has not seen a Chiropractor and therefore he [sic] will not attend the IME scheduled with Dr. Luis M. Castillo, DC on Monday April 19, 2004. Therefore, we kindly request that you cancel this matter. (emphasis added) (Ex. A-4)

On April 16, 2004 United Auto sent a letter to Gaitan which stated, in part:

The Independent Medical Examiner physician has advised us that in his/her opinion, any further medical treatment would not be reasonable, related or medically necessary.

Please be advised that United Automobile Insurance Company hereby suspends benefits under this licensing chapter for any services rendered after 3/31/2004.

On April 26, 2004, United Auto sent to Gaitan stated, in part:

As you are aware, we previously scheduled Independent Medical Examinations on 3/31/2004 & 4/19/2004.

Your client’s failure to appear. . . .must be considered an unreasonable refusal to attend. This is to advise you that your client’s benefits have been suspend or denied effective 3/31/2004.

Anticipatory Breach of Contract

We find that Gaitan was under no obligation to attend the April 19, 2004 chiropractor IME once United Auto had already notified Gaitan by April 16, 2004 that it would be suspending benefits as of the March 31, 2004 date.

Where an insurer is in breach of the contract prior to and at the time and date of a subsequently scheduled examination (IME), any defense on the basis of the scheduled examination must fail. See Amador v. United Auto. Ins. Co., 748 So. 2d 307 (Fla. 3d DCA 1999); United Auto. Ins. Co. v. Millennium Diagnostics & Imaging Center, 10 Fla. L. Weekly Supp. 971c (11th Jud. Cir. App. Div. Oct. 14, 2003). An insurer’s anticipatory breach of the insurance contract relieves the insured of its obligations under the contract. See Peachtree Casualty Ins. Co. v. Walden, 759 So. 2d 7, 9 (Fla. 5th DCA 2000). An IME serves to provide a report to the insurance company, which will be the basis of the insurance company choosing to either continue or discontinue benefits. U.S. Sec. Ins. Co. v. Cimino, 754 So. 697, 701 (Fla. 2000). It logically follows that without any remaining benefits to be received, there is no conceivable reason to attend an IME scheduled after an earlier cut-off date that has already been provided. Based on the April 16 cut-off letter advising Gaitan that benefits would be suspended as of March 31, 2004, Gaitan did not need to wait to see if United Auto is serious about its denial of benefits. See Peachtree, 759 So. 2d at 9. Accordingly, the language in the April 16th letter acts as an immediate breach of contract. Once there is a breach of contract, Gaitan has no duty to attend an IME. United Auto is therefore legally barred to using the April 19th IME nonappearance as a reason to deny benefits.

Misapplication of Law

Additionally, we find that the trial court misapplied the law. The court’s Order Granting Defendant’s Motion for Final Summary Judgment cites section 627.736(7)(b), stating: “If a person unreasonably refuses to submit to an examination, the personal injury protection carrier is no longer liable for the subsequent personal injury protection benefits.” The Order also relied on DeFerrari v. GEICO, 613 So. 2d 101 (Fla. 3d DCA 1993) (Florida Statutes do not limit the type of physician that an insurer can reasonably choose to perform a medical examination of an injured person), and distinguished Universal Medical Center of South Florida v. Fortune Insurance Company, 761 So. 2d 386 (Fla. 3d DCA 2000) from the facts of this case as inapplicable because in that case, the insured sought to cancel the IME due to having already finished treatment, not due to outright refusal to attend.

In Fortune, 761 So. 2d at 387, the court reversed summary judgment and remanded for further proceedings when it found that the Fortune, the insurer, did not provide a prompt response to the insured’s sole request to cancel the IME. Fortune failed to notify the insured timely that it would not cancel that IME, nor did it clearly inform the insured that failure to submit to the IME would result in cancelled benefits. Id. at 387. In short, the insured sought to cancel the IME and insurer failed to respond timely to that request. Similarly, in the instant case, United Auto’s only response to Gaitan’s April 13, 2004 letter stating IME nonattendance was its letter to suspend benefits effective March 31, 2004. There was no other communication from United Auto aside from the cut-off letter indicating that all benefits would be suspended.

First, DeFerrari is inapplicable to these facts because by the time United Auto requested the chiropractor IME for a medical billing claimant, there had already been a breach of contract. It follows that Gaitan’s duty to attend the IME had ceased. Thus, in addition to the facts not being so crystallized as to leave no genuine issue of material fact, the trial court was incorrect as a matter of law in its ruling for final summary judgment.

Second, DeFerrari is not applicable because it involves uninsured motorist law (section 627.727, Florida Statutes), which is a distinctly separate statute from Personal Injury Protection (section 627.736, Florida Statutes). DeFerrari addressed whether one can be required to go to a chiropractor IME when no chiropractor was ever consulted. The PIP statute, unlike the uninsured motorist statute, includes a section which states that an insurer cannot use a medical report from a different licensing chapter to suspend PIP benefits. Therefore, under a PIP case (such as this one) where there was no chiropractic treatment, the reasonableness of a chiropractic IME request is not evident, except perhaps to raise an IME nonappearance defense. If Gaitan had attended the chiropractor IME, that same chiropractor IME could not have been used to suspend her benefits because all the treatment in this case was based on medical doctors, not chiropractic doctors. The doctor performing the IME must be a “Florida physician licensed under the same chapter as the treating physician whose treatment authorization is sought to be withdrawn . . . .” § 627.736(7)(a), Fla. Stat. 2004.

Lastly, Gaitan attended the medical IME that she was requested to attend. United Auto acted upon that medical IME and suspended her PIP benefits. United Auto thus received the full benefit possible of an IME, a suspension of benefits. The purpose of the no-fault statutory scheme is to provide swift and virtually automatic payment so that the injured insured may get on with his life without undue financial interruption. See Ivey v. Allstate Ins. Co., 774 So.2d 679, 684-85 (Fla. 2000). Nonetheless, after suspension of benefits, United Auto then requested that Gaitan attend another IME which would have no possible effect on her benefits as it was under a different licensing chapter. Whether such a request is reasonable is at best a question of fact.

Thus, we hold that final summary judgment in favor of United Auto be reversed and that the case be remanded to be tried upon the merits. There are outstanding issues of material fact in dispute, particularly whether United Auto anticipatorily breached the insurance policy contract prior to Gaitan’s chiropractor IME nonappearance. Furthermore, the trial court applied inapplicable case law in its Order for Final Summary Judgment. (BLAKE and MURPHY, JJ., concur.)

__________________

¹Two IMEs had originally been scheduled March 31, 2004, but only one IME occurred on that date.