18 Fla. L. Weekly Supp. 89a
Online Reference: FLWSUPP 1801BART
Insurance — Personal injury protection — Independent medical examination — Failure to attend — Where insured failed to attend four properly noticed and scheduled IMEs, medical provider may not pursue PIP benefits, even for treatment rendered and billed prior to scheduled IMEs
MEDICAL CONSULTING CENTER, INC., (a/a/o Lourdes Bartolome), Plaintiff, v. INFINITY INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 09-4724 SP 26 (02). August 4, 2010. Honorable Gladys Perez, Judge. Counsel: Tahya J. Fuenmayor, Law Office of Neil Gonzalez and Associates, for Plaintiff. Leslie M. Goodman, Law Office of Deborah P. Izquierdo, Miami, for Defendant.
ORDER GRANTING DEFENDANT’S FINAL SUMMARY JUDGMENT AND ENTERING FINAL JUDGMENT FOR DEFENDANT
THIS CAUSE, came before the Court on Tuesday, August 3, 2010, for hearing on the Defendant’s Motion for Final Summary Judgment. The Court, having reviewed the submissions by Defendant, noting the failure by the Plaintiff to submit any opposition to Defendant’s Motion, having heard arguments of both parties at the hearing, and the Court being otherwise fully advised in the premises, makes the following findings of fact and conclusions of law.
Undisputed Facts
The material facts in this case are not in dispute. Lourdes Bartolome was involved in an automobile accident on August 17, 2008. At the time of the accident, Ms. Bartolome was insured by Infinity Insurance Company (“Infinity”). Medical Consulting Center, Inc. (“Medical Consulting”) provided treatment to Ms. Bartolome from August 27, 2008 through September 19, 2008. Infinity denied the claim based upon Ms. Bartolome’s failure to appear at four Independent Medical Examinations (IMEs) and two Examinations Under Oath (EUO).
Infinity filed the instant motion for summary judgment and argued that Ms. Bartolome had breached the insurance contract by failing to appear at the IMEs and EUOs, thereby failing to comply with conditions precedent to the contract. There was no explanation as to why Ms. Bartolome failed to attend the IME appointments. Consequently, Infinity denied the Personal Injury Protection Benefits.
Conclusions of Law
Initially, it must be noted that this court did not reach the merits of the EUO no-shows. The central question for this Court’s consideration is whether an insured’s failure to attend a properly noticed and scheduled IME relieves the insurer of liability. The Court must answer that question in the affirmative.
Section 627.736 (a), Florida Statutes, (2008) provides, in relevant part:
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.
Section 627.736 (b) further 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.
Infinity’s policy of insurance contains the following language:
Conditions
Action Against Company
“No action shall lie against us unless there has been full compliance with all terms of this insurance contract. . .”
Proof of Claim; Medical Reports and Examinations; Payment of Claim Withheld
“Such person shall submit to mental or physical examinations at our expense when and as often as we may reasonably require. . . If that person unreasonably refuses to submit to an examination we will not be liable for subsequent personal injury protection benefits.”
In United Auto. Insurance Company v. Custer Medical Center., 990 So. 2d 633, 635 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D2146a], rev. granted 15 So. 3d 580 (Fla. Aug. 31, 2009), the Court stated that “[a] plain reading of [the] statute makes [it] clear that an insured’s submission to an IME is a condition precedent to coverage.” Id. (citing Goldman v. State Farm Fire Gen. Ins. Co., 600 So. 2d 300, 304 n. 5 (Fla. 4th DCA 1995) [20 Fla. L. Weekly D1844a]). Here, Infinity’s request for Ms. Bartolome to appear on four separate occasions for IMEs was more than reasonable. This Court finds that the Infinity was within its right to schedule the IME appointments in order to determine if the claim submitted by the Plaintiff should be paid. Infinity had scheduled three different IME appointments for Ms. Bartolome when the payment became due. However, because the she failed to comply with conditions precedent to filing suit and to coverage, the medical provider may not pursue the benefits, even for treatment rendered and billed for prior to the scheduled IME.
Accordingly, It is hereby
ORDERED and ADJUDGED:
Defendant’s Motion for Final Summary Judgment is hereby GRANTED.
FINAL JUDGMENT
Pursuant to the above Order granted Defendant’s Motion for Final Summary Judgment, Final Judgment is hereby entered in favor of INFINITY INSURANCE COMPANY, and against Medical Consulting Center, Inc. (a/a/o Lourdes Bartolome). Medical Consulting Center, Inc. (a/a/o Lourdes Bartolome) shall take nothing from this action, and Defendant, INFINITY 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.
