18 Fla. L. Weekly Supp. 45b
Online Reference: FLWSUPP 1801BOUR
Insurance — Personal injury protection — Independent medical examination — Examination under oath — Failure to attend — Because submission to IME and EUO are conditions precedent to coverage for benefits under PIP statute, trial court erred in granting summary judgment in favor of medical provider where it is undisputed that insured failed to submit to IMEs and EUOs — Error to conclude that peer review affidavit filed in opposition to motion for summary judgment was invalid because it was not based on IME
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. HEALTH CARE MEDICAL GROUP, INC., a/a/o CHRISTOPHER BOURNE, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County, Consolidated Appeals. Case Nos. 09-010252 & 09-020194. October 21, 2010. Counsel: Thomas Hunker, United Automobile Insurance Company, Office of the General Counsel, Appellate Division, Miami. Roberts J. Bradford, Jr., Johnson City.
(BOWMAN, Judge.) THIS CAUSE comes before the Court, sitting in its appellate capacity, upon the consolidated appeals by Appellant, United Automobile Insurance Company (herein “United Auto”), of the trial court’s final judgment in favor of Appellee, Health Care Medical Group, Inc. (herein “HCMG”).
United Auto issued a commercial lines policy of insurance to insured, Christopher Bourne, which provided personal injury protection (PIP) benefits. While this policy was in effect, Mr. Bourne was involved in a motor vehicle accident on January 13, 2004. Eleven months after the accident, on December 3, 2004, Mr. Bourne began receiving chiropractic treatment from HCMG. In turn, Mr. Bourne assigned his rights to the PIP benefits to HCMG.
When United Auto failed to pay HCMG’s claims, it filed a three-count complaint alleging: (1) declaratory judgment seeking a PIP log; (2) breach of contract for failure to “timely” provide an “itemized specification” under section 627.736(4)(b), Florida Statutes; and (3) breach of contract for failure to pay personal injury protection (PIP) automobile insurance benefits within 30 days. While the case was pending, HCMG abandoned count I of its complaint involving the PIP log.
In turn, United Auto filed an answer raising two affirmative defenses: (1) failure to appear for two duly scheduled examinations under oath (EUOs); and (2) failure to appear for two duly scheduled independent medical examinations (IMEs) in violation of 627.736(7), Florida Statutes.
Subsequently, HCMG moved for summary judgment on the following issues claiming, as a matter of law, that: (1) HCMG’s were reasonable, related and necessary; (2) that Mr. Bourne’s insurance policy did not require him to attend the IMEs and EUOs; and, (3) that United Auto failed to send a timely “itemized specification.” In response, United Auto filed a written response and cross-motion for summary judgment arguing that the claim was properly denied because Mr. Bourne failed to comply with the EUO and IME requirements of his policy.
In support of its motion, United Auto filed two affidavits in opposition to the motion executed by a claims adjuster/corporate representative and an expert. In his expert affidavit, Dr. Joseph A. Costello, Jr., D.C., opined that, because treatment for the alleged injuries was rendered 11 months after the automobile accident, and Mr. Bourne had preexisting and underlying degenerative changes in his back in neck certain, it was difficult to relate Mr. Bourne’s subjective complaints on December 3, 2004 to the automobile accident that occurred on January 13, 2004, eleven months before. Accordingly, Dr. Costello concluded that the treatment was not reasonable, related or necessary.
According to the record, it is undisputed that Mr. Bourne failed to attend the EUOs and IMEs repeatedly scheduled by United Auto. Indeed, Mr. Bourne’s insurance policy provided, in pertinent part, “Duties in the Event of an Accident, Claim, Suit or Loss,”:
b. Additionally, you and any other involved “insured” must: . . .
(5) Submit to examination, at our expense, by physicians of our choice, as often as we reasonably may require.
c. If there is “loss” to a covered “auto” or its equipment you must also do the following: . . .
(4) Agree to examinations under oath at our request and give us a signed statement of your answers.
Notwithstanding these policy provisions, the trial court granted summary judgment in favor of HCMG on count III, even though Mr. Bourne failed to attend the IMEs and EUOs. Remarkably, it appears that despite Mr. Bourne’s failure to show for an IME, the trial court nevertheless accepted HCMG’s argument that the affidavit of United Auto’s peer review doctor, Dr. Costello, was invalid because it was not based on an IME. Similarly, the trial court found, as a matter of law, that HCMG’s bills were reasonable, related and necessary.
On January 24, 2009, the trial court entered a final judgment awarding HCMG nominal damages of $1.00 on Count II, and as to Count III, awarding damages of $8,354.09 for 80% of the claimed, but unpaid, personal injury protection benefits, plus the statutory interest. Thereafter, the trial court entered an order in favor of HCMG on its motion for attorney’s fees and costs. United Autos’s timely appeals followed and the cases have been consolidated.
Standard of Review:
In Business Specialists, Inc. v. Land & Sea Petroleum, Inc., 25 So. 3d 693, 695 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D199a], the Fourth District Court of Appeal reiterated the standard of review for orders granting summary judgment, as follows “[t]he standard of review for orders granting summary judgment is de novo. Cohen v. Arvin, 878 So.2d 403, 405 (Fla. 4th DCA 2004) [29 Fla. L. Weekly D1392a]. We will affirm a summary judgment ‘only where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.’ ” Id.”
Once the moving party has satisfied its summary judgment burden the burden shifts to the non-moving party, who must then establish the existence of a triable issue. Carbonell v. BellSouth Telecommunications, Inc., 675 So. 2d 705 (Fla. 3d DCA 1996) [21 Fla. L. Weekly D1476a]. The opposing party must come forward with counterevidence sufficient to reveal a genuine issue, and a conclusory affidavit is inadequate to create such an issue. Landers v. Milton, 370 So. 2d 368 (Fla. 1979). While evidentiary matter offered in support of or opposition to a motion for summary judgment must be both relevant and competent as to the issues in the cause, it need not be in the exact form or cover all the preliminaries, predicates, and details which would be required of a witness, particularly an expert witness, if he were on the stand at trial. Holl at 45. Moreover, a movant’s affidavits are viewed strictly, whereas counter-affidavits are read more liberally. Id. The Court must consider all facts in the light most favorable to the non-moving party and draw all reasonable inferences against the moving party. See Albelo v. Southern Bell, 682 So. 2d 1126 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D2165a]. Summary judgment is unavailable if the record raises “even the slightest doubt” as to the existence of an issue of fact. Id.
On appeal, United Auto raises four issues arguing the trial court erred in entering summary judgment in favor of HCMG: (1) on United Auto’s affirmative defenses relating to Mr. Bourne’s failure to submit to an IME and an EOU, as required under the policy; (2) on the issue of reasonable, related and necessary, where United Auto’s affidavits created a genuine issue of material fact; (3) on HCMG’s “itemized specification” (EOB) count; and (4) the trial court erred in awarding HCMG attorney’s fees. In its answer brief, HCMG confesses error as to United Auto’s third issue on appeal concerning the “itemized specification.”
In the present case, the policy provisions coupled with section 627.736(7)(a) and (b), Florida Statutes, give rise to requirements for the injured person to submit to physical examinations, as follows:
(a) 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.
* * *
. . . . (b) 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.
On the facts before this Court, the law currently stands that an insured’s submission to an independent medical examination (IME) and is a condition precedent to coverage for personal injury protection (PIP) benefits under section 627.763(7), which states that the insurer is not liable if the insured unreasonably refuses to submit to an IME. See United Auto. Ins. Co. v. Custer Medical Center, 990 So. 2d 633 (Fla. 3d DCA 2008)(citing § 627.736(7), Fla. Stat.) [33 Fla. L. Weekly D2146a], rev. grt ‘d, Custer Medical Center v. United Auto. Ins. Co., 15 So. 3d 580 (Fla. 2009).
Similarly, an insureds’ failure to submit to examinations under oath (EUOs) is a material breach of a condition precedent to insurer’s duty to provide coverage under a policy. See Amica Mut. Ins, Co. v. Drummond, 970 So. 2d 456 (Fla. 2d DCA 2007) [32 Fla. L. Weekly D2907a].
Here, under the governing policy provisions, particularly where Mr. Bourne did not seek medical treatment until 11 months after the automobile accident and subsequently failed or refused to submit to an IME and an EUO, a question of fact arises surrounding HCMG’s breach of contract claim and United Auto’s affirmative defenses that Mr. Bourne failed to submit to the IME and EUO.
Although this matter will be reversed on the policy issues, the Court also addresses the issue of the trial court’s order granting summary judgment in favor of HCMG on the issue of reasonable, related and necessary (RRN) treatment. On that issue, for the first time on appeal, HCMG defends the correctness of the trial court’s decision arguing that United Auto’s affidavits in opposition on the issue of RRN were conclusory. HCMG spends a great deal of time in its answer brief excusing its failure to raise the issue below as the argument it made below has since been done away with by Fourth District Court’s recent decision in Central Magnetic Imaging Open MRI of Plantation v. State Farm Fire and Casualty, 22 So. 3d 782 (Fla. 4th DCA 2009) [34 Fla. L. Weekly D2396a]. There, contrary to HCMG’s position on it motion for summary judgment, the Fourth District recently concluded that an IME is not required for a peer review report. Such matters, argued for the first time on appeal, will not be considered by the reviewing court. See United Auto. Ins. Co. v. Hollywood Injury Rehab Center, 27 So.3d 743, 744 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D334a] (citing McAllister v. Breakers Seville Ass’n, 981 So.2d 566, 575 (Fla. 4th DCA 2008) [33 Fla. L. Weekly D1256c]. As such, the trial court’s order granting summary judgment in favor of HCMG on this issue is likewise reversed.
Finally, the award of attorney’s fees and costs pursuant to section 627.428, Florida Statutes, is predicated upon entry of judgment in favor if the insured. 627.428(1), Fla. Stat. (1982); see also Hart v. Bankers Fire & Casualty Insurance Company, 320 So. 2d 485 (Fla. 4th DCA 1975). Reversal of the underlying judgment in this case, therefore, mandates reversal of the trial court’s award of attorney’s fees and costs. Accordingly, it is
ORDERED AND ADJUDGED that the trial court’s final judgment and award of attorney’s fees and cost is hereby REVERSED and REMANDED.
