19 Fla. L. Weekly Supp. 582a

Online Reference: FLWSUPP 1907GUMBInsurance — Personal injury protection — Independent medical examination — Failure to attend — Where insurer knew that insured was represented by counsel but failed to provide counsel with notice of IME or respond to counsel’s request to reschedule IME, insured’s failure to attend IME was not unreasonable

HALLANDALE OPEN MRI, LLC., A/A/O MARSHA GUMBS, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County, Civil Division. Case No. 06-18936 COCE 50. January 13, 2012. Peter B. Skolnik, Judge. Counsel: Emilio Stillo, Weston, and Andrea Jakob, Ft. Lauderdale, for Plaintiff. Rashad El-Amin, North Miami Beach, for Defendant.

ORDER ON PLAINTIFF’S AMENDED MOTION FORSUMMARY JUDGMENT AS TO “IME” NO-SHOW

THIS CAUSE having come before this Court on Plaintiff, HALLANDALE OPEN MRI, LLC., A/A/O MARSHA GUMBS’s, Motion for Summary Judgment as to the “IME no-show”¹, and the Court’s having reviewed the entire Court file; heard arguments; reviewed relevant legal authorities; and been sufficiently advised in the premises, the Court finds as follow:

BACKGROUND

In this Personal Injury Protection case, all issues have been stipulated to by Defendant and Plaintiff in their Joint Pretrial Stipulation except as to the one disputed issue of “whether Marsha Gumbs unreasonably failed to attend a medical examination, without explanation, and after proper notice.” The Plaintiff has filed a Motion for Final Summary Judgment as to this issue. In support of Plaintiff’s Motion for Final Summary Judgment, the Plaintiff has filed and relies upon the affidavit of David Howard, Ms. Gumb’s attorney, the deposition testimony of Marsha Gumbs and the deposition testimony of United Automobile Insurance Company adjuster Saundra Padgett.

Plaintiff contends there are no material facts in dispute as to “whether Marsha Gumbs unreasonably failed to attend a medical examination, without explanation, and after proper notice.” The Plaintiff has established the following through sworn testimony: the Defendant scheduled Marsha Gumbs for a sworn statement under oath (EUO or “Examination under Oath”) and a compulsory or independent medical examination; Ms. Gumbs was represented by counsel; Ms. Gumbs attended the Examination Under Oath on May 5, 2006; and that Ms. Gumbs attorney, David Howard was not sent notification of the Medical Examination. The compulsory medical examination or “IME” was scheduled through JBA Medical, a third party vendor acting as an agent of United Automobile Insurance Company. Ms. Gumbs contacted the IME scheduler, Mariella Leiva of United Automobile’s vendor JBA Medical. Ms. Gumbs was told by Ms. Leiva that the IME would be rescheduled. Mr. Howard sent a letter to the Claims Adjuster for United, Evenlyn Santeliz, stating again that the IME was not rescheduled per request. There is no dispute that the correspondence from the attorney was received by the Defendant. There is no dispute that neither United Auto nor its vendor agent honored the agreement to reschedule the medical examination.

The Plaintiff submits that the Defendant is bound by the stipulation as it relates to the lone issue in the case. It is well settled that after its entry, the pretrial order controls the subsequent course of action. See Bobby Cooke v. Insurance Company of North America, 652 So. 2d 1154 (Ct. of Appeal of Florida, 2nd District 1995) [20 Fla. L. Weekly D387a]. The Court in Bobby Cooke held that “Even if the conditions precedent had been raised in INA’s answer, these issues were abandoned in the pretrial order. One of the primary purposes of a pretrial conference is to simplify the issues for trial. Fla. R. Civ. P. 1.200(b)(1). The pretrial order in this case contains no catch-all language intended to preserve all pleaded issues for trial and specifically enumerates the issues for trial. The stipulation is consistent with the recent holding of the Florida Supreme Court in Custer Medical Center a/a/o Maximo Masis v. United Automobile Insurance Company, 62 So. 3d 1086 (Fla. 2010) [35 Fla. L. Weekly S640a].

The Plaintiff contends the Defendant has not provided proper notice to Ms. Gumb’s attorney. The Plaintiff submits where an insurer has notice that the insured was represented by counsel and where insurer fails to give notice of medical exam to attorney, the failure to attend the medical exam is attributable to the insurer and is not unreasonable refusal. American Skyhawk Insurance Company v. Chacon, 8 Fla. L. Weekly Supp. 593b (11th Cir. Court App. Div.). See also Robinson v. Treasurer of the State of Florida, 676 So.2d 1378 (Fla. 2nd DCA 1996) [21 Fla. L. Weekly D1395a] wherein the Court held that default order revoking license had to be vacated when the Department was aware that licensee was represented by counsel and the Department failed to provide notice to counsel. See also Miami Chiropractic Associates, Inc. (a/a/o Dypson) v. United Automobile Insurance Company, 12 Fla. L. Weekly Supp. 992a, where the Trial Court ruled that where insurer received letter of representation prior to sending notice of EUO and where insurer failed to notify attorney of EUO that failure to appear at EUO was not unreasonable. In this case, David Howard, Esquire, Marsha Gumb’s Attorney was not properly notified of the Independent Medical Examination. It follows then in this case, that by United Automobile not providing notice to counsel, knowing that she was represented and not responding to counsel’s request to reschedule her failure to attend was not unreasonable. Further, there is no merit to the argument that the notice by the attorney and the appointment letters may have crossed in the mail. The insurer is required to send notice once it receives the representation letter. NDNC Neurological Treatment Centers Inc. (a/a/o Jocelia Figeuroa) v. United Automobile Insurance Company, 16 Fla. L. Weekly Supp. 199b (Broward County, Honorable Robert W. Lee, October 25, 2008). It is undisputed the Defendant did not send the notice to the attorney.

The Defendant has not filed anything in opposition to Plaintiff’s Motion which would create a question of fact. Defendant relies on the deposition testimony of David Diaz, the records custodian of JBA Medical, wherein he alleges that JBA Medical did not have file notes containing information demonstrating that Ms. Gumbs attempted to reschedule the IME. The Defendant did not file any affidavits from JBA representative Mariella Leiva. The only sworn testimony presented is that Ms. Leiva agreed to reschedule the examination. David Diaz, the Records Custodian from JBA Medical testified in deposition that JBA intentionally shredded the file (and all files) as well. The following is from page 5, line 3 of the deposition:

Q: Do you have records with you today?

A: No. All the files — our company policy is to shred all the files sometime after completion of the file. So in this case I do not. . . .

David Diaz also testified as follow as it relates to this particular insurer’s request for a specific date for a Medical Examination from page 6, line 4:

Q: And did United Auto request a specific date for the exam to be held ?

A: No, but United’s policy back in 2006 was to set the exam two weeks after the request has been made. Two weeks and two days approximately.

Further, David Diaz testified that JBA Medical did not keep the green cards for the certified notices which were purportedly sent. (p. 19, line 1)

Q: So if you send the letters certified, what is the purpose of sending them certified if you do not keep the return receipt ?

A: We keep the return receipt for a certain period of time. We don’t keep it forever. This file is three years old.

Q: When did you shred the file?

A: Usually we shred all the information inside the file three months post completion of the file and then we shred the entire file approximately a year to a year and a half later.

The Plaintiff maintains that the Defendant has simply not filed anything in opposition which would create a question of fact in this case. The Plaintiff also contends that the Defendant’s agent is responsible for spoliation of evidence as it relates to its vendor agent JBA Medical. Spoliation is defined as “the intentional destruction of evidence and when it is established, the fact finder may draw inference that evidence destroyed was unfavorable to party responsible for its spoliation. . . . The destruction, or the significant and meaningful alteration of a document or instrument.” Black’s Law Dictionary 1401 (6th ed. 1990) (citations omitted). While the intentional destruction of evidence is usually met with the most severe sanction, Metropolitan Dade County v. Bermudez, 648 So. 2d 197 (Fla. 1st DCA 1994) [20 Fla. L. Weekly D44b], the inadvertent destruction [**5] of evidence generally calls for a lesser sanction, unless the opposing party demonstrates that its case is fatally prejudiced by its inability to examine the lost evidence. Sponco Mfg., Inc. v. Alcover, 656 So. 2d 629 (Fla. 3d DCA 1995) [20 Fla. L. Weekly D1566c], rev. dismissed, 679 So. 2d 771 (Fla. 1996) [21 Fla. L. Weekly S365b]. Aldrich v. Roche Biomedical Lab., Inc., 737 So. 2d 1124, 1125 (Fla. Dist. Ct. App. 5th Dist. 1999) [24 Fla. L. Weekly D1336a]. See also, Tramel v. Bass, 672 So. 2d 78 (Fla. 1st DCA 1996) [21 Fla. L. Weekly D935a]. In Delong v. A-Top Air Conditioning, 710 So. 2d 706 (Fla. 3d DCA 1998) [23 Fla. L. Weekly D1133b], the Court affirmed the dismissal of a personal injury action with prejudice, based on spoliation of evidence, where the defendants could not completely set forth their defense without having the opportunity to examine and test evidence inadvertently lost by the plaintiff. Gregory Kurdian, Plaintiff, V. State Farm Mutual Automobile Insurance Company, 8 Fla. L. Weekly Supp. 204a (17th Judicial Circuit, Broward County 2000). United Automobile cannot shield itself from inquiry itself as to the frequency of use of experts through the utilization of a vendor agent. Southern Diagnostics Associates v. Bencosme, 833 So.2d 801 (Fla. 3rd DCA 2002) [27 Fla. L. Weekly D2344d]. In this case, the vendor agent has conveniently shredded the file which may have provided additional evidence regarding Ms. Gumbs’ agreement with the vendor to reschedule the medical examination.

The Defendant has filed no sworn testimony or affidavits directed to the lone issue of whether there was an “unreasonable refusal to attend the medical examination without explanation”. The only evidence presented is that Ms. Gumbs was cooperative, including paying her premiums, providing the Defendant with a sworn statement at their headquarters, reaching an agreement with the vendor agent to reschedule her medical examination to a mutually convenient time which was memorialized by her attorney weeks after the event.

ACCORDINGLY, it is ORDERED AND ADJUDGED that said Plaintiff’s Motion for Final Summary Judgment is hereby GRANTED. Plaintiff shall submit a Final Judgment as to medical benefits reserving as to attorney’s fees and costs.

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¹The Defendant refers to this statutory requirement as an “Independent Medical Examination”. The Plaintiff refers to it as a “compulsory medical examination”.

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