20 Fla. L. Weekly Supp. 286a
Online Reference: FLWSUPP 2003ALAYInsurance — Personal injury protection — Insurer was not required by terms of policy to reimburse insured for mileage expenses or lost wages associated with attending independent medical examination
MANUEL ANTHONY ALAYON, Plaintiff, v. LIBERTY MUTUAL INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 12-CC-0123, Division K. November 28, 2012. Scott A. Farr, Judge.
ORDER GRANTING DEFENDANT’S MOTIONFOR SUMMARY JUDGMENT
The detailed factual basis for this case is set forth in the complaint, the motion for summary judgment and in Plaintiff’s filings in response thereto. Briefly, the controversy involves Plaintiff’s requests for reimbursement from Defendant’s insurer for mileage expenses and lost wages in connection with Plaintiff’s attendance at an insurer mandated independent medical examination (IME).
Defendant maintains it is not required, either by Florida Statute or the insurance contract, to pay Plaintiff’s mileage expenses, although it did so. Plaintiff admits he received a mileage payment but disputes the amount. Defendant further maintains its policy does not require it to reimburse Plaintiff’s wage losses for attending an IME, but it gratuitously did so under the work loss provisions of its PIP coverage policy.
Defendant cites Direct General Insurance Company v. Morris, 884 S. 2d. 1077 (Fla. 1st DCA 2004) [29 Fla. L. Weekly D2310a] for two propositions. First, that the PIP statute does not require reimbursement of mileage expenses incurred in attending medically necessary treatment, Second, that whether Plaintiff is entitled to mileage reimbursement is an issue of contract, and further, that the contract at issue does not cover travel expenses to an IME.
Plaintiff correctly argues the portion of Direct General holding travel expenses incurred in connection with necessary medical treatment are not reimbursable under the PIP statute is no longer good law. The Florida Supreme Court in Malu v. Security National Insurance Company, 898 So. 2d 69 (Fla. 2005) [30 Fla. L. Weekly S145a; 30 Fla. L. Weekly S172d], held travel expenses incurred in connection with necessary medical treatment are reimbursable pursuant to Section 627.736(1)(a), Florida Statutes. However, this is not the issue in the case at bar.
The instant case presents two issues, neither of which requires interpretation of the PIP statute as section 627.736(7)(a) Florida Statutes does not require reimbursement of IME travel expenses or wage loss. Rather, each issue is a matter of interpreting the contract between the parties. The first issue is whether the insurance contract requires reimbursement of mileage expenses to attend the IME. On this issue, Direct General is instructive. In that case the contract stated the insured was required to “submit to mental or physical examinations at our expense when and as often as we may reasonably require.”
The contract in this case states in Section III Part E subparagraph 4 that the insured will “submit as often as we reasonably require to mental or physical exams. We will (a) pay for these exams”. The remainder of the section pertains to forwarding copies of the medical report and consequences for failure to attend the exams. The difference between the language of the contract in the instant case and the language in Direct General is significant. The language in Direct General could lead a reasonable person to conclude all expenses associated with the examination would be paid by the insurer. In this case, the language is limited and clear. The contract is specific as to what the insurer will pay, that being the cost of the examination itself. There is no language indicating any other expenses or costs will be paid. Therefore, the insurer is not required to reimburse Plaintiff any mileage expense for attending the IME.
As to the second issue, Plaintiff argues the work loss provision of the contract, limiting lost wages reimbursement to sixty percent of the wages, is inapplicable. Plaintiff is correct on this issue as the portion of the contract containing the work loss provision applies only to the payment of PIP benefits, not attendance at the IME. Therefore, according to Plaintiff, Defendant should have paid one hundred percent of Plaintiff’s wages lost due to attending the IME. Defendant takes the position that no payment whatsoever was due for lost wages as there is not contractual duty for Defendant to pay lost wages for an IME. Defendant is correct that no payment was due for lost wages for the same reason no payment was due for the mileage expense. The only contractual duty to pay imposed upon Defendant is to pay for the examination itself.
WHEREFORE Defendant’s Motion for Summary Judgment is GRANTED. The Court reserves jurisdiction to determine any issues remaining with respect to attorney’s fees.
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