20 Fla. L. Weekly Supp. 947a

Online Reference: FLWSUPP 2010TELUInsurance — Personal injury protection — Independent medical examination — Failure to attend — Appeals — Law of case — No merit to insurer’s claim that summary judgment should have been granted in its favor on remand from appellate panel of circuit court that reversed summary judgment, which had been granted in favor of medical provider on basis that insurer failed to allege or establish that insured’s nonattendance at IME was unreasonable refusal, where issue of reasonableness of refusal to attend IME has not been determined as law of case since circuit court did not remand with instructions to grant summary judgment in favor of insurer and district court’s subsequent denial of petition for second-tier certiorari review is not opinion on merits — Error to again enter summary judgment in favor of provider on remand where there is factual dispute about reasonableness of insured’s refusal to attend IME

UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. COMPREHENSIVE HEALTH CENTER A/A/P ERLA TELUSNOR, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 12-056 AP. L.T. Case No. 07-20457 CC 05(2). August 5, 2013. An Appeal from a decision rendered by the County Court, Civil Division, Miami-Dade County. Counsel: Thomas Hunker, United Automobile Insurance Company, for Appellant. Marlene S. Reiss, P.A., for Appellee.

QUASHED. 40 Fla. L. Weekly D1839a (United Automobile Ins. Co. v. Comprehensive Health Ctr. (Fla. 3DCA), Case No. 3D13-2232, 8-5-2015

(Before BAILEY, WALSH and CABALLERO, JJ.)

(CABALLERO, J.) THIS CAUSE came before the trial court on appeal from a summary judgment granted to Plaintiff-Appellee, Comprehensive Health Center (“Comprehensive”). This is the second appeal in this matter.

Comprehensive treated an insured of Defendant-Appellant United Automobile Insurance Company (“United”), Erla Telusnor for injuries resulting from a car accident in September of 2005. Telusnor assigned her rights to payment of the medical bills to Comprehensive, and Comprehensive presented the bills to United. United refused to pay Telusnor’s medical bills and Comprehensive sued.

United raised the defense that Telusnor failed to perform all of the conditions precedent to recovery. United asserts that pursuant to Florida law and the policy of insurance that submission to, and attendance at an Independent Medical Examination is a condition precedent to filing suit. On two separate occasions Telusnor failed to attend duly noticed and properly scheduled Independent Medical Examinations (IMEs) as required by section 627.736 and the contract of insurance. United asserted it was no longer liable for any subsequent medical bills subsequent to the failure to attend the October 12, 2005 IME.

Comprehensive countered that United failed to allege that Telusnor unreasonably refused to attend the IME, and moved for summary judgment based on its affidavits of the treating physicians and records custodians. United in support of its own motion for summary judgment based on an IME no-show defense relied on the affidavit of its adjuster Theresa Rozenberg, who attested that Telusnor was properly noticed through her attorney and failed to attend. Telusnor countered that her attorney failed to advise her that the IME was noticed. After a May 21, 2008 hearing on Comprehensive’s motion, the trial court granted the motion and entered final judgment in favor of Comprehensive. United appealed to an appellate panel of this circuit court which reversed the final judgment on October 21, 2009. See United Auto. Ins. Co. v. Comprehensive Health Ctr. a/a/o Erla Telusnor, 16 Fla. L. Weekly Supp. 1143a (Fla. 11th Jud. Cir. Ct., Oct. 21, 2009) [hereinafter “Telusnor”].

Comprehensive sought second-tier certiorari review in the Third District, which denied discretionary jurisdiction. See Comprehensive Health Ctr., Inc. v. United Auto. Ins. Co., 56 So. 3d 41 (Fla. 3d DCA 2010) [36 Fla. L. Weekly D54b]. Comprehensive sought discretionary conflict jurisdiction with the Florida Supreme Court after the Florida Supreme Court decided Custer Medical Ctr. a/a/o Maximo Masis v. United Auto. Ins. Co., 62 So. 3d 1086 (Fla. 2010) [35 Fla. L. Weekly S640a]. The Florida Supreme Court declined to consider the case. The case was remanded, and the last mandate in effect was that of the prior appellate panel of the circuit court which remanded with “further proceedings consistent with this opinion.” Telusnor, supra.

On remand, Comprehensive moved again for summary judgment asserting that United’s IME defense was invalid, and relied on authority from Custer that the IME no-show defense was not a valid defense. The hearing took place on November 2, 2011. The trial court entered an order granting Comprehensive’s second summary judgment motion on the basis that United failed to allege or establish that Telusnor’s nonattendance at the IME constituted an unreasonable refusal. The trial court determined that pursuant to the reasoning of Custer, IME attendance was a condition subsequent not condition precedent. Under Custer, the trial court determined that the insurance company bears the burden of showing that the insured unreasonably refused to attend an IME examination. As United continued to rely on the affidavit of its adjuster, which failed to address the reasonableness of Telusnor’s nonappearance, the trial court entered final judgment for Comprehensive on December 23, 2011. This appeal followed.

The standard of review concerning the grant of a summary judgment by a lower court, is de novo. Sierra v. Shevin, 767 So. 2d 524 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D1605a]. The reviewing court must determine whether there was any genuine issue of material fact and whether the lower court granted the summary judgment correctly as a matter of law. Volusia County v. Aberdeen at Ormand Beach, L.P., 760 So. 2d 126 (Fla. 2000) [25 Fla. L. Weekly S390a]. The movant at all times carries the burden of clearly and unequivocally establishing a right to summary judgment. Smith v. Musso, 151 So. 2d 475, 477 (Fla. 2d DCA 1963).

The actual burden of proof requires the moving party to show the absence of any genuine issue of material fact; all doubts and inferences must be resolved against the movant. Holl v. Talcott, 191 So. 2d 40, 43-44 (Fla. 1966)

United contends that based on the law of the case, its motion for summary judgment should have been granted. However, in the first appeal of the case to another appellate panel of this circuit, the panel did not remand the matter with specific instructions to grant summary judgment in favor of United.¹ The prior panel merely held that summary judgment should not have been granted to Comprehensive. Telusnor, supra (“As such, summary judgment for the provider on this issue was improper.”).

The district court’s decision examined whether the circuit court’s decision departed from the essential requirements of the law, and finding it did not, denied the petition for writ of certiorari. Comprehensive Health Ctr., Inc., 56 So. 3d at 43 (Fla. 3d DCA 2010). The district court made a number of statements while doing so. In the context of a denial of certiorari the Florida Supreme Court has stated, “[W]e point out here again that denial of certiorari by an appellate court cannot be construed as a determination of the issues presented in the petition therefor[e] and cannot be utilized as precedent or authority for or against the propositions urged or defended in such proceedings.” Southern Bell Tel. & Tel. Co. v. Bell, 116 So. 2d 617, 619 (Fla. 1959) (citing Collier v. City of Homestead, 81 So. 2d 201 (Fla. 1955)). A denial of certiorari is not to be construed as an opinion on the merits. Shaps v. Provident Life & Acc. Ins. Co., 826 So. 2d 250, 253 (Fla. 2002) [27 Fla. L. Weekly S710a]. Therefore, we do not find the unreasonable refusal issue as having already been decided as the law of the case.

As to the second summary judgment, the trial court was confronted with a difficult situation: United had relied on the no-show as constituting a failure to comply with a condition precedent to coverage, yet never truly alleged in its affirmative defense that Telusnor unreasonably refused to attend the IME. Florida Rule of Civil Procedure 1.110(d) provides that “a party shall set forth affirmatively . . . any . . . matter constituting an avoidance or affirmative defense.” Application of this rule means “that affirmative defenses must be pleaded or they are considered waived.” Kersey v. City of Riviera Beach, 337 So. 2d 995, 997 (Fla. 4th DCA 1976) (citations omitted); see also Fla. R. Civ. P. 1.140(b) (“Every defense in law or fact to a claim for relief in a pleading shall be asserted in the responsive pleading[.]”). United was required to plead and prove unreasonable refusal if it intends to prevail on this defense. See Custer, 62 So. 3d at 1097. While United moved to amend its answer and affirmative defenses after remand and after the decision in Custer, it did not seek to amend to allege unreasonable failure to attend the IME. The trial judge denied the motion to amend, but since the amendment did not touch on the dispositive issue here, the denial does not affect this outcome. We are perplexed as to why United continually failed to address the reasonableness issue of the IME attendance after Custer, even in the face of a second summary judgment motion.

United has argued that because the dicta in the district court’s opinion regarding the refusal issue is presently the law of the case any deficiencies in pleading its affirmative defense can no longer be in issue. We disagree.

We understand the problem faced by the trial court when it chose to grant summary judgment to Comprehensive. Nonetheless, even where affirmative defenses are not “artfully” pleaded, it is error to rush to strike affirmative defenses and grant a summary judgment, where there is a factual dispute about a genuine affirmative defense. Hulley v. Cape Kennedy Leasing Corp., 376 So. 2d 884, 885 (Fla. 5th DCA 1979). This record remains silent after two appeals as to the reasonableness or unreasonableness of Telusnor’s failure to attend the IME, and therefore summary judgment is inappropriate.

United will face a serious problem at the trial phase if it continues to proceed merely on allegations of non-attendance without pleading and proving how the nonattendance was an unreasonable refusal. For example, in Universal Medical Center of South Florida v. Fortune Ins. Co., 761 So. 2d 386, 387 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D1068a], the insurer prevailed in a bench trial on allegations of mere non-attendance, but the district court on review observed that the evidence showed that the insured’s counsel did not receive timely notice, and that counsel tried to cancel the IME. As a result, the Third District reversed the judgment on the grounds that there was not “competent substantial evidence that the insured unreasonably refused to attend his first scheduled IME” and rejected Fortune’s arguments that mere non-attendance was a satisfactory defense. Id.

We REVERSE the grant of the second summary judgment and final judgment in favor of Comprehensive, and this cause is REMANDED to the trial court for Trial. We would further note that this opinion should be confined to the unusual facts of this case and should be of limited precedential value, given the conflict between the operational pleadings and the language of the appellate rulings.

REVERSED and REMANDED. (BAILEY and WALSH, J.J., concur.)

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¹The prior panel (as well as the district court on second-tier certiorari review) noted that under Florida Rule of Civil Procedure 1.080(b), service to the attorney of the IME notice constitutes notice to the client. This action had not commenced when United sent this notice to the attorney. Florida Rule of Civil Procedure 1.010 indicates that the civil procedure rules apply to actions of a civil nature and special statutory proceedings. If it were the case that the civil rules did apply presuit, then the result in Southern Group Indem., Inc. v. Humanitary Health Care, Inc., 975 So. 2d 1247 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D752a]would have been different: in Humanitary Health Care, another appellate panel of this circuit affirmed a trial court’s grant of summary judgment on a declaratory judgment count seeking presuit discovery of an insurer’s PIP payout logs. The Third District granted a petition of writ of certiorari and quashed the circuit court’s decision, finding that the No-Fault statute did not provide for discovery of a PIP payout log presuit. Humanitary Health Care, 975 So. 2d at 1250.

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