21 Fla. L. Weekly Supp. 188b

Online Reference: FLWSUPP 2102ALAVInsurance — Personal injury protection — Independent medical examination — Failure to attend — Insurer waived right to dispute claim based on insured’s failure to attend two IMEs by requiring insured to attend examination under oath after he failed to attend IMEs — Insured’s nonattendance at unilaterally set IMEs as result of being out of country at time of IMEs does not constitute refusal

STEVEN R. CANTOR D.C., P.A. D/B/A PALM BEACH PAIN & REHABILITATION, a Florida Corporation (assignee of Alavena, Juan (BERMAN)), Plaintiff, v. STAR CASUALTY INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 50 2008 CC 012261 XXXXSB RD. October 9, 2013. Honorable Reginald R. Corlew, Judge. Counsel: James D. Underwood, Florida Advocates, Dania Beach, for Plaintiff. Melissa McDavitt, Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, PA, West Palm Beach, for Defendant.

PROPOSED ORDER ON PLAINTIFF’S MOTION FORFINAL SUMMARY JUDGMENT (RE: IME NO-SHOW)

THIS CAUSE came before the Court for hearing on July 25, 2013, on Plaintiff’s Motion for Final Summary Judgment (RE: IME No-Show), and the Court having considered Plaintiff’s motion, applicable law and the arguments of counsel, finds as follows:

This is a case where Plaintiff, a medical provider, performed medical services for claimant Juan Alavena and submitted its bills to Defendant for payment; Defendant refused to pay the majority of Plaintiff’s bills. Plaintiff filed this action to recover payment for the unpaid services. Defendant’s position is that the claimant unreasonably refused to attend two unilaterally scheduled Independent Medical Examinations (IMEs). As this Court previously determined Plaintiff’s services reasonable, necessary, and related, Defendant’s IME no-show defense is the only issue remaining for determination in this action.

The relevant facts are undisputed: Defendant unilaterally scheduled IME appointments for the claimant on October 29, 2007 and November 5, 2007. The claimant was unable to appear for either of those appointments because he was in Peru from October 27, 2007 through November 12, 2007. However, upon his return and at Defendant’s subsequent request, the claimant did attend an examination under oath (EUO) on November 28, 2007.

Plaintiff maintains, and this Court agrees, that 1) when Defendant processed the underlying claim as if no prima facie defect existed by requiring Juan Alavena to attend an EUO after having already missed the two IME appointments, Defendant waived its ability to claim any alleged deficiency for the claimant’s non-attendance at the IMEs, and 2) contrary to Defendant’s position, the claimant did not refuse to attend the IMEs.

Summary judgment is proper where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a] (citing Menendez v. Palms W. Condo. Assn, 736 So. 2d 58 (Fla. 1st DCA 1999) [24 Fla. L. Weekly D1317a]). Summary judgment should be granted where “ ‘the facts are so clear and undisputed that only questions of law remain.’ ” Sulkin, 932 So. 2d at 486 (quoting Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 643 (Fla. 1999) [24 Fla. L. Weekly S71a]).

Defendant, Through Its Conduct, Waived Ability to Challenge IME No-Show

Waiver is defined as the intentional or voluntary relinquishment of a known right, or conduct which infers the relinquishment of a known right. Thomas N. Carlton Estate v. Keller, 52 So. 2d 131, 133 (Fla. 1951); see Miracle Center Assoc. v. Scandinavian Health Spa, 889 So. 2d 877, 878 (Fla. 3d DCA 2004) [29 Fla. L. Weekly D2700b]; Miami Dolphins, Ltd. v. Genden & Bach, P. A. and Ed Gorman, 545 So. 2d 294, 296 (Fla. 3d DCA 1989); Singer v. Singer, 442 So. 2d 1020, 1022 (Fla. 3d DCA 1983).

The Seventeenth Judicial Circuit Appellate Court has held that an insurer who requires an insured to submit to an examination under oath and independent medical examination and fails to alert the insured to a deficiency in the claim has waived the right to dispute the claim based on deficiency the deficiency. United Auto. Ins. Co. v. Mary Brown, 15 Fla. L. Weekly Supp. 893b (Broward County Circuit Court, acting in its appellate capacity, 2008) (Cert. denied January 16, 2009 (Fla. 4DCA)). The Mary Brown court expressly held:

United’s course of conduct constituted “waiver” of such a claim, not only because United failed to notify Ms. Brown of any defect in her claim to allow swift correction, but also because United continued to proceed with examinations as though no prima facie defect in the claim existed, so to further insulate Ms. Brown from being alerted to any technical, but statutorily important, omission from the form. United’s “own actions prevented the Plaintiff from rectifying the alleged claim form defect. . . Accordingly, the trial court did not err in estopping United from raising now, as a defense, the lack of fulfilling a condition precedent, the fulfillment of which United effectively waived by its conduct. . .

Accordingly, the trial court did not err in estopping United from raising now, as a defense, the lack of fulfilling a condition precedent, the fulfillment of which United effectively waived by its conduct.

Id.

This case is on all fours with Mary Brown. Specifically, as in Mary Brown, Defendant’s course of conduct in this case constitutes “waiver” because Defendant proceeded with its own insured’s claim as though no prima facie defect in the claim existed by requiring its insured to attend an EUO AFTER the already missed IME appointments. Based upon Defendant’s conduct in processing this claim, it waived IME No-Show as a bar to payment and cannot now avail itself of the defense where its conduct gave the impression that there was no defect with the claim and whereby Juan Alavena relied on Defendant’s conduct to his detriment.

A finding of waiver is further supported by the fact that Defendant could have at any time, but particularly at the time of the insured’s EUO, rescheduled the IMEs. However, Defendant apparently refused to reschedule as no subsequent IME was ever set; rather, Defendant elected to employ a “gotcha” tactic by denying the claim for non-attendance at the IMEs — only after putting its insured through the unnecessary insurance hoop of attending an EUO.

There Can Be No Unreasonable Refusal To Attend Without Evidence The Claimant Refused To Appear

F.S. s. 627.726(7) governs IMEs in PIP. Section (a) of F.S. s. 627.726(7) authorizes an insurer to conduct IMEs of claimants and provides:

(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. . . .

Subsection (b) of s. 627.726(7) further provides, inter alia:

. . .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.

(Emphasis added.)

The Supreme Court in Custer Medical Center a/a/o Maximo Masis v. United Automobile Insurance Company, 35 Fla. L. Weekly S640a (Fla. 2010) has interpreted F.S. s. 627.726(7)(b) to mean that an insurer has the burden of pleading and proving both 1) that an insured has refused to attend a medical examination and 2) that said refusal was unreasonable in order to cut-off subsequent benefits. Id. The Supreme Court further held that a mere failure to attend a medical examination is not automatically considered a ‘refusal’ under the statute. Id. (citing Lamora v. United Auto. Ins. Co., No. 00-031 AP, 8 Fla. L. Weekly. Supp. 542a, 542 (Fla. 11th Cir. Ct. June 19, 2001).

Custer also reinforced the legal proposition that reasonableness is a question for jury determination. Custer Medical Center a/a/o Maximo Masis v. United Automobile Insurance Company, 35 Fla. L. Weekly S640a (Fla. 2010) (emphasis added). However, the question of whether a failure to attend an examination requested by an insurer is a “refusal” has been determined by courts as a matter of law in cases where the reason(s) for non-attendance are not in dispute. See De Ferrari v. Government Employees Ins. Co., 613 So. 2d 101 (Fla. 3d DCA 1993) (UM case where the Court affirmed summary judgment in favor of the insurer, finding the insured “refused” to attend medical examinations where it was undisputed that the insured would not submit to an exam by an orthopedic surgeon because she was under the care of an internist and a chiropractor) and Griffin v. Stonewall Insurance Co., 346 So. 2d 97 (Fla. 3d DCA 1977) (PIP case where the Court affirmed summary judgment in favor of the insurer, finding the insured “refused” to attend medical examinations where it was undisputed that the insured would not submit to an exam by a doctor selected by the insurer).

In the instant case, the insured’s reason for non-attendance at the IMEs is not in dispute. Plaintiff presented proper record evidence in the form of the Affidavits and deposition transcript of Juan Alavena demonstrating he was out of the country at the time of the IMEs, which prove, without any genuine issue of material fact, there was no refusal by Juan Alavena to attend the IMEs. Conversely, Defendant failed to present to the Court any record evidence to demonstrate a refusal by Juan Alavena. Based upon the foregoing, this Court determines, as a matter of law, that Juan Alavena’s non-attendance at two unilaterally set IMEs as a result of being out of the country at the time of the IMEs does not constitute a “refusal.” Accordingly, this Court need not go further to address the issue of “reasonableness” because without a “refusal,” Defendant’s affirmative defense cannot stand.

There being no genuine issue of material fact that the reason for Juan Alavena’s non-attendance was as a result of being in Peru at the requested times and, therefore, that there was no “refusal,” the Defendant’s affirmative defense fails and final summary judgment in favor of the Plaintiff is proper.

Accordingly, it is hereby ORDERED and ADJUDGED as follows:

1. Plaintiff’s Motion for final summary judgment is GRANTED.

2. Defendant shall go henceforth from this day and take nothing from this action.

3. Plaintiff is entitled to $9,621.09 in underlying benefits, statutory interest in the amount of $5,871.37, plus penalties.

4. Plaintiff is entitled to recover its reasonable attorneys’ fees and costs.

5. This Court reserves jurisdiction as to the amount of attorneys’ fees and costs to be awarded to Plaintiff.

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