22 Fla. L. Weekly Supp. 681a
Online Reference: FLWSUPP 2206CRUZInsurance — Personal injury protection — Independent medical examination — Failure to attend — Error to enter summary judgment in favor of insurer based on IME no-show defense where there is disputed evidence as to whether insured received and was able to understand IME notices
MARGATE PHYSICIANS ASSOCIATES, INC., a/a/o Adi Cruz, Appellant, v. UNITED AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. CACE10-1063 (26). January 10, 2011. Counsel: Neil Rose, Bernstein, Chackman, Liss & Ross, Hollywood; and Russel Lazega, Florida Advocates, Dania Beach, for Plaintiff. Michael Niemand, Office of General Counsel, United Automobile, Miami, for Defendant.OPINION
(HENNING, Judge.) THIS CAUSE comes before the Court, sitting in its appellate capacity, upon the timely appeal by Appellant, Margate Physicians Associates, Inc. (herein “Margate”), of the trial court’s final judgment in favor of Appellee, United Automobile Insurance Company (herein “United Auto”). Having considered the briefs filed by the parties and being duly advised in the premises and law, the Court dispenses with oral argument and finds and decides as follows:
United Auto issued a policy of insurance to insured, Adi Cruz, which provided personal injury protection (PIP) benefits. While this policy was in effect, Mr. Cruz was involved in a motor vehicle accident on October 29, 2007. Thereafter, Mr. Cruz began receiving chiropractic treatment from Margate, and in turn, assigned his rights to the PIP benefits to Margate.
Shortly after Mr. Cruz began treatment at Margate, United Auto sent two notices, bearing the same certified mail number, dated November 7, 2007, advising him to attend one of two independent medical examinations (IME) scheduled on November 20, 2007 and November 29, 2007. Mr. Cruz failed to appear for the IME on either date.
In turn, when United Auto denied PIP benefits based upon Mr. Cruz’ refusal to attend either of the IMEs, Margate filed a complaint against United Auto’s alleging its failure to pay the PIP benefits. United Auto answered Margate’s complaint and raised several affirmative defenses, including Mr. Cruz’ failure to submit to properly scheduled and noticed medical examinations.
On October 2, 2009 the trial court heard United Auto’s motion for summary judgment based upon Mr. Cruz’ refusal to attend either IME. The trial court granted United Autos’ motion and entered a final judgment in favor of United Auto on December 15, 2009 and Margate’s timely appeal followed.
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). 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.
Margate raises two issues on appeal: (1) the trial court erred in entering summary judgment in favor of United Auto where there was a genuine issue of material fact as to United Auto’s affirmative defense concerning Mr. Cruz’ failure to submit to a IME; and (2) the trial court erred in determining that Margate’s acceptance of payments for medical treatment rendered through November 9, 2007 was an accord and satisfaction.
On the record before this Court, the trial court entered summary judgment finding that Mr. Cruz unreasonably refused to attend either of the two scheduled IMEs under section 627.736(7)(b), Florida Statutes, which provides in pertinent part, “[i]f a person unreasonably refuses to submit to an examination, the personal injury protection carrier is no longer liable for subsequent personal injury protection benefits.”
This issue was recently addressed by the Florida Supreme Court in its recent decision, Custer Med. Ctr. v. United Auto. Ins. Co., __ So. 3d __, 35 Fla. L. Weekly S640a (Fla. 2010). There, the Court explained that, under the law, United Auto would be required to present evidence to the fact-finder that the patient unreasonably failed to attend a medical examination without explanation after having received proper notice. Important here, the Custer Court continued that a failure to attend a medical examination is not automatically considered a “refusal” under the statute allowing insurer to evaluate personal injury protection (PIP) benefits claim by use of a medical examination. Id.
While United Auto offered evidence that the notice of the IMEs was received by Mr. Cruz, there is conflicting evidence on the record before this Court. In his sworn statement given on December 19, 2007, at which an interpreter was present to translate his answers, Mr. Cruz denied receiving the November 7, 2007 notices advising of the IMEs scheduled by United Auto. Notably, despite the fact that the dates for the two scheduled IMEs had past at the time of Mr. Cruz’ sworn statement, United Auto asked nothing further about his denial. Further, as the notices were in English, the record suggests that there may also be a disputed issue of fact as to whether Mr. Cruz was able to understand the notices. Indeed, there is unrefuted evidence that United Auto did not allow Mr. Cruz’ to reschedule an IME, despite contacting United Auto and explaining that he did not understand the notices.
Under this Court’s de novo review, there appears to be disputed evidence in the record which would preclude summary judgment as to whether Mr. Cruz’ failure to attend either of the IMEs was unreasonable. As the trial court’s final judgment is reversed on the issue of the reasonableness of Mr. Cruz’ failure to attend the IME, it follows that the trial court’s determination on the issue of accord and satisfaction is likewise reversed. Accordingly, it is
ORDERED AND ADJUDGED that the trial court’s final judgment is hereby REVERSED and REMANDED.
