26 Fla. L. Weekly Supp. 516a
Online Reference: FLWSUPP 2606VIENInsurance — Personal injury protection — Coverage — Medical expenses — Independent medical examinations — Failure to attend — Where medical provider has filed no evidence to rebut presumption that insured’s failure to attend two IMEs was unreasonable, insurer is no longer liable for subsequent PIP benefits — No merit to argument that insured was not required to submit to chiropractic IME where treatment was provided by medical doctors — Standing — “Irrevocable Medical Lien” is not assignment of benefits — Purported assignment furnished at summary judgment hearing is not considered where document was not timely provided to insurer’s counsel — Where insured unreasonably failed to submit to IMEs, provider’s bills were not overdue, demand letter was premature and invalid, and provider failed to satisfy condition precedent to suit
NUCCI MEDICAL CLINIC, LLC a/a/o Long Vien, Plaintiff(s), v. ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, Defendant(s). County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 15-CC-036205, Division I. February 21, 2018. Joelle Ann Ober, Judge. Counsel: Todd Herman, Law Offices of Jose Depena, P.A., Fort Lauderdale, for Plaintiff. Brian W. Klingel, Reynolds Parrino Spano & Shadwick P.A., St. Petersburg, for Defendant.
ORDER ON DEFENDANT’SMOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come on for hearing on January 23, 2018, on Defendant’s Motion for Summary Judgment, and the Court being fully advised in the premises, it is hereby,
ORDERED and ADJUDGED that Defendant’s Motion for Summary Judgment is GRANTED. The Court further finds as follows:Long Vien Unreasonably Refused/Failed to Appearfor Two Independent Medical Examinations
Long Vien unreasonably refused or failed to attend two independent medical examinations (IMEs) pursuant to §627.736(7), Florida Statutes. Pursuant to §627.736(7)(b), Florida Statutes, Long Vien’s failure to appear for two IMEs creates a presumption that his refusal/failure to attend was unreasonable. Plaintiff has filed no summary judgment evidence to rebut this presumption, and as such, pursuant to §627.736(7)(b), Florida Statutes, Defendant is “no longer liable for subsequent personal injury protection benefits.”
Plaintiff’s argument that the doctors at Plaintiff’s clinic are medical doctors, and therefore Long Vien is not required to submit to a chiropractic IME is irrelevant. The fact that the requested IMEs were chiropractic in nature where Plaintiff’s doctors are medical doctors is of no consequence pursuant to Allstate Ins. Co. v. Garrett, 550 So.2d 22, 25 (Fla. 2d DCA 1989) (“Section 627.736(7)(a) places no limitation upon the type of physician or physicians an insurer may choose to perform an independent mental or physical examination of an injured person covered by PIP insurance. The limitation imposed by the amendment to section 627.736(7)(a) relates only to the type of physician whose report may be used to terminate benefits.”). Further, United Auto. Ins. Co. v. Gaitan, 41 So.3d 268 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D1240d] (genuine issue of material fact existed as to whether insured’s refusal to attend chiropractic IME was reasonable given that she had never seen a chiropractor, and was not making a claim for chiropractic benefits) is inapplicable and distinguishable from the instant case, as there is no dispute that Long Vien received considerable chiropractic treatment prior to the scheduling of the IMEs and prior to receiving treatment from Plaintiff. The language of §627.736(7)(b), Florida Statutes is clear: if an insured unreasonably refuses/fails to attend an IME, the PIP insurer is no longer liable for subsequent PIP benefits, regardless of the type of claim for PIP benefits being made.Plaintiff Lacks Standing
The document entitled “Irrevocable Medical Lien”, which was attached to Plaintiff’s pre-suit demand letter, is not an assignment of benefits. The document furnished by Plaintiff’s counsel at the hearing (over Defendant’s objection thereto) purporting to be an assignment shall not be considered by the Court, as same was not provided to Defendant’s counsel pursuant to Fla.R.Civ.P. 1.510 (adverse party shall deliver no later than 5:00 pm 2 days prior to date of hearing, any summary judgment evidence which the adverse party seeks to rely upon). Further, proper predicate as to the document’s authenticity has not been shown, and as such, the document is inadmissible. Moreover, an equitable assignment does not exist in this matter, as equitable assignments are insufficient under Florida’s PIP Statute pursuant to Sarasota Memorial Hospital (Raul Betancourth) v. Auto Owners Ins. Co., 22 Fla. L. Weekly Supp. 1085b (Fla. 12th Cir. Sarasota Cty. 2015) and Progressive Express v. McGrath Community Chiropractic, 913 So.2d 1281, 1288 (Fla. 2d DCA 2005) [30 Fla. L. Weekly D2622b] and assignments in PIP cases must be written. Id.Plaintiff’s Bills are not “Overdue”
Plaintiff’s bills are not “overdue” and Plaintiff’s pre-suit demand letter is therefore premature and invalid, and therefore, Plaintiff failed to comply with a condition precedent to filing the instant lawsuit. Pursuant §627.736(4)(b), Florida Statutes, Defendant had reasonable proof to establish that it was not responsible for payment of Plaintiff’s bills, and therefore, Plaintiff’s bills were not “overdue”. The reasonable proof relied upon by Defendant is the fact that Long Vien unreasonably refused/failed to submit to two IMEs. Long Vien’s failure or refusal to submit to both the IMEs amounted to an “unreasonable refusal” pursuant to §627.736(7)(b), Florida Statutes. Section 627.736(10) clearly states that a demand letter may not be sent until the claim is “overdue”.Plaintiff’s Pre-suit Demand Letter is Invalid
Plaintiff’s pre-suit demand letter is premature and invalid, and therefore, Plaintiff failed to comply with a condition precedent to filing the instant lawsuit. Section 627.736(10)(b)(1), Florida Statutes requires an assignment giving rights to the claimant to be included with a pre-suit demand letter, if the claimant is not the insured. As Plaintiff is not the insured, and the document attached to Plaintiff’s pre-suit demand letter was an “Irrevocable Medical Lien”, and not an assignment of benefits, Plaintiff’s demand letter is invalid, and therefore, Plaintiff failed to comply with a condition precedent to filing the instant lawsuit.Defendant is not Liable for Attorney’s Fees
The “Irrevocable Medical Lien” states in pertinent part, “In the event legal assistance becomes necessary for NMC to collect on any unpaid bills for medical services rendered to me, whether or not suit is filed, I shall be liable for all of NMC’s attorneys’ fees, costs and interest incurred in the collection efforts for any unpaid debts, whether no not suit is actually filed to the full extent allowable by law.” The “Irrevocable Medical Lien” was signed by Long Vien, on February 20, 2015. As such, based upon the plain language of the “Irrevocable Medical Lien”, Defendant bears no liability for Plaintiff’s attorney’s fees and costs pursuant to §627.428, Florida Statutes, and any claim for attorney’s fees and costs shall be pursued against Long Vien, and not Defendant.
