5 Fla. L. Weekly Supp. 335a
Insurance — Personal injury protection — Independent medical examination — Motion for summary judgment based on insured’s failure to attend scheduled IMEs granted — Where no undue inconvenience was raised by facts of record, insurer is entitled to judgment as matter of law, because unreasonable refusal to submit to IME relieves insurer from liability for subsequent PIP benefits — Insurer was not limited to having IME conducted within municipality where insured was receiving treatment — Affidavit, listing reasons why it would have been inconvenient for insured to have attended IME in location selected by insurer, fails to raise factual dispute that decision not to attend was made because location created hardship — Insured’s earlier deposition testimony that had he known insurer was seeking to have him submit to IME, he would have attended, with correspondence communicating refusal to attend second IME, show without dispute that insured’s decision not to attend was not made because location created undue inconvenience — Because insured’s refusal to attend was not predicated on location of scheduled IME, and no other reason was advanced by insured, insured failed to assert any material issues of fact precluding summary judgment
HENRY PARRA, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 97-702 CC 21. December 2, 1997. Cecilia M. Altonaga, Judge. Counsel: Marcos Gonzalez, for Plaintiff. Norma G. Kassner, for Defendant.
FINAL SUMMARY JUDGMENT
THIS CAUSE came before the Court for a hearing on October 29, 1997 on Defendant, United Automobile Insurance Company’s (hereinafter “United”) Motion for Final Summary Judgment. In addition to the Motion and memorandum of law, United filed transcripts of the deposition of the Plaintiff, Henry Parra (hereinafter “Parra”), and corresponding exhibits. The Plaintiff did not specifically file any memorandum or other response in opposition thereto, relying on Plaintiff’s affidavit previously filed on July 15, 1997 submitted for consideration with an earlier summary judgment motion. After carefully considering arguments of counsel, the contents of the court file and applicable law, and finding no material facts to be in dispute, the Motion is GRANTED for the reasons that follow.
UNDISPUTED MATERIAL FACTS
On or about August 2, 1996, Parra entered into an insurance contract with United, effective from August 2, 1996 through August 2, 1997. During the relevant time period, Parra resided at 3241 N.W. 102 Street in unincorporated Dade County, Florida. On August 8, 1996, Parra was involved in an automobile accident while traveling to his sister’s home in Miramar, Florida. Several days after the accident, Parra notified his insurance agent. Subsequently, on or about August 28, 1996, Parra’s counsel notified United of the accident and loss.
United scheduled Parra for an independent medical examination (“IME”) to take place on October 9, 1996, and notified Parra and his counsel of this by letter dated September 24, 1996. The examination was scheduled to take place with Dr. Lawrence Klosky, at 16900 Northeast 19th Avenue in Miami, Florida. Parra failed to appear, and failed to give a reason for his non-appearance or to request that the examination be rescheduled.
In the meantime, between August 9, 1996 through October 8, 1996, Parra sought medical treatment with a Dr. Rodriguez at 235 W. 49 Street in Hialeah, Florida. He also underwent nerve conduction tests by J.C. Rodriguez at 15476 N.W. 77 Court in Miami Lakes, Florida. Parra also sought treatment from several doctors whose offices are located at 20800 Biscayne Boulevard in Miami, Florida.
Upon Parra’s failure to appear at the first scheduled independent medical examination scheduled by United, a second examination was scheduled for October 24, 1996. Notice of this second examination was again sent to Parra and his counsel via certified mail. On or about October 16, 1996, Parra’s counsel notified United that Parra would not appear for the scheduled independent medical examination scheduled for October 24, citing as the reason that Parra had completed his treatment. United later came to know that Parra sought treatment from a Dr. Murphy on October 19, 1996, three days after the date so provided to United in Parra’s counsel’s correspondence indicating a refusal to go to the IME.
Throughout Parra’s course of treatment, he continued to travel to Miramar “frequently” to visit his sister. Because Parra does not understand English, he gave all correspondence received pertinent to the accident and claim to his attorney. Parra admits that he was not aware that his insurance company had scheduled him for the independent medical examinations, but had he known of them, he would have attended them. Seven days after making this admission, Parra signed an affidavit which states he is unfamiliar with North Miami Beach, works in Miami Lakes, and that it would have been a great inconvenience for him to go to North Miami Beach, as he would be afraid of getting lost and does not speak English well.
Medical bills submitted by Parra to United, other than those falling within the insurance policy’s deductible, were not due and owing until after Parra’s failure to attend the scheduled examinations.
PARRA’S FAILURE TO ATTEND THE IME BARS RECOVERY IN THIS ACTION
Pursuant to the policy of insurance issued to Parra, and Section 627.736(7)(a), Florida Statutes, United was within its rights to request that Parra submit to an independent medical examination. Part E of the parties’ insurance policy provides that Parra is to submit to mental or physical examinations at United’s expense as often as United may reasonably require, failing which United will not be liable for subsequent personal injury protection benefits. Similarly, Section 627.736(7)(a), Fla. Stat., provides in pertinent part:
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. The costs of any examinations requested by an insurer shall be borne entirely by the insurer. Such examination shall be conducted within the municipality of residence of the insured or in the municipality where the insured is receiving treatment. If the examination is to be conducted within the municipality of residence of the insured and if there is no qualified physician to conduct the examination within such municipality, then such examination shall be conducted in an area of closest proximity to the insured’s residence….
In the present case, it is undisputed that Parra at all material times resided in unincorporated Dade County, not in a municipality. Nonetheless, United was not thereby limited to having the IME conducted within the municipality where the insured was receiving treatment. In a factually analogous situation, the court in Progressive American Insurance Company v. Belcher, 496 So. 2d 841, 843 (Fla. 5th DCA 1986), interpreted the statutory language to mean that insureds who reside in unincorporated areas may be required to submit to independent medical examinations in any of a cluster of cities comprising the closest metropolitan area. This construction was determined to comport “with the realities of Florida’s urban population patterns.” Id. See also Wicker v. Hartford Accident & Indemnity Company, 404 So. 2d 393 (Fla. 5th DCA 1981) (“area” of closest proximity within meaning of the Section 627.736(7)(a), Fla. Stat., does not mean the geographically closest city).
This position has been adopted in this District. In Frielingsdorf v. Allstate Insurance Company, 497 So. 2d 289 (Fla. 3d DCA 1986), rev. denied, 506 So. 2d 1040 (Fla. 1987), the insured brought a declaratory action for personal injury protection benefits. The insured resided in Key Largo, not a city, and therefore she had to submit to a medical examination “ `in an area of the closest proximity to the insured’s residence’ ” where there is a “ `qualified physician.’ ” Id. at 291 (citation omitted). Citing to Wicker, 404 So. 2d at 393, wherein it was held that the examination must be “ `within the . . . metropolitan area nearest to [the city of insured’s residence] having a population sufficient to justify and sustain a choice of orthopedic physicians. . . [and at a distance from the insured’s residence] . . . not so great as to cause [her] undue inconvenience’ ”, the court in Frielingsdorf held that genuine issues of fact existed concerning the geographic area within which the plaintiff was required to submit to examination, and thus a summary judgment was reversed. Id. at 291-292.
In the instant case, the sole issue raised in the Defendant’s Motion for Summary Judgment, which follows a denial of summary judgment earlier where Plaintiff raised the issue of “undue inconvenience,” see Order on Cross Motions for Summary Judgment entered on July 31, 1997, is whether any factual issues exist that the location selected by United for the IMEs was “unduly inconvenient” for the Plaintiff. If no “undue inconvenience” is raised by any facts of record, then United is entitled to judgment as a matter of law, for an unreasonable refusal to submit to an independent medical examination will relieve an insurer from liability for any subsequent personal injury protection benefits. See Section 627.736(7)(b), Fla. Stat.; Jones v. State Farm Mutual Automobile Insurance Co., 694 So. 2d. 165, 167, (Fla. 5th DCA 1997); Goldman v. State Farm Fire General Insurance Co., 660 So. 2d 300 (Fla. 4th DCA 1995), rev. denied, 670 So. 2d 938 (Fla. 1996); Griffin v. Stonewall Insurance Co., 346 So. 2d 97 (Fla. 3d DCA 1977); De Ferrari v. Government Employees Insurance Co., 613 So. 2d 101 (Fla. 3d DCA 1993), rev. denied, 620 So. 2d 760 (Fla. 1993).
The deposition testimony of Parra, given on July 3, 1997, establishes that Parra was unaware that United was seeking to have him submit to an IME, and if he had known of it, he would have gone. Thereafter, Parra signed an affidavit listing the reasons why it would have been inconvenient for him to have attended an IME in North Miami Beach. The remaining issue to be addressed, therefore, is whether the later-prepared affidavit may be used to create a factual dispute where Parra’s unequivocal responses to questions in his deposition coupled with the correspondence communicating the refusal to attend the second IME, show that he did not make the decision not to attend out of reasons of undue inconvenience.
It is well established that a party who opposes a summary judgment will not be permitted to alter the position of his previous pleadings, admissions, deposition or testimony in order to defeat summary judgment. See Inman v. Club on Sailboat Key, Inc., 342 So. 2d 1069 (Fla. 3d DCA 1977); Stanford v. CSX Transp., Inc., 637 So. 2d 37 (Fla. 2d DCA 1994), rev. denied, 645 So. 2d 451 (Fla. 1994). Here, the subsequent affidavit contradicts the earlier deposition testimony, where Parra stated that had he known of the IME, he would have attended the same. Moreover, even if not directly contradictory to the deposition testimony, see, e.g., Bell v. Bailey, 639 So. 2d 1063 (Fla. 3d DCA 1994), the affidavit deals with a hypothetical situation, a situation that permits the insured to speculate that had he known of the IME, it would have been a hardship. It fails to raise a factual dispute that the decision not to attend was made, in fact, because the location created a hardship. Here, Parra’s counsel’s response to the second scheduled IME was that Parra would not attend because he had finished his course of treatment. Here, Parra’s deposition testimony, as well as his affidavit, show undisputably that Parra’s decision not to attend the IMEs was not made as a result of any hardship the location of the doctor’s office would have caused him. Thus, because Parra’s refusal to attend was not predicated on the location of the scheduled IME, and no other reason has been advanced by Parra,1 Parra has failed to assert any material issues of fact precluding a summary judgment. Accordingly, United’s Motion for Summary Judgment is GRANTED.
In accordance with the foregoing, Plaintiff, Henry Parra, shall take nothing by this action and go hence without day.
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1Parra has not insisted in these proceedings that his refusal to attend was based on the reason proffered in his counsel’s contemporaneous correspondence communicating the refusal to attend.
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