5 Fla. L. Weekly Supp. 805b
Insurance — Error to grant summary judgment in favor of insurer who denied benefits because of insured’s failure to attend independent medical examination where there existed genuine issues of material fact
LAZARO LORENZO BLANCO, Appellant/Petitioner, vs. FORTUNE INSURANCE COMPANY, Appellee/Respondent. 11th Judicial Circuit in and for Dade County, Appellate Division. Case No. 97-228AP. Opinion filed July 31, 1998. Appeal from Circuit Court, Dade County. Harvey L. Goldstein, Judge. Counsel: Robert F. Damian, for Appellant. Diane H. Tutt, for Appellee.
(Before MARTIN D. KAHN, LAUREN L. MILLER, and MAXINE COHEN LANDO, JJ.)
(LAUREN L. MILLER, J.) Appellant, Lazaro Lorenzo Blanco, appeals the decision of the trial court granting summary judgment to Appellee, Fortune Insurance Company. The Appellant was denied subsequent insurance benefits by Appellee because Appellant failed to attend a required Independent Medical Examination (IME). The trial court did not accept an untimely filed affidavit of Appellant even though the Appellant’s affidavit purportedly explained why he did not attend the scheduled IMEs. In addition, Appellee’s affidavit, considered by the trial court, was insufficient as a matter of law. Florida law is clear. Summary judgement should not be granted unless the facts are so crystallized that nothing remains but questions of law. Fisel v. Wynns, 667 So.2d 761 (Fla. SC 1996). Since there are genuine issues of material fact, we reverse and remand for further consideration. (MARTIN D. KAHN and MAXINE COHEN LANDO, JJ., Concur.)
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