5 Fla. L. Weekly Supp. 337a

Insurance — Personal injury protection — Independent medical examination — Insurer may refuse to pay PIP benefits for claims that it had received but not yet paid if an insured unreasonably fails to attend IME scheduled within 30 days after claim is submitted — Insurer cannot extend statutory period by scheduling IME after thirty day period has expired — Where insurer failed to schedule IME until after respective 30-day period expired for first three bills submitted by insured, summary judgment granted as to these claims, as it was impossible for insured to unreasonably refuse to attend scheduled IME — Insurer acted within parameters of statute by refusing to pay those bills received after scheduled IME — Summary judgment denied as to remaining claims where insurer requested IME within 30 days of receipt of each of claims

TANYA DIGERONIMO, Plaintiff, v. AMERICAN INTERNATIONAL INSURANCE COMPANY, Defendant. County Court in and for Dade County. Case No. 96-4426 CC 23. August 28, 1997. Linda Singer Stein, Judge. Counsel: Steven Singer, for Plaintiff. Gregory Hengber, for Defendant.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

THIS CAUSE came before the Court on Plaintiff’s Motion for Summary Judgment. After careful consideration of the motion, evidence, memoranda, presiding over oral argument and being fully advised, this Court’s ruling is set forth below.

Here, the parties stipulate that the following bills were received by Defendant on the dates and for the amounts set forth: (1) $620 on 5/18/95; (2) $200 on 6/7/95; (3) $60 on 6/8/95; (a) $1,110 on 7/6/95; (5) $325 on 7/6/95; (6) $800 on 7/6/95; (7) $60 on 7/6/95; (8) $125 on 8/8/95. Defendant, through its agent, sent three notices to Plaintiff to schedule Independent Medical Examinations (“IME”). The first notice, dated June 28, 1995, scheduled the exam for July 14, 1995. Plaintiff failed to attend any of those IMEs.¹

The Third District Court of Appeal in U.S. Security v. Silva, 693 So. 2d 593, 595 (Fla. 3d DCA 1997) recently held that “an unreasonable refusal of a claimant to submit to an examination alleviates the insurer of any further liability for PIP benefits….the I.M.E. requirement of Section 627.736(7)(b) is intended to give insurers an opportunity to determine the legitimacy of a claim so that an appropriate decision can be made as to whether benefits should be paid.” Id. at 596. This binding precedent permits the insurer to refuse any claims received within the prior 30 days if Plaintiff unreasonably refuses to attend an IME. See Silva, 693 So. 2d at 595, citing De Ferrari v. Government Employees Ins. Co., 613 So. 2d 101 (Fla. 3d DCA 1993) (IME is a condition precedent to coverage).

However, this Court finds that subsection (7)(b) of Fla. Stat. 627.736 must be read in pari materia with subsection (4)(b). Although an insurer may refuse to pay personal injury protection benefits for claims that it had received but not yet paid if an insured unreasonably fails to attend an IME scheduled within the 30 days after the claim is submitted, Silva, 693 So. 2d at 595 (“the `benefit’ the statute refers to is the payment of medical bills and not medical treatment”), an insurer can not extend the statutory period by scheduling an IME after the thirty day period has already passed. See Fla. Stat. 627.736(4)(b) (PIP benefits “overdue if not paid within 30 days after insurer is furnished written notice of the fact of a covered loss and of the amount of same”) (emphasis added).

In this case, as the Plaintiff submitted several bills to Defendant at different times, each submission must be considered as a separate claim, subject to separate thirty (30) day periods to pay. There is no dispute that the first three bills were received by Defendant on (1) May 18, (2) June 7 and (3) June 8, 1995, respectively. However, Defendant did not even request an IME until its June 28th letter which scheduled the IME for July 14th. Accordingly, as Defendant failed to set the IME until after the respective 30-day period expired for the above-mentioned three claims, it was impossible for Plaintiff to unreasonably refuse to attend the IME. Therefore, the motion for summary judgment is GRANTED as to the claims (1), (2) and (3) noted above in the amounts of $620, $200 and $60.

Regarding the remaining bills, the Court finds that Defendant acted within the parameters of the statute, as interpreted by Silva, by refusing to pay those bills received between 7/6/95 through 8/8/95. Defendant requested Plaintiff to attend an IME within 30 days of the receipt of each of these five bills, thus, its decision to terminate benefits was made in compliance with the Silva Court’s construction of Fla. Stat. 627.736(7)(b).² Based upon the foregoing, Plaintiff’s Motion for Summary Judgment as to claims (4) through (8) is DENIED.³

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¹Plaintiff argues that she did not unreasonably refuse to attend the IMEs because the first three exams were scheduled by Professional Evaluation Group of Florida, not Defendant. This Court finds that Professional Evaluation Group was Defendant’s authorized agent and, therefore, the IMEs were properly noticed.

²The Court notes that Defendant’s motion for summary judgment, which was brought on the basis that Plaintiff unreasonably refused to attend an IME, was ruled upon by this Court prior to the binding holding in Silva.

³Those bills, as numbered on page 1 of this Order are: (4) $1,110 on 7/6/95; (5) $325 on 7/6/95; (6) $800 on 7/6/95; (7) $60 on 7/6/95; and (8) $125 on 8/8/95.

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