6 Fla. L. Weekly Supp. 469b
Insurance — Personal injury protection — Action against insurer after coverage was denied for failure of injured party to attend independent medical examinations — Notice of initial and rescheduled independent medical examinations sent to plaintiff’s counsel was sufficient — No error in entering summary judgment in favor of insurer
ALONSO LANGARICA, Appellant, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee. 11th Judicial Circuit in and for Dade County, Appellate Division. Case No. 98-266 AP. Opinion filed May 7, 1999. An Appeal from the County Court in and for Miami-Dade County, Jeffrey Swartz, Judge. Counsel: Robert N. Pelier, for Appellant. James K. Clark, for Appellee.(Before D. BRUCE LEVY, SANDY KARLAN, and SCOTT J. SILVERMAN, JJ.)
(PER CURIAM.) The appellant, Alonso Langarica (“Langarica”), seeks the review of a summary final judgment entered below in favor of appellee, State Farm Mutual Automobile Insurance Company (“State Farm”). Appellant was involved in an automobile accident and sustained physical injuries for which he received medical treatment. The medical providers submitted bills for payment to State Farm Mutual Automobile Insurance Company (State Farm) pursuant to its personal injury protection (PIP) insurance policy issued to Mr. Miguel Gonzalez, the owner of the vehicle operated by Langarica. State Farm did not pay the bills. Attorney Jorge Acosta sent a letter to State Farm informing the insurer that he represented Langarica regarding the PIP claim. State Farm, via certified mail return receipt requested, sent a letter to Langarica’s attorney requesting Langarica to attend an independent medical examination (IME) scheduled for October 18, 1995, which he failed to attend. Notice again was mailed to Langarica’s attorney of the rescheduled appointment for November 1, 1995 which Langarica also did not attend. Langarica sued State Farm for denial of personal injury protection benefits. State Farm filed a motion for summary judgment. The trial court granted the motion based on Langarica’s failure to attend the IME appointments. Langarica appealed.
Langarica argues that the trial court erred in granting summary judgment in favor of State Farm as a material issue of fact, concerning whether he received notice of the IME requests, exists which precluded summary judgment. Langarica contends that notice to his attorney of the IME appointments is ineffective as notice to him.
State Farm asserts that pursuant to Rule 2.060(m) of the Florida Judicial Administration Rules the notice to Langarica’s legal representative of the IMEs constituted effective notice to Langarica, therefore, the trial court correctly granted its motion for summary judgment in the absence of a genuine fact issue.
The party moving for summary judgment has the burden of conclusively showing the absence of any genuine issue of material fact. Wills v. Sears, Roebuck & Co., 351 So. 2d 29 (Fla. 1977). Summary judgment should not be granted unless the facts show that nothing remains but question of law. Gause v. First Bank of Marianna, 457 So. 2d 582, 585 (Fla. 1st DCA 1984). In appellate review of a trial court’s ruling on a motion for summary judgment, the appellate court must view evidence in light most favorable to the appellant, and must draw all competing inferences in favor of appellant. Robbins v. Hess, 659 So. 2d 424 (Fla. 1st DCA 1995).
Section 627.736(7)(a)(b), Florida Statutes (1997) provides in pertinent part that if the mental or physical condition of an injured person covered by personal injury protection is at issue, upon request of an insurer, such person shall submit to mental or physical examination by a physician or physicians; and if a person unreasonably refuses to submit to an examination, the PIP carrier is no longer liable for subsequent personal injury protection. See, e.g., U.S. Sec. Ins. Co. v. Silva, 693 So. 2d 593, 596 (Fla. 3d DCA 1997); De Ferrari v. Government Employees Ins. Co., 613 So. 2d 101, 103 (Fla. 3d DCA 1993); Allstate Ins. Co. v. Graham, 541 So. 2d 160, 162 (Fla. 2d DCA 1989) (insurer excused from further liability due to insured’s failure to submit to requested independent examination).
The only issue for decision on this appeal is whether the notice of the two scheduled independent medical exams sent to Langarica’s attorney was sufficient notice to Langarica. We find that notice was sufficient.
The record reveals that State Farm scheduled IMEs for October 18, 1995, and again on November 1, 1995 and sent certified letters to Langarica’s attorney, Jorge Acosta, requesting that Langarica attend the IME appointments. It is undisputed that Langarica was represented by counsel at the time of the requested IMEs, and that Langarica did not attend the two scheduled IMEs. After hearing State Farm’s motion for summary judgment, the trial court made a determination that Langarica had received notice of the IME appointments through his attorney of record, and entered summary judgment in favor of State Farm. In appellate proceedings the decision of a trial court has the presumption of correctness and the burden is on the appellant to demonstrate error. Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979).
The court notes that State Farm’s reliance on Rule 2.060(m) of the Florida Judicial Administration Rules is misplaced as this rule applies to matters concerning the prosecution or defense of any proceeding in court which is not the case here. However, it is well settled in Florida law, and under principles of agency that the attorney serves as agent for his client, therefore notice to the attorney is imputed to the client. See In re Estate of Brugh, 306 So. 2d 599, 600 (Fla. 2d DCA 1975); cf. Cruise v. Graham, 622 So. 2d 37, 39 (Fla. 4th DCA 1993) (attorney acts as the client’s representative, and representations made to the attorney are representations made to that attorney’s client); see Boros v. Carter, 537 So. 1134, 1135 (Fla. 3d DCA 1989) (attorney’s acts are acts of his principal, the client); see also Woodard v. Florida State University, 518 So. 2d 336 (Fla. 1st DCA 1987) (notice of termination sent to employee’s attorney and agent is notice to employee). Langarica does not claim that his attorney did not receive notice of the IME appointments. Therefore, where the evidence before the trial court was capable of one determination, the issue could be resolved by summary judgment.
The trial court properly made a factual determination that notice was sufficient, and as there were no other material fact issues presented, summary judgment was proper in this matter. Accordingly, the judgment of the lower court is AFFIRMED.
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