6 Fla. L. Weekly Supp. 439a
Insurance — Personal injury protection — Insurer’s motion for summary judgment on basis of insured’s unreasonable refusal to attend compulsory medical examination is denied based upon finding that record does not conclusively establish that insured’s failure to attend two scheduled medical examinations was unreasonable — Issue of fact remains as to whether insured’s alleged lack of transportation excused his failure to attend first examination and whether insured received notice of second examination — Fact that notice was received by insured’s counsel not basis for granting summary judgment in favor of insurer
HELGER GUZMAN, Plaintiff, vs. CONNECTICUT INDEMNITY COMPANY, Defendant. County Court of the 13th Judicial Circuit in and for Hillsborough County. Case No. 97-20137 SC, Division H. March 1, 1999. James M. Barton, II, Judge. Counsel: Meena M. Lopez, Timothy A. Patrick, P.A., for Plaintiff. Kathy J. Maus, Butler, Burnette and Pappas, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE coming before the Court on Defendant’s Motion for Summary Judgment, and the Court having considered argument of counsel, it is hereby ORDERED AND ADJUDGED:
1. In this case where Plaintiff seeks personal injury protection (PIP) benefits under her policy of insurance with Defendant, Defendant scheduled Plaintiff for a statutorily required compulsory medical examination. Plaintiff failed to appear, claiming in his affidavit that he had no transportation because his automobile was being repaired.
Defendant scheduled a second examination and sent notice to Plaintiff and his counsel. Plaintiff failed to appear for the second scheduled examination, claiming that he never received notice. The record reflects that Plaintiff’s counsel did receive notice of the examination, but did not communicate the time, date and the place of the examination to Plaintiff.
2. An insured’s unreasonable refusal to attend a compulsory medical examination is a complete defense to an action for PIP benefits. F.S. 627.737(7)(b); Allstate Ins. Co. v. Graham, 541 So. 2d 160, (Fla. 2d DCA 1989); U.S. Sec. Ins. Co. v. Silva, 693 So. 2d 593 (Fla. 3rd DCA 1997). Under certain factual circumstances, the court may conclude as a matter of law that the insured’s refusal to attend the medical examination was unreasonable. Patrick v. State Farm Fire and Cas. Co., (Fla. 13th Cir.App., Case No. 97-6936 Div. B, Opinion filed November 3rd, 1998).
Here, the record does not conclusively establish that Plaintiff’s failure to attend the two scheduled medical examinations was unreasonable. As for the first examination, there is an issue of fact as to whether Plaintiff’s alleged lack of transportation excused his failure to attend. As to the second examination, although Defendant established that notice was mailed to Plaintiff, Plaintiff has sworn that he never received it.
Defendant relies upon the fact that Plaintiff’s attorney received notice, and that knowledge of the attorney must be attributed to Plaintiff. In Re: Estate of Brugh v. Freas, 306 So.2d 599 (Fla. 2d DCA 1975); Tomkins v. Jim Walter Homes, Inc., 656 So. 2d 963 (Fla. 5th DCA 1995); See also, Griffith v. Investment Co., 110 So. 271 (1926).
The cases cited by Defendant on this point are factually distinguishable. All of the cases cited by Defendant involved actions and omissions of an attorney occurring after suit had been filed. More significantly, courts have noted that the policy underlying the rule that knowledge of an attorney is imputed to the client focuses on governance of counsel and is not intended to punish litigants. Beasley v. Girten, 61 So. 2d 179 (Fla. 1952); Garland v. Dixie Ins. Co., 495 So. 2d 785 (Fla. 4th DCA 1986).
3. Since there is an issue of fact as to whether Plaintiff’s failure to attend the two compulsory medical examinations was unreasonable, Defendant’s Motion for Summary Judgment is DENIED.
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