6 Fla. L. Weekly Supp. 354b
Insurance — Personal injury protection — Independent medical examination — Insured’s refusal to submit to two IMEs was unreasonable and without proper justification where IME was scheduled at doctor’s office that was between three and five miles from insured’s residence, insured did not provide adequate notice of intent to refuse to submit to IME, and reasons given by insured for refusal to submit to IME were arbitrary and insufficient to justify noncompliance — Because there were no qualified physicians within municipal limits of insured’s residence, insurer was entitled to schedule IME outside insured’s residence in a location reasonably accessible to insured — Insured’s untimely attempt to raise issue of doctor’s office being located in what he was told was high crime area is ineffectual — Insurer is not obligated to pay for medical bills which were received after insured’s first scheduled IME because insured unreasonably refused to appear for two properly scheduled independent medical examinations
Reversed at 8 Fla. L. Weekly Supp. 164a
JULIAN JANNA, Plaintiff, v. AMERICAN SKYHAWK INSURANCE COMPANY, Defendant. County Court of the 11th Judicial Circuit in and for Miami-Dade County. Case No. 98-12426 (05) 6. March 29, 1999. Roger A. Silver, Judge.
FINAL ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND SUMMARY JUDGMENT FOR DEFENDANT
THIS CAUSE came before the Court on Defendant’s Motion for Summary Judgment and the Court having thoroughly reviewed the arguments of counsel, memoranda of law, and being fully advised in the premises finds:
FINDINGS OF FACT
The undisputed facts are as follows: On August 27, 1998, Plaintiff filed his Complaint seeking to compel Defendant to pay Personal Injury Protection (“PIP”) benefits pursuant to the insurance policy that was in full force.1 In the Complaint, Plaintiff alleges that on January 9, 1998, Plaintiff was driving a motor vehicle that was struck by another vehicle in Dade County. As a result of the collision, Plaintiff sustained injuries (though they are not described2) and incurred medical expenses.3 Plaintiff further contends that he provided Defendant with timely notice and has otherwise performed all conditions precedent to recover under the policy. Yet, Defendant refused to pay the claim and the instant suit resulted.
Defendant counters that Plaintiff is barred from any recovery because of his unreasonable refusal to submit to two (2) independent medical examinations (“IME”) as required by Fla. Stat. § 627.736(7) (1998)4 and the underlying insurance policy. For the purpose of evaluating the extent of injuries allegedly sustained in the automobile accident of January 9, 1998, on February 27, 1998, Defendant made a written request that Plaintiff submit to an IME by Dr. Craig Brass (a chiropractor whose office is between three and five miles from Plaintiff’s residence) on March 9, 1998, at 10:00 a.m. Plaintiff failed to appear for the examination. On that same day, another IME was set up for Plaintiff with the same chiropractor for March 23, 1998, at 10:00 a.m. Plaintiff again failed to appear and Plaintiff admits having received notice of the examinations. All medical bills for Plaintiff’s care were received by Defendant after March 9, 1998. Consequently, Defendant argues that because Plaintiff’s medical bills were received after Plaintiff had unreasonably refused to attend an IME, Defendant is not obligated to pay Plaintiff’s bills.
In his January 4, 1999, Affidavit, Plaintiff contends that: (a) he did not attend the IMEs because they were scheduled in unincorporated Dade County and therefore not within the municipal limits of the City of Miami (where his alleged residence is and where he was being treated); (b) he had been told that Dr. Brass’ office was located in a high crime area (the first time this assertion is made); and, (c) that there were numerous other chiropractors nearer to his residence or treating physician’s office where the IME could have been scheduled.
However, Plaintiff’s residence is in El Portal and as Defendant argues, there are no qualified doctors in that municipality.
CONCLUSIONS OF LAW
In order to determine if the appointments set by Defendant complied with the statutory mandate, in Wicker v. Hartford Acc. & Indem. Co., 404 So. 2d 393 (Fla. 5th DCA 1981), the court held that “an area” within the meaning of the statute does not mean the geographically closest city. The court in Wicker noted that the distance from the insured’s residence to the office of the doctor selected by the insurer was not so great as to cause the insured undue inconvenience. The court concluded that the insured should have gone and her refusal was unreasonable. See also, Progressive Am. Ins. Co. v. Belcher, 496 So. 2d 841 (Fla. 5th DCA 1986); Frielingsdorf v. Allstate, 497 So. 2d 289 (Fla. 3d DCA 1986).
Based on the foregoing analysis, despite Plaintiff’s contention that he lives in the City of Miami, was treated in the City of Miami, and should therefore have been assigned a doctor in Miami, the Affidavit of Christye L. Fairell, Assistant Village Clerk for the Village of El Portal, conclusively establishes that Plaintiff lives in the Village of El Portal. Because there are no qualified physicians in that village, Defendant was entitled to schedule the IME outside of El Portal in a “location reasonably accessible” to Plaintiff.
Given that Dr. Brass’ office is between three and five miles from Plaintiff’s residence, it was not unreasonable to schedule the IME there. This is especially apparent when one considers that Plaintiff was driving approximately 30 miles round-trip to his treating physician but refused to travel between three and five miles to the IME.
Having found that the appointments were properly scheduled, the next consideration is determining the reasonableness of Plaintiff’s refusal to attend the independent medical examinations.
Plaintiff, by his attorney, notified Defendant on the same day that the first IME was scheduled that he would not comply because the IME had been improperly set. The next IME was scheduled for March 23, 1998, but Plaintiff’s notice of noncompliance is dated April 14, 1998. This letter refers to an earlier letter of March 3, 1998, though it is not part of the record. Therefore, it is readily apparent that Plaintiff did not provide adequate notice of his intent to refuse to submit to the IMEs. Moreover, the reasons given in the referenced letters are completely arbitrary and insufficient to justify his noncompliance. Consequently, Plaintiff’s untimely attempt to raise the issue of Dr. Brass’ office being located in what he “was told” was a high crime area is ineffectual.5
Accordingly, this Court finds and concludes that Plaintiff’s refusal to submit to the two IMEs was unreasonable and without proper justification.
The final consideration must be to determine the extent to which Defendant is indebted to Plaintiff if at all. In Jones v. State Farm Mut. Auto. Ins. Co., 694 So. 2d 165, 167 (Fla. 5th DCA 1997), the court held that § 627.736(7)(b) provides that “[i]f a person unreasonably refuses to submit to an examination, the personal injury protection carrier is no longer liable for subsequent personal injury protection benefits.” Thus, under this statute, Defendant remains liable for PIP benefits incurred before the request for an examination is made but not those benefits after the unreasonable refusal. Jones, supra; see also, Tindall v. Allstate Ins. Co., 472 So. 2d 1291, 1293 (Fla. 2d DCA 1985), review denied, 484 So. 2d 10 (Fla. 1986).
In U.S. Sec. Ins. Co. v. Silva, 693 So. 2d 593, 596 (Fla. 3d DCA 1997), the court relied on Klipper v. Government Employees Ins. Co., 571 So. 2d 26 (Fla. 2d DCA 1990), for the proposition that:
[t]he medical examination provided by 627.736(7), which arises from the contractual relationship between a consumer and the insurer of his choice, is designed to assist the insurer in evaluating whether it is obligated to pay benefits under its policy.
The Silva court held that the word “benefits” as used in the statute means payments for medical treatment, and not the medical treatment itself. The court declared that the purpose of the IME requirement of § 627.736(7)(b) is 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.
Thus, under the act, bills received after an unreasonable refusal (even for treatment before the unreasonable refusal) do not have to be paid. Therefore, based on the above analysis and because Plaintiff unreasonably refused to appear for two (2) properly scheduled independent medical examinations, Defendant is completely relieved of any obligation to pay Plaintiff’s medical bills which were all received after Plaintiff’s first scheduled IME.
WHEREFORE it is hereby ORDERED AND ADJUDGED as follows:
Defendant’s Motion for Summary Judgment is GRANTED. The cause is accordingly dismissed with prejudice. Plaintiff, Juliann Janna, shall take nothing by this action and Defendant, American Skyhawk Insurance Company, shall go hence without day.
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1Pursuant to the pleadings, the PIP insurance policy provides benefits up to $8,000; however, the policy itself is not part of the record.
2Nevertheless, the pleadings reveal that he consulted both a medical doctor and a chiropractor from 2/12/98 until 7/15/98. See Affidavits of Drs. Carlos Aguilar and Robert Thompson filed 10/26/98.
3See Plaintiff’s Motion for Summary Judgment filed 10/26/98. Pursuant to that motion, the total medical bills were in the amount of $11,497; based on this figure, Plaintiff calculates that if the PIP benefit is 80%, he is entitled to judgment in the amount of $7,197.
4Fla. Stat. § 627.736(7) Mental and physical examination of injured person; reports. —
(a) 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 where the insured is receiving treatment, or in a location reasonably accessible to the insured, which, for purposes of this paragraph, means any location within the municipality in which the insured resides, or any location within 10 miles by road of the insured’s residence, provided such location is within the county in which the insured resides. If the examination is to be conducted in a location reasonably accessible to the insured, and if there is no qualified physician to conduct the examination in a location reasonably accessible to the insured, then such examination shall be conducted in an area of the closest proximity to the insured’s residence. Personal protection insurers are authorized to include reasonable provisions in personal injury protection insurance policies for mental and physical examination of those claiming personal injury protection insurance benefits. An insurer may not withdraw payment of a treating physician without the consent of the injured person covered by the personal injury protection, unless the insurer first obtains a report by a physician licensed under the same chapter as the treating physician whose treatment authorization is sought to be withdrawn, stating that treatment was not reasonable, related, or necessary.
5Defendant argues that the “bad neighborhood” assertion is inadmissible hearsay and therefore the court should not rely on this statement. However, the Court need not even reach this aspect of the argument in order to conclude that Plaintiff’s refusal to submit to the IME was unreasonable.
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