7 Fla. L. Weekly Supp. 596a
Insurance — Personal injury protection — Medical pay benefits — Error to enter summary judgment in favor of insurer, which terminated coverage based on insured’s refusal during independent medical examination to answer questions posed physician, where there was factual issue concerning whether insured unreasonably refused to participate in IME
DANIELLE MUSTEFFE, Appellant, vs. PROGRESSIVE CONSUMERS INSURANCE, Appellee. Circuit Court, 20th Judicial Circuit (Appellate) in and for Lee County. Appeal Case No. 99-3898 AP. Lower Case No. 98-1161 CC. Opinion issued June 14, 2000. Appeal from the County Court for Lee County; Edward J. Volz, Jr., Judge. Counsel: David R. Linn, Port Charlotte, for Appellant. Denise H. Kennedy, Fort Myers, for Appellee.
(PER CURIAM.) We have for review an Order from the trial Court granting summary judgment to the Appellee insurance company in a suit by an insured (the Appellant) seeking personal injury and medical pay benefits under a policy of automobile insurance. The insured was required to submit to an independent medical examination pursuant to Florida Statute 627.736(7). During the examination, the insured refused to answer questions posed by the physician regarding the accident. Based upon this refusal, the physician terminated the examination and the Appellee terminated coverage. The insured sued, and the Appellee moved for summary judgment, which was granted. For the reasons stated below, we reverse.
In the Motion for Summary Judgment, the Appellee cited to the Court the case of Klipper v. Government Employees Insurance Company, 571 So.2d 26 (Fla. 2d DCA, 1990). Under the analysis contained in the Klipper case, the decision of the trial Court was correct and would have been affirmed.
The Klipper decision was overruled by the Florida Supreme Court in the case of U.S. Security Insurance Company v. Cimino, __ So.2d __, (Fla., March 9, 2000) [25 Fla. L. Weekly S186]. The trial Court at the time it decided this case did not have the benefit of this new case, the holding of which requires reversal of the Order Granting the Motion for Summary Judgment on the issue of whether the insured unreasonably refused to participate in the independent medical examination. The matter is remanded for further proceedings in the trial Court consistent with the Supreme Court’s decision in U.S. Security. (McIVER, SEALS, and ELLIS, JJ., concur.)
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