7 Fla. L. Weekly Supp. 436d
Insurance — Personal injury protection — Independent medical examination
REINA AMADOR, Appellant, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 99-083 AP. Lower Tribunal Case No. 97-5852. Opinion filed April 25, 2000. An Appeal from County Court for Miami-Dade County, Florida. Linda Dakis, Judge. Counsel: Pamela Beckham, for Appellant. June G. Hoffman, for Appellee.
(Before MURRAY GOLDMAN, ROBERT P. KAYE, and RONALD M. FRIEDMAN, JJ.)
(PER CURIAM.) The Motion for Attorney’s Fees requested by Appellant, REINA AMADOR is denied.
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(KAYE, ROBERT, P., J., dissenting.) It is rare that a case exists in which all of the principal parties and players share a major portion of the blame for a bad result — but this seems to be one of those cases.
Essentially, the case stems from a denial of a Motion for Summary Judgment filed by the plaintiff and a granting of a Motion for Summary Judgment in favor of the Defendant.
The facts in sum are essentially these:
Plaintiff was injured in a motor accident and filed a PIP claim against the Defendant insurance company. As part of the pre-trial discovery procedure, Plaintiff was required by the Defendant to submit to a physical examination by a doctor of the Defendant’s choice, pursuant to Florida Statute § 627.736(7)(a) (1995), the controlling statute, which reads:
(7)(a)…Such examination shall be conducted within the municipality of residence of the insured or in the municipality where the insured is receiving treatment. If the examination is to be conducted within the municipality of residence of the insured and if there is no qualified physician to conduct the examination within such municipality, then such examination shall be conducted in an area of the closest proximity to the insured’s residence.
Defendant sent notice to the Plaintiff to appear before Dr. Walter C. Jones at the following address: 245 University Drive, Miami, Fl 33134. It should be noted that the address of Dr. Jones refers to Miami, Fl. as the location for examination when, in reality, the office is located within the city of CORAL GABLES. This is important because of the 1995 statute cited above which provides for examination to be held in the city where the Plaintiff lives or has received treatment. In this case, the Plaintiff “resides in” the unincorporated section of Miami-Dade County, but she “received medical treatment” within the city limits of Miami. If the Statute were to be strictly followed, the Defendant had the burden to ensure that the examination was scheduled in the proper venue. In this case, proper scheduling meant scheduling in the City of Miami, not Coral Gables.
This issue was not raised initially by Plaintiff’s attorney.
The first medical examination was canceled by Plaintiff, with notice, because of a work conflict, and was rescheduled with the full approval of the Defendant. However, the rescheduled examination was canceled again, this time due to illness of the Plaintiff. A third examination was scheduled by the Defendant to take place on October 14, 1996.
However, the third scheduled medical examination never occurred because the Plaintiff’s counsel apparently discovered venue provisions within the controlling statute, advised the Plaintiff not to appear at the Coral Gables location, and gave notice to the Defendant of such, in writing, four days prior to the scheduled examination.
The Defendant, United Automobile Insurance Company, upon learning of this recent cancellation, decided to invoke its company policy provision. The company policy sought to be invoked stated that if TWO “no shows” to a medical examination request result, the Company is relieved from its duty to pay off the claim.
The issues were then drawn and the resultant motions were filed and acted upon by the Court.
Let me first address the activities of the Defendant Insurance Company. Defendant United was charged with responsibility for selecting a doctor to conduct the medical examination, setting the location, and selecting the date. Since the doctor was a person of Defendant’s choice, Defendant United most certainly should have known the doctor’s true address — that being in Coral Gables and not Miami. Defendant also should have known, just as the Plaintiff’s counsel should have known, the provisions of the Statute and corrected the error in the choice of doctor and/or venue. Having set into motion an erroneous scenario (the wrong address), how can Defendant now complain when the Plaintiff points out its error?
The Defendant United Insurance Company errs in attempting to invoke the provisions of Florida Statute § 627.736(7)(a) (1999) (emphasis supplied). In contrast to the controlling statute, it allows scheduling of a medical examination at a “location reasonably accessible to the insured”, but the 1999 version was not in effect in 1996 so Defendant’s reliance is misplaced. 1996 covered the span of time including not only the date of the July 17, 1996 accident, but also the October 14, 1996 date of the third scheduled medical examination. (Indeed, § 627.736(7)(a) was amended in 1999 to specifically cure the instant problem in which a plaintiff resides in an unincorporated area of the county!).
The 1995 version was not well written. The improved 1999 revision reads as follows:
(7) (a)… 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 the 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 [such reasonably accessible location], then such examination shall be conducted in an area of the closest proximity to the insured’s residence.
§ 627.736(7)(a), Fla. Stat. (1999) (underline denotes added provisions).
The Defendant also seeks to avoid responsibility of paying out on the policy by invoking the “two no show” rule. However, Defendant did acquiesce in the first rescheduling subsequent to cancellation with notice. Likewise, the second failure to appear, if not properly noticed, at least appears to have been for good cause shown (illness of the plaintiff), and was not an arbitrary ignoring of the Plaintiff’s obligation to submit. Can one really say this was a “no show” as contemplated by the company policy’s two no show rule? It seems only reasonable that a “no show” refers to an un–excused failure to appear, rather than one arguably with notice and for good cause. Karell v. Miami Airport Hilton, 668 So. 2d 227, 230 (Fla. lst DCA 1996). Then, the third scheduled medical examination never occurred but nonoccurrence was due to the valid exercise of a legal right by Plaintiff’s counsel to force compliance with the provisions of an existing statute affecting the rights of a client. Can the Defendant Insurance Company really argue that the Plaintiff should be penalized for timely exercising her constitutional rights? I think not!!
Considering the status and nature of the so called “two no shows”, it clearly appears that there were not two “no shows” for which the implementation of the no-show provision would legally apply — at most there was but one no show. Therefore, it was improper for Defendant to claim the “no show” gambit by invoking its company policy two no show rule here!
Moreover, from the very nature of the circumstances surrounding the issue of “no show” there appears to be genuine issues of fact which need to be resolved and which preclude granting of summary judgment in favor of the Defendant. Jones v. State Farm Mutual Auto. Ins. Co., 694 So. 2d 165 (Fla. 5th DCA 1997).
In any event, this Court should not sit idly by and allow the Defendant to take advantage of a condition that it set into motion.
As to the Plaintiff’s position in this matter — : As stated above, it certainly was the duty and obligation of the Plaintiff’s attorney to be aware of the Statute involved in this dispute and to at least have checked out the location of the scheduled medical examination with timely research! This apparently was not done because the first two scheduled medical examinations went unchallenged. Counsel also should have contacted opposing counsel to work out the scheduling problems, and had counsel done so, this bad scenario would not have arisen.
It seems only reasonable that if the Plaintiff can travel to work at Miami Beach, Plaintiff could certainly have traveled to this doctor’s office, even if it was located in Coral Gables and not Miami, to complete the exam and facilitate the earliest possible conclusion of her case. As it now stands, this case has been delayed for what appears to be an unreasonable amount of time, and presumably at considerable expense. It also appears that by taking the action counsel took, the client’s recovery rights under the PIP policy were jeopardized. While we cannot speculate on the motive for Plaintiff’s attorney in seeking to implement the provisions of the Statute, the specter of “doctor shopping” raises its ugly head.
Lastly, this case is an example of a bad law creating a bad result. Fortunately, the legislature saw the error in the Statute and revised the provisions regarding the manner and methods whereby an Independent Medical Examination can be coordinated with the least inconvenience to all parties.
Based on the above, this Court should reverse the ruling of the court below, and set the cause for trial on the issues and merits. The Court should reserve ruling of the issue of fees and costs.
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