7 Fla. L. Weekly Supp. 713a
Insurance — Personal injury protection — Error to enter summary judgment in favor of insurer on ground that insured unreasonably refused to attend two independent medical examinations — There was genuine issue of material fact regarding whether failure to attend IMEs amounted to unreasonable refusal given evidence that insurer sent notice of scheduled IMEs to insured’s counsel, but that insured had recently moved and could not be contacted by counsel
RODOLFO AMIRA, Appellant, v. UNION AMERICAN COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 99-308 AP. L.T. Case No. 98-3657 SP25(2). August 9, 2000. On appeal from the County Court for Miami-Dade County. Edward Newman, Judge. Counsel: James D. Payer, for Appellant. David B. Pakula, for Appellee.
(Before STUART M. SIMONS, MAXINE COHEN LANDO, and HENRY H. HARNAGE, JJ.)
(STUART M. SIMONS, J.) Appellant, Rodolfo Amira, seeks review of final summary judgment entered in favor of Appellee, Union American Company.
Union American is Amira’s personal injury protection (PIP) insurer. Union American denied Amira’s claims for PIP benefits on the ground that Amira unreasonably refused to attend two independent medical examinations (IMEs). It is undisputed that Union American sent notice of the IMEs to Amira and his attorney, and that Amira failed to appear for either appointment.
Amira’s counsel admits receiving notice of the scheduled IMEs. However, Amira had recently moved, and could not be contacted by his lawyer. Because of the move, Amira also did not receive the notice from Union American. Amira stated that he would have submitted to the IMEs had he known about them.
In a motion for summary judgment, the movant must conclusively prove the absence of a genuine issue of material fact. Holl v. Talcott,191 So. 2d 40, 43 (Fla. 1966). The record in this case reflects that a genuine issue of material fact remains as to whether Amira unreasonably refused to submit to the IMEs. We hold that the simple failure to attend an IME does not amount to proof of unreasonable refusal as a matter of law. At best, Union American has established that Amira had constructive notice of the appointments but failed to appear. See Woodard v. Florida State University, 518 So. 2d 336 (Fla. 1st DCA 1987) (notice to attorney is notice to client). Therefore, Union American did not conclusively prove the absence of a genuine issue of material fact, and as a result summary judgment should not have been granted.
The judgment below is REVERSED, and this case is REMANDED for further proceedings consistent with this opinion. Appellee’s Motion for Attorney’s Fees is DENIED. (LANDO and HARNAGE, JJ., concur.)
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