7 Fla. L. Weekly Supp. 654b

Insurance — Personal injury protection — Error to grant summary judgment in favor of insurer based upon insured’s failure to attend two scheduled independent medical examinations where genuine issues of material fact remain as to whether insured unreasonably refused to attend IMEs of which she claimed she had no notice

RUTH LOUIS, Appellant, vs. AMERICAN SKYHAWK INSURANCE COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 99-302 AP. Lower Case No. 98-0094 CC 23. Opinion filed July 26, 2000. An Appeal from the County Court for Miami-Dade County, Florida. Linda S. Stein, Judge. Counsel: James M. Loren, for appellant. Stuart L. Koenigsberg, for appellee.

(Before JEFFREY ROSINEK, PAUL SIEGEL and PEDRO P. ECHARTE, JJ.)

(PER CURIAM.) Appellant, Ruth Louis (“Louis”), seeks review of the trial court’s entry of summary judgment in favor of American Skyhawk Insurance Company (“Skyhawk”). On September 5,1997, Louis was purportedly injured in an automobile accident. After being treated at a local emergency room and receiving medical care from a neurologist, Louis submitted a notice of claim for PIP benefits to Skyhawk, her PIP insurance carrier. On October 8, 1997 and November 5, 1997, Skyhawk mailed letters to Louis via her attorney’s office notifying her of Independent Medical Examinations (“IMEs”) which were scheduled with a chiropractor respectively for October 20, 1997 and November 19, 1997. Louis failed to attend either of the scheduled IMEs claiming that because she relocated approximately one week prior to the first IME she never received notice of either of the scheduled IMEs. Over Louis’ objections and accompanying affidavit, the trial court entered final summary judgment on the basis of Louis’ failure to attend the IMEs.

The function of a court in reviewing a motion for summary judgment is solely to determine whether the appropriate record presented in support of summary judgment conclusively shows that the plaintiff cannot prove the claim alleged as a matter of law. Hervey v. Alfonso, 650 So. 2d 644, 646 (Fla. 2d DCA 1995).¹ Further, “the presumption of correctness inuring in a trial court’s ruling granting a motion for summary judgment “based upon a written record of pleadings, affidavits and depositions is not as strong as where the court heard the witnesses itself or ruled on conflicting evidence.” Id., at 646.² Based upon the written record of pleadings, affidavits and depositions, we find that the trial court erred in granting summary judgment in favor of Skyhawk as genuine issues of material fact remain in regard to the circumstances surrounding Louis’ failure to attend the IMEs.

Pursuant to § 627.736(7)(a), Fla. Stat. (1999):

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.

Further, pursuant to § 627.736(7)(b), Fla. Stat. (1999):

If a person unreasonably refuses to submit to an examination, the personal injury protection carrier is no longer liable for subsequent personal injury protection benefits.

We find that while submission of a reasonably requested IME is a condition precedent to coverage,³ genuine issues of material fact remain as to whether, based upon lack of notice, Louis unreasonably or intentionally refused to submit to the IMEs.

In case of Blanco v. Fortune Insurance Co., 5 Fla. L. Weekly Supp. 805b (Fla. 11th Jud. Cir. 1998), the insured was denied insurance benefits by the insurer based upon the insured’s refusal to attend an IME. The trial court did not accept an untimely filed affidavit of the insured and granted summary judgment in favor of the insurer even though the insured’s affidavit purportedly explained why he did not attend the scheduled IMEs. The Appellate Court for the Eleventh Judicial Circuit found that the trial court erred in granting summary judgment holding that, “[s]ummary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law.” Id. (citing Fisel v. Wynns, 667 So. 2d 761 (Fla.1996)). As in Blanco, we find that genuine issues of material fact remain concerning whether Louis unreasonably refused to submit to the scheduled IMEs because of a purported lack of notice.⁴ Accordingly we REVERSE the trial court’s order which granted summary judgment in favor of Skyhawk and REMAND the matter to the trial court for further proceedings consistent with this opinion. Pursuant to Fla. R. App. P. 9.400 and § 627.428, Fla. Stat. (1999), we grant the Appellant’s Motion to Tax Attorney’s Fees contingent upon the insured recovering below and instruct the lower court to determine the amount of such appellate fees.

REVERSED and REMANDED.

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¹“[S]ummary judgment cannot be granted unless the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, conclusively show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” See Fla. R. Civ. P. 1.510(c). “The burden is upon the party moving for summary judgment to show conclusively the complete absence of any genuine issue of material fact.” Romero v. All Claims Ins. Repairs, Inc., 698 So. 2d 605, 606 (Fla. 3 DCA 1997) citing Albelo v. Southern Bell, 682 So. 2d 1126,1129 (Fla. 4th DCA 1996). Further, the trial court must draw every possible inference in favor of the party against whom summary judgment is sought. Moore v. Morris, 475 So. 2d 666 (Fla. 1985). Finally, “if the evidence raises any issues of material fact, or if it is conflicting, or if it will permit different reasonable inferences, or if it tends to prove the issues, summary judgment cannot be granted.” McDonald v. Florida Dept. of Transp., 655 So. 2d 1164 (Fla. 4th DCA 1995).

²A presumption of correctness attaches to the trial court’s order; however, when reviewing the granting of a summary judgment “appellate courts must view every possible inference in favor of a party against whom a summary judgment motion is granted.” Williams v. Bevis, 509 So. 2d 1304, 1306 (Fla. 1st DCA 1987); citing Wills v. Sears, Roebuck & Co., 351 So. 2d 29 (Fla. 1977).

³See De Ferrari v. Government Employees Insurance Company, 613 So. 2d 101,103 (Fla. 3rd DCA 1993) (citing Griffin v. Stonewall Ins. Co., 346 So. 2d 97 (Fla. 3d DCA 1977); see also Allstate Ins. Co. v. Graham, 541 So. 2d 160 (Fla. 2d DCA 1989); Tindall v. Allstate Ins. Co., 472 So. 2d 1291 (Fla. 2d DCA 1985), review denied, 484 So. 2d 10 (Fla. 1986). See generally 31 Fla.Jur.2d Insurance S 805 (1979)).

⁴The court must draw every possible inference in favor of the party against whom summary judgment is sought. See Morris, 475 So. 2d at 668.

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