8 Fla. L. Weekly Supp. 593b
Insurance — Personal injury protection — Independent medical examination — Where insurer had express notice that insured was represented by counsel, counsel specifically requested notice of any action by insurer and advised insured to disregard communications unless these originated from him, insurer notified insured of IME through letter from its agent, which was a claims evaluation company unknown to insured, and insurer failed to advise counsel of the IME, insured’s failure to attend IME was attributable to insurer and not an unreasonable refusal under section 627.736(7)(b), Florida Statutes
County court order at 8 Fla. L. Weekly Supp. 114b
AMERICAN SKYHAWK INSURANCE COMPANY, Appellant, vs. BARBARA CHACON, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 00-433 AP. L.C. Case No. 00-00797 CC 26. Opinion filed July 24, 2001. An appeal from the County Court for Miami-Dade County, The Honorable Bonnie L. Rippingille. Counsel: Bambi G. Blum, Robin Buckner, for Appellant. Carlos Lidsky, Rima C. Bardawil, for Appellee.
(Before JEFFREY ROSINEK, LESLIE B. ROTHENBERG, and MARC SCHUMACHER, JJ.)
(PER CURIAM.) This is an appeal from a final summary judgment entered in favor of the Appellee, insured, in a personal injury protection benefits (PIP) case. The Appellant insurer, American Skyhawk Insurance Company, and Appellee had both filed motions for summary judgment, based upon the reasonableness of the insured’s failure to attend an independent medical examination (IME).1 The parties, in the court below, agreed that there were no disputed facts and the question of reasonableness was one of law to be decided by the trial judge. The trial court found that the insured’s failure to attend the IME was attributable to the insurer, because the latter did not provide any notice of the IME to the insured’s counsel, despite formal notification of the insured’s representation and knowledge that counsel had expressly requested such notice. The trial court properly relied upon Security Insurance Company v. Cimino, 754 So. 2d 697(Fla. 2000), and ruled that the insured’s failure to attend the IME was not an unreasonable refusal under Fla. Stat. § 627.736(7)(b). We affirm.UNDISPUTED FACTS
The insured was injured in an automobile accident, on August 26, 1999. She retained counsel, who instructed her not to communicate with anyone, nor to attend any meetings or conferences, unless these originated from or were arranged through counsel. The insured is not fluent in English. Immediately thereafter, on August 30,1999, counsel sent a letter to the Appellant, notifying it that a claim was being made under the insurance policy and that the insured was being represented by him. Counsel also requested in this letter that the insurer provide the name of the adjustor assigned, and that it provide counsel with any forms utilized by the insurer in handling the claim. This letter was in fact promptly received by the Appellant, but the latter did not respond to counsel in any way.
The Appellant instead communicated with the insured, through its agent, Professional Claims Evaluation, Inc. (PCE), without notifying counsel. Approximately a month and a half after receipt of counsel’s letter, PCE sent a form letter, on PCE letterhead, directly to the insured, by certified mail, return receipt requested. The insured did not sign the receipt for certified mail. Her landlady took delivery and left the form letter outside her door. The form letter, in relevant part, states:
Dear Sir/Madam:
American Skyhawk/Aries Insurance companies, pursuant to Florida Statute 627.736(7)(a) hereby request you/your client to submit to physical examinations by physicians so that the insurance company can evaluate your physical condition. This examination is of no cost to you/your client on the date and location listed below, by one or more of the following physicians….
(Emphasis added). The above letter was signed by “Professional Claims Evaluation, Inc.” The insured had never had any relationship with nor knew that PCE was the insurer’s agent. Similarly, “Aries Insurance,” had no relationship with the insured; it is apparently another one of the companies represented by PCE.
The insured testified that she received the above letter, but thought that it was a solicitation or “advertisement by a law firm or a clinic,” as she had previously seen such solicitations when her friends had been involved in accidents. The insured added that as she “already had my own clinic,” she ignored the form letter.
Two weeks later, PCE sent another similar form letter to the insured, stating, in part, that, “you/your client failed to attend the scheduled examination,” and that another had been scheduled. This letter also stated that failure to attend the examination would “cause you/your client’s benefits to be suspended as of 10/27/99 the date of the prior appointment.”
Once again the insured’s landlady had signed the certified mail receipt, and the insured was not certain when she had received this letter. The insured again thought the letter was an advertisement. However, as this was the second such letter, the insured took this letter to her counsel within a few days after she received it. By then, however, the allotted time for the examination had expired, and Appellee’s benefits had been terminated.
Appellee testified that if she had known that her insurance company was requesting an examination, she would have submitted to same. Moreover, it is unrefuted that Appellee’s counsel would have advised her to attend the IME, had he been notified of the request.LEGAL ANALYSIS
The trial court relied upon Security Insurance Company v. Cimino. Much like the instant case, Cimino involved an insurance company which scheduled an IME for its insured, pursuant to Fla. Stat. § 627.736(7), and prior to any suit having been filed. The insured in that case had also been represented by counsel at the time of the IME request. Counsel in Cimino requested that he be allowed to be present and video tape the IME. The insurer refused, and advised that the failure to attend the IME, without counsel, would be deemed an unreasonable refusal which would result in termination of PIP benefits. 754 So.2d 697-98.
The Florida Supreme Court held that where the statute utilized the term “unreasonably refuses to submit,” “it is logical to deduce there are scenarios where the insured `reasonably refuses to submit’ to the examination.” 754 So. 2d 702. The Court held that the request for an attorney’s presence at the IME is generally reasonable, and the insurer has the burden of proving unreasonableness in specific circumstances. Id. Relevant to the instant case, the Court reasoned:
A PIP examination is a potential step in the direction of litigation. The insured is claiming an entitlement to continued benefits and the insurer is questioning the necessity for same. In order to continue receiving benefits the insured must comply with the requirements of the insurance contract and section 627.736. The insured is required to comply with a PIP examination in order to continue to receive the contractual benefits. The insured and the insurer are certainly not in agreement at this point. Because the potential is there for an adversarial contest, the insured should be afforded the same protections as are afforded to plaintiffs for rule 1.360 and workers’ compensation examinations.
754 So. 2d 701 (emphasis added). Fla. R. Civ. P. 1.360 and workers’ compensation examinations referenced above, are generally applicable after suit has been filed and counsel is entitled to notice of every action by the adverse party.
We, therefore, agree with the trial court that where the insurer has express notice that the insured is represented by counsel, and said counsel has specifically requested notice of any action by the insurer, the insurer must provide counsel notice of any IME that it schedules. Indeed, in the court below, the insurer, in its response to the insured’s request for admissions, expressly conceded that its failure to advise counsel of the IME request, “was improper.” Furthermore, the insurer’s own form letter contemplated notice to counsel by virtue of consistently addressing “you/your client.” Moreover, in the circumstances of this case, where the insured had relied upon her counsel’s advice to disregard communications unless these originated from him, it was the lack of notice to counsel which caused the insured’s failure to attend the IME. The insured herein was, after all, not fluent in English. She received a form letter from a company which she had not previously dealt with and which mentioned insurance companies other than her own insurer. It was undisputed, that had the insured known that there was a request for an IME, she would have attended. The insurer’s own actions, in refusing to provide notice to counsel as requested, cannot constitute an “unreasonable refusal” by the insured in the instant case. Accordingly, we affirm the final summary judgment entered in favor of the insured.
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1Florida Statute § 627.736(7)(b), in relevant part provides: “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.” (Emphasis added).
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