8 Fla. L. Weekly Supp. 114b
Insurance — Personal injury protection — Insured did not, under circumstances, forfeit rights to PIP benefits by failing to attend two scheduled medical examinations — As matter of law, having been advised that insured was represented by counsel, insurer should have sent notices scheduling medical examinations to insured’s counsel — Absent such communication, insured’s failure to attend examination cannot be deemed to have been unreasonable — Notices at issue were confusing on their face because they originated from an entity with whom insured had no connection, were addressed to “You/Your client,” and cited technical-legal authorities, making it more difficult for ordinary person to understand — Insurer did not refute record evidence that insured was confused by notices and, in absence of confusion, would have attended scheduled exams
Final Summary Judgment affirmed at 8 Fla. L. Weekly Supp. 593b
BARBARA CHACON, Plaintiff, v. AMERICAN SKYHAWK INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Dade County, Civil Division. Case No. 00-00797 CA 26 (1). November 4, 2000. Bonnie Rippingille, Judge. Counsel: Carlos Lidsky and Rima Bardawil, Robin Buckner & Patricia Amaducci.
ORDER GRANTING PLAINTIFF’ S MOTION FOR SUMMARY JUDGMENT AND DENYINGDEFENDANT’SMOTION FOR SUMMARYJUDGMENT
THIS CAUSE CAME ON TO BE HEARD on October 19, 2000, on cross Motions for Summary Judgment. Defendant contends that Plaintiff forfeited her rights to recover Personal Injury Protection (PIP) benefits as a result of her unreasonable refusal to attend two (2) medical examinations scheduled by Defendant’s agent on Defendant’s behalf. Plaintiff maintains that the failures to attend the examinations were neither unreasonable nor constituted a refusal to attend. Plaintiff alleges that the non-attendance was attributable solely to Defendant’s inadequate notices because: a) although Defendant was aware that Plaintiff was represented by counsel, Defendant’s agent improperly failed to direct the communications (concerning the medical appointments) to Plaintiff’s counsel, and directed them solely to the Plaintiff; and b) Defendant’s notices were confusing on their face because they originated from an entity1 with whom Plaintiff has no privity, connection or other relationship, and were addressed to “You/Your client”2.
Defendant did not refute Plaintiff’s testimony that she was confused by the notices, believed them to be lawyer or clinic solicitations and for the reasons stated above did not consider it necessary to discuss them with her attorney. Defendant did not refute testimony from Plaintiff and her counsel that, but for the confusion that ensued (described above) Plaintiff would have attended the scheduled exams. The Court having reviewed the evidence and the pleadings, heard the argument of counsel, and being otherwise fully advised in the premises, it is,
ORDERED AND ADJUDGED
a) While no Florida Court opinion appears to have addressed this precise question, The Court finds as a matter of law that having been advised of counsel’s representation of Plaintiff, the Defendant should have directed the notices scheduling the medical examination to Plaintiff’s counsel. Absent such communication, Plaintiff’s failure to attend cannot be deemed to have been an unreasonable refusal to attend the examination. In its holding, The Court relies in part on the sensible reasoning in Security Insurance Company v. Cimino, 2000 WL 263418 (Fla. 2000) [25 Fla. L. Weekly S186], where the Florida Supreme Court held that PIP related medical examinations were litigious in nature and thus had to be afforded the protections of exams under Rule 1.360 of the Florida Rules of Civil Procedure. The Court is also persuaded in part by Robinson v. Treasurer of State of Florida, Dept. of Ins., 676 So.2d 1378 (Fla. 2nd DCA 1996), holding that a default order revoking a license had to be vacated when The Department of Insurance, aware of the licensee’s representation, failed to notify counsel. Notice to counsel was deemed by The Court to be a precursor to forfeiture of the license and right to sell insurance. The Court believes that an insurer cannot be permitted to ignore that a party is represented when attempting to affect entitlement to benefits and the statutory and contractual rights of an insured.
b) Even if notice to counsel was not a requirement to the finding of “unreasonable refusal” to attend a medical exam scheduled by an insurer, The Court finds as a matter of law that for additional reasons, this insured did not unreasonably refuse to attend the medical exam. Defendant’s notices were confusing on their face because they originated from Professional Claims Evaluation Inc., an entity with whom Plaintiff had no connection. The notices were confusing because they were addressed to “You/Your client” and cited technical-legal authorities, making it more difficult for the ordinary person to understand. Defendant did not refute record evidence that Plaintiff was confused by the notices and believed them to be lawyer or clini c solicitations. Further, Defendant did not refute record evidence that, but for the confusion that ensued as a result of Defendant’s actions, Plaintiff would have attended the scheduled exams. Thus, given the totality of the circumstances in this case, The Court deems that the confusion and misunderstanding by Plaintiff was reasonable, and Plaintiff’s non-attendance was not a result of her refusal to do so.
c) The Court has considered the various authorities relied upon by Defendant. DeFerrari vs. Government Employees Ins. Co., 613 So.2d 101 (Fla. 3d 1993); U.S. Security Insurance Company v. Silva, 693 So.2d 593 (Fla. 3d DCA 1997); Griffin v. Stonewall Ins. Co., 346 So.2d 97 (Fla. 3d DCA 1977); Tindall v. Allstate Ins. Co., 472 So.2d 291 (Fla. 2d DCA 1985); Ruiz vs. Fortune Ins. Co., 677 So.2d 1336 (Fla. 3d DCA 1996), do not address the issues in this case. In Allstate Ins. Co. v. Graham, 541 So.2d 160 (Fla. 2nd DCA 1989), for example, Plaintiff’s counsel was advised of the medical examination request and deliberately placed conditions or restrictions to the exam. None of Defendant’s cases deal with lack of notice to Plaintiff’s counsel or with non-attendance that ensues from confusion and miscommunications by the insurer.
d) Accordingly, Defendant’s Motion for Summary Judgment
is hereby DENIED.
e) Accordingly, Plaintiff’s Motion for Summary Judgment is hereby GRANTED.
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1Professional Claims Evaluation Inc.
2suggesting to the reader that: a) the attorney also received it; and/or, b) that the sender intended it to go to an attorney if one was involved.
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