8 Fla. L. Weekly Supp. 164a
Insurance — Personal injury protection — Error to enter summary judgment in favor of insurer where genuine issues of material fact remain as to whether insured’s failure to attend independent medical examinations in unincorporated part of county was unreasonable and intentional — Amended statute permitting IME to be conducted in municipality in which insured is receiving treatment or in location “reasonably accessible to the insured” not basis for trial court’s ruling where events at issue occurred prior to effective date of amendment — Under applicable statute, IME could have been scheduled in either the city where insured resided or in the city in which he was receiving treatment
Lower court order at 6 Fla. L. Weekly Supp. 354b
JULIAN JANNA, Appellant, vs. AMERICAN SKYHAWK INSURANCE COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 99-230 AP. L.T. Case No. 98-12426 CC 05. Opinion filed December 5, 2000. On appeal from the County Court forMiami-Dade County, Florida. Honorable Roger A. Silver. Counsel: Fernando F. Freire, for Appellant. Stuart L. Koenigsberg, for Appellee.
(BEFORE D. BRUCE LEVY, THOMAS S. WILSON, and MICHAEL B. CHAVIES, JJ.)
(PER CURIAM.) This is an appeal from a final summary judgment denying the Appellant’s claim for Personal Injury Protection (PIP) benefits. We reverse.
FACTS AND PROCEDURAL BACKGROUND
Appellant/insured, Janna, was involved in an automobile accident in Miami-Dade County, on January 9, 1998, whereby he sustained injuries. Appellant resided in the municipality of El Portal, Miami-Dade County. He was subsequently treated by a general practitioner and a chiropractor at a clinic in the City of Miami. Appellee/insurer, American Skyhawk Insurance Company, requested that Janna submit to an Independent Medical Examination (IME). Appellee’s agent scheduled the IME for March 9, 1998, before a chiropractor located in unincorporated Miami-Dade County. On March 3, 1998, Appellant’s counsel requested, pursuant to Florida statutes, that the IME be rescheduled within the City of Miami, as Appellant both resided and was being treated in that location, and “the area has plenty of qualified physicians.” Appellant mistakenly believed that he resided in the City of Miami due to that area’s proximity to El Portal; the two municipalities are adjacent. The Appellee, on March 6, 1998, through an unsigned letter, responded that it would not reschedule, as the insured was “in jurisdiction of” its chiropractor. There was no mention of any Florida statutes. Subsequent correspondence reflects that Appellee was instead relying upon the “failure to cooperate” clause of its policy, which required the insured to submit to physical examinations by “physicians we select.”
The insured did not appear for the March 9, 1998 IME. On the same date, Appellee rescheduled the IME, before the same chiropractor, for March 23, 1998. Appellant’s counsel again, on March 9, 1998, requested that the IME be rescheduled in the City of Miami, in accordance with the Florida statutes, and stated that the insured “will be more than happy to attend.” Appellant thus did not appear for the March 23, 1998 IME. On this date, the Appellee stated that it was invoking the “conditions of our policy,” and terminating all PIP benefits, as of March 9, 1998. Nonetheless, on April 1, 1998, Appellee scheduled yet another IME before the same chiropractor. Appellant did not appear.
Appellant then sued for recovery of PIP benefits, on August 27, 1998. The Appellee filed a motion for summary judgment, on the grounds that Appellant had “unreasonably refused” to attend the first two (2) IMEs; and, that pursuant to “Florida Statute 627.736(7),” it was not obligated to pay any medical bills, as these were all received after the first scheduled IME, on March 9, 1998. Appellee filed affidavits stating that there were no qualified physicians in Appellant’s municipality of residence, El Portal. Appellee thus claimed that the IME was properly scheduled in unincorporated Miami-Dade County, because that was the area closest in proximity to the Appellant’s residence, as required by Florida statutes. The Appellant filed an affidavit in opposition, stating that he had not attended the IMEs because: (a) these were not scheduled in accordance with Fla. Stat. 627.736(7); (b) there were “numerous chiropractors much closer” to where he lived and/or was treated; and, (c) the IME had been scheduled in a “high crime area.” The latter two reasons were not disputed.1
The trial court found that there were no qualified physicians in El Portal. The court, in reliance upon Fla. Stat. 627.736(7)(a) (1998), held that Appellee had properly scheduled the IME, because unincorporated Miami-Dade County was “a location reasonably accessible” to Appellant. The physician’s office was located within 3 to 5 miles of the Appellant’s residence. The court also found that Appellant had not given timely notice of his intent to not appear at the IMEs, and that the reasons for failure to attend were arbitrary and insufficient. The trial court thus granted summary judgment on the ground that Appellant’s failure to attend the IME was “unreasonable.”
LAW AND ANALYSIS
“Notwithstanding the presumption of correctness which clothes the result below, appellate courts must view every possible inference in favor of the party against whom the summary judgment is granted.” Smith v. Perry, 635 So. 2d 1019, 1020 (Fla. 1st DCA 1994). Where the evidence “will permit different reasonable inferences,” summary judgment cannot be granted. McDonald v. Florida Department of Transportation, 655 So. 2d 1164, 1167 (Fla. 4th DCA 1995) citing Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985). If material issues of fact exist and the slightest doubt remains, or if there is an improper application of the law, summary judgment must be reversed. Smith, 635 So. 2d at 1020.
In the instant case, the trial court improperly relied upon an amendment to Fla. Stat. §627.736(7)(a), whichwent into effect on October 1, 1998, subsequent to the events at issue herein. As amended, Fla. Stat. §627.736(7)(a) (1998) provides, in relevant part, that an IME may be conducted in the municipality in which the insured is receiving treatment, “or in a location reasonably accessible to the insured, which, for purposes of this paragraph means…any location within 10 miles by road of insured’s residence, provided such location is within the county in which the insured resides.” (Emphasis added). The trial court’s ruling would have been proper, if said provision was applicable. However, “[t]he statute in effect at the time an insurance policy is issued governs the rights arising under that contract.” Allstate Insurance Co. v. Garrett, 550 So. 2d 22, 24 (Fla. 2nd DCA 1989) citing State Farm Mutual Automobile Insurance Co. v. Grant, 478 So. 2d 25 (Fla. 1985). The applicable statute in this case is Fla. Stat. §627.736(7) (1997), whichprovides:
(7) MENTAL AND PHYSICAL EXAMINATION OF INJURED PERSON; REPORTS
(a) 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. The costs of any examinations requested by an insurer shall be borne entirely by the insurer. Such examinations 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. Personal protection insurers are authorized to include reasonable provisions in personal injury protection insurance policies for mental and physical examination of those claiming personal injury protection insurance benefits…..
(b) …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).
In this case the IME could have been scheduled in either El Portal, where Appellant resided, or, in the City of Miami, where he was receiving treatment. Appellant in fact requested that the IME be conducted in the City of Miami, in accordance with the applicable statutory provision. Moreover, Appellant provided ample notice of his request. The Appellee’s form letter announcing the initial IME was dated February 27, 1998, and required two (2) days notice for rescheduling. Appellant’s request was dated March 3, 1998, six (6) days prior to the scheduled IME. Likewise, Appellant’s second March 9, 1998 request was also well before the subsequently scheduled March 23, 1998 IME.
The Appellee’s reliance upon the statutory alternative of an “area of the closest proximity to the insured’s residence,” is unwarranted. The Appellee gave no prior notice of a desire to conduct the IME within the municipality of the insured’s residence, El Portal, or that there were no qualified physicians within that municipality. Instead, the Appellee had relied upon the wording of the insurance policy, which provided for examinations by physicians of its choice, without any reference to the venue limitations provided in the statute. Appellee apparently receded from this position in the court below, as it never even filed a copy of the insurance policy. Moreover, the area of “closest proximity,” has been defined as “within the …metropolitan area nearest to the [city of insured’s residence] having a population sufficient to justify and sustain a choice of … physicians…[and at a distance from the insured’s residence]…not so great as to cause [her] undue inconvenience.” Frielingsdorf v. Allstate Insurance Co., 497 So. 2d 289 (Fla. 3d DCA 1986), review denied, 506 So. 2d 1040 (Fla. 1987) quoting Wicker v. Hartford Accident & Indemnity Co., 403 So. 2d 393 (Fla. 4th DCA 1981); see also Progressive Insurance Co. v. Belcher, 496 So. 2d 841, 843 (Fla. 5th DCA 1986) (“If an insured does not live in a city, or if that city lacks qualified physicians, then he can be required to submit to an independent medical examination by his insurer, pursuant to section 627.736(7)(a), in any of a cluster of cities comprising the closest metropolitan area, and …the insurer is not limited to the geographically closest city.”). The Appellee herein did not schedule the IME within any city or municipality; it scheduled it in unincorporated Miami-Dade County. The City of Miami certainly appears, from the maps filed in the trial court, to be the nearest area to the Appellant’s residence; and, it was undisputed that there were a number of qualified physicians, including chiropractors, within that area.
In light of the above circumstances, a genuine issue of fact remains as to whether Appellant’s failure to attend the IME was unreasonable or intentional. See Frielingsdorf, 497 So. 2d at 292 (genuine issue of fact, concerning the geographic area within which insured was required to submit to examination, precluded summary judgment); Jones v. State Farm Mutual Automobile Insurance Co., 694 So. 2d 165, 167 (Fla. 5th DCA 1997) (same); Louis v. American Skyhawk Insurance Co., 7 Fla. L. Weekly Supp. 654 (Fla. 11th Jud. Cir. 1998) (factual issue as to lack of notice due to insured’s relocation, precluded summary judgment). Accordingly, we reverse the trial court’s order which granted summary judgment in favor of Appellee Skyhawk and remand for further proceedings. Pursuant to Fla. R. App. P. 9.400 and Fla. Stat. 627.428 (1999), we grant the Appellant’s motion t 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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1Appellee argued that Appellant’s reliance upon a “high crime” area, was based upon impermissible hearsay. The insured’s state of mind may, however, be relevant to a determination of the reasonableness of his actions. Fla. Stat. 90.803(3)(a) (1998).
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