8 Fla. L. Weekly Supp. 159b
Insurance — Personal injury protection — Error to enter summary judgment in favor of insured in action seeking payment of certain medical bills where jury had found in prior lawsuit that insured had unreasonably refused to attend second independent medical examination, so that factual issue existed in instant case as to whether PIP benefits had been waived — Further, insured’s prior direction to insurer not to pay the bills in question created question of fact as to whether insurer was responsible for those bills, and substantial question of fact exists as to what, if anything, is owed
OCEAN HARBOR CASUALTY INSURANCE COMPANY, Appellant, vs. ANGELA ROQUE, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 00-187 AP. Lower Court Case No. 00-1064 CC 25. Opinion filed December 5, 2000. An appeal from the County Court, in and for Miami-Dade County, Catherine Pooler, Judge. Counsel: Hinda Klein and Stuart B. Yanofsky, Conroy, Simberg & Ganon, P.A., for Appellant. Kevin W. Whitehead, Downs & Associates, P.A., for Appellee.
(Before NORMAN S. GERSTEIN, THOMAS S. WILSON, JR. and ELEANOR L. SCHOCKETT, JJ.)
(ELEANOR L. SCHOCKETT, J.) Ocean Harbor Casualty Insurance Company (“the Appellant”) issued a policy of no-fault insurance to Angela Roque (“the Appellee”). Roque was in an automobile accident on April 9, 1998; she subsequently sought medical treatment from a number of medical providers. Those providers submitted their bills to Ocean Harbor. In a notarized letter dated June 15, 1998, Roque wrote to Ocean Harbor specifically directing:
Per our conversation, I would like to make sure that you understood what I was telling you. The company received a bill from Dr. Patrick J. Barry which I would like waived. I do not want for the company to pay for this bill, Dr. Barry is not authorized to bill this policy nor this claim number. The only company’s [sic] I authorize to be paid in regards to this accident are Four Forty West Medical Center, Max Diagnostic, and Dr. Jose L. Ruiz; which are the places I have attended for treatments and testings. (Emphasis added).
Ocean Harbor scheduled Roque for an independent medical examination (“an IME”) to take place on May 20, 1998; she did not attend. A second IME was scheduled for June 10, 1998, and again, Roque did not attend. Ocean Harbor notified Roque that her personal injury benefits would be suspended for failure to comply with policy requirements.
On May 4, 1998, Roque sued Ocean Harbor for PIP benefits; she said she had submitted medical bills from a Dr. Ruiz and Four Forty West Medical Center (but not any bills from Dr. Barry), and that she had complied with all conditions under the law and the insurance policy. Ocean Harbor prevailed in that lawsuit because a jury found that Roque had unreasonably refused to submit to the company’s second request for an independent medical examination. On January 11, 2000, after a hearing, the trial judge entered final judgment based on the jury’s finding in favor of Ocean Harbor, absolving them of the financial obligation for the bills submitted before trial, because of Roque’s failure to attend the second IME. However, the trial judge specifically excluded the bills for services rendered by Dr. Barry. That judgment further provided that Roque could file a lawsuit to enforce payment of those bills after expiration of the 30 day period.
On December 29, 1999, Roque re-submitted her bills from Dr. Barry to Ocean Harbor for the first time for reimbursement. On February 2, 2000, Roque filed her second lawsuit against Ocean Harbor alleging improper failure to pay Dr. Barry’s bills. Roque moved for summary judgment based on the argument that as Ocean Harbor’s receipt of Dr. Barry’s bills fell between the scheduled independent medical examinations and that there was a finding that she unreasonably refused to attend only the second IME, and because the Dr. Barry bills were specifically not discharged after the first lawsuit, Ocean Harbor’s obligation to pay those bills was not discharged. The trial court held a summary judgment hearing on May 3, 2000, and entered an order granting summary judgment on Roque’s claim. That order is the subject of this appeal.
The summary judgment entered in favor of Roque must be reversed. Ocean Harbor is not responsible for payment of the bills from Dr. Barry. After a jury decided in the first lawsuit that Roque was unreasonable in her refusal to attend the second IME, summary judgment was inappropriate where there remained questions of fact as to whether Roque, by virtue of her unreasonable refusal to submit to examination, waived the provisions of the PIP policy. See American Reliance Ins. Co. v. Riggins, 604 So. 2d 535 (Fla. 3d DCA 1992). An IME is essential to allow an insurance company to determine the legitimacy of the bills. See Tindall v. Allstate Ins. Co., 472 So. 2d 1291 (Fla. 2d DCA 1985) [“… an unreasonable refusal of a claimant to submit to an examination alleviates the insurer of any further liability for PIP benefits”].
Secondly, Rogue’s direction to Ocean Harbor not to pay Dr. Barry’s bills created a question of fact as to whether or not Ocean Harbor was responsible for those bills. She expressly represented that the bills were not authorized and that she had sought treatment from other providers, leaving the impression that Dr. Barry’s bills were problematic or inapposite. Roque may have been intending to allocate her PIP benefits in such a way as to maximize those benefits (by paying Dr. Barry last), but that intent was not clear from her June 15th letter.
Moreover, a review of the record indicates that there is a substantial question of fact as to what, if anything, is owed. While this point was not raised before the Panel, probably because Ocean Harbor did not move for summary judgment in the court below, it is still an important consideration. Lastly, it appears that the Appellee is not entitled to recovery for Dr. Barry’s bills for the same reason she was not entitled to PIP benefits on the other bills; namely, her waiver of PIP benefits by virtue of not attending the second IME. Her bills from Dr. Barry were submitted for the first time for payment, by her, after she unreasonably refused to attend the second IME. See De Ferrari v. Government Employees Ins. Co., 613 So. 2d 101 (Fla. 3d DCA 1993) [the refusal or failure to submit to an independent medical examination is a condition precedent to coverage]. As such, the trial court’s order of May 3, 2000, must be reversed. (GERSTEIN and WILSON, JJ. concur.)
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