9 Fla. L. Weekly Supp. 21b
Insurance — Personal injury protection — Error to enter summary judgment in favor of insurer in insured’s action for PIP benefits on ground that insured unreasonably failed to attend independent medical examination where insurer waived defense of unreasonable refusal by rescheduling the IME — Language in notice of second IME, stating that failure to attend second IME would cause insured’s PIP benefits to be suspended as of date of prior appointment, did not negate waiver that ensued from rescheduling — By rescheduling IME, insurer waives right to deny PIP benefits for refusal to attend IME irrespective of whether insured unreasonably failed to attend first IME
JOANN TOMAS, Appellant, vs. U.S. SECURITY INSURANCE COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 01-008 AP. Lower Court Case No. 96-80 CC 24. Opinion filed November 6, 2001. An appeal from the County Court, David H. Young, Judge, in and for Miami-Dade County Florida. Counsel: Roy D. Wasson, Scott J. Jontiff and Mark A. Kaire, for Appellant. David B. Pakula, for Appellee.
(Before JUDITH KREEGER, ROBERTO M. PINEIRO, LAWRENCE A. SCHWARTZ, JJ.)
(KREEGER, J.) The Appellant, Joann Tomas (“Tomas”), was insured under a policy for personal injury protection (PIP) benefits provided by the appellee, U.S. Security Insurance Company (“U.S. Security”). On May 11,1995, Tomas was involved in an automobile accident and she sought benefits under that policy. Pursuant to §627.736(7)(a), Fla. Stat. (1995), U.S. Security requested Tomas to submit to an Independent Medical Examination.
Tomas did not attend this examination. She testified in her deposition that she told a U.S. Security adjuster she could not attend at the scheduled time. When asked by U.S. Security why she did not attend, Tomas responded (months later) that she could not remember, but she knew “something must have happened.” Tomas eventually admitted that she offered no explanation to the adjuster about why she could not attend.
Although it was U.S. Security’s policy not to reschedule missed IMEs, U S. Security scheduled a second appointment for her. Tomas did not attend this appointment either, because the notice U.S. Security sent to her attorney advising her of the new appointment was mis-filed in his office by a temporary secretary.1
After U.S. Security denied her claim, Tomas filed suit. U.S. Security moved for summary judgment based on Tomas’s failure to attend the first IME pursuant to §627.736(7)(b), Fla. Stat., claiming Tomas unreasonably failed to attend. The lower court denied this motion. The case was subsequently transferred to Judge Young. Then U.S. Security moved again for summary judgment, this time claiming Tomas unreasonably failed to attend the second scheduled IME. This motion was also denied.
U.S. Security again moved for summary judgment, this time arguing (again) that Tomas unreasonably failed to attend the first scheduled IME. Judge Young granted that motion, thus reversing the first judge’s ruling.
Tomas now appeals the summary judgment,2 asserting that the lower court erred because: (1) U.S. Security failed to carry its burden of producing evidence that Tomas unreasonably refused to attend (its affirmative defense to Tomas’s claim); (2) even if U.S. Security produced evidence of unreasonable refusal, it had waived that defense by rescheduling the second IME; and (3) U.S. Security waived that defense when it paid a portion of Tomas’s claims.3 Because we agree that U.S. Security waived its defense of unreasonable refusal by rescheduling the IME, we decline to address the other two points.
Reversed and remanded for proceeding consistent herewith.
Our reasoning is based upon Ponders v. Fortune Ins. Co., 578So. 2d 1129 (Fla. 3d DCA 1991) and Universal Medical Center of South Florida v. Fortune Insurance Co., 761So.2d 386 (Fla. 3d DCA 2000). In Ponders, the insured, Ponders, failed to attend the first scheduled IME, and Fortune scheduled a second one. Later, Fortune canceled the second appointment and denied Ponders benefits based on her failure to attend the first one. The court stated:
Assuming, without deciding, that the insured Berineth Ponders unreasonably refused to submit to an examination by a chiropractor scheduled by the agent of her insurer Fortune Insurance Company on January 4, 1990, a matter concerning which we have grave doubt — we nonetheless conclude that Fortune was not entitled to deny PIP benefits to the insured under Section 627.736(7)(b), Fla.Stat. (1989) based on this refusal. We reach this result because Fortune waived whatever rights it had, if any, to deny PIP benefits to the insured based on the aforesaid refusal when Fortune, through its agent, rescheduled the same chiropractic examination.
Ponders, 578 So. 2d at 1129-1130.
U.S. Security attempts to distinguish Ponders from this case. First, U.S. Security argues that the letter sent to Tomas’s attorney informing him of the second IME contained the following language:
PLEASE BE ADVISED THAT HIS/HER FAILURE TO ATTEND THIS EXAMINATION WILL CAUSE HIS/HER PIP BENEFITS TO BE SUSPENDED AS OF 8/18/95, THE DATE OF THE PRIOR APPOINTMENT.
U.S. Security argues this language negated that by scheduling a second appointment, it waived its rights to deny benefits based on Tomas’s failure to attend the first IME. This language did not preserve U.S. Security’s right to cancel benefits based on Tomas’s failure to attend the first appointment. As correctly pointed out by U.S. Security, “[w]aiver is the intentional relinquishment of a known right.” See Mamba Engineering Co. v. Jacksonville Elec. Authority, 470 So. 2d 758, 759 (Fla. 1st DCA 1985). However, we believe when U.S. Security rescheduled the examination, especially in the light of the fact that it was its policy not to do so, this amounted to an intentional relinquishment of this right. Indeed, the language contained in the second notice can be interpreted as trying to “end-run” the mandates of Ponders: we waive our rights by rescheduling, but do not waive them by rescheduling. Arguably, this language would allow U.S. Security to cancel benefits based upon Tomas’s failure to attend the first IME even if she had gone ahead and dutifully attended the second IME, an opportunity U.S. Security clearly gave her. Under this language, Tomas’s attendance at the second IME would be irrelevant, because benefits would have already been denied or deniable. We do not think such a scenario benefits public policy; indeed, even perhaps raising an issue of equitable estoppel. See generally Yorke v. Noble, 466 So. 2d 349 (Fla. 4th DCA 1985).
Secondly, U.S. Security argues that the insured (Tomas) did not object to the time, location or other circumstances regarding the first examination, unlike in Ponders, and that in this case, the insurer scheduled the second IME with the same doctor, at the same location and under the same circumstances as the first exam. Although these particular facts may differ, this distinction has no legal consequence. We construe Ponders as holding that by rescheduling the IME, the insurer waives its right to deny PIP benefits under §627.73 6(7)(b), Fla. Stat., irrespective of whether the insured unreasonably failed to attend the first one. This result is consistent with Universal Medical Center of So. Fla.
For these reasons, we reverse the lower court’s granting summary judgment to U.S. Security, finding that U.S. Security was not entitled to a judgment as a matter of law. We also grant Tomas’s motion for attorney fees pursuant to §§627.736(8) & 627.428, Florida Statutes. We remand to the trial court for further proceedings and determination in accordance with this decision. (PINEIRO and SCHWARTZ, JJ., concur.)
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1Notice was sent to Tomas as well, but she testified that she did not receive it.
2Whether the lower court was correct in denying U.S. Security’s motion for summary judgment for Tomas’ failure to attend the second IME is not before us, because U.S. Security did not cross-appeal from that ruling.
3Five days before Tomas filed this lawsuit, U.S. Security paid Pro Tech Diagnostic $1,500.00 in full and final settlement of PIP benefits for services rendered to Tomas.
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