9 Fla. L. Weekly Supp. 817b
Insurance — Personal injury protection — Summary judgment — Due process — No error in granting insured’s renewed motion for summary judgment at hearing on set trial date which was continuance of properly noticed pretrial conference — Independent medical examination — Location — MRI is treatment within meaning of section 627.736(7)(a), which allows IMEs to be conducted where insured resides or receives treatment — Trial court erred in finding that IMEs could not be conducted in locale where insured had previously received MRI — No error in denying summary judgment on insurer’s affirmative defense that insured unreasonably refused to submit to two properly scheduled IMEs where insured’s claim that she was not notified of IMEs by her counsel and evidence that insured’s counsel did not have her correct address or telephone number raised issues of material fact
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. SHARON TURNER, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 00-396 AP. L.C. No. 97-14255 CC 23 (01). October 22, 2002. An Appeal from the County Court for Miami-Dade County, Florida, Myriam Lehr, J. Counsel: June G. Hoffman, Patti A. Meeks, and Marc J. Schleier, Fowler, White, Burnett, Hurley, Banick & Strictroot, P.A., for Appellant. Pamela Beckham, Beckham and Beckham P.A.; and Russell A. Dohan, Law Offices of Russell A. Dohan, P.A., for Appellee.
(Before AMY STEELE DONNER, NORMAN S. GERSTEIN, and JUDITH L. KREEGER, JJ.)
(NORMAN S. GERSTEIN, J.) Appellant, United Automobile Insurance Company, appeals from a Final Summary Judgment granting Appellee, Sharon Turner’s ore tenus renewed motion for summary judgment below and denying its motion for summary judgment. In 1997, Appellee was involved in an automobile accident in which she sustained physical injuries. Appellee had an automobile insurance policy with the Appellant that provided personal injury protection (PIP) benefits.
At the time of the accident, Appellee’s residence was in the City of Miami Beach and after the accident, she moved to North Miami. Appellee received medical treatment in Aventura. An MRI was performed in North Miami Beach. Appellant scheduled two independent medical examinations (IMEs) for the Appellee in North Miami Beach. Appellee failed to attend. Subsequently, Appellant failed to pay any medical bills and Appellee filed suit below under the Florida Motor Vehicle No Fault Law to recover PIP benefits. Appellant raises three meritorious arguments on appeal. A summary judgment standard applies upon appellate review. See Holl v. Talcott, 191 So. 2d 40, 44 (Fla. 1966).I.
Appellant first contends that it was denied procedural due process pursuant to Fla. R. Civ. P. 1.510(c) when the lower court granted at a hearing Appellee’s ore tenus renewed motion for summary judgment without notice. Appellee claimed that the hearing was a continuation of a pretrial conference. Appellee relied on Ferguson v V.S.L. Corp., 528 So. 2d 32, 33 (Fla. 3d DCA 1988) in which a summary judgment hearing conducted sua sponte before trial was found to be properly noticed and not a violation of due process as the hearing was a continuation of a properly noticed pretrial conference and not an unnoticed summary judgment hearing. Appellant conceded at oral argument before this Court that Ferguson controlled.
Originally, the lower court had denied Appellee’s motion for summary judgment. Subsequently, a properly noticed pretrial conference was held in which a jury trial was set. A pretrial conference order indicated an intent to rule on all motions not previously disposed of by the lower court. Implicit in every pre-trial conference is the possibility that summary judgment might be rendered. See Bartlett Constr. Inc. v. Coastal Plains Inc., 353 So. 2d 892, 893 (Fla. 3d DCA 1977).
During a telephone status conference, the lower court decided sua sponte that it would hear Appellee’s ore tenus renewed motion for summary judgment the following day, the set trial date. At the hearing on the day of trial, Appellant objected based on timeliness. According to the record on appeal, Appellant had not objected at the telephonic status conference and knew the ore tenus renewed motion was to be heard the day of trial. We find Appellant did not waive its objection as it objected at the time of the hearing. However, in light of Ferguson, we do not find that the lower court erred and denied procedural due process in having the hearing on the set trial date as prior notice existed of the pretrial conference.II.
Next, Appellant contends as a matter of law that the lower court erred in determining that MRI exams do not constitute treatment under §627.736(7)(a), Fla. Stat. (1995) of the Florida Motor Vehicle No Fault Law. Appellee claims that an MRI is not receiving treatment and that Appellant’s IMEs were not properly set in North Miami Beach where the Appellee neither resided or received treatment. The lower court determined on Final Summary Judgment that the above statute was ambiguous because the phrase “receiving treatment” was not defined. The lower court then found that the prior MRI examination in North Miami Beach was a diagnostic test rather than treatment and therefore the Appellant could not have conducted the IMEs in North Miami Beach. We disagree.
The lower court correctly found that it is a policy that Florida No-Fault laws should be liberally construed in favor of the insured. See Viles v. United Auto Ins. Co., 5Fla. L. Weekly C170 (Fla. 11th Cir. Ct. Nov. 6, 1997). However, it is also true that statutes are not to be construed to yield an unreasonable or ridiculous result Id. During the legislative session of 1988, §627.736(7)(a), Fla. Stat. was amended in part to provide for the location of mental or physical examinations of injured persons which provided the phrase “receiving treatment” at issue. Ch. 88-370, §20 at 1921, Laws of Fla.
In construing statutory language, it is fundamental that the words used by the legislature must be given their ordinary meaning. See United Auto. Ins. Co. v. Viles, 726 So. 2d 320, 321 (Fla. 3d DCA 1998). Where the statutory language is plain and unambiguous, a court is not free to add words to give it a meaning which its plain wording does not apply. See James Talcott, Inc. v. Bank of Miami Beach, 143 So. 2d 657, 659 (Fla. 3d DCA 1962).
There is no statutory definition of the word “treatment” in the phrase “receiving treatment” under the above statute. The legislature did not define it when the phrase above was amended in 1988. See H.R. Committee on Insurance, Final Staff Analysis & Economic Impact Statement, CS/HB 1216, 1188, 552, 882, 883 (June 27,1988). However, the legislature is not required to define each and every word in a statute to clearly express its will, and thus a statute is not necessarily ambiguous merely because it contains a term without a statutory definition. See Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993). We find that §627.736(7)(a), Fla. Stat. is not ambiguous for failing to define the term treatment as the plain meaning can be applied.
In absence of a statutory definition, courts may refer to dictionary definitions to ascertain the plain meaning of a term used in a statute. See LB. v. State, 700 So. 2d 370, 372 (Fla. 1997). Treatment is defined in Black’s Law Dictionary as “[a] broad term covering all of the steps taken to effect a cure of an injury or disease, including examination and diagnosis as well as application of remedies.” See Black’s Law Dictionary, 1346 (5th ed. 1979). Further, this definition was cited with approval in Simmons v. Provident Mut. Life Ins. Co., 496 So. 2d 243, 245 (Fla. 3d DCA 1986) when the court found in construing the scope of a medical treatment exclusion provision in a policy that an insured could not recover for a loss caused by an arteriogram as it was part of the insured’s treatment.
The Simmons court reiterated the legal meaning of treatment as broadly encompassing not only what a physician views as treatment in an effort to cure, but also all of the things performed by him or her on the patient in the diagnosis of a cure. Id. Thus, we find the term treatment has encompassed diagnostic procedures as such procedures are an indispensable part of the overall process by which medical practitioners seek to alleviate patients’ symptoms.
In applying the plain meaning of §627.736(7)(a), Fla. Stat. to this case, an MRI is a diagnostic test and the term treatment broadly includes such diagnostic procedures. If the lower court’s construction of the term treatment were to be adopted, it would be too restrictive. Although the MRI was performed by a technician located in North Miami Beach, it was ordered by the Appellee’s treating physician in Aventura across the street to determine the etiology of the Appellee’s back pain. Logically, an MRI would be a necessary step in treatment to effectuate a cure. Based on the plain meaning of the statute, Appellee received treatment in Aventura and in North Miami Beach. Therefore, we find the lower court erred in granting Final Summary Judgment for the Appellee.III.
Lastly, Appellant argues that the lower court erred in denying Final Summary Judgment on its affirmative defense of the Appellee’s unreasonable refusal to submit to two properly scheduled IME’s. We find that material issues of fact existed as to whether Appellee unreasonably refused to attend the two IME’s and therefore, the lower court did not err in denying Appellant’s motion for summary judgment.
The IME requirement of §627.736(7)(b), Fla. Stat. gives insurers the opportunity to determine a claim so that PIP benefits can be paid. See U.S. Sec. Ins. Co. v. Silva, 693 So. 2d 593, 596 (Fla. 3d DCA), rev. denied, 700 So. 2d 687 (Fla. 1997). If an insured unreasonably refuses to submit to an IME under this statute, the insurer is no longer liable for subsequent personal injury protection benefits. See De Ferrari v. Government Employees Ins. Co., 613 So. 2d 101, 103 (Fla. 3d DCA), rev denied, 620 So. 2d 760 (Fla. 1993).
It is undisputed that Appellant sent notices of both IME’s to Appellee’s former counsel. These notices stated that the failure to appear would result in the loss of PIP benefits. Ordinarily, under the principles of agency, an attorney serves as the agent of his or her client, and therefore notice to the attorney of the IME would be imputed to the client. See Langarica v. State Farm Mut. Auto. Ins. Co., 6 Fla. L. Weekly C469 (Fla. 11th Cir. Ct. May 7, 1999). Therefore, Appellee would be deemed to have notice.
Based on the record on appeal, Appellee did not attend the first scheduled IME. However, a letter was subsequently sent by her counsel informing the Appellant that the Appellee was unable to attend, to inform her counsel of any rescheduling, and as long as no schedule conflict existed, Appellee would attend. Thereafter, Appellant rescheduled the IME and Appellee once again failed to attend. This time there was no correspondence from her counsel to the Appellant.
As to whether the refusal was unreasonable, Appellee offers as a reasonable excuse that she had no knowledge of the two scheduled IME’s because she was never notified by her counsel. If she had known, she would have attended. On the record is Appellee’s opposing affidavit to summary judgment by her former attorney showing that he did not have her correct address or telephone number. The affidavit avers that although he attempted to contact the Appellee to advise her of the scheduled IMEs, he was not advised that she had moved until after the dates of the IMEs had passed. As the record on appeal reveals genuine issues of material fact, the lower court did not err below. See Carbajo v. City of Hialeah, 514 So. 2d 425, 426 (Fla. 3d DCA 1987).
Wherefore, we find that the lower court erred in granting Final Summary Judgment below in favor of the Appellee as the plain meaning of the statute can be applied. However, the lower Court did not err in denying Final Summary Judgment as to the Appellant below as material issues of fact existed. As Appellant is the prevailing party, Appellee’s Motion for Attorney’s Fees is hereby denied.
REVERSED IN PART, AFFIRMED IN PART and REMANDED (AMY STEELE DONNER AND JUDITH L. KREEGER, JJ. concur).
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