18 Fla. L. Weekly Supp. 148a
Online Reference: FLWSUPP 1802CRUZ
Insurance — Personal injury protection — Failure to attend examination under oath — Cut-off letters notifying insured that benefits were being suspended, sent to insured’s counsel after insured had submitted to independent medical examinations, did not relieve insured of his duty to attend rescheduled EUO which related to treatment that occurred well before the cut-off date specified in the letters — Trial court erred in granting summary judgment in favor of provider based on finding that cut-off letters amounted to anticipatory breach of contract by insurer — Remand to afford insurer an opportunity to assert its EUO no-show defense at trial — Expert witness fees — No error in requiring insurer to pay expert witness fee prior to deposing insured’s treating physician
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. FEEL BETTER REHABILITATION, INC., a/a/o LUIS CRUZ, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 09-005AP, 248AP, Consolidated. L.C. Case No. 07-18286 SP 25. October 20, 2010. An Appeal From the County Court for Miami-Dade County, the Honorable Nuria Saenz, Judge. Counsel: Thomas L. Hunker, United Automobile Insurance Company, Office of the General Counsel, Miami, for Appellant. Virginia M. Best, for Appellee.
(Before GROSS, LEBAN, MILLER, B., JJ.)FACTUAL HISTORY
(LEBAN, MARK KING, J.) On April 5, 2006, Luis Cruz, an insured of United Automobile insurance company, was involved in an automobile accident. During the time period ranging from April 5 through July 19, 2006, Mr. Cruz sought medical treatment for his injuries from numerous medical providers, including an appellee, Feel Better Rehabilitation, Inc. On April 26, 2006, Feel Better submitted to United Auto medical bills for treatment rendered to Mr. Cruz on April 7, 2006. About two weeks later, on May 12, 2006, United Auto sent a notice of taking an examination under oath (EUO) to Mr. Cruz’s attorney. The notice unilaterally scheduled the EUO for one of two dates: May 23, 2006, or May 25, 2006, and further provided that “there will be no rescheduling.” Notwithstanding this latter provision, Mr. Cruz’s attorney requested that the EUO date be rescheduled for June 21, 2006, a date obviously more than 30 days after Feel Better submitted its bill to United. United Auto agreed. In the meantime, Mr. Cruz submitted to two United Auto independent medical examinations (IME) on May 30, 2006, and June 1, 2006. Shortly thereafter, on June 9, 2006, and June 14, 2006, United Auto sent Mr. Cruz’s attorney two IME cut-off letters stating that United Auto was “suspend[ing] [PIP] benefits. . . for any services rendered [to Mr. Cruz] after” May 30, 2006 and June 1, 2006, respectively.1
Mr. Cruz’s failed to attend the June 21, 2006, EUO scheduled on the date selected by his own attorney. United Auto subsequently sent Mr. Cruz’s attorney a letter stating that coverage would not be afforded due to Mr. Cruz’s failure to appear for any of the three scheduled and noticed EUO dates. Feel Better filed suit against United Auto on August 22, 2007. United Auto answered and, as an affirmative defense, argued that Mr. Cruz’s attendance at the EUO was a condition precedent to obtaining PIP benefits.
During the discovery period, United Auto sought to depose Dr. Michael Lehrer, Mr. Cruz’s treating physician. Feel Better filed a motion for protective order stating that Dr. Lehrer was an expert witness entitled to a fee for the time spent preparing for deposition testimony. United Auto objected, but the lower court granted Dr. Lehrer a fee of $350 per hour for deposition testimony.
Feel Better moved for summary judgment on the EUO no-show issue. A hearing was held and Feel Better argued that Mr. Cruz was not required to attend the EUO because the IME cut off letters constituted an anticipatory repudiation. In other words, Feel Better contended that the IME cut-off letters put Mr. Cruz on notice that United Auto would not be paying his claims. As such, Feel Better argued, Mr. Cruz was under no obligation to attend an EUO where United Auto had already informed him that his claims were not going to be paid. The lower court granted summary judgment in favor of Feel Better and awarded Feel Better attorney’s fees and costs. This appeal followed. While United Auto did provide what appears to be most of the lower court record on appeal, it did not include in this record a transcript of the hearing on Dr. Lehrer’s entitlement to an expert witness fee.
INTRODUCTION
This appeal raises two issues. First, did the lower court err in requiring United Auto to pay an expert witness fee prior to deposing an insured’s treating physician? Second, did the lower court err in granting summary judgment in favor of Feel Better with regard to the EUO no show affirmative defense?
For the reasons that follow, we hold on the first issue that the lower court did not err in requiring United Auto to pay an expert witness fee prior to deposing the insured’s treating physician. The plain language of Florida Rule of Civil Procedure 1.390(a) authorizes such a fee and no other rule of procedure affects the interpretation of Rule 1.390. As to the second issue, we hold that the lower court erred in granting summary judgment in favor of Feel Better. United Auto’s IME cut-off letter did not constitute an anticipatory repudiation that relieved Mr. Cruz of his duty to attend the scheduled EUO. The IME cut-off letter only suspended payment of benefits for treatment rendered after June 1, 2006. The treatment at issue here was rendered on April 7, 2006 — well before the June 1, 2006, cut-off date. Thus, the IME cut-off letter could not reasonably have applied to the medical services rendered in this case. As a result, Mr. Cruz remained bound to attend EUO notwithstanding the IME cut-off letter.
DISCUSSION Point I -Expert Witness Fee
Where there is no transcript of the relevant hearing below included as a part of the appellate record, the trial court’s ruling comes to the appellate court with a presumption of correctness. Smith v. Orhama, Inc., 907 So. 2d 594, 595 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D1748a]. In the absence of such a transcript, the appellate court is limited to identifying whether there are any legal errors on the face of the lower court’s order. Porteous v. Porteous, 937 So. 2d 1179 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D2319b]. Here, the trial court’s order simply states that Dr. Lehrer “shall be paid an expert witness fee,” but does not go further to explain its reasoning. The lower court’s order, although brief, withstands appellate scrutiny since the plain language of Rule 1.390(a) defines the term “expert witness” in such a way that treating physicians, like Dr. Lehrer, qualify as experts entitled to a fee at deposition.
Florida Rule of Civil Procedure 1.390 defines “expert witness” as “a person duly and regularly engaged in the practice of a profession who holds a professional degree from a university or college and has had special professional training and experience or one possessed of special knowledge or skill about the subject upon which called to testify.” The Rule goes on to discuss an expert’s entitlement to a fee. It reads: “An expert or skilled witness whose deposition is taken shall be allowed a witness fee in such reasonable amount as the court may determine.” Fla. R. Civ. P. 1.390(c). Read alone, the Rule seems unambiguous as it relates to a duly licensed and practicing medical doctor, like Dr. Lehrer. Such doctors are “experts” under the Rule 1.390 definition and, as such are entitled to a fee upon deposition. But United Auto urges this Court to read Rule 1.390(a) together with Florida Rule of Civil Procedure 1.280. United Auto asserts that when the two rules are read in tandem, treating physicians, like Dr. Lehrer, are merely fact witnesses and cannot be considered experts entitled to a fee upon deposition.
United Auto’s reliance on Rule 1.280(b)(4) is misplaced. That Rule merely outlines the procedure one must follow in order to discover “facts . . . and opinions held by experts . . . acquired or developed in anticipation of litigation or for trial.” Under United Auto’s interpretation, Rules 1.390 and 1.280 combine to mean that expert witness fees are only appropriate in situations where the expert acquired or developed knowledge in anticipation of litigation or for trial. But this interpretation fails as not all experts acquire their knowledge and opinions in contemplation of litigation. The discovery requirements found in Rule 1.280(b)(4) apply to only one category of expert: those who acquire or develop their opinions in anticipation of trial. Rule 1.390(a), however, does not limit “expert witnesses” to only those practicing or licensed professionals who glean facts in “anticipation of litigation.” Instead, the term is defined broadly and does not reference the circumstances under which the expert became aware of the facts surrounding the case.
Further, it is significant to note that the text of Rule 1.280(b)(4) references Rule 1.390(a) in a way that favors not reading the two together at all times. Rule 1.280(b)(4)(D) directs parties and the court to Rule 1.390(a) for a definition of “expert witness” — the provision reads in pertinent part: “As used in [this rule] an expert shall be an expert witness as defined in rule 1.390(a).” The result of this language is that litigants should make two separate inquiries prior to invoking Rule 1.280 during discovery: 1) determine whether an individual “acquired knowledge in anticipation of trial” as per the language in Rule 1.280(b)(4), and, if so 2) determine whether that individual also falls under the Rule 1.390(a)’s definition of an “expert witness.” If the answer to both of the inquiries is “yes,” then litigants must use the procedures outlined in Rule 1.280(b)(4) when seeking discovery from the individual. In other words, the language in Rule 1.280(b)(4)(D) supports the proposition that the discovery provisions found in Rule 1.280(b)(4) apply to only one type of “expert witness” — the type who obtains knowledge in anticipation of litigation. Thus, contrary to United Auto’s assertion, Rule 1.280 does not limit Rule 1.390, but instead needs only be read together with Rule 1.390 for the purposes of determining whether to apply the discovery procedures outlined in Rule 1.280(b)(4) to a particular expert. It follows, then, that in situations like the one at bar, where a treating physician expert did not obtain knowledge in anticipation of litigation, Rule 1.280(b)(4) is irrelevant and Rule 1.390(a) should be read alone, instead.
United Auto relies heavily on the following cases in support of its position that an expert witness fee is not appropriate where a treating physician is sought for deposition: Fittipaldi USA Inc., v. Castroneves, 905 So. 2d 182 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D867a]; Ryder Truck Rental, Inc., v. Perez, 715 So. 2d 289 (Fla 3d DCA 1998) [23 Fla. L. Weekly D1400a]; and Frantz v. Golebiewski, 407 So. 2d 283 (Fla. 3d DCA 1981). This reliance, however, is misplaced as none of these cases addresses whether a treating physician is entitled to an expert witness fee for deposition under Fla. R. Civ. P. 1.390.
Fittipaldi, 905 So. 2d 182, concerned the testimony of an attorney not listed as an expert witness, who, upon taking the stand, gave expert opinions concerning the contract that could only have been derived from his expertise as an attorney. The Third District Court of Appeal held that the trial court erred in not excluding the expert testimony from the trial. The case did not involve Rule 1.390.
Ryder, 715 So. 2d at 289, similarly does not involve application of Rule 1.390. In fact, it does not involve the interpretation of any Rule of Civil Procedure whatsoever. Instead, Ryder addressed whether the plaintiff’s treating physicians should be considered experts for the purpose of the court’s “one expert per specialty” rule at trial. The Third District held that the trial court abused its discretion in denying the defendant the right to obtain fact testimony from the plaintiff’s treating physicians on the issue of permanent injury. The evidentiary exclusion issues presented in Ryder are unconnected to any rule of procedure and have no bearing on whether a deponent who meets the definition of an “expert witness” under Rule 1.390 is entitled to a fee upon deposition.
Lastly, in Frantz, 407 So. 2d at 283, the sole issue addressed by the appellate court concerned the applicability of Rule 1.280 — the expert witness discovery rule. There, the plaintiff sought production of a sworn statement given to the defense attorney by the plaintiff’s treating physician which the defendant had taken without notice to the plaintiff’s counsel. The Third District held that the defendant need not produce the statement as it was protected from discovery by the work-product privilege because rule 1.280(b) did not apply to all information and opinions held by experts, but only those “acquired and developed in anticipation of litigation or for trial.” Id. at 285. In short, Frantz, as in the other cases cited by the insurer, does not involve a deposition and does not address the issue of a treating physician’s entitlement to an expert witness fee under Rule 1.390. Interestingly, the Frantz court recognized in dicta that the treating dentist in the case would have been entitled to an expert fee in a deposition had he not voluntarily agreed to provide the statement to defense counsel. See Frantz, 407 So. 2d at 282, n.2 (“As a practical matter, medical professionals almost invariably insist — as every witness has the right to do — upon a formal deposition and the payment of an appropriate witness fee before giving a statement to the party adverse to his patient.”)
United Auto is correct that there are several cases originating from this appellate court that support United Auto’s assertion that a treating physician is not an expert entitled to a witness fee. See United Auto. Ins. Co. v. Total Health Ctr., Inc., 17 Fla. L. Weekly Supp. 414a (Fla. 11th Circuit Appellate, March 9, 2010); United Auto. Ins. Co. v. Dade Injury Rehab Ctr., Inc., 17 Fla. L. Weekly Supp. 82a (Fla. 11th Circuit Appellate Dec. 23, 2009); United Auto. Ins. Co. v. Florida Inst. for Pain, Inc., 17 Fla. L. Weekly Supp. 163d (Fla. 11th Circuit Appellate Dec. 9, 2009). But Circuit Court appellate cases are, at best, only persuasive, rather than controlling. Instead, this panel should more appropriately look to the District Courts of Appeal, the Florida Supreme Court and the Rules of Civil Procedure in properly analyzing this issue. Moreover, even if this Court were inclined give substantial weight to other appellate opinions in this circuit, there are numerous opinions holding that a treating physician is an expert pursuant to the plain language of Rule 1.390 and, as such, is entitled to an expert fee. See Progressive Express Insurance Co. v. Professional Med. Group, 10 Fla. L. Weekly Supp. 973a (Fla. 1lth Circuit Appellate, October 14, 2003); United Auto. Ins. Co. v. Cereceda & Associates, 15 Fla. L. Weekly Supp. 1048a (Fla. 11th Circuit Appellate, August 27, 2008); United Auto. Ins. Co. v. Garrido, 17 Fla. L. Weekly Supp. 10a (Fla. 11th Circuit Appellate, November 10, 2009).
Based on the foregoing analysis, this Court affirms the trial court’s ruling since no error appears on the face of the lower court’s order and since the plain language of the Rules of Procedure are binding on both trial and appellate courts. State v. Battle, 302 So. 2d 783 (Fla. 3d DCA 1974).Point II — EUO No Show Defense
The standard of review for summary judgment is de novo and requires this Court to view the evidence in the light most favorable to United Auto, the non-moving party. Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D1605a]. Summary judgment is proper if there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a]. If the “slightest doubt” exists, then summary judgment must be reversed. Shevin, 767 So. 2d at 525 (quoting Hancock v. Dep’t of Corr., 585 So. 2d 1068, 1070-71 (Fla. 1st DCA 1991)).
The lower court erred in granting summary judgment based upon a finding that Mr. Cruz was not required to attend the scheduled EUO. The lower court reasoned that Mr. Cruz was relieved of his contractual obligation to attend the EUO because United Auto anticipatorily breached the contract of insurance when it sent Mr. Cruz an IME cut-off letter suspending PIP benefits for medical services rendered to him after June 1, 2006. While the IME cut-off letter may have constituted a repudiation of the insurance contract for the medical serves Mr. Cruz sought after June 1, 2006, it had no bearing at all on the services at issue here as they were rendered on April 7, 2006 — almost two months before the June 1, 2006, benefits cut-off date.
While the lower court cites to Peachtree Cas. Ins. Co. v. Walden, 759 So. 2d 7 (Fla. 5th DCA 2000) [25 Fla. L. Weekly D555d] in support of its ruling, as does appellee Feel Better in support of affirmance, the Peachtree case is not factually analogous to the one at bar. Specifically, the medical bill at issue in Peachtree was incurred after the cut-off date set forth in the insurer’s suspension of benefits letter, while the medical bills at issue here were incurred before the suspension of benefits letter. This factual distinction is key and renders Peachtree inapplicable. A cut-off letter can constitute an anticipatory repudiation for services rendered after the deadline contained in the letter, as occurred in Peachtree. Such a situation conveys to the claimant that no bills from the cut-off date onward will be paid. Thus, the claimant is free to file suit without first going through the process of submitting the bill to the insurer and waiting for it to be denied. See Peachtree, 759 So. 2d at 7. It does not follow, however, that a cut-off letter can constitute an anticipatory repudiation for medical services rendered before the deadline contained in the letter, as occurred in the instant case. A cut-off letter of that sort is immaterial and unrelated to services rendered before the deadline.
Moreover, Feel Better’s argument presents a classic non sequitur. State ex rel. Landis v. Town of Lake Placid, 121 Fla. 839, 845, 164 So. 531, 533 (1935), defined what, in essence, results from appellee’s argument here, that “[b]y agreeing to schedule the taking of [the insured’s] EUO on a date when the bill had ALREADY become ‘overdue’ United sent the clear message that it was not going to pay the bill within 30 days. . .” [Answer Brief at 45; appellee’s emphasis]: “The conclusion sought to be drawn from the averments [in] the answer [brief] is a non sequitur; the assertion of a conclusion which has no connection with the premise.” Landis, supra at 533.
Further demonstrating the folly of its unjust “non sequitur,” appellee’s reliance on Peachtree Casualty Ins. Co. v Walden, 759 So.2d 7 (Fla. 5th DCA 2000) [25 Fla. L. Weekly D555d], is misplaced for that case (1) does not involve an extension of an EUO date at the request of the insured, (2) reveals the insured’s incurring of future medical treatment in reliance on the insurance company’s admitting to RRN pursuant to an erroneous cut off letter (3) and, perhaps most importantly, posits “the illogical proposition that an IME cutoff letter retroactively [and] anticipatorily repudiates pre-IME bills.” Initial Brief at 31. As observed in Rader v. Allstate Ins. Co., 789 So.2d 1045, 1047 (Fla. 4th DCA 2001) [26 Fla. L. Weekly D1430a]:
[P]etitioner’s reliance upon Peachtree is misplaced. [Partial citation omitted]. Peachtree merely stands for the limited proposition that, where an insurer has notified an insured that it no longer considers medical treatment necessary and does not intend to honor future claims, it is unnecessary, under section 627.736(4)(b), Florida Statutes, for an insured to wait thirty days from the date a claim is submitted before filing a breach of contract action as to accrued claims. Unlike the petitioner in this [Rader]case, the insured in Peachtree continued to receive medical treatment and submitted additional bills to the insurance company.
Moreover, in the case at bar, even if, as repeatedly argued by appellee, United somehow can be deemed to have breached its obligations under Florida’s no fault law by extending the EUO dates beyond the 30 day time frame AT THE REQUEST OF THE INSURED, and thus not paying the $300 claim involved in this case, the penalty for such transgression is, if unsuccessful after a trial (precluded for now by the final summary judgment order erroneously entered below), the statutory interest and attorney’s fees imposed by section 627.736 (4)(b), Fla. Stat. See Rodriguez v. United Automobile Ins. Co., 808 So.2d 82 (Fla.2002) [26 Fla. L. Weekly S747a].
The trial court also cites to United Auto. Ins. Co. v. Cicero Ortho-Medical Ctr., Inc., 12 Fla. L. Weekly Supp. 321a (Fla. 11th Circuit Appellate, January 11, 2005), in support of its ruling regarding United Auto’s EUO no show defense. But, like Peachtree, the case is not analogous to the facts here. There, the insurer’s IME doctor concluded that the claimant required further treatment. The insurer, however, misread the doctor’s conclusion and issued a benefits cut-off letter in error. The benefits assignee brought suit and the court granted its motion for summary judgment finding that the erroneously sent letter constituted a repudiation by the insurer which terminated the claimant’s obligation to attend the EUO. As such, United Auto was precluded from relying upon the EUO no-show defense. These facts are not analogous to the instant case where there was no mistake in sending the claimant a benefits cut-off letter.
The trial court also referenced United Auto. Ins. Co. v. Millennium Diagnostics & Imaging Ctr., 10 Fla. L. Weekly Supp. 971c (Fla. 11th Circuit Appellate, October 14, 2003), in support of its summary judgment order. There, the court determined that a claimant was relieved of his obligation to attend an EUO that was set for a date well-beyond the statutory 30-day period an insurer has to investigate a claim after receiving a medical bill. Fla. Stat. §627.736(4)(b). Because the insurer failed to authenticate the claim within the 30-day period, i.e., it produced no “reasonable proof’ that it was not responsible for the claim, the insurer could not use the claimant’s EUO no-show status against him at trial. Feel Better argues that this is just what occurred in the instant case — Mr. Cruz’s EUO was scheduled for a date outside the 30-day period, and, as such, United Auto did not timely compile reasonable proof that it was not responsible for the claim.
Feel Better also argues that United Auto waived its right to conduct an EUO when it scheduled Mr. Cruz’s EUO for a date outside the 30-day statutory time frame. But Feel Better’s arguments are at once puzzling, refuted by case law, and somewhat disingenuous.2 United Auto originally scheduled Mr. Cruz’s EUO on two different dates both well within the 30-day statutory period. The EUO was re-scheduled to a date outside the 30-day period at Mr. Cruz’s request. In Miami Child’s World, Inc. v. City of Miami Beach, 688 So.2d 942, 943 (Fla. 3d DCA 1997) [22 Fla. L. Weekly D364c], the Third District rejected a similar argument as that advanced by Feel Better in the case at bar. Miami Child’s World demonstrates what this Court can only characterize as the legal inaccuracy, if not the absurdity of Feel Better’s principle claim here that United’s largess in granting the insured’s attorney’s request for an extension of the EUO dates, notwithstanding its May 12, 2006 Notice of Taking of EUO’s assertion that “there will be no rescheduling” (Answer Brief at 7), constituted both a “ploy” (id. at 33) and a “waive[r] of a known right.” (Id. at 43). Miami Child’s World, in similar circumstances, held:
As a matter of law, the City’s repeated extensions of the closing date did not amount to a waiver of the “time is of the essence” clause. See Faussner v. Weyer, 432 So.2d 100 (Fla. 2d DCA) (where seller gave repeated extensions of time to purchaser, who was unable to raise funds for purchase of real estate, those extensions did not constitute waiver or estoppel), rev. denied, 440 So.2d 351 (Fla.1983). MCW’s only premise for its waiver argument was the City’s patience and forbearance evidenced by its repeated granting of extensions. As in Faussner, forbearance alone is insufficient to establish a waiver. 688 So.2d at 943.
Further, this Court should not use United Auto’s cooperative efforts with its insured to its detriment since such collaboration is overwhelmingly encouraged by the judiciary. See, The Florida Bar v. Buckle, 771 So.2d 1131, 1134 (Fla. 2000) [25 Fla. L. Weekly S815a] (“the principles underlying the [R]ules [of Professional Conduct] include basic fairness, respect for others, human dignity, and upholding the quality of justice. Zealous advocacy cannot be translated to mean win at all costs, and although the line may be difficult to establish, standards of good taste and professionalism must be maintained. . .”.)
None of the cases cited by the lower court are applicable to the facts at hand. Mr. Cruz’s failure to attend the EUO constituted a genuine issue of material fact precluding summary judgment. Thus, this Court must reverse the lower court’s ruling and allow United Auto to assert its EUO no show defense at trial. See, e.g., Goldman v. State Farm Fire Gen. Ins. Co., 660 So. 2d 300, 303 (Fla. 4th DCA 1995) [20 Fla. L. Weekly D1844a]; Stringer v. Fireman’s Fund Ins. Co., 622 So.2d 145, 146 (Fla. 3d DCA 1993).
Further, because the summary judgment ruling is being reversed, the attorney’s fee and costs award in favor of Feel Better should likewise be reversed. Dooley and Mack Constructors, Inc. v. Buildtec Constr. Group, Inc., 983 So. 2d 1243, 1244 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D1657a] (“[A]n award of attorney’s fees and costs predicated on a reversed or vacated final judgment also must be reversed.”), citing Marty v. Bainter, 727 So. 2d 1124, 1125 (Fla. 1st DCA 1999) [24 Fla. L. Weekly D695a].
CONCLUSION
The lower court did not err in requiring United Auto to pay an expert witness fee prior to deposing the insured’s treating physician. The plain language of Florida Rule of Civil Procedure 1.390(a) authorizes such a fee and no other rule of procedure affects the interpretation of Rule 1.390(a). Thus, on Point I, this Court affirms the trial court’s ruling on the expert fee issue.
The trial court did err, however, in granting summary judgment in favor of Feel Better. United Auto’s IME cut-off letter did not constitute an anticipatory repudiation that relieved Mr. Cruz of his duty to attend the re-scheduled EUO. The IME cut-off letter only suspended payment of benefits for treatment rendered after June 1, 2006. The treatment at issue here was rendered on April 7, 2006 — well before the June 1st cut-off date. As a result, the IME cut-off letter could not reasonably have applied to the medical services rendered in this case. Accordingly, Mr. Cruz remained bound to attend the EUO and United Auto should be allowed to assert its EUO no show defense. We thus reverse the entry of summary judgment, Point II, and the order awarding attorney’s fees and costs to Feel Better, and remand this cause to the trial court for proceedings consistent with this opinion. (GROSS, J. concurs. MILLER, B., J. concurs on Point I and concurs in result only on Point II.)
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1The benefits cut-off letter referencing a suspension-of-benefits date of June 1, 2006, pertained to medical services, while the benefits cut-off letter referencing a suspension-of-benefits date of May 30, 2006, pertained to chiropractic services. The former letter is the only one at issue here.
2“Thus lending credence to the adage that no good deed goes unpunished.” Velez v. City of Coral Gables, 819 So.2d 895, 897 (Fla. 3d DCA 2002) [27 Fla. L. Weekly D1401b].
