Third District Court of Appeal
State of Florida
Opinion filed September 14, 2022.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D21-0039
Lower Tribunal Nos. 19-133 AP & 11-7436 CC
________________
United Automobile Insurance Company, etc.,
Appellant,
vs.
G & O Rehabilitation Center, Inc.,
a/a/o Miredy Dieguez Moreno,
Appellee.
An Appeal from the County Court for Miami-Dade County, Lawrence
D. King, Judge.
Michael J. Neimand, for appellant.
Berger & Hicks, P.A., and Adam C. Loeb and Martin I. Berger, for
appellee.
Before EMAS, SCALES and LOBREE, JJ.
LOBREE, J.
United Automobile Insurance Company (“United Auto”) challenges the
trial court’s entry of summary judgment in favor of the provider, G & O
Rehabilitation Center, Inc., as erroneous due to the existence of triable
issues of fact. We agree and reverse in part.
BACKGROUND
In October 2011, the provider sued United Auto, alleging that it failed
to make required no-fault benefits payments within thirty days of receiving
the outstanding medical bills as required by section 627.736(4)(b), Florida
Statutes (2011). 1 United Auto answered, asserting as an affirmative defense
that the insured failed to attend an independent medical examination (“IME”)
scheduled for June 10, 2011, contrary to section 627.736(7). The provider
filed a reply avoiding this defense, in part, “if . . . it is determined that . . . a
reasonable excuse for non-attendance regarding the same is available.”
Two months after the reply, the provider filed with the trial court a copy
of the insured’s affidavit, which relevantly explained that she “did everything
possible [t]o attend the IME Appointment including leaving my work while I
was on duty.” However, when she reached the building, “it was very difficult
1
There is no statement in the record as to when United Auto received the
medical bills, but the record does contain two sets of health insurance claim
forms that show, at a minimum, the earliest date of receipt of medical bills by
United Auto. One set is dated May 24, 2011, and covers services provided
from April 29, 2011, through May 24, 2011. A second set is dated July 1,
2011, and covers services rendered May 25, 2011, through June 28, 2011.
2
to find a parking space in the [s]ame building and around the building,” for
which reason she “could not attend to the appointment and . . . had [t]o return
to work since I was on a short break.” She added that, since she worked
Monday through Saturday from 7:00 a.m. to 7:00 p.m., “it [wa]s impossible
for me [t]o leave my work continuously,” and that she “tried every way I could
to comply with [w]hat the insurance company was asking me to do,”
observing that she had managed to “go to the first IME which I did not have
any difficulty attending.” The provider subsequently moved for summary
judgment on United Auto’s IME no-show defense, attaching the insured’s
affidavit. After a hearing for which we lack a transcript, the trial court granted
the motion.
ANALYSIS
“Summary judgment is proper if there is no genuine issue of material
fact and if the moving party is entitled to a judgment as a matter of law. Thus,
our standard of review is de novo.” Volusia Cnty. v. Aberdeen at Ormond
Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) (citation omitted).
United Auto contends that the trial court erroneously required it to
make a showing of prejudice caused by the insured’s failure to attend the
IME, as well as that the insured’s affidavit, upon which the trial court
exclusively relied, revealed a triable issue concerning the reasonableness of
3
the insured’s failure to attend, making summary judgment improper. 2 Both
arguments are well taken.
United Auto argues that the trial court applied the wrong legal standard
in requiring it to show that it was prejudiced by the insured’s failure to attend
the second IME. Section 627.736(7), Florida Statutes (2011), relevantly
reads:
(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
benefits, such person shall, upon the request of an
insurer, submit to mental or physical examination by
a physician . . . .
(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.
2
We reject the provider’s contention that we lack a meaningful record to
review or that United Auto’s arguments were not sufficiently preserved
merely because a transcript of the hearing is unavailable. United Auto is
only required to “bring up the summary judgment record, that is, the motion,
supporting and opposing papers, and other matters of record which were
pertinent to the summary judgment motion.” Seal Prods. v. Mansfield, 705
So. 2d 973, 975 (Fla. 3d DCA 1998). While we lack a transcript, we have
copies of the motion, the documents relied on, the pleadings, and the trial
court’s written order. Although a transcript may be necessary to show that a
non-movant has preserved an argument, see Johnson v. Deutsche Bank
Nat’l Tr. Co. Americas, 248 So. 3d 1205, 1210-11 (Fla. 2d DCA 2018), here
the record sufficiently shows that United Auto properly raised these
arguments below.
4
Under the statute’s plain language, “attendance at a medical examination is
a condition precedent to the receipt of only subsequent PIP benefits under
an existing auto insurance policy.” Custer Med. Ctr. v. United Auto. Ins. Co.,
62 So. 3d 1086, 1099 (Fla. 2010) (citing U.S. Sec. Ins. Co. v. Cimino, 754
So. 2d 697, 701–02 (Fla. 2000)).
The trial court erroneously concluded that United Auto was required to
show that it was prejudiced as a result of the insured’s failure to appear at
the IME pursuant to State Farm Mutual Automobile Insurance Co. v. Curran,
135 So. 3d 1071 (Fla. 2014). In Curran, the Court held that a compulsory
medical examination (“CME”) “provision in the UM coverage context is not a
condition precedent to coverage and we find that an insured’s breach of this
provision should not result in post-occurrence forfeiture of insurance
coverage without regard to prejudice.” Id. at 1079. Because a CME
provision is a condition subsequent to coverage and not a condition
precedent, the Court “concluded that prejudice is a necessary consideration
when the insured breaches a CME provision.” Id. Curran, however,
addressed an uninsured motorist (“UM”) policy governed by section 627.727,
Florida Statutes (2007), which is distinguishable from other personal injury
5
protection cases, governed by the version of section 627.736 at issue here.3
Compare State Farm Mut. Auto. Ins. v. Curran, 83 So. 3d 793, 804 (Fla. 5th
DCA 2011), approved, 135 So. 3d 1071, 1080 (Fla. 2014) (“[T]he PIP statute
contains a penalty for an unreasonable refusal to attend a CME. It imposes
a bar on the recovery of ‘subsequent personal injury protection benefits.’
There is no similar statute relating to UM claims.” (quoting § 627.736(7), Fla.
Stat. (2010))), with Oretsky v. Infinity Ins. Co., No. 12-60497-CIV, 2012 WL
6738531, at * 9 (S.D. Fla. Dec. 31, 2012) (reasoning that Curran’s holding
was required by fact that nothing in language of uninsured motorist policy at
issue imposed forfeiture of benefits in event of breach of duty to attend
medical examination). Unlike UM cases, where the prejudice analysis post-
Curran aims to prevent an insurer from “winning on a technicality and
violat[ing] the general rule against forfeiture,” based on a single policy
provision, Allstate Floridian Ins. Co. v. Farmer, 104 So. 3d 1242, 1250 (Fla.
5th DCA 2012), the personal injury protection statute’s requirement of IME
attendance is substantive, not merely technical, and a condition precedent
(not subsequent) to United Auto’s duty to pay benefits within the thirty-day
requirement set forth in section 627.736(4)(b).
3
We recognize that section 627.736 has been subsequently amended and
express no view of what the result would be under the current version.
6
While Custer noted that an insured’s failure to attend an IME “may be
a condition subsequent that divests the insured’s right to receive further
subsequent PIP benefits,” this was an alternative characterization to the
holding that “[a]ttendance at a medical examination may be a condition
precedent to the payment of subsequent PIP benefits.” 62 So. 3d at 1099.
Best understood as a condition precedent to payment for subsequent
benefits not yet overdue, attendance at an IME cannot here be construed so
that its breach requires any showing of prejudice on the part of United Auto.
As such, the trial court applied the wrong legal standard in awarding
summary judgment.
United Auto also argues that summary judgment was improper
because the insured’s affidavit raised a triable issue concerning the
reasonableness of the excuse proffered for her failure to attend the IME.
Pursuant to Custer, United Auto “clearly ha[s] the burden of pleading and
proving its affirmative defense; therefore, it [i]s required to present evidence
to the fact-finder that [the insured] unreasonably failed to attend a medical
examination without explanation after having received proper notice.” 62 So.
3d at 1097. It held that: “(1) because an insured may reasonably refuse to
attend a medical examination, a mere allegation or demonstration of simple
failure to attend is insufficient to prove that an insured unreasonably refused
7
to submit to the medical examination, and (2) attendance at a medical
examination is not a condition precedent to the payment of benefits for prior
antecedent PIP benefits under an existing auto insurance policy.” Id. at
1100. Evidence of failure to attend an IME is relevant—but insufficient, on
its own—to prove that the insured “refused” to attend. Id. at 1097
(“[E]vidence of a ‘refusal,’ . . . has been characterized as distinct from
evidence that establishes only that an insured failed to attend a medical
examination.”) (citing Lamora v. United Auto. Ins. Co., 8 Fla. L. Weekly Supp.
542a (Fla. 11th Cir. Ct. June 19, 2001)).
Evidence of refusal, in turn, is also different from evidence that a
refusal was “unreasonable.” Id. at 1097 (“[T]he trier of fact was not
presented with affirmative evidence that Masis actually received notice of the
scheduled medical examinations or that any failure was unreasonable.”)
(emphasis added). Contrary to the provider’s assertion otherwise, we
emphasize that “the failure to attend a medical examination may or may not
be unreasonable depending upon the evidence presented by the insurer.”
Custer, 62 So. 3d at 1097 (emphasis added). Therefore, ordinarily, “the
reasonableness of an insured’s conduct is a question of fact for the jury, not
a question of law for the court.” Id. at 1098 (citing Lamora, 8 Fla. L. Weekly
Supp. at 542a); see also Fonseca v. Star Cas. Auto. Ins. Co., 10 Fla. L.
8
Weekly Supp. 865a, 865a (Fla. 11th Cir. Ct. Sept. 2, 2003) (“Whether an
insured unreasonably refused to attend a scheduled IME is a factual
question that should be determined by a jury.”); cf. Lewis v. Liberty Mut. Ins.
Co., 121 So. 3d 1136, 1137 (Fla. 4th DCA 2013) (noting that even if reversal
was not compelled by precedent, reversal of summary judgment for insurer
was appropriate because issue of fact remained as to whether insured’s
refusal to attend examination under oath under conditions set by insurer was
unreasonable).
Here, United Auto sufficiently relied on the insured’s own affidavit to
show that a triable issue existed about the reasonableness of her excuse not
to attend the second IME. Whether the insured’s inability to find parking for
her IME appointment constitutes an unreasonable refusal to submit to an
examination is clearly a debatable, fact-driven inquiry. See United Auto. Ins.
Co. v. Gaitan, 41 So. 3d 268, 269 (Fla. 3d DCA 2010) (holding that circuit
court appellate division did not depart from essential requirements of law
when it remanded issue of reasonableness of insured’s refusal to attend
chiropractic IME on basis that insured had never seen chiropractor and was
not seeking chiropractic benefits); Margate Physicians Assocs., Inc. v.
United Auto. Ins. Co., 22 Fla. L. Weekly Supp. 681a, 681a (Fla. 17th Cir. Ct.
Jan. 10, 2011) (reversing summary judgment where undisputed record
9
evidence showed insurer did not allow insured to timely reschedule
appointment despite insured informing insurer that he did not understand
notices that were not in Spanish); Lamora, 8 Fla. L. Weekly Supp. at 542a
(reversing summary judgment where, “[a]ssuming arguendo that [insured’s]
failure to appear could be determined as a matter of law to be a ‘refusal,’ a
jury could find her to have acted reasonably,” since insured “testified that she
never refused to be examined, [but] simply attempted to reschedule the
examinations”).
The provider’s argument that reasonableness was demonstrated by
the affidavit as a matter of law is unpersuasive. This case is not analogous
to those rare cases concluding that the excuse proffered, by itself, was
reasonable or unreasonable “patently” and as a matter of law. See, e.g.,
Comprehensive Health Ctr., Inc. v. United Auto. Ins. Co., 56 So. 3d 41, 44
(Fla. 3d DCA 2010) (“When a claimant is represented by counsel and
counsel received valid notice via certified mail, it is not a reasonable excuse
for non-attendance if counsel did not tell the claimant, just the same as would
be an unexplained failure to attend.”); Universal Med. Ctr. of S. Fla. v.
Fortune Ins. Co., 761 So. 2d 386 (Fla. 3d DCA 2000) (reversing judgment in
favor of insurer and holding there was no substantial competent evidence
that insured unreasonably refused to attend IME where it was undisputed
10
insurer did not promptly respond to insured’s first and only request to cancel
IME because insured had finished medical treatment and insurer failed to
timely notify that it would not cancel); Allstate Ins. Co. v. Graham, 541 So.
2d 160, 162 (Fla. 2d DCA 1989) (remanding for entry of final judgment in
favor of insurer where insured’s only excuse for failure to attend was advice
of counsel); Tindall v. Allstate Ins. Co., 472 So. 2d 1291, 1293 (Fla. 2d DCA
1985) (“Tindall offered nothing that would generate even the slightest fact
question associated with his refusal to submit to the examinations; Allstate’s
request was patently not unreasonable.”); cf. Cimino, 754 So. 2d at 702 (“By
using the term ‘unreasonably refuses to submit’ in both the conditions section
of the policy and subsection 627.736(b), it is logical to deduce there are
scenarios where the insured ‘reasonably refuses to submit’ to the
examination. In a situation where the insured wants an attorney or other
third-party present at the examination, the burden is on the party opposing
the third party’s presence to prove that the presence is unreasonable.”).
Accordingly, the trial court erred in granting summary judgment, where a
triable issue remained concerning the reasonableness of the insured’s
failure to attend.
Notwithstanding this conclusion, our analysis does not stop here.
“Additionally the status of both prior and subsequent benefits must be
11
considered.” Custer, 62 So. 3d at 1097 (citing Tindall, 472 So. 2d at 1293-
94, for proposition that “summary judgment [is] limited to only subsequent
benefits”). Here, the trial court found that the outstanding bills were for
services taking place on April 29, 2011 through June 28, 2011. The IME not
attended by the insured was scheduled for June 10, 2011. Thus, United
Auto’s IME no-show defense only applies to services rendered subsequent
to that date and “to medical bills which are received by the insurer after the
failure to attend but incurred before the I.M.E. was scheduled.” U.S. Sec.
Ins. Co. v. Silva, 693 So. 2d 593, 595-96 (Fla. 3d DCA 1997) (holding that
term “benefits” in section 627.736(7) “means payments, and not medical
treatment as [insured] suggests”). Accordingly, the trial court correctly found
that, at least with regard to the charges incurred and received prior to the
insured’s alleged refusal, United Auto’s IME no-show defense had no
applicability and could not defeat the provider’s claim.
Affirmed in part; reversed in part; and remanded for further
proceedings consistent herewith.
12