# 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 No s

. 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 C ounty 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 the2 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 require d 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 A ppointment including leaving my work while I

was on duty .” However, when she reached the building

, “ it was very difficult

1 The re 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 service s rendered May 25, 2011, through June 28, 2011.3 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 C n ty. 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 of4 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

read s :

(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, a nd other matters of record which were

pertinent to the summary judgment motion .” Seal Prod s. v. Mansfield , 705

So. 2d 973, 975 (Fla. 3d DCA 1998). W hile we lack a transcript, we have

copies of the motion, the documents relied on, the pleadings, and the trial

court’s written order. A lthough 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, 12 10

- 11 (Fla. 2d DCA 2018), here

the record sufficiently sho ws that United Auto properly raised these

arguments below.5 Under the statute’s plain language, “ a ttendance 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 Mut ual Auto mobile Ins urance 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 conditio n 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 a n uninsured motorist (“UM”) policy governed by section 62 7.727,

Florida Statutes (2007), which is distinguishable from other personal injury6 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. ’

T here 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.7 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 refused8 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.

542 a (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 ) ; s ee also Fonseca v. Star Cas. Auto. Ins. Co.

, 10 Fla. L.9 Weekly Supp. 865 a

, 865 a (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 suffi ciently 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 requireme nts of law

when it remand ed issue of reasonableness of insured’s refusal to attend

chiropractic IME on basis that insured had never seen chiropracto r 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 record10 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 th ere was no substantial competent evidence

that insured unreasonably refused to attend IME where it was undisputed11 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 be12 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

. T he IME not

attended by the insured was scheduled for June 10, 2011. Thus, United

Auto ’s IME no

- show defense only appl ies 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, Unite d Auto ’s IME no

- show defense had no

applicability and could not defeat the provider ’s claim.

Affirmed in part; r eversed in part ; and remanded for further

proceedings consistent herewith

.