IN THE SUPREME COURT OF FLORIDA CASE NO. SC THIRD DISTRICT CASE NO. 3D

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC THIRD DISTRICT CASE NO. 3D COMPREHENSIVE HEALTH CENTER, INC. (a/a/o Erla Telusnor), vs. Petitioner, UNITED AUTOMOBILE INSURANCE COMPANY, Respondent. / PETITIONER=S BRIEF ON JURISDICTION On Discretionary Review from the Third District Court of Appeal MARLENE S. REISS, ESQ., P.A. Counsel for Plaintiff Comprehensive Two Datran Center, Suite South Dadeland Boulevard Miami, Florida Telephone: (305) Facsimile: (305)

2 TABLE OF CONTENTS Introduction... 1 Background... 2 Argument... 4 The Third District=s Decision Directly Conflicts With This Court=s Decisions in Custer Medical Center (a/a/o Maximo Masis) v. United Auto. Ins. Co., 35 Fla.L.Wkly. S640 (Fla. November 4, 2010); U.S. Sec. Inc. Co. v. Cimino, 754 So.2d 697 (Fla. 2000); and Dorse v. Armstrong World Indus., Inc., 513 So.2d 1265 (Fla. 1987)... 4 Conclusion Certificate of Service and Certificate of Compliance i

3 TABLE OF CITATIONS Braid Sales and Marketing, Inc. v. R & L Carriers, Inc.838 So.2d 590 (Fla. 5 th DCA 2003)... Page 2 of 11 Custer Medical Center (a/a/o Maximo Masis) v. United Auto. Ins. Co.35 Fla.L.Wkly. S640 (Fla., November 4, 2010)... Page 1 of 11 Dorse v. Armstrong World Indus., Inc.513 So.2d 1265, 1268, n.5 (Fla. 1987)Page 2 of 11 Pierson v. State Farm Mut. Auto. Ins. Co.621 So.2d 576 (Fla. 2d DCA 1993)Page 2 of 11 Tindall v. Allstate Ins. Co.472 So.2d 1291 (Fla. 2d DCA 1985)... Page 8 of 11 U.S. Sec. Inc. Co. v. Cimino754 So.2d 697 (Fla. 2000)... Page 1 of 11 OTHER: Fla.R.Civ.P Page 3 of 11 ii

4 INTRODUCTION Petitioner COMPREHENSIVE HEALTH CENTER (a/a/o Erla Telusnor), pursuant to Fla. Const. art. V, '3(b)(3); Fla.R.App.P (a)(2)(A)(iv); and 9.120(d), petitions the Court to exercise its discretionary jurisdiction on the basis that the Third District Court of Appeal=s Opinion, dated December 29, 2010, (rehearing denied March 8, 2011), directly conflicts with prior decisions of this Court. Specifically, the Third District=s opinion directly conflicts with this Court=s decision in Custer Medical Center (a/a/o Maximo Masis) v. United Auto. Ins. Co., 35 Fla.L.Wkly. S640 (Fla., November 4, 2010). First, the Third District=s decision conflicts with Custer because the Third District denied certiorari where there were multiple violations of clearly established principles of law in the circuit court=s decision. The circuit court departed from the essential requirements of law, but the Third District refused to quash the circuit court=s decision, instead holding that the circuit court correctly determined that the reason given for United=s insured=s missed Independent Medical Examination (IME) was unreasonable as a matter of law. The Third District=s decision also directly conflicts with this Court=s decision in U.S. Sec. Inc. Co. v. Cimino, 754 So.2d 697 (Fla. 2000), in which this Court held that a PIP claimant=s simple failure to attend an IME is not unreasonable as a matter 1 15

5 of law, recognizing that there may be scenarios in which an insured Areasonably refuses to to an examination. Id. at 702. The opinion also conflicts with this Court=s decision in Dorse v. Armstrong World Indus., Inc., 513 So.2d 1265, 1268, n.5 (Fla. 1987), and opinions from other district courts of appeal, which place the burden on a defendant to prove its affirmative defenses. See Braid Sales and Marketing, Inc. v. R & L Carriers, Inc., 838 So.2d 590 (Fla. 5 th DCA 2003); Pierson v. State Farm Mutual Auto. Ins. Co., 621 So.2d 576 (Fla. 2d DCA 1993). At summary judgment, United proved nothing more than the fact that it sent an IME notice to the insured=s counsel and the insured missed her IME. Yet, the Third District held as a matter of law: (1) Athat a medical exam is a condition precedent to a suit for PIP benefits;@ (2) that Awhen the claimant fails to comply without a reasonable excuse, the insurer is entitled to summary judgment if there is no genuine issue of material as to the reasons for non-attendance;@ and, (3) that as a matter of law it is not a reasonable excuse for an insured to miss an IME where the insured is not notified by her counsel of the IME appointment. BACKGROUND This case arose out of a claim for PIP benefits by a medical provider assignee of a United Auto insured. United Auto asserted an affirmative defense that it was not liable for any benefits, because an IME is a condition precedent to recovering 2 15

6 PIP benefits and the insured did not attend an IME. United moved for summary judgment, demonstrating only that it sent notice of the IME to the insured=s counsel. United=s motion for summary judgment relied upon the Third District=s decision in Custer Medical Center (a/a/o Maximo Masis) v. United Auto. Ins. Co., 990 So.2d 633 (Fla. 3d DCA 2008), which this Court has since quashed. In response, Comprehensive presented evidence that Ms. Telusnor never had knowledge of the IME because she never received notice of the appointment from her attorney. The trial court determined that, by merely demonstrating that Ms. Telusnor did not attend her IME, United failed to present any evidence to create an issue of fact to send to the jury to establish an Aunreasonable and entered summary judgment in favor of Comprehensive. Sitting in its appellate capacity, a panel of the 11 th Judicial Circuit reversed the summary judgment, citing Fla.R.Civ.P for the proposition of imputed notice, and holding that the reason given by Ms. Telusnor was Aunreasonable@ as a matter of law. The Third District denied second-tier certiorari jurisdiction, finding no departure from the essential requirements of law and holding as a matter of law: (1) Athat a medical exam is a condition precedent to a suit for PIP benefits;@ (2) that Awhen the claimant fails to comply without a reasonable excuse, the insurer is 3 15

7 entitled to summary judgment if there is no genuine issue of material fact as to the reasons for and, (3) that as a matter of law it is not a reasonable excuse for an insured=s failure to attend an IME where the insured is not notified by her counsel of the IME appointment. On a Motion for Rehearing, the Petitioner pointed out that this Court had quashed the Third District=s decision in Custer Medical Center (a/a/o Maximo Masis) v. United Auto. Ins. Co., 990 So.2d 633 (Fla. 3d DCA 2008); that an IME is not a condition precedent to recovering PIP benefits; that United failed to oppose Comprehensive=s motion for summary judgment with any evidence of an Aunreasonable refusal@ on the part of Ms. Telusnor to attend the IME; and, that notice to an attorney pursuant to Fla.R.Civ.P cannot apply to impute Anotice@ to an insured in the context of PIP when determining an Aunreasonable refusal@ to attend an IME. Rehearing was denied on March 8, ARGUMENT The Third District=s Opinion Conflicts With This Court=s Decisions in Custer Medical Center (a/a/o Maximo Masis) v. United Auto. Ins. Co., 35 Fla.L.Wkly. S640 (Fla. November 4, 2010); U.S. Sec. Inc. Co. v. Cimino, 754 So.2d 697 (Fla. 2000); and Dorse v. Armstrong World Indus., Inc., 513 So.2d 1265 (Fla. 1987) The Third District=s decision conflicts with this Court=s decision in Custer Medical Center (a/a/o Maximo Masis) v. United Auto. Ins. Co., 35 Fla.L.Wkly. 4 15

8 S640 (Fla. November 4, 2010) because it continues to hold that an IME is a condition precedent to recovering PIP benefits and holds, as a matter of law, that the reason given by Ms. Telusnor Aconstituted an unreasonable basis to excuse her non-appearance.@ 1 (Opinion at *1). The Third District found no departure from the essential requirements of law in the circuit court=s opinion, which reversed a summary judgment in favor of Comprehensive and remanded for entry of summary judgment in favor of United Auto on its purported IME defense, holding as a matter of law that United=s insured failed to comply with a Acondition precedent@ by failing to attend an IME of which she had no knowledge. The first manner in which the Third District=s decision conflicts with Custer is the Third District=s holding that an insured=s Anon-appearance@ at an IME relieves an insurer from its statutory obligation to pay PIP benefits. Custer, supra, holds that Aa failure to attend a medical examination is not automatically considered a >refusal= under the statute.@ Custer, supra at *9. Evidence of a Arefusal@ is Adistinct from evidence that establishes only that an insured failed to attend a medical examination.@ Custer, supra at *9. The second manner in which the Third District=s decision conflicts with 1 Although the Third District=s opinion cites to this Court=s decision in Custer, supra, the Third District=s opinion appears to hold contrary to every holding of this Court=s decision in Custer. (Opinion at *2). 5 15

9 Custer is the Third District=s holding that Awhen the claimant fails to comply without a reasonable excuse, the insurer is entitled to summary judgment if there is no genuine issue of material fact as to the reasons for non-attendance.@ (Opinion at *2). In Custer, supra, this Court held that Athe failure to attend may or may not be unreasonable depending upon the evidence presented by the insurer.@ Custer, supra at *9. The record in this case demonstrated that United=s sole evidence was that it notified Ms. Telusnor=s counsel about the IME, but the attorney did not notify her about the IME appointment. Thus, the question was not whether Ms. Telusnor=s attorney was notified, but rather whether Ms. Telusnor=s reason for missing the IME, i.e., that she had no knowledge of the appointment, was an Aunreasonable refusal@ to attend. To the extent that the Third District holds that United is entitled to summary judgment as a matter of law simply because the insured missed a scheduled IME of which she was not aware, the decision conflicts with this Court=s decision in U.S. Security Ins. Co. v. Cimino, 754 So.2d 697 (Fla. 2000), in which this Court recognized that an insured can Areasonably@ refuse to attend an IME. 2 2 In Cimino, supra, this Court stated, in pertinent part: The language of the contract at issue here and section contemplate a situation, such as this one, where the insured Areasonably refuses to submit@ to an examination. By using the term Aunreasonably refuses to submit@ in both the conditions section of the policy and 6 15

10 Cimino, supra at 703. subsection (b), it is logical to deduce there are scenarios where the insured Areasonably refuses to to the examination. 7 15

11 The third conflict is the Third District=s holding that, as a matter of law, when an insured=s counsel receives notice of an IME appointment, Ait 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.@ (Opinion at *2). In Custer, this Court held that an insurer must present affirmative evidence that the insured actually received notice of the IME appointment or that any refusal to attend was Aunreasonable.@ Custer, supra at *9. The fourth manner in which the Third District=s decision conflicts with Custer is the Third District=s conclusion that United is entitled to summary judgment on its purported defense, and by failing to quash the circuit court=s opinion reversing for entry of summary judgment in United=s favor. (Opinion at *2). In Custer, this Court held that the trial court should not have taken the issue of the insured=s Aunreasonable refusal@ away from the jury. If nothing else, the Third District should have quashed the circuit court=s holding that United is entitled to summary judgment upon a mere showing that it sent an IME notice to Ms. Telusnor=s attorney and she did not attend the IME. Remand for entry of summary judgment in favor of United Auto is a departure from the essential requirements of law because such an outcome is contrary to every holding in Custer. The circuit court departed from the essential requirements of law, and the Third District=s decision conflicts with Custer, supra, because the Third District 8 15

12 denied second-tier certiorari on the basis that there had been no departure from the essential requirements of law. This Court has held that each of the bases on which the Third District denied certiorari is a departure from the essential requirements of law - - (1) an IME is not a condition precedent to collecting PIP benefits; (2) a simple failure to attend an IME does not constitute an Aunreasonable refusal@ to attend; (3) Ms. Telusnor=s stated reason for not attending the IME cannot be Aunreasonable@ as a matter of law; (4) United is not entitled to summary judgment because it presented no evidence whatsoever of an Aunreasonable refusal@ to attend an IME. Moreover, the Third District=s decision - - although it purports to rely on Tindall v. Allstate Ins. Co., 472 So.2d 1291 (Fla. 2d DCA 1985), actually conflicts with Tindall because here the Third District has held that United Auto is entitled to summary judgment on its purported IME defense without regard to whether Comprehensive is entitled to any benefits incurred before the missed IME. In Custer, supra, this Court relied on Tindall, supra, because the court in Tindall reversed a summary judgment in favor of Allstate and ordered that the trial court consider the benefits due before the missed IME. Custer, supra at *12. Here, both the circuit court and the Third District hold that United is entitled to summary judgment on its purported defense, relieving 9 15

13 United of liability for all benefits, without regard to any determination of whether any benefits were due before the missed IME. Finally, to the extent that the Third District found no departure from the essential requirements of law in the circuit court=s decision that United Auto was entitled to summary judgment as a matter of law without proving any Aunreasonable refusal@ on the part of Ms. Telusnor to attend her IME, the Third District=s decision conflicts with this Court=s decision in Dorse v. Armstrong World Indus., Inc., 513 So.2d 1265 (Fla. 1987). See also Braid Sales and Marketing, Inc. v. R & L Carriers, Inc., 838 So.2d 590 (Fla. 5 th DCA 2003)(defendant=s burden to prove affirmative defense based on Carmack Amendment); Pierson v. State Farm Mut. Auto. Ins. Co., 621 So.2d 576 (Fla. 2d DCA 1993)(insurer=s burden to prove cancellation as affirmative defense). This Court in Custer, supra, conducted a lengthy analysis of a defendant=s burden to prove its own affirmative defenses. See Custer, supra at *8 -*9. Notwithstanding the complete absence of any evidence presented by United that demonstrated the absence of any fact question as to whether Ms. Telusnor Aunreasonably refused@ to attend her scheduled IME, the circuit court and the Third District held that United is entitled to summary judgment on its purported defense, relieving of liability for all PIP benefits. Simply demonstrating that United sent 10 15

14 Ms. Telusnor=s attorney notice of an IME appointment, and the fact that she missed the IME appointment, is not evidence of an Aunreasonable to attend an IME. Indeed, it is not evidence of a Arefusal at all.@ CONCLUSION Based on the conflict demonstrated herein, the Petitioner requests that this Court accept conflict jurisdiction and establish a briefing schedule on the merits

15 CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing has been mailed this 18 th day of April, 2011, to: THOMAS HUNKER, ESQ., Counsel for Respondent United Auto, UAIC, P.O. Box , Miami, Florida CERTIFICATE OF COMPLIANCE Undersigned counsel certifies that this Jurisdictional Brief has been computer generated in Time New Roman 14-point font, in compliance with Fla.R.App.P (a). MARLENE S. REISS, ESQ., P.A. Counsel for Petitioner Comprehensive 9130 South Dadeland Boulevard Datran II, Suite 1612 Miami, Florida Telephone: (305) Facsimile: (305) By: MARLENE S. REISS Fla. Bar No