IN THE SUPREME COURT OF FLORIDA CASE NO. SC11-726 THIRD DISTRICT CASE NO. 3D09-3370 COMPREHENSIVE HEALTH CENTER, INC., a/a/o ERLA TELUSNOR, Petitioner, vs. UNITED AUTOMOBILE INSURANCE COMPANY, A Florida corporation, Respondent. BRIEF OF RESPONDENT ON JURISDICTION THOMAS L. HUNKER, ESQUIRE The Office of the General Counsel United Automobile Insurance Company Trial Division P.O. Box 694260 Miami, Florida 33269-9854 Phone: (305) 774-6160 Fla. Bar No. 38325 APET-848570-1206
TABLE OF CONTENTS TABLE OF CITATIONS...iii STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF ARGUMENT... 3 ARGUMENT... 4 I. The Third District s decision does not expressly and directly conflict with Custer Medical Center v. United Automobile Insurance Co., No. SC08-2036, 35 Fla. L. Weekly S640, 2010 WL 4340809 (Fla. Nov. 4, 2010) (rehearing pending), or any other district or Supreme Court decision...4 CONCLUSION... 10 CERTIFICATE OF SERVICE... 11 CERTIFICATE OF COMPLIANCE WITH FLORIDA RULE OF APPELLATE PROCEDURE 9.210... 11 ii
Cases TABLE OF CITATIONS Allstate Ins. Co. v. Graham, 541 So. 2d 160, 162 (Fla. 2d DCA 1989)...5, 7, 9 Allstate Ins. Co. v. Kaklamanos, 843 So. 2d 885 (Fla. 2003)...1, 10 American Skyhawk Ins. Co. v. Chacon, 8 Fla. L. Weekly Supp. 593b (Fla. 11th Cir. Ct. App. July 24, 2001)...8 Comprehensive Health Center, Inc. v. United Auto. Ins. Co., 56 So. 3d 41, 42-43 (Fla. 3d DCA 2010)...1 Custer Medical Center v. United Automobile Insurance Co., 2010 WL 4340809 (Fla. Nov. 4, 2010)...2-4, 6-7, 9 Custer Medical Center v. United Auto. Ins. Co., 13 Fla. L. Weekly Supp. 431b (Fla. 11th Circuit Appellate 2006)...6 n.1 De Ferrari v. GEICO, 613 So. 2d 101, 103 (Fla. 3d DCA 1993)...5, 7 Griffin v. Stonewall Insurance Company, 346 So. 2d 97 (Fla. 3d DCA 1977)...5, 7 Haines City Comty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995)...10 In re Brugh s Estate, 306 So. 2d 599, 600 (Fla. 2d DCA 1975)...8 Jenkins v. State, 385 So. 2d 1356, 1359 (Fla. 1980)...4 Reaves v. State, 485 So. 2d 829, 830 n.3 (Fla. 1986)...1 iii
State v. C.R.S., 584 So. 2d 172, 173 (Fla. 3 DCA 1991)...8 Tindall v. Allstate Insurance Company, 472 So. 2d 1291, 1293 (Fla. 2d DCA 1985)...3, 5, 7 Universal Medical Center of South Florida v. Fortune Ins. Co., 761 So. 2d 386, 387 (Fla. 3d DCA 2000)...7 United Auto. Ins. Co. v. Custer Medical Center, 990 So.2d 633, 635 (Fla. 3d DCA 2008)...6 U.S. Security Ins. Co. v. Silva, 693 So. 2d 593 (Fla. 3d DCA 1997)...5, 7 Woodward v. Florida State University, 518 So. 2d 336 (Fla. 1st DCA 1987)...8 Constitution, Statutes and Rules Article V, Section (3)(b)(3), Florida Constitution...3 627.736(7), Fla. Stat...2, 4, 9 Fla. R. Civ. P. 1.080(b)...3, 8 iv
STATEMENT OF THE CASE AND FACTS The only facts relevant to this Court s decision to accept or reject jurisdiction are those facts contained within the four corners of the decisions allegedly in conflict. Reaves v. State, 485 So. 2d 829, 830 n.3 (Fla. 1986). In this case, the Third District stated the facts as follows: On November 14, 2007, Comprehensive filed a complaint on Telusnor s behalf seeking personal injury protection (PIP) benefits from United. United moved for summary judgment arguing that because Telusnor failed to appear for the required medical exam appointments, she could not receive benefits. Comprehensive filed a cross summary judgment motion, arguing that the insured did not unreasonably refuse to attend the examinations because she had no notice of the appointments, as her attorney never told her about them. The trial court agreed with Comprehensive and granted summary judgment in its favor. *** The appellate division of the circuit court found in favor of United, holding that Telusnor did not have a valid excuse for her nonattendance at the medical exams, when she was represented by counsel and counsel received valid notice. Comprehensive Health Center, Inc. v. United Auto. Ins. Co., 56 So. 3d 41, 42-43 (Fla. 3d DCA 2010). Thereafter, Petitioner sought certiorari review in the Third District. Pursuant to the standard of review stated by this Court in Allstate Ins. Co. v. Kaklamanos, 843 So. 2d 885 (Fla. 2003), the Third District denied certiorari. Comprehensive, 56 So. 3d at 43-44. Specifically, the district court reasoned: 1
Both sides agree that Telusnor did not appear for the medical exam appointments because she said that she never received notice of them, and/or her attorney did not tell her about them. We conclude that Telusnor s reason for her non-appearance at the medical exam appointments constituted an unreasonable basis to excuse her nonappearance. First, notice of the medical exam was sent to Telusnor s attorney through certified mail and to Telusnor through regular mail. Telusnor claims that she would have gone to the exams had she known about them. Next we turn to the reasonableness of Telusnor s excuse for her failure to appear. Reasonable versus unreasonable is at issue because of the language of section 627.736(7), Florida Statutes (2009), which states that if a person unreasonably refuses to submit to a medical exam, the PIP carrier is no longer liable for subsequent personal injury protection benefits. By using the term unreasonably refuses to submit in subsection 627.736(7)(b), it is logical to deduce there are scenarios where the insured reasonably refuses to submit to the examination. U.S. Sec. Ins. Co. v. Cimino, 754 So. 2d 697 (Fla. 2000). Our recent decision in United Automobile Insurance Co. v. Gaitan, 41 So. 3d 268 (Fla. 3d DCA 2010), presents one of those scenarios. In Gaitan, unlike here, there was a reasonable basis that excused non-attendance at a medical exam. This Court held in Gaitan that the circuit appellate court did not misapply the law when it remanded the issue of reasonableness of claimant s refusal to attend the medical exam on the basis that the claimant had never been treated by a chiropractor. Id. at 268. Telusnor s basis for her non-attendance is entirely different. Second, Telusnors lack of a valid basis for non-attendance entitled United to the entry of summary judgment in its favor. We have stated that the circuit appellate court does not depart from the essential requirements of law in finding that a medical exam is a condition precedent to a suit for PIP benefits. See Custer Med. Ctr. v. United Auto. Ins. Co., 35 Fla. L. Weekly S 640, S644 (Fla. Nov. 4, 2
2010). Furthermore, when 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 nonattendance. Tindall v. Allstate Ins. Co., 472 So. 2d 1291, 1293 (Fla. 2d DCA 1985). In addition, notice to the attorney constitutes notice to the client. See Fla. R. Civ. P. 1.080(b). 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. Id. at 43-44. Petitioner now seeks to invoke the discretionary jurisdiction of this Court. SUMMARY OF THE ARGUMENT This Court should decline to exercise conflict jurisdiction in this case because Third District s decision does not expressly and directly conflict with Custer Medical Center v. United Automobile Insurance Co., No. SC08-2036, 35 Fla. L. Weekly S640, 2010 WL 4340809 (Fla. Nov. 4, 2010) (rehearing pending), or any other Supreme Court or district court decision. In this case, it was undisputed that UAIC sent proper notice to the insured s attorney as required by law, yet the insured failed to attend the independent medical examination (IME). The only excuse offered at summary judgment was that the insured s attorney never told her about the appointment. However, this is not a valid excuse because notice to the attorney is imputed to the client. Thus, the Third District properly declined to grant certiorari because the circuit court s decision was legally correct. 3
ARGUMENT I. The Third District s decision does not expressly and directly conflict with Custer Medical Center v. United Automobile Insurance Co., No. SC08-2036, 35 Fla. L. Weekly S640, 2010 WL 4340809 (Fla. Nov. 4, 2010) (rehearing pending), or any other district or Supreme Court decision. This Court may only review a decision of a district court of appeal that expressly and directly conflicts with a decision of another district court of appeal or the Supreme Court on the same question of law. Article V, Section (3)(b)(3), Florida Constitution; Jenkins v. State, 385 So. 2d 1356, 1359 (Fla. 1980). The Third District s decision in this case does not expressly and directly conflict with Custer or any other Supreme Court or district court decision. This case concerns the application of section 627.736(7), Florida Statutes (2005), which governs a PIP insurer s right to request independent medical examinations (IMEs): (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 insurance benefits, such person shall, upon the request of an insurer, submit to mental or physical examination by a physician or physicians. (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. (emphasis added). 4
The IME requirement is a condition precedent to subsequent benefits, and when an insured fails to attend without a valid excuse, the insurer is entitled to summary judgment. U.S. Security Ins. Co. v. Silva, 693 So. 2d 593 (Fla. 3d DCA 1997) (holding as a matter of law that an insurer is not liable for bills submitted subsequent to the insured s unreasonable failure to attend an IME); De Ferrari v. GEICO, 613 So. 2d 101, 103 (Fla. 3d DCA 1993), rev. denied 620 So. 2d 760 (Fla. 1993) (holding that where the insured failed to meet a condition precedent to coverage... GEICO s motion for summary judgment was properly granted. ); Allstate Ins. Co. v. Graham, 541 So. 2d 160, 162 (Fla. 2d DCA 1989) ( The trial court erred in ruling the refusal of Graham to submit to an IME was reasonable based upon the advice of her attorney. ); Tindall v. Allstate Insurance Company, 472 So. 2d 1291, 1293 (Fla. 2d DCA 1985), rev. denied 484 So. 2d 10 (Fla. 1986) (holding that summary judgment was properly entered in favor of insurer where insured offered nothing that would generate even the slightest fact question associated with his refusal to submit to the examinations. ); Griffin v. Stonewall Insurance Company, 346 So. 2d 97 (Fla. 3d DCA 1977) (holding that summary judgment was properly entered in favor of insurer where insured presented no reason or excuse for its refusal to attend the IME). 5
In Custer Medical Center v. United Automobile Insurance Co., No. SC08-2036, 35 Fla. L. Weekly S640, 2010 WL 4340809 (Fla. Nov. 4, 2010) (rehearing pending), this Court quashed a decision of the Third District Court of Appeal which granted certiorari on the IME no-show issue. In its opinion, the Third District concluded that UAIC properly suspended benefits as of the date of the missed IME because the insured failed to attend his IME appointments without excuse or explanation. United Auto. Ins. Co. v. Custer Medical Center, 990 So.2d 633, 635 (Fla. 3d DCA 2008) (en banc) ( Neither Masis nor his counsel responded to the requests at any time during the nearly two-month period during which United sought to schedule an IME of its insured. On these undisputed facts, the trial court correctly directed a verdict in favor of the insurer. ). Nothing in the Third District s majority or dissenting opinions in Custer (or even the circuit court s opinion) 1 indicated that the bills at issue in Custer predated the date of the missed IME. 2 However, this Court determined that the bills at issue in Custer predated the missed IME appointment. Accordingly, this Court quashed the Third District s decision and held that [a]ttendance at a medical examination may be a 1. Custer Medical Center v. United Auto. Ins. Co., 13 Fla. L. Weekly Supp. 431b (Fla. 11th Circuit Appellate 2006). 2. This is probably because Custer s appellate attorney raised that issue for the first time in the Florida Supreme Court. 6
condition precedent to the payment of subsequent PIP benefits or, perhaps more accurately, an unreasonable failure to attend a requested medical examination may be a condition subsequent that divests the insured s right to receive further subsequent PIP benefits. Custer, 2010 WL 4340809 at *11 (emphasis in original). Unlike Custer, none of the bills at issue in this case predated the date of the missed IME appointment. All of the bills that UAIC denied based on the IME noshow were received subsequent to the missed IME appointment. Therefore, consistent with this Court s decision in Custer, the Third District properly concluded that the IME defense applied to the bills at issue in this case. Further, in Custer, this Court held that United clearly had the burden of pleading and proving its affirmative defense; therefore, it was required to present evidence to the fact-finder that Masis unreasonably failed to attend a medical examination without explanation after having received proper notice. Id. at *9; accord Universal Medical Center of South Florida v. Fortune Ins. Co., 761 So. 2d 386, 387 (Fla. 3d DCA 2000) (holding that an unreasonable refusal to attend an IME is established as a matter of law when the insured either expressly refused to attend or failed to attend without explanation. ) (emphasis added) (citing Silva, 693 So. 2d at 593; De Ferrari, 613 So. 2d 101; Graham, 541 So. 2d 160; Tindall, 472 So. 2d 1291; Griffin, 346 So. 2d 97). Thus, according to this Court, UAIC 7
was required to prove: (1) that it sent proper notice; and (2) that the insured failed to attend without a valid explanation. In this case, UAIC satisfied both elements. First, UAIC presented undisputed evidence that it sent proper notice to Telusnor s attorney. [W]here the insurer has express notice that the insured is represented by counsel, and said counsel has specifically requested notice of any action by the insurer, the insurer must provide counsel notice of any IME that it schedules. American Skyhawk Ins. Co. v. Chacon, 8 Fla. L. Weekly Supp. 593b (Fla. 11th Cir. Ct. App. July 24, 2001). Notice to the attorney is notice to the client. See Fla. R. Civ. P. 1.080(b) ( When service is required or permitted to be made upon a party represented by an attorney, service shall be made upon the attorney unless service upon the party is ordered by the court. ); State v. C.R.S., 584 So. 2d 172, 173 (Fla. 3 DCA 1991); Woodward v. Florida State University, 518 So. 2d 336 (Fla. 1st DCA 1987); In re Brugh s Estate, 306 So. 2d 599, 600 (Fla. 2d DCA 1975) ( Certainly notice to an attorney acting within the scope of his authority is imputed to his client. ). Second, UAIC presented undisputed evidence that Telunsor failed to appear at the IME. The only excuse offered by Telusnor was that her attorney never told her about the appointment. However, this is not UAIC s fault. Due to limited resources and the attorney-client privilege, UAIC has no ability to make sure that 8
every attorney representing every client making a PIP claim informs each client about every appointment. It would be completely unjust to hold UAIC responsible for the attorney s malpractice in failing to notify his client. Furthermore, contrary to the arguments made in Respondent s jurisdictional brief, it is not the insurer s burden to somehow discover the insured s reason for failing to attend the IME. This would be impossible in cases where the insured: (1) cannot be located; (2) refuses to provide a sworn statement; or (3) refuses to disclose the reason for nonattendance. Indeed, placing this burden on the insurer will completely eviscerate the IME requirement because the insured would simply refuse to attend the IME and refuse to disclose the reason for nonattendance. Unscrupulous attorneys could simply disregard the letter scheduling the IME and the insured would be absolved of its obligation under section 627.736(7)(b) requiring the insured to submit to duly requested IMEs. Cf. Allstate Ins. Co. v. Graham, 541 So. 2d 160, 162 (Fla. 2d DCA 1989) ( The trial court erred in ruling the refusal of Graham to submit to an IME was reasonable based upon the advice of her attorney. ). Accordingly, the circuit court properly applied controlling law on the IME no-show issue. Because the circuit court did not depart from the essential requirements of law, the Third District properly denied certiorari. Custer, 2010 9
WL 4340809; Allstate Ins. Co. v. Kaklamanos, 843 So. 2d 885 (Fla. 2003); Haines City Comty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995). CONCLUSION Based upon the foregoing points and authorities, Respondent respectfully submits that the Third District s decision does not create any conflict and therefore Respondent prays that this Court enter an order denying discretionary jurisdiction. Respectfully submitted, The Office of the General Counsel United Automobile Insurance Company Trial Division P.O. Box 694260 Miami, Florida 33269-9854 Phone: (305) 774-6160 Fla. Bar No. 38325 THOMAS L. HUNKER 10
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was sent via U.S. Mail, on this day of 2011 to: Marlene S. Reiss, Esq., P.A., 9130 South Dadeland Boulevard, Suite 1612, Miami, FL 33156. THOMAS L. HUNKER CERTIFICATE OF COMPLIANCE WITH FLORIDA RULE OF APPELLATE PROCEDURE 9.210 I HEREBY CERTIFY that this brief complies the font requirements of Florida Rule of Appellate Procedure 9.210(a)(2). THOMAS L. HUNKER 11