Comprehensive Health Center, Inc. v. United Auto. Ins. Co., 56 So.3d 41 (Fl. Cir. Ct. 2011)
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 non-appearance.
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., –––So.3d ––––, –––– (Fla.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 non-attendance. 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. *44 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.
Compare the sections of this opinion that I bolded to applicable New York no-fault law.
