KEITH EDWARD JONES, APPELLANT,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, APPELLEE

Fla. 5th DCA | 1997-06-06
No. 96-2480
PETERSON, C.J., and HARRIS, J., concur.
694 So. 2d 165 Florida District Court of Appeal, Fifth District (1997) Caution
Cited by 10 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Keith Jones appealed a summary judgment dismissing his claims for PIP and underinsured motorist benefits against State Farm. The court reversed, finding that factual disputes existed regarding whether State Farm properly required an independent medical examination in Daytona Beach rather than Jones' municipality of residence, and that State Farm lacked sufficient proof to deny the surgery-related claim.


Holding

The court held that summary judgment was improper. State Farm lacked reasonable proof to establish it was not responsible for the surgery bills and thus faced statutory penalties for overdue claims. Additionally, factual disputes existed regarding whether State Farm could lawfully require the IME in Daytona Beach when the statute mandates examinations occur in the insured's municipality of residence or closest proximity thereto, precluding summary judgment.


Headnotes

[1] An insurer's failure to pay a PIP claim within thirty days does not relieve the insured of the obligation to submit to an independent medical examination.

[2] An insurer must have reasonable proof that it is not responsible for payment of a claim to avoid statutory penalties for overdue claims.

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Key Quotes

“Despite State Farm's heroic effort on appeal to catalogue any fact or circumstance that might engender a suspicion that the knee surgery was not causally related to the accident, the best that even State Farm can say is that 'State Farm had 'reasonable proof to question the relationship of Jones' left knee surgery.... ' This does not meet the statutory test of 'reasonable proof to establish that the insurer is not responsible for the payment.'”

Establishes that State Farm failed to meet the statutory burden of proof required to deny coverage for the surgery.

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Facts & Procedural History

Jones was injured in an automobile accident on April 1, 1995, and submitted a PIP claim on April 6, 1995. He received PIP benefits totaling $3,412.75 …

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Opinion of the Court
GRIFFIN, Judge.

GRIFFIN, Judge.

This is an appeal of a summary final judgment entered in favor of State Farm Mutual Automobile Insurance Company [“State Farm”] on a claim for PIP coverage and underinsured motorist benefits.

On April 1, 1995, Keith Edward Jones [“Jones”] was injured in an automobile accident in New Smyrna Beach, Florida. Jones submitted an initial application for PIP benefits to his insurer on April 6, 1995. He received PIP and medical payments coverage benefits through June 29, 1995, in the amount of $3,412.75. He was ultimately scheduled for knee surgery on September 28, 1995, for injuries that his orthopaedic surgeon related to the accident. Bills for this surgery were received by State Farm on October 18, 1995. Rather than pay the bill within the thirty-day period provided for in section 627.737, Florida Statutes (1993), because of her concern that the surgery might not be related to the accident, State Farm’s adjuster scheduled Jones for a physical examination on November 30,1995, in Daytona Beach, Florida. Jones responded by filing a four-count complaint against the tortfeasor and State Farm on November 20,1995. The complaint sought PIP benefits and alleged that State Farm had violated section 627.737 because of the failure to make payment on the claim within the thirty-day period provided for in the statute. Jones also sought underinsured motorists benefits.

Jones did not attend the physical examination scheduled for November 30,1995. State Farm thereupon filed several motions seeking summary judgment, asserting that State Farm had been relieved of its obligations to Jones because of his failure to attend the November examination.

Jones opposed the motion by filing a copy of a report from Jones’ physician which had been received by State Farm on June 16, 1995. The report stated in relevant part that:

IMPRESSION: I am quiet [sic] certain, with [sic] a reasonable degree of medical probability that this patient tore his left knee anterior cruciate ligament in his accident of 4/1/95.

Jones also filed a copy of the adjuster’s deposition, in which she stated that she had made the decision to require further examination of Jones based on what she thought were indications that his condition was degenerative in nature and not related to the accident. The court entered final summary judgment in favor of State Farm on all of Jones’ claims.

Although we cannot credit Jones’ contention that State Farm’s failure to pay Jones’ surgical bills within thirty days relieved him of any further obligation under the policy and requires that judgment be entered in his favor, we do agree with Jones that the summary judgment in favor of State Farm must be reversed. First of all, it is apparent that State Farm did not have reasonable proof that it was not responsible for payment of Jones’ surgical bills. Despite State Farm’s heroic effort on appeal to catalogue any fact or circumstance that might engender a suspicion that the knee surgery was not causally related to the accident, the best that even State Farm can say is that “State Farm had ‘reasonable proof to question the relationship of Jones’ left knee surgery.... “ This does not meet the statutory test of “reasonable proof to establish that the insurer is not responsible for the payment- “ Thus, State Farm is exposed to the statutory penalties attendant to an “overdue” claim. State Farm does not, however, lose its right to contest the claim. For this reason, State Farm’s failure to pay the claim in thirty days does not reheve Jones from the obligation to submit to an independent medical examination.

By the same token, we also cannot agree with State Farm that Jones’ failure to appear at the earlier IME scheduled relieved it of any further duty to pay. The burden of establishing an absence of any issue of fact or law that would support a summary judgment was on State Farm. To begin with, the insurance contract on which State Farm relies for its argument that Jones breached a contractual duty is not in the record. Even if we could assume the terms of the State Farm policy, Jones’ refusal to appear for the November 30 IME was not so “unreasonable” as to void coverage. First, Jones argues that he was entitled to refuse to appear for the physical examination requested by State Farm because the examination was scheduled to occur in Daytona Beach, even though the statute provides that “[s]uch examination shall be conducted within the municipality of residence of the insured or in the municipality where the insured is seeking treatment.” § 627.736(7)(a), Fla. Stat. (1993). Jones is a resident of New Smyrna Beach and asserts that there are orthopaedic physicians in New Smyrna Beach who could have performed the examination. State Farm complains this issue was not raised below until the day of the hearing on the motion for summary judgment, and further contends that it was entitled to schedule the examination in Daytona Beach because the statute also provides:

If the examination is to be conducted within the municipality of residence of the insured and there is no qualified physician to conduct the examination within such municipality, then such examination shall be conducted in an area of the closest proximity to the insured’s residence.

Id. Obviously, the question whether the examination had to be held in New Smyrna Beach, or whether State Farm could require Jones to travel to Daytona Beach, involves issues of fact which were not addressed in the parties’ motions or by affidavit. Frielingsdorf v. Allstate Ins. Co., 497 So. 2d 289 (Fla. 3d DCA 1986), review denied, 506 So. 2d 1040 (Fla.1987). The burden of showing an absence of a material issue of fact is on the movant. Thus, this was not an appropriate basis on which to enter the summary judgment for State Farm.1

The summary final judgment is reversed and the cause remanded for further proceedings.

REVERSED and REMANDED.

PETERSON, C.J., and HARRIS, J., concur. . Jones further questions the value of such a post-operative examination on the issue of whether Jones’ knee injury was related to the accident. Even if Jones' refusal to submit to an examination were considered unreasonable, State Farm is not relieved from all liability for PIP payments; rather, the statute provides that "[i]f a person unreasonably refuses to submit to an examination, the personal injuty protection carrier is no longer liable for subsequent personal injury protection benefits." § 627.736(7)(b), Fla. Stat. (1993) (emphasis added). Under this statute, State Farm would appear to remain liable for PIP benefits incurred before the request for an examination was made. See Tindall v. Allstate Ins. Co., 472 So. 2d 1291, 1293 (Fla. 2d DCA 1985), review denied, 484 So. 2d 10 (Fla. 1986).


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  • United Auto. Ins. Co. v. Rodriguez, 808 So. 2d 82 (Fla. 2001)
    …, J., concurs. . The First and Fifth Districts are in agreement with the Fourth District's interpretation of the statute. See State Farm Mut. Auto. Ins. Co. v. Jones, 789 So. 2d 504, 508 (Fla. 1st DCA 2001); Jones v. State Farm Mut. Auto. Ins. Co., 694 So. 2d 165, 166 (Fla. 5th DCA 1997).…
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  • AIU Ins. Co. v. Daidone, 760 So. 2d 1110 (Fla. 4th DCA 2000)
    …heco, the no-fault benefits were owed. The issue was whether, where the insurer did not pay the claim within thirty days, it had to pay attorney’s fees under section 627.428, Florida Statutes. In Jones v. State Farm Mutual Automobile Insurance Co., 694 So. 2d 165, 166 (Fla. 5th DCA 1997), the insured sent the insurer a bill for knee surgery. In response, the insurer scheduled the insured for a physical examination about six weeks later. The insured responded with a lawsuit, refused to attend the physical exa…
  • Perez v. State Farm Fire & Cas. Co., 746 So. 2d 1123 (Fla. 3d DCA 1999)
    …e claims. The final summary judgment in Ms. Rodriguez’s favor is therefore affirmed. In contrast, the appellate decision in Perez disregarded this court’s holding in Pacheco. Instead, it followed Jones v. State Farm Mutual Automobile Insurance Co., 694 So. 2d 165 (Fla. 5th DCA 1997). Jones, however, is not dispositive of the issue in this case. Jones addressed a summary judgment granted despite the existence of genuine issues of material fact regarding whether the insured had reasonably failed to submit to a…

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