MILLENIUM DIAGNOSTIC IMAGING A/A/O MELBA FIGUEROA

v.

STATE FARM FIRE & CASUALTY CO

Q a/a/0 MELBA FIGUEROA, I-'1' J Appellant, ' Z83-t |

VS. § J 9' -1. U3ll H00ds.1sq;_zM STATE FARM FIRE & CASUALTY co., E: @- /.s._ -“-3rid Elisa HVan 45 8H0.-I 'S'"9Il19Ae³ ' Appellee. - , / Opinion Filed: flaflflal‘ Z £9/¢”~ ' An appeal from the County Court for Miami-Dade County, Florida, Lawrence D. King, J. Marlene S. Reiss, Esq., ofMarlene S. Reiss, Esq. P.A. for Appellant. Diane H. Tutt, Esq., of Conroy, Simberg Ganon, Krevans, Abel, Lutvey, Morrow, & Schefer, P.A., for Appellce. Before FERNANDEZ, THOMAS and RODRIGUEZ-CHOMAT, JJ .

RODRIGUEZ-CHOMAT, J.

This is a consolidated appeal of a final summaryjudgment granted by the county court in favor ofAppellee State Farm Fire and Casualty Insurance (State Farm) on its affirmative defense of failing to attend an independent medical examination (IMB) and a separate order denying att0rney’s fees and costs at the trial level. Review of a grant of a final summary judgment is de nova. Collections, USA, Inc. v. City ofHomestead, 816 S0. 2d 1225, 1227 (Fla. 3d DCA 2002). Summary judgment is proper only when there is a genuine issue of material fact and the moving [*2] party is entitled to judgment as a matter of law. Larroque v. Mercury Ins. Co., 972 So. 2d 981, 982 (Fla. 3d DCA 2007). The issue of this consolidated appeal is whether a material issue of fact exists indicating that the insured unreasonably refused to attend two scheduled IME’s. We answer this question in the affirmative based on the following below: In 2004, Melba Figueroa was involved in an automobile accident in which she was injured as a passenger in a vehicle. The vehicle was insured by State Farm under an automobile policy (policy). Ms. Figueroa sought treatment from and assigned her right to receive personal injury protection (PIP) benefits under the policy to Appellant Millenium Diagnostic Imaging (Millenium). In 2005, Millenium sued State Farm for failing to pay Ms. Figueroa’s medical bills. State Farm answered and asserted an affirmative defense that Ms. Figueroa failed to appear for two IMEs scheduled in 2004. It was State Farm’s position that attendance to IMEs serves as a condition precedent under the policy to the payment of her medical bills. State Farm filed a renewed motion for summaryjudgment based on the above affirmative defense which the county court granted relying upon United Auto. Ins. Co. v. Custer Medical Ctr., 990 So. 2d 633 (Fla. 3d DCA 2008). Millenium argues on appeal that the county court erred in finding that Ms. Figueroa’s unexplained failure to attend her two scheduled IMEs constituted an unreasonable refusal. In comparison, State Farm argues that the county court correctly determined, in light of the evidence, that Ms. Figueroa’s unexplained failure to attend the two scheduled IMEs constituted an unreasonable refusal as a matter oflaw. Based on the Third District Court ofAppeal decision in Custer,I the county court determined that Ms. Figueroa failed to comply with a condition 1 The Custer Court held that a failure to appear at two IMEs without any explanation is an [*3] precedent of the policy when she failed to appear at the two scheduled IMEs without explanation. 990 So. 2d at 634. Furthermore, it was her burden to prove that a reasonable explanation existed for her failure to attend. 990 So. 2d at 635. Millenium correctly points out that during the pending consolidated appeals; the final disposition of Custer occurred by the Florida Supreme Court - Custer Medical Ctr. a/a/o Maximo Masis v. United Auto. Ins. Co., 62 So. 3d 1086 (Fla. 2010). Thus, the Florida Supreme Court’s Custer decision is controlling and dispositive of the issue in this consolidated appeal. This Appellate Court is aware of the fact that the county court was without the benefit of this decision when making its determination. Even so, the Florida Supreme Court Custer decision is controlling and dispositive of the issue in this consolidated appeal. This Court notes that the Custer decision rendered by the Florida Supreme Court had two effects. First, it quashed the Custer decision rendered by the Third District Court of Appeal, which the county court relied upon in making its determination. 62 So. 3d at 1100. Second, it reinstated the decision rendered by the Eteventh Judicial Circuit in Custer Medical C'tr., v. United Auto. Ins. Co., I³ Weekly Supp. 43 lb (Fla. lith Cir. Ct. Feb. I4, 2006). 62 So. 3d at I100. Contrary to the county court’s legal findings below, the Supreme Court determined in its Custer Case that under section 627.736(7)(b), Florida Statutes (200l)2: I) a failure to attend an [ME is not automatically an unreasonable refusal; 2) an unreasonable refusal by the insured to attend an IME is an affirmative defense that the insurer must prove to avoid paying subsequent unreasonable refusal by an insured as an appearance at a scheduled IME is a condition precedent to recover PIP benefits under an automobile policy. 990 So. 2d at 634. 2 This statute states in pertinent part: “. . . If a person unreasonably refuses to submit to an examination, the personal injury protection earner is no longer liable for subsequent personal injury protection benefits." [*4] PIP benefits; and³) the failure to attend an IME is not a condition precedent in an automobile policy. 62 So. 3d at 1096—97. Based upon a de novo review of this record and in light of the Florida Supreme Court holding in Custer, this Appellate Court finds that a genuine issue of material fact exists as to whether Ms. Figueroa’s failure to attend her two scheduled IMEs constituted an unreasonable refusal. Contrary to the county court’s findings, it was not Millenium’s burden to prove that the affirmative defense of an unreasonable refusal existed. Further, Ms. Figueroa’s failure to attend the two scheduled IME’s cannot serve as a condition precedent under the policy to prevent payment. The record evidence provided, read in the light most favorable to Millenium, provides an explanation for Ms. Figueroa’s failure to attend, thus creating a material issue of fact.³ Accordingly, the final summary judgment entered in favor of State Farm below is hereby REVERSED and this matter is REMANDED for further proceedings. A Because the final surmnary judgment must be reversed, the order below denying State Farm’s request for attorney’s fees at the trial level pursuant to its proposal for settlement under section 768.79 Florida Statutes and motion to tax appellate attorney’s fees based on the fee appeal is hereby moot. (FERNANDEZ and THOMAS, J. concurs.)

COPIES FURNISHED TO COUNSEL

OF RECORD AND TO ANY PARTY

NOT REPRESENTED BY COUNSEL.

The record evidence shows that the IME notification letters were written in English. Ms. Figueroa does not speak any English. She requires an interpreter. She never read the two IMF. notification letters nor did anyone else read them to her. I