When Notice to the Lawyer Acts as Notice to the Insured

Many people do not seek legal advice when attempting to maximize their insurance claim recovery or navigating a claims dispute.  While this approach might work when the insurer pays the full value of the claim without much hassle, this tends to be the exception rather than the rule.  If you do not retain legal counsel early in the claims process, the time pressure imposed by mounting bills, ongoing exposure to damage, and/or temporary displacement can force a haphazard selection of legal counsel.  Although technically any lawyer can represent you in an insurance claims dispute, these types of legal issues involve a technical reading of insurance contracts as well as experience with standard insurance adjustment practices, ADR strategies, and/or litigation approaches to insurance claims disputes.  This blog post analyzes an appeal from the County Court, Civil Division in and for Miami-Dade County.  The outcome demonstrates the importance of have an experienced insurance lawyer.

In United Automobile Ins. Co. v. Comprehensive Health Center, the provider appealed seeking personal injury protection (PIP) benefits.  The insurer contended no PIP benefits were owed under the auto insurance policy because the insured failed to participate in an Independent Medical Examination (IME).  The trial court ruled for the insured on this issue.  The insurer also contended that the trial court committed error by ruling that the carrier must pay expert fees prior to conducting depositions with the insured’s treating physician.

The claimant contended that the insured’s failure to participate in the IME did not bar recovery under the policy because it was not an “unreasonable refusal.”  Rather, the claimant’s attorney failed to notify the insured of the IME, which the insured contended excused the failure to appear.  On appeal, the court reversed on both issues.

With regard to the issue of non-appearance at the IME, the court noted the following provision under Florida Statutes Section 627.736(7)(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 benefits, such person shall, upon the request of the 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 protections benefits.” [Emphasis added].

Based on this provision, the appellate court reasoned that the IME requirement is a condition precedent to filing a lawsuit.  The insurer pointed out that noncompliance without a reasonable excuse entitles the insurance company to summary judgment.  The court rejected the insured’s contention that lack of notice of the IME was a reasonable excuse.  The judges observed that the insured was represented by counsel who did receive notice of the IME.  An insured represented by counsel is presumed to have received notice if there is proof of notice to the insured’s attorney even if the attorney fails to inform his client of the date.

The court also denied that the insurer needed to pay claimant’s treating physician’s expert witness fees.  The doctors in question that treat a patient do not obtain information for the purpose of litigation.  Rather, this information is gathered with the intent of diagnosis and treatment of the patient.  Under these circumstances, the treating physician is an ordinary fact witness rather than an expert witness who is entitled to fees for his deposition.

Our Miami insurance claims law firm invites you to contact us if you are having difficulties with your insurance company.  Florida insurance claims lawyer J.P. Gonzalez-Sirgo handles claims against insurance companies in Miami and throughout Florida. The Law Firm of J.P. Gonzalez-Sirgo, P.A. offers free consultations and case evaluations.  No Recovery, No Lawyer Fees.  Call 305-461-1095 or Toll Free 1-866-71-CLAIM.

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