BERINETH PONDERS, APPELLANT,
v.
FORTUNE INSURANCE COMPANY, APPELLEE
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Fortune Insurance Company denied PIP benefits to insured Berineth Ponders for refusing to attend a chiropractic examination. The court reversed the denial, holding that Fortune waived its right to enforce the examination requirement by rescheduling the exam at a more convenient location, implicitly admitting the first location violated statutory proximity requirements.
Fortune was not entitled to deny PIP benefits based on the insured's refusal to attend the first examination because Fortune waived any such right by rescheduling the examination at a more convenient location, which constituted an implicit admission that the first location did not comply with the statutory requirement to schedule examinations in the area of closest proximity to the insured's residence.
[1] An insurer waives its right to deny PIP benefits based on an insured's refusal to submit to an examination if the insurer subsequently reschedules the examination at a mo…
[2] Rescheduling a medical examination at a more convenient location for the insured constitutes an implicit admission by the insurer that the original examination was not pr…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Fortune was not entitled to deny PIP benefits to the insured under Section 627.736(7)(b), Fla.Stat. (1989) based on this refusal. We reach this result because Fortune waived whatever rights it had, if any, to deny PIP benefits to the insured based on the aforesaid refusal when Fortune, through its agent, rescheduled the same chiropractic examination for January 24, 1990, before the same chiropractor but at an office located considerably closer to the insured's residence than the first examination.”
Establishes that rescheduling the examination at a more convenient location constitutes a waiver of the insurer's right to deny benefits for refusing the original examination.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceFortune Insurance Company scheduled a chiropractic examination for its insured Berineth Ponders on January 4, 1990. Ponders allegedly refused to submi…
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PER CURIAM.
Assuming, without deciding, that the insured Berineth Ponders unreasonably refused to submit to an examination by a chiropractor scheduled by the agent of her insurer Fortune Insurance Company on January 4, 1990, a matter concerning which we have grave doubt — we nonetheless conclude that Fortune was not entitled to deny PIP benefits to the insured under Section 627.736(7)(b), Fla.Stat. (1989) based on this refusal. We reach this result because Fortune waived whatever rights it had, if any, to deny PIP benefits to the insured based on the aforesaid refusal when Fortune, through its agent, rescheduled the same chiropractic examination for January 24, 1990, before the same chiropractor but at an office located considerably closer to the insured’s residence than the first examination. We think this rescheduling of the examination at a more convenient location for the insured constitutes an implicit admission by Fortune that the first examination was not scheduled in “an area of the closest proximity to the insured’s residence” where there was a “qualified physician” as required by the above statute. See Frielingsdorf v. Allstate Ins. Co., 497 So. 2d 289, 291 (Fla. 3d DCA 1986), rev. denied, 506 So. 2d 1040 (Fla.1987). This being so, Fortune was not privileged to thereafter cancel the January 24 examination and deny PIP benefits to the insured based on the latter’s failure to keep the first appointment. See Thomas N. Carlton Estate v. Keller, 52 So. 2d 131, 133 (Fla.1951); Rader v. Prather, 100 Fla. 591, 130 So. 15 (1930).
The final summary judgment under review is reversed and the cause is remanded to the trial court with directions: (1) to entertain the insured Berineth Ponders’ complaint for declaratory relief on the merits, and (2) to conduct further proceedings in the cause.
Reversed and remanded.
Fortune has filed a motion for rehearing which is hereby denied, save for the alternative ground asserted therein. As to the latter, the motion for rehearing is granted, the final paragraph of our opinion is vacated, and the following is substituted therefor.
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Nivaldo F. Cruz, Jr. v. Union Gen. Ins., 586 So. 2d 91 (Fla. 3d DCA 1991)…sualty Co. v. Zimmerman, 62 So. 2d 338 (Fla.1952); Hartford Life Ins. Co. v. Albert, 191 So. 2d 579 (Fla. 3d DCA 1966). Cruz’s avenue of redress, therefore, is an action for breach of contract, which remains pending. Cf. Ponders v. Fortune Ins. Co., 578 So. 2d 1129 (Fla. 3d DCA 1991) (declaratory action maintained to determine whether, under section 627.736(7), insurer had waived right to deny PIP benefits for insured’s failure to keep appointment with independent medical examiner by rescheduling medical exam…
Authorities Cited
- Rader v. Prather, 100 Fla. 591 (Fla. 1930)
- Estate v. Keller, 52 So.2d 131 (Fla. 1951)
- Frielingsdorf v. Allstate Ins. Co., 497 So. 2d 289 (Fla. 3d DCA 1986)