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PIP IME Cutoff Analysis

PIP IME Cutoff Analysis | Lyle B. Masnikoff, P.A.

At the Law Offices of Lyle B. Masnikoff & Associates, P.A., we feel that a knowledgeable health care provider stands a greater chance of receiving compensation by the insurance companies for their work on PIP cases.

CASE:  Wanda Kersaint v. United Automobile Insurance Company, 17 Fla. L. Weekly Supp. 214a (17th Judicial Circuit, Broward County, January 6, 2010)

ISSUE:  Can an insurer deny benefits and assert the defense that the insured failed to comply with his/her policy and PIP law for not attending two Independent Medical Examinations (“IMEs”) in which the insured’s attorney notified the insurer that the IME scheduled dates and times were not amenable by the insured due to conflicting school schedule?

FACTS: On Oct. 18, 2005, insurer sent a notice to insured’s counsel scheduling an IME for Nov. 9, 2005, at 1:45 PM.  On Oct. 21, 2005, the insured’s counsel faxed and mailed the insurer a letter advising that the insured is in school from 8:30 AM until 2:30 PM, and that the IME would have to be rescheduled for after 3:00 PM.  The insurer then rescheduled and re-noticed a second IME, this time for Dec. 15, 2005, at 1:45 PM (notwithstanding Plaintiff’s request for an IME after 3:00 PM).  Counsel for insured sent a second letter, again stating that insured was in school until 2:30 PM and that an IME needs to be rescheduled for a time after 3:00 PM.  Insurer did not advise the insured that it would not cancel the IMEs.  During depositions, it was revealed that both letters to the insured’s counsel were indeed received by the insurer.

RULE (per the deciding court of this particular case):  Having provided a reasonable excuse for Plaintiff’s nonattendance, Defendant cannot contend that Plaintiff unreasonably refused to attend the IME.  Accordingly, Defendant has no basis to deny coverage to the claimant for failing to attend the IME.

ANALYSIS:  Based upon the exhibits presented as well as the deposition testimony of United’s adjuster, the Court found that the insured did in fact comply with insurer’s request in that the insured notified insurer of her unavailability to attend the IMEs scheduled for before 3:00 PM.

CONCLUSION:  If an insurer is provided reasonable notice of unavailability by the insured, it can not argue that IME non attendance violates its policy and PIP statute.  As we all know, some unscrupulous adjusters at insurance companies look for any reasons to deny claims.  Some may find the technicality of an IME no-show as a reason to pull the trigger in denying benefits.  However, if the insurer was put on notice of reasonable unavailability and does not work with the insured to coordinate an IME appointment, they can not deny benefits based on an “IME no-show.”


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