State Farm Mut. Auto. Ins. Co. v. Curran, s. 5D09–1488

• Decision Date: 06 January 2012
• Docket Number: Nos. 5D09–1488,5D09–2091.,s. 5D09–1488
• Citation: 83 So.3d 793
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Robin CURRAN, Appellee.
• Court: Florida District Court of Appeals

83 So.3d 793

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant,

v.Robin CURRAN, Appellee.

Nos. 5D09–1488

5D09–2091.

District Court of Appeal of Florida, Fifth District.

Dec. 2, 2011.Rehearing Denied Jan. 6, 2012.

Elizabeth K. Russo, James H. Wyman, and Susan S. Lerner of Russo Appellate Firm, P.A., Miami, and The Turner Law Firm, LLC, Viera, for Appellant.

O. John Alpizar of Alpizar Law LLC, Palm Bay and Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens, for Appellee.

ON MOTION FOR REHEARING EN BANC

TORPY, J.

We grant the motion for rehearing en banc, withdraw the panel opinion and substitute this opinion in its stead.

State Farm challenges the final judgment awarding Curran the $100,000 policy limits of her uninsured/underinsured (“UM”) motorist policy. Although State Farm raises several issues on appeal, we expressly address only one—whether the trial court erred in finding that there was UM coverage where Curran had breached the contractual obligation to submit to a compulsory medical examination (“CME”). We affirm the trial court, albeit based upon different reasoning.¹ We conclude that Curran breached the insurance contract by failing to attend two scheduled examinations and by filing suit before complying with the CME provision in the contract. However, the breach by Curran did not defeat coverage because State Farm was not prejudiced by the breach.

Curran was injured in a traffic accident involving an underinsured motorist. With State Farm's approval, she settled with the underinsured motorist. Thereafter, on July 19, 2007, through counsel, she requested her $100,000 UM policy limits based upon her estimate that her damages were approximately $3.5 million. She offered to settle the case and release State Farm from an uninsured motorist lawsuit if it tendered the policy limits no later than August 18, 2007. On August 17, 2007, State Farm asked Curran's counsel, Mr. David Alpizar, to contact it to discuss coordinating the date and time for Curran to undergo a CME pursuant to the terms of the policy. That request triggered a series of letters between the attorneys. These letters contain all of the communications regarding the attempts by State Farm to schedule the CME. The record reflects that most, if not all, of the letters were sent via facsimile transmissions.

In response to the August 17, 2007, request to coordinate a date and time for the CME, on August 21, 2007, Mr. Alpizar explained that the time for tendering the policy limits had expired, that he had filed a Civil Remedies Notice with the Department of Insurance and that his client would undergo the CME, but only with a proviso:

conditioned upon your execution of a Stipulation that this will be the only CME she will be required to undergo and that you will waive any further examinations once this matter is in litigation. I would also request that you provide me with a list of physicians you would like to conduct this CME. I would further ask that you provide me with a general time period you would like Ms. Curran to undergo this CME, so as to coordinate same with my client's schedule.

(Emphasis added). That same date, State Farm notified Curran that she had an appointment with Dr. Uricchio in Winter Park scheduled for September 5, 2007, at 10:15 a.m. She was told to notify State Farm as soon as possible if the date was not satisfactory.

On August 28, 2007, Mr. Alpizar notified State Farm of his client's objection to the use of Dr. Uricchio and complained about the lack of coordination of the date. His letter also reiterated his insistence that State Farm execute a stipulation waiving any future examinations. The letter concluded:

Furthermore, we have not received your agreement in our previous request that this be the only CME you will be taking of Ms. Curran in this matter. Please provide this agreement in writing by the end of the business day on Thursday, August 30, 2007, or we will be forced to put this matter into litigation.

On August 30, 2007, State Farm's attorney, Mr. Scott Turner, wrote to Mr. Alpizar advising him of the policy provision governing medical examinations. Mr. Turner indicated that he was unaware of any legal requirement that his client waive future examinations, and he offered transportation arrangements for Curran. He reaffirmed the September 5 appointment and advised Mr. Alpizar that State Farm was attempting to complete the CME so that it could timely respond to the Civil Remedies Notice.

The following day, August 31, 2007, Mr. Alpizar wrote to Mr. Turner that Curran was unavailable on September 5 to attend the CME, without specifying the nature of the purported conflict. He added an objection to the distance Curran would have to travel to see Dr. Uricchio. No alternative dates were proposed. Mr. Alpizar closed:

In light of the above, I would ask that you cancel the CME that was set for September 5, 2007, and provide us with a doctor within reasonable proximity to my client's residence, as well as coordinate future efforts to schedule an examination of Ms. Curran.

State Farm answered that same day:

In the event we cannot move the date of the examination, the doctor selected by State Farm will conduct the same on the date he had available. We will try to see if he has another date available. If you are refusing to have your client attend the medical examination, kindly place that election in writing.

Mr. Alpizar immediately responded by letter dated August 31, 2007. He denied that his client was refusing to undergo a CME. He reiterated that she was not “available,” again without specifics, and he requested that the CME be conducted in a closer proximity to Curran's residence. On the subject of the requested waiver, Mr. Alpizar said

In addition, I would further point out that your letter dated August 31, 2007, once again ignored my good faith request that State Farm agree that this be the only examination that Ms. Curran be requested to undergo should this matter proceed to litigation....

(Emphasis added).

On September 5, 2007, a flurry of letters were exchanged by facsimile between counsel beginning with Mr. Alpizar's letter to Mr. Turner proposing a date and time when Curran could be available for a CME. The letter also included a list of conditions, some of which had never been previously mentioned. The letter provided:

Please note that Ms. Curran is available on September 12, 2007 at 9:15 a.m. to undergo a CME, however we feel it would not be unreasonable that Ms. Curran be reimbursed for any expense associated with traveling to north Orlando to attend an examination.

Additionally, please be advised that attendance at this CME is to be conditioned upon the following:

a. No representatives of the insurance company, its attorneys or anyone else acting on their behalf, other than Dr. Uricchio and his office staff, will be present at this examination.

b. A detailed list of any and all examination procedures and processes that Dr. Uricchio intends to perform at this examination be provided prior to the examination going forward.

c. Ms. Curran shall not complete questionnaires, shall not answer questions including questions about the retention of a lawyer or opinions regarding legal liability. The examining physician shall be able to ask questions regarding background information and routine questions that any physician would ask when examining a patient.

d. Ms. Curran will not be subject to any x-rays or other testing of either an invasive or non-invasive nature. Said examination will be an evaluation only and no testing is to be performed.

e. Ms. Curran requests that she be permitted to have any compulsory examination videotaped and/or have a court reporter present during said compulsory examination.

f. Ms. Curran will not be required to bring any materials to the examination including x-rays, MRI scans, CAT scans, or other materials.

g. Ms. Curran requests that she be permitted to have present her attorney or other representative at the examination. Bartell v. McCarrick, 498 So.2d 1379 (Fla. 4th DCA 1986)[sic].

h. Within twenty-five (25) days from the date of the examination, the examining doctor shall prepare a detailed written report setting out all of his findings, including the results of all tests made, diagnosis, and conclusions and provide to our office pursuant to Rule 1.360(b)(1).

i. State Farm agrees that no further examinations be required of Ms. Curran should this matter proceed to litigation or otherwise.

j. We request that the expert be ordered to provide sworn answers to interrogatories permitted by Elkins v. Syken, 672 So.2d 517 (Fla.1996), Allstate v. Boecher, 733 So.2d 993 (Fla.1999), Springer v. West, 769 So.2d 1068 (Fla. 5th DCA 2000), should this matter proceed to litigation.

k. State Farm be responsible for notifying the examining doctor of the terms of this objection and any order entered pursuant thereto.

Once again, please do not misinterpret the aforementioned position as my client refusing to undergo a CME, but rather is asserting protected rights that she is provided under the law. Please confirm agreement to the above terms by the end of the business day on Thursday, September 6, 2007, or we will be left with no alternative but to put this matter into litigation.

I look forward to your anticipated cooperation by the aforementioned deadline.

(Emphasis added).

Mr. Turner's response reiterated that the CME was a term in the insurance contract and that it would be conducted in accordance with “routine medical examinations.” Mr. Turner agreed that Curran could have counsel and a court reporter present during the CME and emphasized that he would not be present. Mr. Alpizar replied:

Ms. Curran has made every effort in order to cooperate with her insurance company for a CME that has been requested. However, despite numerous requests, it is very evident that State Farm is acting extremely unreasonable, and further failing to cooperate in good...