Allstate Ins. Co. v. Graham

• Decision Date: 07 April 1989
• Docket Number: No. 88-01719,88-01719
• Parties: 14 Fla. L. Weekly 882 ALLSTATE INSURANCE COMPANY, Appellant, v. Jean Yvonne GRAHAM, Appellee.
• Court: Florida District Court of Appeals

Page 160

541 So.2d 160

14 Fla. L. Weekly 882

ALLSTATE INSURANCE COMPANY, Appellant, v. Jean Yvonne GRAHAM, Appellee.

No. 88-01719.

District Court of Appeal of Florida,

Second District.

April 7, 1989.

Bruce A. Walkley, Stephen K. Stuart and Steven A. Strickland of Walkley, Stuart, Macy & Strickland, P.A., Tampa, for appellant.

Michael L. Kinney, Tampa, for appellee.

PARKER, Judge.

Allstate Insurance Company (Allstate) appeals a final summary judgment entered in favor of Jean Graham. We reverse.

Graham sued Allstate for breach of contract alleging Allstate failed to pay her benefits under an automobile policy which provided personal injury protection (PIP) coverage to Graham. Allstate raised as an affirmative defense the failure of Graham to attend two scheduled medical evaluations.

Graham's PIP claim resulted from an automobile accident. An Allstate adjuster scheduled an independent medical examination (IME) with Dr. Young, a Tampa orthopedic surgeon. Graham acknowledged receipt of the letter dated August 4, 1983, scheduling the medical evaluation by returning the letter with the notation that Graham would attend the appointment.

On August 22, 1983, Graham's attorney, Frederick Garcia, wrote Allstate. The gist of the letter was an objection to Dr. Young as an evaluating physician on the ground that the applicable statute required an "independent" examining physician. The letter further suggested that Allstate choose one of six orthopedic surgeons that Garcia listed.

Eighteen days later Garcia wrote Allstate demanding the lost wages resulting from the automobile accident be paid to his client. Allstate scheduled another medical evaluation with Dr. Miller, also a Tampa orthopedic surgeon. Dr. Miller was not one of the doctors listed in Garcia's letter. On that same date, Allstate wrote Graham reserving the right to deny coverage under the PIP policy reciting the language in the Allstate policy that essentially follows the relevant portion of section 627.736(7)(b), Florida Statutes (1985).

Garcia responded by letter, objecting to Dr. Miller as not being independent. The letter further stated that Graham would attend the medical examination with Dr. Miller if Allstate paid all her lost wages and medical bills through the date of the evaluation and forwarded a copy of Graham's automobile insurance policy.

Several letters ensued between the Allstate adjuster and Garcia, in which Allstate asserted that it had no medical documentation to support the lost wage claim or payment of medical bills. Garcia, on the other hand, maintained that until Allstate paid all lost wages and provided a copy of the insurance policy, the company was in breach of the contract, and Graham would not submit to a medical examination. Garcia thereafter acknowledged receipt of a copy of the insurance policy. Eight months after the initial request for an IME, Allstate terminated further benefits under the PIP coverage for failure by Graham to submit to a medical examination as mandated under the applicable terms of the policy and the statute. It is undisputed that Allstate eventually paid all medical bills and lost wages incurred prior to the date of termination. Nor is it contested that Graham failed to attend either scheduled IME.

Allstate twice moved for summary judgment on the ground that under the undisputed facts in the record, Graham's failure to attend two appropriately scheduled medical evaluations justified Allstate's termination of her PIP benefits. The trial court denied Allstate's motion for summary judgment on both occasions. Graham also moved for summary...