Kay v. Aetna Cas. & Sur. Co.
| Citation | 152 So.2d 198 |
| Decision Date | 16 April 1963 |
| Docket Number | No. 62-462,62-462 |
| Court | Court of Appeal of Florida (US) |
| Parties | Avi A. KEY, Appellant, v. The AETNA CASUALTY & SURETY COMPANY, a foreign corporation, Appellee. |
Langer, Alvin & Kramer, Miami for appellant.
Blackwell, Walker & Gray and James E. Tribble, Miami, for appellee.
Before CARROLL, HORTON and HENDRY, JJ.
The defendant issued the plaintiff an insurance policy wherein it agreed to pay all reasonable medical expenses incurred by the plaintiff within one year from the date of any automobile accident.
On October 31, 1960 plaintiff was involved in an automobile accident whereby he sustained multiple injuries, including injury to his abdominal wall. Plaintiff was paid all medical expenses incurred from the date of the accident until May 19, 1961 when defendant requested the plaintiff to submit to a lower gastro-intestinal x-ray series. Plaintiff refused to submit to the examination on the ground that he had been examined by defendant's physicians on two previous occasions and that his own doctors had advised him that this particular examination would be harmful to his present physical condition.
Upon plaintiff's refusal to submit to the test, defendant terminated medical reimbursement under its policy. Plaintiff thereupon instituted the instant suit for declaratory relief requesting the court to construe the applicable provision of his policy 1 and to determine whether the defendant's request was reasonable.
At final hearing the chancellor took medical testimony from four doctors, two on behalf of each party, as to the effect such an examination would have upon the plaintiff's present physical condition. The plaintiff's doctors stated that such an examination would probably aggravate plaintiff's condition and would serve no useful purpose. They acknowledged that they had advised the plaintiff against submitting to the requested x-ray procedure. Defendant's doctors testified that the x-rays were necessary to discover whether plaintiff's ailments were related to the accident and that such tests were not unusual or dangerous.
Chancellor found that the requested x-ray examination of the plaintiff's lower gastro-intestinal tract was 'reasonably required' under the terms of the defendant's insurance policy and that the plaintiff's refusal to submit to such examination was unreasonable. The chancellor found further that the plaintiff's refusal constituted a 'breach of a material condition of the contract'.
Plaintiff appeals from that final decree and contends that the chancellor erred in finding that he was obligated to submit to the examination. We find this contention to be without merit. Plaintiff further contends that even if such a finding is unassailable, the chancellor nevertheless erred in entering a decree which might be interpreted as denying him an opportunity to thereafter take such examination. We find merit in this contention.
No court reporter was present at the final hearing and therefore we have no means of...
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VanHaaren v. State Farm Mut. Auto. Ins. Co.
...scheduled location, date, or time, or to particular risks which the examination might pose to the health of the insured. See, e.g., Kay, 152 So.2d at 199-200 (insured did not breach IME clause by objecting, on advice of physicians, to lower GI examination which would aggravate his physical ......
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Maryland Cas. Co. v. Harvey, CX-91-258
...(no evidence of insured's reasonable basis for refusing to attend independent medical examination); Kay v. Aetna Casualty & Surety Co., 152 So.2d 198, 199 (Fla.Dist.Ct.App.1963); Falagian v. Leader Nat'l Ins. Co., 167 Ga.App. 800, 801, 307 S.E.2d 698, 700 (1983). As the dissent indicates, o......
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Gutierrez v. Connecticut General Life Insurance Company., 70-468
...Miami, for appellee. Before PEARSON, C.J., and CHARLES CARROLL and HENDRY, JJ. PER CURIAM. Affirmed. See Kay v. Aetna Casualty & Surety Company, Fla.App.1963, 152 So.2d 198; Standard Life & Accident Insurance Co. v. Tubbs, Tex.Civ.App.1965, 389 S.W.2d ...