There are many grounds on which auto insurers will seek to deny coverage to those who have been injured. However, thanks to a series of rulings in the last several months, they won’t be able to to do so solely because an insured declined a compulsory medical exam.
Compulsory medical exams were previously referred to as “independent” medical exams, though there is widespread recognition that there is nothing independent about them. The stated purpose is that they may be requested by insurers to verify and/or dispute the nature and extent of your injuries.
Our Fort Myers car accident lawyers know recent rulings do not mean injured parties seeking damages will no longer need to submit to these exams in order to prevail. What it does mean is that plaintiffs in underinsured/uninsured motorist claims will have a bit more leverage in defining the terms, as insurers will not be allowed to simply state “refusal” as a breach of contract that precludes coverage. Instead, the insurer will have the burden of showing why the exam was reasonable and how it was prejudiced by the insured’s refusal to submit.
The Florida Supreme Court weighed this issue in March, in the case of State Farm v. Curran. The case began in June 2006 when the plaintiff insured was involved in a traffic accident. She was rear-ended by an underinsured motorist and sustained injuries as a result.
After the crash, the injured woman sued the underinsured driver, and reached a settlement with his insurer, which her own insurance company approved.
Subsequently, the plaintiff filed a request to collect her $100,000 in underinsured motorist coverage, which was the limit on her policy. Although the plaintiff indicated her damages were estimated to be nearly $3.5 million because she suffered from reflex sympathetic dystrophy syndrome (also sometimes referred to as complex regional pain syndrome). However, she agreed to settle for the full policy limit amount if the insurer would agree to it by a certain deadline.
The insurer responded by contacting the insured’s lawyer to set up a date and time for a compulsory medical exam. However, the plaintiff responded with a series of demands, including limiting the physicians from which the insurer could choose and limiting the number of CMEs to which she would be required to submit.
The insurer refused her demands, and when she didn’t show up for the scheduled exam, the insurer responded that she had forfeited coverage because she had breached the terms of the contract. The insurer then requested – and was granted – a summary judgment.
The state supreme court reversed, finding that in the context of UM coverage, a CME is a post-loss obligation of the insured – not a condition of precedent to coverage.
With that ruling in mind, Florida’s 2nd DCA ruled in Bush v. State Farm along similar lines. The circumstances were nearly identical – an insured who was rear-ended by an underinsured motorist, sought UM coverage from the insurer and then declined to submit to a CME without some concessions from the insurer.
The 2nd DCA held the trial court’s grant of summary judgment was improper in light of the Currandecision. The appellate court found there had been no evidence from the insurer of a material breach in policy or that the non-compliance harmed its case. The case was remanded for further proceedings.
If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.
Bush v. State Farm , July 30, 2014, Florida’s 2nd DCA
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