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Jones v. State Farm Mutual Automobile Insurance Company6/6/1997
Appeal from the Circuit Court for Volusia County, Patrick G. Kennedy, Judge.
This is an appeal of a summary final judgment entered in favor of State Farm Mutual Automobile Insurance Company ["State Farm"] on a claim for PIP coverage and underinsured motorist benefits.
On April 1, 1995, Keith Edward Jones ["Jones"] was injured in an automobile accident in New Smyrna Beach, Florida. Jones submitted an initial application for PIP benefits to his insurer on April 6, 1995. He received PIP and medical payments coverage benefits through June 29, 1995, in the amount of $3,412.75. He was ultimately scheduled for knee surgery on September 28, 1995, for injuries that his orthopaedic surgeon related to the accident. Bills for this surgery were received by State Farm on October 13, 1995. Rather than pay the bill within the thirty-day period provided for in section 627.737, Florida Statutes (1993), because of her concern that the surgery might not be related to the accident, State Farm's adjuster scheduled Jones for a physical examination on November 30, 1995, in Daytona Beach, Florida. Jones responded by filing a four-count complaint against the tortfeasor and State Farm had violated section 627.737 because of the failure to make payment on the claim within the thirty-day period provided for in the statute. Jones also sought underinsured motorists benefits.
Jones did not attend the physical examination scheduled for November 30, 1995. State Farm thereupon filed several motions seeking summary judgment, asserting that State Farm had been relieved of its obligations to Jones because of his failure to attend the November examination.
Jones opposed the motion by filing a copy of a report from Jones' physician which had been received by State Farm on June 16, 1995. The report stated in relevant part that:
IMPRESSION: I am quiet certain, with a reasonable degree of medical probability that this patient tore his left knee anterior cruciate ligament in his accident of 4/1/95.
Jones also filed a copy of the adjuster's deposition, in which she stated that she had made the decision to require further examination of Jones based on what she thought were indications that his condition was degenerative in nature and not related to the accident. The court entered final summary judgment in favor of State Farm on all of Jones' claims.
Although we cannot credit Jones' contention that State Farm's failure to pay Jones' surgical bills within thirty days relieved him of any further obligation under the policy and requires that judgment be entered in his favor, we do agree with Jones that the summary judgment in favor of State Farm must be reversed. First of all, it is apparent that State Farm did not have reasonable proof that it was not responsible for payment of Jones' surgical bills. Despite State Farm's heroic effort on appeal to catalogue any fact or circumstance that might engender a suspicion that the knee surgery was not casually related to the accident, the best that even State Farm can say is that "State Farm had 'reasonable proof' to question the relationship of Jones' left knee surgery . . . ." This does not meet the statutory test of "reasonable proof to establish that the insurer is not responsible for the payment . . . ." Thus, State Farm is exposed to the statutory penalties attendant to an "overdue" claim. State Farm does not, however, lose its right to contest the claim. For this reason, State Farm's failure to pay the claim in thirty days does not relieve Jones from the obligation to submit to an independent medical examination.
By the same token, we also cannot agree with State Farm that Jones' failure to appear at the
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