Compulsory Medical Exam – Florida Uninsured Motorist (UM) Insureds Beware!

doctor.jpgUninsured Motorist (UM) coverage is 1st party insurance maintained for the benefit of individuals injured by uninsured motorists.

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An insurance policy is a contract. Unless preempted by a statute or case law, the terms of the policy determine the rights and responsibilities of the parties to the contract, namely the insurer and the insured.

A common policy requirement is for the insured to submit to what is called a Compulsory Medical Examination (CME). A CME is where the insured, who is seeking compensation under the policy for an injury or injuries, is examined by a doctor selected by the insurance company. When requested by the insurer, submitting to the CME is a condition precedent to receiving benefits under the policy, meaning that the insurance company can deny benefits to the insured for failing to attend the CME.

Disputes have arisen between insurer and insured over what is allowed by the CME provision. How frequently may the insurer force the insured to attend CMEs? How far can the carrier make the insured travel to attend the CME? Is there limit on the type of doctor who may perform the CME?

The answer seems to be that the carrier has almost unlimited say-so with regard to the demands it can make under the CME provision of the policy.

For example, in De Ferrari v. Government Employees Ins. Co., 613 So.2d 101 (Fla. App. 3 Dist., 1993), the carrier scheduled an appointment with an internist and an orthopedic surgeon. Since the insured had not been treated or examined by an orthopedist in connection with her injuries, she refused to attend the orthopedist CME arranged by the carrier. UM benefits were denied by the carrier. On appeal, the carrier’s decision was supported by the Third District Court of Appeal.

Most of the cases take into consideration whether the failure to attend was unreasonable under the circumstances. If the failure was not unreasonable, benefits will not be denied.

Unfortunately, this rule does not appear to have been followed in State Farm Mut. Auto. v. Curran (Fla. App., 5th Dist., 2011). Apparently, without taking into consideration the circumstances of the insured’s failure to attend the CME, the 5th DCA denied UM benefits to the insured. Even in the De Ferrari case, which was cited in the Curran decision, the court considered the reason for the insured’s failure to attend.

The hope is that the Curran case is an aberration or the decision was poorly written in that it failed to mention that it considered the circumstances. If not, at least within the jurisdiction of the 5th DCA, the CME standard is dangerously broad and harsh.

No matter what, every insured and attorney must be extremely cautious with regard to the CME provisions of the insurance contract. It would seem that the better policy is to err on the side of caution.
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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.