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Big Insurance Company Dealt a Blow by Florida Supreme Court

Posted by Scot D. Goldberg | Apr 21, 2014 | 0 Comments

Injured in a crash and the other guy has no insurance? Lack of “compulsory medical examination” not a reason to deny coverage

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Court Rules against State Farm Auto Insurance, Meaning Injured Victims Retain More Rights

Our team of attorneys and insurance claims specialists at Goldberg, Racila, D'Alessandro & Noone work every day to help our clients get fair compensation for their injuries after a motor vehicle, bicycle, slip-and-fall or any type of tragic accident. Dealing with giant insurance companies and their barrage of lawyers can be extremely frustrating, given the complicated laws regarding collecting financial damages after you've been seriously injured.

That's why we always remain focused on new laws and court rulings in Florida that effect the way we help our clients receive the financial compensation they deserve for their specific injuries – it's our job to make sure your rights are aggressively defended. Florida's auto insurance laws concerning the coverage of a person who may have caused your accident – or whether they even carried insurance at all – require a trained auto accident injury attorney to uncover every possible fact and detail about who was actually at fault in the crash.

In a very recent ruling decided by Florida's Supreme Court, people that have suffered injuries as the result of an accident caused by someone else who has no car insurance gained some important and valuable rights when it comes to having their medical claims paid.

In the case of State Farm Mutual Automobile Insurance Company, (Petitioner), vs Robin Curran, (Respondent), the insurance giant was attempting to deny payment of claims by Curran involving what is known as a “compulsory medical examination”, or CME. (Previously these were known as Independent Medical Examinations, or IME's, but the terminology was revised to reflect the fact that in actuality, there was hardly anything ‘independent' about this type of medical exam).

When you're hurt in a car, motorcycle, trucking or other type of accident, there are portions of your car insurance intended to cover you in the event that the person that hit you either has no insurance, or is inadequately covered. This is called Uninsured Motorist, or UM coverage. Florida's uninsured (or underinsured) motorist statutes require that insurance companies offer you UM coverage when they are providing protection for bodily injury. UM coverage is not mandatory – a driver need only show proof of PIP (personal injury protection) coverage to be “legal” on the road. With the huge numbers of uninsured and underinsured drivers on the road today, it's critical to ensure you are carrying an adequate amount of UM coverage in order to protect yourself if you're hurt in a crash.

Why CMEs?

As I'm sure you can understand, a major key in determining the full extent of your injuries is submitting to a seemingly endless series of medical examinations. Even PRIOR to filing any kind of lawsuit against anyone, in order to substantiate your injuries, your own insurance company will most likely request that you receive a CME, and send you to a doctor of their choosing, at their expense. This is to make sure you're not faking or exaggerating the extent of your injuries, and also to attempt to find a reason to pay less money to the doctors you have already seen.

AFTER you've retained a personal injury lawyer and filed a lawsuit, the DEFENSE, meaning ‘the other guy', has the right to require that you get a CME that they arrange for. They'll pay for this, but it's another effort to REDUCE the amount they may be found to eventually owe you as a final settlement. (Here's a little reminder we've written about in the past – the insurance company is NOT your friend in these types of scenarios).

And, if you have multiple types of injuries and are being treated by one or more types of physicians, the defense insurance company can require that you get a CME in multiple specialties. In other words, if you're being seen by both a neurologist and an orthopedist, they can require that you get a CME from both doctors.

In the case of State Farm vs Curran, the insurance giant claimed that the injured party, Curran, was not entitled to any UM coverage compensation because they claimed Curran did not follow their direction when it came to obtaining a CME, and therefore broke the rules within her insurance policy. In their decision, Florida's Supreme Court ruled in support of the initial decision by the Fifth District Court of Appeal, which said that “attending a compulsory CME under an insurance policy is not a condition precedent to coverage, that the failure to attend a CME breaches the policy and voids coverage only if it prejudices the insurer, and the insurer has the burden of proving prejudice”.

Put simply, the Court found that State Farm could not deny Curran coverage based on the procedure under which they wanted to obtain a CME, and that State Farm did not prove to the Court that Curran violated any provisions or stipulations of her auto insurance contract.

WHAT THIS MEANS FOR YOU

In our law firm, we represent people every day who have suffered serious injuries in an accident. We deal with the barrage of lawyers who represent insurance companies, and negotiate aggressively on your behalf in an effort to help you receive every penny of financial compensation to which you are entitled under the law. This is exactly when you need an experienced personal injury attorney in your corner – one who knows every intricate detail about what specific medical tests and treatments you are entitled to, and exactly who should pay for them. Two attorneys at our law firm – Mike Noone and Ray Racila – have both spent years working as insurance company adjusters, and know how to aggressively fight for you each time the insurance company throws up a roadblock to paying your claim – and you can bet they will.

MORE GOOD NEWS FOR INJURED VICTIMS

In some recent trial orders issued by a Palm Beach County Circuit Court Judge, some good progress was made in regards to exactly how, when and where a CME takes place. Here are some key points, all of which mean good news for the injured party – keep in mind, these orders greatly limit the scope and capacity of getting a CME:

• The defense, meaning the “other guy's attorneys”, must call the exam a “compulsory medical exam”, or “a defense exam”. They may not refer to it as an “independent medical exam” or as a report of an “examining doctor”.

• The defense attorney is not allowed to attend or videotape the CME. Your attorney can attend, and also bring a videographer and / or a court reporter to the CME, in order to ensure the entire procedure takes place as prescribed by the rules of the court.

• The injured party will not be required to fill out any additional documents in order to receive a CME, but will be required to show proper personal identification.

• The CME must start within thirty-minutes of the start time as scheduled. If this does not happen, the injured party is allowed to leave, and the defense will have to pick up any associated costs resulting from the missed appointment.

• The physician performing the CME must provide an examination room large enough to accommodate any and all parties attending, including you, your attorney(s), a videographer and court reporter, if applicable. You cannot be charged for any additional accommodations necessary to meet this requirement.

• The physician performing the CME may NOT render any comments as to whether they feel your medical bills for any previous treatment are reasonable or not.

• The physician performing the CME may NOT ask the injured party anything about the accident. This includes how it happened, whose fault it was, what took place at the crash scene, what you may or may not have said to any doctors treating you after the accident or even when you may have seen a doctor.

• The physician performing the CME may NOT ask the injured party how their specific injury or injuries took place, or provide their opinion as to whether they think the injured person provided an inaccurate accounting of their injuries, like omitting an important fact about how they were hurt, or otherwise lying to or attempting to deceive the physician doing the CME.

• The physician performing the CME may NOT ask when they hired an attorney, or if that attorney has referred them to any specific doctor.

Here's the bottom line: The Court has ruled that it is NOT the CME doctor's job to find out what happened in the accident. Also, it is not the injured party's job to recall and discuss each and every medical procedure or treatment that took place after the crash with the doctor performing the CME – that's what medical records are for.

The CME doctor's sole responsibility is to evaluate and examine the current medical condition of the injured party – and nothing more.

Nobody leaves the house in the morning thinking they're going to be involved in a serious car accident, caused by the negligence of someone else that may or may not have insurance. But the fact is, if this happens to you or someone you love, having an aggressive, trial-ready personal injury lawyer at your side can make the difference between being properly and justly compensated for your injuries, loss of wages from being unable to make a living, your pain and suffering and any long-term rehabilitation or therapeutic treatments you may require, and getting far less than you deserve – or nothing at all.

It's our job to protect your full legal rights throughout any pre-trial negotiation process with the insurance carriers, and to be by your side should your case end up going to trial. With all the recent court activity surrounding the topic of compulsory medical exams, you will be best served by hiring the services of an experienced, trusted personal injury law firm.

To read the Court's decision in its entirety, go here. If you want to talk with us or find out more about how this ruling might affect you, we'd love to hear from you. Our phone numbers are at the top (and bottom!) of every page, or feel free to fill out our contact form if that's better for you.

About the Author

Scot D. Goldberg

Local People. Local Practice. Local Knowledge. Scot Goldberg is a founding partner of the Goldberg Law Firm. See his attorney profile for more information.

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