Does An Insured Have the Right to the Presence of An Attorney During a Required Pip Examination ?
In Klipper v. Government Employees Insurance Co., 571 So. 2d 26 (Fla. 2d DCA 1990), the Second District was asked to decide whether a court reporter could be present at such a PIP examination.
The Second District declined to draw a parallel between a PIP examination and a rule 1.360 examination. the court reasoned that a rule 1.360 examination presupposes that litigation has been initiated and that the parties are "in an adversarial posture." Klipper, 571 So. 2d at 27.
The court went on to say this type of examination, provided for under the statute and which arose from the contract of insurance, is conducted to assist the insurer in evaluating the claim made by the insured.
Therefore, the court opined PIP examinations were distinguishable from rule 1.360 examinations. See id.
Conversely, in Cimino v. U.S. Security Insurance Co., 715 So. 2d 1092 (Fla. 1st DCA 1998), the First District relied upon rule 1.360 and workers' compensation examination cases to support the insured's right to have an attorney present at a PIP examination. Citing Toucet v. Big Bend Moving & Storage, 581 So. 2d at 953, the court reasoned the adversarial nature of a rule 1.360 examination was a compelling reason to permit counsel to be present. See Cimino, 715 So. 2d at 1093.
The court noted that the same rationale had been applied in the workers' compensation context. See id.
Unable to distinguish a PIP examination from a rule 1.360 or workers' compensation examination, as the Second District had done in Klipper, the First District held an insured had a right to have an attorney present during a required PIP examination.
In so holding the court said:
With reference to the first quoted paragraph from Klipper, in Adelman Steel Corp. v. Winter, 610 So. 2d 494 (Fla. 1st DCA 1992), the court explained, "When resort to an [independent medical examination] is necessary by either party, the parties' relationship is clearly adversarial, and a physician performing an IME should be treated as the requesting party's expert witness . . . ." Id. at 505.
The court recently reaffirmed this position in Reed v. Reed, 643 So. 2d 1180 (Fla. 1st DCA 1994). 715 So. 2d at 1094.