An uninsured motorist insurer is not forced to use the same expert it relied upon in evaluating personal injury protection (PIP) benefits, and a third party defendant does not have sufficient commonality of interest that it has to use the expert, either. 

In GEICO General Ins. Co. v. Berner, 2007 WL 4409786 (Fla. 3rd DCA December 19, 2007), the appellate court held it was error to limit the Defendants’ choices of a medical expert.  In Berner, a motorist struck a pedestrian as he crossed the street.  The motorist was uninsured/underinsured, and the pedestrian submitted a claim for PIP benefits to his own insurance company.  The insurance company required its insured to submit to a physical examination for the PIP claim. 

The insured filed suit against the driver, and also sued his insurance company for UM/UIM benefits.  Two months into the litigation, the insurance company served a request for examination of its insured by another doctor pursuant to Rule 1.360.  The insured objected to his insurance company’s request, claiming the insurance company already had its examination.  The defendant driver served his own request for medical examination pursuant to Rule 1.360, and the insured pedestrian objected to the driver’s request on the ground that the driver and the insurance company shared a commonality of interests in the damage phase of the litigation. The trial court agreed, and ordered that the PIP evaluator serve as the defense medical expert for both the insurance company and the defendant driver.  

The Third District Court of Appeal reversed the trial court’s decision, agreeing with the defendants that the trial court impermissibly limited its choice of medical experts.  Acknowledging that Rule 1.360 allows the defendant the choice of medical expert, the court determined
There is a substantial legal and practical difference between an insurer’s evaluation of a personal injury protection benefit claim and a claim for uninsured (or underinsured) motorist benefits. The coverages are different, the claims focus is different, and the economics of the claims handling processes is different.”  Id. at *2.

The court focused on PIP’s purpose of providing “swift and virtually automatic payment so that the insured may get on with his life without undue financial interruption.”  The court also referenced the modest amount ($10,000.00) of PIP coverage, and compared it to the “substantial penalties” that an insurance company can incur for failing to timely pay the PIP benefit claim.  The court contrasted the purpose of UM/UIM motorist coverage, to treat the insured the same as if the tortfeasor had been financially responsible.  The court stated: “Not only are the financial stakes almost always higher, but also more exacting, traditional principles of ‘causation’ and ‘foreseeability’ are in play.”  Id. at *3.   

The court then concluded that PIP examinations are likely to be more cursory and frequently are conducted by less-credentialed or experienced medical professionals, and held that “to restrict an insurer’s choice of defense medical expert to a physician consulted for a reason other than that for which the examiner was retained is inconsistent with the purpose and plain language of Rule 1.360(a)(1)(A).”  Id.  The court summarily concluded the trial court departed from the essential requirements of law when it did not let the defendant driver choose its own expert.