578 So. 2d 1129 | Fla. Dist. Ct. App. | 1991
Lead Opinion
Assuming, without deciding, that the insured Berineth Ponders unreasonably refused to submit to an examination by a chiropractor scheduled by the agent of her insurer Fortune Insurance Company on January 4, 1990, a matter concerning which we have grave doubt — we nonetheless conclude that Fortune was not entitled to deny PIP benefits to the insured under Section 627.736(7)(b), Fla.Stat. (1989) based on this refusal. We reach this result because Fortune waived whatever rights it had, if any, to deny PIP benefits to the insured based on the aforesaid refusal when Fortune, through its agent, rescheduled the same
The final summary judgment under review is reversed and the cause is remanded to the trial court with directions: (1) to entertain the insured Berineth Ponders’ complaint for declaratory relief on the merits, and (2) to conduct further proceedings in the cause.
Reversed and remanded.
Rehearing
ON REHEARING
Fortune has filed a motion for rehearing which is hereby denied, save for the alternative ground asserted therein. As to the latter, the motion for rehearing is granted, the final paragraph of our opinion is vacated, and the following is substituted therefor.