The provider sued the insurer for unpaid bills for auto-accident injuries. The insurer defended on grounds that the insured had failed to attend the IME and thus breached the condition of the policy and voided coverage. The insured claims that she did not "unreasonably refuse" to attend the IME, because her attorney never told her about the IME. The evidence showed that the insurer sent notice by regular mail to the insured and by certified mail to the attorney. The Trial Court granted summary judgment to the insurer, and the circuit court reversed, stating:

An IME requirement is a condition precedent to suit, and when an insured fails to comply without a reasonable excuse, the insurer is entitled to summary judgment. U.S. Security Ins. Co. v. Silva, 693 So.2d 593 (Fla. 3d DCA 1997) (holding that an insurer is not liable for bills submitted subsequent to the insured's unreasonable failure to attend an IME); De Ferrari v. GEICO, 613 So.2d 101, 103 (Fla. 3d DCA 1993) (holding that insurer's motion for summary judgment was properly granted where the insured failed to meet a condition precedent to coverage).

Here, the claimant received notice of the IME through her attorney [the IME notice was sent certified mail to her attorney and by regular mail to her]. The provider admitted at the lower court hearing that notice to the attorney constitutes notice to the client. See Fla. R. Civ. P. 1.080(b) (When service is required or permitted to be made upon a party represented by an attorney, service shall be made upon the attorney unless service upon the party is ordered by the court). Claimant said the reason she did not attend the IME is that her attorney never told her about it. However, notice was also sent to her by regular mail. Proof that a letter or documents were mailed is sufficient to raise a prima facie presumption of the receipt by the addressee of the letter or documents so mailed, when there is proof that the mail was sent to the correct address. Brown v. Giffen Industries, Inc., 281 So. 2d 897 (Fla. 1973).

The Circuit Court also agreed that the Trial Court erred in requiring it to pay an expert witness fee to depose two treating doctors. While the court agreed that the treating physicians were "unquestionably" experts, they were nonetheless not entitled to an expert witness fee, because the rule authorizing such fees only applies to experts who acquire their knowledge in anticipation of litigation. Since treating physicians acquire their knowledge for purposes of treatment, and at a time when litigation is not anticipated, they are not qualified for expert witness fees. Rules 1.280(4) and 1.390(c), Fla. R. Civ. P. See also, Engel v. Rigot. , 434 So. 2d 954, 957 (Fla. 3d DCA 1983) (holding that a dentist's subpoenas were erroneously quashed for not being accompanied by expert witness fees); Ryder Truck Rental, Inc. v. Perez, 715 So. 2d 289, 290 (Fla. 3d DCA 1998) (injured motorist's treating physicians should not have been classified as expert witnesses in her negligence action, but as ordinary fact witnesses); Frantz v. Golebiewski, 407 So. 2d 283, 285 (Fla. 3d DCA 1981) (a treating doctor, while unquestionably an expert, does not acquire her expert knowledge for the purpose of litigation but rather simply in the course of attempting to make his patient well); and, Fittipaldi USA, Inc. v. Castroneves, 905 So. 2d 182, 186 (Fla. 3d DCA 2005) (treating physicians are not subject to discovery rules governing expert witnesses because they did not acquire their expert knowledge for the purpose of litigation, but rather simply in the course of attempting to make their patients well. Under such circumstances, the witness is typically testifying as the treating physician concerning his or her own medical performance on a particular occasion and is not opining about the medical performance of another).

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