Plaintiff not entitled to PIP benefits after he twice failed to appear for IMEs and carrier followed up with letters explaining bills would not be paid if he had two or more unexcused failures to attend.

The plaintiff failed to appear twice for an IME. He did not provide any justification to the PIP carrier for his lack of attendance. Each time he did not appear, the carrier sent a letter advising him that his bills would not be considered for payment if he failed to appear. After his second non-appearance, the carrier advised in writing that he breached an essential term of the insurance policy. As a result, the PIP carrier denied coverage. The plaintiff then filed suit. The carrier moved for summary judgment on the basis that he did not comply with a condition precedent of the policy. The court reiterated that under Delaware law, an insured must show there was a valid contract of insurance, that the insured complied with all conditions precedent and that the insurer failed to make payment as required. Here, the court found that the plaintiff could not show that the contract was breached because he failed to comply with the IME condition. Therefore, the carrier was not obligated to provide PIP benefits.

_{Case Law Alerts, 3rd Quarter, July 2017}

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