10 Fla. L. Weekly Supp. 537b
Insurance — Personal injury protection — Dispute between medical provider and insurer — Examination under oath — Although insured and claimant did not appear for EUO requested by insurer, insurer had obligation to conduct diligent search to obtain information it was seeking from insured and claimant — Where record is devoid of any evidence to show diligent effort to locate and serve subpoena on insured or claimant during two years of litigation, defendant failed in obligation to obtain reasonable proof to deny claim and bring forth facts to support its coverage defense, and medical provider is entitled to payment of bills timely submitted prior to 30 days after first request for EUO, statutory interest, and attorney’s fees
CAMBER COMPANIES SOUTHEAST, LLC., as assignee of JAMES WEBB, Plaintiff, vs. DIRECT GENERAL INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. CCO-01-4265. April 29, 2003. C. Jeffery Arnold, Judge. Counsel: Alexander Billias, Morgan, Colling & Gilbert, P.A., Orlando, for Plaintiff. Aaron Leviten, Allen, Kopet & Boyd, PLLC, Orlando, for Defendant.
FINAL ORDER GRANTING PLAINTIFF’S M0TION FOR SUMMARY JUDGMENT
This matter having come before the Court on April 11, 2003 on Plaintiff’s Motion for Summary Judgment and Supporting Memorandum of Law, (certificate date October 8, 2001), and the Court having reviewed the file, having heard the following argument of counsel and being fully advised in the premises:FACTS
1. This is a claim for personal injury protection benefits arising out of an automobile accident that occurred on July 2, 2000.
2. The underlying issues in this case involve nonpayment of medical bills that were submitted to Defendant, DIRECT GENERAL INSURANCE COMPANY, by Plaintiff, CAMBER COMPANIES SOUTHEAST, LLC, for treatment provided to JAMES WEBB on dates of service July 12, 2000 through January 10, 2001.
3. Defendant first received notice of JAMES WEBB’s claim for PIP benefits on August 2, 2000 through receipt of a Health Insurance Claim Form (HCFA-1500) submitted by CAMBER COMPANIES for date of service July 12, 2000.
4. Defendant requested a recorded statement of the policyholder, DONNA SMITH, for the first time, on August 14, 2000.
5. Defendant requested an examination under oath of JAMES WEBB and DONNA SMITH, for the first time, on October 31, 2000.
6. The policyholder, DONNA SMITH, never responded to Defendant’s request for a recorded statement.
7. JAMES WEBB never responded to Defendant’s request for an examination under oath.
8. Defendant reserved its rights, for the first time, under DONNA SMITH’s insurance policy on September 23, 2000.
9. Defendant denied PIP coverage to JAMES WEBB and the policyholder, DONNA SMITH, on March 27, 2001.
PROCEDURAL BACKGROUND
10. Plaintiff filed its Motion for Summary Judgment and Supporting Memorandum of Law on October 8, 2001.
11. The hearing on Plaintiff’s Motion for Summary Judgment and Supporting Memorandum of Law was first scheduled by Plaintiff to take place on January 2, 2001.
12. Pursuant to the Defendant’s request for additional time within which to locate and schedule the depositions of JAMES WEBB and/or DONNA SMITH, Plaintiff cancelled the January 2, 2001 hearing on its Motion for Summary Judgment and Supporting Memorandum of Law.
13. The hearing on Plaintiff’s Motion for Summary Judgment and Supporting Memorandum of Law was next scheduled by Plaintiff to take place on November 21, 2001.
14. On November 16, 2001, Defendant filed its Response to Plaintiff’s Motion for Summary Judgment and Notice of Hearing for Summary Judgment wherein it requested more time from the Court within which to “locate and schedule the deposition of JAMES WEBB and DONNA SMITH.”
15. Based on Defendant’s Response to Plaintiff’s Motion for Summary Judgment and Notice of Hearing for Summary Judgment and at the request of Defendant, Plaintiff cancelled the November 21, 2001 hearing on its Motion for Summary Judgment and Supporting Memorandum of Law.
16. Plaintiff next scheduled the hearing on Plaintiff’s Motion for Summary Judgment and Supporting Memorandum of Law to take place on February 25, 2002.
17. On or about November 2001, counsel for Plaintiff and counsel for Defendant executed a Joint Stipulation. On December 20, 2001, this Court entered an Order on Joint Stipulation whereby the hearing on Plaintiff’s Motion for Summary Judgment and Supporting Memorandum of Law would not take place prior to March 1, 2002.
18. Pursuant to the Order on Joint Stipulation, CAMBER COMPANIES cancelled the hearing on its Motion for Summary Judgment and Memorandum of Law that had been scheduled to take place on February 25, 2002.
19. Plaintiff next scheduled the hearing on Plaintiff’s Motion for Summary Judgment and Supporting Memorandum of Law to take place on March 6, 2002.
20. On March 1, 2002, Defendant filed its Reply and Memorandum of Law in Opposition to Plaintiff’s Motion for Summary Judgment.
21. At the March 6, 2002 hearing on CAMBER COMPANIES’ Motion for Summary Judgment and Supporting Memorandum of Law, counsel for Defendant again requested additional time within which to locate and schedule the depositions of JAMES WEBB and DONNA SMITH. The Court again granted Defendant’s request for additional time in this regard and the hearing did not proceed on Plaintiff’s Motion for Summary Judgment and Supporting Memorandum of Law.
22. Plaintiff filed its Notice for Trial on November 26, 2002,
23. This Court entered its own Order Setting Case Management/Status Hearing on December 13, 2002, whereby a Case-Management/Status Hearing was scheduled to take place on March 21, 2003.
24. At the Case Management/Status Hearing on March 21, 2003, counsel for Defendant advised the Court that Defendant had been unable to locate and take the depositions of JAMES WEBB and DONNA SMITH. In response, counsel for Plaintiff requested that the Court hear its Motion for Summary Judgment and Supporting Memorandum of Law.
25. The hearing on Plaintiff’s Motion for Summary Judgment and Supporting Memorandum of Law finally took place on April 11, 2003.
ARGUMENT
26. It is Plaintiff’s position that pursuant to Amador v. United Auto. Ins. Co., 748 So. 2d 307 (Fla. 3d DCA 1999), Defendant’s request for examinations under oath of JAMES WEBB and/or DONNA SMITH more than thirty (30) days after receiving notice of the claim was unreasonable.
27. Plaintiff further argues that Defendant’s failure to request said examinations under oath within thirty (30) days of receiving notice of the claim entitles Plaintiff to payment for all dates of service timely submitted prior to Defendant’s untimely requests for examinations under oath, as Defendant did not have reasonable proof to deny those claims.
28. Defendant argues that pursuant to United Auto. Ins. Co. v. Rodriguez, 808 So. 2d 82 (Fla. 2002), Defendant was not required to obtain reasonable proof to deny the claim within thirty (30) days of receiving notice of the claim.
29. In addition, Defendant argues that although it did not request an examination under oath of JAMES WEBB or DONNA SMITH within thirty (30) days of receiving notice of the claim, Defendant is not responsible for payment as coverage was subsequently denied to JAMES WEBB and DONNA SMITH for their failure to cooperate with the investigation.
LAW AND ANALYSIS
It is hereby ORDERED and ADJUDGED as follows:
30. Although this Court is aware that JAMES WEBB and DONNA SMITH did not appear for an examination under oath as requested by Defendant, Defendant had an obligation to conduct a diligent search to obtain the information it was seeking from JAMES WEBB or DONNA SMITH. Defendant had more than two (2) years in this litigation within which to locate and serve a Subpoena for Deposition on JAMES WEBB or DONNA SMITH and to request the Court’s assistance with enforcing the subpoena. The record is devoid of any evidence that Defendant ever served a Subpoena for Deposition on JAMES WEBB or DONNA SMITH. In addition, the record does not contain an Affidavit of Diligent Search and Service and there is nothing in the record that would show a diligent effort by Defendant in attempting to locate and serve a subpoena on JAMES WEBB or DONNA SMITH.
31. Defendant had an obligation to obtain reasonable proof to deny this claim and to bring forth facts in this litigation that support its coverage defense.
32. Based on the foregoing, Plaintiff’s Motion for Summary Judgment and Supporting Memorandum of Law is hereby GRANTED.
33. Plaintiff is entitled to payment for all bills that it timely submitted to Defendant prior to thirty (30) days after Defendant’s first request for an examination under oath of JAMES WEBB or DONNA SMITH, which occurred on October 31, 2000. Specifically, Plaintiff is entitled to payment in the amount of $3,100.00, which represents eighty percent (80%) of the medical bills that were timely submitted by Plaintiff for treatment and medical services provided to JAMES WEBB on dates of service July 12, 2000 through October 4, 2000. In addition, Plaintiff is entitled to statutory interest and attorney’s fees.
34. Plaintiff is not entitled to payment for any dates of service that it submitted to Defendant for treatment and medical services provided to JAMES WEBB after November 30, 2000, which is 30 days from the date Defendant first requested the examination under oath of JAMES WEBB and DONNA SMITH.
35. Accordingly, a Final Summary Judgment is hereby entered in favor of Plaintiff, CAMBER COMPANIES SOUTHEAST, LLC., as assignee of JAMES WEBB, and Plaintiff shall go hence without day.
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