10 Fla. L. Weekly Supp. 830a
Insurance — Personal injury protection — Coverage — Denial — Failure to attend examination under oath — Insurer’s motion for summary judgment based on insured’s failure to submit to EUO is denied where policy provision requiring insured to give written proof of claim “and/or” submit to EUO is ambiguous as to whether only written notice of claim is required, only EUO is required, or both are required — Where insurer does not dispute that reasonable notice of claim was given, medical bills were received, and insurer failed to pay or give reason for not paying within thirty days, and parties stipulated that claim was for covered loss, summary judgment in favor of insured is granted
MARIA E. GONZALEZ, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 97-7483 CC 25 (01). April 15, 1999. Jose M. Rodriguez, Judge.
ORDER GRANTING PLAINTIFF’S AND DENYINGDEFENDANT’S MOTION FOR SUMMARY JUDGEMENT
THIS CAUSE came before the Court on Plaintiff’s and Defendant’s Motions for Summary Judgement, the Court having reviewed the Motions and attachments, the court file and having been otherwise fully advised in the premises, the Court hereby finds:
PROCEDURAL HISTORY:
The Defendant filed a Motion for Summary Judgment alleging that Plaintiff failed to satisfy a condition precedent to filing suit, i.e., tendering a sworn statement at Defendant’s office.
The Plaintiff filed a Motion for Final Summary Judgment alleging that all conditions precedent to receiving benefits have been satisfied, and stating that the Defendant failed to comply with §627.736(4)(b) Fla. Stat. (1999) by failing to pay or provide reason for failure to pay medical bills submitted by the insured within 30 days.
CONCLUSIONS OF LAW:
1. The Defendant alleges that the Plaintiff failed to satisfy a condition precedent to filing suit. The Defendant allegedly quotes a section of the policy which makes the insured’s provision of a sworn statement to the insurer a mandatory prerequisite to filing suit.
However, the policy provision relied upon was misquoted. The provision in pertinent part reads as follows:
Action Against the Company. No action shall lie against “us” (the insurance company); unless, as a condition precedent thereto, there shall have been full compliance with all terms of this insurance, nor until 30 days after the required notice of accident and reasonable proof of claim has been filed with “us”.
Proof of Claim; Medical Reports and Examinations; Payment of Claim Withheld. As soon as practicable, the person making claim, (including any assignees of the injured party) shall give to “us” written proof of claim, under oath, if required, and/or submit to an examination under oath by any person named by “us” when or as often as “we” may reasonably require, at a place designated by “us” within a reasonable time after “we” are notified of the claim. . .(Emphasis added)1
The Defendant misquoted the and/or provision of the policy and simply stated that the policy mandated that the insured provide a proof of claim and submit to an examination under oath (Emphasis added).2 If the provision had been as the Defendant stated, the insured’s motion should have been granted under current law as the giving of a sworn statement by the Plaintiff would have been a condition precedent to filing the instant lawsuit. Southern Home Ins. Co. v. Putnal, 57 Fla. 199, 49 So. 922, 932 (Fla. 1909); Stringer v. Fireman’s Fund Ins. Co., 622 So. 2d 145 (Fla. 3d DCA), review denied, 630 So. 2d 1101 (Fla. 1993). Current case law provides that when required, failure to give a sworn statement is a material breach of the contract justifying nonpayment of benefits.
Ordinarily, evaluation of clear, undisputed, unequivocal terms of a contract is a question of law to be resolved by the Court. Amerven, Inc. v. Abbadic, 238 So. 2d 32l (Fla. 3d DCA 1970); Jaar v. University of Miami, 474 So. 2d 239 (Fla. 3d DCA 1985). However, where provisions of the contract are reasonably susceptible to more than one construction, it is an issue of fact. See Universal Underwriters Ins. Co. v. Steve Hull Chevrolet, Inc., 513 So.2d 218 (1987).
The policy’s governing sworn statements by the insured is ambiguous. It is unclear whether only a written notice of claim is required or if only a sworn statement is required or if both are required. In Poucher v. State, 46 Ala. App. 272, 240 So. 2d 694, 695 (3d Division 31 1970), the Court stated that “[a]nd/or,” if it has any meaning, means “either or both”. Since the provision could mean ‘or’, the Plaintiff’s written notice of claim could have satisfied the condition precedent in question as she provided a written notice of claim. In Universal, the Court held that where the crucial terms of an insurance policy were reasonably susceptible to more than one construction it was improper to grant summary judgment.
The Defendant asserts that both the notice of claim and a sworn statement are preconditions to filing a lawsuit.3 There clearly is no agreement on the meaning of the provision. Since the contract is susceptible of more than one interpretation, the Defendant’s Motion for Summary Judgment is denied.
2. The Defendant does not dispute that a reasonable notice of claim was given, medical bills were received and that it failed to pay or give a reason for not paying within 30 days of their receipt.4
The Plaintiff was injured in an automobile accident on February 18, 1997. She was insured by the Defendant at the time of the accident. Plaintiff timely notified the Defendant of the accident and submitted medical bills incurred as a result of the accident to the Defendant. Defendant received medical bills from the Defendant on July 3, 1997, July 11, 1997, July 25, 1997, July 31, 1997 and August 8, 1997. The Defendant failed to pay the bills or give reasons for nonpayment within 30 days of their submission in accordance with § 627.736(4)(b) Fla. Stat. (1998). The Defendant admits that the parties stipulated that the Plaintiff’s claim was a covered loss. Hence, payment of the bills are overdue and summary judgment is entered in favor of the Plaintiff as there exists no genuine issue of law or fact.
The Court having reviewed all of the evidence and factual inferences drawn therefrom in the lightmost favorable to the nonmoving party to determine whether there is any genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law in accordance with Batey v. M.P.W. Stone, 24 F.3d 1330, 1333 (11th Cir. 1994).
It is hereby ORDERED AND ADJUDGED:
1. That the Defendant’s Motion for Summary Judgment is DENIED.
2. The Plaintiff’s Motion for Summary Judgement is GRANTED.
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1(United Automobile Insurance Company Auto Policy, page 14, paragraphs 2 and 3.)
2(Defendant’s Motion for Summary Judgment and Applicable Law in Support Thereof, paragraph 6.)
3(See Defendant’s Motion for Summary Judgment, page 3.)
4(See Deposition of Deborah Crosby dated October 14, 1998, pages 9, l8, 20, 28-35.)
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