10 Fla. L. Weekly Supp. 843d
Insurance — Personal injury protection — Coverage — Denial — Failure to attend examination under oath — Assignee claiming as omnibus insured was not required to attend EUO under policy requiring “named insured” to submit to EUO — Summary judgment granted in favor of medical provider as to affirmative defense of failure of condition precedent
PHYSICIAN’S FIRST CHOICE INTERPRETATION, (Jaime Rodriguez), Plaintiff(s), vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant(s). County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE-01-012810 (50). August 11, 2003. Peter B. Skolnik, Judge. Counsel: Roberts J. Bradford, Jr., Marks & Fleischer, P.A., Ft. Lauderdale, for Plaintiff. Keith Lambdin, for Defendant.
ORDER
THIS CAUSE having come on to be heard before the court on Plaintiff’s Motion for Summary Judgment as to Third Affirmative Defense and Defendant’s Motion for Summary Judgment and the Court having heard the argument of counsel and being otherwise fully advised in the premises, the court finds that on the issue of Defendant’s Third Affirmative Defense, there are no material facts in dispute and that under the undisputed facts, Plaintiff is entitled to judgment as a matter of law.
The court finds as follows:
1. The Defendant’s Third Affirmative Defense alleges the failure of a condition precedent by the insured’s, Mr. Rodriguez’s, alleged failure to cooperate. More specifically, the defense rests upon the insured’s failure to attend two examinations under oath requested by the Defendant.
2. Defendant has moved for summary judgment alleging that the insured’s failure to attend two examinations under oath relieves it from all liability for payment of No Fault benefits under the subject policy.
3. Plaintiff has moved for partial summary judgment alleging that the subject policy of insurance does not require this insured to attend an examination under oath. The Plaintiff argues that if the policy cannot require such attendance, the failure to attend is not a defense under the policy of insurance.
4. The relevant portions of the subject policy upon which the defense rests are as follows:
Action Against the Company. No action shall lie against “us;” unless, as a condition precedent thereto, there shall have been full compliance with all terms of this insurance Policy, not until 30 days after the required notice of accident and reasonable proof of claim has been filed with us.
Page 14, Part E, Section I.: “Conditions.”
Examination Under Oath. As a condition precedent to receiving personal injury protection benefits, “you” must cooperate with “us” in the investigation, settlement or defense of any claim or suit, including submitting to 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. Only the person being examined may be present during any examination.
Page 14, Part E, Section I: “Conditions.”
Throughout this Policy “you” and “your” refer to the “named insured” shown in the Declarations and the spouse if a resident of the same household.
Page 1, “Definitions.”
“Named insured” means the person or organization named in the Declarations of the Policy; and if an individual, shall include the spouse if a resident of the same household.
Page 2, “Definitions.”
5. As noted in the first page of Exhibit A to the Defendant’s motion (i.e., the Declarations of the Policy), the “named insured” on the subject policy is Carlos Valezquez. Further, Carlos Valezquez is the only person listed by name on the Declarations of the Policy.
6. Jaime Rodriguez, claiming under the subject policy as an omnibus insured, was not and is not the “named insured” as that term is used and defined in the subject policy.
7. Jaime Rodriguez, as an omnibus insured claiming under the policy issued to Carlos Valezquez, was not required by the policy to attend any examinations under oath. His failure to appear at both of the two examinations requested and scheduled by the Defendant, even assuming arguendo that there was no reasonable excuse for not appearing, cannot as a matter of law be found to comprise the failure of a condition precedent and cannot rise to the level of a defense to nonpayment of the subject benefits.
It is hereby ORDERED AND ADJUDGED that
8. The Defendant’s Motion for Summary Judgment is Denied.
9. The Plaintiff’s Motion for Summary Judgment as to Third Affirmative Defense is Granted.
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