10 Fla. L. Weekly Supp. 132a
Insurance — Personal injury protection — Dispute between medical provider and insurer — Where insured cooperated to some degree with investigation and processing of claim by completing and submitting application for PIP benefits and driver’s statement and submitting to chiropractic independent medical examination and medical doctor IME, and insured and her counsel appeared at examination under oath but requested that EUO be conducted with co-claimant present or insurer provide evidence of policy condition requiring that EUO be conducted separately, there remains genuine issue of material fact as to whether insured breached condition of policy requiring attendance at EUO as condition precedent to suit — Insurer’s motion for summary judgment denied
R. J. TRAPANA, M.D., P.A., a Florida Corporation (assignee of Swartz, Stella), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 01-05713 COSO 62. December 13, 2002. Lee Jay Seidman, Judge. Counsel: James D. Underwood, Law Office of Russel Lazega, N. Miami, for Plaintiff. Jose Dapena, for Defendant.ORDER ON DEFENDANT’SMOTION FOR SUMMARY JUDGMENT
This action was heard on Defendant’s Motion for Summary Judgment and the Court having heard argument of counsel, and being otherwise advised in the Premises,
IT IS ADJUDGED that
1. Defendant’s Motion is hereby DENIED.
2. The Defendant in this case argues that Stella Swartz (“Claimant”) failed to cooperate with terms and conditions of the policy of insurance issued by failing to attend an examination under oath, and as such this Court can rule as a matter of law that the claimant breached her contract of insurance with the Defendant making it proper for the Defendant to suspend any benefits under the policy.
3. This Court disagrees, the Fourth District Court of Appeal in Haiman made it clear that within this jurisdiction:
A total failure to comply with policy provisions made a prerequisite to suit under the policy may constitute a breach precluding recovery from the insurer as a matter of law. If, however, the insured cooperates to some degree or provides an explanation for its noncompliance, a fact question is presented for resolution by a jury.
Haiman v. Federal Insurance Company, 798 So.2d 811 (Fla. 4th DCA 2001).
4. In the present case the claimant not only cooperated to some degree in the investigation and processing of the claim, but completed and submitted an application for PIP benefits and a driver statement of accident, submitted to a Chiropractic independent medical examination, submitted to an Medical Doctor independent medical examination. In addition, the Claimant appeared at United Automobile Insurance Company’s Office with her attorney agreeing to give a statement, but asking that the statement be conducted with Margueritte Swartz present, or that the Defendant provide policy evidence of the required condition of having the examination under oath conducted separately. Defendant did neither and terminated the statements.
5. As Such, the Court finds that there remains a genuine issue of material fact in this case precluding the issuance of a summary judgment in favor of the Defendant.
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ORDER
This action was heard on Defendant’s Motion to Dismiss Plaintiff’s Complaint and the Court having heard argument of counsel, and being otherwise advised in the Premises,
IT IS ADJUDGED that
1. Defendant’s Motion is hereby DENIED as Plaintiff’s complaint is sufficient to state a cause of action as Plaintiff has alleged an assignment of benefits in favor of Plaintiff without attaching the document to the complaint and the Court may only consider the information within the four corners of the document on a motion to dismiss.
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