10 Fla. L. Weekly Supp. 729a
Insurance — Personal injury protection — Coverage — Denial — Failure to attend examination under oath — Policy language requiring written claim “and/or” EUO is ambiguous and must be construed in favor of coverage — Even if provision was not ambiguous, defense of failure to attend EUO would fail because insurer sent request for EUO directly to insured represented by counsel and made no effort to put counsel on notice of EUO — Summary judgment granted in favor of insured on bills denied solely on basis of failure to attend EUO — Insurer’s motion for summary judgment as to bills contested as not reasonable or necessary is denied because defense raises question of fact
THE PREMIER CENTER FOR PERSONAL INJURIES, as assignee of Francisco Duarte, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. General Jurisdiction Division. Case No. 00-5847 CC 26. March 18, 2002. C. Pereyra-Shuminer, Judge. Counsel: Charles L. Vaccaro. Norma Kassner.
ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT ON DEFENSE OF SWORN STATEMENT, DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND PARTIAL JUDGMENT FOR PLAINTIFF
This Cause, having come before the Court for hearing on February 1, 2002 for Plaintiff’s Motion for Partial Summary Judgment on Defense of Sworn Statement and Defendant’s Motion for Final Summary Judgment, and the Court having reviewed the pleadings and motions, heard the argument of counsel and being otherwise duly advised in the premises, the Court finds as follows:
On or about March 20, 2000, Francisco Duarte was involved in an automobile accident in which he sustained personal injuries necessitating medical treatment at Plaintiff’s facility. At the time of the accident, Mr. Duarte had Personal Injury Protection Coverage through UNITED AUTOMOBILE INSURANCE COMPANY (“UNITED AUTOMOBILE”) with a maximum of $10,000.00. Mr. Duarte assigned his benefits under the subject policy to Plaintiff, THE PREMIER CENTER FOR PERSONAL INJURIES (“PREMIER”).
It was undisputed that Plaintiff gave UNITED written notice of Plaintiff’s claim for PIP benefits more than 30 days prior to this lawsuit being filed and that Plaintiff submitted medical bills incurred as a result of the subject automobile accident to UNITED more than 30 days prior to the filing of this lawsuit. It is further undisputed that Defendant had not paid anything towards Plaintiff’s PIP benefits.
UNITED denied liability for the bills in this case on the basis that Francisco Duarte unreasonably refused to attend a sworn statement under oath prior to the filing of the lawsuit. On April 24, 2000, UNITED sent a letter directly to Francisco Duarte requesting him to attend a sworn statement on May 4, 2000 or May 8, 2000. Prior to that date, on April 12, 2000, UNITED received a correspondence from Richard Munoz, Esq. who identified himself as the claims administrator for Francisco Duarte. Mr. Munoz further requested that UNITED “[p]lease send all request and correspondence related to this claim to [his] offices. . .” Additionally, on April 24, 2000, UNITED received a letter from Hyatt M. Fried, Esq., who notified UNITED that he was now representing Francisco Duarte in this claim. UNITED did not advise either Mr. Munoz or Mr. Fried of the request for sworn statement. In fact, the denial letter which was sent on May 15, 2000 was sent directly to Francisco Duarte and not to either Mr. Munoz or Mr. Fried.
Additionally, the provision in the insurance policy upon which UNITED AUTOMOBILE relies upon for their defense states:
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 . . . .
United Auto Policy, p 14 (emphasis in quotes supplied in original, emphasis in bold added).
In the case of Maria E. Gonzalez v. United Automobile Insurance Company, Dade County Court, Case Number 97-7483 CC 25 (01), UNITED raised the exact same defense of failure to satisfy a condition precedent to filing suit as a result of the insured’s failure to attend a sworn statement. On April 15, 1999, the Judge in that matter entered an order declaring the exact same policy language with regard to sworn statements to be ambiguous, and further held that UNITED AUTOMOBILE could not rely on that provision to deny coverage to an insured.
In the opinion, the Gonzalez Court reasoned:
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.
Other Judges in Dade County have similarly found said language to be ambiguous as a matter of law: Jose L. Sarabia v. United Automobile Insurance Company, Dade County Court, Case No. 98-14694 CC 05 (The Honorable A. Leo Adderly); Armando Salazar v. United Automobile Insurance Company, Dade County Court, Case No. 99-324 CC 05 (02) (The Honorable Linda Dakis); Maricel Rodrigues v. United Automobile Insurance Company, Dade County Case No. 99-3728, (The Honorable Harvey Goldstein).
This Court agrees with the other courts and finds that because UNITED has chosen to include “and/or” language, this particular policy provision is ambiguous as a matter of law.
It is a well settled rule of law in Florida that where an insurance contract is ambiguous it will be construed liberally in favor of the insured and strictly against the insurer. Ellsworth v. Ins. Co. of North America, 508 So. 2d 395 (Fla. 1st DCA 1987), see also Hartnett v. Southern Insurance Company, 181 So. 2d 524 (Fla. 1965). Furthermore, where the policy is found to be ambiguous, the contract is to be read liberally and to provide the broadest coverage possible. Prudential Property and Casualty Insurance Company v. Swindal, 622 So. 2d 467 (Fla. 1993); Triano v. State Farm Mutual Automobile Insurance Company, 565 So. 2d 748 (Fla. 3d DCA 1990). It is axiomatic that insurance policies, as well as the Insurance Code, will be construed in favor of the insured and insurance coverage.” Bankers Life and Cas. Co. v. Vadra, 563 So. 2d 200 (Fla. 3d DCA 1990). Where a policy of insurance has provisions that conflict with each other the policy is ambiguous and must be construed in favor of coverage. Tire Kingdom v. First Southern Ins. Co., 573 So. 2d 885 (Fla. 3d DCA 1990).
In this matter, four separate Dade County Court Judges have already determined the language of United Automobile’s policy to be vague and ambiguous. Indeed, disagreements by different courts over how to construe a contract constitute an ambiguity in and of themselves. State Farm Fire & Casualty Ins. Co. v. Deni Associates of Florida, Inc., 678 So.2d 397, 407 (Fla. 4th DCA 1996) (concurring opinion, J. Klein).
If Judges learned in the law can reach so diametrically conflicting conclusions as to what the language of the policy means, it is hard to see how it can be held as a matter of law that the language was so unambiguous that a layman would be bound by it.
Id. at 408. See, also, Security Ins. Co. of Hartford v. Investors Diversified Ltd., Inc., 407 So.2d 314 (Fla. 4th DCA 1981) (“the insurance company contends that the language is not ambiguous, but we cannot agree and offer as proof of that pudding the fact that the Supreme Court of California and the Fifth Circuit in New Orleans have arrived at opposite conclusions from a study of essentially the same language”).
Since the policy relied upon by UNITED AUTOMOBILE in this case and in Gonzalez, Salazar, Rodriguez, and Sarabia cases are identical, UNITED AUTOMOBILE’S insurance policy is “still” ambiguous. Accordingly, UNITED AUTOMOBILE cannot rely on this defense to deny coverage in this matter.
Even if the policy provision at issue was not ambiguous, UNITED’S defense would still fail as a matter of law. When UNITED sent the request for a sworn statement directly to Francisco Duarte, it had previously received a letter from Richard Munoz, Esq., who asked that he be informed of all requests and correspondence related to the claim. Additionally, prior to the date of the sworn statement, UNITED received a letter from Hyatt Fried, Esq., who identified himself as now representing Francisco Duarte. UNITED made no effort whatsoever to put either Mr. Munoz or Mr. Fried on notice of the sworn statements it unilaterally set for May 4 and May 8, 2000.
The insurer’s own actions in failing to provide notice of the sworn statement to counsel cannot constitute a refusal by the insured to attend the sworn statement. See, Chacon v. American Skyhawk, Case No. 00-433 AP (11th Cir. Dade County 2001) [8 Fla. L. Weekly Supp. 593b]. Thus, since UNITED chose to ignore the attorneys and instead chose to give notice only to Francisco Duarte, UNITED cannot now be permitted to argue that Francisco Duarte’s insurance should he denied for “refusing” to attend his sworn statement.
Plaintiff submitted $10,526.00 in bills to defendant. UNITED is contesting that the bills for dates of service 3/24/00-3/31/00 ($2079.00), 4/3/00-4/7/00 ($1708.00) and 3/29/00 ($590) are not reasonable or necessary and have obtained doctor’s reports to support that defense. The Court cannot decide that issue as it is one of fact. However, UNITED has not challenged the remaining $6,149 of Plaintiff’s bills and the only reason why those bills were denied was the defense of failure to attend as sworn statement.
BASED ON THE FOREGOING, it is hereupon ORDERED AND ADJUDGED that:
1. Defendant’s Motion for Summary Judgment be and the same is hereby DENIED.
2. Plaintiff’s Motion for Partial Summary Judgment on the Defense of Sworn Statement be and the same is hereby GRANTED.
3. PARTIAL JUDGMENT is hereby entered in favor of Plaintiff, THE PREMIER CENTER FOR PERSONAL INJURIES, INC., and against Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, and Plaintiff, THE PREMIER CENTER FOR PERSONAL INJURIES, INC. shall recover from the Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, the sum of Four Thousand Nine Hundred Nineteen and 20/100 ($4,919.20) with statutory prejudgment interest in the amount of One Thousand One and 44/100 ($1,001.44), for a total recovery of FIVE THOUSAND NINE HUNDRED TWENTY and 64/100 DOLLARS ($5,920.64), which said total amount shall bear interest at a rate of 11% per year from the date of this order, for which let execution issue.
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