10 Fla. L. Weekly Supp. 971c
Insurance — Personal injury protection — Coverage — Conditions precedent — Examination under oath — Where insurer scheduled EUO within thirty days of notice of claim but EUO was not scheduled to take place until over thirty days after notice of claim, insurer breached contract by failing to pay PIP claim within thirty days after notice without reasonable proof that it was not liable for claim and was properly barred from using insured’s failure to attend EUO as defense in suit to recover PIP benefits
UNITED AUTOMOBILE INSURANCE CO., Appellant, v. MILLENNIUM DIAGNOSTICS & IMAGING CENTER, a/a/o Catalina Candelario, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 03-008 AP. L.T. Case No. 01-5568 SP 05. October 14, 2003. On appeal from the County Court for Miami-Dade County, Caryn C. Schwartz, Judge. Counsel: Stuart B. Yanofsky, Office of the General Counsel, United Automobile Insurance Company, Miami, for Appellant. Gregg Goldfarb, Gregg Goldfarb, P.A., Miami, for Appellee.
(Before CINDY S. LEDERMAN, IVAN F. FERNANDEZ, and DIANE WARD, JJ.)
(LEDERMAN, J.) This case is on appeal from an order of the trial court granting directed verdict in favor of Appellee stemming from a personal injury protection (PIP) suit. Appellant is the insurer, and Appellee is the medical provider and the insured’s assignee. For the reasons discussed below, we affirm.
I
The relevant facts occurred when the insured was injured in an automobile accident. The insured received medical treatment and assigned her right to collect PIP benefits to Appellee. Appellee subsequently billed Appellant for the insured’s medical treatment pursuant to the insurance policy.
Upon receipt of the medical bills, Appellant scheduled an examination under oath (EUO) for the insured in order to investigate the claim. According to the insurance policy, attendance at the EUO, in addition to cooperating with Appellant, is a condition precedent to receiving PIP benefits. The scheduling of the EUO took place within thirty days of Appellant receiving the medical bills, however the actual EUO was not scheduled to take place until well over thirty days after receipt of the medical bills. The insured never submitted to the EUO, and Appellant never paid the medical bills.
Appellee brought suit seeking payment of the medical bills. At trial Appellant claimed, in addition to the statutorily available defenses, that the medical treatment was unreasonable, unrelated, and unnecessary, and that Appellee failed to attend the EUO, thereby breaching a condition precedent to recovering as set forth in the insurance policy. At the close of both sides’ cases in chief, Appellee moved for directed verdict on the issue of whether Appellant could use the failure to attend the EUO as a defense against payment of the medical bills. On the authority of Amador v. United Auto Ins. Co., 748 So. 2d 307 (Fla. 3d DCA 1999), the trial court directed verdict on that issue against Appellant. The question of whether the medical treatment was reasonable, related, and necessary went to a jury. The jury determined that the treatment was reasonable, related, and necessary — finding in favor of Appellee.
II
Appellant now seeks to overturn the trial court’s directed verdict. It argues that United Auto Ins. Co. v. Rodriguez, 808 So. 2d 82 (Fla. 2001) is controlling in this matter. We disagree. In Rodriguez, the Florida Supreme Court held that an insurer who fails to pay a PIP claim within thirty days after notification does not waive all of its defenses against the claim. Because the trial court did not vitiate all of Appellant’s defenses, we find that the trial court’s ruling was not contrary to Rodriguez.
Our opinion rests on the fact that the trial court did not rule that Appellant waived all its defenses by failing to pay the claim within thirty days after receiving notice; Appellant still had statutory defenses. The trial court only ruled that Appellant could not use the insured’s failure to attend the EUO as a defense because Appellant breached the insurance policy first by failing to pay the claim within thirty days of notification as mandated by § 627.736(4)(b), Fla. Stat. (2001). This was the holding in Amador. The Amador court held that when an insurer fails to pay a PIP claim within thirty days of notice of the claim without reasonable proof that it was not liable for the claim, it breaches the insurance policy and the insured is free to file suit to determine the case on the merits. Amador, 748 So. 2d at 308.This is the case even where the insured fails to attend a scheduled EUO. Id. The Amador court specifically noted that failure to pay a PIP claim within thirty days after notice is a breach of contract. Id. at 309. Once the contract is breached, an insurer cannot use the conditions precedent set forth in the contract as defenses against paying the claim. Accordingly, Appellant was properly barred from using the failure to attend the EUO as a defense.
It must be reiterated that the question of whether the treatment was reasonable, related, and necessary, went to a jury which found that all three elements were present. In short, we find that Rodriguez isnot directly applicable to the instant case, and that Amador is dispositive of this matter.
III
Accordingly, we affirm the trial court’s decision and remand this matter for the trial court to assess reasonable attorney’s fees against Appellant pursuant to § 627.428, Fla. Stat. (2003). (FERNANDEZ and WARD, JJ., concur.)
* * *
