10 Fla. L. Weekly Supp. 16a
Insurance — Personal injury protection — Where medical provider filed suit the day before insured attended examination under oath required by PIP policy, condition precedent to filing suit had not been met — EUO scheduled to occur after statutory 30-day period for insurer to obtain reasonable proof is timely where EUO was scheduled to occur within period and rescheduled at insured’s request — Insurer’s request to medical provider for complete medical records on insured before 30-day period began to run was permissible — Summary judgment for insurer affirmed
WEST DIXIE REHABILITATION & MEDICAL CENTER a/a/o PASCAL ST. PHAR, Appellant, vs. STATE FARM FIRE AND CASUALTY COMPANY, A foreign corporation, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 02-072 AP. L.C. Case No. 01-2506 CC 05. November 5, 2002. An Appeal from the County Court for Miami-Dade County, Judge Caryn Canner Schwartz. Counsel: Spencer G. Morgan and Randy M. Weber, for Appellant. Nancy W. Gregoire, Bunnell, Woulfe, Kirshbaum, Keller, McIntyre & Gregoire, P.A., and Jonathan S. Brooks, for Appellee.
(Before BERNARD S. SHAPIRO, ELEANOR L. SCHOCKETT and MAYNARD A. GROSS, JJ.)
(PER CURIAM.) Strictly construing the requirement that an examination under oath is a condition precedent to filing suit, we find that the trial court ruled properly on the summary judgment below. The learned trial judge set forth the proper basis for her ruling in her order on the motion for summary judgment, and we publish that order in pertinent part and adopt it as our own:
Pascal St. Phar was injured in an automobile accident on October 20, 2000, while a passenger in a vehicle driven by his mother, who is the insured under State Farm’s automobile policy (“the Policy”) that includes PIP benefits. Pascal St. Phar is an additional insured under the Policy. Subsequently, Mr. St. Phar sought medical treatment from the Plaintiff in this case and executed an Assignment of Benefits to said Plaintiff. Plaintiff, in its Memorandum, makes reference under the heading entitled “UNDISPUTED FACTS” to treatment rendered from October 20, 2000 through January, 2001, and argues that Defendant did not request that Mr. St. Phar attend a[n] examination under Oath (“EUO”) until December 27, 2000, two months after receiving notice of the claim. However, at the hearing on this Motion, the Court inquired as to the specific dates for medical services rendered which were the subject of Plaintiff’s Complaint. Plaintiff’s attorney conceded that the Complaint only addressed claims for medical services rendered after November 11, 2000, since the Defendant paid the bills submitted for medical services rendered from October 20, 2000 to November 11, 2000. Accordingly, those bills were not in dispute. All attorneys finally agreed that the bills submitted for services rendered from November 12, 2000 to January 31, 2001, are the only subjects of the Complaint.
Defendant received the bills on December 19, 2000, for dates of service after November 11, 2000. [Therefore, the Plaintiff’s argument in its Memorandum regarding Defendant’s failure to schedule Mr. St. Phar’s EUO on or before November 20, 2000, is irrelevant because the thirty day time period for scheduling an EUO applied to services for which the bills were paid by Defendant and which are not the subject of Plaintiff’s Complaint].
Upon receiving the bills on December 19, 2000, the Defendant requested that defense counsel conduct an EUO of Mr. St. Phar, in compliance with the Policy language. On December 27, 2000, Defense counsel sent Plaintiff’s attorney (also the attorney for Pascal St. Phar) the “Notice of Taking Examination Under Oath” which was scheduled to take place on January 11, 2001. Since Plaintiff’s counsel also represents other individuals who were involved in the same accident and who are assignors of benefits in other ‘Separate lawsuits, Plaintiff’s counsel received the Notice of Taking Examination Under Oath for all his clients. The date of January 11, 2001 was within 30 days of receipt by Defendant of medical bills for dates of service after November 11, 2000. Plaintiff’s counsel received said Notice on January 2, 2001. On January 5, 2001, Plaintiff’s counsel sent correspondence to defense counsel indicating his acknowledgment of State Farm’s request for an EUO but requested that it be rescheduled due to a pending conflict. At Plaintiff’s counsel’s request, State Farm rescheduled the EUO for February 13, 2001, and re-noticed Mr. St. Phar for the February 13, 2001 EUO (which said rescheduling and Notice also applied to Plaintiff’s counsel’s other clients involved in the same accident). Mr. St. Phar (and the other assignors) attended the EUO on February 13, 2001. Mr. St. Phar’s EUO actually took place on February 14, 2001, because too many EUO’s were scheduled far February 13, 2001 (i.e., for all individuals who filed lawsuits for PIP benefits and were involved in the same accident).
Plaintiff’s Complaint in this Case was executed on February 12, 2001 and filed with the Clerk’s office on February 13, 2001, the date Mr. St. Phar’s EUO was re-scheduled to take place.
LEGAL ANALYSIS
The Plaintiff, the assignee of Mr. St. Phar, filed suit based upon the fact that State Farm had breached its obligation under the Policy and Florida Statute Section 627.736 by failing to pay PIP benefits within 30 days of receipt of the medical bills. The Defendant takes the position that when Plaintiff’s counsel filed suit on behalf of West Dixie Rehabilitation & Medical Center in this case, State Farm was relieved of any contractual obligation to pay PIP benefits. The Defendant refers to the conditions Section of the Policy on Page 29, which provides in pertinent part:
2. Suit Against Us.
There is no right of action against us:
a. Until all the terms of the policy have been met.
The policy, on Page 6, further provides in pertinent part:
REPORTING A CLAIM-INSURED’S DUTIES
4. Other Duties Under No Fault, Medical Payments, Uninsured Motor Vehicle and Death, Dismemberment and Loss of Sight Coverages
The Person making the claim also shall:
c. answer questions under oath when asked by anyone we name, as often as we reasonably ask, and sign copies of the answers.
On page 6, the Policy states, in pertinent part:
5. Insured’s duty to cooperate with us.
The insured shall cooperate with us and, when asked, assist us in:
b. Securing and giving evidence. . .
It is well established law in Florida that third parties (such as West Dixie Rehabilitation and Medical Center, in this case) must ensure compliance with the insured to the policy’s terms and conditions or lose their rights under the policy. [See: Universal Medical Center of South Florida v Fortune Insurance Company, 761 So.2d 386, 387 (Fla. 3d DCA 2000); Orion Insurance Company v. Magnetic Imaging Systems I, 696 So.2d 475, 478 (Fla. 3d DCA, 1997); and Raffa Associates, Inc. v. Boca Raton Resort and Club, 616 So. 2d 1096, 1094 (Fla. 4th DCA, 1993). Accordingly, the insured was required by the Policy to attend an EUO. The Policy language is clear and concise regarding the requirement of answering questions under oath when requested, and does not need to specifically use the term “Examination Under Oath”. There is no dispute between the parties in this case regarding that requirement since the attorneys for the Plaintiff and the insured were present for the EUO scheduled for February 13, 2001 and continued on February 14, 2001, on which date Mr. St. Phar’s EUO took place; and further, because the EUO first scheduled by the Defendant was timely noticed and set. The EUO was reset at the request of Plaintiff’s counsel.
In Goldman v. State Farm Fire General Insurance Company, 660 So.2d 300 (Fla. 4th DCA, 1999), Appellants, who were the Plaintiffs, appealed from a final summary judgment entered in favor of appellee, the defendant insurance company in that action, for the breach of an insurance policy. In Goldman, the insureds failed to appear for their respective examinations under oath and the insurance company was unable to complete its investigation. Consequently, the insurance company neither made payment nor denied payment of the claim. The insureds subsequently commenced their legal action against the insurance company prior to the taking of an EUO. In the case at bar, Mr. St. Phar did appear for his EUO, but on the date Mr. Phar appeared for his EUO, Plaintiff had filed suit against State Farm. This fact is undisputed. Mr. St. Phar’s EUO was not taken until February 14, 2001, a day after Plaintiff’s attorney filed suit. Plaintiff’s attorney filed a lawsuit before State Farm could use the EUO to determine whether the bills submitted by Plaintiff should be paid.
In Goldman, the determinative issue in the case was whether the policy provision requiring the insured to submit to a sworn examination under oath is a condition precedent to filing suit. The Goldman court held, based upon a substantial line of Florida cases, “that the policy provisions requiring appellants to submit to examinations under oath are conditions precedent to suit rather than cooperation clauses”, The Goldman Court also held “since the insurance policy clearly requires compliance with all of its requirements in order for appellants to bring this action, appellants’ failure to comply with any one of the conditions as a matter of law would be sufficient grounds for upholding the lower court’s order”. (See also Willis v. Huff, 736 So.2d 1272, 1273 (Fla. 4th DCA 1999).
In Amador v. United Auto Insurance Company, 748 So. 2d 307 (Fla. 3d DCA, 1999), the Court seems to say that an insurance company can do anything it wants to do within the first 30 days regarding an investigation, including taking an EUO, if it is a provision in the policy and if the insured is required to attend an EUO duly noticed within the thirty-day period. If the insured fails to attend (without a reasonable basis to do so), this will constitute a breach of the policy because of the failure to comply with a condition precedent to coverage and it will be valid grounds for the insurer to deny coverage. If, on the other hand, the insurer fails to schedule the EUO within the thirty day period, then the insurer, under Amador, has breached the requirements of the PIP statute, and cannot deny coverage for failure of the insured to attend an untimely EUO. Amador clearly says that the insured is entitled to file suit, even though he has not complied with the policy requirement of attending an EUO, when the EUO was set past the thirty-day statutory period allowable for the insurer’s investigation. Additionally, Amador distinguished the Goldman case (a homeowner’s case) and the Willis case (a UM case) because Amador was also governed by the “thirty-day rule” set forth in the PIP statute (which does not apply to homeowner or UM policies). Furthermore, Amador makes no mention of the requirement of an IME or peer review in addition to an EUO.
The Supreme Court of Florida in United Automobile Insurance Company v. Rodriguez and State Farm Fire and Casualty Company v. Perez (Nov. 8, 2001) [26 Fla. L. Weekly S747a] disagreed with the Third DCA in the Perez ruling that the insurer must obtain, within thirty days, a medical report providing “reasonable proof” that it is not responsible for payment. The statute, according to the Florida Supreme Court, does not mention “medical report” in this regard; the statute simply says that the insurer must pay benefits within thirty days, unless the insurer “has reasonable proof to establish that the insurer is not responsible for payment” The Court further stated: “the statute does not limit ‘reasonable proof to a ‘medical report’.” Furthermore, the Florida Supreme Court held that “nothing in the statute provides that once a payment becomes overdue, the insurer is forever barred from contesting the claim”. The Court explained: “Thus, according to the District Court, where an insurer improperly fails to pay a claim within thirty days, the insurer must pay the claim, i.e., the insurer can no longer contest the claim. . . This holding violates the plain language of the law”.
Plaintiff argues that Defendant failed to schedule Mr. St. Phar’s EUO within the statutory time period. Based upon agreement by the attorneys at the hearing on Defendant’s Motion, the initial EUO was properly noticed and scheduled within the thirty-day period. It was the Plaintiff who requested that the EUO be rescheduled due to a conflict and acknowledged acceptance of the date of February 13, 2001, which was outside the thirty-day period. Plaintiff argues that since Mr. St. Phar’s EUO was not actually taken on February 13, 2001, but rather on February 14, 2001, that the EUO was not scheduled within the statutory time period. Applying a very restrictive analysis, argument could be made that by not attending the EUO within the 30 day period or by not rescheduling within the 30 day period, the insured failed to comply with a condition precedent and the insurance company could deny coverage. Another argument could be made that the Plaintiff could be deemed as having waived the thirty day requirement by requesting the rescheduling or can be treated as having agreed to toll the thirty day period from the date of requesting the rescheduling or from the date of the first scheduled EUO or from the date of the newly scheduled EUO. Under these scenarios, a February 13, 2001 or February 14, 2001 EUO would still be timely. However, in light of the Florida Supreme Court case of Perez, the other cases cited in this Order, and the undisputed facts of this case, the Defendant, as a matter of law, is entitled to Summary Judgment in its favor. There are no material issues for the trier of fact to resolve.
Finally, on December 22, 2000, State Farm sent a letter to Plaintiff, regarding three claimants, including Pascal St. Phar, which Plaintiff’s attorney acknowledged receiving and which was addressed in Plaintiff’s Memorandum of Law in Opposition. The letter informed the claimants that “a payment by the Defendants would not be overdue when the insurer has reasonable proof to establish that the insurer is not responsible for payment” and advised the claimants that “State Farm will be withholding payment of their bills pending investigation of certain questions of coverage”. In order to verify Defendant’s responsibilities regarding the claim, they requested from West Dixie Rehabilitation & Medical Center complete records on the claimants, including, but not limited to, all reports, handwritten notes, therapy notes, documents signed or completed by claimants, referrals to their medical providers, diagnostic testing and the names of people involved in their care. In Fortune Insurance Company v. Pacheco, 695 So. 2d 394 (Fla. 3d DCA, 1997), the Court addressed the following certified question: Can a PIP insurer require an insured to submit all supporting medical records before the thirty day time period for payment of the claim begins to run? The Court answered the question with a resounding “no”. The policy included, as reasonable proof of a claim, “all medical expenses incurred as a result of the accident “and as supporting medical records.” The burden, according to the Court, is clearly upon the insurer to authenticate the claim within the statutory time period. The Court held:
Although it is entirely permissible for the insurer to require supporting medical records, the insurer cannot require the claimant to furnish those records before the thirty-day period begins to run. The insured fulfills his obligation to furnish medical records upon signing a waiver of confidentiality that allows the insurer to procure the records directly from the provider, who has the records, and who awaits payment. It is a common-sense proposition that patients, as a rule, do not have in their possession or control their own medical records
Accordingly, State Farm’s request in its December 22, 2000 letter was permissible, since the request was directed to claimant’s assignee, the medical provider. Plaintiff failed to provide those records and proceeded to file suit on February 13, 2001, in contravention of the Policy requirements. For all the reasons set forth above, the Court finds no material issues of fact and grants Defendant’s Motion for ‘Summary Judgment as a matter of law.
AFFIRMED.
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