11 Fla. L. Weekly Supp. 1027c
Insurance — Personal injury protection — Coverage — Medical expenses — Where insurer scheduled examination under oath more than thirty days after insurer received insured’s medical bills, and insurer did not have reasonable proof that it was not liable for the claim, insurer was precluded from raising as defense at trial insured’s failure to submit to EUO
LARRY MONTAQUE, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 03-24934 COCE (55). August 20, 2004. Jerry Pollock, Judge. Counsel: Cris Evan Boyar, for Plaintiff. Thomas Freehling, for Defendant.
ORDER ON PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
This cause, having come before the Court on Plaintiff’s Motion for Partial Summary Judgment, and the Court having heard argument of counsel, reviewing the record and transcript, and being otherwise advised I the Premises, it is hereupon:
ORDERED and ADJUDGED that:
1. The Plaintiff, an insured of the Defendant, filed a PIP suit against the Defendant for non-payment of medical expenses after a motor vehicle accident.
2. The Defendant filed an Answer and Affirmative Defenses.
3. After a reasonable time for the parties to conduct discovery the Plaintiff filed a Motion for Partial Summary Judgment as to the Defendant’s Affirmative Defense that the Plaintiff failed to submit to a properly scheduled and noticed examination under oath (EUO) which was a violation of the terms and conditions of the Defendant’s policy of insurance and a condition precedent to filing suit.
4. The Plaintiff argues the Defendant cannot avail itself of the examination under oath defense because the Defendant breached the policy of insurance first. The Plaintiff relies on the case of Amador v. United, 748 So.2d 307 (Fla. 3d DCA 1999) and other applicable case law.
5. The record reflects: the Defendant received the first set of medical bills in the amount of $2,855 on or about April 29, 2003; the Defendant scheduled the examination under oath to take place on July, 21, 2003, which is more than 30 days after the Defendant received the Plaintiff’s medical bills; and the Defendant does not have reasonable proof that it was not liable for this claim.
6. The Defendant argues that Court should deny the Plaintiff’s Motion based on the holding of United Auto v. Rodriguez, 808 So.2d 82 (Fla. 2001).
7. The Court find’s United Auto v. Rodriguez, 808 So.2d 82 (Fla. 2001) distinguishable.
8. Pursuant to the holding of Amador the Court finds the Defendant breached the policy of insurance first and therefore grants Plaintiff’s Motion for Partial Summary Judgment. The Defendant is precluded from raising the examination under oath as a defense at the time of trial.
9. At this time, the Defendant is free to defend the case based only on the other statutory defenses of reasonable, related, necessity and price pursuant to Florida Statute 627.736(4)(b) which states:
. . .This paragraph does not preclude or limit the ability of the insurer to assert that the claim was unrelated, was not medically necessary, or was unreasonable or that the amount of the charge was in excess of that permitted under, or in violation of, subsection (5). Such assertion by the insurer may be made at any time, including after payment of the claim or after the 30-day time period for payment set forth in this paragraph.
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