11 Fla. L. Weekly Supp. 1012a
Insurance — Personal injury protection — Coverage — Summary judgment — Factual issues — Summary judgment is not appropriate on issue of whether settlement of outstanding medical bills between insured and provider/assignee precludes provider from seeking recovery of remaining balance of PIP benefits where intent of parties to settlement is issue of material fact not to be determined on motion for summary judgment — Conditions precedent — Examination under oath — Insurer is not absolved of liability to pay PIP benefits by insured’s failure to attend EUO scheduled to occur after expiration of insurer’s thirty-day deadline to authenticate claim — Motions for summary judgment denied
TRAN CHIROPRACTIC & WELLNESS CENTER, INC. d/b/a WITH HANDS ONLY CHIROPRACTIC, P.A., as assignee of Ryan Hess, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit for Hillsborough County, Civil Division. Case No. 03-30183, Division J. August 18, 2004. Gaston J. Fernandez, Judge. Counsel: Timothy A. Patrick, P.A., Tampa. Ryan P. Dugan, Haas, Dutton, Blackburn, Lewis & Longley, Tampa.
ORDER DENYING MOTION FOR SUMMARY JUDGMENT, AMENDED MOTION FOR SUMMARY JUDGMENT, AND MOTION FOR FINAL SUMMARY JUDGMENT OR SUMMARY DISPOSITION
THIS CAUSE came before the Court on June 28, 2004, on Progressive Express Insurance Company’s (hereinafter the “Defendant”) Motion for Summary Judgment, Amended Motion for Summary Judgment, and Motion for Final Summary Judgment or Summary Disposition, and the Court, having reviewed the court record, Tran Chiropractic & Wellness Center’s (hereinafter the “Plaintiff”) Opposition to Motion for Summary Judgment, and a supporting affidavit, and being otherwise fully advised in the premises, finds that the Defendant is not entitled to summary judgment.
1. The record reflects that Ryan Hess (hereinafter the “insured”) was injured in an automobile accident and received medical treatment from the Plaintiff. The total cost of medical service provided by the Plaintiff was $6,095.00. The Defendant had paid the PIP benefits of $4,605.76, leaving a balance of $1,489.24.
2. Subsequent to the commencement of the instant action, it was discovered that the Plaintiff had accepted $850.00 from the insured to resolve “all” outstanding bills. The Defendant alleges that the settlement precludes the Plaintiff from seeking recovery of the remaining balance of PIP benefits, since the insured is no longer liable for any outstanding medical bills.
3. When a motion for summary judgment is filed, a moving party must conclusively show the absence of any genuine issue of material fact. “Summary judgment is proper only where the pleadings, depositions, answers to interrogatories and admissions show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Holl v. Talcott, 191 So. 2d 40 (Fla. 1966). “All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.” Fletcher Co., v. Melrose Mfg. Co., 261 So. 2d 191 (Fla. 1st DCA 1972). “[I]f the evidence raises the slightest doubt upon any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it.” Crovella v. Cochrane, 102 So. 2d 307 (Fla. 1958).
4. A review of the record indicates that there are issues of material fact which preclude the entry of summary judgment. Rodric T. Brooker, the insured’s personal injury lawyer, stated in the affidavit that the settlement entered between the Plaintiff and the insured was intended to release the insured from any future personal obligation to pay his co-pay, the sum of $1,219.00, and that neither the Plaintiff nor the insured agreed to release the Defendant from any obligation to pay PIP benefits under the policy. The gist of the Plaintiff’s argument is that the settlement does not have the effect of releasing the Defendant from its obligation to pay 80% of the medical expenses under the policy.
5. Generally, the intent of the parties or the interpretation of a contract is to be determined by the trier of fact, and it is not to be determined upon a motion for summary judgment. MacKenzie v. Avis Rent-A-Car Systems, Inc., 369 So. 2d 647 (Fla. 3rd DCA 1979).
6. The Defendant also argues that under the applicable PIP statute, an insured is required to submit to “examination under oath” (hereinafter “EUO”) as a condition precedent to coverage under the policy. Therefore, the insured’s refusal to attend EUO constitutes a wilful and material breach of the insurance policy, which relieves the Defendant of its liability to pay.
7. The record reflects that the insured submitted notice of covered losses and made demand for PIP benefits after he sustained bodily injuries on June 20, 2002. The instant action was filed on January 22, 2003. The Defendant set EUO on June 2, 2003, more than five months after the commencement of the present action. “A personal injury protection (PIP) insurer. . . . is given 30 days to investigate a PIP claim and to either pay the claim or discover the facts that warrant a refusal to pay, and if it does not do so then the claim is overdue and the statutory penalties for failing to pay the claim timely are due.” January v. State Farm Mutual Insurance Co., 838 So.2d 604 (Fla. 5th DCA 2003); See also, § 627.736, Fla. Stat. (2003). “An insurer may not disregard its obligation to pay PIP benefits on the ground that an insured failed to attend an examination under oath that was scheduled to occur subsequent to the insurer’s thirty-day deadline to authenticate the claim.” Amador v. United Automobile Insurance Co., 748 So. 2d 307 (Fla. 3rd DCA 1999). “Insurer cannot use its investigative rights to examine the insured to extend the thirty-day period without reasonable proof that it was not responsible for the claim.” Id.
8. Pursuant to the aforementioned authorities, the Defendant’s Motions are insufficient to warrant the entry of summary judgment. It is therefore,
ORDERED AND ADJUDGED that the Defendants’ Motion for Summary Judgment, the Amended Motion for Summary Judgment, and Motion for Summary Disposition, are hereby DENIED.
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