11 Fla. L. Weekly Supp. 971a
Insurance — Personal injury protection — Coverage — Affirmative defenses — Failure to attend examination under oath — Error to find defense of failure to attend EUO was waived by failure to schedule EUO within 30-day period to investigate and dispose of claims — Insurer is not barred from investigating and contesting claims after 30-day deadline, but is subject to statutory penalties for denying reasonable and valid claims
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. NORTH DADE MEDICAL & WELLNESS, INC., as assignee of Carol English. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 03-8783 (08) CACE. June 14, 2004. J. Leonard Fleet, Judge.
THIS CAUSE comes before the court on United Insurance’s appeal of the trial court’s grant of partial summary judgment on the issue of the insured’s no-show at the scheduled Examination Under Oath (EUO). This Court has jurisdiction pursuant to Article V, §5, Florida Constitution.
Appellee/Assignor, Carol English (English), submitted PIP benefits claims for a February 1, 2001, accident. Appellant/Assignee United Automobile Insurance Company (United) received the claims at issue on March 14, 2001. United scheduled an Independent Medical Examination (IME) on March 28, 2001, which was within the statutory period. English complied. United asserts the IME outcome prompted the immediate notice of an EUO scheduled for April 30, 2001, which is outside Fla. Stat. § 627.736(4)(b) thirty (30) days deadline to investigate and dispose of claims. United appeals the trial court’s grant of a summary judgment on the insurer’s “EUO no-show” affirmative defense. A transcript of the hearing below has not been made available to this court, nor does the summary judgment order under review include any rationale. It seems, however, the trial judge reasoned an EUO scheduled after the thirty (30) days deadline is ineffective, and thus the affirmative defense alleged based on the failure to attend an EUO was waived. In other words, United could not prove a defense against English’s allegation of reasonable care.
In order to determine the propriety of a summary judgment, this court must resolve whether there is any genuine issue as to any material fact and whether the moving party is entitled to a judgment as a matter of law. Fla. R. C. P. 1.510(c). The proper standard of review of a summary judgment is de novo. Gonsalves v. Sears, Roebuck and Co., 859 So. 2d 1207 (Fla. 4th DCA 2003). This court must resolve whether the trial court correctly determined English was entitled to prevail as a matter of law. See Menendez v. The Palms West Condominium Ass’n, Inc., 736 So. 2d 58 (Fla. 1st DCA 1999).
For the reasons set out below, the grant of summary judgment must be reversed.
The insurance policy provides for an EUO as a condition precedent to receiving personal injury protection (PIP) benefits. The EUO is an investigative tool. An EUO provision is valid in Florida. See Goldman v. State Farm Fire General Ins. Co., 660 So. 2d 300 (Fla. 4th DCA 1995). Analysis of the EUO provision as it relates to the instant case must be done within the context of the PIP provisions.
Fla. Stat. § 627.736(4)(b) provides an insured’s claim of PIP benefits is “due and payable as loss accrues, upon receipt of reasonable proof of loss.” The insurer is allowed thirty (30) days, after receiving notice, within which to investigate and either pay or reject the claim. Id.; January v. State Farm Mut. Ins. Co., 838 So. 2d 604, 607 (Fla. 5th DCA 2003). Indeed, the “burden is clearly upon the insurer to authenticate the claim within the statutory time period.” Amador v. United Auto. Ins. Co., 748 So. 2d 307, 309 (Fla. 3d DCA 1999) citing Fortune Ins. Co. v. Pacheco, 695 So. 2d 394 (Fla. 3d DCA 1997). The insurer may define reasonable proof of a loss. Id. No statutory or other obligation requires the insurer to pay an invalid or ineligible claim. See January, 838 So. 2d at 607. The insurer may contest the claim even after the statutory period. Id. However, if the claim is unsatisfied within the statutory investigative and payment period, the insurer accepts the risk of liability for interest and attorney’s fees. Id.
In the instant case, the trial court incorrectly read Fla. Stat. § 627.736 as precluding an EUO after the thirty (30) days deadline. The remedy for late satisfaction of a claim is within the penalty and fees provisions of § 627.736. See, January, supra at 607. United Insurance timely received a claim for PIP benefits. An IME was scheduled and performed. Thereafter, United requested an EUO, but failed to schedule the EUO at a time within the thirty (30) days statutory period. Fla. Stat. § 627.736 does not compel PIP insurers to pay a claim after the thirty (30) days deadline passes; rather, its provisions allow PIP insurers to risk incurring statutory penalties for denying reasonable and valid claims. See January, supra (an insurer is not barred from contesting the claims after the thirty (30) days pass, but must pay the penalties once its duty to pay the claim is established). Therefore, noncompliance with the EUO provision as an investigative tool is not fatal.
Nonetheless, the EUO and questions of coverage cannot extend the thirty (30) days deadline for payment. Id. Nor is the EUO provision within an insurance contract an instrument to avoid the PIP policy of “guarantee[ing] swift payment of PIP benefits.” See, Crooks v. State Farm Mut. Auto. Ins. Co., 659 So. 2d 1266 (Fla. 3d DCA 1995). The standard for employing the EUO is not arbitrary.
The decision of the court below having been reversed, this matter is returned to such court for further proceedings not inconsistent herewith.
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