12 Fla. L. Weekly Supp. 318b
Insurance — Personal injury protection — Examination under oath — Failure to attend — Trial court abused its discretion in refusing to consider affidavit of insured’s trial attorney regarding communications with insurer seeking rescheduling of EUO in support of motion for rehearing of summary judgment in favor of insurer based on insured’s failure to attend EUO — Affidavit creates genuine issue of material fact as to intentional nature of insured’s non-attendance
ACTIVE SPINE CENTER, INC. a/a/o ODALYS RUIZ, Appellant, v. UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 04-021 AP. L.T. Case No. 02-04210 CC 26. January 11, 2005. An Appeal from the County Court for Miami-Dade County, Ellen Sue Venzer, Judge. Counsel: Jose R. Iglesia, for Appellant. David Millheiser, for Appellee.
(Before THOMAS M. CARNEY, MANUEL A. CRESPO, and MINDY SUE GLAZER, JJ.)
Appellant, Active Spine Center, Inc. a/a/o Odalys Ruiz, pursuant to Rule 9.110(a)(1), Fla. R. App. P., appeals a Final Summary Judgment entered on December 17, 2003 in favor of Appellee. This court has jurisdiction pursuant to Rule 9.031(c)(1), Fla. R. App. P.
The standard of review for a summary judgment order is de novo. It requires viewing the evidence in the light most favorable to the non-moving party. If there exists the “slightest doubt,” then summary judgment must be reversed. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000); Sierra v. Shevin, 767 So. 2d 524 (Fla. 3d DCA 2000).
On June 14, 2001, Odalys Ruiz (“Insured”) was allegedly injured in an automobile accident. She was insured by United Automobile Insurance Co. (“Insurer”). The Insured received medical treatment for her injuries at Active Spine Center, Inc. (“Provider”) and assigned the benefits of the insurance policy to the Provider. The Provider submitted medical bills to the Insurer for payment in accordance with the Personal Injury Protection (“PIP”) benefits under the insurance policy. The Insurer refused to pay the bills. The Insurer scheduled an examination under oath (“EUO”) for the Insured on August 24, 2001 or August 29, 2001, as an alternate date. Upon the Insured’s request, the EUO was rescheduled for September 12, 2001, at which time the Insured failed to appear. The Insured filed the complaint for PIP benefits on May 15, 2002.
On July 23, 2003, the Insurer filed a motion for summary judgment because the Insured failed to attend an EUO, which is, the Insurer alleges, a condition precedent to coverage. The matter was heard on December 17, 2003 and the lower court entered summary final judgment in favor of the Insurer. At that time, the lower court refused to allow the Insured to introduce an untimely filed affidavit. On December 22, 2003, the Insured filed a motion for rehearing arguing that the court should have accepted the affidavit. This affidavit, which is part of the record, consists of a sworn statement by the Insured’s lower trial attorney regarding his communications with the Insurer. It creates a genuine issue of material fact as to the intentional nature of the Insured’s failing to attend the EUO. A letter dated October 1, 2001, from the Insured’s attorney to the Insurer, seeking a rescheduling of the EUO, is also part of the record. The lower court denied the Insured’s motion for rehearing.
Such affidavit, in addition to the October 1, 2001 letter from the Insured’s attorney to the Insurer, seeking a rescheduling of the EUO, creates a genuine issue of material fact as to the intentional nature of the Insured’s non-attendance of the EUO. According to the Insurer’s argument based on Goldman v. State Farm Fire Gen. Ins., 660 So. 2d 300, 303 (Fla. 4th DCA 1995): “[a]n insured’s refusal to comply with a demand for an examination under oath is a willful and material breach of an insurance contract which precludes the insured from recovery under the policy.” Thus, whether the Insured refused to attend the EUO is an issue of material fact.
The lower court abused its discretion in refusing to consider the affidavit in support of the motion for rehearing. Additional evidence, whether newly discovered or not, provided on a motion for rehearing, can present material factual issues. McGowan v. Miami-Dade County, 724 So. 2d 683 (Fla. 3d DCA 1999); Berrol v. Concord Florida, Inc., 305 So. 2d 310 (Fla. 3d DCA 1975); Fatherly v. California Fed. Bank, FSB, 703 So. 2d 1101 (Fla. 2d DCA 1997).
The lower court’s granting of final summary judgment was premature as there are genuine issues of material fact.
This matter is hereby reversed and remanded for further proceedings.
This Court awards appellate attorney’s fees to Appellant pursuant to § 627.428, Fla. Stat.
It is so ordered.
REVERSED AND REMANDED. (CARNEY and GLAZER, JJ., CONCUR.)
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