12 Fla. L. Weekly Supp. 977a

Insurance — Personal injury protection — Examination under oath — Failure to attend — Where letters scheduling EUOs and denial of coverage letters sent after insureds failed to appear clearly stated that voiding coverage was potential result for failure to appear, yet insureds made no effort to reschedule EUOs or otherwise respond to letters, insureds breached terms of policy and insurer is relieved of liability to pay claims

ASCLEPIUS MEDICAL INC. A/A/O ORLANDO HERNANDEZ, ISAAC HERNANDEZ AND MARCIELA RODRIGUEZ, Plaintiff, vs. U.S. SECURITY INSURANCE CO., Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 04-007648-SP-26 02. June 1, 2005. Bronwyn C. Miller, Judge. Counsel: Alberto Valdes, U.S. Security Insurance Company, Inc., Miami. Maria Corredor.

ORDER GRANTING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT

THIS CAUSE, having come before the Court upon Defendant’s Motion for Final Summary Judgment and the Court having heard argument of counsel, reviewed the procedural history and relevant legal authority, and having otherwise been fully advised in the premises, the Court hereby grants Defendant’s motion in part on the following grounds:

Background:

1. This is a breach of contract action for personal injury protection (hereinafter “PIP”) benefits. The action arises out of an automobile accident that is alleged to have occurred on December 9, 2003. Following the alleged accident, Marciela Rodriguez and her two sons, Orlando Hernandez and Isaac Hernandez, sought treatment from Plaintiff, ASCLEPIUS MEDICAL, INC.

2. At all times material to this action, Justo Fernandez, the husband of Marciela Rodriguez and the father of both Orlando Hernandez and Isaac Hernandez, was covered by an insurance policy issued by U.S. SECURITY INSURANCE CO. (hereinafter “U.S. SECURITY”). Per the medical bills filed in this case, Justo Fernandez is the husband of Marciela Rodriguez and the father of Orlando Hernandez and Isaac Hernandez.

3. Plaintiff submitted an invoice to U.S. SECURITY for medical services rendered. The bills for Marciela Rodriguez were submitted on February 16, 2004 for dates of service from January 6, 2004 through February 9, 2004. The bills for Orlando Hernandez were submitted on February 5, 2004 for dates of service from January 8, 2004 through January 29, 2004. The bills for Isaac Hernandez were submitted on February 10, 2004 for dates of service from January 6, 2004 through January 29, 2004. Addresses for each of the claimants were contained on the bills submitted. The address was the same for all three claimants.¹

4. Pursuant to its investigation of the claim, U.S. SECURITY scheduled each claimant for an examination under oath (hereinafter “EUO”). Ms. Rodriguez was scheduled for February 26, 2004, with an alternate date of March 4, 2004. Orlando Hernandez and Isaac Hernandez were both scheduled for March 3, 2004, with an alternate date of March 10, 2004. The notices for these EUOs were sent via certified mail to each of the claimants to the only address provided by the Plaintiff in discovery. Each certified mail return notice was signed for. Ms. Rodriguez clearly signed for her own, as evidenced by her signature. The other two claimants’ forms appear to have been signed by their father, the named insured.

5. None of the claimants appeared for either EUO. No arrangements were made to reschedule; the claimants simply failed to appear as noticed.

6. Defendant submitted the affidavits of Annette Calderon and Johnny Remigio in support of the above facts and to authenticate the exhibits filed in support of the motion.

7. Plaintiff filed no response.

Conclusions of Law

Summary Judgment Standard

It is established Florida law that on a motion for summary judgment, the moving party bears the burden of proving the non-existence of a genuine issue of material fact. Holl v. Talcott, 191 So. 2d 40 (Fla. 1966). Defendant has met the burden of proving that all three claimants failed to appear for scheduled EUOs through the submission of the affidavits of Annette Calderon and Johnny Remigio. Accordingly, the burden shifts to Plaintiff to present competent evidence demonstrating a genuine issue of material fact. See, Holl, 191 So. 2d at 43 (“The burden of proving the existence of such issues is not shifted to the opposing party until the movant has successfully met his burden.”). Plaintiff has failed to submit anything in opposition to U.S. SECURITY’s affidavits.

Insurance Policy Provisions

The insurance policy issued by U.S. SECURITY to the insured in this case provides, in relevant part:

The Company has the right, to speak directly to the person making the claim even if attorney represented, to determine the nature and extent of the injuries and treatment received and contemplated and to obtain such other information as may assist the company in determining the amount due and payable. Such person shall submit to sworn statements or examinations under oath atthe Company’s expense when and as often as the Company may reasonably require. (emphasis added) Page 10 of 14.

Both Plaintiff and Defendant agree that the claimants appeared for their independent medical examinations, but neither of the three appeared for their scheduled EUOs. In noticing the claimants of the scheduled EUOs, the U.S. SECURITY sent letters to the claimants containing the following language:

Any failure to attend the examination under oath will constitute a material breach of the insurance policy and may void coverage. See Stringer v. Fireman’s Insurance Co., 622 So.2d 145 (Fla. 3d DCA 1993) . . . Again, failure to attend the examination under oath will constitute a material breach of the insurance policy and may void coverage (letters dated February 17, 2004 and February 24, 2004, and issued to Marciela Rodriguez, Orlando Hernandez and Isaac Hernandez).

Furthermore, the insurer sent denial letters to each of the claimants and their attorneys after they failed to appear at the EUO. The letters, dated April 5, 2004, stated, in relevant part, the following:

Our Rodriguez, Aronson and Essington law office has advised us that your client failed to attend the sworn statements scheduled on [noticed dates]. As previously indicated in our attorney’s letters, both the insurance policy and Florida law require an insured to cooperate with its insurer in the event of a claim. Due to the above-noted failure on your client’s part to cooperate with us in accordance with our policy’s provisions, we must deny payment of this claim. (Exhibit D, Defendant’s Motion for Final Summary Judgment).

Again, there were no efforts made by claimants to reschedule the EUOs. There was simply no response whatsoever. Plaintiff argues that the letters were ambiguous in nature. This Court finds that the letters specifically and clearly set forth the potential result for failure to appear.

It is well-established that an insurer is relieved of its liability to pay for medical expenses by a claimant’s failure to submit to an examination under oath. Stringer v. Fireman’s Fund Insurance Co., 622 So. 2d 145 (Fla. 3d DCA 1993) (“The failure to submit to an examination under oath is a material breach of the policy which will relieve the insurer of its liability to pay.”); Pervis v. State Farm Fire & Casualty Co., 901 F.2d 944 (11th Cir. 1990), cert. denied, 498 U.S. 899, 111 S.Ct. 255, 112 L.Ed.2d 213 (1990); Line v. Allstate Insurance Co., 355 F.2d 1303 (N.D. Fla. 2005).

Plaintiff cites Figueroa v. U.S. Security Co., 664 So. 2d 1130 (Fla. 3d DCA 1996) for the proposition that a failure to submit to an EUO is not appropriate far summary judgment. This Court distinguishes the facts of this case from those presented in Figueroa. In Figueroa, the insurer failed to comply with the insured’s request for a copy of the policy. Furthermore, the insured in Figueroa agreed to submit to an EUO after receiving a copy of the policy. In the case at bar, despite repeated efforts to set the claimants for EUOs, it is undisputed that U.S. SECURITY received no communication whatsoever from the claimants; there were no efforts to reschedule the EUOs. Thus, the claimants breached the terms of the policy when they failed to appear for the scheduled EUOs.

WHEREFORE, it is ORDERED and ADJUDGED that Defendant’s Motion for Final Summary Judgment is hereby GRANTED.

The Defendant shall go henceforth without stay.

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¹It should be noted that claimants did appear for Independent Medical Examinations. The notice for the IMEs went to the same address.

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