12 Fla. L. Weekly Supp. 86a
Insurance — Personal injury protection — Coverage — Denial — Failure to attend examination under oath — Insurer which breached PIP policy by failing to pay medical bills within 30 days or establish that it had reasonable proof that it was not responsible for payment and which failed to timely schedule EUO within 30 days of receipt of notice of loss is barred from using insured’s failure to attend EUO as reason for non-payment
ASCLEPIUS MEDICAL, INC., a/a/o Raul Diaz-Viera, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami Dade County. Case No. 03-7148 CC 25(01). October 22, 2004. Mark King Leban, Judge. Counsel: Kevin W. Whitehead, Downs, Brill, Whitehead, P.A., Coral Gables. Eric Dawson.
ORDER GRANTING IN PART PLAINTIFF’S THIRD MOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come to be heard on September 21, 2004, after due notice to the parties, on Plaintiff’s, ASCLEPIUS MEDICAL, INC., a/a/o Raul Diaz-Viera’s, Third Motion for Summary Judgement, the Court having heard argument of counsel and having been otherwise fully advised in the premises, it is,
ORDERED AND ADJUDGED:
1. The Plaintiff’s Third Motion for Summary Judgment is Granted on the Defendant’s third Corrected Amended Affirmative Defense on the issue of EUO no-show.
2. The Plaintiff’s Third Motion for Summary Judgment is Denied on the issue of reasonable, related and necessary.
3. The Court finds the Defendant received notice of the loss on the date the Defendant received the Notice of Initiation of Treatment letter, January 6, 2003.
4. The Defendant initially received medical bills from the Plaintiff on January 30, 2003, but failed to send a letter requesting an examination under oath (“EUO”) until February 19, 2003, scheduling an EUO for either March 7, 2003, or March 18, 2003.
5. The Defendant breached the terms of its insurance policy by failing pay the subject medical within thirty (30) days of receipt of same or establish it had reasonable proof that it (Defendant-insurer) is not responsible for the payment pursuant to Fla. Stat. 627.736(4)(b).
6. Since the Defendant breached the subject policy of insurance and failed to timely schedule an EUO within thirty (30) days of receipt of notice of the loss, it is therefore barred from using the claimant’s failure to attend the EUO as a reason for non-payment. Amador v. United Automobile Ins. Co., 748 So.2d 307 (Fla. 3rd DCA 1999); and, United Automobile Ins. Co. v. Millenium Diagnostic & Imaging Center, a/a/o Catalina Candelario, 10 Fla. L. Weekly Supp. 971c (Fla. 11th Jud. Cir. 2003).
7. The thirty (30) day investigation period for the Defendant-insurer does not re-start or reset upon the receipt of additional bills from the Plaintiff-provider.
* * *
