12 Fla. L. Weekly Supp. 42a
NOT FINAL VERSION OF OPINION
Subsequent Changes at 12 Fla. L. Weekly Supp. 531b
Insurance — Personal injury protection — Coverage — Denial — Examination under oath — Failure to attend — Insurer can defend claim on basis of insured’s failure to attend EUO set outside of 30-day statutory period after submission of medical bills — Insurer’s failure to pay claim or obtain reasonable proof that it is not responsible for payment within 30-day period subjects insurer to penalties of interest and attorney’s fees but does not forever bar insurer from contesting claim — Summary judgment was properly entered in favor of insurer
HUMANITARY HEALTH CARE, INC. a/a/o JUAN ESQUIVEL, Appellant, v. UNITED AUTOMOBILE INSURANCE CO., Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 03-357 AP. L.T. Case No. 00-15220 SP 05. November 2, 2004. An appeal from the County Court, Miami-Dade County, Catherine M. Pooler, Judge. Counsel: Sadie E. Naveo, The Law Offices of Pastor Andreu Montes, P.A., for Appellant. Mark A. Gatica, Office of the General Counsel, United Automobile Insurance Company, for Appellee.
(Before PAUL SIEGEL, MICHAEL B. CHAVIES, and JERI B. COHEN, JJ.)
(PAUL SIEGEL, J.) Juan Esquivel, an insured of Appellee United Automobile Insurance Company (“United Auto”), received medical care from Appellant, Humanitary Health Care, Inc., following a covered automobile accident. Esquivel assigned insurance benefits to Humanitary and timely submitted bills to United Automobile. United requested an examination under oath (“EUO”) outside the 30 day statutory period which was not attended by Esquivel.
After Humanitary filed a complaint to recover the assigned benefits from United Automobile, the insurance carrier moved for summary judgment on the ground that its insured violated a policy condition by failing to attend the EUO. The motion was granted and the lower court entered final judgment on Esquivel’s claim in favor of the insurance carrier.
Humanitary appeals alleging that the insurer cannot use as a defense the failure to attend an EUO that is scheduled outside the 30-day statutory period after submission of the medical bills. It finds comfort in Amador v. United Automobile Ins., Co., 748 So. 2d 307 (Fla. 3d DCA 1999) in which it was held that if the insured does not pay benefits by the end of the 30-day statutory period the insurer is in violation of the PIP statute and the insured is free to sue and have the case determined on the merits.
This court finds that Amador was implicitly overruled by United Automobile Ins., Co. v. Rodriguez, 808 So. 2d 82, (Fla. 2001). The Supreme Court held that if PIP benefits are not paid within 30 days and the insured does not have reasonable proof that it is not responsible for payment, the payment is overdue. However, “nothing in the statute provides that once a payment becomes overdue the insurer is forever barred from contesting the claim.” Id. at 87. The insurer is subject to specific penalties once a payment becomes overdue, including ten percent interest and attorney’s fees. “The insurer, however, is not forever barred from contesting the claimed.” Ibid.
Thus United Auto can still defend the claim on the basis of Esquivel’s failure to attend the EUO set outside the 30-day statutory period and the summary judgment was properly entered.
AFFIRMED. (CHAVIES and COHEN, JJ., concur.)
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