12 Fla. L. Weekly Supp. 531b
Insurance — Personal injury protection — Coverage — Denial — Examination under oath — Failure to attend — Although district court of appeals’ opinion holding that if insurer does not pay benefits by end of 30-day statutory period insured is free to sue and have case determined on merits appears to have been implicitly overruled by supreme court decision holding that if insurer does not pay benefits or secure reasonable proof that it is not responsible for payment within 30 days bill is overdue but insurer is not forever barred from contesting claim, appellate court does not have judicial power to decide issue — In absence of clear expression from supreme court, issue of whether district court of appeal opinion is in conflict with later supreme court opinion should be left to district court of appeal — Applying district court of appeal precedent, insurer cannot defend claim on basis of insured’s failure to attend EUO set outside of 30-day statutory period after submission of medical bills — Summary judgment in favor of insurer reversed
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. March 8, 2005. An appeal from the County Court, Miami-Dade County, Catherine M. Pooler, Judge. Counsel: Sadie E. Naveo, 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.)[Original Opinion at 12 Fla. L. Weekly Supp. 42a]
(PAUL SIEGEL, J.) We grant Appellant’s Motion for Rehearing and substitute the following opinion for our November 2, 2004, opinion.
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 believes 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. Although, we continue to believe that Amador is no longer good law, based on Rodriguez, we do not have the judicial power to decide this issue. In the absence of a clear expression from the Florida Supreme Court, the issue of whether a district court of appeal opinion is in conflict with a later Supreme Court opinion should be left to the district court of appeal. Wood v. Fraser, 677 So. 2d 15 (Fla. 2d DCA 1996).
The Third District Court of Appeal must initially decide whether Amador or Rodriguez governs, and we also believe the Florida Supreme Court should be asked to review the issue.
Thus United Auto cannot defeat the claim on the basis of Esquivel’s failure to attend the EUO set outside the 30-day statutory period and the summary judgment must be
REVERSED.
Although Humanitary’s Motion for Rehearing was unduly lengthy and prolix, United’s included Motion for Sanctions is denied. (CHAVIES and COHEN, JJ., concur.)
* * *
