12 Fla. L. Weekly Supp. 1087a
Insurance — Personal injury protection — Coverage — Son of insured who does not own a motor vehicle and resides in insured’s home is entitled to PIP benefits under insured’s policy — Where insurer failed to conduct reasonable investigation or set claimant for examination under oath within 30 days of receipt of claim, insurer has failed to establish any proof that it was not responsible for payment of claim — Where insurer breached policy and failed to timely schedule EUO, insurer is barred from using claimant’s failure to attend post-suit EUO as reason for nonpayment — Insurer has agreed to allow medical provider to amend pleading to correct name of assignor
MED PLUS OF BRADENTON, INC. A/A/O ROMAN RAMOS, Plaintiff, v. PEACHTREE CASUALTY INSURANCE COMPANY, Defendant. County Court, 12th Judicial Circuit in and for Sarasota County. Case No. 2003-SC-009230-NC. August 4, 2005. Phyllis R. Galen, Judge. Counsel: Anthony D. Barak, Agnes, Barak & Zitani, Chartered, Sarasota. Gregory Blackburn.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY DISPOSITION AND MOTION TO AMEND STATEMENT OF CLAIM TO CORRECT MISNOMER
THIS CAUSE having come to be heard on July 14, 2005 on Plaintiff’s Motion for Summary Disposition and Motion to Amend Statement of Claim to Correct Misnomer. The Court having examined the court file, including a deposition transcript, pleadings, filed affidavits, and hearing argument of counsel, and being otherwise advised of the premises, it is:
ORDERED AND ADJUDGED that:
Plaintiff’s Motion for Summary Disposition and Motion to Amend Statement of Claim is hereby GRANTED for the reasons set forth herein:
FINDINGS OF UNDISPUTED FACT
1. The Plaintiff sued the Defendant on or about June 27, 2003, alleging breach of contract and failure to comply with Florida Statute § 627.736, seeking to enforce payment of PIP benefits arising out of a motor vehicle accident.
2. On December 15, 2000, Angel Ramos was involved in a motor vehicle accident.
3. Defendant insured the owner of that motor vehicle, which was Angel’s father, Roman Ramos.
4.At the time of the accident, Angel Ramos was living with his father and did not own a motor vehicle.
5. Angel Ramos presented to Plaintiff, for treatment for injuries sustained in the subject accident.
6. From January 5, 2001-April 3, 2001, Plaintiff provided medical treatment and services to Angel Ramos.
7. Patient, Angel Ramos, assigned his rights and benefits under the policy of insurance to Plaintiff.
8. Defendant failed to make any payments to Plaintiff for the services rendered to Angel Ramos.
9. Defendant failed to conduct a reasonable investigation within 30 days of receipt of the claims.
10. Defendant failed to set the insured for an examination under oath (EUO) within 30 days of receipt of the claim.
11. Defendant’s failed to establish that its insured, Roman Ramos, made any material misrepresentation on the insurance application.
LAW AND ANALYSIS
12. Pursuant to Florida Statute Section 627.736, every insurance policy complying with the security requirement of Section 627.733 shall provide personal injury protection to the named insured, relatives residing in the same household, persons operating the insured motor vehicle, passengers in such motor vehicle, and other persons struck by such motor vehicle and suffering bodily injury . . . Therefore, since Angel Ramos was a resident relative of Defendant’s insured, be is entitled to PIP benefits under the subject policy.
13. The Defendant has a duty to properly investigate a claim and make payment of all medical expenses within 30 days of receipt or establish it has reasonable proof that it was not responsible for the payment. See Fla.Stat. 627.736(4)(b); Crooks v. State Farm, 659 So.2d 1266 (Fla. 3rd DCA 1995) and Fortune v. Pacheco, 695 So.2d 394 (Fla. 3rd DCA 1997).
14. In the present case, Defendant failed to properly investigate the claim upon receipt of the medical claims and failed to establish any proof that it was not responsible for payment of Plaintiff’s medical bills.
15. Additionally, Plaintiff acknowledges that the insured failed to attend an EUO, which was scheduled after the present lawsuit was filed. However, since the Defendant breached the subject policy of insurance and failed to timely schedule the EUO within 30 days of receipt of the claim, it is barred from using the insured’s failure to attend the EUO as a reason for non-payment. See Amador v. United Automobile, 748 So.2d 307 (Fla. 3rd DCA 1999).
16. The Defendant has agreed to allow Plaintiff leave to amend the pleading to correct the name of the assignor in this case from Roman Ramos to Angel Ramos.
17. Plaintiff is entitled to all PIP benefits for medical bills that were properly submitted within the statutory time period.
18. The Court reserves jurisdiction to address attorney’s fees and costs.
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