12 Fla. L. Weekly Supp. 1104b
Insurance — Personal injury protection — Explanation of benefits — Medical provider’s motion for summary judgment granted as to count alleging failure to provide EOB — Examination under oath — Failure to attend — Where insurer improperly failed to direct notice of EUO to attorney representing insured, insured’s failure to attend EUO was not unreasonable
MIAMI CHIROPRACTIC ASSOCIATES, INC., a Florida Corporation (assignee of Desroches, Dypson), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 04-06214 COSO 60. July 28, 2005. Sharon Zeller, Judge. Counsel: Russel Lazega, North Miami. Rashad El-Amin.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AS TO COUNT I OF COMPLAINT (BREACH OFCONTRACT REGARDING ITEMIZED SPECIFICATION OF UNPAID CHARGES/EOB) AND ORDER GRANTING SUMMARY JUDGMENTIN FAVOR OF PLAINTIFF AS TO DEFENDANT’S AFFIRMATIVE DEFENSE OF FAILURE TO APPEAR FOR EXAMINATION UNDER OATH (EUO)
THIS CAUSE came before the Court on July 8, 2005 for hearing on Plaintiff’s Motion for Summary Judgment (Count I — Breach of Contract — Regarding Itemized Specification of Unpaid Charges and Plaintiff’s Motion for Summary Judgment as to Defendant’s Affirmative Defense of Failure to Appear for Examination Under Oath), and the Court’s having reviewed the Motion and entire Court file; reviewed the relevant legal authorities; heard argument, and been sufficiently advised in the premises the Court finds as follows:
Plaintiff’s Motion for Summary Judgment as to Count I of Complaint (Regarding explanation of benefits)
Plaintiff has moved for summary judgment alleging that there’s no disputed issue of material fact as to the following issues raised by Count I of the Complaint:
1. Plaintiff is entitled to an itemized specification of unpaid charges (Explanation of Benefits) pursuant to F.S. 627.736(4)(b).
2. That Defendant has failed to furnish Plaintiff with an itemized specification of unpaid charges meeting the requirements of F.S. 627.736(4)(b).
Defendant has offered no record evidence contradicting the allegations of Count I of Plaintiff’s Complaint and this court has been presented with nothing to cause it deviate from its prior rulings granting this relief (which have been affirmed by the Appellate Division).
Accordingly, this Court grants summary judgment in favor of the Plaintiff as to Count I of the Complaint and finds the Plaintiff is entitled to attorney’s fees and costs pursuant to F.S. 627.428 for necessity of bringing this action to obtain information that should have been furnished to the Plaintiff prior to suit. The Court reserves jurisdiction to determine the amount of the attorney’s fees at a later hearing.
Plaintiff’s Motion for Summary Judgment as to Defendant’s Affirmative Defense of Failure to Appear for Examination Under Oath (EUO)
Plaintiff has moved for summary judgment as to Defendant’s Affirmative Defense of Failure to Appear for Examination Under Oath (EUO) and the Court having considered the matter and heard argument finds:
1. Defendant provided notice of the Examination Under Oath (EUO) only to the claimant, Dypson Desroches, but not to Desroches’ counsel as confirmed by the uncontroverted deposition transcript of Defendant’s adjuster.
2. Defendant confirmed in the uncontrovcrted adjuster deposition that it had received a notice of representation from Dypson Desroches’ attorney prior to sending its Examination under Oath request directly to Dypson Desroches.
3. Defendant further confirmed that its normal procedure would have been to notify the attorney of the Examination Under Oath and that its failure to do so was an oversight.
4. Defendant improperly failed to direct its communications to Plaintiff’s counsel and accordingly the failure to appear for Examination Under Oath was not unreasonable.
5.This Court finds persuasive, and adopts the reasoning of, American Skyhawk Ins. Co. v. Chacon, 8 Fla. L. Weekly Supp. 114b (Dade County, 2000), and finds that once attorneys are involved in the case there is a strong public policy in favor of requiring insurers to communicate through the designated legal representative.
Accordingly, the Court enters summary judgment in favor of the Plaintiff as to Defendant’s Affirmative Defense of Failure to Appear for Examination Under Oath (EUO).
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