12 Fla. L. Weekly Supp. 248a
Insurance — Personal injury protection — Coverage — Defenses — Failure to attend examination under oath — Where insurer scheduled EUO within thirty days of notice of claim but EUO was not scheduled to take place until over thirty days after notice of claim, insurer is barred from using insured’s failure to attend EUO as defense in suit to recover PIP benefits — Notice of loss — Summary judgment granted in favor of medical provider on defense of failure to provide written proof of loss as soon as practicable where, even if insured failed to provide timely notice, there is no indication of prejudice to insurer — Standing — Assignment — Summary judgment granted in favor of provider on issue of standing where assignment is valid and irrevocable, and policy provision against assignment without consent of insurer does not bar after-loss assignment
MICRO-DIAGNOSTICS INC., and SOUTH FLORIDA INSTITUTE OF MEDICINE, a/a/o LUZ SOLARTE, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case Nos. 02-1787 SP 25 1, 02-1788SP 25 1. December 14, 2004. Mark King Leban, Judge. Counsel: Kevin W. Whitehead, Downs Brill Whitehead, Coral Gables. Lewis E. Robinson.
ORDER and FINAL JUDGMENT
THIS CAUSE having come to be heard on Plaintiff’s, MICRO-DIAGNOSTICS INC., and SOUTH FLORIDA INSTITUTE OF MEDICINE, a/a/o LUZ SOLARTE’s, Motion for Summary Judgment, after due notice to all parties, 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 Motion for Summary Judgment is GRANTED. After reviewing the court file, including deposition transcripts, pleadings, and filed affidavits, and hearing argument of counsel, there does not appear to exist any genuine issues of material facts, thereby entitling the Plaintiff to Final Summary Judgment as a matter of law.
2. The Plaintiffs sued the Defendant for medical expenses in the following amounts: MICRO DIAGNOSTIC for $800.00 for services provided 2/15/01 and SOUTH FLORIDA for $5,039.00 for dates of service 1/30/01 through 6/5/01.
3. The Plaintiff’s Motion for Summary Judgment is GRANTED as it pertains to the Defendant’s affirmative defense regarding the claimant’s failure to perform all of the conditions precedent to entitle Plaintiff to recovery in that Luz Solarte failed to cooperate, and failed to attend a scheduled sworn statement. The Defendant is precluded from raising the failure to attend the scheduled EUOs as a defense to this claim. The Court’s analysis and basis for the ruling are explicitly stated on the transcribed record. This Court follows and is bound by Amador v. United Automobile Ins. Co., 748 So.2d 307, 308 (Fla. 3rd DCA 1999), United Automobile Ins. Co. v. Millennium Diagnostic & Imaging Center, a/a/o Catalina Candelario, 10Fla. L. Weekly Supp. 971c (Fla. 11th Jud. Cir. 2003), and January v. State Farm Mutual Ins. Co., 838 So.2d 604 (Fla. 5th DCA 2003).
4. The Defendant’s second affirmative defense, which alleges that the Plaintiff is in violation of §627.736(5)(a) by failing to have the insured or his/her guardian countersign the HCFA forms as mandated by the statute has been withdrawn and/or the Plaintiff’s Motion for Summary Judgment is GRANTED on this issue. See Total Health Care of Florida (Oscar Blas) v. United Automobile Ins. Co., 9Fla. L. Weekly Supp. 659a (Fla. 11th Jud. Cir. 8/13/02), rehearing denied 9 Fla. L. Weekly Supp. 737a (Fla. 11th Jud. Cir. 9/26/02). This case is binding upon this Court at the current time.
5. The Plaintiff’s Motion for Summary Judgment is GRANTED as to the Defendant’s third affirmative defense, which alleges Luz Solarte failed to provide written notice as soon as practicable to this Defendant of the alleged/loss accident. The Court finds that even if Luz Solarte failed to provide written notice as soon as practicable to the Defendant, there was absolutely no indication that the Defendant sustained any prejudice in the record. Even if this Court presumes that the Defendant was prejudiced by this alleged late notice, the Plaintiff has overcome this presumption of prejudice as stated on the transcribed record.
6. As to all of the Defendant’s affirmative defenses pertaining to standing, the Plaintiff’s Motion for Summary Judgment is GRANTED on this issue. First, the subject assignment of benefits is valid, irrevocable and provides the Plaintiff(s) with standing to file and prosecute the subject lawsuit. In addition, attempts to limit the rights of parties to an after-loss assignment under insurance policies have been consistently struck down by the Florida courts. See Better Construction Inc. v. National Union Fire Insurance Co. of Pittsburgh, 651 So.2d 141 (Fla. 3rd DCA 1995) (provision against assignment of an insurance policy without consent of insurer does not bar insured’s assignment of an after-loss claim); West Florida Crocery Co. v. Teutonia Fire Ins. Co., 77 So. 209 (Fla. 1917).
7. Pursuant to the policy of insurance and Florida Statutes §627.736(1)(a), the Defendant is responsible for payment of 80% of the related, reasonable and medically necessary bills incurred by MICRO DIAGNOSTIC and SOUTH FLORIDA as a result of the subject accident.
8. Further, pursuant to §627.736(4)(b) and (c), the Defendant has thirty (30) days to establish reasonable proof it is not responsible for payment of the medical bills, otherwise the medical bills are overdue if not paid within thirty (30) days from receipt, plus 10% interest.
9. In order for the insurer to suspend PIP medical benefits, it must comply with §627.736(7). If the insurer fails to obtain a report for a physician in the same licensing chapter as the treating physician, it cannot suspend benefits pursuant to Florida Statutes § 627.736(7).
10. The Defendant failed to establish it had reasonable proof it was not responsible for payment of the subject medical bills received by the Defendant within thirty (30) days pursuant to Florida Statutes § 627.736(4)(b), and obtained a report from a physician in the same licensing chapter as one of the treating physicians (M.D.) stating no further treatment was medically necessary as required by § 627.736(7) as of May 9th, 2001. There is only $200.00 in medical expenses incurred after May 9th, 2001 by an M.D.
11. All outstanding medical bills up to May 9th, 2001, and all chiropractic bills after May 9th, 2001 remain due and owing plus 10% interest from 30 days after receipt of each bill up to and including the present date.
12. The Defendant failed to establish that these charges are not reasonable, related or necessary or the Plaintiffs have not complied with any conditions precedent.
13. Because there does not exist any questions of material fact regarding the related, reasonable and necessary medical expenses incurred by the Plaintiffs for these dates of service, and the Defendant’s failure to pay the Plaintiffs’ medical bills at full 80% pursuant to the terms of the policy and § 627.736, this Court must grant the Plaintiff’s Motion for Summary Judgment for these medical expenses.
14. The Plaintiffs complied with all conditions precedent prior to instituting this lawsuit, and is entitled to Judgement as a Matter of Law regarding payment of these bills at 80% plus 10% interest from 30 days after receipt of each bill up to and including the present.
15. This Court finds that the Plaintiffs are entitled to attorney’s fees and costs pursuant to §§ 627.736 and 627.428 as the prevailing party, and reserves jurisdiction to enter a Final Judgment on attorney’s fees and costs accordingly.
16. Wherefore, this Court orders that the Plaintiff, MICRO-DIAGNOSTICS INC., assignee of Luz Solarte, hereby recover from the Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, 3909 N.E. 163rd Street, North Miami Beach, FL 33160, the principal sum of SIX HUNDRED FORTY DOLLARS ($640.00) plus interest in the amount of ONE HUNDRED NINETY ONE DOLLARS AND FIFTY CENTS ($191.50), for a total amount of EIGHT HUNDRED THIRTY ONE DOLLARS AND FIFTY CENTS ($831.50), for which let execution issue. This judgment shall bear interest at the rate of 7% per year from date of entry until satisfied. The draft shall be made payable to MICRO-DIAGNOSTICS INC. and delivered to Kevin W. Whitehead, Esq. at 255 University Drive, Coral Gables, FL 33134.
17. Wherefore, this Court orders that the Plaintiff, SOUTH FLORIDA INSTITUTE OF MEDICINE, assignee of Luz Solarte, hereby recover from the Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, 3909 N.E. 163d Street, North Miami Beach, FL 33160, the principal sum of ONE THOUSAND EIGHT HUNDRED SEVENTY ONE DOLLARS AND TWENTY CENTS ($1,871.20) plus interest in the amount of FIVE HUNDRED TWELVE DOLLARS AND NINETY FIVE CENTS ($512.95), for a total amount of TWO THOUSAND THREE HUNDRED EIGHTY FOUR DOLLARS AND FIFTEEN CENTS ($2,384.15), for which let execution issue. This judgment shall bear interest at the rate of 7% per year from date of entry until satisfied. The draft shall be made payable to SOUTH FLORIDA INSTITUTE OF MEDICINE and delivered to Kevin W. Whitehead, Esq. at 255 University Drive, Coral Gables, FL 33134.
18. This Court reserves jurisdiction to award attorney’s fees and costs in favor of the Plaintiffs, and enter a Final Judgment for Attorney’s Fees and Costs accordingly.
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ORDER DENYING THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come to be heard on Defendant’s, UNITED AUTOMOBILE INSURANCE COMPANY’s, Motion for Summary Judgment, after due notice to all parties, the Court having heard argument of counsel and having been otherwise fully advised in the premises, it is,
ORDERED AND ADJUDGED:
1. DENIED.
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