12 Fla. L. Weekly Supp. 584b
Insurance — Personal injury protection — Coverage — Denial — Failure to appear for examination under oath — Notice of an examination under oath provided to an insured’s attorney constitutes notice to insured — Where insured’s attorney requested that EUO be rescheduled, insurer rescheduled the EUO and provided new date to attorney, and insured failed to appear, insurer is entitled to summary judgment
RADIOLOGY B SERVICES, INC., (a/a/o Michael Rouzard), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 03-9250 COCE 53. April 4, 2005. Robert W. Lee, Judge. Counsel: Todd S. Link, Fort Lauderdale, for Plaintiff. Leandro E. Lissa, Coral Gables, for Defendant.
ORDER GRANTING DEFENDANT’S AMENDED MOTION FOR SUMMARY JUDGMENT, and FINAL SUMMARY JUDGMENTIN FAVOR OF DEFENDANT
THIS CAUSE came before the Court on March 14, 2005 for hearing of the Defendant’s Amended Motion for Summary Judgment, and the Court’s having reviewed the Motion and Court file; heard argument; reviewed the relevant legal authorities; and been sufficiently advised in the premises, the Court finds as follows:
Background: This is a PIP case. The Defendant claims that it is entitled to summary judgment because the insured failed to appear at “properly scheduled and noticed examinations under oath (EUO).” The undisputed facts are as follows:
1. Michel Rouzard, the assignee, was insured under an insurance contract with United Automobile Insurance Company, effective January 27, 2002 through January 27, 2003.
2. Under the insurance policy, as a condition precedent to filing suit against the insurer, the insured is required to be in full compliance with all the terms of the insurance contract.
3. Under the insurance policy, as a condition precedent to receiving any personal injury protection benefits, the insured must submit to an examination under oath by any person named by the insurer when and as often as the insurer may reasonably require.
4. On or about October 10, 2002, Rouzard was allegedly involved in an automobile accident.
5. As a result of the alleged accident, Rouzard sustained injuries.
6. On December 16, 2002, the insurer requested that Rouzard submit to an EUO at the insurer’s offices, scheduling the EUO for two possible dates: January 22, 2003 or January 30, 2003. The insurer mailed the request by means of certified mail and regular mail to Rouzard to 1163 N.W. 99th Street, Miami, Florida 33150. The letter was received at that address on December 18, 2002.
7. On December 18, 2002, the insurer mailed a second notice to Rouzard’s attorneys, Bader & Stillman, for the same EUO dates.
8. On January 24, 2003, at the request of Bader & Stillman, the insurer rescheduled a final EUO appointment for February 3, 2003. Notice was provided to the insured’s attorney telephonically as well as by fax. The attorney’s office received the fax.
9. Rouzard failed to attend the EUO.
10. On March 5, 2003, the insurer received a medical bill from the Plaintiff, Radiology B Services, for diagnostic testing allegedly rendered to Rouzard on February 24, 2003.
11. The Defendant declined to pay the bill.
12. On May 19, 2003, the Plaintiff filed the instant suit.
Conclusions of Law. Under Florida law, an insured’s failure to “submit” to an independent medical examination or examination under oath required by an insurance policy “constitutes a material breach which bars recovery.” Goldman v. State Farm Gen. Ins. Co., 660 So.2d 300, 303 (Fla. 4th DCA 1995). The appellate court further held that submission to the required examination is a condition precedent to suit. Id. at 304. In Goldman, the insureds completely failed to attend the examination under oath. Id. at 302. Under such a circumstance, the appellate court upheld a summary judgment in the insured’s favor. Id. at 306. Accordingly, if the undisputed facts in the instant case show that the insured failed to show for a properly requested EUO, the Defendant is entitled to summary judgment. Id. at 303.
The Plaintiff argues that the undisputed facts show only that the insured’s attorney was noticed of the February 3, 2004 scheduled EUO, not the insured himself. Further, the Plaintiff argues that the sworn evidence creates a disputed material fact as to whether the insured was in fact represented by an attorney. The Plaintiff filed the insured’s deposition which counsel argues supports its claim of a disputed fact concerning the insured’s representation by counsel. The referenced interchange in Rouzard’s deposition is:
Defense Counsel: Did you retain an attorney?
Rouzard: The attorney?
Defense Counsel: Yes.
Rouzard: Yeah, I was retain an attorney, but after two or three months after the treatment, I think that was more, but the attorney say he can’t have the case because the insurance sent him a paper, I have the paper at home.
(Deposition, p. 24, 11. 15-22) (emphasis added). Contrary to Plaintiff’s counsel assertion, this selection does not create a disputed material fact. This statement indicates that the insured did in fact have an attorney until several months after treatment. The requested EUO in this case, however, was scheduled before the treatment at issue. The question then for the Court is whether notice to the insured’s attorney is sufficient notice of the EUO, even if the Defendant were to concede that it did not directly provide the insured notice.
On March 17, 2005, Plaintiff’s served its Motion for Extension of Time to delay a ruling on the Defendant’s Amended Motion for Summary Judgment. Specifically, the Plaintiff asks this Court to delay ruling until it can attempt to obtain from the insured’s attorney further information concerning the EUO scheduling issue. Rule 1.510(f) provides that the court may continue the motion “to permit affidavits to be obtained or depositions to be taken or discovery to be had or may enter such other order as is just.” The Plaintiff claims that the Defendant’s Amended Motion does not specifically argue that the notice to the attorney was sufficient to constitute notice to the insured. The Court finds that paragraphs 8 and 9 of the Defendant’s Amended Motion served December 10, 2004 is sufficient to put the Plaintiff on notice of this issue. Moreover, at the hearing, Plaintiff’s counsel was able to address specific provisions of Rouzard’s deposition which addressed this issue. The Court did nevertheless agree to give an informal delay so that Plaintiff’s counsel could provide whatever further authority it could obtain. The Court has withheld its ruling now for three weeks.
In determining what is “just” to constitute any further delay, the Court considers the following: This is a county court case involving a dispute of less than $1,000.00. This case has been pending since May 19, 2003, beyond the 18-month guideline recommended by the Florida Supreme Court. See Rule 2.085(e)(1)(B). The Defendant’s Amended Motion was filed more than 3 months ago. Moreover, the Plaintiff filed its Notice for Trial in September 2004. Finally, the Plaintiff has been aware of the proffered EUO defense since at least August 2003, when it was raised by Defendant as an affirmative defense. The Court finds that the delay provided to the Plaintiff is sufficient, and as a result, declines to delay its ruling any further.
Now to the legal issue. In Florida, communication to a party’s attorney constitutes communication to the party itself. Cruise v. Graham, 622 So.2d 37, 39 (Fla. 4th DCA 1993). In Cruise, also a case involving a summary judgment, the appellate court specifically ruled, “An attorney acts as the client’s representative, and representations made to the attorney are representations made to that attorney’s client.” Id. The scheduling notice sent to Rouzard’s attorney is therefore imputed to Rouzard himself. See also Estate of Brugh v. Freas, 306 So.2d 599, 600 (Fla. 2d DCA 1975). This identical issue was addressed by the Eleventh Circuit Court sitting in its appellate capacity in 1999. In that decision, the court ruled that notice of an EUO provided to an insured’s attorney constitutes notice of the EUO to the insured. Langarica v. State Farm Mutual Automobile Ins. Co., 6 Fla. L. Weekly Supp. 469 (11th Cir. Ct. 1999). As stated in Langarica, “where the evidence before the trial court was capable of one determination, the issue could be resolved by summary judgment.” Similarly, in the instant case, the record supports only one determination — that Rouzard’s attorney requested that the EUO be rescheduled, that the Defendant rescheduled the EUO and provided the new date to the attorney, and that the insured failed to appear. The Defendant is entitled to summary judgment. Accordingly, it is hereby
ORDERED AND ADJUDGED that the Defendant’s Amended Motion for Summary Judgment is GRANTED. Final Summary Judgment is hereby entered in favor of Defendant.
The Plaintiff shall take nothing in this action, and the Defendant shall go hence without day. The Court reserves jurisdiction to consider an award of fees and costs.
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