12 Fla. L. Weekly Supp. 787a
Insurance — Personal injury protection — Coverage — Denial — Reasonable proof within 30 days — Insurer is not barred from contesting claim for PIP benefits by failing to pay claim or schedule EUO within 30 days of receipt of written notice of covered loss — Medical provider’s motion for summary judgment on issue of reasonableness, relatedness and necessity of medical expenses is denied although insurer has not presented any proof disputing reasonableness, relatedness or necessity, because affidavit submitted by provider which states that affiant is responsible for ensuring that charges are reasonable, properly coded and timely submitted fails to establish prima facie case that charges are reasonable, related and medically necessary — Examination under oath — Failure to attend — Where insurer itself breached PIP policy by failing to pay bills or schedule EUO within 30-day authentication period, motion for summary judgment based on insured’s failure to attend EUO is denied
SPINE REHABILITATION, INC. a/a/o Octavio Espina, Jr., Plaintiff, vs. MERCURY INSURANCE COMPANY OF FLORIDA, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 04-16932, Division H. May 16, 2005. Michelle Sisco, Judge. Counsel: Timothy Patrick, Timothy A. Patrick, P.A., Tampa, for Plaintiff. Randall Wainoris, Tampa, for Defendant.
ORDER ON PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT AND DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT, OR IN THE ALTERNATIVE SUMMARY DISPOSITION
THIS CAUSE came before this Court on March 21, 2005 for hearing and the Court having reviewed the Court file; received evidence; heard argument; and being otherwise advised in the premises, finds as follows:
FINDINGS OF FACT:
1. On September 15, 2003, the assignee/insured, Octavio Espina, Jr., was involved in a motor vehicle accident. At the time of the accident, Mr. Espina was insured by the Defendant, including recovery for PIP benefits.
2. From September 19, 2003 through December 29, 2003, Mr. Espina received medical treatment from the Plaintiff.
3. Pursuant to the affidavit of Jackie Nadal, billing manager for the Plaintiff, and the attachments thereto, the Defendant was billed for the treatment of Mr. Espina by the Plaintiff on the following dates: 10/8/2003, 10/22/2003, 11/28/2003 and 1/2/2004.
4. In a letter to Mr. Espina’s counsel dated May 4, 2004, the Defendant requested Mr. Espina to appear for an Examination Under Oath (“EUO”) on May 19, 2004. Mr. Espina failed to attend the scheduled EUO.
5. In a second letter to Mr. Espina’s counsel dated May 19, 2004, the Defendant again requested Mr. Espina to appear for an EUO on June 17, 2004. Mr. Espina failed to appear for this scheduled EUO as well.
6. In a letter to Mr. Espina’s counsel dated July 12, 2004, the Defendant informed Mr. Espina that his claim for PIP benefits was being denied due to his “failure to cooperate with the terms and conditions of the policy of insurance.”
7. Pursuant to the terms of the insurance contract between Mr. Espina and the Defendant, Mr. Espina was required to submit to examinations under oath.1 In addition, the insurance contract states, “[t]here is no right of action against [the Defendant], until all the terms of this policy have been met . . .”.2 The Court would also note that while the insurance contract at issue does state, with regards to PIP coverage, the Defendant will not be liable for PIP benefits if the insured refuses to attend a medical examination, it is less clear as to whether this exclusionary provision is applicable for failure to attend an EUO3.
8. The facts are, therefore, uncontroverted that Mr. Espina failed to attend the contractually obligated EUO on two (2) separate occasions. Similarly, the facts are uncontroverted that the Defendant failed to pay the claim within thirty (30) days, in violation of the requirements of Fla. Stat. §627.736(4)(b), and that the Defendant failed to schedule either of the EUO’s during any of the 30-day time periods post-billing by the Plaintiff. In fact, the Defendant waited almost six (6) months from the initial billing by the Plaintiff to schedule an EUO of the insured.
9. The Complaint in this case was filed on July 22, 2004. An Amended Complaint was filed on August 23, 2004. As of the date of this Order, the Defendant has not filed an Answer or Affirmative defenses. A Motion to Dismiss was filed by the Defendant on October 27, 2004, however, this Motion has not yet been noticed for hearing. The Defendant filed its Response to Plaintiff’s Request for Admissions on November 4, 2004, and while there is a notice by the Defendant of serving Verified Answers to Plaintiff’s Interrogatories on November 23, 2004, the Defendant’s actual Answers to Interrogatories are not filed in the court file. The Defendant did file an affidavit in support of its Motion for Summary Judgment, however, the Defendant has not submitted any affidavits in opposition to Plaintiff’s Motion for Summary Judgment.
PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT
The Plaintiff argues that because the Defendant failed to schedule its EUO within thirty (30) days of receipt of written notice by the Plaintiff of a covered loss, there is no genuine issue of material fact and the Plaintiff is entitled to summary judgment. Pursuant to United Automobile Ins. Co. v. Rodriguez, 808 So.2d 82 (Fla. 2002), an insurance company is not forever barred from contesting a claim for PIP benefits if the insurance company fails to pay the claim within 30 days, as required by Fla. Stat. §627.736(4)(b). Instead, the plain language of the statute indicates that the penalty to be imposed upon the insurance company for failure to pay within 30 days is the imposition of interest and attorney’s fees. Id. at 87. An insurance company, therefore, is not precluded from establishing its reasonable proof for non-payment of a claim outside of the statutory 30-day window.
The Plaintiff next argues that the Defendant has not offered any proof that the charges at issue are unreasonable, unrelated or medically unnecessary. Instead, the only stated reason to date for the denial of payment is the insured’s failure to attend two EUO’s. This argument presents a more interesting issue. As previously stated, a review of the court file in this case reflects that the Defendant has not yet filed an answer, affirmative defenses or affidavits in opposition to Plaintiff’s Motion for Summary Judgment. The Defendant did file its Answer to Plaintiff’s Request for Admissions. Paragraph 22 of Plaintiff’s Request for Admission asks if: “All medical expenses submitted by the Plaintiff to Defendant which have not yet been paid were ‘reasonable’, ‘related’ and ‘necessary’ ”; to wit, the Defendant simply answered “Denied”. The affidavit of Christine Jensen filed in support of Defendant’s Motion for Summary Judgment addresses only the failure of the insured to attend the scheduled EUO’s, and is silent as to whether the claims at issue are reasonable, related or medically necessary. It is axiomatic that when a defendant has not filed an answer other than a general denial, and has not offered an affidavit or other type of proof in opposition to a motion for summary judgment, that summary judgment should be granted if the plaintiff has established a prima facie case through sworn testimony. See, Goswick v. Mitteleman, 177So.2d 253 (Fla. 3d DCA 1965).
A review of the affidavit of Jackie Nadal, submitted by the Plaintiff in support of its Motion for Summary Judgment, reflects sworn testimony only as to the fact that she is responsible for insuring that the charges are reasonable and coded properly, and that the charges at issue were submitted within the time-frame required by statute. Ms. Nadal’s affidavit, however, fails to state or establish that the charges at issue are reasonable, and is completely silent as to whether the charges at issue are related and medically necessary. This Court, therefore, finds that although the Defendant has not submitted any proof disputing that the charges at issue are reasonable, related or medically necessary, the Plaintiff itself has failed to submit sworn testimony establishing a prima facie case that the charges are, in fact, reasonable, related and medically necessary.
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE SUMMARY DISPOSITION
The Defendant also argues that it is entitled to summary judgment due to the insured’s failure to abide by a condition precedent to bringing suit, namely the failure of the insured to attend the scheduled EUO’s. The Defendant cites to a number of insurance cases which have held that the failure of an insured to submit to an EUO is a willful and material breach of the insurance contract, thereby precluding recovery by the insured. See, e.g. Stringer v. Fireman’s Fund Ins. Co., 622 So.2d 145 (Fla. 3d DCA 1993) and Goldman v. State Farm Gen. Ins. Co., 660 So.2d 300 (Fla. 4th DCA 1995). In Goldman, the Fourth District Court of Appeal affirmed the granting of summary judgment against an insured for the insured’s failure to attend an EUO prior to filing suit, as required by the insured’s homeowners insurance policy. The Fourth District Court of Appeal, in great detail, explained the distinction between a condition precedent and a cooperation clause.4 The court held that the insurance policy at issue which expressly stated that “no action shall be brought unless there has been compliance with the policy provisions” was a condition precedent clause, and, therefore, the insured’s failure to attend an EUO prior to filing suit was fatal to their lawsuit. Id. at 301.
The failure of an insured to attend an EUO in an uninsured motorist coverage case was then examined by the Fourth District Court of Appeal in Willis v. Huff, 736 So.2d 1272 (Fla. 4th DCA 1999). In Willis, the granting of summary judgment against an insured for failure to attend an EUO after suit was filed was reversed. In distinguishing the facts in Willis from those in Goldman, the Fourth District Court of Appeal held that in order for an EUO to be a condition precedent, the EUO must be requested before suit is filed. Willis, 736 So.2d at 1274. Because the insurance company had not requested an EUO prior to suit being filed, the Fourth District Court of Appeal held that summary judgment was inappropriate and the insured should have been given an opportunity to comply with the terms of the insurance contract, rather than deprive the insured of his uninsured motorist coverage. Id.
In 1999, after Willis was decided by the Fourth District Court of Appeal, the Third District Court of Appeal examined the issue of failure by an insured to attend an EUO in a PIP case in Amador v. United Automobile Ins. Co., 748 So.2d 307 (Fla. 3d DCA 1999), rev. denied, Amador, 767 So.2d 464 (Fla. 2000). In Amador, the Third District Court of Appeal reversed a granting of summary judgment against an insured for failure to attend an EUO scheduled before suit was filed, but after the thirty (30)-day statutory period for paying the PIP claim had expired. The insurance policy in Amador, as in this case, required the insured to submit to an EUO if requested, and contained a provision stating that all terms of the policy must be complied with prior to bringing suit. Id. at 308. The Third District Court of Appeal held: “If the insurer does not pay by the statutory 30-day period, on the 31st day, the insurer is itself in violation of the PIP statute and the insured is free to initiate a lawsuit to have the case determined on the merits.” Id. (citations omitted). The court in Amador went on to distinguish its opinion from the Willis opinion, stating, “. . . the instant case, unlike Willis, is governed by Florida’s PIP statute which requires [the insurance company] to verify, and pay, an insured’s claim within 30 days of receiving notice of the claim.” Id. at 309. The court stated further: “Accordingly, contrary to [the insurance company’s] argument that the insureds were barred from filing suit without first submitting to an examination under oath, we hold that because of the special nature of, and protection afforded by, the PIP statute, upon expiration of the 30-day period, the insurer is itself in breach of the contract and may therefore, not deny an insured the right to access the courts for purposes of enforcing the PIP statute. Id. (emphasis added).
As most PIP practitioners are aware, the Florida Supreme Court then decided the case of Rodriguez, 808 So.2d 82 (Fla. 2001). In Rodriguez, the Florida Supreme Court quashed Perez v. State Farm Fire & Casualty Co., 746 So.2d 1123 (Fla. 3d DCA 1999), holding that an insured in a PIP case is not entitled to summary judgment if the insurance company fails to pay the PIP claim within the statutory 30-day period. Instead, the court held that the legislature clearly identified the penalties for a violation of Fla. Stat. §627.736(4)(b) by the insurance company. Specifically, the court stated, “Under the language of the Florida No-Fault Law, an insurer is subject to specific penalties once a payment becomes ‘overdue’; the penalties include ten percent interest and attorney’s fees. The insurer, however, is not forever barred from contesting the claim.” Rodriguez, 808 So.2d at 87.
The Fifth District Court of Appeal in the case of January v. State Farm Mutual Ins. Co., 838 So.2d 604, (Fla. 5th DCA 2003), then examined the issue of an insured’s failure to attend an EUO in a PIP case. In January, coverage was an issue and the insured failed to attend three EUO’s which were all scheduled prior to suit being filed. The county court, relying upon Goldman, granted summary judgment in favor of the insurance company, finding that the insured’s failure to attend any of the EUO’s was a material breach of the insurance contract and barred recovery of PIP benefits. January, 838 So.2d at 606. The circuit court acting in its appellate capacity held that the case was controlled by Goldman as opposed to Amador, and affirmed the ruling of the county court. January, 838 So.2d at 606-07.
The Fifth District Court of Appeal held that the lower courts had applied the wrong law and, in fact, Amador was controlling. As January was decided post-Rodriguez, the court citing to Rodriguez noted:
The court in[Rodriguez5]cited Amador with approval for the principle that the insurer has thirty days in which to verify a claim and that time cannot be tolled and the burden is clearly on the insurer to authenticate the claim within the statutory period. The remedy for tardily paying a PIP claim subsequently determined to be due is the same whether the question raised by the insurer is coverage or any other issue . . . The PIP insurer is given thirty days to investigate and to either pay the claim or discover the facts that warrant a refusal to pay. If it does not do so then the claim is overdue and the statutory penalties for failing to pay the claim timely (interest and fees) are due. If the insurer fails to pay the claim electing either to refuse the claim or to continue investigating, it is not barred from contesting the claims, but must pay the penalties once its duty to pay the claim is established. . . But it is simply incorrect to conclude that where the insurer’s reason for non-payment is a doubt about coverage, that the insurer is free to ignore the thirty-day claim deadline and investigate at its leisure with no limitation or consequences. Thus, as to those claims under the policy made by January that were not paid by State Farm within thirty days, January’s claim was mature and he was entitled to seek a judicial determination of his rights.
January, 838 So.2d at 607, (citations omitted) (emphasis added). The court went on to state that it would not “gainsay” the lower court’s determination that a material breach of the insurance contract precluding recovery had occurred for claims not yet 30 days old when the insured failed to attend a scheduled EUO, thereby drawing a distinction between an insured’s refusal to submit to an EUO prior to the expiration of the PIP 30-day deadline, versus a refusal to attend an EUO scheduled subsequent to expiration of said deadline. Id. at 608.
This Court has not been presented with any opinions rendered by the Second District Court of Appeal regarding the effect of an insured’s refusal to submit to an EUO in a PIP case, after the statutory 30-day expiration for paying the claim has expired. The Defendant does cite to two circuit court opinions from the Thirteenth Judicial Circuit acting in their appellate capacity. The first is Bowman v. Armor Ins. Co., 4Fla. L. Weekly Supp. 375a (13th Jud. Cir. Ct. Dec. 2, 1996). In that opinion, the Thirteenth Judicial Circuit affirmed summary judgment in favor of the insurance company, finding that the insured’s refusal to attend an EUO was a material breach of the contract, thereby precluding recovery of PIP benefits. This Court would note, however, that Bowman isfactually distinguishable from the instant case, in that the insurance company attempted to schedule the EUO within the required 30-day time period. In addition, Bowman was decided prior to Amador, Rodriguez, and January.
The Defendant also cites to Advanced Neuro Diagnostics & Rehab, Inc. v. State Farm Mutual Auto Ins. Co., 10Fla. L. Weekly Supp. 159c (13th Jud. Cir. Ct. Nov. 25, 2002). Again sitting in its appellate capacity, the Thirteenth Judicial Circuit affirmed entry of summary judgment against an insured for the insured’s failure to submit to an EUO. While the opinion does state that the insured failed to attend six (6) scheduled EUO’s, the facts are unclear as to whether any of the six were scheduled during the 30-day investigatory period. In relying upon Goldman, the court held that the insured had violated a condition precedent of the insurance contract and was, therefore, precluded from recovery of PIP benefits. While this opinion is pre-January but post-Amador, Amador isnot referenced at all in the opinion.
While this Court has the utmost respect for the Thirteenth Judicial Circuit sitting in its appellate capacity over the county court judges of this jurisdiction, this Court feels that in adhering to the principle of stare decisis, this Court is required to follow the opinions of the District Courts of Appeal that have weighed in on this issue. See, e.g., State v. Bamber, 592 So.2d 1129,1131 (Fla. 2d DCA 1991) (“This court has long recognized that trial courts are obligated to follow decisions of other district courts of appeal in this state in the absence of conflicting authority and where the appellate court in its own district has not decided the issue); and Nard, Inc. v. DeVito Contracting & Supply, Inc., 769 So.2d 1138, 1140 (Fla. 2d DCA 2000) (“We emphasize, therefore, in accord with the doctrine of stare decisis, that once a point of law has been decided by a judicial decision, it should be adhered to by courts of lesser jurisdiction, until overruled by another case, because it establishes a precedent to guide the courts in resolving future similar cases”).
The Court would note again that no precedent from the Second District Court of Appeal has been provided to this Court on the consequences in a PIP case of an insured’s failure to attend an EUO scheduled after the 30-day deadline to investigate the claim has expired. Both the Third and Fifth District Courts of Appeal have ruled on this issue, and both districts have held that an insured is still entitled to file suit. While the Fourth District Court of Appeal has held that attendance at an EUO is a condition precedent to litigation, and failure to attend the same is a breach of the insurance contract precluding recovery, to the Court’s knowledge, however, the Fourth District has not ruled upon this issue in the context of a PIP case specifically. Interestingly though, the Fourth District Court of Appeal did cite to Amador with approval in State Farm Mutual Auto Ins. Co. v. Jenkins, 767 So.2d 622, 623 (Fla. 4th DCA 2000).
It is also a common refrain from the defense bar that Amador has been implicitly overruled by Rodriguez. It does not appear, however, that the Florida Supreme Court or any District Courts of Appeal have so held. The only case cited to by the Defendant for this proposition is an opinion from the 11th Circuit sitting in its appellate capacity in Humanitary Health Care, Inc. a/a/o Juan Esquivel v. United Automobile Ins. Co., 12 Fla. L. Weekly Supp. 42a (11th Jud. Cir. Nov. 2, 2004)6. This Court, however, believes that Rodriguez means exactly what it says, with its emphasis on a defendant/insurance company’s ability to defend itself in a PIP lawsuit after the 30-day deadline for investigating and paying the claim has lapsed. Conversely, the Rodriguez opinion mentions nothing about the impact on a plaintiff/insured’s ability to maintain suit for failure to attend a contractually obligated EUO after the 30-day investigatory period has lapsed. In the absence of binding precedent, therefore, this Court declines to find that Rodriguez has implicitly “overruled” Amador in its entirety, until a court of superior jurisdiction so instructs. Additionally, this Court notes that review of Amador was denied by the Florida Supreme Court.
Finally, as a matter of fundamental fairness, both the insured and the insurer come to this Court having violated their respective duties to each other; the insurer having violated its statutory obligation, and the insured having violated his contractual obligation. It is the humble opinion of this Court that in a situation such as this, neither party is entitled to a per se tactical advantage after having both breached their respective obligations to the other. The Court notes parenthetically, however, that the result may be different for an insured’s failure to attend an EUO scheduled during the 30-day time period, as alluded to by the court in January.
IT IS ORDERED AND ADJUDGED, therefore, for the reasons stated herein, Plaintiff’s Motion for Final Summary Judgment is hereby DENIED, and Defendant’s Motion for Final Summary Judgment, or in the Alternative Summary Disposition is also hereby DENIED.
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1See, “The Mercury Companies — Clearwater, Florida — Florida Private Passenger Automobile Policy” (“Insurance Policy”) at p. 4.
2Id. at p.21.
3Id. at pp.10-11.
4The significance between the two terms is that a “condition precedent” is one that is to be performed before the contract becomes effective, and failure to comply with a condition precedent is a material breach of the contract precluding recovery under the policy. Id. at 303-304 (citations omitted). Conversely, a “condition subsequent” or “cooperation clause” pertains to the contract of insurance after the risk has attached and during its existence, and the burden is on the insurer to establish substantial prejudice before a breach of a cooperation clause precludes recovery. Id.
5This Court will refer to United Automobile Ins. Co. v. Rodriguez, 808 So.2d 82 (Fla. 2001) as“Rodriguez”, as this is how the opinion is most commonly referred to in this jurisdiction. The Court notes that in January, the 5th DCA refers to it as“United Automobile”.
6The 11th Circuit finds that Amador wasimplicitly overruled by Rodriguez, however, there is no citation of authority for that decision. Curiously enough, the 11th Circuit is located in the Third District Court of Appeal, the same DCA which decided Amador.
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