12 Fla. L. Weekly Supp. 321a
Insurance — Personal injury protection — Examination under oath — Failure to attend — Where insurer erroneously sent letter to insured stating it was suspending all benefits, insurer repudiated PIP contract and insured was under no obligation to attend EUO — No error in entering summary judgment in favor of medical provider — Attorney’s fees — Justiciable issues — Attorney’s fees are awarded to medical provider where insurer’s appeal is completely without merit; is contradicted by overwhelming evidence; and resulted from problem that began with insurer’s misinterpretation of independent medical examination report by its own doctor — Further, considerable delay in appeal was caused by misrepresentation of contents of record by insurer’s attorney
UNITED AUTO INS. CO., Appellant, v. CICERO ORTHO-MED CENTER, INC., Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 02-326 AP & 03-430 AP. L.T. Case No. 01-023731-SP 23. January 11, 2005. An Appeal from the County Court for Miami-Dade County, Linda Singer Stein, J. Counsel: Mark A. Gatica, Troy D. Ferguson & Associates, P.A., for Appellant. Marlene S. Reiss, Stephen, Lynn Klein, Lacava, Hoffman & Puya, for Appellee.
(Before CINDY S. LEDERMAN, STANFORD BLAKE, WILLIAM JOHNSON, JJ.)
(BLAKE, J.) On March 22, 2001, Danilo Mejia allegedly sustained injuries as a result of an automobile accident. Mr. Mejia was covered by an insurance policy issued by United Automobile Insurance Company. On May 10, 2001, Mr. Mejia sought treatment from Ortho-Med Center. He also assigned his rights to Personal Injury Protection benefits to Ortho-Med Center. On May 29, 2001, at the request of United, Mr. Mejia appeared for an Independent Medical Examination conducted by Dr. Guillermo Blanco. Dr. Blanco concluded that Mr. Mejia required further treatment. United scheduled Mr. Mejia to attend an Examination Under Oath for either June 22, 2001 or June 27, 2001. However, on June 18, 2001, prior to the Examination Under Oath, United sent Mr. Mejia’s counsel a letter suspending PIP benefits for any services rendered after July 10, 2001. Apparently, United had misread Dr. Blanco’s conclusion and issued the suspension letter in error. On June 20, 2001, United received a bill from Ortho Med-Center for the services rendered. United denied the payment citing breach of contract for Mr. Mejia’s failure to appear at the scheduled EUO. The assignee, Ortho Med-Center, brought suit against United for Breach of Contract. United’s affirmative defense was that it had denied payment as a result of Mr. Mejia’s failure to appear at the scheduled EUO. The parties filed cross motions for summary judgment. The trial court entered judgment in favor of the plaintiff, Ortho Med-Center. The trial court also denied United’s Motion for a Rehearing and to Set Aside Final Judgment. United has appealed the final judgment of the trial court.
The issue is whether the trial court correctly entered summary judgment in favor of the plaintiff, Ortho Med-Center. The standard of review for a lower court’s order granting summary judgment is de novo. Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000).
The trial court correctly entered summary judgment in favor of the plaintiff, Ortho Med-Center. In Peachtree v. Walden, 759 So.2d 7 (Fla. 5th DCA 2000), the plaintiff Amy Walden, was injured in an automobile accident. She made a claim for PIP benefits under a policy issued by Peachtree. Id. at 8. Peachtree scheduled her for an IME and based on the recommendations of the doctor, concluded that further treatment was not reasonable, necessary or related to the accident. Id. Peachtree informed Walden that it would not pay for treatment after a certain date. Id. Walden sued Peachtree for breach of contract. Id. The fifth district court of appeal stated that the notice Peachtree sent Walden, to the extent her treatment was necessary, constituted an anticipatory breach of its agreement to provide those benefits. Id. It is now the generally prevailing rule in both England and the United States that a definite and unconditional repudiation of the contract by a party thereto, communicated to the other, is a breach of the contract, creating an immediate right of action and other legal effects, even though it takes place long before the time prescribed for the promised performance and before conditions specified in the promise have ever occurred. Id.
In Hospital Mortgage Group v. First Prudential Development Corp., 411 So.2d 181 (Fla. 1982), the Supreme Court of Florida determined that in dealing with anticipatory repudiations the law is clear that a repudiation gives rise to a claim for damages by the non-breaching party. As stated in Restatement (Second) of Contracts s. 253 (1979):
(1) Where an obligor repudiates a duty before he has committed a breach by non-performance and before he has received all of the agreed exchange for it, his repudiation alone gives rise to a claim for damages for total breach.
(2) Where performances are to be exchanged under an exchange of promises, one party’s repudiation of a duty to render performance discharges the other party’s remaining duties to render performance.
Id. at 182.
In this case, United erroneously sent a letter to the insured stating that after July 10, 2001, it would be suspending all benefits paid under the PIP policy. As a result, there was a repudiation by United and the plaintiff was entitled to immediate action. There was no mention that United attempted to retract the suspension of benefits upon discovery of its error. The plaintiff continued to think that his PIP benefits were suspended. If the PIP benefits were suspended then Mr. Mejia’s duty to attend the Examination Under Oath was discharged. Thus, United’s actions constituted a repudiation of the contract and the plaintiff was entitled to immediate action and Mr. Mejia was under no obligation to attend the Examination Under Oath. Therefore, the judgment of the trial court is affirmed.
The Appellee has also filed a motion for attorney’s fees and costs on Appeal pursuant to Section 627.428(1) and Florida Rule of Appellate Procedure 9.400. This court finds that the Appellant’s appeal is frivolous. An appeal is defined as frivolous if it presents no justiciable question and is so devoid of merit on the face of the record that there is little prospect it will ever succeed. Visoly v. Security Pacific Credit Corporation, 768 So.2d 486, 490 (Fla. 3d DCA 2000). Factors to determine if an appeal is frivolous include where a case is found: (a) to be completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (b) to be contradicted by overwhelming evidence; (c) as having been undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (c) as asserting material factual statements that are false. Id.
In this situation, the appellant’s case is completely without merit and is contradicted by overwhelming evidence. This problem began as a result of United’s misinterpretation of the IME conclusions of its own doctor and sending a suspension of PIP benefits letter to the insured. United did nothing to clarify this error. United then denied payment to the assignee, Ortho-Med Center, and blamed it on the insured’s failure to appear at the EUO. United ignores the fact that it issued the suspension letter prior to the insured’s scheduled EUO. There would be no reason for his attendance at the EUO, if his benefits have already been denied. The insured did everything that was asked of him prior to receiving the suspension letter. The law is clear regarding anticipatory breach and instead of admitting its error, United has continued to challenge this action.
Furthermore, there is some degree of fault from the attorney representing United. When an attorney is solicited to pursue an appeal that is devoid of merit, he or she has a duty to advise the client of the potential for sanctions, and that it would be unethical for the attorney to go forward with frivolous appellate proceedings. Id. at 492. As officers of the court and members of the bar, attorneys have an ethical and professional responsibility to withdraw from representation rather than to pursue a frivolous appeal. Id. The appellant attorney should have realized that this appeal was frivolous and not worth pursuing.
In addition, United’s attorney misrepresented on appeal, that the deposition transcript of the adjuster, Jaime Morejon, was not part of the record. Mr. Morejon’s deposition transcript was filed with the County Court prior to the Summary Judgment and therefore was part of the record on appeal. This misrepresentation has caused considerable delay of a fairly apparent outcome.
Therefore this cause is hereby remanded to the trial court for a determination as to reasonable appellate attorney’s fees and costs for the Appellee.
It is so ordered. (Cindy S. Lederman and William Johnson, JJ., concur.)
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