12 Fla. L. Weekly Supp. 437a

Insurance — Personal injury protection — Coverage — Defenses — Failure to attend examination under oath — Error to strike defense on ground that EUO requirement was extinguished by assignment of benefits — Answer and affirmative defense specifying failure to attend EUO as condition precedent that did not occur set forth defense with particularity — No merit to argument that defense was properly stricken because insurer breached policy prior to insured’s failure to attend EUO by failing to pay claim within 30 days without reasonable proof that it was not liable for claim where insurer scheduled EUO to occur within 30 days of receipt of medical provider’s bill, although it also provided alternative date outside 30-day period — Where issue is reasonableness of charges, rather than whether medical services were reasonable, related, and necessary, affidavit of litigation adjuster stating charges were above usual and customary charges, which was hearsay but not rank hearsay, was competent evidence disputing medical provider’s affidavit and granting of summary judgment on issue was improper

UNITED AUTOMOBILE INS. CO., Appellant, v. MILLENNIUM DIAGNOSTIC IMAGING CENTER, INC., Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 03-655 AP. L.C. Case No. 2003001942CC24. February 17, 2005. An Appeal from the County Court for Miami-Dade County, Jeffrey Swartz. Counsel: Mark A. Gatica, for Appellant. Richard Shuster, for Appellee.

CORRECTED OPINION

[Editor’s note: see also 12 Fla. L. Weekly Supp. 41b]

(ISRAEL REYES, J.) The previous opinion of this court filed on January 27, 2004, is vacated and withdrawn, and this opinion is substituted in its stead. This is an appeal of a final summary judgment against United Automobile Insurance Company (United), a personal injury protection (PIP) insurance provider, in favor of Millennium Diagnostic Imaging Center (Millennium), a health care provider. United argues that the trial court improperly struck its defense that the insured failed to attend an examination under oath (EUO) and that it erred by entering summary judgment when there were disputed issues of material fact.

The trial court struck United’s defense that the insured failed to attend an EUO “because the Defendant received Plaintiff’s assignment of benefits prior to sending notice of the EUO.” United argues that the striking of the EUO defense was improper because the EUO requirement was not extinguished by the assignment of benefits. In its brief, Millennium does not attempt to argue that the assignment extinguished the insured’s obligation to attend the EUO, and it is clear that such an argument would be incorrect. See, e.g., Advanced Diagnostic Testing, Inc. v. State Farm Ins. Co., 11 Fla. L. Weekly Supp. 964c (Fla. 11th Cir. Ct. August 17, 2004) (“when an insured assigns his benefits to a healthcare provider, the obligation to attend an EUO remains with the insured, and the insurer has a good defense to the provider’s claim if the insured refuses an EUO.”) (emphasis removed). Instead of relying on the ground cited by the trial court for striking United’s EUO defense, Millennium asserts that the defense was properly stricken because United did not set forth its defense with particularity and because United breached the policy prior to the insured’s failure to attend the EUO by failing to pay the claim within thirty days without reasonable proof that it was not liable for the claim.

Regarding its argument that the striking of United’s EUO defense was proper because it was not set forth with particularity, Millennium cites Florida Rule of Civil Procedure 1.120(c). The Rule states that “In pleading the performance or nonperformance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.” However, in this context, the specificity requirement simply means that the “denial must specify what conditions precedent were not performed or did not occur.” San Marco Contracting Company v. State Department of Transportation, 386 So. 2d 615 (Fla. 1st DCA 1980). In the instant case, United’s Answer and Affirmative Defenses provides that “for its first Affirmative Defense, Defendant states that Plaintiff failed to perform all of the conditions precedent to entitle Plaintiff to recover in that Plaintiff failed to attend scheduled sworn statement.” This statement specifies the condition precedent that did not occur, so it meets the particularity standard as set forth in San Marco. Therefore, Millennium’s particularity argument does not support the striking of United’s defense.

As for its argument that United breached the policy first by failing to pay the claim within thirty days without reasonable proof that it was not liable for the claim, Millennium cites to United Automobile Insurance Company v. Millennium Diagnostics & Imaging Center a/a/o Catalina Canelaria, 10Fla. L. Weekly Supp. 971c (11th Cir. Ct. October 31, 2003). That case provides authority that an insurance company must schedule an EUO to take place within thirty days of the insurance company receiving medical bills. See also Amador v. United Automobile Insurance Company, 748 So. 2d 307 (Fla. 3d DCA 2000). The only evidence in the record is that United received the bill from Millennium on September 13, 2002, and Millennium agrees that is when United received its bill. Millennium points to a bill that United received from another medical provider and the occurrence of an independent medical examination, both of which happened prior to September 13, 2003. However, the date when the thirty day time period begins to run is the date that the insurance company receives the bill from the medical provider who provided the treatment that is the subject of the EUO, in this case, September 13, 2003. Thirty days after September 13, 2002 was October 13, 2002. United scheduled the EUO to take place before October 13, 2002, though it also provided an alternative date after October 13, 2002. Therefore, because it scheduled the insured’s EUO to take place within thirty days of receiving the bill from Millennium, United did not breach the contract and should have been permitted to defend on the basis that the insured did not attend the EUO.

United also argues that it was improper to grant summary judgment on the issue of whether the charges for the medical services provided were reasonable. United argues that there were genuine issues of material fact concerning this issue. It points out that, while Millennium provided an affidavit stating that the charges for services were reasonable, United submitted an opposing affidavit of its litigation adjuster stating that the charges were above the usual and customary charges for similar services. Millennium argues that the affidavit of the litigation adjuster was not competent evidence. It cites to United Automobile Insurance Company v. Neurology Assoc. Group, Inc. a/a/o Nicholas Cabello, 11Fla. L. Weekly Supp. 204b (11th Cir. Ct. January 13, 2004). However, Neurology Assoc. Group is distinguishable from the instant case. In Neurology Assoc. Group, the medical provider submitted an affidavit of the treating physician on the issue of reasonable, related and necessary. The insurance company countered with a letter from its claims adjuster stating that its IME physician advised that the treatment was not reasonable, related and necessary. The Court found that the letter was “rank hearsay” because it was the testimony of the claims adjuster about the physician’s testimony. The Court added that “the testimony of a claims adjuster can hardly address whether medical treatment was reasonable, related to the accident, or medically necessary.” (emphasis added). In the instant case, the disputed issue is not whether the medical treatment was reasonable, related and necessary, but whether the amount charged was reasonable.¹ The affidavit is hearsay, but not the “rank hearsay” referred to in Neurology Assoc. Group. It is not the type of information that would need to be given by a physician. Therefore, Neurology Assoc. Group is not applicable to the instant case, and the trial court’s granting of summary judgment on this issue was improper because there were genuine issues of material fact.

Therefore, the final summary judgment entered against United is REVERSED. (JEFFREY ROSINEK, J., and DARYL E. TRAWICK, J., CONCUR.)

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¹The order being appealed refers to “R R & N,” presumably short for “reasonable, related and necessary,” which usually refers to the relationship of the medical treatment provided to the injury sustained. However, neither of the affidavits address medical treatment, but only address the cost of the treatment.

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