12 Fla. L. Weekly Supp. 835b
Insurance — Personal injury protection — Examination under oath — Failure to attend — Where insurer scheduled EUO outside thirty-day investigatory period following receipt of first set of bills, but within thirty-day period after receipt of second set of bills, medical provider was entitled to summary judgment as to first set of bills only
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. SOUTH MIAMI HEALTH CENTER, a/a/o VIRGEN VASQUEZ, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 04-324 AP. Consolidated with 04-325 AP. L.T. Case No. 03-2488 CC 25. June 14, 2005. An appeal from a decision of the Miami-Dade County Court. Counsel: Mark A. Gatica, for Appellant. George A. David, for Appellee.
(BEFORE STANFORD BLAKE, JULIO E. JIMENEZ, and ISRAEL REYES, JJ.)
(REYES, ISRAEL, J.) Virgen Vasquez (“the claimant”) was injured in an automobile accident on November 1, 2002; she was a passenger. She claimed insurance coverage pursuant to a policy issued to the driver by Appellant United Automobile Insurance Company (“the insurer”). Vasquez was treated at South Miami Health Center (“the provider”) on November 8, 2002. At the time of the initial treatment, Vasquez executed an assignment of her PIP benefits to the provider. The provider submitted claims to the insurer requesting payment of certain medical expenses. Claims were received on January 8, 2003; additional claims were received on January 23, 2003, January 25, 2003, and March 3, 2003.
On January 23, 2003, the insurer requested that Vasquez appear for an Examination Under Oath (“EUO”) scheduled for February 18, 2003; there was an alternate date of February 28, 2003 provided. Vasquez did not attend either appointment, but her attorney sent a letter on February 21st saying she would not attend an EUO until she was first provided with a copy of the policy. Later during the discovery phase of the litigation, the insurer admitted that it never sent Vasquez a copy of the insurance policy, nor did it reschedule the EUO at a mutually convenient time.
The insurer denied Vasquez’ claims for various reasons, including her failure to appear for the EUO. The provider sued for PIP benefits on or about February 28, 2003, contending that it had complied with all conditions precedent to filing suit. The insurer answered with a denial that the conditions had been met and asserted six affirmative defenses, including that the claimant violated the policy terms by refusing to attend the EUO.
The insurer states that ultimately both parties filed for summary judgment; the provider disputes this, stating that it was the sole party that filed for summary judgment. The trial court found that the provider was entitled to $3,659.00 in PIP benefits. The lower court also found that Vasquez was not required to attend the EUO because it was scheduled outside of 30 days following receipt of the first set of bills. The trial court entered judgment in favor of the provider in the amount of $4,486.13. Subsequently, the trial court entered a final judgment awarding the provider statutory attorney’s fees and costs. This appeal followed.
The basis for Appellant’s argument is that the trial court erred by entering summary judgment in favor of the provider where the claimant failed to attend two scheduled EUOs, as the EUO is a condition precedent of the insurance policy. Even though the EUO request was outside of 30 days of the initial set of bills, it was within 30 days of the second set of bills and prior to receipt of the third set of bills. [The insurer appears to concede the possibility that summary judgment was proper with regard to the first set of bills, but not with regard to the second and third set.] Further, the insurer contends that the 30 day time period relates to the time within which payment must be made before penalties accrue. It does not represent the termination date for the insurer’s investigation.
Florida law holds that summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law. The standard of review is de novo. See Fla. R. Civ. P. 1.510(c); Volusia County v. Aberdeen at Ormand Beach, 760 So. 2d 126 (Fla. 2000); Sierra v. Shevin, 767 So. 2d 524 (Fla. 3d DCA 2000). Concerning the law governing EUOs, the insurer maintains that controlling case law holds that the failure to submit to an examination under oath is a material breach of the policy which will relieve the insurer of its liability for payment. See Goldman v. State Farm Fire General Ins. Co., 660 So. 2d 3000 (Fla. 4th DCA 1995); Stringer v. Fireman’s Fund Ins. Co., 622 So. 2d 145 (Fla. 3d DCA 1993). Additionally, in order to maintain an action for breach of contract, a claimant must first establish performance on its part of the contractual obligations imposed in the contract. See Marshall Construction, Ltd. v. Coastal Sheet Metal & Roofing, Inc., 569 So. 2d 845 (Fla. 1st DCA 1990).
The insurer’s position is that attendance at the EUO was a material part of the contract, and a condition precedent to any action on the claimant’s part of recovery. Failure to comply with this contractual term results in a denial of PIP benefits, under the contract’s terms. The insurer received the first set of bills on January 8, 2003, and the second set on January 23, 2003. An EUO was scheduled for February 18, 2003, with an alternative date of February 26, 2003. As the EUO was originally scheduled more than 30 days after the first set of bills was received, the claimant maintains that she did not have to attend the exam (but it was scheduled within 30 days of the second set of bills). Florida statute sec. 627.736(4)(b) provides for a 30 day period for an insurer to investigate a bill submitted for payment of medical expenses. The insurer contends that it has the right and the duty to investigate every bill submitted for payment, to be sure the expenses incurred are truly for treatment for the relevant injury or accident. At most, the insurer’s position is that only the first set of bills would be viable, despite claimant’s failure to attend the EUO (as it was scheduled outside the 30 day period). However, the second and third sets of bills would be barred because claimant failed to comply with a condition precedent in the insurance agreement. The second set of bills fell within the investigatory period (during which the EUO was properly scheduled), thus ensuring that the claimant had an obligation to attend the EUO.
This Court concludes that the lower court’s entry of summary judgment in favor of the provider on all the bills was erroneous, and should be reversed in part. The provider was only entitled to summary judgment as to the first set of bills, where the EUO was scheduled outside the 30 day investigatory period. The provider was not entitled to summary judgment as to the second set of bills, because the EUO was scheduled timely. Provider is entitled to appellate attorney’s fees as to the partial affirmance of the summary judgment. (Judges BLAKE and JIMINEZ concur.)
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